TMI Blog2000 (8) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... e have been conducted by the successive competent authorities, also call for judicial review of those proceedings by this court under article 227. A few relevant facts as unfolded by the pleadings and the documents of the parties are these : The petitioner along with three others, namely, Tulsiram Khandelwal, Smt. Ratanbai Khandelwal and Krishna Khandelwal, on October 31, 1980, purchased a house No. 22/3, South Tukoganj, Street No. 1, Indore, from Haji Gulam Ali and his sons for an apparent consideration of Rs. 13.25 lakhs through a registered sale deed (annexure P/1). The sale deed though executed on October 31, 1980, was registered on November 1, 1980. Respondent No. 2---the competent authority-appointed by the Central Government under section 269B of the Act, on July 23, 1981, drew up a preliminary notice (annexure P/3) under sub-section (1) of section 269D and got it published in the Gazette of India on August 22, 1981 (vide annexure P/2), thus initiating action for acquisition of the aforesaid house under Chapter XX-A of the Act. From this notice it transpires that the competent authority was of the view that the apparent consideration stated in the sale deed was less tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents have filed a reply in oppugnation of the averments made in the petition. It is submitted that the reasons for initiation of the proceedings under section 269D(1) have been stated clearly in the notice (annexure P2/3) itself. The proceedings, it is explained, were initiated after obtaining a valuation report (annexure R/1) from a recognised valuer (seated at Jaipur) which furnished valid ground for initiation of acquisition proceedings against the petitioner and others. The notice (annexure P/1) was published within the statutory period of limitation (nine months) prescribed under section 269D and so any subsequent delay in issuance of notices to the parties or in conclusion of the proceedings are of no legal consequence. Lastly, it is contended that Chapter XX-A provides for a complete code for adjudication of the acquisition proceedings and also for the effective remedy by way of two appeals against any order which may be passed by the competent authority. The petitioner, therefore, cannot be allowed to take recourse to the writ jurisdiction of this court without first exhausting the said alternative remedies. I have heard Shri G. M. Chaphekar, learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other assets which have not been or which ought to be disclosed by the transferee for the purpose of the Indian Income-tax Act, 1922 (11 of 1922), or this Act or the Wealth-tax Act, 1957 (27 of 1957), the competent 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 than fifteen per cent. of such apparent consideration. (2) In any proceedings under this Chapter in respect of any immovable property, (a) where the fair market value of such property exceeds the apparent consideration therefor by more than twenty-five per cent. of such apparent consideration, it shall be conclusive proof that the consideration for such transfer as agreed to between the parties has not been truly stated in the instrument of transfer ; (b) where the property has been transferred for an appar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to initiate proceedings for acquisition and no notice as envisaged under section 269D can be issued by him. A Division Bench of the Calcutta High Court in Competent Authority, IAC of I. T. v. Smt. Bani Roy Chowdhury [1981] 131 ITR 578, has made the legal position on the point more luculent in the following terms : "Under sub-section (1) of section 269C, before initiating proceedings for the acquisition of any immovable property which has been transferred, the competent authority must have reason to believe in regard to four matters, namely, (i) the immovable property has a fair market value exceeding Rs. 25,000, (ii) the apparent consideration is less than such fair market value by more than 15 per cent. of the apparent consideration, (iii) the consideration as agreed to between the parties has not been truly stated in the instrument of transfer, and (iv) such untrue statement has been made with the object of evasion of taxes as mentioned in clauses (a) and (b). Sub-section (1) consists of two stages, the first one is for the formation of belief by the competent authority and the second one is for the initiation of proceedings. The second stage is dependent on the first. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner and other parties to the transaction in question in August, 1986. The petitioner had received the notice on August 28, 1986. It is thus clear that there was no case file in existence before August, 1986. The drawal of notice and its publication on July 23, 1981, and August 22, 1981, was thus a mere formality inasmuch as the notice thereafter remained stale for a long period of five years. Section 269D(1) provides that the proceedings for the acquisition, under Chapter XX-A shall be initiated by a notice to that effect published in the Official Gazette. The proviso to this sub-section prescribes a nine-month period of limitation for initiation of proceedings from the end of the month in which the instrument of transfer in question is registered under the Registration Act, 1908. Sub-section (2) further mandates that a notice under sub-section (1) shall be caused to be served on the transferor, the transferee and the person in occupation of the property in question. A reading of these two sub-sections in juxtaposition would make it clear that for initiation of proceedings not only the notice for acquisition is required to be published in the Official Gazette, but it is also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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