Mr. Vijay Budhraja And Anr. vs R.K. Sandhu, Dcit
2005 Latest Caselaw 104 Del

JUDGMENT

Manju Goel, C.J.

1. The petitioners originally filed this petition under Articles, 226, 227 and 14 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing the complaint filed by the respondent - Mr. R.K. Sandhu, DCIT. Office of the Appropriate Authority under Section 276 AB of the Income Tax Act. On the statement of learned Counsel for the petitioners, the writ petition was treated as Criminal Revision Petition on 5-9-2003.

1. The petitioners originally filed this petition under Articles, 226, 227 and 14 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing the complaint filed by the respondent - Mr. R.K. Sandhu, DCIT. Office of the Appropriate Authority under Section 276 AB of the Income Tax Act. On the statement of learned Counsel for the petitioners, the writ petition was treated as Criminal Revision Petition on 5-9-2003.

2. Section 269UC of the Income-tax Act (hereinafter referred to as the 'Act') requires that whenever an immovable property exceeding a prescribed minimum is sought to be transferred by way of sale, exchange or lease, an agreement for transfer be executed at least four months before the intended transaction and that agreement be recorded in a prescribed manner and 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. In case this provision is violated the punishment is prescribed under Section 276AB which is RI for a term which may extend to two years and also fine. The punishment prescribed included a minimum punishment of six months.

2. Section 269UC of the Income-tax Act (hereinafter referred to as the 'Act') requires that whenever an immovable property exceeding a prescribed minimum is sought to be transferred by way of sale, exchange or lease, an agreement for transfer be executed at least four months before the intended transaction and that agreement be recorded in a prescribed manner and 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. In case this provision is violated the punishment is prescribed under Section 276AB which is RI for a term which may extend to two years and also fine. The punishment prescribed included a minimum punishment of six months.

3. In the present case the petitioners. Mr. Vijay Budhraja and Mrs. Saroj Buohraja, sold a property jointly owned by them to one Mr. Ram Lal Munjal. Each of the petitioners' executed a separate agreement to sell to fatour of the purchaser for Rs. 32,50,000 which at the relevant time was, less than the limit of Rs. 50 lakhs. It is contended by the petitioners that the law as prevailed then, as interpreted by this Court, exempted such transactions from the requirement of Section 269UC and that only subsequently the Supreme Court in the case of Appropriate Authority & Commissioner, Income Tax v. Smt. Varshaben Bharatbhai Shah & Ors. AIR 2001 SC 139 held that these transactions were also covered by provisions of Section 269UC of the Act as the total value of the property exceeded the prescribed minimum. It is contended that at the relevant time the law as then prevailed was not violated in any way and, therefore, there was no means rea.

3. In the present case the petitioners. Mr. Vijay Budhraja and Mrs. Saroj Buohraja, sold a property jointly owned by them to one Mr. Ram Lal Munjal. Each of the petitioners' executed a separate agreement to sell to fatour of the purchaser for Rs. 32,50,000 which at the relevant time was, less than the limit of Rs. 50 lakhs. It is contended by the petitioners that the law as prevailed then, as interpreted by this Court, exempted such transactions from the requirement of Section 269UC and that only subsequently the Supreme Court in the case of Appropriate Authority & Commissioner, Income Tax v. Smt. Varshaben Bharatbhai Shah & Ors. AIR 2001 SC 139 held that these transactions were also covered by provisions of Section 269UC of the Act as the total value of the property exceeded the prescribed minimum. It is contended that at the relevant time the law as then prevailed was not violated in any way and, therefore, there was no means rea.

4. It is not disputed on behalf of the prosecution by Mr. R.D. Jolly that the High Court of Delhi held this view that if there are several co-owners each could agree to sell his share for a particular sum and if that was below the particular amount the provisions of Section 269UC were not attracted. The case of Surinder Gupta v. Chief Commissioner of Income Tax and Ors. (1996) 221 ITR 375 is cited to show the position of the view of this High Court. Similar opinion of the Madras High Court is shown in K.V. Kishore v. Appropriate Authority (1990) 51 ITR 478. The Supreme Court approved of the opinion of the Bombay High Court in the case of Jodnararn Daulatram Arora v. M.B. Kodnani; (1996) 221 ITR 368 which ran contrary to the opinion of the High Courts of Madras and Delhi.

4. It is not disputed on behalf of the prosecution by Mr. R.D. Jolly that the High Court of Delhi held this view that if there are several co-owners each could agree to sell his share for a particular sum and if that was below the particular amount the provisions of Section 269UC were not attracted. The case of Surinder Gupta v. Chief Commissioner of Income Tax and Ors. (1996) 221 ITR 375 is cited to show the position of the view of this High Court. Similar opinion of the Madras High Court is shown in K.V. Kishore v. Appropriate Authority (1990) 51 ITR 478. The Supreme Court approved of the opinion of the Bombay High Court in the case of Jodnararn Daulatram Arora v. M.B. Kodnani; (1996) 221 ITR 368 which ran contrary to the opinion of the High Courts of Madras and Delhi.

5. It may be pointed out here that the purchaser also filed a similar petition before this Court which was decided on 1-3-2000. Having considered the change in the interpretation of the relevant statute, this Court observed that the petitioner therein was 85 years old and keeping in view the law as it stood then it would be unfair for a criminal prosecution to be launched against him and, therefore, quashed the complaint. The petitioners are accused in the same case. No the prosecution disputes that the same relief can be granted to the petitioners and further relies upon the comment made in the Judgment of 1-3-2000 saying that the order be not treated as a precedent. The only distinction between the present petitioners and the purchaser Mr. Ram Lal Munjal was that Mr. Munjal was a grand old man of 84 years at the time he made the I petition before this Court.

5. It may be pointed out here that the purchaser also filed a similar petition before this Court which was decided on 1-3-2000. Having considered the change in the interpretation of the relevant statute, this Court observed that the petitioner therein was 85 years old and keeping in view the law as it stood then it would be unfair for a criminal prosecution to be launched against him and, therefore, quashed the complaint. The petitioners are accused in the same case. No the prosecution disputes that the same relief can be granted to the petitioners and further relies upon the comment made in the Judgment of 1-3-2000 saying that the order be not treated as a precedent. The only distinction between the present petitioners and the purchaser Mr. Ram Lal Munjal was that Mr. Munjal was a grand old man of 84 years at the time he made the I petition before this Court.

6. I appreciate that the Judgment dated 1-3-2004 be not treated as a precedent as general interpretation of law but it looks very unfair to deny the benefit of this order to the petitioners who are accused in the same case simply because they may not be as old as Mr. Ram Lal Munjal may have been.

6. I appreciate that the Judgment dated 1-3-2004 be not treated as a precedent as general interpretation of law but it looks very unfair to deny the benefit of this order to the petitioners who are accused in the same case simply because they may not be as old as Mr. Ram Lal Munjal may have been.

If the present petitioners are prosecuted for the same offence for which the co-accused who is an offender in equal measure is set free, it will be nothing but traversity of justice.

7. I accordingly quash the complaint No.178/2002 against the present petitioners also.

7. I accordingly quash the complaint No.178/2002 against the present petitioners also.