High Court Of Delhi
Mantri Housing & Constructions Ltd. vs. Additional Commissioner, Appropriate Authority & Ors.
Sections 269UC, Art. 226
Dalveer Bhandari & Vikramajit Sen, JJ.
Civil Writ Petn. No. 2389 of 1999 & Civil Misc. No. 3285 of 2001
4th February, 2002
Counsel Appeared
M.D. Akbar, for the Petitioner : R.D. Jolly with Ajay Jha, for the Respondent
JUDGMENT
DALVEER BHANDARI, J. :
This writ petition had been directed against the order dt. 29th Aug., 1997, passed by the Appropriate Authority, IT Department. In this writ petition the petitioner has prayed that respondent No. 1 be directed to issue “No Objection certificate” in terms of s. 269UC(3) of the IT Act, 1961, in favour of the petitioner and respondents 3 to 23.
2. Sec. 269UC of IT Act, 1961, reads as under : “269UC.(1) Notwithstanding anything contained in the Transfer of Property Act, 1882 (4 of 1882), or in any other law for the time being in force, (no transfer of any immovable property in such area and of such value exceeding five lakh rupees, as may be prescribed), shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property (hereinafter referred to as the transferor) and the person to whom it is proposed to be transferred (hereinafter referred to as the transferee) in accordance with the provisions of sub-s. (2) at least (four) months before the intended date of transfer. (2) The agreement referred to in sub-s. (1) shall be reduced in writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties. (3) Every statement referred to in sub-s. (2) shall, (i) be in the prescribed form; (ii) set forth such particulars as may be prescribed; and (iii) be verified in the prescribed manner, and shall be furnished to the Appropriate Authority in such manner and within such time as may be prescribed, by each of the parties to such transaction or by any of the parties to such transaction acting on behalf of himself and on behalf of the other parties. (4) Where it is found that the statement referred to in sub-s. (2) is defective, the Appropriate Authority may intimate the defect to the parties concerned and give them an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the Appropriate Authority may, in its discretion, allow and if the defect is not rectified within the said period of fifteen days, or as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Chapter, the statement shall be deemed never to have been furnished.
3. The Appropriate Authority in its order dt. 1st July, 1997, had directed the petitioner to furnish the following information to cure defect in his Form No. 37-I : “(i) Copy of sanctioned/actual/tentative building plan with area chart (floor wise) thereon. (ii) The portion under transfer of owners share is shown on the relevant drawing along with detailed specification thereof. (iii) Copy of the completion year of constructions of the existing structure and likely date of commencement and completion of new construction. (iv) Details of tenancies with copies of all possible documents/information in support thereof links/relation of the tenants with transferor(s)/transferee(s)/ confirming parties and that functionaries. Also the actual expenditure (annual) for repairs, maintenance and taxes on the tenanted portions borne by the transferor(s) : (v) Details of all pending dues of any Department/organisation to be borne by the transferor(s) and transferee(s) separately. (vi) Copy of valuation report if any latest receipts of ground rent, house tax, repairs, insurance and other outgoings actually incurred. Also pending upto-date dues. If any, of any department/organisation to be borne by the transferee. (vii) Copy of the lease deed of the plot/copy of registered sale deed with copies of all the subsequent deeds executed and orders issued by any Government department. (viii) Copy of authorisation(s) along with list/lists of present partners/directors and Memorandum and Articles of Association of the transferor(s) and transferee(s). (ix) The portion of clearance under Urban Land Ceiling Act, 1976, along with copy for the order issued thereunder also the details of all other holdings of urban land by the transferor(s) and transferee(s). (x) The calculations in support of the declared areas. (xi) Estimated present worth of all the obligations under the agreement separately along with calculations thereof. (xii) Any other documents, information and papers relevant of the case and which you like to furnish. (xiii) Copy of Sharja Plan with Khasra No. of each Fard Jamabandi, Aksh and other Revenue records. (xiv) Detailed list of filings and fixtures internal/external, which are included in sale agreement.
The copies of the documents asked for above should be signed by both the parties. It is proposed to inspect the property at 11.00 A.M. on 15th July, 1997. You are requested to arrange for the same and be present in this office yourself or through your authorised person on above date.”
