U. S. Awasthi v Inspecting Assistant Commissioner of Income Tax (Acquisition Range), Lucknow, and Another

Allahabad High Court

11 July 1975

CMW.P. No. 7680 of 1974

The Judgment was delivered by R. L. GULATI J.

R. L. GULATI J.

This and the connected writ petition arise out of a common set of facts and involve a common question of law and they are, therefore, being disposed of by this common judgment The petitioner No. 1, Sri U. S. Awasthi, is a practising advocate at Allahabad and petitioner No. 2 is his wife. They, along with some other persons, purchased bungalow No. 15, Sarojini Naidu Marg, Allahabad, together with the vacant land. The petitioners purchased vacant land measuring about 6, 000 sq. yards for a sum of Rs. 37, 150.40, the price being Rs. 6.20 per sq. yard. The vendors are Sri M. L. Dave, an Assistant Secretary in the Ministry of Defence, New Delhi, and Srimati Sudha Dave, widow of late Sri C. M. Dave. The sale deed was executed and registered on 29th December, 1973. 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 petitionA large number of grounds have been raised but before dealing with these grounds it is necessary to notice the relevant provisions of law. Chapter XXA, covering sections 269A to 269S, was added to the Act by the Taxation Laws (Amendment) Act, 1972 (Act No. 45 of 1972), with effect from 15th November, 1972. It provides for the acquisition of immovable properties in certain cases of transfer to counteract the evasion of tax. Section 296C provides

“269C. Where the competent authority has reason to believe that any immovable property of a fair market value exceeding twenty-five thousand rupees has been transferred by a person …… to another person …… for an apparent consideration which is less than the fair market value of the property and that the consideration for such transfer as agreed to between the parties has not been truly stated in the instrument of transfer with the object of–

(a) facilitating the reduction or evasion of the liability of the transferor to pay tax under this Act in respect of any income arising from the transfer ; or

(b) facilitating the concealment of any income or any moneys or other assets which have not been or which ought to be disclosed by the transferee for the purposes of the Indian Income-tax Act, 1922, or this Act or the Wealth-tax Act, 1957

the compentent authority may, subject to the provisions of this Chapter, initiate proceedings for the acquisition of such property under this Chapter

Provided that before initiating such proceedings, the competent authority shall record his reasons for doing so

Provided further that no such proceedings shall be initiated unless the competent authority has reason to believe that the fair market value of the property exceeds the apparent consideration therefor by more then fifteen per cent. of such apparent consideration.”Section 269D provides for a preliminary notice. Sub-s. (1) says

“(1) The competent authority shall initiate proceedings for the acquisition, under this Chapter, of any immovable property referred to in section 269C by notice to that effect published in the Official Gazette

Provided that no such proceedings shall be initiated in respect of any immovable property after the expiration of a period of nine months from the end of the month in which the instrument of transfer in respect of such property is registered under the Registration Act, 1908 (16 of 1908)…”

Sub-s. (2) then provides that the competent authority shall cause a notice under sub-s. (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 competent authority, namely, the Assistant Commissioner of Income-tax, Acquisition Range, Lucknow, on the ground that the fair market value of the property was more than Rs. 25, 000 and the full sale consideration had not been shown in the sale deed. This, in the opinion of the competent authority, had been done in order to facilitate the evasion of tax by the vendors as well as by the petitionersOn behalf of the respondents a preliminary objection his been raised. It is urged that only a show-cause notice has been issued to the petitioners and no final order has yet been passed. The petitioners can file their objections and thereafter can lead evidence to substantiate such objections and in case they are not satisfied with the final order they have the right of appeal. In other words, it was urged that the petition is premature and, in any case, is barred because of the existence of an alternative remedy. It is true that the question with regard to the fair market price is a question of fact which has to be decided by the competent authority on the basis of evidence brought on record and such a question cannot be agitated or decided in a writ petition. But, if the contention of the petitioners is that initiation of proceedings itself is without jurisdiction for the reason that it is barred by time or that it has been made without the existence of condition precedent then certainly this court can intervene and prevent the further exercise of jurisdiction in order to avoid harassment, inconvenience and unnecessary expenditure. We have, therefore, decided to examine the contentions of the parties on merits

