Delhi High Court
Saraswati Kunj Co-Operative ... vs Appropriate Authority on 14 December, 2001
Equivalent citations: (2002) 173 CTR Del 454
JUDGMENT
By the Court
This writ petition is directed against an order dated 30-8-2001, passed by the Appropriate Authority of the Income Tax Department whereby and whereunder, it directed as under :
"Reply to these two letters have been filed dated 27-8-2001, one of which was received vide receipt No. 789 of this office letter dated 27-8-2001, another letter of the same date was filed during the course of hearing on 29-8-2001. On going through the reply filed on behalf of transferor and transferee by Ashok Kumar Gadiya C.A., it is seen that the transfer has already taken place in spirit and substance by giving possession of the subject property to the transferee. Considering the description against Col. No. 11 of the annexure to Form No. 37-I that "possession is already handed over to the Member Rajiv Gupta supported by Baynama" Banam dated 20-3-2001, stating that "Or plot ka kabja Member Ko Pahale Kara Diya Gaya Haa". In view of contemporaneous record as given in "Bayanama: we are of the view that the transferor and transferee have defeated the scheme of the Act enabling the Appropriate Authority to exercise option of pre-emptive purchase or issuing NOC at a stage contemplated by law. In view of above position. Form No. 37-I filed by transferor(s) and transferee cannot acted upon in view of the ratio of the judgment of the Supreme Court in the case of Rajasthan Partrika Ltd."
2. It appears that by letter dated 12-3-2001, the Saraswati Kunj Cooperative House Building Society Ltd. addressed to one Rajeev Gupta, inter alia, stating therein that the terms and conditions, clause IV of which reads as under :
2. It appears that by letter dated 12-3-2001, the Saraswati Kunj Cooperative House Building Society Ltd. addressed to one Rajeev Gupta, inter alia, stating therein that the terms and conditions, clause IV of which reads as under :
"The possession of the plot allotted to the member, as stated above, will be offered to him/her within three months on receiving full and final payment of the tentative cost of plot by the society and receipt of completion certificate from the Government of Haryana or on receipt of Income Tax Clearance Certificate/NOC as per provisions of Income Tax Act, whichever is later."
A bona fide mistake was committed therein to the extent that it was wrongly stated that the possession had been handed over. Again by letter dated 2-5-2001, the Appropriate Authority of the Income Tax Department addressed to the petitioner herein, asked it to remove the defects. By a letter of the same date, the petitioner was requested to the present at the office to facilitate the valuation Officers of the office on 15-5-2001 at 11.00 A.M. for the purpose of inspection of the property. Form No. 37-I in terms of rule 48L was issued which is a statement of agreement for transfer of immovable properties to be furnished to the Appropriate Authority under section 269UC of the Income Tax Act, 1961.
3. The grievance of the petitioner is that despite the fact that certain mistakes committed in filing of Form No. 37-I were sought, to be rectified by letter dated 27-8-2001, same had not been taken into consideration by the Appropriate Authority in the impugned order.
3. The grievance of the petitioner is that despite the fact that certain mistakes committed in filing of Form No. 37-I were sought, to be rectified by letter dated 27-8-2001, same had not been taken into consideration by the Appropriate Authority in the impugned order.
We may notice that in the afore-mentioned letter dated 27-8-2001, it was pointed out as follows :
"It is relevant to point out that the valuation officers of Appropriate Authority has already inspected the property in question and found that the member has not taken any possession in any manner in whatsoever nature, on the basis of which it could be said that property has not been transferred and the right of the Appropriate Authority to exercise option of pre-emptive purchase is very much alive."
Considering the same a show-cause notice was issued for prosecution, where against also a reply was submitted by the petitioner herein on 27-8-2001, stating therein as under :
"It is relevant to point out that valuation officer of the Appropriate Authority has already inspected the property in question and found that member of the society has not taken any possession in any manner in whatsoever nature, on the basis of which it could be said the property has not been transferred and the right of Appropriate Authority to exercise option of pre-emptive purchase is very much alive."
4. Affidavits were filed by Iftikar Hasan and Rajiv Gupta but it appears from the impugned order that the same had not been taken into consideration. The contention of the petitioner is that as possession had not been delivered there has been no transfer of property. In law, therefore, according to the petitioner, no title in the property has been passed on in its favor. Having regard to the fact that these aspects in the matter are at the hands of the Appropriate Authority, we are of the opinion that interest of justice would be served if the impugned order is set aside and the Appropriate Authority is directed to consider the matter afresh on the basis of the material on record. We have made it clear that this court has not examined the matter on merits. It would be open to the concerned authority to consider the matter afresh on merits after giving opportunity for heating to the petitioner.
4. Affidavits were filed by Iftikar Hasan and Rajiv Gupta but it appears from the impugned order that the same had not been taken into consideration. The contention of the petitioner is that as possession had not been delivered there has been no transfer of property. In law, therefore, according to the petitioner, no title in the property has been passed on in its favor. Having regard to the fact that these aspects in the matter are at the hands of the Appropriate Authority, we are of the opinion that interest of justice would be served if the impugned order is set aside and the Appropriate Authority is directed to consider the matter afresh on the basis of the material on record. We have made it clear that this court has not examined the matter on merits. It would be open to the concerned authority to consider the matter afresh on merits after giving opportunity for heating to the petitioner.
Petition is accordingly disposed of.
OPEN
