9911796707
TMI Blog1994 (11) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the petitioner. The petitioner's grievance is that the order for pre-emptive purchase has been passed in utter violation of law and causing much harassment to the petitioner who has been compelled to approach this court thrice against the arbitrary and illegal actions of the respondents. The purchase order impugned in this writ petition is the third purchase order passed by the appropriate authority. Apart from other objections, the petitioner mainly challenges the issuance of the pre-emptive order on the ground that the appropriate authority was not authorised to pass such an order which is barred by limitation prescribed by law. It is urged on behalf of the petitioner that if the order of pre-emptive purchase is quashed by this court, as a consequence, the respondents are bound to issue the "no objection" certificate in favour of the petitioner so that he may get the sale deed registered. The facts of the case are not in dispute. The subject-matter of the proceeding is a three-storeyed building over holding No. 3/4, Circle No. 242 of Mohalla Adalatganj, Budh Marg, Patna. The aforesaid plot was owned by Messrs. Muzaffarpur Properties Private Limited, petitioner in Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the validity of the provisions except the provision relating to vesting in the Government "free from all encumbrances". The court held that the requirement of a reasonable opportunity being given to the concerned parties, particularly the intending purchaser and the intending seller must be read into the provisions of Chapter XXC. That the time frame within which the order for compulsory purchase had to be made, though fairly tight, was not such as precluded a reasonable opportunity of being heard or to show cause being given. The court took the view that the provisions are intended to be used only in cases where, in an agreement to sell immovable property in urban area to which the provisions of that Chapter apply, there was a significant undervaluation of the property by 15 per cent. or more. If the appropriate authority was satisfied that the apparent consideration shown in the agreement for sale was less than the market value by 15 per cent. or more, it could draw a presumption that this undervaluation had been done with a view to evading tax. Such a presumption, however, was rebuttable and the intending seller or purchaser could lead evidence to rebut it. The judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the parties and they are agreed that the question now stands settled by a judgment of the Supreme Court in C. B. Gautam v. Union of India [1993] 199 ITR 530. We, accordingly, direct the authorities to act in accordance with the directions contained in the aforesaid judgment and to take further steps in accordance with law. Since the petition stands disposed of so far as this court is concerned, all interim orders stand vacated and it is open to the authorities to act in accordance with law, as clarified by the Supreme Court in the aforesaid judgment. This writ application is allowed to the extent indicated above. " Since the writ petition was disposed of by the High Court by its order dated April 27, 1993, and all interim orders stood vacated with a direction to the respondents to act in accordance with the judgment of the Supreme Court, it was open to the authorities to pass an order of pre-emptive purchase within a period of two months referred to in section 269UD(1) reckoning the date of disposal of the writ petition as the date on which the statement under Form No. 37-I was filed. I may only notice that a second proviso was added to section 269UD by the Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the appropriate authority on April 14, 1994, calling upon the petitioner to appear and show cause as to why an order under section 269UD(1) for the property in question be not passed. The letter addressed to the petitioner mentions that the Patna High Court, vide its order dated April 5, 1994 ([1995] 212 ITR 62), while setting aside the order dated June 15, 1993, passed under section 269UD(1) had "directed that the appropriate authority may pass a fresh order according to law". The petitioner filed his show-cause and submitted that the notice had been issued on the wrong assumption that the High Court had directed the appropriate authority by remanding the matter to it to pass a fresh order in accordance with law. It was submitted that since the period of two months had lapsed, the appropriate authority had no jurisdiction to proceed any further in the matter. The notice dated April 12, 1994, has been annexed as annexure "8" to the writ petition from which it appears that April 27, 1994, was fixed as the date for filing of written submissions. By a subsequent letter dated June 8, 1994 (annexure "10"), the date for filing of the written statement was extended to July 6, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the period prescribed by law, it could not pass such an order after expiry of the period so prescribed. If an order of purchase was not passed, then it was imperative and obligatory on the appropriate authority to issue the certificate under section 269UL(3). In the case of Tanvi Trading and Credits P. Ltd. v. Appropriate Authority [1991] 188 ITR 623 (Delhi) the appropriate authority did not pass an order of pre-emptive purchase, as it was of the view that the agreement between the parties was not a proper agreement. The court held that in exercise of its power to decide whether to purchase the property, the authority had other implied powers to make that power effective. It would be entitled to see materials and documents like the document of title, the agreement, etc., in order to satisfy itself whether the apparent consideration is proper or not in order to come to the conclusion whether to purchase the property or not. If it had reservations or doubts with regard to the legality of the proposed sale, it was open to it not to exercise its rights to purchase the property. Section 269UD, however, did not contemplate the rejection of any statement by the appropriate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls to exercise its power to purchase the property in question within the period prescribed by law, it had no option but to issue the no objection certificate in favour of the transferor and the transferee as a natural consequence. Reliance was placed upon a decision of the Delhi High Court in Mrs. Satwant Narang v. Appropriate Authority [1991] 188 ITR 656, wherein a submission was urged on behalf of the respondents that in case it was held that the impugned order of the appropriate authority was not on sound footing, it be given an opportunity to reconsider