TMI Blog1992 (1) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... he first order which has been impugned in this proceeding. The petitioners then made an application under the 1976 Act to the Competent Authority for a no-objection certificate on May 16, 1990. In that application, it was stated that the proposed transfer under the agreement dated April 17, 1989, was not affected by the provisions of the 1976 Act. As no reply was received from the Competent Authority under section 26(2) of the 1976 Act within the statutory period of 60 days, the petitioner wrote to respondent No. 1 on August 21, 1990, to grant the necessary " no objection certificate " in respect of the proposed transfer under Chapter XXC of the Act. A fresh statement in Form No. 37-I was enclosed with the letter. By an order dated October 25, 1990, respondent No. 1 refused to grant a " no objection certificate " on the ground that there was no change in the facts and circumstances of the case, and that the reasons mentioned in the order dated June 12, 1989, stood. This is the second order which has been impugned in these proceedings. It is not disputed by the respondents that both the orders dated June 12, 1989, and October 25, 1990, are without jurisdiction and illegal in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of tendering the money within such period, the order of purchase stands abrogated and the immovable property is re-vested in the transferor (section 269UH). If, on the other hand, no order is passed for purchase under section 269UD(1), the appropriate authority is required to issue a certificate of no objection (section 269UL(3)). It has been submitted by the petitioners that respondent No.1 is bound to issue a " no objection certificate " and that there was no question of respondent No. 1 exercising any right of pre-emption to purchase property under section 269UD of the Act now, as the time prescribed under the Act for exercising that right his long since expired. It is submitted that the respondents not having exercised their right within the time prescribed had lost such right, and were bound to issue a no objection certificate under section 269UL(3) of the Act. It is submitted that the court cannot extend the period of limitation under section 269UD and should issue a writ of mandamus directing the appropriate authority to issue the certificate under section 269UL(3). Reliance has been placed on the following decisions 1. Tanvi Trading and Credits P. Ltd. v. Appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department was permitted to pass a fresh order after giving an opportunity to the petitioner of being heard. The Income-tax Officer accordingly passed a fresh order after hearing the petitioner. This fresh order was challenged in a second writ petition. It was contended that the order, being passed beyond the period prescribed under section 132(5), was without jurisdiction. The Supreme Court rejected the contention. The Supreme Court held that the period prescribed under section 132(5) could be waived by the assessee. In considering whether the period of limitation prescribed under section 132(5) could be waived, the Supreme Court held that " to hold that the period of 90 days which is mentioned in section 132(5) is an immutable one would cause more injury to the citizen than to revenue ". That reasoning does not obtain here. On the contrary, it would be prejudicial to the citizen to construe the period under section 269UD(1) as mutable and subject to waiver. am not persuaded to read the provisions of section 269UD(1) as permitting the principle of waiver. The conduct of the petitioner subsequent to the order dated June 12, 1989, is, therefore, irrelevant. It is also well-esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, therefore, unable to accept the submissions of the respondent authorities that the petitioners had waived the period of limitation under section 269UD(1). The last question is whether the court can and if so should extend the period for the appropriate authority to consider the matter afresh. In my view, the court cannot and should not. Under the provisions of section 269UD, the transferor and the transferee have to enter into an agreement to transfer land at least three months before the intended date of transfer. This agreement is required to be reduced into writing in the form of a statement (Form No. 37-1). This statement is to be submitted to the appropriate authority. Under section 269UD, the appropriate authority is empowered to make an order for the purchase of the property sought to be transferred for the apparent consideration stated in the agreement for transfer. However, under the first proviso to section 269UD(1), no such order can be made by the appropriate authority after the expiration of a period of two months from the end of the month in which the statement submitted under section 269UC has been received by the appropriate authority. The appropriate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptive right of the Central Government in respect of transfer of immovable property have been stated in the paper published by the Central Government on the Long-term Fiscal Policy, 1985, in respect of the Seventh Plan as follows : " 5.29 As a measure for countering evasion, the Income-tax Act at present contains a provision empowering the Government to acquire an immovable property on its sale or transfer if the consideration recorded in the transfer deed is found to be less than its estimated fair market value by more than a specified margin. These provisions have not proved to be effective and have generated a great deal of litigation and harassment. It is essential to find ways in which taxpayers would be induced to disclose the true values of their properties. 5.30 One way of tackling this problem is to confer on the Government a pre-emptive right to acquire any immovable property undergoing a transfer for consideration at a value of 15 per cent. above the price or consideration stated in the transfer deed. The scope of such a provision may be limited initially to the metropolitan towns and also properties worth more than Rs. 10 lakhs. To be fair, selection will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Delhi High Court stated that (at page 664) "the Act lays down a very tight schedule for the appropriate authority to make up its mind to purchase or not to purchase the property. There is no provision for extension of time. The respondents have missed the bus and have passed the impugned order on December 15, 1989, rejecting the permission on quite irrelevant considerations. This court would not like to extend the period and frame a fresh time schedule for the Department specially when the statute does not give any such power to the court. " Other High Courts have also held that once the period under section 269UD(1) has expired, there is no option for the appropriate authority but to issue the certificate under section 269UL(3) and the court should enforce such obligation by way of a writ of mandamus. In the decision in Tanvi Trading and Credits P. Ltd. [1991] 188 ITR 623, the Delhi High Court at page 630 of the report held : " The impugned orders show that the appropriate authority has not exercised its pre-emptive right of purchase within the stipulated period. The decision not to issue a certificate under section 269UL(3) and the direction that the statement u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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