Sapana Charudatt Ranadive v. The Asst. Commissioner Of Income Tax17(3), Mumbai & Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J. WRIT PETITION NO. 423 OF 2019 Sapana Charudatt Ranadive.. Petitioner Versus The Asst. Commissioner of Income Tax17(3), Mumbai & Ors... Respondents ................... Mr. Rohan Deshpande i/by Ms. Alisha Pinto for the PetitionerMr. Rohan Deshpande i/by Ms. Alisha Pinto for the Petitioner Mr. Anil Singh, Addl. Solicitor General a/w Abhay Ahuja andSangeeta Yadav i/by Mr. P.C. Chhotaray for Respondent Nos. 1and 2Mr. Anil Singh, Addl. Solicitor General a/w Abhay Ahuja andSangeeta Yadav i/by Mr. P.C. Chhotaray for Respondent Nos. 1and 2 Mr. Prashant Govind. Karande for Respondent Nos. 4 to 8Mr. Prashant Govind. Karande for Respondent Nos. 4 to 8 ................... CORAM : AKIL KURESHI & S.J. KATHAWALLA, JJ. Reserved on : JULY 15, 2019. Pronounced on : JULY 23, 2019. JUDGMENT (Per Akil Kureshi, J.) 1.The petitioner has challenged a sale proclamationdated 21.1.2019 issued by the Tax Recovery Officer, Mumbaias also a notice dated 23.1.2019 issued by the Income TaxDepartment advertising public auction for sale of various immovable properties in a local newspaper. 2.Brief facts are as under:- Petitioner is an individual. She is thegranddaughter of late Mr. Sudhir L. Hendre and Mrs. ManikSudhir Hendre. The grandparents of the petitioner were theoriginal assesses (hereinafter to be referred to as the"assessees"). The Income Tax Department has raised sizabletax dues of the said assesses in relation to the assessmentyears 1974-75 to 1999-00. Mr. Sudhir L. Hendre expired on3.3.2003. His wife Manik S. Hendre expired on 5.7.2008.According to the petitioner, the said assesses had diedintestate. Their properties, therefore, would devolve byintestate succession as per governing laws. The deceasedcouple had left behind one daughter and two sons. Both thesons predeceased the petitioner's grandparents. Thedaughter is still alive. The petitioner is a daughter of JagdishS. Hendre, one of the sons of the assessees who died on23.11.1977. The petitioner, therefore, claims her share inthe properties left behind by the said assesses as daughterof a predeceased son. 3.It appears that the said assesses had left behindsix immovable properties, some of them are tenanted. Fiveout of six properties were placed under attachment by theIncome Tax Department for unpaid dues on 19.8.1997. Thesixth one was attached on 2.4.1997. The Income TaxDepartment received the rent of the tenanted propertiesafter the same were placed under attachment. However,such rent was meager and would not cover even a smallportion of sizable tax dues of the assesses. The Income TaxDepartment, therefore, initiated further steps for auctioningthe immovable properties for recovery of income tax dues.Most of the heirs appeared to have given their consent forauctioning the said immovable properties. The petitionerherself on 23.1.2019 wrote to the Tax Recovery Officer andgave her consent as under:- "1.In respect to your letter dated 28.11.2018 in respect to Auctionof properties of Deceased assesses (Late Shri. S.L. Hendre& Late Smt. M.S. Hendre) for recovery of outstanding dues,we have already given our consent by letter dated 7thSeptember, 2018.of properties of Deceased assesses (Late Shri. S.L. Hendre& Late Smt. M.S. Hendre) for recovery of outstanding dues,we have already given our consent by letter dated 7thSeptember, 2018. We further give our consent to the same for auction ofproperties for recovery of outstanding dues of Deceasedassesses (Late Shri. S.L. Hendre & Late Smt. M.S. Hendre). "1.In respect to your letter dated 28.11.2018 in respect to Auctionof properties of Deceased assesses (Late Shri. S.L. Hendre& Late Smt. M.S. Hendre) for recovery of outstanding dues,we have already given our consent by letter dated 7thSeptember, 2018.of properties of Deceased assesses (Late Shri. S.L. Hendre& Late Smt. M.S. Hendre) for recovery of outstanding dues,we have already given our consent by letter dated 7thSeptember, 2018. We further give our consent to the same for auction ofproperties for recovery of outstanding dues of Deceasedassesses (Late Shri. S.L. Hendre & Late Smt. M.S. Hendre). 