M.R. Shah, J. - (1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned notice dated 17.09.2014 bearing No. SRT/CCIT/HQ/Auction/1 -431/2014 -2015 of the Chief Commissioner of Income -tax, Surat forfeiting the bid amount paid by the petitioner in respect of the property No. 1/431, Hira Mohallo, Nanpura, Surat (hereinafter referred to as "subject property"). That the Income Tax Department, Surat put the subject property to auction. Public notice was given in the newspapers having wide circulation inviting bids/tenders and the reserve price was fixed at Rs. 91,78,000/ -. As per the public advertisement/notice the auction was to be held on 25.02.2014. That as per the said public advertisement/notice the intending bidders were required to deposit for participating in the auction refundable caution deposit of Rs. 25,000/ -. That as per the terms mentioned in the said public notice/advertisement, said caution deposit amount was refundable subject to the terms thereof to all the bidders except the successful bidder who will be entitled to refund of the caution deposit on payment of earnest money. That the intending bidders were also required to deposit for participating in the auction an earnest money deposit of Rs. 9,71,000/ -, which was refundable subject to the terms to all the bidders except the successful bidder on the property being knocked out in his favour in the auction. It was also provided in the said public notice/advertisement that subject to the terms thereof 25% of the amount will have to be paid within 30 days of the auction and the balance amount will have to be paid within 90 days from the date of confirmation of sale by the Chief Commissioner of Income -tax, Surat. That the petitioner who claims to be the Manager of one Panchratna Real Estate Pvt. Ltd. also participated in the said public auction on depositing the caution deposit of Rs. 25,000/ - and making earnest money deposit of Rs. 9,71,000/ - as required before participating in the auction. It is the case on behalf of the petitioner that petitioner through his authorized bidder i.e. Kantibhai K. Patel made the highest bid to the tune of Rs. 2,56,00,000/ - in the said public auction. That as the said Kantibhai K. Patel was the only highest bidder, his highest bid of Rs. 2,56,00,000/ - came to be accepted and the Commissioner of Income -tax, Surat vide letter dated 27.02.2014 confirmed the sale with respect to the abovementioned property. That as per the terms and conditions on which sale came to be confirmed in favour of the highest bidder, the highest bidder was required to make the payment of the total bid amount within a period of 30 days of the auction and the balance amount was required to be paid within 90 days from the date of confirmation of the sale. As observed hereinabove, the sale in favour of the petitioner/highest bidder came to be confirmed on 27.02.2014. Therefore, the highest bidder - petitioner was required to make the payment of 25% of the total bid amount within a period of 30 days and the balance amount within a period of 90 days from 27.02.2014. That the petitioner made the payment of 25% of the total bid amount within a period of 30 days of the auction as per the terms and conditions on which the sale came to be confirmed in favour of the petitioner/highest bidder. It appears that in the meantime the petitioner company through a letter dated 18.03.2014 to the CCIT, requested to transfer the bid proposal to the personal name of one of the Director i.e. Kantibhai K. Patel. That the request of the petitioner to transfer the bid proposal to the personal name of the aforesaid Shri Kantibhai K. Patel came to be rejected vide letter dated 07.04.2014 in light of para 17 of the terms and conditions of the sale confirmation. That as the petitioner - highest bidder in whose favour the sale was confirmed did not make the payment of balance sale consideration within a period of 90 days from the date of confirmation of sale, which the petitioner - highest bidder was required to make within a period of 90 days as per the terms and conditions of the tender agreement as well as the terms and conditions on which the sale came to be confirmed in his favour, the petitioner vide communication/letter dated 28.05.2014 requested for extension of three months' time to pay the remaining bid amount along with two post dated cheques of Rs. 40 lakh dated 29.05.2014 and Rs. 40 lakh dated 03.06.2014. Thus, the petitioner made the payment of only Rs. 1,28,00,000/ - and the remaining bid amount left to be paid was Rs. 1,28,00,000/ -. That once again the petitioner vide letter dated 22.07.2014 requested for extension of time so as to pay the remaining bid amount along with the cheque of Rs. 40 lakh dated 03.07.2014. Thus, till 03.07.2014, the petitioner made the payment of Rs. 1,68,00,000/ - in all (65.62% of the total bid amount). It is the case on behalf of the petitioner that at that stage the petitioner assured that remaining amount of Rs. 88 lakh shall be paid within a period of 45 days. That vide communication dated 21.08.2014 the CCIT informed the petitioner company that their request through letter dated 28.05.2014 and 02.07.2014 for extension of time to pay the remaining bid amount cannot be accepted as the same is not in consonance with the terms and conditions under the CBDT Instruction No. 1908, dated 19.07.1993. That the petitioner was also informed by the aforesaid communication that failure on the part of the petitioner to make the payment of the bid amount within the period specified will lead to forfeiture of the entire amount already paid. That thereafter vide impugned notice/communication dated 17.09.2014, the CCIT has informed the petitioner that the amount of Rs. 1,28,00,000/ - already paid by the petitioner stands forfeited in view of the terms of para 11 of the Annexure -A of the terms and conditions of the CBDT Instruction No. 1908, dated 19.07.1993 as well as paras 10 and 11 of the Auction Brochure of the subject property, as the petitioner failed to pay the entire bid amount within the specified period (within 90 days from the date of confirmation of sale). 1.1 Feeling aggrieved and dissatisfied with the impugned communication/notice dated 17.09.2014 of forfeiture of the amount paid, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
