TaxTMI 
TaxTMI 
TaxTMI 
2011 (3) TMI 1426
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....e assessee challenged the order of the acquisition of land situated at Jodhpur measuring 1,81,818 sq. yds. passed by the Competent Authority under s. 269F(6) of the Act of 1961. 2. Facts giving rise to this appeal are that erstwhile ruler of Jodhpur State Shri Gaj Singh sold certain lands to M/s Jodhan Real Estate Development Company (P) Ltd. Out of said land, a piece of land measuring 1,81,818 sq. yds. was then sold to M/s Jai Marwar Company (P) Ltd., Jodhpur @ Rs. 5.28 per sq. yd. on 5th Nov., 1971. This company was assessed to income-tax for asst. yr. 1985-86 in respect of transfer of said land. The AO enhanced the sale consideration to Rs. 25,45,452 as against the declared sale consideration of Rs. 24,45,452, thus the increase was to the tune of Rs. 1,00,000 only. The Tribunal by its order dt. 8th Nov., 2002 disallowed the said sale consideration as capital gain in the asst. yr. 1985-86 on the ground that since sale deed was executed on 1st Feb., 1982, capital gain can be assessed only in the asst. yr. 1981-82 [sic-1982-83] and not in 1985-86. 3. The appellant is co-operative society registered under Rajasthan Cooperative Societies Act, 1965. It is claimed that ....
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....Tribunal which vide its order dt. 25th April, 2003 dismissed the appeal. 6. The appellant approached this Court challenging notice of acquisition dt. 15th March, 1985, acquisition order dt. 16th Oct., 2002 and order of Tribunal dt. 25th April, 2003. This Court vide its order dt. 7th Jan., 2004 admitted the appeal for hearing on following questions of law:- "1. Whether the learned lower authorities were right in law and had material to hold that the Competent Authority had reason to believe as required under s. 269C(1) of the Act to initiate proceedings for the acquisition of the impugned land? 2. Whether the learned lower authorities had material and were right in law in holding that the notices have been validly served under s. 269D(2) of the Act on persons stated in s. 269D(2)(a) of the Act? 3. Whether the learned lower authorities had material and were right in law in holding that statutory requirements contained under s. 269D(2)(b) of the Act stand complied with? 4. Whether the orders of the learned lower authorities are not perverse, presumptive and the conclusion and findings arrived at are not vitiated?" 7. We have heard Shri N....
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...., learned senior counsel appearing on behalf of appellant-assessee, argued that several members of appellant-society submitted application to municipal authorities seeking permission to construct residential houses. Copy of one such application submitted by Shri Parasmal Khinvasara was produced before Competent Authority. The Commr., Municipal Corporation, Jodhpur issued a public notice dt. 8th March, 2002 in respect of 70 allottee applicants. In fact, the chief executive officer rejected the application seeking permission to raise construction by the allottee members on the objections raised by the IT Department about pendency of the proceedings under Chapter XX-A of the Act of 1961. Appeals were filed before the Divisional Commr., Jodhpur, by the allottee members. Matter even came up before this Court. Shri Parasmal Khinvasara then filed Special Leave Petition (Civil) No. 7085 of 2002 against the order dt. 15th April, 2002 of this Court passed at its Principal Seat, Jodhpur. The Supreme Court granted leave in that matter and finally recognized Shri Parasmal Khinvasara as owner. 11. It is argued that some of the allottees sold the land by registered sale deed and transfere....
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....dgment of this Court in Krishna Kumar Rawat and Ors. vs. Union of India (1995) 123 CTR (Raj) 61 : (1995) 214 ITR 610 (Raj), wherein it has been held that comparison can be made only in respect of land having similar character and proximity with similar advantages and amenities. Proximity in time is also an important factor in such a case. In this connection, learned counsel relied on judgment of Delhi High Court in CIT vs. Duncans Agro Industries Ltd. (1991) 94 CTR (Del) 203 : (1991) 192 ITR 310 (Del) and judgment of Gujarat High Court in CIT vs. Maneklal Chunilal Shah (1979) 8 CTR (Guj) 147 : (1980) 125 ITR 417 (Guj). Reliance was also placed on judgment of this Court in CWT vs. Raj Kumari Bhubaneshwari Kumari (1994) 119 CTR (Raj) 312 : (1994) 210 ITR 711 (Raj) to argue that the asset, which is subject to certain hazards having effect of diminishing its market value, are relevant factors to be taken into consideration while estimating value of asset in open market. 14. Shri N.M. Ranka, learned senior counsel further argued that even though the legislature in its wisdom did not provide for any time-limit for completion of proceedings under Chapter XX-A of the Act of 1961. N....
