TaxTMI 
TaxTMI 
2009 (12) TMI 112
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..... No. 294, R. S. No. 26 (Pt Naduvankarai Village, Anna Nagar measuring an extent of one ground and 1,200 sq. ft. with the building thereon having built up area of 3,400 sq. ft. bearing Municipal Door No. AH 151, 3rd street, Anna Nagar, Chennai-40, was sold by the first accused to the fourth accused for a consideration of Rs. 20 lakhs each totalling Rs.40 lakhs, with wilful intention to evade the legal obligations to be performed as required under Chapter XX-C of the Income-tax Act,1961 and they have subjected the impugned property which is one single unit by two sale deeds of absolute sale for a total consideration of Rs. 40 lakhs. (b) The first accused to the fourth accused ought not to have entered into an agreement for the sale of the aforesaid property the apparent consideration of which exceeds Rs. 25 lakhs and filed Form 37-I as required under section 269UC of the Act within the statutory time limit prescribed thereunder, thereby accused Nos.1 to 4 have contravened the provisions of section 269UC of the Act and committed an offence under section 276AB of the Act. (c) Accused Nos.1 to 4 ought not to have completed the sale transaction without obtaining 'no objection cert....
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.... each deed of sale was less than Rs. 25 lakhs, which would not amount to violation of section 269UC as the section comes into play when a single unit of property was sold for Rs. 25 lakhs, whereas the facts in this case is otherwise and there fore, the complaint has to be quashed. (d) Section 269UC requires that no transfer of immovable property of specific value shall be effected except in accordance with the said section immovable property is defined under section 269UA to include any land and building including any right therein; hence any right, title or interest in the immovable property is also included within the definition of immovable property ; hence undivided interest in the immovable property is recognised as immovable property for the purpose of section 269UC; any specific undivided interest in a property by any document which is legally executed and which has been accepted for registration by the registering authority would constitute immovable property; the registering authority who is aware of the provisions of Chapter XX-C and is an authority appointed by the Government has accepted the transaction and registered the transaction of sale; consequently it is not o....
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....ublic prosecutor for the income-tax cases was heard. 7. Learned special public prosecutor submitted that the property sold by the accused is a single unit property and to avoid the legal obligation, the accused sold the same by splitting the same into two units under two different sale deeds in order to defeat the provisions contained in section 26915C of the Act and to avoid filing Form No. 37-I. He submitted that the contention of the learned senior counsel for the petitioners that the corn - plaint for the alleged offence under section 276AB of the Act could be filed only by the Appropriate Authority and the same cannot be filed by one of the members of the Appropriate Authority is not sustainable. He submitted that in the sanction order issued under section 279(1) of the Act by the Appropriate Authority while accorded sanction to file a criminal complaint, the Appropriate Authority has authorised the First Member, I. Kalpagam Bhaskaran, Appropriate Authority, Chennai, to file the complaint and therefore, the complaint filed by the Appropriate Authority, represented by one of its Members is maintainable. In support of the said contention, the learned special public prosecutor....
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.... spilt up a single unit of immovable property into several undivided shares and transfer the same under different sale deeds and defeat the very purpose and the object of section 269UC of the Act and therefore submitted that splitting a single unit into several units is not permissible under the Act. In support of the said contention, the learned special public prosecutor relied upon a decision of the apex court reported in Appropriate Authority v. Smt. Varshaben Bharatbhai Shah [2001] 248 ITR 342 (SC). In the said decision, the apex court has laid down as under (page 348): "What, in our opinion, therefore, has to be seen for the purposes of attracting Chapter XX-C is: what is the property which is the subject-matter of transfer and what is the apparent consideration for such transfer. This has to be seen in a real light with due regard to the object of the Chapter and not in an artificial or technical manner. If the apparent consideration for the transfer is more than the limit prescribed for the relevant area under rule 48K, what has then to be seen is whether the apparent consideration for the property is less than the market value thereof by 15 per cent. or more. If so, the ....
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....e in the contention that the complaint has been filed in a haste. He further submitted that for prosecuting a person for violation of the provisions contained in section 269UC under section 276AB of the Act, there e not be undervaluation of the property in the sale deeds concerned; the prosecution is only for violation of section 269UC namely that for not obtaining no-objection certificate by filing Form 37-I; the contention of the petitioners that since the show-cause notice contains incorrect details relating to the immovable property and therefore the complaint is not maintainable is also not sustainable for the reason that before prosecuting person for violation of the provisions contained under section 269UC, there is no requirement in any of the provisions of the Act to issue a show ruse notice before actually filing the complaint. 10. I have considered the submissions made by the learned counsel on ether side, perused the materials available on record and the allegations contained in the complaint. 11. Section 269UA of the Act defines certain terms for the purposes of Chapter XX-C which deals with the purchase by the Central Government of immovable properties in certai....
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....ought for no objection certificate from the Appropriate Authority. On the other hand, if certain unit is divided into two undivided halfs and the same is sold under two different sale deeds, then the apparent consideration will fall within the prescribed limit and the need for obtaining no objection certificate would not arise and therefore, in the considered view of this court, the accused have split the single unit of the immovable property into two undivided halfs and the first accused has executed two sale deeds in favour of the third accused just to evade compliance with section 269UC of the Act. Therefore the contention of the learned senior counsel for the petitioners cannot be countenanced. 13. As far as the contention of the learned senior counsel for the petitioners that since the complaint has not been filed by the Appropriate Authority but the same has been filed by one of its Members and therefore the complaint is not maintainable is concerned, it has to be pointed out that in the sanction order, the Appropriate Authority while sanctioning the prosecution against the accused had specifically authorised one of its members namely the First Member, Mrs. I. Kalpagam Rha....