1994 (4) TMI 24 - HC - Income Tax

Movable Property Petition Against Order Purchase Of Immovable Property By Central Government Writ Petition

Summary

Issues Involved:
1. Applicability of Chapter XXC of the Income-tax Act to the agreement dated February 24, 1986.
2. Applicability of the rule laid down in C. B. Gautam's case [1993] 199 ITR 530 (SC) to the present case.
3. Entitlement to relief for the parties involved.

Issue-wise Detailed Analysis:

Point No. (i): Applicability of Chapter XXC of the Act

The petitioner contended that the agreement of sale dated February 24, 1986, and the subsequent possession of the property by the petitioner, should fall under Chapter XXA of the Income-tax Act, and not Chapter XXC, which came into force on October 1, 1986. The petitioner argued that the transaction should be governed by the definition of "transfer" under Chapter XXA, which includes allowing possession in part performance of a contract as per section 53A of the Transfer of Property Act, 1882.

However, the respondents argued that the agreement remained an agreement without a legal transfer of property as per section 269UC in Chapter XXC. They emphasized that the petitioner and the original owner submitted Form No. 37-I, thereby acknowledging the jurisdiction of the appropriate authority under Chapter XXC. Rule 48L of the Income-tax Rules was cited, which provides for compliance even for agreements made before the enforcement of Chapter XXC, provided the deed of transfer was not executed before October 1, 1986.

The court agreed with the respondents, stating that Chapter XXC applies to agreements that had not resulted in a deed of transfer by the time the chapter came into force. The court also referred to the case of Captain Sanjeev Sethi v. Union of India [1992] 195 ITR 338, but found it inapplicable as it dealt with a completed transaction of flat allotment, which was not equivalent to the present case. The court concluded that Chapter XXC was applicable to the agreement dated February 24, 1986.

Point No. (ii): Applicability of the rule laid down in C. B. Gautam's case

The petitioner argued that the rule laid down in C. B. Gautam's case [1993] 199 ITR 530 (SC) should apply, which mandates a hearing before passing an order of pre-emptive purchase. However, the court noted that the Supreme Court in the C. B. Gautam case clarified that the decision would not affect completed transactions where possession was taken, and compensation was accepted without protest, or where public auctions were held and properties purchased by third parties.

In the present case, the petitioner and the vendor accepted the pre-emptive purchase order, delivered possession voluntarily, and the property was sold in a public auction. The auction purchaser paid the full amount, and the sale was confirmed before the writ petition was filed. Therefore, the court held that the rule in C. B. Gautam's case did not apply to this case, as it fell within the exceptions outlined by the Supreme Court.

Point No. (iii): Entitlement to Relief

The petitioner also contended that they were not given an opportunity to present their case before the pre-emptive purchase order was passed. However, the validity of this contention depended on the applicability of the rule in C. B. Gautam's case, which the court had already determined was not applicable.

Conclusion:

The writ petition was dismissed, and the interim order was terminated. The court allowed the appropriate authority to execute the necessary documents in favor of the subsequent purchasers, respondents Nos. 7 and 8. The court also clarified that this direction would not exempt the sixth respondent from any liability for capital gains tax. No order as to costs was made, considering the challenge to the provisions was before the C. B. Gautam decision.