Law: Income Tax Act, 1961

Section: Sched.II,R.61

Income-tax-----Recovery of tax---Sale of property---Application for setting aside sale--¬Condition that amount recoverable from defaulter should be deposited--¬Deposit should be made before application is taken up for consideration--¬Deposit of amount during pendency of writ proceedings to set aside sale--¬Not sufficient---Sale could not be set aside---Indian Income Tax Act, 1961,Sched. II , R.61---Constitution of India, Art. 226. Under rule 61 of Schedule II to the Income Tax Act, 1961, if an immovable property is sold in execution of the certificate, the defaulter or any person, whose interests are affected by such sale, is entitled to make an application within thirty days from the date of the sale, before the Tax Recovery Officer to set aside the sale of the immovable property, either on the ground that notice was not served on the defaulter to pay the arrears as required by the Second Schedule, or, that there was material irregularity in publishing or conducting the sale. The proviso thereto further imposes certain limitations on the power of the Tax Recovery Officer to set aside the sale, and also prescribes a condition to be satisfied by the applicant seeking setting aside of the sale. Clause (b) of the proviso imposes a condition on the applicant that he should deposit the amount recoverable from the defaulter in the execution of the certificate. The condition prescribed by clause (b) of the proviso has to be fulfilled before the application for setting aside the sale comes up before the Tax Recovery Officer for consideration. Under clause (b) of the proviso to rule 61 an application shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate. Therefore, it is not necessary that the amount should be deposited alongwith the application. It is permissible to deposit the amount before the application is taken up for the first time for consideration. Held on the facts, that the deposit of the amount recoverable from the defaulter in the execution of the certificate was not deposited before the application for setting aside the sale was taken up for consideration. The amount was deposited only during…

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