R.B.MISRA, J. - (1.) BY this writ petition the prayer has been made for quashing the order dt. 22nd Nov., 1999 (Annexure 16) passed by the CIT (Tax Recovery), Agra, purported to have been passed under r. 86(1) of the Second Schedule to the IT Act, 1961 ('the Act').
(2.) I heard Shri Rajesh Kumar, the learned counsel for the petitioner as well as Shri A.N. Mahajan, the learned standing counsel for the respondents. The brief facts necessary for adjudication of the case are that for realisation of demand which was outstanding against the assessee; the asst. year 1987 88 Rs. 6,10,650, the asst. year 1990 91 Rs. 6,63,500, the asst. year 1991 92 Rs. 17,94,783, asst. year 1992 93 Rs. 39,002, the TRO 1, Agra (TRO), auctioned a shop situated in Sanjay Place, Agra, bearing No. 44/2/108 on 19th March, 1997 for Rs. 2,72,000. Against this auction the assessee has filed an application to this office on 1st April, 1997 for cancellation of the auction raising certain objections and prayed that the order of the TRO be set aside. The TRO by his order dt. 2nd July, 1997 (Annexure 10) passed a detailed order against which the petitioner has preferred an appeal under r. 86(1) before the CIT, Agra, who by its order dt. 22nd Nov., 1999 dismissed the appeal with following observation : "Rule 86(1) provides that appeal against the TRO's order lies only if the TRO's order has not become conclusive. In this particular case, it is observed that the order confirming the sale has been passed by the TRO 1, Agra, under r. 63(1) of the Second Schedule to the IT Act, 1961 on 2nd July, 1997 and the sale certificate under r. 65(1) of the Second Schedule to the IT Act, 1961 has also been given on 2nd July, 1997. Therefore, the. order of the TRO has become conclusive and no interference under the law can be done now. In view of the matter, the assessee's appeal is dismissed."
(3.) THE learned counsel for the petitioner, Shri Rajesh Kumar, has contended that the order dt. 2nd July, 1997 passed by the TRO is not conclusive order but it is original order against which the appeal lies under r. 86(1) of the Second Schedule is as below : "86. Appeal. (1) An appeal from any original order passed by the TRO under this Schedule, not being an order which is conclusive, shall lie to the Chief CIT or CIT. (2) Every appeal under this rule must be presented within thirty days from the date of the order appealed against. (3) Pending the decision of any appeal, execution of the certificate may be stayed if the appellate authority so directs, but not otherwise. (4) Notwithstanding anything contained in sub r. (1), where a Chief CIT or CIT is authorised to exercise powers as such in respect of any area, then, all appeals against the orders passed before the date of such authorisation by any TRO authorised exercise powers as such in respect of that area or an area which included in that area, shall lie to such Chief CIT or CIT." ;