1. The petitioners have sought issue of a writ of certiorari quashing the notice (annexure 1), order of attachment (annexure 2A) and letters dated February 8, 1990 (annexure 4) and February 14, 1990 (annexure 6), to the writ petition and further for a writ of mandamus restraining the respondents from initiating and continuing with the recovery proceedings in pursuance of the orders passed under the Indian Income-tax Act, 1922, as well as making the proclamation of sale against the petitioners.
2. We have heard learned counsel for the petitioners as well as for the respondents at the stage of admission. The petitioners have challenged the aforesaid orders and letters on a number of grounds. According to the petitioners, the recovery certificate dated February 8, 1947, having been sent directly by the Excess Profits Tax Officer, Kanpur, to the Collector, Fatehgarh, is against the provisions of law and no interest or penalty can be charged and recovered under the Indian Income-tax Act, 1922. The petitioners in respect of this earlier made an application dated January 10, 1979, which is pending. The petitioners earlier filed a writ petition in this court being Civil Miscellaneous Writ Petition No. 114 of 1980 (Beni Ram Mool Chand v. TRO : [1990]183ITR652(All) ), which was disposed of finally on October 16, 1989. This court directed the Tax Recovery Officer, Agra, todecide the said application and pass orders thereon within six weeks from the date a certified copy of the order is produced before the said authority. According to the petitioners, the said application has not been disposed of. However, on behalf of the Department, it has been contended that the said application has been disposed of which is mentioned by the Department in the counter-affidavit filed to the earlier writ petition which is annexure 8 to the present writ petition. From the very averment of the petitioners, it is further revealed that the respondents have further issued a letter to the petitioners on February 8, 1990, from which, according to the petitioners, it is apparent that although the Department has accepted some of the various payments made by the petitioners, still they are avoiding to give credit/adjustment on incorrect and frivolous grounds.
3. According to the respondents every payment made by the petitioners has been adjusted towards the recovery which is seriously challenged by the petitioners. So far as annexure 7 is concerned, it seems that the petitioners received a registered letter dated May 14, 1990, from the Tax Recovery Officer, Agra, requiring the petitioners to produce necessary connected documents with original counterfoils in support of the payments claimed to have been made by the petitioners. To that, the petitioners have replied by means of the aforesaid annexure 7 on May 28, 1990.
4. The main contention on behalf of the petitioners is that, the respondents should be directed to permit the petitioner to examine the record pertaining to the recovery against them in view of the fact that the recovery certificate is an old one initiated in the year 1947.
5. Having heard learned counsel for the parties, We feel that so far as the latter prayer of the petitioners is concerned, it would be fair on the facts and circumstances of the case to permit the petitioners to examine the record pertaining to the recovery against them for the purposes of ascertaining as to what amount has been paid and what is to be adjusted towards the said recovery. We feel that the respondents have given opportunity to the petitioners by means of the aforesaid letter dated May 14, 1990, as referred to in annexure 7. In the interests of justice, we direct the respondents to dispose of the application of the petitioners (annexure 7), objection/reply to the registered letter dated May 14, 1990, after giving opportunity to the petitioners also to permit the petitioner to inspect the record on any date feasible to the Department for the purposes of ascertaining as to what amount, has already been paid to the Department and what is to be adjusted towards the said recovery. However, we direct that, till the disposal of the aforesaid objection dated May 14, 1990, after giving an opportunity for the inspection of the record, as aforesaid, further proceedings including the demand notice dated February 14, 1990 (annexure 6); and order of proclamation of sale in pursuance of the attachment order datedJanuary 21, 1990, in pursuance of annexure 1 to the writ petition shall remain stayed.
6. We further direct the petitioners to present themselves with a certified copy of the order passed today before the Tax Recovery Officer, Agra, on September 14, 1990, and to inspect the record in the matter on the date fixed by the Tax Recovery Officer, Agra. In ease of the petitioners default in presenting themselves before the said authority on September 14, 1990, or on any subsequent date fixed by the Tax Recovery Officer, Agra, for the inspection of the record, this order shall stand automatically vacated and it will be open to the respondents to proceed with the recovery.
7. With the aforesaid observations, the present writ petition is finally disposed of.
8. Copy of this order be given within 48 hours on payment of usual charges.