For realising certain arrears of income-tax due from Sri Radhakrishna Rice Mills, property of the extent of Ac. 40-17 cents in Tamirisa village was brought to sale by the Special Deputy Tahsildar, Income-tax, Vijaywada, under the provisions of the Second Schedule to the Indian Income-tax Act of 1961. The property was purchased by the petitioner for a sum of Rs. 10,200 subject to a mortgage in favour of the Indian Bank, Gudivada. The sale was on March 9, 1964. On August 5, 1964, without notice to the petitioner and without an application either by the Income-tax Officer, defaulter or any other interested person to set aside the sale, the Special Deputy Collector. Income-tax (the Tax Recovery Officer) by his order Rc. A. 1205-62 set aside the sale on the ground that the sale was vitiated by an irregularity in that the proclamation of sale did not mention the mortgage in favour of the Indian Bank, although the sale itself was subject to the mortgage. Mr. C. Narasimhachari, learned counsel for the petitioner, contends that the Tax Recovery Officer had no jurisdiction to set aside the sale in the absence of an application by anyone to set aside the sale. Rule 56 of Schedule II to the Indian Income-tax Act states that : 'The sale shall be by public auction to the highest bidder and shall be subject to confirmation by the Tax Recovery Officer.'
Rule 60 provides for an application to set aside the sale by the defaulter or other interested person on depositing the amounts specified in the proclamation of sale for the recovery of which the sale was ordered, etc. Rule 61 provides for an application to set aside the sale by the Income-tax Officer, the defaulter or other interested person on the ground of any material irregularity in the conduct of the sale. Rule 63(1) states :
'Where no application is made for setting aside the sale under the foregoing rules or where such an application is made and disallowed by the Tax Recovery Officer, the Tax Recovery Officer shall (if the full amount of the purchase money has been paid) make an order confirming the sale, and, thereupon, the sale shall become absolute.'
It is evident that rule 63 is in pari materia with Order 21, rule 92, of the Civil Procedure Code. Under this rule, the Tax Recovery Officer has no opinion but to confirm the sale if there is no application for setting it aside. The mere fact that the sale is subject to confirmation by the Tax Recovery Officer does not mean that the Tax Recovery Officer has the discretion to refuse to confirm the sale even if there is no application to set it aside. His jurisdiction to refuse to confirm a sale arises only if there is an application either under rule 60 or rule 61 to set aside the sale and not otherwise. In the present case it is admitted that the petitioner complied with all the requirements of law for perfecting his sale and that there is no impediment whatever for confirmation of the sale. There is admittedly no application to set aside the sale and it was the duty of the Tax Recovery Officer to confirm the sale. The writ petition is, therefore, allowed and the order of the Tax Recovery Officer setting aside the sale and the appellate order of the Collector confirming the order of the Tax Recovery Officer are hereby quashed. The petitioner is entitled to his costs. Advocates fee Rs. 100.