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TMI Blog1994 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... in force, no transfer of any immovable property of such value exceeding ten lakh rupees as may be prescribed, shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property (hereinafter referred to as 'the transferor') and the person to whom it is proposed to be transferred (hereinafter referred to as 'the transferee') in accordance with the provisions of sub-section (2) at least four months before the intended date of transfer. (2) The agreement referred to in sub-section (1) shall be reduced to writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties. (3) Every statement referred to in sub-section (1), shall, -- (i) be in the prescribed form; (ii) set forth such particulars as may be prescribed ; and (iii) be verified in the prescribed manner, and shall be furnished to the appropriate authority in such manner and within such time as may be prescribed, by each of the parties to such transactions or by any of the parties to such transaction acting on behalf of himself and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of any immovable property unless the appropriate authority certifies that it has no objection to the transfer of such property for an amount equal to the apparent consideration therefor as stated in the agreement for transfer of the immovable property in respect of which it has received a statement under sub-section (3) of section 269UC. (3) In a case where the appropriate authority does not make an order under sub-section (1) of section 269UD for the purchase by the Central Government of an immovable property, or where the order made under sub-section (1) of section 269UD stands abrogated under sub-section (1) of section 269UH, the appropriate authority shall issue a certificate of no objection referred to in sub-section (1) or, as the case may be, sub-section (2) and deliver copies thereof to the transferor and the transferee. " In due compliance with the provisions of section 269UC of the Act, the writ petitioners duly reduced to writing the said agreement dated January 28, 1994, in the prescribed Form No. 37-I and furnished the same to the appropriate authority on February 17, 1994. On the basis of the aforesaid prescribed Form No. 37-I, an order was passed by the approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction. Mr. Pal, appearing on behalf of the respondent, however, contested the said submission raised on behalf of the writ petitioners. Having heard learned counsel appearing for the parties and after giving my serious consideration to the submissions made on behalf of the parties, I am of the view that Mr. Mitra was right in his submission that section 269UD of the Act does not confer any authority, power or jurisdiction to the appropriate authority to go into the question of title of the writ petitioners in respect of the property in question which is sought to be sold on the basis of the agreement for sale. As noted earlier, Chapter XX-C of the Act was brought into force with effect from October 1, 1986. Initially, a scheme was prepared in 1972 for purchase of immovable properties by the Central Government, proposed to be transferred, to counteract evasion of taxes and a new Chapter being Chapter XX-A of the Act was inserted for acquisition of immovable properties in certain cases of transfer for the said purpose. Section 269RR under Chapter XX-A of the Act was inserted with effect from October 1, 1986, by the Finance Act, 1986, which provides that Chapter XX-A shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment by an amount equal to the amount of apparent consideration should be passed or not. In my view, therefore, this is the only power conferred on the appropriate authority while dealing with Form No. 37-I under section 269UD of the Act. Hence under section 269UD of the Act, in my view, the appropriate authority is not conferred with power to go into the question whether the transferors have any right, title and interest in the immovable property in question. I have already noted down the findings made by the appropriate authority in the impugned order. From a perusal of the said findings, as noted earlier, it is clear that the said findings of the appropriate authority were made on the question of title of writ petitioners Nos. 1 to 5 in respect of the said premises. It also appears from the findings made in the impugned order that from the date of execution of the wills and from the date of death of one Smt. Gayatri Devi Chatterjee, accounts had not been duly rendered by the executors of the said will. As held hereinabove, the appropriate authority while dealing with Form No. 37-I filed under section 269UD of the Act, is not conferred with any power to go into the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this court, an opportunity must be given to the Central Government afresh to make up their mind in the matter of purchase of the said premises under section 269UD of the Act. Having heard learned counsel, appearing for both the parties, on the question referred to hereinabove and after giving my serious consideration to the same and after carefully examining Chapters XX-A and XX-C of the Act and the relevant provisions under the said Chapters, I am of the view that the question of giving further opportunity to the Central Government to make up their mind to purchase the said premises at this stage is not permissible in law in view of the mandatory provisions in the first and second