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....herefore, in relying on the opinion of advocate Shri Ashok Gaur without confronting the assessee with that opinion in acquisition proceedings and without permitting cross-examination of the standing counsel. The Tribunal was wrong in accepting explanation of delay upto 2002 observing that litigation came to end only in 2002 whereas fact is that leave to appeal was granted by Supreme Court on 28th Oct., 2002 and impugned order of Competent Authority is dt. 16th Oct., 2002. 16. Shri N.M. Ranka, learned senior counsel further argued that valuation file, details, working etc. were not provided. The DVO was also not produced for cross-examination though the appellant specifically raised this demand before the Competent Authority. The Competent Authority erred in law in relying on comparable sale prices of other lands, which were not referred to and relied upon by DVO and which were also not comparable and not similarly situated. It was wholly illegal for Competent Authority to accept the record of DVO because he relied on plots auctioned by Urban Improvement Trust, Jodhpur at Ratanada which is a developed colony and there was no dispute about nature and title of that land or any....
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....advocate Shri K.N. Joshi was also produced. No adverse inference therefore could be drawn against assessee for mere non-production of agreement to sell. 19. It is argued that though sale deed was presented for registration before registering authority on 1st Feb., 1982 and assessee deposited the registration charges on that very day, however, registering authority did not register sale deed on the ground of various litigations and on account of stay order passed by Division Bench of this Court. An application was made by assessee-Samiti before Division Bench with request to allow it to get the sale deed registered at its own risk. The Division Bench so permitted. It was therefore that the sale deed was registered on 27th July. 1984. By operation of law, it should relate back to date of agreement dt. 2nd Oct., 1974. 20. In order to substantiate his arguments, learned counsel relied on judgment of Supreme Court in Gurbax Singh vs. Kartar Singh and Ors. (2002) 173 CTR (SC) 477 : (2002) 254 ITR 112 (SC), judgment of this Court in Maharani Yogeshwari Kumari vs. CIT (1995) 126 CTR (Raj) 453 : (1995) 213 ITR 541 (Raj), judgment of Andhra Pradesh High Court in M. Syamala Ra....
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....v., 2002. 24. Learned counsel argued that Competent Authority is required to record his reasons before initiating proceedings under Chapter XX-A of the Act of 1961. Competent Authority has, in show-cause notice, while initiating proceedings, used both expressions "and/or" with reference to s. 269C of the Act of 1961 and was uncertain as to which was of the two clauses would be attracted and germane for initiation of proceedings. The satisfaction arrived in initiation of proceedings by Competent Authority was thus vitiated by non-application of mind. In this connection, learned counsel relied on the judgments of Bombay High Court in All India Reporter Ltd. vs. Competent Authority (1986) 162 ITR 697 (Bom), Apeejay Premises Co-operative Society Ltd. vs. Nishar Ahmed and Anr. (1990) 85 CTR (Bom) 46 : (1990) 185 ITR 487 (Bom), Udharam Aildas Thadani and Ors. vs. IAC (1990) 85 CTR (Bom) 32 : (1990) 184 ITR 439 (Bom), Carmichael Shikarkunj Co-operative Housing Society Ltd. vs. Union of India and Ors. (1989) 79 CTR (Bom) 219 : (1991) 189 ITR 441 (Bom) and judgment of Punjab and Haryana High Court in CIT vs. Khaitan Electricals Ltd. (2004) 186 CTR (P and H) 153 : (2004) 134 Taxman 7....
