Surinder Nath Kapoor Vs. Union of India (Uoi) and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/753202
SubjectDirect Taxation
CourtRajasthan High Court
Decided OnSep-29-1986
Case NumberC.W.P. No. 853 of 1986
Judge M.B. Sharma, J.
Reported in[1988]172ITR56(Raj)
ActsIncome Tax Act, 1961 - Sections 222, 226 and 224(2) - Schedule - Rule 53, 61, 63 and 86; Constitution of India - Article 226
AppellantSurinder Nath Kapoor
RespondentUnion of India (Uoi) and ors.
Appellant Advocate N.M. Ranka and; A.K. Bhandari, Advs.
Respondent Advocate R.N. Surolia and; L.L. Sharma, Advs.
Cases ReferredChittoori Ramachandra Rao v. Tax Recovery Commissioner
Excerpt:
- - in both the cases the demands are against firm as well as its partners. this clearly shows the mala fide intention of the authorities concerned. surolia, learned counsel for the revenue, as well as mr. but then the court must have good and sufficient reason to bypass the alternative remedy provided by the statute.m.b. sharma, j.1. this case relates to the income-tax dues mainly of two firms, m/s. krishna kapoor and co., jaipur and m/s. indo kashmir carpets and handicrafts, amritsar. the arrears of tax against m/s. krishna kapoor and co., and its partners are rs. 8,56,377 whereas the arrears of tax against m/s. indo kashmir carpets and handicrafts and its partners are rs. 10,17,915. the petitioner, s. n. kapoor, along with late shiv dayal kapoor, ramnath kapoor and n. n. kapoor, was the partners of m/s. krishna kapoor and co. late shiv dayal kapoor left behind s. n. kapoor and n. n. kapoor. late shiv dayal kapoor was also a partner in m/s. indo kashmir carpets and handicrafts. besides, late shiv dayal kapoor, smt. kamla kapoor, smt. veena kapoor, smt. sharda kapoor and smt. sudershan kapoor were also partners of m/s. indo kashmir carpets and handicrafts, amritsar.2. the above income-tax arrears relate to the demands against m/s. krishna kapoor and co. and partners as per various assessments by the income-tax authorities at amritsar from time to time. similarly demands of tax remained outstanding against m/s. indo kashmir carpets and handicrafts against various demands of the income-tax authorities at amritsar. in both the cases the demands are against firm as well as its partners. m/s. krishna kapoor and co. has immovable properties comprising land and building situated at khavasji ka bag, amer road, jaipur. the inspecting assistant commissioner (assessment), zone-ii, amritsar, as already stated, computed the tax outstanding against m/s. krishna kapoor and co. at rs. 8,56,377 and also found that rs. 10,17,915 was outstanding against m/s. indo kashmir carpets and handicrafts. the inspecting assistant commissioner issued recovery certificates under section 222 of the income-tax act, 1961 (act no. xliii of 1961) (for short ' the act '), to the tax recovery officer, income-tax zone-ii, for due execution of the certificates. the tax recovery officer zone-ii, amritsar, sent the recovery certificate to the tax recovery officer, zone-i, jaipur, through the commissioner, income-tax, jaipur. the tax recovery officer, jaipur, initiated proceedings to recover the two aforesaid demands by execution of the certificates of recovery. the immovable properties, land and building of- m/s. krishna kapoor and co. situated at khavasji ka bag, amer road, jaipur, were attached, vide order dated september 28,1984. in itcp no. 16. sale proclamation was drawn up on march 21,1985. warrant of sale dated december 11, 1985, itcp no. 12, in respect of the above properties situated in jaipur of m/s. krishna kapoor and co. was issued to mahavir auctioneers, kgb ka rasta, johari bazar, jaipur, authorising them to sell by public auction so much of the properties of m/s. krishna kapoor and co. as shall realise the two amounts totalling rs. 18,74,292 and to return the warrant on or before january 24,1986. the auctioneers put the properties to auction and the auction was closed at rs. 37,81,000 on january 21, 1986. the petitioner who as already stated is a partner of m/s. krishna kapoor and co. filed objections dated january 21, 1986, to the tax recovery officer, jaipur, with a copy to the commissioner of income-tax, jaipur, and the commissioner of income-tax, amritsar.3. the petitioner also filed an application under rule 61 of the principal rules on february 15, 1986, for setting aside the sale of the properties in dispute to the tax recovery officer, jaipur, and the tax recover officer-ii, amritsar. the tax recovery officer, jaipur, dismissed the application under its order dated march 14, 1986. the petitioner also preferred an appeal in form itcp no. 29a under rule 86(l)(c) of the principal rules before the tax recovery commissioner, jaipur, and the tax recovery commissioner, amritsar, separately. the income-tax officer (judicial), amritsar, vide his letter dated february 28, 1986, pointed out the deficiency in appeal for not furnishing a certified copy of the impugned judgment which the petitioner could not file because the same was not supplied to him in spite of demand. the petitioner also submitted a review petition under rule 87 of the principal rules on february 19, 1986, to the tax recovery officer, jaipur, and the tax recovery officer, amritsar. the tax recovery officer, jaipur, dismissed the review application on march 14, 1986, on the ground that it is premature. the tax recovery officer, amritsar, has not even acknowledged the application. because the tax recovery officer, jaipur, was going to confirm the sale, the petitioner made stay application in the appeal which he filed on, march 29, 1986, in form no. 29a under rule 86(i)(c)of the principal rules before the tax recovery commissioner. the petitioner was informed that the tax recovery commissioner. jaipur, has no jurisdiction to hear the appeal and the appeal has already been despatched to amritsar on april 21, 1986. the sale in favour of m/s. raja properties for rs. 37,81.000 on january 21, 1986, has been confirmed by the tax recovery officer, jaipur, under his order dated march 14, 1986. he also issued a sale certificate in favour of the purchaser and directed the sub-registrar, collectorate, jaipur, to make entry of the property in hisregistration record in favour of the purchaser with regard to the property in dispute.4. the petitioner has challenged the issuance of the certificate of recovery, notice of demand, entire auction proceedings including attachment orders, proclamation of sale, auction and acceptance of the highest bid on january 21, 1986. according to the petitioner, all the proceedings are illegal, ultra vires and invalid. he has also challenged the order dated march 14, 1986, of the tax recovery officer, jaipur, dismissing his application