1977 (11) TMI 72 - AT - Income Tax

Issues Involved:
1. Applicability of Chapter XXA provisions.
2. Requirement of registration of agreement to sell.
3. Validity of proceedings initiated by the first and second notice.
4. Compliance with mandatory provisions of s.269D(2).
5. Reliance on affidavit without cross-examination.
6. Correctness of initiation and acquisition order under s.269C and s.269F(6).
7. Evidence of transfer with the object of tax evasion or concealment.
8. Justification for the Commissioner's approval for acquisition.

Issue-wise Detailed Analysis:

1. Applicability of Chapter XXA Provisions:
The Tribunal considered whether the provisions of Chapter XXA, particularly s.269C, were applicable in the present proceedings. It was noted that the fair market value as defined in s.269A(d) should be the price on the date of execution of the instrument of transfer. Since the agreement of sale was not registered, the relevant date for determining the fair market value was 30th June 1972, the date of the conveyance deed execution.

2. Requirement of Registration of Agreement to Sell:
The Tribunal examined whether s.269F(9) required the registration of agreements to sell entered into before 15th Nov 1972. It was concluded that the material date for valuation was 30th June 1972, as per the statutory definitions, and not any earlier date.

3. Validity of Proceedings Initiated by the First and Second Notice:
The Tribunal discussed the validity of the proceedings initiated by the notice dated 2nd May 1974 and the subsequent notice dated 8th Oct 1975. It was noted that the first notice was published in the Official Gazette, while the second notice was not. The second notice was served on the transferors and transferee, which led to procedural discrepancies.

4. Compliance with Mandatory Provisions of s.269D(2):
The Tribunal analyzed whether the mandatory provisions of s.269D(2) were complied with. It was found that there were procedural lapses, such as the non-publication of the second notice in the Official Gazette and the failure to serve notices on the members of the Bishen Udyog Premises Co-op. Society Ltd.

5. Reliance on Affidavit Without Cross-examination:
The Tribunal considered whether the reliance on the affidavit filed by the partner of M/s. H.A.H. Bachooali Tin Factory, which was not tested by cross-examination, was justified. It was concluded that the affidavit alone could not be the basis for acquisition without proper cross-examination.

6. Correctness of Initiation and Acquisition Order Under s.269C and s.269F(6):
The Tribunal evaluated the correctness of the initiation of proceedings under s.269C and the acquisition order under s.269F(6). It was observed that the fair market value did not exceed the apparent consideration by more than 15%, and the conditions for initiating proceedings were not met.

7. Evidence of Transfer with the Object of Tax Evasion or Concealment:
The Tribunal assessed whether there was any evidence that the transfer of immovable property was with the object of tax evasion or concealment of income or assets. It was concluded that the conduct of the parties and the sequence of events did not support the allegation of tax evasion or concealment.

8. Justification for the Commissioner's Approval for Acquisition:
The Tribunal considered whether the Commissioner of Income Tax was justified in according approval for the acquisition of the present property. It was found that the approval was not justified due to the lack of evidence supporting the conditions required for acquisition under Chapter XXA.

Conclusion:
The Tribunal canceled the order under s.269F(6) of the Act, concluding that the proceedings were not justified based on the factual and legal analysis. The fair market value did not exceed the apparent consideration by more than 15%, and there was no evidence of tax evasion or concealment. The procedural lapses and reliance on untested affidavits further invalidated the acquisition proceedings.

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