9911796707
TMI Blog2014 (8) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... . Briefly, the facts leading to this petition are as follows: (a) On 29 November 1994, the petitioner entered into an agreement to purchase the said property from one Haveli Taluka Kanda Utapadak Sangh-respondent No.4 for a total consideration of Rs. 39,20,400/- (b) On 30 November 1994, the petitioner as transferee and respondent No.4 as transferor filed Form No.37I along with the copy of the agreement dated 29 November 1994 with the Appropriate Authority. The aforesaid Form 37I was filed under Section 269UC of the Act for transfer of the said property. (c) On 10 February 1995, the Appropriate Authority issued a show cause notice to the petitioner under Section 269 UD(1A) of the Act. By the above notice, the petitioner as well as tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermission from the Registrar of Co-operative Societies and under the Urban Land Ceiling Act etc.; and (v) In any case, if one deducts the cost of construction and 20% reasonable profit from the sale value of constructed compared 1st floor property then the consideration being paid for the said property by the petitioner was higher; (e) On 24 February 1995, Appropriate Authority passed the impugned order acquiring the said property after having granted the petitioner a personal hearing. 3. Mr. Ketkar, learned Counsel appearing in support of the petition submits as under:- (a) The impugned order dated 24 February 1995 does not determine the fair market value of the said property for the purpose of determining whether or not the conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. In view of the above, it is submitted that the petition be allowed. 4. As against the above, Mr. Tejveer Singh, learned Counsel appearing for the Revenue while supporting the impugned order submits as under:- (a) The fair market value of the property has been determined by the impugned order inasmuch as the sale consideration of the compared 1st floor property is the fair market value of the said property. Mere non mention of the fair market value of the said property would not make the impugned order bad in law. In support, he placed reliance upon the decision of this Court in Vidarbha Engg. Industries v. Union of India [2004] 271 ITR 229 wherein this Court has distinguished the earlier decision in Vimal Agarwal (supra); (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reements. 6. We have considered the rival submissions. Neither show cause notice dated 10 February 1992 nor the impugned order mentions the fair market value of the said property. This Court in Vimal Agarwal (supra) in Para 13 and 14 thereof had inter alia observed as under:- "13. Besides, in the instant case no fair market value of the property in question has been determined by the Appropriate Authority. Merely three instances of sales have been pointed out in the order where also the rate per square foot built up area is Rs. 2504/-, Rs. 2505/- and Rs. 2507/- respectively. It is well settled that though valuation of the properties may be similar each property is unique and two properties can hardly be totally alike. The absolute posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 8. The contention of the revenue that the absence of an order in terms stating the fair market value of the property would not make the order under Chapter XXC of the Act is bad in law. It is submitted that the comparable property sale price is in fact the fair market value of the said property. The reliance placed upon Vidarbha Engg. Industries (supra) is misplaced as in that case the compared property and the property being sold were identical in all respects being adjacent properties. Therefore, in the facts of that case no allowance for difference could be made as the properties were identical. In such a case the sale value of the adjacent property could form the fair market value of the property being sold. In the present case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s market value. This alone would lead to proper determination of value of the said property. 10. Moreover, the decision relied upon by the revenue in Shrichand Raheja of Bombay Indian Inhabitant (supra) dealt with the situation where show cause notice did not mention the fair market value of the property which is sought to be acquired. The Court in the above case held that in the show cause notice it may not be possible to determine the fair market value of the property which is under consideration without having given an opportunity to the parties to produce necessary material. It is only thereafter the occasion to determine the fair market value can arise while passing the order. In this case admittedly the impugned order does not state ..... X X X X Extracts X X X X X X X X Extracts X X X X
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