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TMI Blog2005 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration within the period set out in section 269UG of the Act, it has to be held that the order passed under section 269UD(1) of the Act stood abrogated and the property has revested in the petitioners. Thus, viewed from any angle, the impugned order passed under section 269UD(1) cannot be sustained. - - - - - Dated:- 26-9-2005 - Judge(s) : V. C. DAGA., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by J.P. Devadhar J. - This petition is directed against the order dated September 21, 1993, passed by the appropriate authority under section 269UD(1) of the Income-tax Act, 1961. By the said order, the appropriate authority has held that the apparent consideration in respect of the property agreed to be sold by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich similar flats were sold in the building known as "Green Acres" situated at Lokhandwala Complex, Andheri (W), Bombay - 400 058, the appropriate authority has reached a prima facie or tentative conclusion that the sale of the flat by the petitioners to respondent No. 5 is undervalued and, therefore, liable to be purchased under section 269UD of the Act. In their reply dated September 14, 1993, the petitioners stated that comparison of the sale instances at Green Acres is not proper because that property is situated about 3 kms. away from the property belonging to the petitioners and that unlike the flat sold by the petitioners, the Green Acres is a highly luxurious complex with facilities like gymnasium, health club, play ground, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioners, submitted threefold arguments. Firstly, he submitted that the appropriate authority was in error in relying upon the sale instances at Green Acres for ascertaining the fair market value of the flats prevailing at the relevant time. He submitted that the Green Acres Complex was situated almost 3 kms. away from the flat sold by the petitioners. Moreover, the said complex was a highly luxurious complex with facilities like swimming pool, health club, play ground, etc., and, therefore, the price of the flats sold in that complex could not be taken as the basis of the fair market value. Secondly, he submitted that the sale instances furnished by the petitioners were comparable instances because the flats sold in Parasrampuria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths. He submitted that on the date of purchase order, admittedly the building was incomplete and the possession of the said flat could not be taken and, therefore, the appropriate authority was justified in depositing the amount in the account of the appropriate authority instead of tendering it to the petitioners. On a careful consideration of the rival submissions, we are of the opinion that the impugned order passed under section 269UD(1) of the Income-tax Act deserves to be quashed and set aside. It is now well settled by the decision of the apex court in the case of C.B. Gautam v. Union of India [1993] 199 ITR 530 (SC) that the appropriate authority can draw a presumption of undervaluation if the apparent consideration shown in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of May, 1993, have been held to be fair, whereas the flat in Parasrampuria Tower No. 6 sold by the petitioners at the rate of Rs. 2,259 per square ft. in June, 1993, has been held to be undervalued. The appropriate authority has declined to consider the sale instances in Parasrampuria Tower No. 5 solely on the ground that there is a time gap of two months. This finding of the appropriate authority, in our opinion, cannot be sustained because there is no material on record to show that within these two months the prices in the locality where the flat sold by the petitioners is situated had increased considerably. Moreover, the flat sold by the petitioners in June 1993 was much higher than the price at which flats at Parasrampuria Tower No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the order passed under section 269UD(1) is proper, in view of the failure on the part of the appropriate authority to tender the apparent consideration within the period set out in section 269UG of the Act, it has to be held that the order passed under section 269UD(1) of the Act stood abrogated and the property has revested in the petitioners. Thus, viewed from any angle, the impugned order passed under section 269UD(1) cannot be sustained. For all the aforesaid reasons, we quash and set aside the impugned order dated September 21, 1993, passed under section 269UD(1) of the Income-tax Act. The petition, accordingly, succeeds. Rule is made absolute in terms of prayer in clause (a), with no order as to costs. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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