Income Tax Appellate Tribunal - Madras
C.S. Mohan vs Inspecting Assistant Commissioner on 2 June, 1989
Equivalent citations: [1989]31ITD205(MAD)
ORDER
George Cheriyan, Sr. Vice-President
1. This appeal is filed by one Shri C.S. Mohan, stated to be one of the transferees in respect of the order under Section 269F(6) of the Income-tax Act, 1961, passed on 29-3-1988. In the cause-title of the said order passed by the competent authority, the present appellant Shri C.S. Mohan was, due to a typographical error, being wrongly described as "Transferor". The "Transferor" was M/s. Asian Wire and Allied Products. The order under Section 269F(6) aforesaid dated 29-3-1988 was received by the appellant on 2-4-1988. If an appeal was to have been preferred against the said order, then under the provisions of Section 269G, the appeal should have been preferred within forty-five days from 29-3-1988 or within thirty days from 2-4-1988, with reference to either of those dates, an appeal filed after the relevant date in May 1988 with reference to the aforesaid order would have been out of time. The matters rested there for sometime. There was no appeal and on 16-5-1988, the appellant wrote a letter to the IAC, Acquisition Range-I, who was the competent authority. (A copy of the letter is marked as Annexure-A hereto.). In the letter, he has stated that he had not preferred any appeal against the order of the competent authority and, therefore, the order had become final and that he would be entitled to the compensation provided under Section 269J and he had requested for steps to be taken to have the property vested in Government as expeditiously as possible. That was followed by a letter dated 6-2-1989 by the appellant addressed to Chief Commissioner of Income-tax, Madras. (Copy of this letter forms Annexure-B to this order). A reply was received from the Chief Commissioner (Admn.) dated 7th February, 1989 (Copy forms Annexure-C to this order). Finally, on 6-4-1989, the appellant addressed another letter to the Chief Commissioner of Income-tax (Administration) (Copy forms Annexure-D to this order). To the aforesaid letter of 6-4-1989, the appellant received a letter from the Commissioner of Income-tax, Tamil Nadu III dated 12-4-1989 (Copy forms Annexure E to this order). The letter of the Commissioner of Income-tax, Tamil Nadu III dated 12-4-1989 was received by the appellant on the same day and the appellant apparently considering this order to be part of the order acquiring the property, filed an appeal on 26-5-1989 which was the 44th day from the date of receipt of the said letter which date also happened to be the date of the said letter. The period of 30 days from 12-4-1989 having expired and the appeal having been filed on the 44th day from the date of receipt, i.e., 12-4-1989, if the letter of 12-4-1989 is a continuation of the order of acquisition, the appeal would be within time under the provisions of Section 269G.
2. The question that arises is whether the letter of 12-4-1989 written by the Commissioner of Income-tax, Tamil Nadu III can be considered to be an order in continuation of the order passed by the Competent Authority, namely, the Inspecting Asstt. Commissioner of Income-tax, Acquisition Range I on 29-3-1988.
3. The learned counsel for the appellant submitted that the order of 29-3-1988 clearly mentioned that the aforesaid order of acquisition was passed after obtaining the approval of the Commissioner of Income-tax, Tamil Nadu III. This being so, according to him, the letter of 12-4-1989 of the authority who gave the approval to the passing of the order of acquisition should be construed to be an order in continuation of the earlier order of acquisition. He, therefore, submitted that the appeal should be taken to be in time and we should go into the merits raised in the grounds of appeal.
4. The learned Departmental Representative, on the other hand, submitted that the Tribunal has jurisdiction only to hear appeals against orders of acquisition of immovable property made by the Competent Authority under Section 269F for which he sated there were limitations in Section 269G and the Commissioner of Income-tax, Tamil Nadu III was not Competent Authority to pass an order of acquisition and the letter of the Commissioner of Income-tax, Tamil Nadu III could not be considered to be an order in continuation of the order made by the Competent Authority. He, therefore, submitted that the appeal should be dismissed in limine, as being incompetent.