provisos under section 269UD of the Act. In order to appreciate the contentions so raised by learned counsel for both the parties, it would be necessary to consider sections 269UD and 269UL of the Act afresh at this stage. Section 269UD of the Act clearly provides that the appropriate authority, after receiving a statement under sub-section (3) of section 269UC in respect of any immovable property, "may" make an order for the purchase by the Central Government of such immovable property at an am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the period of limitation referred to in the second proviso shall be reckoned, where any stay has been granted by any court against the passing of an order for the purchase of the immovable property under Chapter XX-C of the Income-tax Act with reference to the date of vacation of the said stay. In my view, we are not concerned with the fourth proviso to section 269UD of the Act for two simple reasons ; firstly, it contemplates cases where an order for purchase of a property has been passed by the appropriate authority and, secondly, where an order of stay has been granted by any court against the passing of an order for purchase of the immovable property by the appropriate authority. In the case in hand, admittedly, no such order for purchase was passed by the appropriate authority. On the other hand, the order that is under challenge in this writ application is an order passed by the appropriate authority rejecting Form No. 37-I filed on behalf of the writ petitioners under section 269UC of the Act. It is also the admitted case that no stay order had been granted by this court while the writ petition was moved in this court. Therefore, the question of applying the fourth provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be exercised in the facts and circumstances of a case, they shall issue a "no objection" certificate in favour of the person who intends to transfer the immovable property in question by entering into an agreement for sale. That apart on a plain reading of section 269UD(1) of the Act and the first and second provisos to section 269UD of the Act, I am also of the view that the right to exercise the discretionary power to purchase an immovable property in question is restricted to the passing of an order for purchase by the appropriate authority before the expiration of three months from the end of the month in which the statement referred to in section 269UC in respect of such immovable property is received by the appropriate authority. The reasons are as follows : In section 269UD(1) of the Act, it is significant to note that the power to purchase an immovable property under that section is a directory one and a discretion has been given to the Central Government to use such discretionary power of purchase as it is significant from section 269UD(1) of the Act wherein the word "may" has been used, whereas the first proviso to section 269UD of the Act is a mandatory one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in nature and no order can be passed after the expiry of three months, as mentioned in the first and second provisos to section 269UD of the Act. A Division Bench of the Delhi High Court, relied on by Mr. Mitra, on behalf of the writ petitioner in Mrs. Satwant Narang v. Appropriate Authority [1991] 188 ITR 656 made the following observations in connection with the question whether, when an order is set aside, the appropriate authority can be given an opportunity to reconsider the statement of the writ petitioner filed in Form No. 37-I of the Act and to make up his mind to purchase the property on the apparent consideration mentioned in the agreement for sale, at page 664 of the aforesaid decision : " We are not impressed by this submission. The agreement under reference is dated October 9, 1989. The petitioner moved the appropriate authority by filing the statement in Form 37-I on October 20, 1989. Thereafter, the Act lays down a very tight schedule for the appropriate authority to make up its mind to purchase or not to purchase the property. There is no provision for extension of time. The respondents have missed the bus and have passed the impugned order on December 15, 1989, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to reconsider the statement of the assessee filed in Form No. 37-I of the Act and to make up its mind to purchase the said premises on the apparent consideration mentioned in the agreement. The first decision is reported in Director of Inspection of Income-tax (Investigation) v. Pooran Mall and Sons [1974] 96 ITR 390 (SC). In that decision, an order of summary assessment and retention for search and seizure were under challenge on the ground whether limitation for passing such an order could be made by the party for whose benefit the property was seized or whether the High Court, in its jurisdiction, could quash a consent summary assessment order and permit fresh order to be made and if an order is passed subsequent to the order of this High Court in its writ jurisdiction, the question of limitation of 90 days for passing an order would be mandatory or not. In my view, this decision cannot be applied to the facts and circumstances of this case. In the facts and circumstances of that case of the Supreme Court, a consent summary assessment was quashed by the writ court and the writ court directed the officer concerned to proceed afresh and in terms of such direction, an order w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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