TMI Blog1998 (3) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... of the industrial undertaking in terms of the agreement entered into between the writ petitioner and the private respondent being respondent No. 4. Mr. Bhattacharjee, learned senior advocate, appearing on behalf of the writ petitioner, submitted that the order which has been passed by the concerned appropriate authorities is illegal and they have passed the said order in excess of their jurisdiction.' Furthermore, the said order specifically said that the transfer is null and void under section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976. In passing the said order, the said authorities have acted in excess of their jurisdiction. He further submitted that the act of the appropriate authorities is illegal, mala fide and arbitrary. The facts of the case are as follows : By an order of this court in a company application the writ petitioner acquired all the properties, rights and interest of Hastings Jute Mill Limited which were transferred to and in favour of the petitioner under the provisions of section 394(2) of the Companies Act, 1956, and thereby the petitioner became the owner of all properties, assets, machinery, stores, etc., of Hastings jute Mills Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government is not interested in purchasing the said property. He further submitted that under section 53A of the Transfer of Property Act, 1882, the protection given to the transferee which has taken possession of the property in part performance of the contract was only against the transferor or any person claiming under him and he submitted that the impugned order thereby is illegal. In support of his submissions, he relied upon the following judgments : 1. Shantivan Corporation v. Sub-Registrar [1991] 189 ITR 583 (Guj). 2. Tanvi Trading and Credits P. Ltd. v. Appropriate Authority [1991] 188 ITR 623 (Delhi). 3. Satwant Narang (Mrs.) v. Appropriate Authority [1991] 188 ITR 656 (Delhi). 4. Moi Engineering Ltd. v. Appropriate Authority [1992] 198 ITR 270 (Cal). 5. Hari Krishna Kanoi v. Appropriate Authority [1994] 207 ITR 743 (Cal). 6. Gautam (C. B.) v. Union of India [1993] 199 ITR 530 (SC). 7. Hindustan Lever Ltd. v. Appropriate Authority [1994] 207 ITR 772 (Cal). 8. Rajasthan Patriha Ltd. v. Union of India [1995] 213 ITR 443 (Raj). 9. Dwarkanath Chatterjee v. Union of India [1995] 213 ITR 470 (Cal). 10. Appropriate Authority v. Tanvi Trading and Credits P. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gorous imprisonment for a term which may extend to two years and shall also be liable to fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than six months." The meaning of "transfer as provided under section 269UA(f) which is as follows : "269UA. (f) 'transfer', - (i) in relation to any immovable property referred to in sub-clause (i) of clause (d), means transfer of such property by way of sale or exchange or lease for a term of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882) : Explanation.-For the purposes of this sub-clause, a lease which provides for the extension of the term thereof by a further term or terms shall be deemed to be a lease, for a term of not less than twelve years, if the aggregate of the term for which such lease is to be granted and the further term or terms for which it can be so extended is not less than twelve years ; (ii) in relation to any immova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en or continued in possession, other than a right expressly provided by the terms of the contract : Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.' The very definition of the term 'transfer' as contained in section 269UA(f) read with the provisions of section 53A of the Transfer of Property Act shows that the factum of transfer has to be ascertained with reasonable certainty and in case the transferee has in part performance of the contract taken possession of the property or any part thereof, it would constitute a transfer. The petitioner himself has come with the case that possession of part of the property in question has been taken over by him in part performance of the contract. In view of this admitted factual position, there is no escape from the logical conclusion in the light of the definition of the term 'transfer' as given in the Income-tax Act that in the case at hand part of the property in question had already been transferred to the petitioner by respondent No. 4 before the filing of the statement in Form No. 37-I and it cannot be said that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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