(2.) SHRI Upadhyay, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned action of forfeiture of the entire amount is too harsh. It is submitted that as such the conditions imposed in the CBDT Circular upon which the reliance is placed itself is absolutely illegal. It is submitted that as such the petitioner has already paid approximately 64% of the bid amount by now and is ready and willing to pay the balance amount of bid amount if some more time is granted to the petitioner. It is submitted that even after completion of 90 days the petitioner has made some payment which has been accepted by the Department. It is submitted that as the petitioner could not get the housing loan, the petitioner could not make the payment of the entire bid amount. Shri Upadhyay, learned advocate appearing on behalf of the petitioner has therefore requested to extend the time to make the payment of balance amount of bid amount. Heard Shri Upadhyay, learned advocate appearing on behalf of the petitioner at length. At the outset it is required to be noted and it is not in dispute that petitioner has failed to make the payment of entire bid amount within stipulated time of 90 days from the date of confirmation of sale in favour of the petitioner. It is not in dispute that as per the public advertisement/notice inviting the bids it was so specifically mentioned that the successful bidder has to make the payment of entire bid amount within a period of 90 days from the date of confirmation of sale. It is also not in dispute that even in the terms and conditions of the sale confirmation, it has been specifically provided that the successful bidder (petitioner) has to make the payment of full sale confirmation/bidding amount within a period of 90 days from the date of confirmation of the sale, failing which the amount already deposited shall be forfeited. Thus, as such at the time of inviting the bids as well as even at the time of confirmation of sale in favour of the petitioner, the petitioner was informed that the petitioner has to make the payment of bid amount within a period of 90 days from the date of confirmation of the sale, failing which the amount already deposited shall be forfeited. It is required to be noted that as such on the aforesaid terms and conditions the sale came to be confirmed in favour of the petitioner. Despite the above, the petitioner has failed to make the payment of bid amount within 90 days from the date of confirmation of sale. It is required to be noted that the sale came to be confirmed in favour of the petitioner on the aforesaid terms and conditions vide communication dated 14.02.2014 which came to be communicated to the petitioner vide communication dated 27.02.2014. Thus, within a period of 90 days from 14/27.02.2014, the petitioner was required to make the payment of entire bid amount, which admittedly the petitioner has failed to make. Under the circumstances, as such the consequences on breach of the terms and conditions on which the sale came to be confirmed must follow. At the time of making bid the petitioner was required to make the provision for deposit of the bid amount. 3.1 Now, so far as the request on behalf of the petitioner to grant extension to the petitioner to deposit the balance bid amount is concerned, the same cannot be accepted now. It is required to be noted that as such the petitioner was required to deposit/pay the entire bid amount within a period of 90 days from 14/27.02.2014 i.e. on or before 14/27.05.2014. Therefore, time to make the payment of entire bid amount had expired as far as back in the month of May, 2014. Granting of further time and/or extension of time further would tantamount to varying the terms and conditions on which the bids were invited and even the terms and conditions on which the sale came to be confirmed in favour of the petitioner. If now the prayer of the petitioner to extend the time to make the payment of bid amount is considered and accepted, in that case the other unsuccessful bidders are likely to be affected. They can very well say that if they would have known that time to make the payment of entire bid amount is extendable, in that case, they would have offered more amount. In any case this Court in exercise of powers under Article 226 of the Constitution of India cannot extend the period to make the payment of bid amount which would tantamount to varying the terms and conditions of inviting the bids and/or terms and conditions on which the sale is confirmed in favour of the petitioner. As observed hereinabove, on non -fulfilment of the terms and conditions and/or in breach of the terms and conditions on which the sale is confirmed, the necessary consequences as provided under the terms and conditions of the tender agreement/the sale confirmation must follow. 3.2 Now, so far as the contention on behalf of the petitioner that CBDT Circular No. 1908, dated 19.07.1993 upon which the reliance has been placed by the Department itself is illegal is concerned, it is required to be noted that as such the CBDT Circular has not been challenged by the petitioner. Even otherwise in the public advertisement/notice inviting the bids and even in the terms and conditions on which the sale has been confirmed provide the period under which the successful bidder/petitioner was required to make the payment of bid amount and on failure to make the payment within stipulated time, the consequences shall follow. In view of the above, it cannot be said that the impugned communication/decision of the CCIT forfeiting the amount on failure of the petitioner to make the payment of entire bid amount within stipulated time is illegal and/or arbitrary and/or in breach of the terms and conditions on which the sale came to be confirmed in favour of the petitioner. Under the circumstances, there is no substance in the present petition and the same deserves to be dismissed and is, accordingly, dismissed.;