The requisite information was not supplied to the Appropriate Authority. Again on 22nd Oct., 1997, the Appropriate Authority asked the petitioner to furnish some more information. Even then the required information was also not supplied. On 29th Aug., 1997, the Appropriate Authority under Chapter XX-C of the IT Act again called upon the petitioner to submit details of built-up residential/commercial areas to the shares of the owner and those going to the developers. It is mentioned in the order that in the absence of these details, it was not possible to correctly evaluate the built-up area which can be constructed on this location and thereby a total fair market value of the proposed construction also cannot be evaluated. On 22nd Aug., 1997, a letter was written to the transferor and the transferee requesting them to produce the sanctioned map for construction of residential and commercial complex as approved by the Haryana Government and also for use of agricultural land to residential/commercial complex. The parties in their replies dt. 20th Aug., 1997, had brought out that ours is an agreement of collaboration, where any of the developers are to obtain licence for development of 33.9813 acres of land in the residential complex and 4.7187 acreas of land into commercial complex. As on today the total land had been earmarked for planned residential development as per master plan of Gurgaon. The question of producing a sanctioned plan for residential as well as commercial complex does not apply. As regards permission for use of agricultural land into residential complex the same is not required because the land in question was falling under the residential zone as the master plan. The Addl. CIT, Appropriate Authority, had mentioned that we have examined the parties and inspected the property along with the concerned persons. It was noted that some land of the area of the total of 33.9813 acres of land are presently been utilised as golf course and there also exists some permanent structure. It was observed that Haryana Government/local authority have not yet given permission of construction of commercial complex in a residential locality. Therefore, keeping in view the exact areas to be constructed for residential/commercial complex in the project have not been identified so far and as such it is not possible to work out the exact fair market value of the property unless complete information is provided in Form 37-I. The CIT again gave an opportunity to the petitioner to supply the necessary information and details of the construction with respect to the sanctioned plan. The petitioner instead of supplying the information desired by the Appropriate Authority rushed to this Court and filed this petition invoking extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India.
4. Learned counsel appearing for the petitioner placed reliance on a judgment delivered by the Hon’ble Supreme Court in DLF Universal Ltd. vs. Appropriate Authority & Anr. (2000) 160 CTR (SC) 401 : (2000) 5 SCC 552. We have carefully perused the judgment. In this judgment in para. 12 in consonance with the spirit of cl. (4) of s. 269UC, the Court observed that the Appropriate Authority is obliged to give an opportunity to the parties to rectify the defects, if any, in Form 37-I within a period of fifteen days or such extended period as the Appropriate Authority may allow. In our considered opinion this judgment is of no assistance to the petitioner.
5. It may be pertinent to mention that on 1st July, 1995, sub-s. (4) was added to s. 269UC and the section now reads as under : “(4) Where it is found that the statement referred to in sub-s. (2) is defective, the Appropriate Authority may intimate the defect to the parties concerned and give them an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the Appropriate Authority may, in its discretion, allow and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Chapter, the statement shall be deemed never to have been furnished.”
Mr. Jolly, learned senior standing counsel for the IT Department, submitted that the object of incorporating this clause was to give an opportunity to the party to remove the defects in the application submitted under Form No. 37-I of the IT Act. Mr. Jolly has drawn our attention to Circular No. 717 of the IT Department. The relevant portion of the circular reads as under : “……. Many High Courts have held that the provisions of Chapter XX-C allow the IT Department to either purchase the property or issue a no objection certificate in response to an application for no objection certificate in Form No. 37-I. There is no third alternative. The Supreme Court, while dismissing the Department’s S.L.P. in Appropriate Authority vs. Tanvi Trading & Credits (P) Ltd. (1991) 100 CTR (SC) 278 : (1991) 191 ITR 307 (SC) : TC 3R.1046, has upheld this view of the High Courts. However, problems arise when a defective application in Form No. 37-I is furnished before the Appropriate Authority. In order to overcome such problems, the Appropriate Authorities are being empowered to intimate the defects, if any, in Form No. 37-I to the parties for rectification within 15 days of the receipt of the communication. Where the defects are not rectified within this specified period, it shall be presumed that the statement had never been furnished. Where the statement is rectified, it shall be presumed that the statement had been furnished on the date on which it stood rectified and the period of limitation prescribed in s. 269UD shall be reckoned from the date.” The impugned order had been passed in pursuance to the aforementioned circular of the IT Department.
6. We have carefully seen the details of the information which were demanded by the Appropriate Authority. In our opinion the information so demanded was absolutely relevant and imperative in arriving at the fair market value of the property and the Appropriate Authority was imminently justified in demanding the relevant information for arriving at the fair market value of the property. As a matter of fact the Appropriate Authority would not be justified in arriving at the fair market value of the property without obtaining comprehensive and detailed information regarding property in question from the petitioner. The exercise undertaken for obtaining relevant information would be in the interest of the petitioner and the Appropriate Authority. In our considered opinion the petitioner was not justified in approaching this Court at this stage. Instead of supplying the necessary information and curing the defects of his Form 37-I, the petitioner chose to approach this Court.
In our opinion the writ petition is premature and is, accordingly, dismissed leaving the parties to bear their respective costs.
[Citation : 255 ITR 62]
