TMI Blog2010 (3) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... me forward with this petition to quash proceedings in such case as against them. 2. In such case, four persons are accused of offences under sections 269UC and 269UL(2) of the Income-tax Act, 1961 (hereinafter referred as "the Act") punishable under section 276AB of such Act. The accused first and second in the case are husband and wife. Being persons separately assessed to tax, they held individual properties comprising flats and independently have sold their respective holdings to the third accused, viz., M/s. Sangeetha Associates represented by P. Rajagopal and the fourth accused P. Rajagopal in his individual capacity. 3. Heard the learned counsel for the petitioners and Mr. K. Ramasamy, learned Special Public Prosecutor (income-tax cases). 4. The prosecution as against the first accused in the case has been quashed by order of this court in Crl. O. P. No. 16623 of 2006 dated December 3, 2009 (R. Baba Shankar v. ITO [2010] 321 ITR 113 (Mad)). I have had the benefit of perusing such order and I find that the contentions now raised by either counsel excepting for one additional submission by the learned Special Public Prosecutor (income-tax cases) are the same. When the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the undivided above share was men-tioned in the sale deed as Rs. 15 lakhs. The total extent of the landed property as a whole was mentioned under Schedule A of the sale deed as 13,642 sq. ft. and undivided share of the 933 sq. ft. was mentioned under schedule B of the sale deed. (d) Accused No. 2 on the same date on March 28, 2002, by the registered sale deed No. 774 of 2002 has transferred her undivided right, title and interest having a proportionate share 500/22,000 of 13,642 sq. ft. of the entire landed property. The market value of the undivided above share was mentioned in the sale deed as Rs. 15. lakhs. The total extent of the landed property as a whole was mentioned under schedule A of the sale deed as 13,642 sq. ft. and undivided share of the 933 sq. ft. was mentioned under schedule B of the sale deed. (e) Though two separate sale deeds have been executed by accused Nos. 1 and 2 in favour of accused No. 3 the property conveyed was a single unit measuring a total area of 13,642 sq. ft. as mentioned in schedule A of each sale deed. Therefore, the market value of the property as a single unit which was transferred by accused Nos. 1 and 2 to accused No. 3 was Rs. 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 lakhs shall be effected except after an agreement for transfer is entered into between the transferor and the transferee. The petitioner herein even according to the prosecution has sold his property through a separate registered sale deed for Rs. 15 lakhs only. Thus, there is absolutely no violation of section 269UC of the Income-tax Act. (b) Further, section 269UC(2) also is not attracted as it states that no one should transfer the property unless he gets a no-objection certificate from the Appropriate Authority on the submission of a statement as contemplated under section 269UC(3) of the Income-tax Act. The above provision is also not attracted since it applies only when section 269 of the Income-tax Act can be invoked. Since the transaction of the petitioner is less than Rs. 25 lakhs none of these provisions are attracted. 7. The learned counsel further submitted that the petitioner is an independent income-tax assessee and similarly the second accused, who is the wife of the first accused, is also an independent income-tax assessee and both of them have honestly shown the purchase and sale of the property concerned promptly in their respective income-tax returns for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated, correctly, that the total apparent consideration for the transfer of the said immovable property was Rs. 47 lakhs. This leaves us in no doubt at all that what was to be transferred was the said immovable property and that the consideration for such transfer was the sum of Rs. 47 lakhs. It is of no consequence that the second and third respondents owned the said immovable property as tenants-in-common or that this is how they had shown their ownership in their income-tax returns. We are, therefore, of the opinion that the High Court was in error in concluding that what had been sold by the second and third respondents to the first respondent was their equal share in the said immovable property, that the apparent consideration was, therefore, less than Rs. 25 lakhs and that, therefore, the provisions of Chapter XX-C would not apply. We should add that even if the agreement of transfer had been so drawn as to show the transfer of the equal shares of the second and third respondents in the said immovable property, our conclusion would have been the same for, looked at realistically, it was the said immovable property which was the subject of the transfer." 11. I have consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wners of 500/22,000 of 13,642 sq. ft. each. It could be seen from the sale dead that accused No. 1 and accused No. 2 have purchased their respective share of 500/22,000 of 13,642 sq. ft. from their respective vendors. But in the sale deed the entire property of 13,642 sq. ft has been described in schedule A and schedule B, is the property conveyed under the registered sale deed No. 773 of 2002, dated March 28, 2002, standing in the name of accused Nos. 1 and 2 and it contains the description of the property, viz., 500/22,000 share of 13,642 sq.ft. purchased individually by the accused Nos. 1 and 2 and the same have been sold by them under the two independent sale deeds bearing Document No. 773 of 2002, dated March 28, 2002 and Document No. 774 of 2002, dated March 28, 2002. 17. Since individual undivided shares purchased by accused Nos. 1 and 2 have been dealt with by them under the aforesaid two sale deeds, it cannot be said that a single unit has been dealt with by them under two different sale deeds by splitting the single unit. Simply because, accused Nos. 1 and 2 happened to be the husband and wife, the prosecution seems to have been launched by clubbing two properties sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and third respondents. The High Court of Gujarat upheld the said contention. The Revenue preferred an appeal to the apex court. In the above factual background, the apex court has considered the issue and observed that what has to be seen for the purposes of attracting Chapter XX-C is what is the property which is the subject-matter of transfer and what is the apparent consideration for such transfer. This has to be seen in a real light with due regard to the object of the Chapter and not in an artificial or technical manner. 21. The apex court has pointed out that in that case, the said agreement is for the sale of the said immovable property. That the equal shares of the second and third respondents therein are to be transferred to the first respondent is a necessary incident of such sale. The parties to the transaction filed Form No. 37-I with the Appropriate Authority and correctly stated that what was being sold was the said immovable property and not the one-half shares of the second and third respondents therein. It also stated correctly that the total apparent consideration for the transfer of the said immovable property was Rs. 47 lakhs. From that, the apex court came t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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