TMI Blog1994 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... said land. It is also contended that on June 30, 1993, the Charity Commissioner opened the tenders. Two offers were received. The Charity Commissioner found that the offer of one person to buy the said land for Rs. 22 lakhs was a conditional one and hence was not acceptable and, thereafter the petitioner offered to buy the said land for a consideration of Rs. 22 lakhs to the Charity Commissioner. The petitioner's offer was accepted and, therefore, an agreement to sell was executed between the petitioner and the said trust on October 19, 1993. The said agreement to sell was executed subject to certain conditions, inter alia, that the sale would be subject to sanction by the Charity Commissioner under section 36 of the Act as well as by the appropriate authority under the Income-tax Act. Thereafter, Form No. 37-I was submitted in the office of the appropriate authority on November 3, 1993. On January 13, 1994, the Charity Commissioner approved the said agreement to sell. It is the contention of the petitioner that, in spite of the aforesaid facts, without giving an opportunity of hearing to the petitioner, the appropriate authority has passed an order on February 23, 1994, holding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner under section 36 of the Act as well as by the appropriate authority under the Income-tax Act. So, it is apparent that the petitioner entered into an agreement to purchase the property on the basis of advertisement issued by the Charity Commissioner for the sale of the said land. Offers were invited from the public at large. Except where it is alleged that there was fraud or for such other reasons, in normal circumstances, the amount offered by the petitioner is required to be considered as the market value of the land, that is to say, the highest price realised at the time of auction is required to be accepted as the market value of the land. Further, in the present case, the land is owned by a public trust and the public trust is required to obtain the sanction of the Charity Commissioner under section 36(1) of the Act. The decision of the Charity Commissioner under sub-section (1) of section 36 is required to be published in a local newspaper having circulation in the area where the property concerned is situated, as per rule 24(4) of the Bombay Public Trusts (Gujarat) Rules, 1961. Rule 24(4) further provides that the decision of the Charity Commissioner is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt to evade tax may be raised by the appropriate authority concerned in case of the aforesaid circumstances being established, such a presumption is rebuttable and this would necessarily imply that the concerned parties must have an opportunity to show cause as to why such a presumption should not be drawn. Moreover, in a given transaction of an agreement to sell, there might be several bona fide considerations which might induce a seller to sell his immovable property at less than what might be considered to be the fair market value. For example, he might be in immediate need of money and unable to wait till a buyer is found who is willing to pay the fair market value for the property. There might be some dispute as to the title to the immovable property as a result of which it might have to be sold at a price lower than the fair market value or a subsisting lease in favour of the intending purchaser. There might similarly be other genuine reasons which might have led the seller to agree to sell the property to a particular purchaser at less than the market value even in cases where the purchaser might not be his relative." (emphasis supplied). Applying the aforesaid ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en without specifying anything or the grounds for holding that the property is required to be purchased under section 269UD of the Income-tax Act, then it can be held that reasonable opportunity of showing cause against an order for pre-emptive purchase being made by the appropriate authority was not given, because the transferor and the transferee would be totally unaware of the grounds which had prompted the appropriate authority to arrive at a prima facie conclusion that the power under section 269UD(1) of the Income-tax Act was required to be exercised and the property should be compulsorily purchased. Issuance of a show-cause notice is the preliminary step which is required to be undertaken before giving opportunity of hearing under section 269UD(1A) of the Income-tax Act. While considering the contents of a show-cause notice in a matter arising in connection with a disciplinary proceeding under the Punjab Civil Services (Punishment and Appeal) Rules, 1952, the Supreme Court has in the case of B.D. Gupta v. State of Haryana, AIR 1972 SC 2472 observed as under (at page 2474) : "There is nothing, however, in the 'show-cause notice' of October 26, 1966, to indicate clearly th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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