under rule 61 of the principal rules. he has also challenged the auction of the tax recovery commissioner, jaipur, in transferring the appeal to amritsar on various grounds.5. notice was issued to the non-petitioners. it may be stated that an application of pradeep kumar jain for being arrayed as respondent to the petition on the ground that the sale of the properties has been confirmed in his favour by the tax recovery officer, jaipur, was allowed under the order of this court dated may 8, 1986, and m/s. raja properties through pradeep kumar jain, its partner, was arrayed as respondent no. 7.6. mr. ranka, learned counsel for the petitioner, has raised various contentions in assailing the attachment of the properties in dispute, drawing of proclamation of sale and auction proceedings. the contention of mr. ranka, learned counsel for the petitioner is that no notice in itcp no. 1 on the defaulter was served on the petitioner for payment of two demands totalling rs. 18,74,292. the procedure laid down by rule 10 of the income-tax (certificate proceedings) rules, 1962 (for short ' the rules'), was not followed. according to mr. ranka, learned counsel for the petitioner, the demands had been reduced in the appeal filed by the two firms. m/s. krishna kapoor and co. had filed an appeal against the additions made in the assessment year 1981-82 and the commissioner of income-tax (appeals), amritsar, allowed the appeal in part on november 5, 1985. on account of the said relief, the outstanding demand for the assessment year 1981-82 was reduced from rs. 1,18,256 to rs. 58,862. consequent reduction was also made in respect of the demands in the hands of the partners. the firm also filed an appeal to the commissioner of income-tax which is pending. it is also the contention of learned counsel for the petitioner that on february 4, 1986, only a sum of rs. 4,41,761 remained outstanding against m/s. krishna kapoor and co. and its partners as against the original demand of rs. 8,56,377. the tax recovery officer, jaipur, did not reduce the outstanding demand to rs. 4,41,761 against the earlier demand of rs. 8,56,377. his further contention is that the effect to the appellate order must have been givenand the demand must have been reduced, and by the time the property was attached or was put to auction, the demand in the case of m/s. krishna, kapoor and co. was reduced to about rs. 4,00,000 odd and so far as m/s. indo kashmir carpets and handicrafts is concerned, it had been reduced to rs. 7,65,744. it may be stated that there appears to be some substance in the submission of mr. ranks that the demands had been reduced and this position is not contested by mr. surolia, learned counsel for respondents no. 1 to 6. but the question is what is the effect of the reduction, if any, in the demands of tax in appeal.7. there is no dispute that the properties in dispute situated at jaipur are the exclusive properties of m/s. krishna kapoor & co, in terms of section 223 of the income-tax act, the tax recovery officer, range-ii, amritsar, forwarded recovery certificates in respect of the aforesaid two demands in relation to the defaulter, m/r. krishna kapoor & co. and its partners and m/s. indo kashmir carpets and handicrafts and its partners to the tax recovery officer, jaipur. so far as the outstanding against the default of m/s. indo kashmir carpets and handicrafts to the extent of rs. 10,17,915 is concerned, the case of the non-petitioners is that m/s. krishna kapoor and co. owed amount to that extent to m/s. indo kashmir carpets and handicrafts, amritsar. therefore, an order under section 226(3)(i) of the income-tax act was made which was served upon m/s. krishna kapoor and co. requiring it to pay the amount forthwith to the income-tax officer. therefore, under section 226(3)(iv) of the income-tax act, m/s. krishna kapoor and co. is bound to comply with the same notice. it is the further case that under section 226(3)(x) of the income-tax act, if the person to whom a notice under sub-section (3) of section 226 is sent fails to make payment in pursuance thereof to the income-tax officer, he shall be deemed to be an assessee in default in respect of the 'amount specified in the notice and further proceedings may be taken against him in the manner provided in sections 222 to 225 of the income-tax act and the notice shall have the same effect as an attachment of a debt by the tax recovery officer in exercise of its powers under section 222. learned counsel for the non-petitioners has made a reference to annexure rule 61 (page 266) issued by the inspecting assistant commissioner of income-tax (assessment), range-ii, amritsar, on december 10, 1984. it is an order under section 226(3)(x) of the income-tax act. it has been mentioned therein that m/s. krishna kapoor & co. amer road, jaipur, who owed certain amounts to m/s. indo kashmir carpets and handicrafts, was issued notice under section 226(3), vide letter no. 1624 dated october 15, 1984, restraining it from making any payment to m/s. indo kashmir carpets and handicrafts. m/s. krishna kapoor & co. was required to remit the amount standing to the credit ofm/s. indo kashmir carpets and handicrafts in its books of account to the office of the inspecting assistant commissioner of income-tax (assessment), range-ii, amritsar, towards payment of tax arrears outstanding against m/s. indo kashmir carpets and handicrafts and its partners. it was also mentioned in the order that the terms of notice under section 226(3) have not so far been complied with. it was declared that m/s. krishna kapoor & co. is a defaulter in pursuance of clause (x) of subsection (3) of section 226 of the income-tax act to the extent of rs. 8,56,377 payable to the aforesaid defaulter. it was also ordered that, consequently, the amount shall be recovered from m/s, krishna kapoor and co. as arrears of land revenue. a contention has been raised by mr. ranka that neither this order nor any notice under sub-section (3) of section 226 of the income-tax act as alleged was served on the petitioner. it is further contended that no notice in form itcp no. 1 was served on the petitioner. according to learned counsel, a firm is a person separate from its partners and if any amount is due against the firm, it cannot be recovered from the partners. he further contends that under rule 2 of the principal rules, notice in form itcp no. 1 has to be issued and served upon the defaulter requiring him to pay the amount specified in the certificate. a defaulter, according to learned counsel, means, in the case of assessment against a partner, the partner and in the case of a firm, the firm. under section 48 of the rules, only immovable properties of the defaulter