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TMI Blog2008 (4) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... 02, 3rd floor, at the Anjali Co-operative Housing Society Limited, situated at French Bridge, Opera House, Mumbai, for a total consideration of Rs. 17,85,000 and the petitioners had also made payment of Rs. 10 lakhs on the same day. On April 28, 1989, the balance amount was paid by the petitioners and the possession of the said flat was taken from the third respondent on the very same date. Thereafter, the petitioners had filed a statement in Form No. 37-I under Chapter XX-C of the Act on May 9, 1989. The Appropriate Authority had called upon the petitioners to file certain particulars and the Department's approved valuer had inspected the premises and thereafter the petitioners were asked to file certain particulars which were furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred in the notice. However, the same was never furnished by respondent No. 1 to the petitioners. Again, on February 22, 1993, the officer of respondent No. 1 informed the petitioners that they would conduct inspection of the said premises on February 23, 1993 between 4 p.m. to 6.30 pm., however till 7.15 p.m. nobody turned up for inspecting the flat, which fact was recorded by the petitioners by their letter dated February 24, 1993. On the very next day on February 25, 1993, the impugned order came to be passed by respondent No. 1 under section 269UD(1) of the Act and the same was received by the petitioners on February 27, 1993, and thereafter the present petition has been filed challenging the same. 5. Mrs. Patel the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked. Over and above, the learned counsel Mrs. Patel has also emphasised that the respondent has not made out any case that the petitioners had attempted any tax evasion and that the onus of establishing that the undervaluation is with a view to evade tax was squarely on the respondents. In that context, the learned counsel for the petitioners has referred to and relied upon two judgments of the Division Bench of this court, viz., the judgment dated October 29, 2007, passed in Writ Petition No. 527 of 1993 in the case of Manubhai Sakarchand Shah v. S. K. Lal [2008] 303 ITR 66 (Bom) and the other judgment dated October 24, 2007 passed in Writ Petition No. 588 of 1993 in the case of Hiten Rashmikant Mehta v. Union of India [2009] 311 ITR 212 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 1 properly, and merely brushed aside the same stating that they were not comparable. Under the aforesaid facts and circumstances, Mrs. Patel, the learned counsel for the petitioners has submitted that the order passed by respondent No.1 is unsustainable in law, hence should be quashed and set aside. 8. Mr. Sahadevan, the learned counsel appearing on behalf of respondents Nos.1 and 2, has sought to justify the impugned order. However, he was unable to controvert the submission made on behalf of the petitioners that the valuation report dated May 25, 1989 (on which the respondent-Department had relied upon) was never furnished to the petitioners. Mr.Sahadevan also could not dispute that no fair market value was fixed by responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation has been adopted, which is in fact slightly higher than the apparent consideration paid in the case of flat purchased by the petitioners. Even respondent No. 1 has not given any credence to the valuation report submitted by the petitioners as well as the comparable sale instances referred to by the petitioners, without justifiable reasons. Non-consideration of the aforesaid relevant factors also vitiates the order. Even the purported showcause notice dated January 1,1993, which relies on the earlier order dated July 26, 1989, which was already set aside by this court, shows a "predetermined mind" to purchase. 12. Under the aforesaid facts and circumstances of the case, rule is made absolute in terms of prayer clauses (a) and (b) wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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