TMI Blog1983 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... a local enquiry and report about the fair market value of the property. The inspector submitted his report on January 16, 1974. According to the inspector, the fair market value of the property in question was Rs. 8,70,000 approximately which was very much higher than the apparent consideration shown in the transfer document. The Competent Authority, therefore, initiated a proceeding for acquisition of this property under Chap. XX-A of the I.T. Act, 1961, on January 16, 1974. On January 31, 1974, notices under s. 269D(1) in English and in Hindi were issued for publication in the Official Gazette of India, Pt. III, Sec. 1, which was published in the Official Weekly Gazette of India, dated May 18, 1974. Notice was also served upon Kumar Tara Nand Sinha, one of the transferors and Shri Nand Kishore Singh and seven other transferors, in accordance with the manner prescribed in the Act. The matter was referred to the Valuation Officer of the Valuation Cell, I.T. Department, Patna, under s. 269D(1)(a) of the Act, requiring him to determine the fair market value of the property. On April 26, 1974, separate written objections were received from each of the transferees. The main objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated in the instrument of transfer with certain objectives. The submission was that no reason had been recorded by the Competent Authority while initiating the proceeding. The other contention raised before the Appellate Tribunal was that there being five transferors of the property and the notice having been issued to only one of them, namely, Kumar Tara Nand Sinha, the proceeding was vitiated and the Competent Authority could not proceed unless he had served the required notice under s. 269D of the Act, on all the transferors. What had happened was that in the notice issued under s. 269D(1) of the Act, the name of only Kumar Tara Nand Sinha was mentioned as the transferor. The learned Appellate Tribunal held that the Competent Authority had good reasons to believe that the difference between the apparent consideration and the fair market value of the property was quite high at the time of initiation of the proceeding. The contention of the transferees in this respect was rejected. As regards the valuation arrived at by the Competent Authority, the objection by the transferees was also overruled. The Appellate Tribunal, however, found that mention of only one of the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of sixty days, permit, by order, the appeal to be presented within such further period as may be specified therein, if the applicant satisfies the High Court, that he has sufficient cause for not being able to present the appeal within the said period of sixty days." It was submitted that the right of appeal is a creature of the statute and must be exercised only in the manner prescribed by law. In this connection Mr. Sreenath Singh relied upon the decisions of the Supreme Court in Soorajmull Nagarmull v. State of West Bengal, AIR 1963 SC 393, and in Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126. In the case of Soorajmull Nagarmull, AIR 1963 SC 393, the question was whether an appeal could be filed under s. 19 of the Defence of India Act, 1939, in cases where the amount awarded was less than Rs. 5,000. The Act provided a right to appeal against the award of the arbitrator but that right was restricted in the manner prescribed by the Rules. The rule provided that no appeal shall lie against an award where the amount of compensation did not exceed Rs. 5,000. In that case no compensation had been awarded by the arbitrator. An appeal was filed and it was contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of that property under Chap. XX-A. This may include the transferor and the transferee or any other person who may have a claim in the property. The words " any person aggrieved " has not been defined in the Act, but seems to have been used in s. 269H, in a wider perspective. It cannot be said to be limited only to the " persons interested ". If the Legislature intended to restrict the right to appeal to the Commissioner, the transferor or the transferee or any other person claiming or entitled to claim an interest in the compensation or the person in occupation of the property as contended by the learned counsel, it would have used the words " persons interested in s. 269H instead of " persons aggrieved ". By using the words " persons aggrieved ", the Legislature intended to make this right of appeal available to more persons, namely, those who felt aggrieved by such orders. Chapter XX-A of the Act was inserted by the T.L. (Amend.) Act, 1972, with the salutary object of curbing black money which has been eating into and corroding the social and economic life of our country. The Competent Authority has been given very wide powers in this chapter to initiate proceedings for ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter to which Mr. Rajgarhia drew our attention. Referring to the scheme of the Act he pointed out that in the cases of assessment by the ITOs, only assessees have the right to appeal under s. 246 of the Act. Against an order of assessment any assessee can file an appeal before the AAC which is in the nature of a first appeal. The Commissioner, who is the head of the Department, has no right to appeal under s. 246 of the Act. Against the orders passed by the AAC or IAC or the Commissioner, an assessee can file an appeal under s. 253 of the Act. Here again the Commissioner has no right of appeal but if he objects to any order passed by an AAC under s. 154 or s. 250, he can direct the ITO to appeal to the Appellate Tribunal against the said order (see s. 253(2) of the Act). Section 269G also does not give any right to the Commissioner to file any appeal against an order of acquisition. The appeal under s. 269G is also in the nature of a first appeal. The Commissioner has been given the right of appeal to the High Court under s. 269H. Mr. Rajgarhia submitted that, being the head of the Department, the Commissioner may also direct the IAC, the Competent Authority, to file an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Authority, is