can be attached and under rule 49, a copy of the attachment order has to be served on the defaulter. this was not done. he has referred to annexures r-43 and 44 available at pages 230 and 231, respectively. in support of his submission that rule 49 of the principal rules was not complied with inasmuch as the copy of the attachment order was not served on the defaulter as aforesaid, he also referred to some forms itcp no. 1 which, according to him, are subsequent to that order of attachment. he made a reference to annexures r-14, 21, 12 and 16 which, according to him, were served by affixation on august 6, 1985, and the order of attachement is dated july 11, 1985. mr. ranka, learned counsel for the petitioner, in respect of his argument that the sale proclamation was issued in contravention of the provisions of the principal rules referred to rule 53 of the principal rules under which a sale proclamation of sale of immovable property shall be drawn up after notice to the defaulter as required therein and it must specify as fairly and accurately as possible as per clause (cc) of rule 53, the reserve price, it any, below which the property may not be sold. the mode of making a sale proclamation has been prescribed in rule 54 of the principal rules. the contention of mr. ranka is that rules 53 and 54 of the principal rules have been contravened. mr. ranka, learned counsel for the petitioner,further contends that on january 20, 1986, the highest bid offered was of rs. 43,31,000. though, according to learned counsel, even this was too much below the actual value of the property, but on january 21, 1986, the bid only of rs. 37,81,000 of m/s. raja properties was accepted. this clearly shows the mala fide intention of the authorities concerned. a further argument has been raised that immediately after the declaration that m/s. raja properties are the purchasers, 25% of the purchase price was not deposited and in default of such deposit the properties must have been resold and thus there has been contravention of rule 57 of the principal rules. thus, the contention of mr. ranka is that there have been not only irregularities but also illegalities in the attachment of the properties, drawing up the proclamation of sale and in conducting of sale. in connection with his earlier argument that for the demand against the firm the partners are not responsible, mr. ranka has referred to various provisions of the act and more so to clauses (7), (14) and (31) of section 2 to sections 75 to 77 and sections 182, 183 and 189. he has made a reference to cit v. a. w. piggies and company : [1953]24itr405(sc) , cit v. c. a. quseph and sons : [1985]154itr598(ker) , k. a. karim and sons v. ito : [1984]149itr172(ker) , s. n. santhalingam v. ito : [1980]121itr868(kar) , tro v. dilip construction co. : [1984]148itr599(mp) , brij ratdnlal bhoop kishore v. addl. cit : [1983]139itr906(all) . mr. ranka, learned counsel for the petitioner, has also contended that the court has to make a distinction in cases of illegalities and irregularities and the present is a case where the various illegalities as aforesaid have been committed. in this connection, mr. ranka, learned counsel for the petitioner, has referred to chhotu sood v. tro , tara chand v. ito and shiv narain dhabhai v. cwt .8. mr. surolia, learned counsel for the revenue, as well as mr. sharma, learned counsel for the non-petitioner no. 3, have contended that all the questions which have been raised by mr. ranka, learned counsel for the petitioner, are such which could have been and have been taken in the appeals filed by the petitioner. they also contend that the question as to whether there was proper service of notice in form itcp or other notice is purely a question of fact. it is also a question of fact as to whether service of notice by affixture could in the facts and circumstances of the case have been effected and was in fact effected or not. such questions of fact should not be gone through in exercise of the jurisdiction of the court under article 226 of the constitution of india. in matters of taxation, unless the remedies provided under the act or the rules made thereunder are exhausted, a party should not be allowed to invoke the extraordinary writ jurisdiction of this court. in support of their abovecontentions, learned counsel referred to citv. ramendra nath ghosh[197l] 82 itr 888, wherein the court held that the question whether the assessees had been served in accordance with the law or not was essentially a question of fact and though the high court had jurisdiction to entertain their writ petitions challenging the service of notice, the asses-sees should not have been allowed to invoke the extraordinary jurisdiction of the court. they also referred to the case of this court in sohan singh v. banta singh and sto v. shiv ratan g. mohatta. : [1965]3scr71 , on the question that in tax matters unless the remedy provided under the act which provides a hierarchy of courts or tribunals is exhaustive, the party should not be allowed to invoke the jurisdiction of the court under article 226 of the constitution of india or the courts should not invoke the writ jurisdiction. learned counsel has placed reliance on municipal council v. kamal kumar : [1965]2scr653 and n.k. c. syed mohammed ravoother v. dy. cto, air 1958 mad 176 : [1958] 9 stc 1 (mad), k. burman v. cto [1972]tax lr 2447 (mys) : [1971 ] 28 stc 637 (mys) and assistant collector of central excise v. dunlop india lid. : 1985ecr4(sc) . in the aforesaid case, their lordships referred to the earlier case of titaghur paper mills co. ltd, v. state of orissa[l983] 142 itr 663, wherein it was held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the prescribed authority, a second appeal to the tribunal and thereafter to have the case stayed to the high court, it was not for the high court to exercise its extraordinary jurisdiction under article 226 of the constitution ignoring as it were the complete statutory machinery. that it has become necessary even now for us to repeat this admonition is indeed a matter of tragic concern to us. article 226 is not meant to shortcircuit or circumvent statutory procedures. it is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to article 226 of the constitution. but then the court must have good and sufficient reason to bypass the alternative remedy provided by the statute. surely, matters involving the revenue where statutory remedies are available are not such matters. we can also take judicial notice of the fact that the vast majority of the petitions under article 226 of the constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. the practice certainly needs to be strongly discouraged. on the basis of