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....ansferor, namely, Jai Marwar Co. in favour of another purchaser Jodhpur Zila Sahakari Sangh from the same chunk of land @ Rs. 8.20 per sq. yd. The land in question remained entangled in litigation and proceedings were started under the Rajasthan Land Reform and Acquisition of Land Owners Estate Act, 1964, and Urban Land Ceiling and Regulation Act, 1976, and therefore also its valuation could not be same as of any other land, which was free from encumbrances. In fact, this land was declared as construction zone by this Court in Writ Petn. (PIL) No. 6073 of 1993 filed by one Mahendra Mal Lodha. The judgment of this Court dt. 15th April, 2002 was challenged before Supreme Court in Special Leave Petition. The Supreme Court set aside the same by its judgment dt. 8th May, 2002. IT Department gave clearance certificate for registration of sale deed wherein it accepted the sale consideration of Rs. 24.45,452 as valid. It is argued that Tribunal had no legal jurisdiction to question genuineness and validity of agreement to sell/sale deed, which jurisdiction was available only to a Civil Court in a regular civil suit. The Tribunal has wrongly relied on order of District Judge, Jodhpur, with ....
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....nsideration in instrument of transfer was not truly stated and that prima facie this was with object of facilitating reduction/evasion of liability of transferor/transferee to pay tax. On given material, this satisfaction of Competent Authority was rational and justified. Learned counsel argued that sufficiency of reasons is not required to be gone into details. In support of this contention, learned counsel relied on judgments of Supreme Court in ITO vs. Lakhmani Mewal Das 1976 CTR (SC) 220 : (1976) 103 1TR 437 (SC), Ganga Saran and Sons (P) Ltd. vs. ITO and Ors. (1981) 22 CTR (SC) 112 : (1981) 130 1TR 1 (SC), Raymond Woollen Mills Ltd. vs. ITO and Ors. (1999) 152 CTR (SC) 418 : (1999) 236 1TR 34 (SC), Asstt. CIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 210 CTR (SC) 30 : (2007) 291 ITR 500 (SC) and judgment of Gujarat High Court in CIT vs. Smt. Vimlaben Bhagwandas Patel and Anr. (1979) 13 CTR (Guj) 27 : (1979) 118 ITR 134 (Guj). 29. Shri J.K. Singhi, learned counsel for Revenue, argued that time-limit for initiation of proceedings under s. 269D(1) of the Act of 1961 is nine months from end of the month in which instrument of transfer was registered. In present case....
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.... 30. It was argued that issuance of certificate under s. 230A of the Act of 1961 cannot be a reason to hold present proceedings illegal. Initiation of proceedings on that basis cannot be said to be illegal because that provision simply considers as to if any demand of tax is pending against assessee or not and if it is so, whether satisfactory arrangement has been made for its payment. This certificate does not in any way legitimize the valuation done in the sale deed. 31. Shri J.K. Singhi, learned counsel further argued that order under s. 269F(6) of the Act of 1961 was passed by Competent Authority on 16th Oct., 2002 because so many cases were pending regarding this land and this was yet to be decided whether land in question would be otherwise acquired by State Government under ceiling law. Thus, only in the event of other proceedings being dropped it would be free land available for sale. There was an order by this Court at its Principal Seat, Jodhpur in S.B. Civil Writ Petn. No. 101 of 1986, in which interim order was passed by this Court on 10th Jan., 1986, whereby proceedings under Urban Land (Ceiling and Regulation) Act, 1976, were stayed and ultimately that interim....
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....eb., 1982 but it was registered on 2nd July, 1984. The fair market value has to be therefore determined with reference to the date of execution of instrument of transfer. The date of agreement to sell is thus not relevant in arriving at fair market value. It was further argued that DVO under s. 269L of the Act is statutory authority with statutory role to determine fair market value and also to represent before the Tribunal, if so required by the Competent Authority. The report submitted by the DVO is statutory evidence. He cannot therefore be taken to be a witness. He was thus not liable to be cross-examined. The DVO prepared the valuation report in due discharge of his duties. There being no allegation of mala fide against him, he need not be subjected to cross-examination in respect of his report. It was argued that Competent Authority had provided to the appellant-assessee copy of the report of DVO and other relevant documents. The appellant filed its objections to the report. The Competent Authority visited disputed property and also the comparable cases cited by the DVO. The Competent Authority has exhaustively considered and dealt with the objections of the transferee to the....