an " aggrieved person " within the meaning of s. 269H and there is no infirmity in the appeal which has been filed by him. The preliminary objection taken by the respondents is, accordingly, overruled. The only ground on which the appeal was allowed by the Appellate Tribunal and the proceeding initiated by the Competent Authority quashed, was that due to the non-mention of the names of all the transferors in the notice under a. 269D(1) of the Act, the proceeding suffered from legal infirmity from the very beginning and, therefore, was illegal. Mr. Rajgarhia on behalf of the appellant assailed this finding of the Appellate Tribunal on various grounds. He first submitted that the transferees cannot take advantage of their own fraud inasmuch as it was on the basis of their own statement furnished in Form No. 37G mentioning Kumar Tara Nand Sinha as the only transferor that the notice was published mentioning Kumar Tara Nand Sinha alone as the transferor. He also submitted that the appeal filed by the respondents before the Appellate Tribunal was itself not maintainable since all the parties to the proceeding including Kumar Tara Nand Sinha, the transferor, were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property to be served on the transferor, the transferee, the person in occupation of the property, if the transferee is not in occupation thereof, and on every person whom the Competent Authority knows to be interested in the property ; (b) cause such notice to be published (i) in his office by affixing a copy thereof to a conspicuous place ; (ii) in the locality in which the immovable property to which it relates is situate by affixing a copy thereof to a conspicuous part of the property and also by making known in such manner as may be prescribed the substance of such notice at convenient places in the said locality." According to this provision the Competent Authority can initiate the proceeding for acquisition within nine months from the end of the month in which the instrument of transfer in respect of the property is registered under the Registration Act, 1908. In the instant case, the sale deed was executed by Kumar Tara Nand Sinha and four others in favour of respondents, Nand Kishore Singh and others, on March 16, 1973. Section 269P of the Act provides that notwithstanding anything contained in any other law for the time being in force, no registration officer sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer was received by the Competent Authority some time in January, 1974. Mr. Rajgarhia submitted that this was the only source of information on the basis of which the Competent Authority was to act. According to him, the above provisions have been inserted in the Act and the Rules with a view to supply the required information to the Competent Authority for the purpose of initiation of the proceeding under Chap. XX-A of the Act. According to him, there was no reason for the Competent Authority to doubt the veracity of the information supplied to him by the registering authority in Forms Nos. 37H and 37G. Since the name of only Kumar Tara Nand Sinha was mentioned in the statement furnished by the transferee in Form No. 37G, a duplicate copy of which had been received by the Competent Authority, the Competent Authority proceeded on that basis. It was, therefore, not open, according to Mr. Rajgarbia, to the transferees now to take advantage of the fraud committed by them. On the other hand, Mr. Sreenath Singh submitted that if the law provided that notices must be published under s. 269D(1) of the Act giving the names of all the transferors, then notwithstanding that complete par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive societies were not " persons interested " for the purpose of Chap. XX-A of the Act and, therefore, it was not necessary to serve notice on them. That, however, is not the position in the instant case. It cannot be said that the transferees or any of the transferors are not " persons interested " for the purpose of Chap. XX-A of the Act. Such objections, therefore, could be raised by the transferees in the present case. Merely because the correct information was not supplied in Form No. 37G by the transferees, they cannot be said to be estopped from raising such objection. Mr. Rajgarhia also referred to a decision of this court in Smt. Lalita Todi v. CIT [1980] 123 ITR 40, for the proposition that the transferee-respondents must be deemed to have waived this objection by not raising it before the Competent Authority and, therefore, should not have been allowed to raise it before the Appellate Tribunal. In the above case the question had not been agitated either before the Competent Authority or before the Tribunal. In the present case, the objection was raised in appeal before the Appellate Tribunal though not before the Competent Authority. Transferee-respondents had not reall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case is not in dispute. The only objection is that it did not contain the names of the four transferors out of five and it was only in the name of Kumar Tara Nand Sinha, one of the transferors. In my opinion, this was only an irregularity and not an illegality vitiating the entire proceeding. It will appear from the order of the Appellate Tribunal that Kumar Tara Nand Sinha, one of the transferors who had been noticed by the Competent Authority under ss. 269D(1) and 269D(2), had received the entire consideration money on behalf of all the transferors. It will also appear that Kumar Tara Nand Sinha did not object to the initiation of the proceeding before the Competent Authority where he had a chance to do so. All the five brothers, namely, (1) Kumar Bimlanand Sinha, (2) Kumar Tara Nand Sinha, (3) Kumar Durga Nand Sinha, (4) Kumar Jaya Nand Sinha and (5) Kumar Adya Nand Sinha had signed and executed the transfer deed. There is nothing on the record to indicate that Kumar Tara Nand Sinha had the authority on behalf of his other four brothers to transfer the whole property or to act on their behalf except that he had received the entire consideration money on behalf of his broth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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