2.In respect to point no. 2 of your letter dated 3.1.2019 there iscalculation of huge amount of interest charged under 220(2).We humbly request you to not charge the interest as the saidproperties of deceased assesses have remained beenattached by I.T. Department from the year 1997 till date inaccordance with the minutes of order dated 14.1.1998 passedin Cri. Writ Petition No. 1145 of 1997 and thereafter the I.T.Department has been collecting rent and holding propertiesunder attachment till date.calculation of huge amount of interest charged under 220(2).We humbly request you to not charge the interest as the saidproperties of deceased assesses have remained beenattached by I.T. Department from the year 1997 till date inaccordance with the minutes of order dated 14.1.1998 passedin Cri. Writ Petition No. 1145 of 1997 and thereafter the I.T.Department has been collecting rent and holding propertiesunder attachment till date. 3.In respect of point 3 of your letter dated 3.1.2019 we haveannexed the NO Dues certificate issued by the TRO Centraldated 23.3.1984 which clearly mentions of having NO DUESof deceased assesses till that date which is a letter issued byyour department and hence does not require any furthersupport or evidence in this subject.annexed the NO Dues certificate issued by the TRO Centraldated 23.3.1984 which clearly mentions of having NO DUESof deceased assesses till that date which is a letter issued byyour department and hence does not require any furthersupport or evidence in this subject. In view of the aforesaid para's 2 and 3, we humbly requestyour good office to look into the subject matter sympatheticallyand verify your records and revise the principal demand."your good office to look into the subject matter sympatheticallyand verify your records and revise the principal demand." Subsequently, the Income Tax Department issued the impugned sale proclamation dated 21.1.2019 andpublished the auction notice in the daily newspaper on23.1.2019 inviting bidders to participate in the auction of thesaid immovable properties. At that stage, by filing thepresent petition, the impugned action of the Department ischallenged on various grounds including that:- (i) The Department had seized jewellary of the deceasedassesses which is still in the possession of the Department.assesses which is still in the possession of the Department. The same is not accounted for; (ii) The rent of the tenanted properties is being recovered by theDepartment since attachment. Said rent is also not accountedfor;Department since attachment. Said rent is also not accountedfor; (iii) The Department has not given any break-up of theoutstanding dues without which it is not possible for thepetitioner and other heirs of the deceased assesses to verifythe tax dues;outstanding dues without which it is not possible for thepetitioner and other heirs of the deceased assesses to verifythe tax dues; (iv)The Department itself had issued 'no due certificate' on23.3.1984 which would imply that till such date, the deceasedhad no tax dues and lastly,23.3.1984 which would imply that till such date, the deceasedhad no tax dues and lastly, (ii) The rent of the tenanted properties is being recovered by theDepartment since attachment. Said rent is also not accountedfor;Department since attachment. Said rent is also not accountedfor; (iii) The Department has not given any break-up of theoutstanding dues without which it is not possible for thepetitioner and other heirs of the deceased assesses to verifythe tax dues;outstanding dues without which it is not possible for thepetitioner and other heirs of the deceased assesses to verifythe tax dues; (iv)The Department itself had issued 'no due certificate' on23.3.1984 which would imply that till such date, the deceasedhad no tax dues and lastly,23.3.1984 which would imply that till such date, the deceasedhad no tax dues and lastly, (v) The sale proclamation is hit by period of limitation prescribedin Rule 68B of the Second Schedule to the Income Tax Act,1961 ("the Act" for short).in Rule 68B of the Second Schedule to the Income Tax Act,1961 ("the Act" for short). 4. We have heard the learned counsel for the parties at considerable length on the fundamental question of saleproclamations being barred by limitation as prescribed inRule 68B of the Schedule II. In view of our answer to thisissue, we have not examined the petitioner's othergrievances leaving it open to be urged in future if need soarises. 5.In the context of such facts, learned counsel for the petitioner took us extensively through the provisionscontained in Schedule II referring to recovery of unpaid tax.In particular, our attention was drawn to Rule 68B which wasinserted by the Finance Act, 1992 w.e.f. 1.6.1992. It wascontended that this rule permits sale of immovable propertyfor recovery of unpaid taxes only within three years from thedate of order giving rise to the tax dues, after which, the saleof immovable property would not be permitted. Learnedcounsel had relied on the objects behind insertion of the saidrule and the notes on clauses explaining the said provisioncontained in the Finance Bill of 1992 in support of hiscontention. Learned counsel had also relied on the followingdecisions:- (i) M.U. Joshi Vs. Tax Recovery Officer & Ors.[1]; (ii) Noorudin Vs. Tax Recovery Officer[2]; (iii)V. Rajendran Vs. Tax Recovery Officer[3] Learned counsel submitted that the petitioner had not given unconditional consent to the sale of immovableproperties. In any case, there cannot be any estoppel againstlaw. When the action of the Department had exfacie becometime barred, merely because the petitioner did not raise such 1[2006] 281 ITR 289 (Bom)2[2001] 251 ITR 3572[2001] 251 ITR 357 3[2000] 246 ITR 812 a ground earlier, would not permit sale of the property indefiance of the statutory provision. 