THE HON'BLE SRI JUSTICE B. PRAKASH RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.3566, 3578, 3580, 3612 and 3617 OF 2008 COMMON ORDER: ( THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN) In this batch of five writ petitions the recovery proceedings initiated by the Tax Recovery Officer, Range-1, Guntur, by issuing notice dated 22.01.2008 in terms of Rules 38 and 52(2) of the Second Schedule to the Income Tax Act (for short ‘the Act’), is under challenge on the ground that it is beyond the period of limitation prescribed in Rule 68-B of the Second Schedule to the Act. It would suffice for the purpose of disposal of these writ petitions if the facts, as stated in W.P. No.3578 of 2008, are noted. The petitioner is a partner in Maruthi Estates, Piduguralla. The said firm has four other partners all of whom are related to each other. A search and seizure operation, under Section 132 of the Act, was carried out on 24.01.1992 in the premises of both the firm and its partners. The petitioner filed his return of income for the assessment years 1991-1992 and 1992-1993 on 21.03.1994. The assessing officer passed an assessment order, for both the assessment years, on 21.03.1995 determining a total income of Rs.1,69,750/- and Rs.1,84,370/- respectively. On the ground that certain unexplained investments were included as income both in the hands of the firm as well as its partners, and this amounted to double taxation, the petitioner submitted application dated 22.1.1999, under Section 154 of the Act, requesting the assessing officer to rectify his earlier order dated 21.03.1995. The assessing authority rejected the said application by his order dated 16.10.2003 which the petitioner contends was beyond the period prescribed under the Act, and as such a nullity. The petitioner, thereafter, filed an application under Section 264 of the Act before the Commissioner of Income Tax seeking revision of the order passed by the assessing officer on 16.10.2003 for the assessment years 1991-1992 and 1992-1993. The Commissioner rejected the petitioner’s application by his order dated 21.03.2005. The petitioner would submit that the order passed by the Commissioner, under Section 264 of the Act, could not be challenged by them as they were financially crippled, and their business had come to a stand still. The petitioner received notice dated 05.05.2005 issued by the Tax Recovery Officer, Guntur under Sections 38 and 52 of the Second Schedule to the Act. The said notice was a proclamation for sale of immovable property to recover Rs.3,18,089/- plus interest under Section 220(2) of the Act. The aforesaid arrears were sought to be recovered by putting the petitioners share, in the properties of Maruthi Estates, to sale. A notice was issued under Rule 53 informing the petitioner that the sale was proposed to be held on 09.06.2005. The petitioner would contend that the assessment order was passed on 21.03.1995 for both the assessment years 1991-1992 and 1992-1993; they had merely filed applications for rectification, under Section 154 of the Act, which was rejected on 16.10.2003, and they had not questioned the assessment order; the assessment proceedings had attained finality on 21.03.1995 itself, and the sale of their immovable property could not have been resorted to by the Revenue beyond the time limit, prescribed under Rule 68-B, of three years. The petitioner, along with others, filed W.P. No.11052 of 2005 & batch seeking a declaration that the recovery proceedings initiated by the Tax Recovery Officer, Range-I, Guntur, by issuing notices in terms of Rules 38, 52(2) and 53 of the Second Schedule, was barred by limitation as prescribed under Rule 68-B of the Second Schedule to the Act. While admitting the said Writ Petitions this Court, by order dated 10.05.2005, granted stay of confirmation of sale pursuant to the proceedings dated 05.05.2005. The petitioners would allege that pressure was brought upon them by the respondent authorities necessitating their being forced to withdraw the writ petitions; and they paid interest under Sections 234-A, 234-B and 234-C of the Income Tax Act. The petitioner would assert that they had withdrawn all the writ petitions on the assurance that, except payment of the interest aforementioned, no further payment would be insisted upon, and that the interest payable under Section 220(2) of the Act would be waived. The petitioners submitted an application to the Commissioner of Income Tax, Guntur requesting him to waive the interest payable by them under Section 220(2-A) of the Act. It is their case that they sold seven of their properties at Piduguralla with a view to clear off the interest dues payable under Section 234-A, 234-B and 234-C of the Act. Pursuant to the application filed by the petitioner the Commissioner of Income Tax put them on notice on 23.11.2007, and gave them an opportunity of being heard. The petitioners made their submissions on 08.01.2008. The Commissioner, by order dated 15.01.2008, rejected the petitioners’ application for waiver of interest under Section 220(2) of the Act. The Tax Recovery Officer, Guntur, vide notice dated 22.1.2008, called upon the petitioner to pay Rs.2,61,980/- with interest under Section 220(2) of the Act, and informed them that failure to make payment would result in the properties mentioned in the schedule being put to sale on 27.02.2008. Aggrieved by the notice of the Tax Recovery Officer dated 22.01.2008, the petitioner and others filed the present writ petitions. This Court, by order dated 21.02.2008, granted interim stay subject to the condition that all the petitioners, in the aforesaid writ petitions, together deposited Rs.3,00,000/- on or before 31.03.2008. As noted hereinabove, against the order of assessment dated 21.3.1995 the petitioner submitted an application, under Section 154 of the Act, requesting the assessing officer to rectify the assessment order dated 21.3.1995. Section 154 relates to rectification of a mistake and empowers the assessing authority to amend any order passed by him with a view to rectify any mistake apparent on the record. The period within which the power to rectify the