5. Though it is not strictly relevant for the purposes of deciding the present appeal, we would only state that the property described in paragraph of the order of the Competent Authority under Section 269F(6) dated 29-3-1988 for which the apparent consideration is mentioned in the aforesaid paragraph as Rs. 25,41,000, consists of land and building valued at Rs. 5,38,310 which was conveyed by an instrument of sale executed on the 11th August, 1986 which was presented in the office of the District Registrar, Madras South on 28-8-1986 but which was registered by him as Document No. 3262 of 1986 in Book I, Vol. 562, at pages 191 to 195 on the 1st October, 1986 (Annexure F). In the view that we are taking, the question of going into the significance of this date any further does not arise because the only further fact which for sake of completeness would merit mention is that Chapter XX-A relating to acquisition of immovable property ceased to operate in respect of transfer of immovable property made after 30-9-1986. The question of our going into the issue as to whether the transfer took place before this date or after this date will arise only if we go into the appeal on merits. The other component which went to aggregate Rs. 25,41,000 is the value of machniery which was the subject of a memorandum of transfer of business also dated 11th August, 1986 (Annexure G) aggregating to Rs. 19,52,690 and the value of goodwill covered by the aforesaid agreement aggregating to Rs. 50,000. According to the Competent Authority, in the order under Section 269F(6) dated 29-3-1988, the market value determined for the aforesaid assets was Rs. 31,73,000 of which the break-up is as under: -
Land and building (as per the valuation report by the Departmental Valuation Cell) Rs. 11,71,000 Plant and Machinery as per Memorandum of business Rs. 19,52,000 Goodwill Rs. 50,000
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Rs. 31,73,000
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6. the term "Competent Authority" is defined in Section 269A(b) as under:---
'competent authority' means an Assistant Commissioner of Income-tax authorised by the Central Government under Section 269B to perform the functions of a competent authority under this Chapter.
(Emphasis supplied) Therefore a Commissioner of Income-tax falls outside the purview of the definition of "competent authority". The Competent Authority if he decides to acquire a property can do so under Section 269F(6) after obtaining the approval of the Commissioner. This approval was obtained in passing the order dated 29-3-1988 where the authority who gave the approval was the Commissioner of Income-tax, Tamil Nadu HI. The very scheme of the Act shows that the competent authority who passes the order and the Commissioner who gives the statutory approval for acquiring the property are two different persons. The Commissioner of Income-tax is not the "competent authority" but is a person from whom the "competent authority" has to seek statutory approval under Section 269F(6). Appeals to the Tribunal under Section 269G lie only against orders made by the "competent authority". Therefore, on a plain reading of the Act, even if the letter of the Commissioner of Income-tax, Tamil Nadu III dated 12-4-1989 is considered to be an order, it would not be an order of the "competent authority" as envisaged in Chapter XX-A as it then stood relating to acquisition of immovable property. When the letter of 12-4-1989 is not an order of the "competent authority", the question of considering such letter of 12-4-1989 as continuation of the order passed by the "competent authority" on 29-3-1988 cannot arise. The only order of the "competent authority" on record is that dated 29.3.1988 in respect of which we have already pointed out the appellant had stated in correspondence that no appeal was filed and in respect of which the time for filing an appeal is over. Again for the sake of completeness, we would state that occasion had arisen for this Bench to consider whether the Tribunal was competent to condone delay in presenting appeals after the period mentioned in Section 269G and in our order in I.T. Acq. No. 38/Mds/88 dated 26-10-1988 where we had come to the conclusion that we have no powers to do so. (A copy of the aforesaid order forms Annexure 'H' to this order). Therefore, the question of our entertaining the appeal filed on 26-5-1989 with reference to the order dated 29-3-1988 does not arise. This being the position, our conclusion is that the appeal filed on 26-5-1989 and which is now under our consideration is incompetent in law and, therefore, has to be dismissed in limine as being incompetent.