D.S.TEWATIA,J. - (1.) PETITIONER Jaswant Singh has impugned sale notice which is annexed to the petition as Annexure-B issued by the TRO (Home Tax), Ludhiana, on the Grounds : (i)that the property was worth lacs and the arrears of income-tax could be recovered from the movable assets. The proclaimed auctioned not been preceded with issue of service of writ of demand and attachment of petitioner who is in possession of the property. (ii)that the petitioner had placed on record before the IT Authorities Jamabandies of the land of respondent No. 3 defaulter, situated in village Dakha and some of which had since been sold by Nahar Singh, attorney of the defaulter but the IT Authorities had not proceeded against him. (iii)that the impugned proclamation published in the Tribune and the Hind Samachar did not indicate the amount of which the property was being auctioned nor the name for the defaulter an his liability for which the proceedings of attachment and sale were in progress. (iv)that the proceedings had been purposely kept secret from the petitioner who held the property in his possession and admittedly the owner thereof. The petitioner never had any notice of any claim against him has said partner or the partnership concern except orders of assessment against which appeals were pending before the competent Tribunals. (v)that the appeal against the assessment for 1966-67 were pending before the Tribunal Chandigarh, and the assessment for the year 1968-69 had not been communicated to the petitioner since the same was still pending with the AAC Ludhiana, and that the appeal with respect of 1969-70 was also undecided. (vi)that the attachment was finally removed on 26th March, 1972 and thereafter, legally no second attachment was made nor any steps were initiated for attachment and sale of the property of recovery of outstanding income tax arrears under a legal certificate by competent authority and that the alleged attachment of property on 12th March, 1973 was wring or a concealed documents. (vii)that the sale of the property in question and auction of the partnership would create complications and hardships. (viii)that the proceedings on the face of the record betray a prejudicial approach against the petitioner to favour the defaulter-respondent No. 3 and to shield the defaulter-respondent No. 3 and his associates in the Department of Income tax who permitted the defaulter-respondent No. 3 to leave the country with clearance certificate and thereafter permitted his surety to escape the liability by issuing to her income tax clearance certificate.
(2.) BEFORE proceedings with the grounds on which the sale notice (Annexure 'B') has been impugned, it may be necessary to recapitulate a few circumstances alleged in the petition pertaining to the partnership concern. The petitioner has alleged that in the partnership concern known as Ashoka Oil Mill, Samrala, the petitioner had one-fourth share and respondent No. 3 had three-fourth share. The capital investment was also made in the same proportion by both the partners. Respondent No. 3 Dhanwant Singh retired form the partnership on 10th May, 1968 and thereafter the petitioner became the sole surviving partner and the partnership came to be dissolved a preliminary decree was passed by Sub-Judge 1st Class, Samrala on 24th Oct., 1970, but the final decree after the rendition of account had not so far been passed because respondent No. 3 Dhanwant Singh had left the country and settled down in Canada. Respondent No. 3 Dhanwant Singh had not produced original account books and instead produced forged account the books with the intention defrauding the State Revenue and also cheating the petitioner and on complaint by the petitioner, books of account were impound by the IT Authorities for investigation with respect to the alleged forgery and the necessary prosecution after the same was detected. Respondent No. 3 in order to escape the prosecution and with the active connivance of the Departmental staff, obviated Income-tax clearance certificate on or about 3rd Oct., 1970. The firm was originally assessed for 1966-67 and the Mill was attached for the recovery of Rs. 85,386 from Dhanwant Singh-respondent No. 3 and Rs. 26,326 from the firm vide order dt. 5th Oct, 1971, which order was ex parte. The appeal of the firm under s. 146 of the IT Act was accepted and the said attachment was consequently, quashed and the case was reopened for fresh assessment according to law. The ex parte assessment was set aside on 23rd Nov., 1971 by the ITO, Ludhiana, and the entire proceedings ceased to have any effect. After obtaining the Income tax Clearance Certificate, when respondent No. 3 filed the country and the liability to pay the tax arrears was taken up by his wife Shrimati Sheila Sekhon, and the personal property of respondent No. 3 was also pledged to the Department for the said arrears, the petitioner brought to the notice of the IT Authorities that Shrimati Sheila Sekhon was also leaving the country without clearing the arrears and the liability undertaken by her and the Department authorities in spite of the intimation and request by the petitioner, permitted her to leave the country with family in June, 1972.
(3.) THE property in question was published to be sold on 28th March, 1972 under order of respondent No. 2, against which the petitioner filed Civil W.P. No. 1005 of 1972, which was rendered infructuous as the Department accepted the pleas of the petitioner and cancelled the attachment and promised to proceed according to law. The attachment was finally removed on 28th March, 1972.;