the above authorities, it can be said that if the statute provides remediesunder it, unless the vires of the statute are in question or the order is against the principles of natural justice, the court should not generally invoke its extraordinary jurisdiction under article 226 of the constitution of india, more so, in matters of taxation where the revenue of the state is involved, as by and large, barring a few cases of exception, the purpose of the assessee is to obtain interim relief and thereby postpone the recovery of the demands.9. so far as the argument of learned counsel for the petitioner that the dues of the partners or firms could only be recovered from them and that the defaulter will be the firm or partner, as the case may be, service of notice has to be on the defaulter, the contention of learned counsel for the revenue and the purchaser is that even the notice to dissolve the firm cannot be served on the partners. in this connection, reference has been made to dayaram v. addl. collector . learned counsel for the revenue and the purchaser, repondent no. 7, contend that merely because the demand was reduced in appeal after a certificate has been sent to the tax recovery officer and the correct amount has not been mentioned in the sale proclamation, the proceedings are not illegal and the sale proclamation for that purpose does not become illegal. in support of this contention, reference has been made to the case of chittoori ramachandra rao v. tax recovery commissioner : [1975]100itr591(ap) , wherein it has been held that under the indian income-tax act, 1922, if the tax was reduced in appeal or otherwise, it was necessary that a fresh demand notice must be issued as proceedings had to be initiated again. to obviate the difficulty, parliament enacted the taxation laws (continuation and validation of recovery proceedings) act, 1964, whereunder it is sufficient to inform the assessee of the tax reduced in appeal. a fresh sale proclamation need not be issued. sections 224(2), 225(2) and 224(3) of the income-tax act, 1961, also provide similar provisions. as such, the authorities need not issue a fresh proclamation but can correct the old proclamation and continue the proceedings, if it was found that the proclamation issued earlier mentioned a wrong figure. learned counsel also made a reference to sections 224(2) and (3) and 225 of the income-tax act. under section 224(1), when the income-tax officer sends a certificate to a tax recovery officer under section 222, it shall not be open to the assessee to dispute before the tax recovery officer the correctness of the assessment and no objection to the certificate on any ground shall be entertained by the tax recovery officer. under section 224(2), notwithstanding the issue of a certificate to a tax recovery officer, the income-tax officer shall have power to withdraw or correct any clerical or arithmetical mistake in the certificate by sending an intimation to the tax recovery officer. under section 225(1), notwithstanding that a certificate has been issued to the tax recovery officer for the recovery of any tax, the income-tax officer may grant time for the payment of the tax, and thereupon the tax recovery officer shall stay the proceedings until the expiry of the time so granted. under sub-section (3) of section 225, where the order giving rise to a demand of tax for which a certificate for recovery has been issued has been modified in appeal or other proceedings under the act and as a consequence thereof the demand is reduced but the order is the subject-matter of further proceeding under the act, the income-tax officer shall stay the recovery of such part of the amount of the certificate as pertains to the said reduction for the period for which the appeal or other proceeding remains pending. under sub-section (4) of section 225, where a certificate for the recovery of tax has been issued and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under the act, the income-tax officer shall, when the order which was the subject-matter of such appeal or other proceeding has become final and conclusive, amend the certificate or withdraw it, as the case may be. it can, therefore, be said that merely because the demand has been reduced in appeal and the proceedings have not become final and are the subject-matter of further appeal, the proceedings for recovery of the demand before the tax recovery officer are not rendered illegal and the income-tax officer is only required to inform the tax recovery officer that the demand has been reduced in appeal.10. it is not disputed and rather it is even the case of the petitioner that under rule 61 of the rules, an application to set aside the sale of the disputed property was filed by the petitioner on the ground that the notice was not served on him to pay the arrears as required by the second schedule to the act. that application was dismissed by the tax recovery officer. in para no. 18 of the petition, it has been stated that the petitioner on march 29, 1986, submitted an appeal in form no. 29a under rule 86(1)(c) of the principal rules before the tax recovery commissioner, jaipur, and the tax recovery commissioner, amritsar, separately against the order dated march 14, 1986, passed by the tax recovery officer, jaipur, rejecting the application under rule 61 of the principal rules. it can, therefore, be said that an appeal under rule 86(1 )(c) is pending decision. rule 86(1 )(c) of the principal rules provides that an appeal from any original order passed by the tax recovery officer under the schedule, not being an order which is conclusive, shall lie, in the case of a tax recovery officer, being an officer referred to insub-clause (iii) of clause (44) of section 2, to the tax recovery commissioner, and the appeal is to be presented within thirty days from the date of the order appealed, against. under sub-rule (3) of rule 86, pending the decision of any appeal, the appellate authority has power to stay the execution of the certificate. thus, an appeal lies and is pending where-all the questions have been agitated. the ''appeal is an efficacious remedy. the sale has been confirmed under rule 63 of the principal rules.11. i am, therefore, of the opinion that because an appeal has been, filed and is pending and it is an efficacious remedy under the act, it will not be proper to exercise the-extraordinary jurisdiction of this court under article 226 of the constitution on the facts and circumstances of the present case.12. consequently, on the ground of availability of the alternative efficacious remedy under the. income-tax act and the principal rules, the writ petition is dismissed with no order as to costs.
Judgment:

M.B. Sharma, J.