6. On the other hand, learned counsel for the Department opposed the petition contending that thepetitioner had consented to the sale of immovable propertiesin question. She now cannot challenge the action of theDepartment. Even otherwise, Rule 68B would not debar theDepartment's action. Learned counsel relied on followingdecisions:- (i) Rajiv Yashwant Bhale Vs. Pr. CIT (Bom)[4];(ii) Sanjay Khetan Vs. CIT[5](ii) Sanjay Khetan Vs. CIT[5] 7.Relevant facts are not in dispute. The immovableproperties belong to the grandparents of the petitioner. Theimmovable properties put to sale were placed underattachment in April 1997 and August 1997. No further orfresh attachment orders have been passed. The shortquestion is can such properties be put to auction in the year2019 in face of Rule 68B of IInd Schedule to the Act. ChapterXVII of the Act pertains to collection and recovery of tax.Part D of the Chapter pertains to collection and recovery. 4[2018] 401 ITR 408 (Bom)5[2004] 266 ITR 4535[2004] 266 ITR 453 (i) Rajiv Yashwant Bhale Vs. Pr. CIT (Bom)[4];(ii) Sanjay Khetan Vs. CIT[5](ii) Sanjay Khetan Vs. CIT[5] 7.Relevant facts are not in dispute. The immovableproperties belong to the grandparents of the petitioner. Theimmovable properties put to sale were placed underattachment in April 1997 and August 1997. No further orfresh attachment orders have been passed. The shortquestion is can such properties be put to auction in the year2019 in face of Rule 68B of IInd Schedule to the Act. ChapterXVII of the Act pertains to collection and recovery of tax.Part D of the Chapter pertains to collection and recovery. 4[2018] 401 ITR 408 (Bom)5[2004] 266 ITR 4535[2004] 266 ITR 453 Section 220 contained in this part contains provision as towhen the assessee would be deemed to be in default ofpayment of tax. Section 222 of the Act pertains to certificateto Tax Recovery Officer. Sub-section (1) of Section 222provides that when an assessee is in default or is deemed tobe in default in making payment of tax, the Tax RecoveryOfficer may draw up a statement in the prescribed formspecifying the amount of arrears due from the assessee andshall proceed to recover the amount so specified by one ormore of the modes mentioned in clauses (a) to (d) thereof inaccordance with the rules laid down in IInd Schedule. One ofthese modes is attachment and sale of the assessee'simmovable property. 8.Schedule II to the Act pertains to the procedurefor recovery of tax. The Schedule contains detail rules forrecovery of unpaid taxes through various modes envisagedin sub-section (1) of Section 222 of the Act. Part III of Schedule IIpertains to attachment and sale of immovable property.Rule 48 contained in the said part provides that attachmentof the immovable property of the defaulter shall be made by an order prohibiting the defaulter from transferring orcharging the property in any way and prohibiting all personsfrom taking any benefit under such transfer or charge.Under Rule 49, a copy of the order of attachment shall beserved on the defaulter. As per Rule 50, the order ofattachment shall be proclaimed at some place on or adjacentto the property attached. Rule 51 provides that where anyimmovable property is attached under the said Schedule, theattachment shall relate back to, and take effect from thedate on which the notice to pay the arrears was served uponthe defaulter. Sub-rule (1) of Rule 52 provides that the TaxRecovery Officer may direct that any immovable propertywhich has been attached, or such portion thereof as mayseem necessary to satisfy the certificate, shall be sold. Rule53 pertains to contents of proclamation. This Rule requiresproclamation of sale of immovable property and variousdetails including the details of the property to be sold andthe reserve price if any below which the property may not besold. Rule 55 provides that no sale of immovable propertyunder Schedule II shall, without the consent in writing of thedefaulter take place until after the expiration of at least thirty days calculated from the date on which a copy of theproclamation of sale has been affixed on the property or inthe office of the Tax Recovery Officer, whichever is later.Rule 56 provides that the sale would be by public auction tothe highest bidder and shall be subject to confirmation bythe Tax Recovery Officer. Proviso to Rule 56 provides thatno sale under the said Rule shall be made if the amount ofthe bid offered by the highest bidder is less than the reserveprice, if any, specified under clause (cc) of Rule 53. thirty days calculated from the date on which a copy of theproclamation of sale has been affixed on the property or inthe office of the Tax Recovery Officer, whichever is later.Rule 56 provides that the sale would be by public auction tothe highest bidder and shall be subject to confirmation bythe Tax Recovery Officer. Proviso to Rule 56 provides thatno sale under the said Rule shall be made if the amount ofthe bid offered by the highest bidder is less than the reserveprice, if any, specified under clause (cc) of Rule 53. 