TMI Blog2010 (10) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ition are that the predecessor-in-interest of the petitioner, namely, Mr.Yogeshwar K. Dhawan along with one Ms. Namita Kaul Bhattacharya submitted an application for allotment of residential plot No. 20, Oak Wood Drive, Malibu Town, Sohna Road, Gurgaon, Haryana on February 24, 1994. 3. In pursuance of the aforesaid application, a letter of allotment was issued on April 24, 1994 for a consideration of Rs. 23,80,387. The petitioner was assigned the allocation vide letter datedFebruary 21, 1995. Thereafter, an agreement was entered into by the petitioner, the assignee, with the third respondent, the developer onJune 12, 1996. After the land was developed, the assignee/nominee filed an application in Form No. 37-I before the Appropriate Authority onAugust 24, 2000. 4. As further set forth, a notice under section 269UD(1) of the Act determining the value at Rs. 57,39,353 on the basis of the market value on the date of determination was sent by the Appropriate Authority on November 10, 2000. At that juncture, the third respondent, the developer, appeared before the Appropriate Authority and put forth its submission that the valuation should be with reference to the agreement datedF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the submissions raised at the Bar, we have carefully perused the order of the Appropriate Authority and on a scrutiny of the same we find that the Appropriate Authority has opined that the decision rendered by the Division Bench of this court in Ansal Properties and Industries Ltd. [1999] 236 ITR 793 has been overruled in DLF Universal Ltd. [2000] 243 ITR 730 (SC) though actually the entire decision has not been overruled. In DLF Universal Ltd. [2000] 243 ITR 730 (SC) in paragraph 6, the apex court reproduced the conclusions arrived at by the High Court. It reads as follows (page 742) : "6. There is no dispute that the agreement for transfer, which has been reduced into writing in Form 37-I, pertains to immovable property and amounts to transfer of immovable property within the meaning of clauses (d) and (f) of section 269UA. The High Court, after examining the terms of the agreement and the provisions of Chapter XX-C, reached various findings in paragraph 28 of the judgment, which we reproduce : `To sum up, our findings are : (i) Agreement for transfer as defined in clause (a) of section 269UA refers to an agreement which is entered into privately between the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooked into by the Appropriate Authority. (viii) A defect contemplated by section 269UC(4) is one which is capable is being cured. (ix) The stage for entering into the statutory agreement or proforma agreement in Form 37-I arises when the parties are ready to make available all the particulars contemplated by several clauses of Form 37-I consistently with the nature of the property. The date of entering into the proforma agreement must have proximity of relationship by time with the proposed transfer of property as defined in clause (f) of section 269UA. The test for determining proximity of relationship is the availability of the property agreed to be transferred in such status in which it is proposed to be transferred. (x) A no objection certificate issued by the Appropriate Authority based on an agreement for transfer of property to be constructed cannot be utilised for securing registration of property which has been constructed'." Thereafter, their Lordships proceeded to state as follows (page 744) : "7. Agreement for transfer and statement in Form 37-I are two different documents. As rightly held by the High Court agreement for transfer can be oral as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection to findings of the High Court in sub-paragraphs (ix) and (x) in paragraph 28 of the judgment reproduced above. However, according to the Appropriate Authority keeping in view the principles laid by this court in C. B. Gautam v. Union of India [1993] 199 ITR 530 (SC) it can exercise its jurisdiction to acquire the property if consideration agreed to is less than 15 per cent. of the market value. Mr. Verma, who appeared for the Appropriate Authority, said that the agreement for transfer contains variables and unless all these are known, the Appropriate Authority will be handicapped in making an order under section 269UD. The variables which form terms in the agreement for transfer are external development charges that may be levied by the State ofHaryanaand price escalation up to 20 per cent. of the agreed consideration. It is a matter of common knowledge that in course of time, there can be escalation in the prices of various articles like steel, cement, labour etc. One can say with certainty that price escalation would be within the limit of 20 per cent. escalation and the external development charges that may be levied by the State ofHaryanawould be on certain set princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate Authority to direct the purchase of the property by the Central Government. This is a misapprehension which has to be dispelled. The proforma agreement of the year 1998 would be accompanied by the private agreement entered into in the year 1990 and that will be a relevant fact to be kept in view by the Appropriate Authority while exercising its jurisdiction under Chapter XX-C." 13. In view of the aforesaid, we find that there is substantial force in the submission of Mr. Sandeep Sethi inasmuch as the Division Bench in Ansal Properties and Industries Ltd. [1999] 236 ITR 793 (Delhi) has held that a proforma agreement can be looked into by the Appropriate Authority. 14. We have been apprised by Mr. Sethi, learned senior counsel for the petitioner that the agreement filed in Form 37-I was accompanied with the agreement that was entered into with the original allottee as well as the agreement that was entered into with the assignee namely, the present petitioner. 15. In view of the aforesaid, we think it is a fit case where the Appropriate Authority should consider the agreements as per 27.1 in Ansal Properties and Industries Ltd. [1999] 236 ITR 793 (Delhi) and take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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