Appropriate Authority should exercise power under Section 269 UD with great care and utmost fairness. Market value should be determined in a fair and just manner: Calcutta High Court.
This case was filled against the order passed in W.P No. 2821 of 1993 dated 14.08.2018. The said writ petition was filed challenging the order dated 29.07.1993 passed by the Appropriate Authority, under Section 269 UD of the Income Tax Act, 1961. The Judgment in Ashwika Kapur vs Union Of India & Others (Citation: A.P.O NO. 287 OF 2018) was served by THE HON’BLE MR. JUSTICE T.S. SIVAGNANAM AND THE HON’BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
FACTS OF THE CASE:
An agreement dated 05.08.1988, was entered into between Mrs. Mina Gupta and Dr. Ambar Gupta with M/s. Stewart Hall (India) Limited, agreeing to let out a flat bearing No. D-113, Tower Block, Saptaparni Cooperative Housing Society Limited, Ballygunge, Kolkata agreeing to lease out the said flat for a monthly rent of Rs. 4,000/-initially for a period of three years, renewable for a further period of two years. The original writ petitioner Mr. Ashwani Kapur was employed in a senior position in M/s. Stewart Hall (India) A.P.O NO. 287 OF 2018 Limited and he was permitted by his employer to occupy the flat as a licensee under the company. During February 1993, Mrs. Mina Gupta and Dr. Ambar Gupta wrote to M/s. Stewart Hall (India) Limited for increase of rent by Rs. 500/- per month, agreeing that the company can continue as a tenant as long as they paid the rent on time. The company agreed to the said demand and paid increased rent of Rs. 4500/- per month from January 1, 1993 with a condition that the tenancy would continue as long as the company desired to which Mrs. Mina Gupta and Dr. Ambar Gupta agreed. As mentioned, the original writ petitioner Mr. Ashwani Kapur was occupying the flat as a licensee of the company. An agreement for sale dated 21.04.1993 was entered into between Mrs. Mina Gupta and Dr. Ambar Gupta and the original writ petitioner/licensee agreeing to sell the flat, subject to the subsisting tenancy, in favour of Mr. Ashwani Kapur for a sale consideration of Rs. 13,00,000/-. Mrs. Mina Gupta and Dr. Ambar Gupta filed Form 37 I dated 04.05.1993 before the Appropriate Authority, the original second respondent, under Chapter XX-C of the Act, in the capacity of transferors and the original writ petitioner was the transferee. It was specifically stated that the flat was occupied by Stewart Hall (India) Limited as a tenant and possession would be granted to the original writ petitioner (licensee) only after no objection certificate is issued by the Appropriate Authority. On 17.05.1993, a team of valuers from the office of the Appropriate Authority visited the flat. Thereafter, on 15.07.1993 the Appropriate Authority addressed both the transferors and the transferee raising various queries. This communication is said to have been received on 17.07.1993 to which the original writ petitioner filed a reply on 20.07.1993. The case of the original writ petitioner is that on 26.07.1993 A.P.O NO. 287 OF 2018 late in the afternoon, he received a show cause notice dated 21.07.1993 fixing the date of hearing on 27.07.1993 at 11:00 AM. Along with the show cause notice, a valuation report valuing the flat at Rs. 28,35,000/- was enclosed wherein there was reference to three sale instances. The writ petitioner’s case is that no documents relating to the sale instance were provided along with the show cause notice and in none of the sale instances, the property was shown to be a tenanted property or a property developed by a Cooperative Housing Society, as in the case of the subject flat. On 27.07.1993, the transferors also filed their reply to the show cause notice and on the same day, the tenant namely Stewart Hall (India) Limited also filed their reply. The original writ petitioner challenged the valuation report provided along with the show cause notice and requested for the report of the valuating team which had visiting the flat in May 1993. No reply was received by the original writ petitioner and an order dated 29.07.1993 was passed by the Appropriate Authority exercising their right of pre-emptive purchase.
JUDGEMENT :
After going through Facts and circumstances, the observed that the order passed by the Appropriate Authority dated 29.07.1993 is unsustainable, in gross violation of principles of natural justice, perverse and liable to be set aside. Accordingly, the appeal is allowed, the order passed in the writ petition is set aside. Consequently the writ petition is allowed and the order passed by the Appropriate Authority dated 29.07.1993 is set aside and the Appropriate Authority is directed to issue necessary certificate under Section 269 UL of the Act within two weeks from the date of receipt of the server copy of this judgment and the vendors are directed to proceed further to complete the sale transaction in favour of the appellant within four weeks from the date of receipt of the certificate under Section 269 UL of the Act. No costs.
JUDGEMENT REVIEWED BY AKANKSHA