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TMI Blog2007 (9) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ners. R. Asokan for the respondents. JUDGMENT The judgment of the court was delivered by J.P. Devadhar, J.- 1. Whether the Appropriate Authority was justified in passing the impugned order on 25/2/1993 under Section 269 UD (1) of the Income Tax Act ('the Act' for short) for purchase of Flat No.11 (3rd floor) Vatika, Vile Parle Vatika CHS Limited, Baptista Road, Vile Parle (West), Bombay 400 056 ('the said flat' for short) is the question raised in this petition. 2. The relevant facts are that, by an agreement dated 21 st November, 1988, the petitioners had agreed to purchase the said flat for consideration of Rs.17,21,000/-. On an application made in Form No.37-I, the Appropriate Authority passed an order under Section 269 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iteria. Secondly, out of three sale instances referred to in the impugned order, the first sale instance though relatable to the flat in question, the difference in the price variation being less than 15%, the said flat could not be purchased based on the first sale instance. As regards the second and third sale instances are concerned, they pertained to the flats situated at Vile Parle (East) which are not at all comparable with the flat in question and, therefore, the impugned order cannot be sustained based on second and third sale instances set out in the impugned order. Accordingly, Mr. Jain submitted that the impugned order passed in violation of the dictum laid down by the Apex Court in the case of C.B. Gautam [1993] 199 I.T.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter back to the Appropriate Authority with a specific direction to decide the matter afresh in the light of the directions given by the Apex Court in the case of C.B.Gautam [1993] 199 I.T.R. 530. In C. B. Gautam's case[1993] 199 I.T.R. 530. the Apex Court categorically held that Chapter XX-C can be resorted to only where there is significant under valuation of the property to the extent of 15% or more in the agreement of sale, as evidenced by the apparent consideration being lower than the fair market value by 15% or more. Admittedly, there is no finding recorded in the impugned order to the effect that there is under valuation to the extent of 15% or more of the fair market value. Thus, the impugned order passed in breach of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of the property in question is determined in the light of all the attending circumstances, it is not only difficult but impossible to draw inference of under valuation. In the present case, there is nothing on record to show as to how the second and third sale instances are comparable with the property in question. Moreover, there is nothing on record to show that after considering the merits and demerits of the sale instances with the property in question, the appropriate authority had come to the conclusion that there is undervaluation by 15% or more than the fair market value. Reliance placed by the learned counsel for the Revenue on the decision of this Court in the case of Smt.Vimaladevi [1994] 208 I.T.R. 734 (Bom) does not su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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