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Report No. 12

Part II

Attachment and Sale of Movable Property

20. Warrant.-

Except as otherwise provided in this Schedule, when any movable property is to be attached, the officer shall be furnished by the Collector (or other officer empowered by him in that behalf) a warrant in writing and signed with his name specifying the name of the defaulter and the amount to be realised.

[Section 8 (First) earlier part, Madras Act]

21. Service of copy of warrant.-

The officer shall cause a copy of the warrant to be served on the defaulter.

[Section 8 (First) latter part Madras Act]

22. Attachment.-

If, after service of the copy of the warrant the amount is not paid forthwith, the officer shall proceed to attach the movable property of the defaulter.

23. Property in defaulter's possession.-

Where the property to be attached is movable property (other than agricultural produce) in the possession of the defaulter, the attachment shall be made by actual seizure, and the officer shall keep the property in his own custody or the custody of one of his subordinates and shall be responsible for due custody thereof:

Provided that when the property seized is subject to speedy and natural decay or when the expense of keeping, it in custody is likely to exceed its value, the officer may sell it at once.

[Rule 15, Sch. II, Bengal Act]

24. Agricultural produce.-

Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment-

(a) where such produce is growing crop,-on the land on which such crop has grown, or

(b) where such produce has been cut or gathered,-on the threshing floor or place for treading out grain or the like, or fodder-stack, on or in which it is deposited, and another copy on the outer door or on some other conspicuous part of the house in which the defaulter ordinarily resides, or with the leave of the Collector on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for gain, or in which he is known to have last resided or carried on business or personally worked for gain. The produce shall thereupon be deemed to have passed into the possession of the Collector.

[Rule 16, Sch. II, Bengal Act]

25. Provisions as to agricultural produce under attachment.-

(1) Where agricultural produce is attached, the Collector shall make such arrangements for the custody, watching, tending, cutting and gathering thereof as he may deem sufficient; and the Income-tax Officer shall bear such sum as the Collector shall require in order to defray the cost of such arrangements.

(2) Subject to such conditions as may be imposed by the Collector in this behalf, either in the order of attachment or in any subsequent order, the defaulter may tend, cut, gather and store the produce and do any other act necessary for maturing or preserving it; and, if the defaulter fails to do all or any of such acts, and person appointed by the Collector in this behalf may, subject to the like conditions, do all or any of such acts, and the costs incurred by such person shall be recoverable from the defaulter as if they were included in the certificate.

(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.

(4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be fit to be cut or gathered, the Collector may suspend the execution of the order for such time as he thinks fit, and may, in his discretion, make a further order prohibiting the removal of the crop pending the execution of the order of attachment.

(5) A growing crop which from its nature does not admit of being stored shall not be attached under this rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.

[Rule 17, Sch. II, Bengal Act]

26. Debts and shares etc.-

(1) In the case of-

(a) a debt not secured by a negotiable instrument,

(b) a share in the capital of a corporation, or

(c) other movable property not in the possession of the defaulter except property deposited in, or in the custody of, any court, the attachment shall be made by a written order prohibiting,-

(i) in the case of the debt-the creditor from recovering the debt and the debtor front making payment thereof until the further order of the Collector;

(ii) in the case of the share-the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;

(iii) in the case of the other moveable property (except as aforesaid)-the person in possession of the same from giving it over to the defaulter.

(2) A copy of such order shall be affixed on some conspicuous part of the office of the Collector, and another copy shall be sent, in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and in the case of the other moveable property (except as aforesaid), to the person in possession of the same.

(3) A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt to the Collector, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.

[Rule 18, Sch. II, Bengal Act]

27. Attachment of decree.-

(1) The attachment of a decree of a civil court for the payment of money or for sale in enforcement of a mortgage or charge shall be made by the issue to the civil court of a notice requesting the civil court to stay the execution of the decree unless and until-

(i) the Collector cancels the notice, or

(ii) the Income-tax Officer or the defaulter applies to the court receiving such notice to execute the decree.

(2) Where a civil court receives an application under clause (ii) of sub-rule (1), it shall, on the application of the Income-tax Officer or the defaulter, and subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) proceed to execute the attached decree and apply the net proceeds in satisfaction of the certificate.

(3) The Income-tax Officer shall be deemed to be the representative of the holder of the attached decree, and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

[Section 19, Bengal Act]

28. Share in movable property.-

Where the property to be attached consists of the share or interest of the defaulter in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the defaulter prohibiting him from transferring the share or interest or charging it in any way.

[Rule 19, Sch. II, Bengal Act]

29. Salary of Government servants.-

Attachment of the salary or allowances of servants of the Government or a local authority may be made in the manner provided by rule 48 of Order 21 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), and the provisions of the said rule shall, for the purposes of this rule, apply subject to such modifications as may be necessary.

[Rule 20, Sch. II, Bengal Act]

30. Attachment of negotiable instruments.-

Where the property is a negotiable instrument not deposited in a court nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought before the Collector and held subject to his orders.

[Rule 21, Sch. II, Bengal Act]

31. Attachment of property in custody of Court of public officer.-

Where the property to be attached is in the custody of any court or public officer, the attachment shall be made by a notice to such court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Collector by whom the notice is issued:

Provided that, where such property is in the custody of a court, any question of title or priority arising between the Income-tax Officer and any other person, not being the defaulter, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such court.