The first ground of attack is that there was no material before the competent authority to form the belief that the fair market value of the property in question had not been truly stated in the transfer deed. It is urged that before the competent authority can initiate proceedings, it must have adequate material before it to form the belief that the fair market value of the property which has been the subject-matter of a sale exceeds Rs. 25, 000 and the consideration shown in the sale deed has been understated by at least 15 per cent. It is only then that the provisions contained in Chapter XXA are attracted. It is submitted that these initial requirements are lacking in the instant case and the competent authority has, as a matter of routine, issued a 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 recordedShri 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 understated in the sale deed. In this connection I may mention that land rate has been adopted by the valuation officer, Allahabad, in the case of G.I.R. No. 58-A, Smt. Sheokali Devi and others at Beli Road, Allahabad, which was sold on September 10, 1973, at Rs. 50 per sq. yard, which is a free-hold one. The area of Sarojini Naidu Marg which is in Civil Lines is reported to be in a better situation. In another case in G.I.R. No. 17-S, Sri Anil Kumar Sidhwani & others at Chintamani Road, Allahabad, sale rate was adopted at Rs. 50 per sq. yard by the valuation officer. Sale was effected on April 18, 1973. The land in this case was also freehold. However, considering the fact that the present land is a leasehold one and the lease is for a period of about 14 years only, I estimate the fair market value of the land at Rs. 59, 920 for 5, 992 sq. yards, which has been arrived at by applying a rate of Rs. 10 per sq. yard. The case may kindly be referred to the valuation officer for its proper valuationSubmitted

(Sd.) Gopi Chand

I. T. I. (Acq.)

19-8-74.”

On the foot of this report Sri K. N. Misra passed the following order

“Seen the report and considered also the sale deeds and other documents on file. Start proceedings under section 269D(1)

(Sd.) K. N. Misra

19-8-74.”

On the same date he passed a separate order in the following words, a copy whereof is annexure “B” to the counter-affidavit and is reproduced below

“Seen inspector’s report submitted by him. This case appears to be fit for initiation of acquisition proceedings. Send notice to Government Press for publication in the Gazette of India

(Sd.) Illegible

I. A. C. (Acq.).”

From these documents it is clear that the competent authority did not act arbitrarily or without any material. The inspector had made a detailed report disclosing the reason for assessing the property at Rs. 10 per sq. yard. In our opinion, this constituted sufficient material for the competent authority to make up its mind for the initiation of proceedings. The fact that the inspector at the end of the report recommended the case to be referred to the valuation officer for proper valuation does not, in any way, detract from the weight of the report. It must be remembered that at the stage of initiation of proceedings, the competent authority is expected to have a prima facie case only. 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 proceedingsTo 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 date of the notice was made. We, however, do not think it necessary to ask for a further counter-affidavit from the respondents, because, in our opinion, nothing turns on this fact. May be the notice had been prepared beforehand by the office in anticipation of the inspector’s report but they were not issued until the inspector’s report had been received and examined by the competent authority. The respondents could have easily destroyed the notice originally prepared and could have issued a fresh one. Had the notice been issued before the inspector’s report the petitioners’ grievance would have been justified. In these circumstances we are not prepared to draw an inference that the impugned notice had been issued by the competent authority without applying his mind or without any material before him