1. This case relates to the income-tax dues mainly of two firms, M/s. Krishna Kapoor and Co., Jaipur and M/s. Indo Kashmir Carpets and Handicrafts, Amritsar. The arrears of tax against M/s. Krishna Kapoor and Co., and its partners are Rs. 8,56,377 whereas the arrears of tax against M/s. Indo Kashmir Carpets and Handicrafts and its partners are Rs. 10,17,915. The petitioner, S. N. Kapoor, along with Late Shiv Dayal Kapoor, Ramnath Kapoor and N. N. Kapoor, was the partners of M/s. Krishna Kapoor and Co. Late Shiv Dayal Kapoor left behind S. N. Kapoor and N. N. Kapoor. Late Shiv Dayal Kapoor was also a partner in M/s. Indo Kashmir Carpets and Handicrafts. Besides, Late Shiv Dayal Kapoor, Smt. Kamla Kapoor, Smt. Veena Kapoor, Smt. Sharda Kapoor and Smt. Sudershan Kapoor were also partners of M/s. Indo Kashmir Carpets and Handicrafts, Amritsar.

2. The above income-tax arrears relate to the demands against M/s. Krishna Kapoor and Co. and partners as per various assessments by the Income-tax authorities at Amritsar from time to time. Similarly demands of tax remained outstanding against M/s. Indo Kashmir Carpets and Handicrafts against various demands of the Income-tax authorities at Amritsar. In both the cases the demands are against firm as well as its partners. M/s. Krishna Kapoor and Co. has immovable properties comprising land and building situated at Khavasji ka Bag, Amer Road, Jaipur. The Inspecting Assistant Commissioner (Assessment), Zone-II, Amritsar, as already stated, computed the tax outstanding against M/s. Krishna Kapoor and Co. at Rs. 8,56,377 and also found that Rs. 10,17,915 was outstanding against M/s. Indo Kashmir Carpets and Handicrafts. The Inspecting Assistant Commissioner issued recovery certificates under Section 222 of the Income-tax Act, 1961 (Act No. XLIII of 1961) (for short ' the Act '), to the Tax Recovery Officer, Income-tax Zone-II, for due execution of the certificates. The Tax Recovery Officer Zone-II, Amritsar, sent the recovery certificate to the Tax Recovery Officer, Zone-I, Jaipur, through the Commissioner, Income-tax, Jaipur. The Tax Recovery Officer, Jaipur, initiated proceedings to recover the two aforesaid demands by execution of the certificates of recovery. The immovable properties, land and building of- M/s. Krishna Kapoor and Co. situated at Khavasji ka Bag, Amer Road, Jaipur, were attached, vide order dated September 28,1984. in ITCP No. 16. Sale proclamation was drawn up on March 21,1985. Warrant of sale dated December 11, 1985, ITCP No. 12, in respect of the above properties situated in Jaipur of M/s. Krishna Kapoor and Co. was issued to Mahavir Auctioneers, KGB ka Rasta, Johari Bazar, Jaipur, authorising them to sell by public auction so much of the properties of M/s. Krishna Kapoor and Co. as shall realise the two amounts totalling Rs. 18,74,292 and to return the warrant on or before January 24,1986. The auctioneers put the properties to auction and the auction was closed at Rs. 37,81,000 on January 21, 1986. The petitioner who as already stated is a partner of M/s. Krishna Kapoor and Co. filed objections dated January 21, 1986, to the Tax Recovery Officer, Jaipur, with a copy to the Commissioner of Income-tax, Jaipur, and the Commissioner of Income-tax, Amritsar.

3. The petitioner also filed an application under Rule 61 of the principal rules on February 15, 1986, for setting aside the sale of the properties in dispute to the Tax Recovery Officer, Jaipur, and the Tax Recover Officer-II, Amritsar. The Tax Recovery Officer, Jaipur, dismissed the application under its order dated March 14, 1986. The petitioner also preferred an appeal in Form ITCP No. 29A under Rule 86(l)(c) of the principal rules before the Tax Recovery Commissioner, Jaipur, and the Tax Recovery Commissioner, Amritsar, separately. The Income-tax Officer (Judicial), Amritsar, vide his letter dated February 28, 1986, pointed out the deficiency in appeal for not furnishing a certified copy of the impugned judgment which the petitioner could not file because the same was not supplied to him in spite of demand. The petitioner also submitted a review petition under Rule 87 of the principal rules on February 19, 1986, to the Tax Recovery Officer, Jaipur, and the Tax Recovery Officer, Amritsar. The Tax Recovery Officer, Jaipur, dismissed the review application on March 14, 1986, on the ground that it is premature. The Tax Recovery Officer, Amritsar, has not even acknowledged the application. Because the Tax Recovery Officer, Jaipur, was going to confirm the sale, the petitioner made stay application in the appeal which he filed on, March 29, 1986, in Form No. 29A under Rule 86(I)(c)of the principal rules before the Tax Recovery Commissioner. The petitioner was informed that the Tax Recovery Commissioner. Jaipur, has no jurisdiction to hear the appeal and the appeal has already been despatched to Amritsar on April 21, 1986. The sale in favour of M/s. Raja Properties for Rs. 37,81.000 on January 21, 1986, has been confirmed by the Tax Recovery Officer, Jaipur, under his order dated March 14, 1986. He also issued a sale certificate in favour of the purchaser and directed the Sub-Registrar, Collectorate, Jaipur, to make entry of the property in hisRegistration Record in favour of the purchaser with regard to the property in dispute.

4. The petitioner has challenged the issuance of the certificate of recovery, notice of demand, entire auction proceedings including attachment orders, proclamation of sale, auction and acceptance of the highest bid on January 21, 1986. According to the petitioner, all the proceedings are illegal, ultra vires and invalid. He has also challenged the order dated March 14, 1986, of the Tax Recovery Officer, Jaipur, dismissing his application under rule 61 of the principal rules. He has also challenged the auction of the Tax Recovery Commissioner, Jaipur, in transferring the appeal to Amritsar on various grounds.

