TMI Blog2001 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the concerned authority. Such valuation is under challenge before the writ court. Under normal circumstances, a valuation by an authority should not be interfered with by the writ court having no fact-finding machinery to overcome the situation. But when the finding is perverse or capricious or bad from the face of it, the writ court cannot ignore the same specially when there is no alternative remedy of appeal as against the said valuation. This is such a situation. The first valuation dated May 28, 1997, made by the appropriate valuer, Income-tax Department, Calcutta, EAC (effective apparent consideration) of Rs.38.45 lakhs is 11.81 per cent. below the FMV (fair market value) if EAC is taken as base. The second valuation dated July 18, 1997, the authority came to a conclusion that EAC (effective apparent consideration) of Rs.38.45 lakhs is 62.47 per cent. below the FMV if EAC is taken as base. As per the third valuation EAC of Rs.38.45 lakhs is 40 per cent. below the FMV (fair market value) if EAC is considered as base. The first valuation was made by an executive engineer of the Income-tax Department. The second valuation was made by a Superintending Engineer (A.A.), Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cality. Therefore, even the third valuation cannot be construed as free from ambiguity. It appears from the reasoning as given by the appropriate authorities under the impugned order of valuation that the superintending engineer being the appropriate authority has not relied upon the report of the executive engineer who is a lower authority and the same was found not proper. The superintending engineer has relied on a sale instance of a property which is adjacent to the impugned property and due assessments have been made in respect of location, surroundings, time gap, type of building, etc. Regarding the point raised by the sale instance, the property was commercial in nature whereas the impugned property is residential, the superintending engineer's opinion is that the impugned property is considerably potential for commercial use as the building is situated in a commercial area. The authorities under the impugned order of valuation agreed with the opinion and the valuation done by the superintending engineer as fair. The transferees have also filed a valuation report dated September 16, 1997. From such valuation it appears that the fair market value of the property is Rs.31.31 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid point and objection in connection thereto. Chapter XXC of the Income-tax Act is governing the field of purchase of the immovable properties by the Central Government in certain cases of transfer. Out of such Chapter, sections 269UC, 269UD, 269UE and 269UL are the relevant sections for coming to an appropriate conclusion. Section 269UC is dealing with the restrictions on transfer of immovable property whereas under 269UD the appropriate authorities are entitled to order for purchase of immovable property by the Central Government. Section 269UE is dealing with vesting of property. Section 269UL is dealing with restrictions on registration, etc., of the documents in respect of transfer of immovable property. Therefore, in the instant case the relevant provision is section 269UD(1) whereunder the appropriate authority after the receipt of the statement under sub-section (3) of section 269UC in respect of the immovable property or any instrument or any agreement for the time being in force make an order for the purchase of such immovable property by the Central Government at an amount equal to the amount available in the apparent situation. A proviso has been introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction having been started in the year 1990 is further corroborated by the valuation report as filed by the transferees. The representative of the contractor agreed before the appropriate authority that the copy of the relevant agreement will be filed on September 18, 1997. But neither he appeared nor filed any letter seeking adjournment. Therefore, there is no fault on the part of the transferees who have appeared before the authority and made their submissions. But the authorities considered the absence of the transferor and contractor as hiding of material documents for the facts but I do not understand how the transferees will be made victim of the circumstances when they were present and produced the records relevant for the purpose. For an example, even before this court I feel that the transferees being respondents Nos. 7 and 8 are much more aggrieved and vocal than the petitioner and lead the process of adjudication to come to a definite conclusion in their favour, I cannot avoid the situation because of the reason that either of the parties can be the victim of the circumstances. It might have been the reason on the part of the transferor that there cannot be a monet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority of Income-tax v. Vysya Bank Ltd. [2000] 244 ITR 318 a Division Bench judgment of the Calcutta High Court which affirmed the aforesaid single Bench judgment of this court. There it was held that in view of the finding of the single judge that no opportunity had been given to the vendor and vendee to be heard prior to the pre-emptive purchase of the property as required under section 269UD there was no merit in the appeal. As per the agreement of sale major amounts were due to the vendor from the vendee for a number of years and since they could not be paid to the vendor on account of the proceedings under