9.In terms of sub-rule (1) of Rule 57, upon sale ofimmovable property, the person declared to be thepurchaser would have to pay immediately after declaration25% of the purchase money, in default of which, the propertywould be subject to resale. Under sub-rule (2) of Rule 57, thefull amount of purchase money payable by the purchaserwould be deposited on or before the 15th day of sale of theproperty. As per Rule 58, in default of payment within theperiod mentioned in Rule 57, the Tax Recovery Officer mayafter defraying the expenses of sale, forfeit the depositamount to the Government and the property would be resold. Under sub-rule (1) of Rule 60, the defaulter or anyperson whose interests are affected by the sale, could at anytime within 30 days from the date of the sale of immovableproperty sold in execution of the certificate apply to the TaxRecovery Officer to set aside the sale on depositing theamount specified under proclamation of sale with interestand for payment to the purchaser, as penalty, a sum equal to5% of the purchase money. Rule 63 pertains to confirmationof sale. Sub-rule (1) thereof provides that where noapplication is made for setting aside the sale or whethersuch an application is made and disallowed, the TaxRecovery Officer shall (if the full purchase money has beenpaid) make an order confirming the sale and thereupon thesale would become absolute. As per sub-rule (2) of Rule 63however, where such application is made and allowed and incase of an application to set aside the sale on deposit of theamount and penalty and other charges is made within thetime prescribed, the Tax Recovery Officer would make anorder setting aside the sale. Under Rule 65, the TaxRecovery Officer would issue a Sale Certificate of theimmovable property specifying the property sold and the name of the person who is declared to be the purchaser. 10.This is broadly the scheme for attachment andsale of immovable property of an assessee in default. Rule68B which is at the center of the controversy was inserted by the Finance Act, 1992 w.e.f. 1.6.1992 and reads as under:- "68B.(1) No sale of immovable property shall be made under thisPart after the expiry of three years from the end of the financial yearin which the order giving rise to a demand of any tax, interest, fine,penalty or any other sum, for the recovery of which the immovableproperty has been attached, has become conclusive under theprovisions of section 245-T or, as the case may be, final in terms ofthe provisions of Chapter XX: Provided that where the immovable property is required to be re-solddue to the amount of highest bid being less than the reserve price orunder the circumstances mentioned in rule 57 or rule 58 or where thesale is set aside under rule 61, the aforesaid period of limitation forthe sale of the immovable property shall stand extended by one year. (2) In computing the period of limitation under sub-rule (1), the period — (i) during which the levy of the aforesaid tax, interest, fine, penaltyor any other sum is stayed by an order or injunction of anycourt; oror any other sum is stayed by an order or injunction of anycourt; or (ii) during which the proceedings of attachment or sale of theimmovable property are stayed by an order or injunction ofany court; orimmovable property are stayed by an order or injunction ofany court; or (2) In computing the period of limitation under sub-rule (1), the period — (i) during which the levy of the aforesaid tax, interest, fine, penaltyor any other sum is stayed by an order or injunction of anycourt; oror any other sum is stayed by an order or injunction of anycourt; or (ii) during which the proceedings of attachment or sale of theimmovable property are stayed by an order or injunction ofany court; orimmovable property are stayed by an order or injunction ofany court; or (iii) commencing from the date of the presentation of any appealagainst the order passed by the Tax Recovery Officer underthis Schedule and ending on the day the appeal is decided,against the order passed by the Tax Recovery Officer underthis Schedule and ending on the day the appeal is decided, shall be excluded: Provided that where immediately after the exclusion of the aforesaidperiod, the period of limitation for the sale of the immovable propertyis less than 180 days, such remaining period shall be extended to180 days and the aforesaid period of limitation shall be deemed to beextended accordingly. (3) Where any immovable property has been attached under thisPart before the 1st day of June. 1992, and the order giving