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....rgued that even otherwise the date of agreement to sell being 1st Oct., 1974, date of execution of sale deed being 1st Feb., 1982 was more than 7 years later, it is reasonable to believe that during this long period of seven years fair market value of property in dispute must have been doubled. Nondisclosure of true sale consideration was solely intended to evade tax by both transferor and transferee. Learned counsel, in support of his argument, has relied on judgments of the Supreme Court in Ravinder Narain and Anr. vs. Union of India (2003) 4 SCC 481, Rishi Pal Singh and Ors. vs. Meerut Development Authority and Anr. (2006) 3 5CC 205, Chimanlal Hargovinddas vs. Special Land Acquisition Officer and Anr. AIR 1988 SC 1652, Land Acquisition Officer, Revenue Divisional Officer vs. Smt. L. Kamalamma AIR 1998 SC 781 and Subh Ram and Ors. vs. State of Haryana and Anr. (2010) 1 SCC 444. 36. We have give our earnest considerations to the rival submissions, perused the impugned orders and other material on record and respectfully studied the cited precedents. 37. Before adverting to merits of the case we consider it necessary to decide the objection raised by the appellant t....
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....ice to the appellant because opinion by an advocate to its client is a privileged communication in the meaning of s. 126 of Indian Evidence Act, 1872. What the appellant can be said to have been concerned with was the reason for such decision of the IT Department and not the opinion given, which was not to go ahead with the proceedings under Chapter XX-A of the Act, which reason, as noticed above, was already known to the appellant because the same appellant had assailed the proceedings under the urban ceiling law before this Court by filing writ petition. After those proceedings were dropped on 19th Nov., 1999, the IT Department carried the proceeding under Chapter XX-A further to its logical conclusion by ultimately passing the order on 16th Oct., 2002. The argument of the appellant is therefore liable to be rejected and we accordingly do so. 38. The next most significant argument that has been advanced on behalf of the appellant is that there was no prima facie material with the Competent Authority so as to furnish "the reason to believe" that the consideration in instrument of transfer was not truly stated with the object of facilitating reduction/evasion of liability o....
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....ck of good residential colonies in immediate neighbourhood of the land in dispute. The land rate at Rs. 175 per sq. yd. was considered fair and reasonable for developed plots in the said land in July, 1984 and on that basis it was stated that rate of Rs. 200 per sq. yd. was considered fair and reasonable. Allowing 1/3rd open spaces for roads, parks etc., the land rate was taken to be reduced to Rs. 133 per sq. yd. and further allowing deduction for development of roads, drains, street lights, sewers etc., and for the purpose of levelling the land etc., the land rate was reduced to Rs. 66.50 per sq. yd. and it is on that basis the value of the land admeasuring 1,81,818 sq. yds. was worked out to Rs. 1,20,90,897 i.e. approximately Rs. 1,20,91,000. Against the backdrop of these facts, we have to examine whether the Competent Authority had "reason to believe" that consideration in instrument of transfer was not truly stated and that prima facie this was so done with the object of reduction/evasion of liability of transferor/transferee to pay tax. In other words, whether Competent Authority had justification for initiation of proceedings under s. 269C of the Act. 39. In this con....
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....e Supreme Court in Raymond Woollen Mills Ltd. vs. ITO and Ors. (supra) when it held that on this question the Courts can only consider whether there was a prima facie case for reassessment. The Courts cannot go into sufficiency of material in determining whether commencement of reassessment proceedings was valid. The Courts have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at the stage of notice. 42. In Asstt. CIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (supra), the Supreme Court again considering the provisions of s. 147 held that the expression "reason to believe" in that provision would mean cause or justification. If the AO has cause or justification to know or suppose that income had escaped assessment, he can be said to have reason to believe that income had escaped assessment. The expression cannot be read to mean that the AO should have at that stage finally ascertained the fact by legal evidence or conclusion. What is required is "reason to believe" but not the established fact of escapement of income. 43. I....