5. Notice was issued to the non-petitioners. It may be stated that an application of Pradeep Kumar Jain for being arrayed as respondent to the petition on the ground that the sale of the properties has been confirmed in his favour by the Tax Recovery Officer, Jaipur, was allowed under the order of this court dated May 8, 1986, and M/s. Raja Properties through Pradeep Kumar Jain, its partner, was arrayed as respondent No. 7.

6. Mr. Ranka, learned counsel for the petitioner, has raised various contentions in assailing the attachment of the properties in dispute, drawing of proclamation of sale and auction proceedings. The contention of Mr. Ranka, learned counsel for the petitioner is that no notice in ITCP No. 1 on the defaulter was served on the petitioner for payment of two demands totalling Rs. 18,74,292. The procedure laid down by Rule 10 of the Income-tax (Certificate Proceedings) Rules, 1962 (for short ' the Rules'), was not followed. According to Mr. Ranka, learned counsel for the petitioner, the demands had been reduced in the appeal filed by the two firms. M/s. Krishna Kapoor and Co. had filed an appeal against the additions made in the assessment year 1981-82 and the Commissioner of Income-tax (Appeals), Amritsar, allowed the appeal in part on November 5, 1985. On account of the said relief, the outstanding demand for the assessment year 1981-82 was reduced from Rs. 1,18,256 to Rs. 58,862. Consequent reduction was also made in respect of the demands in the hands of the partners. The firm also filed an appeal to the Commissioner of Income-tax which is pending. It is also the contention of learned counsel for the petitioner that on February 4, 1986, only a sum of Rs. 4,41,761 remained outstanding against M/s. Krishna Kapoor and Co. and its partners as against the original demand of Rs. 8,56,377. The Tax Recovery Officer, Jaipur, did not reduce the outstanding demand to Rs. 4,41,761 against the earlier demand of Rs. 8,56,377. His further contention is that the effect to the appellate order must have been givenand the demand must have been reduced, and by the time the property was attached or was put to auction, the demand in the case of M/s. Krishna, Kapoor and Co. was reduced to about Rs. 4,00,000 odd and so far as M/s. Indo Kashmir Carpets and Handicrafts is concerned, it had been reduced to Rs. 7,65,744. It may be stated that there appears to be some substance in the submission of Mr. Ranks that the demands had been reduced and this position is not contested by Mr. Surolia, learned counsel for respondents No. 1 to 6. But the question is what is the effect of the reduction, if any, in the demands of tax in appeal.

7. There is no dispute that the properties in dispute situated at Jaipur are the exclusive properties of M/s. Krishna Kapoor & Co, In terms of Section 223 of the Income-tax Act, the Tax Recovery Officer, Range-II, Amritsar, forwarded recovery certificates in respect of the aforesaid two demands in relation to the defaulter, M/r. Krishna Kapoor & Co. and its partners and M/s. Indo Kashmir Carpets and Handicrafts and its partners to the Tax Recovery Officer, Jaipur. So far as the outstanding against the default of M/s. Indo Kashmir Carpets and Handicrafts to the extent of Rs. 10,17,915 is concerned, the case of the non-petitioners is that M/s. Krishna Kapoor and Co. owed amount to that extent to M/s. Indo Kashmir Carpets and Handicrafts, Amritsar. Therefore, an order under Section 226(3)(i) of the Income-tax Act was made which was served upon M/s. Krishna Kapoor and Co. requiring it to pay the amount forthwith to the Income-tax Officer. Therefore, under Section 226(3)(iv) of the Income-tax Act, M/s. Krishna Kapoor and Co. is bound to comply with the same notice. It is the further case that under Section 226(3)(x) of the Income-tax Act, if the person to whom a notice under Sub-section (3) of Section 226 is sent fails to make payment in pursuance thereof to the Income-tax Officer, he shall be deemed to be an assessee in default in respect of the 'amount specified in the notice and further proceedings may be taken against him in the manner provided in Sections 222 to 225 of the Income-tax Act and the notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of its powers under Section 222. Learned counsel for the non-petitioners has made a reference to annexure rule 61 (page 266) issued by the Inspecting Assistant Commissioner of Income-tax (Assessment), Range-II, Amritsar, on December 10, 1984. It is an order under Section 226(3)(x) of the Income-tax Act. It has been mentioned therein that M/s. Krishna Kapoor & Co. Amer Road, Jaipur, who owed certain amounts to M/s. Indo Kashmir Carpets and Handicrafts, was issued notice under Section 226(3), vide Letter No. 1624 dated October 15, 1984, restraining it from making any payment to M/s. Indo Kashmir Carpets and Handicrafts. M/s. Krishna Kapoor & Co. was required to remit the amount standing to the credit ofM/s. Indo Kashmir Carpets and Handicrafts in its books of account to the office of the Inspecting Assistant Commissioner of Income-tax (Assessment), Range-II, Amritsar, towards payment of tax arrears outstanding against M/s. Indo Kashmir Carpets and Handicrafts and its partners. It was also mentioned in the order that the terms of notice under Section 226(3) have not so far been complied with. It was declared that M/s. Krishna Kapoor & Co. is a defaulter in pursuance of Clause (x) of Subsection (3) of Section 226 of the Income-tax Act to the extent of Rs. 8,56,377 payable to the aforesaid defaulter. It was also ordered that, consequently, the amount shall be recovered from M/s, Krishna Kapoor and Co. as arrears of land Revenue. A contention has been raised by Mr. Ranka that neither this order nor any notice under Sub-section (3) of Section 226 of the Income-tax Act as alleged was served on the petitioner. It is further contended that no notice in Form ITCP No. 1 was served on the petitioner. According to learned counsel, a firm is a person separate from its partners and if any amount is due against the firm, it cannot be recovered from the partners. He further contends that under Rule 2 of the principal Rules, notice in Form ITCP No. 1 has to be issued and served upon the defaulter requiring him to pay the amount specified in the certificate. A defaulter, according to learned counsel, means, in the case of assessment against a partner, the partner and in the case of a firm, the firm. Under Section 48 of the Rules, only immovable properties of the defaulter can be attached and under Rule 49, a copy of the attachment order has to be served on the defaulter. This was not done. He has