9911796707
TMI Blog1975 (7) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... On 19th August, 1974, a notice under section 269D(1) of the Income-tax Act, 1961 (hereinafter referred to as " the Act "), was issued to the petitioners by the Inspecting Assistant Commissioner of Income-tax, Acquisition Range, Lucknow. It was stated in the notice that the fair market value of the property exceeded the apparent consideration thereof by more than 15 per cent. and that the full consideration had not been shown in the sale deed, and, therefore, proceedings were being initiated under section 269C of the Act for the acquisition of the aforesaid property. The petitioners were required to file objection, if any, in writing, within a period of 45 days from the date of the publication of the notice in the Official Gazette or within a period of 30 days from the date of the service of the notice on them whichever period expired later. The petitioners submitted a reply and later on filed the present writ petition on the ground that they were advised that the initiation of proceedings was wholly without jurisdiction and, as such, could be challenged by means of a petition. A large number of grounds have been raised but before dealing with these grounds it is necessary to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall cause a notice under sub-section (1) in respect of any immovable property to be served on the transferor, the transferee, the person in occupation of the property, if the transferee is not in occupation thereof, and on every person whom the competent authority knows to be interested in the property. It also provides for the publication of the notice in the office of the competent authority by affixing a copy thereof to a conspicuous place and in the locality in which the immovable property to which it relates is situate by affixing a copy thereof to a conspicuous part of the property and also by making known in such manner as may be prescribed the substance of such notice at a convenient place in the said locality. Section 269E then provides for objections and section 269F for hearing of the objections and for passing of a final order. It may be mentioned here that the competent authority has been defined in section 269A to mean an Assistant Commissioner of Income-tax authorised by the Central Government under section 269B to perform the functions of a competent authority under this Chapter. It is under these provisions that the impugned proceedings were initiated by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... printed notice to the petitioners without applying his mind to the facts of the case. It is further urged that before the initiation of proceedings the competent authority had to record its reasons but no such reasons were recorded. Shri Bishambhar Nath, who is the competent authority at present, has filed a counter-affidavit and in the connected writ petition counter-affidavit has been filed by Sri K. N. Misra, who was the competent authority, who initiated the proceedings. From these two counter-affidavits it appears that one Sri Gopi Chand, Inspector of Income-tax, made a report dated 19th August, 1974, to the effect that the fair market value of the land in dispute should be Rs. 10 per sq. yard. A copy of this report has been filed as annexure " A " to the counter-affidavit and since it is material, it is reproduced below : " One of the transferor, Sri M. L. Dave, who is Joint Secretary in the Ministry of Defence at New Delhi, is karta of his Hindu undivided family and the other transferor, Smt. Sudha Devi, is karta of her own branch. The land is situated far off the market towards Rajapur. Sale rate has been disclosed at Rs. 6.20 per sq. yard which appears to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not expected that the material available at that stage should be of a conclusive nature. The correct valuation of the property has to be arrived at after hearing the objections and considering the evidence which may be brought on record by either side. Annexure " B " reproduced above contains the reasons of the competent authority which it is required to record in writing, before initiating proceedings. Thus, in our opinion, both the requirements of law in this respect have been fully complied with and no fault can be found with the initiation of the proceedings. To show that the competent authority had not applied its mind and had issued the impugned notice mechanically, a photostat copy of the notice under section 269D(1) has been annexed to the writ petition and the original notice has also been produced before us. It does appear that the notice was prepared on 10th August, 1975, the figure 10 appears, later on, to have been changed to 19. This fact has been stated by the petitioners in their rejoinder-affidavit and, as such, there is no reply of the respondents in their counter-affidavit. Therefore, we do not know as to under what circumstances the interpolation in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are, besides the petitioners, the following other persons who have also purchased land out of the same premises for prices mentioned against their names and no action has been taken against them : --------------------------------------------------------------------------------------------------------------------------------------------------- Name Area Price Date of the of land of execution purchaser of sale deed --------------------------------------------------------------------------------------------------------------------------------------------------- Rs. Sri V. D. Singh, 1,347 sq. yds. 8,350 29th Dec., 73. Advocate Sri K. N. Tripathi 923 sq. yds. 5,723 do. A. N. Sapru 2,104 sq. yds. 13,045 do. B. N. Sapru Sri A. D. Giri 5,200 sq. yds. 32,000 do. Smt. Sarla 4,739 sq. yds. Naithani plus buildings standing thereon ---------------------------------------------------------------------------------------------------------------------------------------------------- In paragraph 5 of the counter-affidavit the competent authority has stated that proceedings under Chapter XXA have been initiated against Sri A. D. Giri and Smt. Sarla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worth more than Rs. 25,000 must wait for a reasonable time, if not for full 9 months, before spending any further money on it so that in a case of acquisition he is not put to any further loss. In the instant case the competent authority did act with undue delay and at the same time the petitioners also acted with undue haste in setting up a building. The last contention put forward on behalf of the petitioners is that there was no publication of the notice within a period of 9 months as required by section 269D of the Act and for that reason the proceedings against the petitioners are void ab initio. Sub-section (1) of section 269D provides for a preliminary notice. It is the preliminary notice which initiates the proceedings and the preliminary notice has to be given by publication in the Official Gazette. Unless this preliminary notice is published in the Official Gazette within 9 months from the end of the month in which the instrument of transfer is registered, proceedings cannot be said to have been initiated. Thus, the condition precedent for the initiation of proceedings is the publication of the preliminary notice in the Official Gazette within a period of nine months f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 pending in this Court that the Gazette dated September 28, 1974, was not despatched from the Government Press at Faridabad till several days after 28th September, 1974, and was received in the office of the Controller of Publications, Civil Lines, Delhi, on 4-10-1974. It was available for sale at the counter to the public on 14th October, 1974. It was despatched by post to the regular subscribers also after 14th October, 1974. The Gazette was received in the judges library, High Court, Allahabad, on October 17, 1974. It was received in the office of the Advocate-General, U.P., Allahabad, on or after October 17, 1974, and it was received in the High Court Bar Association, Allahabad, on or after October 20, 1974, and it was also received in the Accountant-General's office on or after October 17, 1974." These averments have not been controverted. From these averments the earliest date upon which the Gazette could be said to be available to the public was 4th October, 1974, when it was received in the office of the Controller of Publications, Civil Lines, Delhi. If the publication of a notification in the Gazette can be said to have taken place on the date when the Gazette bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification was not publication. In our opinion, the same is the position in the case before us. The initiation of proceedings under Chapter XXA of the Act can be done only by the publication of the preliminary notice in the Official Gazette within the prescribed time. The fact that individual notices were given to the petitioners within the prescribed period will not dispense with the requirement of the publication of the notice in the Official Gazette. We have already indicated that the issuance of a notice to the transferee or transferor and other interested persons and its affixation on the notice board in the the office of competent authority or at a conspicuous part of the property in question do not provide an alternative method of initiating the proceedings. The requirements contained in sub-secti on (1) of section 269D of the publication of the notice in the Official Gazette within the prescribed time is a mandatory requirement and if this requirement is not met the entire proceedings fail. This is clear from section 269E, sub-section (1) whereof is in the following words : " 269E. (1) Objections against the acquisition of the immovable property in respect of which a no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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