Judgment:
1. This writ petition under Article 226 of the Constitution has been filed by the heirs and legal representatives of Smt. Bitti Kunwar, challenging the auction of house No. 74/110, Dhankutti, Kanpur. Against the attachment of her house, Smt. Bitti Kumar had filed objection on November 16, 1979. She died during the pendency of attachment and her objections were dismissed on March 12, 1984, after hearing her heirs and legal representatives. Since no payment of taxes was made and the demands were still outstanding, the property No. 74/110 aforesaid was directed to be put to auction against which the legal heirs of late Bitti Kunwar filed their objections. The Tax Recovery Officer, after hearing the legal representatives, held :
'Thus it is proved that the association of persons was carrying on its business under the association of Smt. Bitti Kunwar, Shri Munnalal Shukla and Shri Kamal Krishna Shukla during this period. Therefore, the contention that there was no business and no income-tax returns were filed is totally incorrect and against the facts and the objection of the objector on this point cannot be entertained and is accordingly rejected.
2. Other objections raised were also found to be without substance.
3. Against the rejection of the objections, the present writ petition has been filed.
4. We have heard counsel for the petitioners. We wish to note at the beginning that the Tax Recovery Officer had limited jurisdiction while dealing with the objections filed against attachment and sale. The Tax Recovery Officer cannot go into the question of correctness of the assessment orders. Section 224 of the Income-tax Act prohibits the assessee from disputing the correctness of the assessment or raising any objection to the validity of the certificate before the Tax Recover Officer.
5. Before the Tax Recovery Officer, in the instant case, one of the points urged was that Smt, Bitti Kunwar had been wrongly assessed for the assessment years 1966-67 to 1970-71. The Tax Recovery Officer had found by the order dated September 3, 1986, that her liability was confined to the assessment years 1963-64 to 1965-66. Now, the realisation of income-tax dues is being made from house No. 74/110, Dhankutti, belonging to her in respect of income-tax arrears of these years.
6. Learned counsel urged that as neither any notice of hearing of the case was issued to Smt. Bitti Kunwar nor to any other partner, the assessment proceedings were illegal and as such, non-payment could not result in making Smt. Bitti Kunwar a defaulter under Section 220(4) of the Income-tax Act. Service of notice was a condition precedent.
7. It has been found by the Tax Recovery Officer that the income-tax returns were filed for the years 1964-65 and 1965-66 by Kamal Krishna Shukla who was a member of the association of persons. However, the question as to whether the notice of demand was served on Smt. Bitti Kunwar cannot be a subject-matter of the recovery proceedings. This objection relating to non-service of the notice of demand has since not been decided by the Tax Recovery Officer. It cannot be presumed that the same was not pressed before him.
8. Moreover, we are not satisfied on the materials placed before us that we could issue a writ directing the income-tax authorities not to recover the amount on that basis.
9. The other submission was that the assessment orders were ex parte and, as such, were invalid. For setting aside the assessment orders, the petitioners have applied under Section 146 of the Income-tax Act. Neither could the Tax Recovery Officer do anything in this matter while proceeding with the sale of the property nor could this court under Article 226 of the Constitution go into and examine the controversy relating to the same.
10. The Tax Recovery Officer, by a well-reasoned judgment, has rejected the objections of the petitioners taken against the attachment of the house.
11. We having found no error apparent on the face of the record, dismiss the writ petition summarily.
12. Since this petition does not raise any substantial question of law of general importance, prayer made for leave to appeal to the Supreme Court is rejected.