[Rule 22, Sch. II, Bengal Act]

32. Inventory.-

In the case of attachment of movable property by actual seizure, the officer shall, after attachment of the property, prepare an inventory of all the property attached, specifying in it the place where it is lodged or kept, and shall forward the same to the Collector. A copy of the inventory shall be delivered by the officer to the defaulter.

[Section 9, Madras Act]

33. Attachment not to be excessive.-

The attachment by seizure shall not be excessive, that is to say, the property attached shall be as nearly as possible proportionate to the amount specified in the warrant.

[Section 14, Madras Act]

34. Seizure between sun-rise and sun-set.-

Attachment by seizure shall be made after sun-rise and before sun-set and not otherwise.

[Section 15, Madras Act] [Section 47, Bengal Act]

35. Power to break open doors etc.-

The officer may break open any inner or outer door or window of any building and enter any building in order to seize any movable property if the officer has reasonable grounds to believe that such building contains movable property liable to seizure under the warrant and the officer has notified his authority and intention of breaking open if admission is not given. He shall, however, give all reasonable opportunity to women to withdraw.

[Sections 19 and 20, Madras Act] [Section 47, Bengal Act]

Sale

36. Sale.-

The Collector may direct that any movable property attached under this Schedule or such portion thereof as may seem necessary to satisfy the certificate shall be sold.

[Rule 44, Sch. II, Bengal Act]

37. Issue of proclamation.-

When any sale of movable property is ordered by the Collector, the Collector shall issue a proclamation, in the language of the district, of the intended sale, specifying the time and place of sale and whether the sale is subject to confirmation or not.

[Section 165, first para. Bombay Act]

38. Proclamation how made.-

(1) Such proclamation shall be made by beat of drum or other customary mode.-

(a) in the case of property attached by actual seizure-

(i) in the village in which the property was seized, or if the property was seized in a town or city, then in the locality in which it was seized, and

(ii) at such other places as the Collector may direct;

(b) in the case of property attached otherwise than by actual seizure, in such places, if any, as the Collector may direct.

[Section 165, 2nd para., Bombay Act]

(2) A copy of the proclamation shall also be affixed on a conspicuous part of the office of the Collector.

[Rule 47, read with rule 48, Sch. II, Bengal Act]

39. Sale after fifteen days.-

Except where the property is subject to speedy and natural decay or when the expense of keeping it in custody is likely to exceed its value, no sale of moveable property under this Schedule shall, without the consent in writing of the defaulter, take place until after the expiry of atleast fifteen days calculated from the date on which a copy of the sale-proclamation was affixed in the Collector's office.

[Rule 48, Sch. II, Bengal Act] [Section 167, Bombay Act] [Section 22, Madras Act]

40. Sale of agricultural produce.-

(1) Where the property to be sold is agricultural produce, the sale shall be held,-

(a) if such produce is a growing crop-on or near the land on which such drop has grown, or

(b) if such produce has been cut or gathered-at or near the threshing-floor or place for treading out grain or the like, or fodder-stack, on or in which it is deposited:

Provided that the Collector may direct the sale to be held at the nearest place of public resort, if he is of opinion that the produce is thereby likely to sell to greater advantage.

(2) Where, on the produce being put up for sale,-

(a) fair price, in the estimation of the person holding the sale, is not offered for it, and

(b) the owner of the produce, or a person authorised to act on his behalf, applies to have the sale postponed til the next day or, if market is held at the place of the sale, the next market day,

The sale shall be postponed accordingly, and shall be then, completed, whatever price may be offered for the produce.

[Rule 55, Sch. II, Bengal Act]

41. Special provisions relating to growing crops.-

(1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of the crop being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is ready for storing.

(2) Where the crop from its nature does not admit of being stored or can be sold to a greater advantage in an unripe state (e.g., as green wheat), it may be sold before it is cut and gathered; and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending or cutting or gathering the crop.

[Rule 56, Sch. II, Bengal Act]

42. Sale to be by auction.-

The property shall be sold by public auction in one or more lots as the officer may consider advisable, and if the amount to be realised by sale is satisfied by the sale of a portion of the property, the sale shall be immediately stopped with respect to the remainder of the lots.

[Section 23, Madras Act]

43. Sale by public auction.-

(1) Where movable property is sold by public auction, the price of each lot shall be paid at the time of sale or as soon after as the officer holding the sale directs, and in default of payment the property shall forthwith be resold.

(2) On payment of the purchase-money, the officer holding the sale shall grant a certificate specifying the property purchased, the price paid any the name of the purchaser, and the sale shall become absolute.

(3) Where the movable property to be sold is a share in goods belonging to the defaulter and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

[Rule 57, Sch. II, Bengal Act]

44. Irregularity not to vitiate sale, but any person injured may sue.-

No irregularity in publishing or conducting the sale of movable property shall vitiate the sale, but any person sustaining substantial injury by reason of such irregularity at the hand of any other person may institute a suit in a civil court against him for compensation, or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.

[Rule 58, Sch. II, Bengal Act]

45. Negotiable instruments and shares in corporations.-

Notwithstanding anything contained in this Schedule, where the property to be sold is a negotiable instrument or a share in a corporation, the Collector may, instead of directing the sale to be made by public auction, authorise the sale of such instrument or share through a broker.

[Order 21, rule 76, C.P.C.]

46. Order for payment of coin or currency notes to the Income-tax Officer.-

Where the property attached is current coin or currency notes, the Collector may, at any time during the continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the certificate, be paid over to the Income-tax Officer.

[Order 21, rule 56, C.P.C.]



Income-Tax Act, 1922 Back




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