rise to ademand of any tax. interest, fine, penalty or any other sum, for therecovery of which the immovable property has been attached, hasalso become conclusive or final before the said date, that date shallbe deemed to be the date on which the said order has becomeconclusive or, as the case may be, final. (4) Where the sale of immovable property is not made in accordancewith the provisions of sub-rule (1), the attachment order in relation tothe said property shall be deemed to have been vacated on theexpiry of the time of limitation specified under this rule." As per sub-rule (1) of Rule 68B, no sale ofimmovable property would be made after the expiry of threeyears from the end of the financial year in which the ordergiving rise to a demand of tax, interest, fine, penalty or anyother sum, for the recovery of which the immovable propertyhas been attached, has become conclusive under the provisions of Section 245-I or Chapter XX of the Act whichdeals with the appeals and revisions. Proviso to sub-rule (1),however, gives some leverage in case where the immovableproperty is required to be sold due to the fact that thehighest bid is less than the reserve price or where the casefalls under Rule 57 or Rule 58 or the same is set aside underRule 61. In such a case, the period of limitation of sale wouldstand extended by one year. Sub-rule (2) of Rule 68Bprovides for exclusion of certain periods while computing theperiod of limitation. Sub-rule (3) makes special provision forcases where the immovable property is attached before1.6.1992 and the order giving rise to the demand of tax,interest etc has also become conclusive and final before thesaid date. In such a situation, the period of limitation asreferred to in sub-rule (1) would commence from 1.6.1992.This sub-rule, thus, makes it clear that the limitationprovided under sub-rule (1) for sale of immovable propertywould apply also to the instances of attachment ofimmovable property and finalization of the tax demandwhich had occurred prior to 1.6.1992. In such a case, thestarting point for computing the period of limitation would be 1.6.1992, that is the date on which the said Rule wasinserted. Sub-rule (4) of Rule 68B provides that where thesale of immovable property is not made in accordance withthe provisions of sub-rule (1), the attachment order inrelation to the said property shall be deemed to have beenvacated on the expiry of the time of limitation specifiedthereunder. 11.The explanatory note explaining the said provisionreads as under:- "Provision of limitation for the sale of immovable property attached towards recovery of tax 1.6.1992, that is the date on which the said Rule wasinserted. Sub-rule (4) of Rule 68B provides that where thesale of immovable property is not made in accordance withthe provisions of sub-rule (1), the attachment order inrelation to the said property shall be deemed to have beenvacated on the expiry of the time of limitation specifiedthereunder. 11.The explanatory note explaining the said provisionreads as under:- "Provision of limitation for the sale of immovable property attached towards recovery of tax 53.Section 222 of the Income-tax Act prescribes themodes of recovery of tax from an assessee who is in default inmaking payment of tax, in accordance with the rules laid down in theSecond Schedule to the Income-tax Act. One of the prescribedmodes is attachment and sale of the assessee's immovable property.Part III of the Second Schedule to the Income-tax Act contains therules for attachment and sale of immovable property. No limitation oftime had been provided for sale of the immovable property attachedtowards recovery of tax. 53.1The recovery provisions without the prescribed timelimit of disposal of attached immovable properties had not proved ascoercive and deterrent as they should have been 53.2The Act, therefore, inserts a new rule, i.e rule 68B, in the Second Schedule to the Income-tax Act to provide a time limit ofthree years from the end of the financial year in which the order,giving rise to a demand of any tax, interest, fine, penalty or any othersum for the recovery of which the immovable property has beenattached,has become conclusive under the provisions of section 245-I or has become final, as the case may be, in terms of the provisionsof Chapter XX of the Income-tax Act. The period of three years shallstand extended by one year in certain cases where the sale fallsthrough. Further, certain periods during which the order is stayed byany court, are also to be excluded from the aforesaid period oflimitation. 53.3This amendment takes effect from 1st June, 1992." 