referred to annexures R-43 and 44 available at pages 230 and 231, respectively. In support of his submission that Rule 49 of the principal Rules was not complied with inasmuch as the copy of the attachment order was not served on the defaulter as aforesaid, he also referred to some Forms ITCP No. 1 which, according to him, are subsequent to that order of attachment. He made a reference to annexures R-14, 21, 12 and 16 which, according to him, were served by affixation on August 6, 1985, and the order of attachement is dated July 11, 1985. Mr. Ranka, learned counsel for the petitioner, in respect of his argument that the sale proclamation was issued in contravention of the provisions of the principal Rules referred to Rule 53 of the principal Rules under which a sale proclamation of sale of immovable property shall be drawn up after notice to the defaulter as required therein and it must specify as fairly and accurately as possible as per Clause (cc) of Rule 53, the reserve price, it any, below which the property may not be sold. The mode of making a sale proclamation has been prescribed in Rule 54 of the principal Rules. The contention of Mr. Ranka is that Rules 53 and 54 of the principal Rules have been contravened. Mr. Ranka, learned counsel for the petitioner,further contends that on January 20, 1986, the highest bid offered was of Rs. 43,31,000. Though, according to learned counsel, even this was too much below the actual value of the property, but on January 21, 1986, the bid only of Rs. 37,81,000 of M/s. Raja Properties was accepted. This clearly shows the mala fide intention of the authorities concerned. A further argument has been raised that immediately after the declaration that M/s. Raja Properties are the purchasers, 25% of the purchase price was not deposited and in default of such deposit the properties must have been resold and thus there has been contravention of Rule 57 of the principal Rules. Thus, the contention of Mr. Ranka is that there have been not only irregularities but also illegalities in the attachment of the properties, drawing up the proclamation of sale and in conducting of sale. In connection with his earlier argument that for the demand against the firm the partners are not responsible, Mr. Ranka has referred to various provisions of the Act and more so to Clauses (7), (14) and (31) of Section 2 to Sections 75 to 77 and sections 182, 183 and 189. He has made a reference to CIT v. A. W. Piggies and Company : [1953]24ITR405(SC) , CIT v. C. A. Quseph and Sons : [1985]154ITR598(Ker) , K. A. Karim and Sons v. ITO : [1984]149ITR172(Ker) , S. N. Santhalingam v. ITO : [1980]121ITR868(KAR) , TRO v. Dilip Construction Co. : [1984]148ITR599(MP) , Brij Ratdnlal Bhoop Kishore v. Addl. CIT : [1983]139ITR906(All) . Mr. Ranka, learned counsel for the petitioner, has also contended that the court has to make a distinction in cases of illegalities and irregularities and the present is a case where the various illegalities as aforesaid have been committed. In this connection, Mr. Ranka, learned counsel for the petitioner, has referred to Chhotu Sood v. TRO , Tara Chand v. ITO and Shiv Narain Dhabhai v. CWT .

8. Mr. Surolia, learned counsel for the Revenue, as well as Mr. Sharma, learned counsel for the non-petitioner No. 3, have contended that all the questions which have been raised by Mr. Ranka, learned counsel for the petitioner, are such which could have been and have been taken in the appeals filed by the petitioner. They also contend that the question as to whether there was proper service of notice in Form ITCP or other notice is purely a question of fact. It is also a question of fact as to whether service of notice by affixture could in the facts and circumstances of the case have been effected and was in fact effected or not. Such questions of fact should not be gone through in exercise of the jurisdiction of the court under Article 226 of the Constitution of India. In matters of taxation, unless the remedies provided under the Act or the Rules made thereunder are exhausted, a party should not be allowed to invoke the extraordinary writ jurisdiction of this court. In support of their abovecontentions, learned counsel referred to CITv. Ramendra Nath Ghosh[197l] 82 ITR 888, wherein the court held that the question whether the assessees had been served in accordance with the law or not was essentially a question of fact and though the High Court had jurisdiction to entertain their writ petitions challenging the service of notice, the asses-sees should not have been allowed to invoke the extraordinary jurisdiction of the court. They also referred to the case of this court in Sohan Singh v. Banta Singh and STO v. Shiv Ratan G. Mohatta. : [1965]3SCR71 , on the question that in tax matters unless the remedy provided under the Act which provides a hierarchy of courts or tribunals is exhaustive, the party should not be allowed to invoke the jurisdiction of the court under Article 226 of the Constitution of India or the courts should not invoke the writ jurisdiction. Learned counsel has placed reliance on Municipal Council v. Kamal Kumar : [1965]2SCR653 and N.K. C. Syed Mohammed Ravoother v. Dy. CTO, AIR 1958 Mad 176 : [1958] 9 STC 1 (Mad), K. Burman v. CTO [1972]Tax LR 2447 (Mys) : [1971 ] 28 STC 637 (Mys) and Assistant Collector of Central Excise v. Dunlop India Lid. : 1985ECR4(SC) . In the aforesaid case, their Lordships referred to the earlier case of Titaghur Paper Mills Co. Ltd, v. State of Orissa[l983] 142 ITR 663, wherein it was held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the prescribed authority, a second appeal to the Tribunal and thereafter to have the case stayed to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were the complete statutory machinery. That it has become necessary even now for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to shortcircuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the court must have good and sufficient reason to bypass the alternative remedy provided by the statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. On the basis of the above authorities, it can be said that if the statute provides remediesunder it, unless the vires of the statute are in question or the order is against the principles of natural justice, the court should not generally invoke its extraordinary jurisdiction under Article 226 of the Constitution of India, more so, in matters of taxation where the Revenue of the State is involved, as by and large, barring a few cases of exception, the purpose of the assessee is to obtain interim relief and thereby postpone the recovery of the demands.