section 269UD, the vendor was entitled to interest at the rate of 12 per cent. from the Government for the period for which the amounts could not be paid. However, it appears from the recording of the judgment that none appeared on behalf of the appropriate authority being the appellant therein. Even thereafter, the order was passed considering the merits of the issue. Mr. Bajoria also cited a judgment reported in DLF Universal Ltd. v. Appropriate Authority [2000] 243 ITR 730 (SC) from which it appears that under section 269UD an order by the appropriate authority has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot agitated before the courts of law are pending at various stages before the authorities Form No. 37-I shall be deemed to have been filed as on the date of the judgment of this court dated November 17, 1992, for the purpose of completion of the proceedings in terms of section 269UD(1). According to Mr. Bajoria, the ratio of the judgments for calculating the date under section 269UD(1) of the Act was restricted in respect of the clarifications given thereunder. It cannot be applicable principally for an indefinite period. Therefore, in the present case, the court has no other alternative but either to accept the valuation or to reject the valuation. If the rejection order is made, there is no scope for second show cause in view of the statutory restrictions of three months' period (w.e.f. June 1, 1993) being the substituted period under the second proviso to section 269UD(1) of the Income-tax At, 1961. According to him, as per the provisions of section 269UD of the Act the appropriate authority has two options either to purchase the property or to give a certificate of no objection to its transfer specially when the appropriate authority does not have the power to determine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by the appropriate authority had been considered and the sale of the property in a locality relied upon by the authority cannot be determined by the High Court. The notices herein are given that the writ petition ought to be dismissed. However, I find that the main reason for refusing the order to the petitioner was the delay in moving the writ petition. According to the court, in view of C.B. Gautam's case [1993] 199 ITR 530 (SC), the time frame under Chapter XX-C of the Act is a trite one. He has further relied upon a judgment reported in Appropriate Authority v. Mass Traders Pvt. Ltd. [1993] 202 ITR 741 (Karn) which is a special Bench judgment. It appears that in writ jurisdiction if an error of law apparent from the record is disclosed and the writ is issued the usual course to adopt is to correct the error instead of sending the case back to the special Tribunal for its decision in accordance with law. It would be inappropriate for the High Court in exercising its writ jurisdiction to consider the evidence for itself and to reach its own conclusion in matters which have been left by the Legislature to the decisions of the specially constituted Tribunal. He has ultim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of circumstances. Finally, in view of non-appearance of the petitioner is reflected from the order impugned. Had it been the position that it is a writ petition of respondents Nos. 7 and 8/transferees it would have been a different scenario altogether. I have no hesitation in my mind to say that it would have been much more favourable scenario so far as the writ jurisdiction is concerned. Not being so, I cannot agree with Mr. Bajoria who is saying that only two courses are open--either to accept or reject the valuation by the writ court. According to me, the third aspect of sending the matter back to the authority for following the principles laid down by C.B. Gautam's case [1993] 199 ITR 530 (SC) cannot be ruled out in the fact situation. We should not be forgetful that the order and execution in respect of the pending matters, either before the Supreme Court, the High Courts or before the authorities, have been guided by the judgment of the Supreme Court in C.B. Gautam's case [1993] 199 ITR 530 but the principle of drawing the third line is still valid and operative in a fact situation. It is true that there is no provision of appeal under the Income-tax Act in respect of valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of showing cause against the pre-emptive order for compulsory purchase. I have no doubt in my mind that the same is the basic requirement of law specially in a case where there is no appeal forum but the question is that upon visualising the perversity the writ court will strike down the valuation of property and will send the matter back to the authority concerned because of the fact that on such scope the Supreme Court in Appropriate Authority v. Smt. Sudha Patil [1999] 235 ITR 118 clearly held, taking contrary view, that if the High Court, on examining materials comes to a conclusion even then it would not be possible for the High Court to substitute its conclusion for that of the authority. It appears to this court that a Division Bench in Appropriate Authority of Income-tax v. Vysya Bank Ltd. [2000] 244 ITR 318 affirmed the decision of the single Bench where the aforesaid Supreme Court case was also referred to. But the interesting part is that nobody appeared on behalf of the income-tax authority being the appellant therein and the judgment of the Division Bench of the court was rested in deciding the issue in merit in the absence of the authority. Although, the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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