12.Appreciating the said Rule in the light of thepurpose for which the same was inserted would show thatunder sub-rule (1), the legislature has now provided for thefirst time w.e.f. 1.6.1992 a time limit of a period of threeyears for sale of attached immovable property starting fromthe end of financial year in which the order giving rise to ademand of tax, interest etc has become conclusive. Sub-rule(4) of Rule 68B provides for the consequences of theimmovable property not being sold within such time. As perthis sub-rule in such a situation, the attachment order inrelation to the said property would be deemed to have beenvacated on the expiry of the time limit specified. In thepresent case, Rule 68B would apply with full force. The attachment of the said immovable properties was orderedway back in the year 1997. The sale proclamation which wasmade in February, 2019 was thus, hit by the period oflimitation prescribed under such Rule. By virtue of sub-rule(4) of Rule 68B therefore, upon completion of the period oflimitation, the attachment would be deemed to have beenvacated. The auction sale, therefore, could not have beencarried out. 13.The learned single Judge of the Madras High Courtin the decision in the case of V. Rajendran (supra) had onsimilar grounds set aside the sale proclamation makingfollowing observations:- "Though the proclamation of sale was issued prior to March 31,1996, the sale not having been held pursuant to the proclamation,despite the absence of any order of the court, which prevented thesale being held, no fresh proclamation can now be issued, as noneof the circumstances visualized in the proviso to Rule 68B areattracted so as to extend the period. 13.The learned single Judge of the Madras High Courtin the decision in the case of V. Rajendran (supra) had onsimilar grounds set aside the sale proclamation makingfollowing observations:- "Though the proclamation of sale was issued prior to March 31,1996, the sale not having been held pursuant to the proclamation,despite the absence of any order of the court, which prevented thesale being held, no fresh proclamation can now be issued, as noneof the circumstances visualized in the proviso to Rule 68B areattracted so as to extend the period. The relief to be granted to the petitioner has now to be moulded inthe light of the circumstances as they are now prevailing. It is notnecessary to set aside the impugned proclamation of sale. It issufficient to give a declaration that the sale not having been heldpursuant to the proclamation no further proclamation of sale shall be issued in respect of the properties which had been attached prior to1992. It is made clear that the contention of the petitioner that thedeceased assessee was not the owner of the property at all isavailable to the petitioner and that claim is not to be regarded ashaving been negatived by this order. No costs. W. M. P. No. 5504 of1996 is dismissed." 14.In the case of Noorudin (supra), once again thelearned single Judge of the Madras High Court had held asunder:- "The rule appears to be a rigid one. The reason for the rigidityapparently is the need to ensure prompt recovery of the Revenue, byrequiring the authorities concerned to take action within the periodprescribed and not to tarry or be dilatory. The rule is not one whichcan be waived by the defaulter. The rule is not one which providesan option to the defaulter or to the Revenue. All parties are bound bythe rule. Any sale of immovable property after the limitationprescribed therein would be clearly illegal and void. A provision which requires the Revenue to act within the periodprescribed by law cannot be construed in a manner which wouldenable the Revenue to act beyond that period unless the Actspecifically so provides, especially where, as a result of such inactionon the part of the Revenue, the assessee or the defaulter is entitledto a benefit. As no fresh proclamation can now be issued, the petitioner is entitledto a declaration that no new proclamation of sale of this propertyshall be issued pursuant to the certificate on the basis of which theimpugned declaration had been issued, as also a declaration that theattachment also is deemed to have been vacated." 15.The Division Bench of this Court in the decision inthe case of M.U. Joshi (supra) in reference to Rule 68B ofSchedule II had held and observed as under:- "17. In this view of the matter, in the facts of the case, we are ofthe opinion that the limitation for sale of the attached immovableproperty commenced from 15.6.1994 and not from 19.5.1998 aserroneously contended by the revenue. Once it is held that thelimitation under Rule 68B commences from 15.6.1994, then, the saleheld on 30.3.2004 being beyond the period of limitation prescribedunder 68B becomes invalid. The contention of the revenue that thepetition suffers from delay is without any merit because, even beforethe sale was completed the petitioner had raised the point oflimitation, but the same was rejected and the sale was confirmed.The writ petition was filed immediately thereafter on 31.5.2004 and,therefore, it cannot be said that the petition suffers from delay. "17. In this view of the matter, in the facts of the case, we are ofthe opinion that the limitation for sale of the attached immovableproperty commenced from 15.6.1994 and not from 19.5.1998 aserroneously contended by the revenue. Once it is held that thelimitation under Rule 68B commences from 15.6.1994, then, the saleheld on 30.3.2004 being beyond the period of limitation prescribedunder 68B becomes invalid. The contention of the revenue that thepetition suffers from delay is without any merit because, even beforethe sale was completed the petitioner had raised the point oflimitation, but the same was rejected and the sale was confirmed.The writ petition was filed immediately thereafter on 31.5.2004 and,therefore, it cannot be said that the petition suffers from delay. 