1994 (7) TMI 53 - HC - Income Tax

Agreement To Sell Property, Earnest Money, Income Tax Act, Movable Property, Purchase Of Immovable Property By Central Government, Transfer Of Property

Issues Involved:
1. Applicability of Chapter XX-A vs. Chapter XX-C of the Income-tax Act, 1961.
2. Compliance with the principles of natural justice under Section 269UD.
3. Definition and scope of "transfer" and "immovable property" under Chapter XX-A.

Detailed Analysis:

1. Applicability of Chapter XX-A vs. Chapter XX-C of the Income-tax Act, 1961:
The primary issue is whether the provisions of Chapter XX-A or Chapter XX-C of the Income-tax Act, 1961, apply to the transaction between the petitioner and the owners of the premises. The petitioner entered into agreements on September 1 and September 15, 1986, to purchase undivided shares in the premises. Chapter XX-A, which deals with the acquisition of immovable property to counteract tax evasion, was in force when the agreements were made. However, Chapter XX-C, which deals with the purchase of immovable property by the Central Government, came into effect on October 1, 1986. Under Section 269RR, Chapter XX-A does not apply to transfers made after September 30, 1986.

The petitioner contends that the transaction falls under Chapter XX-A because the agreements were made before October 1, 1986. The respondents argue that Chapter XX-C applies as the actual transfer of property did not occur until after October 1, 1986. The court examined the definitions of "immovable property" and "transfer" under Chapter XX-A to determine the applicability.

2. Compliance with the Principles of Natural Justice under Section 269UD:
The petitioner argued that the impugned orders under Section 269UD were not sustainable as they were passed without giving the parties an opportunity to be heard, violating the principles of natural justice. This argument is supported by the Supreme Court's decision in C.B. Gautam v. Union of India, which mandates that the provisions of natural justice be read into Section 269UD. Since the impugned orders were passed without a hearing, they cannot be sustained.

3. Definition and Scope of "Transfer" and "Immovable Property" under Chapter XX-A:
The petitioner argued that the transaction is covered by Chapter XX-A, which includes agreements for transfer and part performance. The court analyzed the definitions under Section 269A to determine if the transaction qualifies as a "transfer" of "immovable property."

- Immovable Property (Section 269A(e)): Defined as any land or building, including rights therein, and rights referred to in Section 269AB(1)(b), which includes rights in buildings to be constructed. The court found that the petitioner's case falls within this definition.

- Transfer (Section 269A(h)): Defined as the transfer of property by sale, exchange, or lease for a term of not less than twelve years, and includes possession taken or retained in part performance of a contract under Section 53A of the Transfer of Property Act, 1882. The court noted that the agreements created a right in the petitioner concerning the premises, qualifying as a transfer under Chapter XX-A.

The court also referred to the decision in Sanjeev Sethi (Capt.) v. Union of India, where a similar issue was decided in favor of Chapter XX-A's applicability. The court concluded that the transaction in question is covered by Chapter XX-A, as the agreements and part performance occurred before October 1, 1986.

Conclusion:
The writ application is allowed, and the impugned orders under Section 269UD of the Act are quashed. The court ruled that the transaction falls under Chapter XX-A and not Chapter XX-C, as the agreements were made before October 1, 1986. The orders were also set aside for failing to comply with the principles of natural justice. There will be no order as to costs.

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