the statement of the petitioner filed in Form No. 37-I of the Act, and to make up its mind, if the Central Government would like to purchase the property on the apparent consideration in the agreement or not. Negativing the submission the court held that 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 had missed the bus and had passed the impugned order rejecting the permission on quite irrelevant considerations. In such circumstances, the court would not extend the period and frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(11) within 30 days and that authority could direct the Income-tax Officer to pass a fresh order. Relying upon the judgment of the Supreme Court in Director of Inspection of I. T. v. Pooran Mall and Sons [1974] 96 ITR 390, the court held that if the first order was made within the period of time fixed under section 132(5), thereafter if any direction was given under section 132(12) or by a court in writ proceedings, the order made in pursuance of such a direction would not be subject to the limitations prescribed under section 132(5). Any other consequence would take away the right made available to persons aggrieved by the order to prefer objections under section 132(11). It will also make any order that may be passed under section 132(12) ineffective. Further, the court, which exercises its powers under article 226 of the Constitution, has got inherent powers to make all such orders as are necessary for doing complete justice to the parties. Having considered the matter in the light of the Supreme Court decisions the High Court passed an order quashing the order passed by the Income-tax Officer under section 132(5) of the Act, but directed him to pass a fresh order under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the appropriate forum in a valid manner, the parties cannot be permitted to avoid the consequences that flow from such adjudication after the order attains finality. Reliance was placed upon the judgment of the Andhra Pradesh High Court reported in Mohammadi Begum v. CIT [1986] 158 ITR 662. That was also a case in which the original order of assessment was revised by the Commissioner in exercise of statutory power conferred upon him under section 264(3) of the Income-tax Act. The revisional order directed the Income-tax Officer to pass a fresh order in accordance with law, and such order was passed in pursuance of such direction. It was, therefore, held that in view of the fact that the original orders of assessment were not void and a fresh assessment was made pursuant to a positive direction given by the Commissioner under section 153(3) of the Income-tax Act, the assessment made pursuant to such a direction was a fresh assessment and was, therefore, not barred by limitation. Counsel for the Revenue then referred to the judgment of the Supreme Court in Superintendent (Tech. I) v. Pratap Rai [1978] 114 ITR 231. That was again a case where the Assistant Collector of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that where a period of limitation is prescribed for the passing of an order by the competent authority, but that order is expressly made subject to any order that may be passed in appeal or revision or subject to any order that may be passed by any higher authority, then the fresh order that may be passed pursuant to orders or directions issued by such appellate, revisional or other authority will not attract the bar of limitation, provided the initial order was passed within the period of limitation prescribed by law. That is because the Act itself contemplates an appellate or revisional forum with power to set aside or modify the order passed by a competent authority. The law itself envisages a scheme wherein, by the very nature of things, all subsequent orders passed pursuant to the exercise of statutory power by the authorities or an order passed by the High Court or the Supreme Court in exercise of writ jurisdiction, cannot be subject to the same law of limitation as is prescribed for the initial order. In other words, the law prescribes that the initial order must be passed within the period of limitation prescribed by law, but the law of limitation will not apply to any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulty arises. In the instant case, if the order of the High Court disposing of the writ petition in express terms had directed the prescribed authority to pass a fresh order under section 269UD(1) after complying with the principles of natural justice, I would have had no hesitation in holding that by reason of such an order the prescribed authority was empowered to pass a fresh order of pre-emptive purchase, notwithstanding the expiry of the period of limitation. However, the difficulty arises because all that the High Court observed after quashing the order was as follows : "It is, however, open to the Revenue to proceed further in the matter, in accordance with law". Counsel for the petitioners urged that after the order was quashed, the prescribed authority could proceed further in the matter in accordance with law by issuing a no objection certificate. The court did not consider the question as to whether in the facts and circumstances of the case, a right having accrued in favour of the petitioners, that should be defeated in the interest of justice. It was submitted that in the case, reported in Mangilal Jain v. Collector of Customs [1982] 133 ITR 762 (Mad) there was a clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o so. The prescribed authority has proceeded on the basis that it is the direction of the High Court which empowered him to pass a fresh order, but a reading of the order leaves no room for doubt that the prescribed authority could proceed further only in accordance with law. So far as the provisions of the Act are concerned, it is not disputed that but for the direction of the High Court, a fresh order of pre-emptive purchase could not be passed after the expiry of the period prescribed for passing such an order. I am, therefore, of the view that the order passed by the High Court did not by its own force authorise the prescribed authority to pass a fresh order of pre-emptive purchase despite the expiry of the period of limitation prescribed by law. It authorised the prescribed authority only to proceed further in a manner permitted by law. The law did not permit the prescribed authority to pass an order after the expiry of the period of limitation prescribed under the Act and, therefore, he could not pass a fresh order. It is true that the High Court, in exercise of its writ jurisdiction, may pass all such orders as are necessary for doing complete justice to the parties. Equitab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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