18. Accordingly, the petition succeeds. The sale of the immovableproperty held on 30.3.2004 beyond the period of limitation prescribedunder rule 68B of the Second Schedule of the I.T. Act is quashedand set aside. We are not expressing any opinion as to whether thesaid immovable property can be attached again and sold for recoveryof the dues, because, that is not an issue raise in this petition.However, we make it clear that setting aside the sale dated30.3.2004 shall not affect the right of the revenue to recover its duesby adopting such procedure as is permissible in law." 16.Learned Addl. Solicitor General had, however,relied on certain decisions which we may presently deal with. Reliance was placed on the decision in the case of RajivBhale (supra). In the said case, however, no ratio was laiddown contrary to what we have discussed above. TheDivision Bench had found that the petitioner had filed variousproceedings thwarting the settlement proceedings andconsequentially recovery of taxes, the Court had held thatthe orders giving rise to tax demand had not becomeconclusive. The petitioner, in the opinion of the Court, couldnot derive benefit of his own wrong. The petition was foundliable to be dismissed only on that ground. The Courtnevertheless proceeded to examine whether the orderpassed by the Settlement Commission giving rise to the taxdemand can be said to be conclusive. The answer was heldagainst the petitioner. The case, thus, on its facts is differentfrom the present one. 17.Reliance was placed on the decision in the case ofSanjay Khetan (supra). It was a case in which the DivisionBenchof Allahabad High Court held that Rule 68B insertedw.e.f 1.6.1992 was not retrospective and not applicable inrespect of the certificate issued in March 1982 in regard to earlier arrears. The petition was dismissed with followingobservations:- " We are not inclined to exercise our discretion under Article 226 ofthe Constitution in this case. The total demand as per the saleproclamation is to the tune of Rs. 75,38,000 plus interest and hencewe are not inclined to interfere with these admitted recoveries ontechnical objections. A person who seeks a writ has not only to showviolation of law but he has also to show equity in his favour. Hence,even assuming that Rule 68B is in the petitioner's favour, there is noequity in his favour as the demands are on the basis of theassessment years which have become final long ago. An honestman should pay his taxes, instead of relying on technicalities. Hence,we are not inclined to exercise our discretion under Article 226 infavour of a person who refuses to pay his admitted taxes. Thepetition is dismissed. Interim order is vacated." The crux of the judgment, therefore is that theCourt was not inclined to exercise discretionary writjurisdiction in favour of the petitioner since in the opinion ofthe Court, the petitioner failed to show equity in his favour.In the judgment, of course, the Court has observed that Rule68B of the IInd Schedule would not apply to the certificatesissued prior to 1.6.1992. To this extent, we are unable topersuade ourselves to follow the same line. Sub-rule (3) ofRule 68B makes it clear that the limitation prescribed undersub-rule (1) would apply also to past instances, with 18.The consent given by the petitioner to sale theproperties will not prevent her from pursuing their petition.Firstly, it was not an unconditional consent. In her letterdated 23.1.2019, she had raised the issue of owner chargingof interest and or no-due certificate issued in the past. Herconsent was thus subject to these objections. Further, thequestion of limitation would go to the root of the matter. Ifthe auction was barred by limitation, the Department wasprevented by law from carrying out the same. 19.Under these circumstances, we are of the opinionthat by virtue of Rule 68B of the IInd Schedule, the impugnedsale proclamation is barred by limitation. The same must bequashed. 20.Under the circumstances, the impugned saleproclamation is quashed. Consequently, the attachmentover the immovable properties in question would also be set aside. Writ Petition is allowed and disposed of. [ S.J. KATHAWALLA, J. ] [ AKIL KURESHI, J ]