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....(2006) 200 CTR (P and H) 604 : (2005) 275 ITR 595 (P and H) wherein, in the context of s. 292B of the Act, it was held that if the notice or summons suffers from an inherent lacuna affecting jurisdiction, the same cannot be cured by having resort to s. 292B. In this connection, further reliance has been placed by learned counsel on the judgment of Allahabad High Court in CIT vs. Shital Prasad Kharag Prasad (2005) 196 CTR (All) 162 : (2006) 280 ITR 541 (All). Learned counsel for assessee has also cited two judgments of Gujarat High Court in Indian Dyestuff Industries Ltd. vs. IAC and Anr. (1994) 116 CTR (Guj) 413 : (1994) 206 ITR 485 (Guj) and Unique Associates Co-operative Housing Society Ltd. vs. Union of India and Ors. (1985) 152 ITR 114 (Bom) to gain support on the proposition that since the notice had used both words "and/or", which only indicates that notice was vague and it was not definitely stated whether it was for the object (a) or object (b), for which purpose the proceedings have been initiated therefore the Competent Authority lacked the jurisdiction to initiate proceedings. 46. In Indian Dyestuff Industries Ltd.'s case (supra), the Gujarat High Court noticed t....
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....in the Form was held to have been cured by the provision in s. 292B of the Act of 1961. 47. In the present case also, we are not inclined to uphold this contention because mere use of both the words "and/or" simultaneously does not mean that Competent Authority did not apply its mind to the material and that he lacked the jurisdiction to initiate proceedings. This is because while cl. (a) of s. 269C(1) provides that consideration of transfer has not been truly stated with the object of facilitating the reduction or evasion of liability of the transferor to pay tax under the Act in respect of any income arising from the transfer, cl. (b) however provides that consideration has not been truly stated with the object of facilitating concealment of any income or any money or other assets, which ought to have been disclosed by the transferee for the purpose of IT Act or WT Act. It is thus apparent that while cl. (a) of s. 269C(1) pertains to the object of facilitating reduction or evasion of liability to pay. tax by the transferor, cl. (b) thereof is applicable qua the transferee on the premise that true sale consideration was not stated in the instrument of transfer with the obj....
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....litating reduction or evasion of liability of transferor to pay tax or facilitating concealment of income or money or assets, which have not been and which ought to have been disclosed by the transferor for the purpose of IT Act and WT Act. In order to substantiate this argument, learned counsel for the assessee has relied on the judgments of Gujarat High Court in CIT vs. Smt. Vimlaben Bhagwandas Patel (supra) judgment of Karnataka High Court in LAC vs. National Flag Perfumery Works (supra), judgments of the Supreme Court in K.P. Varghese vs. ITO and Anr. (supra) and CIT vs. Shivakami Co. (P) Ltd. (1986) 52 CTR (SC) 108 : (1986) 159 ITR 71 (SC), and judgment of this Court in CIT vs. Raja Narendra (1995) 123 CTR (Raj) 459 : (1994) 210 ITR 250 (Raj). 51. In all these judgments it has been held that the burden of proof is on the Revenue to show that the assessee had received the amount more than what has been declared by him of consideration in the sale deed namely, the burden of proving such understatement or concealment is on the Revenue. 52. We may at the outset observe that scope of interference under Art. 226/227 of the Constitution of India, which can be culled o....
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....considered for the purpose of compulsory acquisition of the property under Chapter XX-A of the Act of 1961. But, considering the fact that the sub-Registrar refused to register the property due to operation of the ULCAR Act, the Competent Authority proceeded to decide the question of fair market value/sale consideration of this disputed property as on 1st Feb., 1982, the date on which the sale deed was executed. On the amount of consideration of Rs. 24,45,452 declared as on 2nd Oct., 1974, the ft, Competent Authority increased the cost of the land from 2nd Oct., 1974 to 1st Feb., 1982 @ 150 per cent so as to arrive at its fair market value as on 1st Feb., 1982 and with addition of Rs. 36,68,178, arrived at a total sum of Rs. 61,13,630. As against this, the apparent consideration mentioned in the sale deed was of Rs. 24,45,452. Thus there was a difference of more than 15 per cent between the fair market value and the apparent sale consideration as on 1st Feb., 1982. 54. In comparison to this, the value computed by the DVO as on 27th July, 1984 was Rs. 1,20,90,000, according to which the rate of the land would come to Rs. 66.50 per sq. yd. This was done on the basis of four c....