mistake can be exercised is limited to 3 years from the end of the financial year in which the order sought to be amended was passed. (Section 154(7) of the Act). The application filed by the petitioner under Section 154 was rejected by the assessing authority on 16.10.2003. Sri A.V. Krishnakoundinya, learned counsel for the petitioners, would contend that, since the assessment order was passed on 21.3.1995, the assessing authority could only have rectified the mistake before 31.3.1998 and not thereafter; and as such the order passed by him on 16.10.2003 is a nullity. The fact, however, remains that against the order dated 16.10.2003, rejecting their applications filed under Section 154 of the Act, the petitioner filed revision petitions before the Commissioner of Income Tax under Section 264 of the Act. Under Section 264(1) in case any order, other than an order to which Section 263 applies, is passed by an authority subordinate to him the Commissioner may, either on his own motion or on an application by the assessee for revision, call for the records of any proceedings under the Act in which any such order has been passed, make such enquiry or cause such inquiry to be made and, subject to the provisions of the Act, may pass orders thereon, not being an order prejudicial to the assessee, as he thinks fit. The Commissioner of Income Tax rejected the revision petition, filed by the petitioner, by his order dated 21.3.2005 and thereafter, within 3 years from the end of the financial year i.e, before 31.3.2008, the impugned notice dated 22.01.2008 was issued. The Second Schedule to the Act prescribes the procedure for recovery of tax. Part-III thereof relates to attachment and sale of immovable property. Rule 68-B, in Part-III of the Second Schedule, prescribes the time limit for sale of attached immovable property. Rule 68-B(1) stipulates that no sale of immovable property shall be made, under Part-III, after the expiry of three 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 other sum, for the recovery of which the immovable property has been attached, has become conclusive under the provisions of Section 245-I or, as the case may be, final in terms of the provisions of Chapter XX. Section 245-I of the Act stipulates that every order of settlement passed under Section 245-D shall be conclusive. Chapter XX of the Act relates to appeals and revision. Section 264, which is also in Chapter XX, relates to revision of other orders. Since the order of assessment dated 21.3.1995 became final in terms of the provisions of Chapter XX only on orders being passed by the Commissioner of Income Tax, under Section 264 of the Act, on 21.3.2005, the three year time limit stipulated in Rule 68-B(1) of the Second Schedule to the Act must be computed from the end of the financial year i.e., 31.03.2005. As the impugned proceedings dated 22.01.2008, for sale of the attached immovable property belonging to the petitioner, was issued well within three years from 31.03.2005 it cannot be said to be barred by limitation. Sri A.V. Krishna Koundinya, learned counsel for the petitioner, would however contend that, since the assessing authority could not have exercised powers under Section 154 beyond the three year period prescribed in Sub-Section (7) thereof i.e, after 31.3.1998, the order passed by him on 16.10.2003 is a nullity and must be ignored, in which event the time limit under Section 68-B(1) would run from the date of the order of assessment i.e., 21.3.1995 and the auction, under the Second Schedule, for sale of the attached property could only have been held before 31.3.1998 and not thereafter. It is evident from the facts aforementioned that the petitioner not only filed an application, under Section 154 of the Act, against the order of assessment dated 21.3.1995, on 22.1.1999, he also preferred a revision to the Commissioner of Income tax under Section 264 of the Act against the order of the assessing authority rejecting their application under Section 154 of the Act. Neither is the order of the assessing authority passed under Section 154 of the Act dated 16.10.2003, nor is the order of the Commissioner of Income Tax dated 21.03.2005 passed under Section 264 of the Act, under challenge in any of these Writ Petitions. The petitioners cannot be permitted to take advantage of their own wrong to contend that, despite their having chosen to prefer a revision against the order passed by the assessing authority under Section 154 of the Act, the said order dated 16.10.2003 must be ignored as it is a nullity. The petitioners had earlier filed W.P. No.11052/05 & batch seeking a relief similar to the one sought for in the present Writ Petitions and had questioned the recovery proceedings initiated by the Tax Recovery Officer, Range I, Guntur by issuing notices in terms of Rules 38, 52(2) and 53 of the Second Schedule as barred by limitation under Rule 68-B (I) of the Second Schedule to the Act. The said Writ Petitions were dismissed as withdrawn by order dated 09.06.2005. Neither had the petitioners sought liberty nor was any liberty granted by this Court to file Writ Petitions afresh seeking a similar relief. In Sarguja Transport Service v. S.T.A.T., (1987) 1 SCC 5 the Supreme Court held:- “……..The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case1 is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. …………………..” (emphasis supplied) Since W.P. No.11052/05 and batch were dismissed as withdrawn by the order of this Court dated 09.06.2005 wherein similar questions, as raised in the present writ petitions, were raised by the petitioners herein, it is not open to them to file Writ Petitions afresh seeking a similar relief, as this Court did not grant them liberty, in the earlier Writ Petitions, to do so. Viewed from any angle, the impugned proceedings of the Tax Revenue Officer, Range I, Guntur does not necessitate interference in proceedings under Article 226 of the Constitution of India. The Writ Petitions fail and are, accordingly, dismissed. However, in the circumstances, without costs. ____________________ B. PRAKASH RAO,J ____________________________ RAMESH RANGANATHAN, J Date: 23 06.2010