It was then urged that the consideration shown in the sale deed was fair and true and there was no valid reason for the petitioners to understate the price in the sale deed because according to the petitioners the price had been fixed in the year 1968 long before Chapter XXA came to be added. This has been encountered by saying that there was no prior agreement of sale and the petitioners themselves had not disclosed any such agreement in the declaration furnished by them in Form No. 37-G under section 269P(1) of the Act as prescribed by rule 48G. The petitioners had scored out the columns relating to the information with regard to an agreement of sale. It has further been stated that in any case no such agreement could be taken notice of unless it was a registered one. In our opinion, this controversy is wholly irrelevant at this stage. The tendency to understate the sale price of immovable property in sale deeds with a view to evading tax and utilising unaccounted money was prevalent long before Chapter XXA was added to the statute. Chapter XXA merely provided a mode for the prevention of such evasion by giving an option to the Government to acquire the property in case it was considered that its price had been understated in the sale deed. Even assuming, therefore, that the petitioners did enter into some sort of agreement with the vendors with regard to the price of the land in dispute, the motive to understate the price was very much there even before Chapter XXA was introducedThe petitioners have also complained of discrimination. They say there 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 Naithani but no action has been taken against the remaining vendees because the competent authority did not have reason to believe that the fair market value of the property was in excess of Rs. 25, 000 on the material available to him at that time. We have already noticed that proceedings under Chapter XXA are contemplated only in respect of properties whose fair market value exceeds Rs. 25, 000. On the basis of the inspector’s report the fair market value of the land purchased by Sri V. D. Singh, K. N. Tripathi and B. N. Sapru, did not exceed Rs. 25, 000 and, as such, the competent authority was not authorised to initiate proceedings against them. Proceedings have been initiated against the remaining two as the property purchased by them is admittedly worth more than Rs. 25, 000. The charge of discrimination, therefore, fails and is rejected

The petitioners have raised another contention. It is urged that soon after the sale deed was registered they took steps to set up a building on the land purchased by them and at the time when proceedings under Chapter XXA were initiated against them, they had almost completed the building. The competent authority had jurisdiction only to take acquisition proceedings with regard to the vacant land but it had no jurisdiction to take such proceedings in respect of a completed building and, in any case, there is no provision in the Act for payment of compensation with regard to a building in case the vacant land was sought to be acquired. It is true that some sort of structure had been set up by the petitioners before the impugned proceedings had been initiated against them. There is a provision in the Act for payment of compensation in case some addition or alteration to the property had been made between the time of its purchase and initiation of proceedings under Chapter XXA but whether the construction of an altogether new building on a vacant land amounts to addition or alteration to the property is a moot question.

However, we do not propose to decide this question because it is not necessary for the disposal of the present writ petition. We do wish to observe that the competent authority must act as quickly as possible to prevent further investment on the property sought to be acquired. If this is not done, undue hardship is likely to arise. At the same time we think that a person who purchases immovable property 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 buildingThe 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-s. (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 from the end of the month in which the sale deed is registered. In other words, it is the publication of the notice in the prescribed manner which confers jurisdiction upon the competent authority to take further proceedings under Chapter XXA. Sub-s. (2) of section 269D no doubt requires the competent authority to cause a notice under sub-s. (1) to be served upon the transferor, the transferee and other interested persons. It also requires a notice to be published by affixing a copy thereof in a conspicuous place in the office of the competent authority and on a conspicuous part of the property itself but these notices are not jurisdictional notices. They have to be issued after the preliminary notice has been published in the Official Gazette within the statutory time. If a notice is not published in the Official Gazette within the prescribed time, the issuance of notice to the vendors and vendees and other interested persons and affixing notices in the office of the competent authority and on a conspicuous part of the property will not vest the competent authority with the jurisdiction to commence proceedings under Chapter XXA of the Act. These notices are ancillary notices meant only to bring to the notice of the persons concerned the initiation of proceedings under Chapter XXA. The notices contemplated by sub-s. (2) do not provide an alternative mode of publication of the preliminary notice. This being the state of law what we have to see is as to whether the requirements of law as contained in section 269D(1) have been complied with, viz., whether a preliminary notice had been published in the Official Gazette within a period of 9 months from the end of the month in which the sale deed was registeredNow, the sale deed was registered on the 29th December, 1973. On the 19th August, 1974, the competent authority directed the publication of the preliminary notice under section 269D(1) in the Official Gazette. The notice was actually printed in the Gazette on September 28, 1974. This was within nine months but the Gazette was not available for sale until long after 9 months had expired. This has been stated by the petitioners in paragraph 18 of their rejoinder-affidavit. This is what they have stated