9. So far as the argument of learned counsel for the petitioner that the dues of the partners or firms could only be recovered from them and that the defaulter will be the firm or partner, as the case may be, service of notice has to be on the defaulter, the contention of learned counsel for the Revenue and the purchaser is that even the notice to dissolve the firm cannot be served on the partners. In this connection, reference has been made to Dayaram v. Addl. Collector . Learned counsel for the Revenue and the purchaser, repondent No. 7, contend that merely because the demand was reduced in appeal after a certificate has been sent to the Tax Recovery Officer and the correct amount has not been mentioned in the sale proclamation, the proceedings are not illegal and the sale proclamation for that purpose does not become illegal. In support of this contention, reference has been made to the case of Chittoori Ramachandra Rao v. Tax Recovery Commissioner : [1975]100ITR591(AP) , wherein it has been held that under the Indian Income-tax Act, 1922, if the tax was reduced in appeal or otherwise, it was necessary that a fresh demand notice must be issued as proceedings had to be initiated again. To obviate the difficulty, Parliament enacted the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1964, whereunder it is sufficient to inform the assessee of the tax reduced in appeal. A fresh sale proclamation need not be issued. Sections 224(2), 225(2) and 224(3) of the Income-tax Act, 1961, also provide similar provisions. As such, the authorities need not issue a fresh proclamation but can correct the old proclamation and continue the proceedings, if it was found that the proclamation issued earlier mentioned a wrong figure. Learned counsel also made a reference to Sections 224(2) and (3) and 225 of the Income-tax Act. Under Section 224(1), when the Income-tax Officer sends a certificate to a Tax Recovery Officer under Section 222, it shall not be open to the assessee to dispute before the Tax Recovery Officer the correctness of the assessment and no objection to the certificate on any ground shall be entertained by the Tax Recovery Officer. Under Section 224(2), notwithstanding the issue of a certificate to a Tax Recovery Officer, the Income-tax Officer shall have power to withdraw or correct any clerical or arithmetical mistake in the certificate by sending an intimation to the Tax Recovery Officer. Under Section 225(1), notwithstanding that a certificate has been issued to the Tax Recovery Officer for the recovery of any tax, the Income-tax Officer may grant time for the payment of the tax, and thereupon the Tax Recovery Officer shall stay the proceedings until the expiry of the time so granted. Under Sub-section (3) of Section 225, where the order giving rise to a demand of tax for which a certificate for recovery has been issued has been modified in appeal or Other proceedings under the Act and as a consequence thereof the demand is reduced but the order is the subject-matter of further proceeding under the Act, the Income-tax Officer shall stay the recovery of such part of the amount of the certificate as pertains to the said reduction for the period for which the appeal or other proceeding remains pending. Under Sub-section (4) of Section 225, where a certificate for the recovery of tax has been issued and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under the Act, the Income-tax Officer shall, when the order which was the subject-matter of such appeal or other proceeding has become final and conclusive, amend the certificate or withdraw it, as the case may be. It can, therefore, be said that merely because the demand has been reduced in appeal and the proceedings have not become final and are the subject-matter of further appeal, the proceedings for recovery of the demand before the Tax Recovery Officer are not rendered illegal and the Income-tax Officer is only required to inform the Tax Recovery Officer that the demand has been reduced in appeal.

10. It is not disputed and rather it is even the case of the petitioner that under Rule 61 of the Rules, an application to set aside the sale of the disputed property was filed by the petitioner on the ground that the notice was not served on him to pay the arrears as required by the Second Schedule to the Act. That application was dismissed by the Tax Recovery Officer. In para No. 18 of the petition, it has been stated that the petitioner on March 29, 1986, submitted an appeal in Form No. 29A under Rule 86(1)(c) of the principal Rules before the Tax Recovery Commissioner, Jaipur, and the Tax Recovery Commissioner, Amritsar, separately against the order dated March 14, 1986, passed by the Tax Recovery Officer, Jaipur, rejecting the application under Rule 61 of the principal Rules. It can, therefore, be said that an appeal under Rule 86(1 )(c) is pending decision. Rule 86(1 )(c) of the principal Rules provides that an appeal from any original order passed by the Tax Recovery Officer under the Schedule, not being an order which is conclusive, shall lie, in the case of a Tax Recovery Officer, being an officer referred to inSub-clause (iii) of Clause (44) of Section 2, to the tax Recovery Commissioner, and the appeal is to be presented within thirty days from the date of the order appealed, against. Under Sub-rule (3) of Rule 86, pending the decision of any appeal, the appellate authority has power to stay the execution of the certificate. Thus, an appeal lies and is pending where-all the questions have been agitated. The ''appeal is an efficacious remedy. The sale has been confirmed under Rule 63 of the principal Rules.

11. I am, therefore, of the opinion that because an appeal has been, filed and is pending and it is an efficacious remedy under the Act, it will not be proper to exercise the-extraordinary jurisdiction of this court under Article 226 of the Constitution on the facts and circumstances of the present case.

12. Consequently, on the ground of availability of the alternative efficacious remedy under the. Income-tax Act and the principal Rules, the writ petition is dismissed with no order as to costs.