TMI Blog1996 (3) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... ve purchase-of the property under section 269UD(1) of the Act. It appears from the contentions raised in the petition that the petitioner and respondent No. 2 are co-owners while respondent No. 3 is a developer who entered into a development agreement only with respondent No. 2 on November 16, 1994, vide annexure-'A'. The said agreement was submitted before the appropriate authority along with Form No. 37-I of the Act. The appropriate authority opted to purchase the property and sought possession thereof. Respondent No. 2 was claiming that he is the absolute owner of the property in question which was owned by the late Bhavanarao Panth and one of the common descendants of the said Bhavanarao Panth raised dispute and a suit for declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner's interest in the said property, the property could not have been agreed to be sold. It is contended by the petitioner that in view of the agreement executed by and in between respondents Nos. 2 and 3, respondent No. 1, under Chapter XX-C of the Act scrutinised the form and respondent No. 1 held that the consideration shown therein is less than the value of the property, and passed an order on February 24, 1996, for compulsory purchase under section 269UD of the Act, which is followed by another order dated February 24, 1995, under section 269UE(2) of the Act, annexure "E", requiring the second respondent to handover the possession of the whole property including the property in possession of the petitioner. Learned advocate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 86,000 sq. ft. and it is further stipulated that another half of the F. S. I., i.e., 86,000 sq. ft. would be available to the developer for construction and disposable at the discretion of the developer. It further appears that the developer will construct 86,000 sq. ft. and will give to the owner of the land as part of the consideration. Thus, the authority has taken the entire F. S. I. at 1,72,000 sq. ft. Observing these, the appropriate authority in its order has held that : " Assuming that construction would be 'I' class with fairly good specifications, the cost, considering the average cost of construction in Pune, would not go beyond Rs. 400 per sq. ft. We would, therefore, take the rate of Rs. 400 per sq. ft. as the fair cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned transaction is with a view to evade tax. Mr. Soparkar, the learned advocate submitted that in the case of Sarwarben Temas Khambata v. Appropriate Authority [1995] 216 ITR 850, this court has held that in order to draw an inference of undervaluation, it is necessary to determine first the fair market value of the property in question in the light of the attending circumstances. Without doing so, it is not only difficult, but impossible to say that the apparent consideration is lower than the fair market value by 15 per cent. or more. The figure of fair market value cannot be left to conjectures and surmises, and to justify the order under section 269UD(1) of the Act, the appropriate authority must come to a definite conclusion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made before it. The rejection of submissions made by the vendors or the transferee or the persons interested in the property, does not lead to a consequence that grounds for making pre-emptive purchase exist. The sine qua non is that reasons must exist, on the material placed before it, for supporting the action taken for pre-emptive purchase under section 269UD of the Act. The order clearly falls short of this requirement. " Reading these two decisions together, Mr. Shelat, learned counsel for the Revenue, was not in a position to say that the order passed by the authority is in accordance with law, apart from the fact that the order is passed without hearing the petitioner. Mr. Soparkar submitted that the other questions need not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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