“The petitioners have learnt from Sri Pramod Swarup, Advocate on record, Supreme Court of India, and from the record of Writ No. 105 of 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 becomes available to the public then clearly the publication of the preliminary notice in the instant case was made after 30th September, 1974, which was the date on which the period of 9 months expiredThe contention of the learned counsel for the respondents is that the publication was complete on 28th September, 1974, when the notice was printed in the Official Gazette. We have to see whether this contention is correct. In Makhdoom Khan v. District Magistrate, Moradabad 1974 ALJ 412 (All) one of us (hon’ble C.S.P. Singh J.) held that the publication of a notice in the Official Gazette as required by paragraph 6 of the U.P. Notified Areas (Conduct of Election of President & Election Petitions) Order, 1964, would not be complete unless the Gazette containing the notification became available to the public. This decision was upset by a Division Bench on special appeal in Akhtar Hussain v. District Magistrate, Moradabad (Special Appeal No. 87 of 1974 decided on April 5, 1974), on the ground that even though there was non-compliance of the provisions of para. 6(1) inasmuch as the notification fixing the election programme had not been published in the Official Gazette before the date of nomination yet since the programme was otherwise notified for the information of the public and for the members concerned under paragraph 6(2), the non-compliance with the requirements of paragraph 6(1) did not vitiate the election. In other words, it was held that the requirement of publication in the Official Gazette was not a mandatory requirement and if the programme had otherwise been notified by individual notices, etc., under paragraph 6(2) the requirement of the law would be deemed to have been met. This case came up for further consideration before a Full Bench in Hiralal v. District Magistrate, Etah (Civil Misc. Writ No. 8935 of 1974, decided on 19th March, 1975 [FB]). The Full Bench held that the requirement of law contained in paragraph 6(1) was mandatory inasmuch as publication in the Official Gazette was the only method prescribed for fixing an election programme ; the giving of notices under paragraph 6(2) could not dispense with the requirement of the notification in the Official Gazette. It was also held that the publication of a notification was complete only when the Gazette containing the notification became available to the public. Mere printing of the notification 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-s. (1) whereof is in the following words

“269E. (1) Objections against the acquisition of the immovable property in respect of which a notice has been published in the Official Gazette under sub-s. (1) of section 269D may be made–

(a) by the transferor or the transferee or any other person referred to in cl. (a) of sub-s. (2) of that section, within a period of forty-five days from the date of such publication or a period of thirty days from the date of service of notice on such person under the said clause, whichever period expires later ;

(b) by any other person interested in such immovable property, within forty-five days from the date of such publication.”

Thus, it is clear that the objections are contemplated only against the acquisition of immovable property in respect of which a notice has been published in the Official Gazette. It does not envisage objections in respect of property where no notice has been published in the Official Gazette even if notices have been served upon the interested persons under sub-s. (2) of section 269D. The publication of the notice in the Official Gazette within the meaning of section 269E will obviously be the publication as contemplated by sub-s. (1) of section 269D, namely, that the notification not only must be printed in the Gazette but the Gazette containing the notification must also be available to the public within the statutory period. We have already stated above that according to the averments of the petitioners in the rejoinder-affidavit, no Gazette containing the notification was received in the office of the Controller of Publications, Civil Lines, Delhi, before 4th October, 1974, and was not available to the public before 14th October, 1974. This being the state of affairs, we have no hesitation in holding that the competent authority did not acquire jurisdiction to continue the proceedings as the proceedings had not been commenced within the statutory periodIn the result, the petitions succeed and are allowed. The notice dated 19th August, 1974, initiating acquisition proceedings u/s. 269 of the Income-tax Act are quashed. The petitioners are entitled to the costs