9911796707
TMI Blog1988 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000 to the appellant transferee M/s Jain Marble, a partnership firm constituted of Shri Prakash Chand and Smt. Kanwari Devi vide registered sale deed dt.17th May, 1985. On receipt of intimation in form No. 37-G under r. 48-G of the IT Rules, 1962, the property valuation was referred to the Valuation Cell by the Competent Authority vide letter dt.9th July, 1985. The Valuation Officer, Unit-VI IT Department,New Delhisubmitted his report dt.25th Sept, 1985reporting the fair market value at Rs. 8,03,500 as against Rs. 7 lacs mentioned in the instrument of transfer. Before reporting the Valuation Officer had called upon among others, the transferee to produce certain documents relevant to valuation of the property and arrange inspection. The property was stated to be inspected on21st Aug., 1985, and one Shri Dinesh Jain,C.A.was present on behalf of the transferee. Since for the transferee great strees was laid on the mode of valuation and it was sought to be demonstrated on the basis of the report itself that there was no justification for the kind of report submitted, it is considered necessary to bring in close focus the valuation report and the mode adopted for the same as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s. 269C(1). In the impugned order the date of service of the notice under s. 269D(1) is not mentioned, whereas the date of its publication in the Official Gazette on 15th Feb., 1986 at page 6450 in Hindi and at page 7093 in English has been recorded. 7. On19th Oct., 1987for the appellant, Shri C.S. Aggarwal made a statement before the Tribunal that the notice under s. 269D(2) was served on the transferee on10th Feb., 1986before it was published on15th Feb., 1986and sought the Bench's permission to file an affidavit in support of such contention. The Bench made a note of the said averment in the order sheet in the Court in the presence of the parties and the case was adjourned for2nd Dec., 1987. 8. On2nd Dec., 1987the hearing was adjourned to20th Jan., 1988at the request of the parties. On 20th January again the case was adjourned to10th March, 1988again at the request of both the parties. On21st Jan., 1988the hearing was advanced to18th Feb., 1988. 9. On18th Feb., 1988an affidavit of Shri Prakash Chand Jain dt. 12th Feb., 1988 one of the two partners of the appellant firm, was submitted deposing that notice under s. 269D(1) of the Act was served on the transferee firm on 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 269E(1)(a), the objections under this section can be filed within a period of 45 days from the date of publication of notice in the official gazette or a period of 30 days from the date of service of notice on the transferee, whichever period expires later. Thus, the last date for filing of objections in this case was31st March, 1986and not11th March, 1986, as claimed by the appellant. (4) In this connection it is pertinent to refer to the opening para of the appellant's letter dt.10th March, 1986whereby objection under s. 269E were filed for the first time. The said para reads as under: "I hereby submit following objections against the acquisition of the above mentioned property in respect of which a notice has been published in the official gazette under sub-s. (1) of s. 269D". The appellant claims to have filed these objections in response to notice under s. 269D(1) allegedly served on him on 10th Fen., 1986. But at the same time, the appellant has admitted in the opening para of the same letter that the notice had been published in the official gazette. Therefore, the appellant's contention that it was served on him before its publication contradicts its own written st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferee, as per para 4 of the impugned order, which is reproduced below, has been allowed to remain as far as the Revenue's case goes inspite of specific deposition made for the appellant. "(i) On the transferor by regd. post on19th Jan., 1987 (ii) On the transferee some time in February 1986. (iii) On the tenant, M/s Decor Distributors, through its partner Sh. Ram Chander on7th Jan., 1987. (iv) By display on the office notice Board and by affixture on the subject property on13th Oct., 1986. (v) by of announcement and beating of drum in the locality on 28th Sept., 1986". 13. Though we have mentioned above, we like to emphasise that apparently there is nothing on record even to indicate as to the mode of service of notice and it was the transferee's reply of 10th March, 1986, which apparently prompted the Acquisition Officer to record that the notice had been served on the appellant some time in February, 1986. Relying on the above facts, Shri C.S. Aggarwal submitted that since service of notice under s. 269D(1) within the period of 9 months after it had been published in the Official Gazette was statutorily necessary condition for valid initiation of acquisition proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available in the case of R.L. Narang vs. CIT (1982) 136 ITR 108 (Del) in which it has been held that a notice sent under a Certificate of Posting and not by registered post would not amount to proper service. 