TMI Blog1993 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... lation) Act, 1976. The agreement envisages the transfer of the undertaking as a going concern together with land, building, machinery, equipment, movable properties, stock-in-trade as well as unionised and management employees of the undertaking with continuity of service and full protection to their existing terms and conditions of service. The consideration in actual terms apart from various other covenants/rights/ obligations was Rs. 14.87 crores. On January 16, 1992, the Reserve Bank of India intimated the petitioners that it was agreeable to the transfer of the undertaking inclusive of land, buildings, plant, machinery, stores, raw materials and finished goods to Lipton as a going concern subject to various conditions. On October 22, 1992, the Government of West Bengal, Land and Land Reforms Department informed the petitioner that the Governor has exempted the excess vacant land under section 20(1)(a) of the Urban Land (Ceiling and Regulation) Act, 1976, for the purpose of outright transfer to Lipton subject to various conditions. On November 30, 1992, a supplemental agreement was entered into between the petitioner and Lipton by which Lipton agreed to be bound by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to section 269UA(d), immovable property means any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred, together with any machinery, plant, furniture, fittings or other things also. In the present case, however, it is not only land, building, machinery, plant, furniture, fittings, etc., but also assets, liabilities and man-power including their continuity of service and full protection of their existing terms and conditions of service. In fact, as per agreement dated November 13, 1992, it is the entire undertaking of the assignor comprising its vanaspati and other edible products as a going concern, on an 'as-is-where-is-basis',is sought to be transferred for which Form No. 37-I has been filed by you. It is clear from the definition of immovable property that the jurisdiction of the appropriate authority is restricted to immovable property only and thus transfer of various other assets as referred to in paragraph 2 above appear to be outside the ambit of Chapter XX-C. That apart, you have not given separately the apparent consideration pertaining to land and building as required in paragraph 9 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty under section 269UA of the Act. It was submitted that the transaction of the kind entered into between the petitioner and Lipton would be covered by the definition. It is finally submitted by the petitioner that the authority concerned in any event had no jurisdiction to merely file the statement without taking a stand either accepting or rejecting the statement. Not having exercised the option of purchase within the period prescribed by the statute, the appropriate authority was bound to issue the no objection certificate under section 269UL(3) of the Act. The petitioners have placed reliance on the decision of the Supreme Court in C. B. Gautam v. Union of India [1993] 199 ITR 530, an unreported decision of this court in Hari Krishna Kanoi v. Appropriate Authority, I. T. Department dated September 11, 1992 (Matter No. 3110 of 1987) (since reported in [1994] 207 ITR 743 (Cal)) and Moi Engineering Ltd. v. Appropriate Authority [1992] 198 ITR 270 (Cal). The respondent authorities' submission is that the extended meaning of immovable property did not cover industrial undertakings. It is submitted that the appropriate authority had duly considered the definition of immovable pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as an anomalous transfer. In such a case there is no question of giving a break-up of the various composite items. This was also envisaged by the income-tax authorities. In the form prescribed for statement of transfer of immovable property to be furnished to the appropriate authority under section 269UC (Form No. 37-1), clause 9 refers to particulars of consideration for transfer. There are six sub-clauses in clause 9. The first four deal respectively with sale, exchange, sale and exchange and lease. In each of these cases the particulars of the consideration are required to be given under separate heads. Sub- clause (vi) of clause 9 deals with cases not covered by items I to 5. Under that heading, the transferor and the transferee are merely required to state "the amount of consideration". No break-up is envisaged. The apparent consideration stated by the petitioner in items Form No. 37-I has already been quoted above. The transfer, therefore, being a transfer within the meaning of Chapter XX-C, in respect of immovable property within the meaning of section 269UA(d) and the consideration being one within the meaning of section 269UA of the Act, the appropriate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a "no objection certificate" from the authority concerned. In this case, the appropriate authority has neither exercised its right of purchase nor stated that it had no objection. The case of the petitioner has been kept in a legal limbo. Merely by saying that the transaction was not covered by Chapter XX-C, the appropriate authority cannot be said to have discharged the obligation cast upon it under the provisions of section 269UD. The absurdity of the result of the appropriate authority's order is that if the petitioner does not register the transfer (because according to the appropriate authority the transaction was not within the ambit of Chapter XX-C of the Act), the petitioner may be liable to penal action under the provisions of section 276A. Even at the hearing when the court asked the learned counsel for the respondent authorities whether they could ensure that no penal action would be taken against the petitioner by reason of the petitioner's non-compliance with section 269UL, no such assurance was agreed to be given. Therefore, it was incumbent upon the appropriate authority if it felt that the transaction was not covered by Chapter XX-C to indicate that it had no obje ..... 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