Back
1996 Supreme(All) 940
HIGH COURT OF ALLAHABAD
P.K. Mukherjee, M.C. Agarwal, JJ.
Manik Chand Sethia – Appellants
Versus
Union Of India (Uoi) And Ors. - Respondents
Civil Miscellaneous Writ 953 of 1994
Decided on : Aug 27, 1996
Ravi Kant, Shekhar Srivastava
The fair market value of a property for the purposes of preemptive purchase under Section 269UD of the Income-tax Act, 1961, should be determined by taking into account all relevant factors, including the advantages, liabilities, and obligations attached to the property, and the restrictions on the transfer of the property.
Headnote:
INCOME TAX - PREEMPTIVE PURCHASE - FAIR MARKET VALUE - DETERMINATION - SALE INSTANCE - APPARENT CONSIDERATION - LEASE DEED - AGREEMENT TO SELL - RELEVANT PROVISIONS - INTERPRETATION - WRIT PETITION - MAINTAINABILITY - POSSESSION - RESTORATION.
Fact of the Case:
The petitioner challenged an order passed by the Appropriate Authority under Section 269UD of the Income-tax Act, 1961, ordering the purchase of a plot of land for a consideration of Rs. 14,57,149. The petitioner and the landowner had entered into an agreement to sell the plot for a consideration of Rs. 14,90,000, with the petitioner agreeing to pay the transfer charges to NOIDA. The Appropriate Authority determined the fair market value of the land by adopting a sale instance of a built-up property, estimating the value of the land at Rs. 4,370 per sq. mtr. The petitioner contended that the determination of fair market value was untenable due to various reasons, including the non-consideration of the provisions in the lease deed and the agreement to sell.
Finding of the Court:
The court held that the determination of fair market value by the Appropriate Authority was perverse and could not be sustained. The court found that the Appropriate Authority had not properly determined the value of the building existing on the plot used as an exemplar, and had not taken into account the restrictions on the transfer of the leasehold rights and the additional liability of transfer charges to be paid to NOIDA, as provided in the lease deed and the agreement to sell. The court also held that the petitioner, as the transferee, had the right to maintain the writ petition as a person interested in the property, as per the definition of "person interested" in Section 269UA(e) of the Act and the insertion of Sub-section (1A) by the Finance Act, 1993.
Issues: 1. Whether the determination of fair market value by the Appropriate Authority was proper and in accordance with the provisions of the Act? 2. Whether the petitioner, as the transferee, had the right to maintain the writ petition as a person interested in the property?
Ratio Decidendi: 1. The court held that the determination of fair market value by the Appropriate Authority was perverse and could not be sustained. The court found that the Appropriate Authority had not properly determined the value of the building existing on the plot used as an exemplar, and had not taken into account the restrictions on the transfer of the leasehold rights and the additional liability of transfer charges to be paid to NOIDA, as provided in the lease deed and the agreement to sell. The court observed that the fair market value of a property depends on the advantages, liabilities, and obligations that the property carries with it, and that the Appropriate Authority had failed to consider these relevant factors. 2. The court held that the petitioner, as the transferee, had the right to maintain the writ petition as a person interested in the property. The court interpreted the definition of "person interested" in Section 269UA(e) of the Act and the insertion of Sub-section (1A) by the Finance Act, 1993, to include the transferee as a person who is interested in the property and has the right to contest the proceedings before the appropriate authority and challenge the order before a High Court in a writ petition.
Final Decision: The court allowed the writ petition and quashed the impugned order of purchase passed by the Appropriate Authority. The court directed the respondents to restore possession of the property in question to the owner and recover the amount paid by the Union of India for the purported purchase of the property.
M.C. Agarwal, J.
1. BY this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated August 30, 1994, passed by the Appropriate Authority, Lucknow, under Section 269UD of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), ordering the purchase of plot No. B-70, Sector 14, NOIDA, for a consideration of Rs. 14,57,149.
2. WE have heard Sri Ravi Kant, learned counsel for the petitioner, and Sri Shekhar Srivastava, learned standing counsel for respondents Nos. 1 and 2. No one appeared for the landlord (lessee), respondent No. 3.
Smt. Krishna Kalra, respondent No. 3, acquired the aforesaid plot, measuring 406.25 sq. mtrs., from the New Okhla Industrial Development Authority (hereinafter referred to as "NOIDA") on a lease of 99 years for a premium of Rs. 73,937.50, by lease deed dated October 29, 1981. She entered into an agreement with the petitioner on May 7, 1994, to sell her rights in the said plot for a consideration of Rs. 14,90,000. A sum of Rs. 1,60,000 was paid by way of earnest money and the balance was to be paid at the time of the execution of the sale deed that was to be executed on or, before August 30, 1994. According to the terms of the agreement to sell, all transfer charges to be charged by NOIDA were to be paid by the purchaser, that is, the petitioner. The transfer charges payable to NOIDA were 25 per cent. of the difference between the premium paid by the original lessee and the sale consideration. The petitioner and respondent No. 3 jointly filed a return in Form No. 37-I before the appropriate authority and the appropriate authority by the impugned order, decided to purchase the said property for the Union of India. That order is challenged in the present writ petition.
3. IN a lengthy petition, several grounds, including the one about the constitutional validity of the provisions contained in Chapter XX-C of the Act have been set up. The constitutional validity of the provisions of preemptive purchase was upheld by the Supreme Court in C.B. Gautam v. Union of INdia [1993] 199 ITR 530. Learned counsel for the petitioner, therefore, restricted his arguments to the determination of the fair market value of the land.
4. THE appropriate authority has adopted a sale in respect of plot No. A-8, Sector 14, NOIDA, as an exemplar. That was a plot measuring 450 sq. mtrs. with a 2 1/2-storeyed building built thereon along with a basement and that was sold for a consideration of Rs. 44,00,000 by a sale deed dated February 28,1994. THE Valuation Officer of the Department had estimated the value of the building situate over that plot at Rs. 24,78,500 and that of the land at Rs. 19,21,500 and thus estimated the sale consideration of the land in that transaction at Rs. 4,057 per sq. mtr. To this, he added Rs. 101.43 for estimated appreciation in value on account of the time lag between February 28, 1994, and May 7, 1994, and Rs. 207.93 per sq. mtr. for the locational advantage inasmuch as the plot in question was open on two sides while the exemplar plot was open on one side only. Thus, according to the report of the Valuation Officer, the fair market value of the disputed plot of land was Rs. 4,370 per sq. mtr. while according to the sale consideration agreed between the parties, it was Rs. 3,667.69 per sq. mtr.
Learned counsel for the petitioner contended that the determination of the fair market value of the property by the appropriate authority is untenable because of the following reasons :
(i) The provisions in the lease deed and the agreement to sell between the parties have not been taken into account for determining the fair market value.
(ii) The sale instance of plot No. A-8 aforesaid was not a proper exemplar because that was a sale of a built-up property for a composite consideration of Rs. 44,00,000 and the determination of the value of the land of that plot has been done in an arbitrary manner.
(iii) The situational advantages of plot No. A-8 have not
