2009 (8) TMI 31 - HC - Income Tax

Compulsory Acquisition of property Chapter XXC of the Income Tax Act 1961 - . Assessee contended that he acquisition is to be effected only when there is a significant undervaluation in the agreement of sale with a view to evade tax and an order of compulsory purchase of immovable property can be made only if the appropriate authority is satisfied that the apparent consideration as shown in the agreement of sale was less than the fair market value by 15% or more Department contended that Since there were no sale instances of open land or land with a small structure constructed thereon the sale instance of the builtup apartments could be referred to as a guide for arriving at proper valuation of the said property Appropriate authority had remanded the matter to ascertain the value corrected Held that order of appropriate authority not to be interfered with.

Summary

Issues Involved:
1. Validity of the order dated 22nd May 1995 passed by the appropriate authority under Chapter XXC of the Income Tax Act, 1961, acquiring the property.
2. Whether the apparent consideration was significantly undervalued.
3. Relevance and comparability of sale instances relied upon by the appropriate authority.
4. Calculation of the value of encumbrance due to tenancy.
5. Entitlement to interest by the heirs of the original owner.

Detailed Analysis:

1. Validity of the Order:
The petitioners challenged the order dated 22nd May 1995 by the appropriate authority under Chapter XXC of the Income Tax Act, 1961, which acquired the property bearing plot no.70P, Suburban Scheme III, Chembur Garden, Chembur. The petitioners argued that the acquisition was unjustified and based on incorrect valuation.

2. Significant Undervaluation:
The petitioners contended that the acquisition could only be justified if the apparent consideration was less than the fair market value by 15% or more, as established in C.B. Gautam v. Union of India. They argued that the original owner was in distress and needed immediate money, which justified the lower sale price. Additionally, the property had a sitting tenant, which reduced its market value. The petitioners claimed that the agreed price was not less than the market value by over 15%.

3. Comparability of Sale Instances:
The petitioners argued that the sale instances relied upon by the appropriate authority were not comparable. The instances were of built-up commercial units/apartments, while the property in question was an open land with a single-storied structure occupied by a tenant. The comparable properties were situated on the main Sion-Trombay Road, whereas the subject property was in an interior area, about 3 km away. The petitioners provided a map from "Google Earth" to support their claim, which was not disputed by the respondents.

4. Value of Encumbrance Due to Tenancy:
The petitioners argued that the value of accommodating the tenant was underestimated by the appropriate authority. They contended that the tenant, who occupied the entire property, would not vacate for mere equal accommodation in the new construction. The appropriate authority's valuation of Rs. 4,34,400/- for settling the tenant was considered abysmally low. The petitioners suggested that the tenant would demand a much larger area in the redeveloped property.

5. Entitlement to Interest:
The original owner, represented by his legal representatives, argued that they were entitled to interest due to the delay in receiving the consideration. They cited two Supreme Court decisions to support their claim for interest at the rate of 20% per annum if the impugned order was set aside, and 15% per annum if upheld.

Conclusion:
The court found that the order of the appropriate authority suffered from several vices:
- The value of the tenancy encumbrance was not properly calculated.
- The sale instances relied upon were not adequately comparable, and the reasons for their selection were not well-explained.
- The appropriate authority did not provide good reasons for disregarding the comparable sale instance provided by the petitioners.

The impugned order was set aside, and the matter was remanded back to the appropriate authority for reconsideration within six months. The issue of interest was left open for the appropriate authority to decide on its merits. Rule was made absolute to the extent indicated above.