16. Usually when notices were served by a process server, no further service by post was earlier necessary. That was lawful as the Civil Procedure Code stood before its 1976 amendment. The 1976 amendment has introduced w.e.f.1st Feb., 1977, a new r. 19A in Order V, which lays down that the Court shall, in addition to, and simultaneously with the issue of summons for service in the manner provided in rr. 9 to 19, also direct the summons to be served by registered post acknowledgement due. The proviso to r. 19A(1), however, empowers the Court to dispense with registered acknowledgement due service in appropriate cases. But for that, in the fitness of things, a special order in writing may be necessary. 17. Further, there is and can be no presumption in law as to the exact date of service of a notice purported to be sent under registered cover must less any presumption of valid service. 18. In the case before us but for the appellant's acceptance that the notice was serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to initiate such proceedings, the competent authority having jurisdiction may initiate such proceedings within: (i) the period of nine months specified in the foregoing proviso; (ii) a period of thirty days from the date of such determination, whichever period expires; later; (b) in a case where proceedings for the acquisition of any immovable property under this Chapter could not be initiated during any period of time by reason of any injunction or order of any Court prohibiting the initiation of such proceedings or preventing the examination of documents or other materials required to be examined for the purpose of determining whether such proceedings should be initiated, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn shall be excluded in computing the period during which such proceedings may be initiated under this sub-section. (2) The competent authority shall (a) cause a notice under sub-s. (1) in respect of any immovable property to be served on the transferor, the transferee, the person in occupation of the property, if the transferee is not in occupation thereof, and on ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer who was prompted by the IAC(A) to make a fresh report. 24. In any case a much later report could not be made the basis for validating invalid proceedings. Therefore, by holding that as per Revenue's own evidence the fair market value of the property did not exceed 15 per cent when proceedings were started, we struck down the acquisition order on that ground also. 25. Before proceeding further we like to deal with the objection raised by Shri Aggarwal that presumptions of s. 269C could not be said to be available for initiating proceedings. We shall only like to notice the provision of s. 269C, considering peculiarities of this case. There are two limbs of s. 269C, the one for initiating proceedings as provided under sub-s. (1), which stipulates that where the Competent Authority has reason to believe that fair market value exceed 15 per cent of the recorded consideration, he may initiate proceedings and the second in sub-s. (2), which operates in an entirely different field, i.e., when the proceedings have been validly initiated. In other words, if the value of a property has been reported or the competent authority gets a valuation report that the fair market value exceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee a prayer was made that this aspect should also be looked into, we are only making a brief reference that against the vague allegation and reference to sale instances of property, which had no relevance to the facts, the assessee vide communication dt.25th Nov., 1986clearly established that the recorded consideration could not be said to be low. A portion of the said letter we like to notice as follows: "Further to my letter dt.29th April, 1986and in reference to my discussion with you on18th Nov., 1986, I am to submit as follows: 1. G.I.R. No. of M/s Jain Marble is 22-03-FY-4948, VIII (8)N. Delhi. G.I.R. No. of M/s Decor Distributors is 17-D VIII(8)N. Delhi. 2. I have already informed you about the composition of the above mentioned firm vide my letter dt.29th April, 1986. 3. In addition to my objections filed earlier I would like to rely on following sale instances for calculating fair market value of the plot. These sale instances are more of less of the same period and have similar location. . Land Rate Rate of Sale Area of Plot (a) B-12GreenParkExt. 2700 April, 84 270.90 (b) T-4 Green Park ..... X X X X Extracts X X X X X X X X Extracts X X X X
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