Attachment order vacated if property not sold in 3 years : Karnataka HC

By | November 22, 2016
(Last Updated On: November 22, 2016)

HIGH COURT OF KARNATAKA

K. Venkatesh Dutt

v.

Tax Recovery Officer, Range-7, Bengaluru

L. NARAYANA SWAMY, J.

WRIT PETITION NO. 49185 OF 2016 (T-IT)

SEPTEMBER  16, 2016

Vani H., Advocate for the Petitioner. K.V. Aravind, ASG for the Respondent.

ORDER

1. Earlier, the Revenue approached this Court in ITRC Nos.101 to 103 and 119 of 1999 which came to be disposed of on 10.08.2010. The reference made by the Revenue was allowed and the same was remained unchallenged.

2. Based on the order made by the Division Bench the respondent-Revenue has issued Demand Notice as per Annexure-D dated 13.10.2011. Under the provision of Rule 68B to Second Schedule to the Income Tax Act, 1961 (for short ‘the Act’) sale of immoveable properties should be within a period of three years, from the end of the financial year in which order gives rise to demand is passed. However, contrary to the said provision, no sale of immoveable property has been made as per order of attachment dated 28.02.2013 and continued till now. Hence, the learned counsel for the petitioner submits to set aside the order of attachment.

3. In support of her submission, she referred the judgment of High Court of Madras in Noorudin v. TRO [2002] 121 Taxman 10 (Mad.), wherein, it has been held that “a provision which requires the Revenue to act within the period prescribed by law cannot be construed in a manner which would enable the Revenue to act beyond that period unless the Act specifically so provides”.

4. Learned counsel for the respondent submits to dismiss the petition. He supports the Demand Notice of attachment of immoveable properties.

5. When the reference made by the Revenue was disposed of on 10.08.2010, the sale of immovable property should have been made within a period of three years from the end of the financial year as mandated under Rule 68B to Second Schedule to the Act, which provides no sale of immovable property under this part after the expiry of three years from the end of financial year in which the order giving rise to demand of any tax, interest, fine/penalty or any other sum, has become final.

6. Sub rule (4) of Rule 68B of II Schedule further clarifies that where the sale of immovable property has not been made within three years as required under Rule 68B to Second Schedule to the Act, the effect would be the attachment order of the said property deemed to be vacated. When the provision is very clear which covered the field, the continuation of the order of attachment Annexure-E till date is not proper. For the purpose of calculating three years it would be from the end of financial year on which the order was passed i.e. 10.08.2010, the end of the financial year would be 31.03.2011. Hence, the Demand Notice and Order of Attachment Annexure-E dated 28.02.2013 were no doubt issued within time, by virtue of Rule 68B (4) to Second Schedule to the Act has expired by 31.03.2014. In view of the above, Annexure-E order of attachment of immovable properties stands vacated.

Petition is accordingly disposed of.

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