Decided on April 22,2004



A.Subbulakshmy, - (1.) THE Original Application (OA) was allowed by the Tribunal by Order dated 13.1.1997. Recovery proceedings commenced. THE 1st respondent filed MP-3/2001 before the Recovery Officer praying to close the recovery proceedings against immovable properties of the defaulter as barred by limitation and another petition MP-4/2001 was also filed before the Recovery Officer by M/s. V.M. Finance & Leasing Company against the property and the Recovery Officer rejected both the applications by Order dated 28.8.2002. THEn the petitioner in MP-3/2001 preferred an appeal RA-1/2002 before Presiding Office and that was dismissed by the Tribunal by Order dated 4.10.2002. Again 1st respondent filed Review Petition MA-95/2002 before the Tribunal for reviewing its Order dated 4.10.2002 and the Review Petition was allowed by the Tribunal by Order dated 6.1.2003 and consequently RA-1/02 was also allowed. That Order dated 6.1.2003 is being now challenged by the Bank in this appeal.
(2.) The Recovery Officer in his Order dated 28.8.2002 has found that the Demand Notice under Rule 2 of the Second Schedule of Income Tax Act, 1961 were issued under Part-1 of the Rules whereas attachment of the property is provided under Rule 48 of the said Rules and service of attachment is provided under Rule 49 and Proclamation of Attachment is provided under Rule 50 and Rule 51 clearly states that the attachment of property under Rule 48 shall relate back to the date on which the notice to pay arrears was served and the time limit of four years stipulated in Rule 68(B) shall be taken into consideration only with reference to the service of the proceedings commenced from the stage of Rule 48 i.e. attachment and not clearly in view of the language used under Rule 68(B) of the Second Schedule to the Income Tax Act, 1961 to the effect that no sale of immovable property shall be made under this part after expiry of 4 years and in the present case attachment of immovable property was issued under Rule 48 on 31.7.2001 and still the period of 4 years is available for proceeding further it is not barred by limitation. Even though the P9, DRT, initially dismissed the appeal RA-1/2002 preferred as against the Recovery Officer's Order, on the Review Petition (MA-95/2002) filed by the 1st respondent herein, the PO, DRT allowed that Review Petition by Order dated 6.1.2003 holding that after recovery proceedings are taken he is empowered to act only under the provisions of the Income Tax Act, which is made applicable under Section 29 read with Section 34 of the RDDB & FI Act and has ultimately found that it is barred by limitation. The PO's finding is that the Recovery Officer has to take action with regard to the recovery only under the provisions of the Income Tax Act, which is made applicable under Section 29 read with Section 34 of the RDDB & FI Act.
(3.) SECTION 29 of the RDDB & FI Act, 1993 reads as follows: "Application of certain provisions of Income-tax Act--The provisions of the Second and Third Schedule to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time-to-time shall, as far as possible, apply with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of the income tax: Provided that any reference under the said provisions and the rules to the 'assessee' shall be construed as a reference to the defendant under this Act.";

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.