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....about the relevant time, which were considered by the District Judge. While in six instances relied upon by the UIT, the rate varied from Rs. 4.40 per sq. ft. to Rs. 5 per sq. ft.; in two other cases, the rate as per records of the Government of India and Government of Rajasthan was Rs. 5 per sq. ft. and the rates as per 22 instances quoted by the assessee were Rs. 3.30 per sq. ft. to Rs. 7.15 per sq. ft. These sale instances were for the period from 24th July, 1970 to 7th Dec., 1978. The learned District Judge also noted that the land of Puri Petrol Pump, Ratanada, at the relevant period was valued @ Rs. 128.29 per sq. yd. In another instance, the land adjacent thereto belonging to Shri Ajit Singh was valued by the DVO, IT Department between 1968 to 1976 @ Rs. 18 to Rs. 36 per sq. yd. In our view, the Competent Authority was justified in comparing the rates adopted by the District Judge, Jodhpur, in the case of acquisition of the land just opposite the disputed land which he found to be closer to the land in dispute for the reasons that its size was reasonably large being 35,553 sq. yds. and its location is also almost the same from the disputed land and it was closer to the land ....
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....he registering authority has allowed registration of sale deed on sale consideration of Rs. 25,45,452, it should be accepted as correct sale consideration. His further submission is that though originally the sale deed was presented, sale consideration of Rs. 25,45,452 but the registering authority has merely disallowed the deduction of Rs. 1,00,000 for the purpose of levelling of the land therefore the valuation so declared by the transferor and transferee and accepted by the registering authority should be considered as final. We find ourselves unable to uphold this submission either. A Division Bench of this Court in Krishna Kumar Rawat and Ors. vs. Union of India and Ors. (2007) 210 CTR (Raj) 553 : 2007 (4) RLW 3132 (Raj) while repelling challenge to pre-emptive purchase order passed under s. 269UC of Chapter XX-C of the Act of 1961, held that area-wise static rates fixed uniformly for the purpose of registration of conveyance deeds, have no application to pre-emptive purchase order. It was held that what is popularly known as DLC rates, fixed by the District Level Committee, by themselves cannot be a conclusive index of prevalent market rate in a given area. 57. In Chi....
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....ce can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is an understatement or concealment of consideration in respect of transfer". It may not be possible for the Revenue to pinpointedly prove by direct evidence the factum regarding understatement of valuation or consideration. As rightly held by the Supreme Court in K.P. Varghese's case (supra), it is only by establishing facts and circumstances from which a reasonable inference can be drawn by a person of ordinary prudence that assessee has not correctly declared or disclosed income received by him and there is understatement or concealment of consideration in respect of this land. There are in this case several such factors owing to which the Competent Authority was fully justified in drawing that inference. The Tribunal has in this behalf rightly concurred with the view expressed by the Competent Authority. 60. Adverting now to the argument that Competent Authority should have issued/served notice to/on each of the members of the assessee-society, we must observe that this argument cannot be upheld because the members claimed their right or interest only th....
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....ular immovable property. He merely acts as an expert and adviser to the Competent Authority for the purpose of enabling such Competent Authority to determine fair market value of the property firstly at the stage of initiation of proceedings and finally at the time when he has to decide the question whether property has to be acquired under s. 269F. In present case, we are concerned with the report of the Valuation Officer at the time of initiation of proceedings under s. 269C. But, despite obtaining his report, the Competent Authority has to take his own independent judgment at the stage of initiation of proceedings. The Competent Authority in this respect has rightly held that report given by Valuation Officer in writing has been furnished to the assessee and their objections to such valuation report have also been considered as also another valuation report submitted by the assessee has been considered. While considering the demand of the assessee to cross-examine the Valuation Officer and on the question of principle of natural justice, the Competent Authority in para 25 of its order rightly relied on the judgment of Tribunal Bombay in GTC Industries Ltd. vs. Asstt. CIT (1998) ....