TaxTMI 
TaxTMI 
2011 (11) TMI 471
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....sell dated 18.12.1994. 3. On 19.12.1994, the parties to the agreement to sell filed an application/statement in Form No. 37-I under Rule 48-L of the Income Tax Rules, 1962. Thereafter, vide letter/notice dated 30.12.1994, the petitioner was asked to furnish information/details required by the Appropriate Authority. These details/information were furnished on 9.1.1995. On the same date the Appropriate Authority had physically inspected the property, and carried out measurements of the built up area of the property. The physical measurement of the property was required as in the valuation report, the built up area of the property was stated to be 981 sq. ft. and not 896 sq. ft., as declared in the agreement to sell/Form 37-I. On actual measurement, it was found that the built up area of the flat was, in fact, 981 sq. ft. Therefore, it was decided to treat the built up area of 986 sq. ft. declared in Form No. 37-I as correct. 4. Before dealing with the proceedings and the impugned order passed by the Appropriate Authority, it would be relevant to refer to some orders passed in this writ petition. On 17.4.1995 notice was issued and accepted by the respondent No. 1. ....
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....sellers-respondents No. 3 & 4 have been paid and have not entered appearance at the time of arguments. It appears that they have nothing to state in view of the factual background of the case noted above. 7. The petitioner, in the present proceedings, has challenged the order of the acquisition dated 22.3.1995 principally on three grounds: (1) Appropriate Authority's failure to grant adequate time and fair hearing to the petitioner, resulting in violation of principles of natural justice; (2) Appropriate Authority has taken into consideration the material which was not confronted, stated and mentioned in the notice dated 10th March, 1995 issued by the Appropriate Authority to the petitioner why the property should not be acquired under Section 269 UD (1); (3) Failure of the Appropriate Authority to take into consideration the material and relevant factors and taking into consideration irrelevant factors in deciding and determining whether there was under-statement of consideration. Other aspects connected with and intertwined with the three contentions have been noted below. 8. Contention Nos. 1 and 2 are somehow interconnected and are being taken up together. F....
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....o copies thereof for verification and return. In case of failure to arrange representation on the aforesaid date and time, necessary orders will be passed in accordance with law on the basis of material already available on record without any further reference to you." 9. As stated above, the hearing was fixed before the Appropriate Authority on 21.3.1995 at about 10.30 a.m. On 21.3.1995, the petitioner filed their response which was dated 18.3.1995. They raised two contentions, that the building "Madhuban" cannot be compared with the building "Ansal Tower", as in the cause notice dated 10th March, 1995, which has been reproduced above, the respondent No. 1 had referred to the sale instance of the Flat No. 512, Ansal Towers, Nehru Place, which was sold as per the agreement dated 30.11.1993 for Rs. 15,53,750/-. The petitioner pointed out the difference between two buildings in a chart enclosed with the reply dated 18.3.1995. The said chart is relevant and is re-produced below: "Statement comparison of the building Madhuban with Ansal Tower. Madhuban Ansal Tower 1. It is a building construction of which has 1. It is building construction of been completed about 20 years back....
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....should be much more. 11. Hearing took place on 21st March, 1995. As noticed above, the impugned order for acquisition of the property under Section 269 UD (1) of the Act was passed on 22.03.1995 i.e. one day after the hearing had taken place. 12. In the impugned order dated 22.3.1995, the Appropriate Authority has referred to another sale instance in Chiranjeev Tower, which was sold by public auction by Income Tax Department on 15.2.1995. As per the Appropriate Authority, the flat in Chiranjeev Tower was sold for Rs. 4558/- per sq.ft. The impugned order dated 22.3.1995 in paragraph 3 specifically states that during the course of hearing on the same date, the sale instance of the flat of Chiranjeev Tower, Nehru Place admeasuring 2919 sq. feet was brought to the notice of the petitioner. As noticed above, the sale instance of the flat in Chiranjeev Tower, Nehru Place was not mentioned in the show-cause notice dated 10th March, 1995 and thus was relied upon by the Appropriate Authority for the first time only at the time of hearing. The petitioner was not given any time to rebut or offer any explanation or distinguishing factors in respect of Chiranjeev Tower, Nehru Place....
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....iceable that the Valuation Officer of the Appropriate Authority had stated that due to locational disadvantage (as Ansal Tower was facing main road, whereas Madhuban Tower was located inside the complex) 10% adjustment was required. The valuation report did not take into consideration other aspects like the age of the two properties and the factum that in Madhuban Tower, there was no parking facility inside the complex. Age of the building is an important and relevant consideration and a 20 years old construction does not fetch the same price as a newly constructed commercial flat with modern amenities. Purchasers and tenants normally have preference for new buildings, which are better in quality and have more facilities and considered a better address. Frequent maintenance and expenditure or cost and inconvenience caused in 20 years' old building are other factors, which depreciates the market value. 16. Appropriate Authority noticed that the two flats i.e. the flat in question and the sale instance were located on the different floors i.e. on 8th and 5th floor respectively. Accordingly, deduction of 3% on account of the floor difference has been given. This may be acceptable a....