Delhi High Court
Megsons Exports vs Union Of India And Others on 23 September, 1991
Equivalent citations: 45(1991)DLT559, [1992]194ITR225(DELHI)
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
1. The challenge in this writ petition is to the order dated March 15, 1990, where by the appropriate authority under the Income-tax Act, 1961, had not granted permission to the petitioner which he has sought by an application in Form No. 37-I of the Act.
2. Respondent No. 4 is the owner of the property bearing No. D/41, Okhla Industrial Area, Phase-I, New Delhi. It had entered into an agreement to sell the said property in favor of the petitioner. An application was filed on January 31, 1990, in Form No. 37-I in accordance with the provisions of section 269UC. The appropriate authority, by the impugned order, did not grant the "no objection certificate" nor did he exercise the right of pre-emptive purchase. He came to the conclusion that the agreement which has been entered into by the owner with the proposed transferee had resulted in the creation of certain rights in favor of the transferee in accordance with the provisions of section 53A of the Transfer of property Act. According to the appropriate authority, possession of the property had been handed over to the transferee and there had been a part performance of the contract and the letter and intent of the provisions of chapter XX-C of the Income-tax Act had been violated. According to the appropriate authority, there had been a breach committed of this Chapter and prosecution could be initiated. He further came to the conclusion that the consideration shown was Rs. 24 lakhs, out of which Rs. 22 lakhs have already been paid and he concluded that the pre-emptive right to purchase had been defeated by the parties.
3. While challenging the aforesaid decision, learned counsel for the petitioner places reliance on the decision in Tanvi Trading and Credits Pvt. Ltd. v. Appropriate Authority [1991] 188 ITR 623 (DELHI). The provisions of sections 269UC, 269UD, and 269UL were considered by a Division Bench of this court and it was, inter alia, held that, when a application under section 269UC is filed, the appropriate authority can either buy the property or issue a "no objection certificate. " No other course was open to the appropriate authority. The decision in Tanvi Trading and Credits' case [1991] 188 ITR 623 (Delhi) was followed by another Bench of this court in the cases of Satwant Narang v. Appropriate Authority [1991] 188 ITR 656. What is of importance, however, is that the Department filed an appeal against the first decision of this court and on April 23, 1991, the Supreme Court in Appropriate Authority v. Tanvi Trading and Credits P. Ltd. , shall dismissing the special leave petition, passed the following orders (at p. 308) :
"We agree that two alternatives are open under the scheme of the legislation :- (1) the union of India, through the appropriate authority, could buy the property, or
(ii) in the event of its decision not to buy, it has to issue a 'No objection certificate' leaving it open to the parties to deal with the property. In that view of the matter, the High Court was right in its conclusion. The special leave petition is dismissed. No costs."
4. It is clear from the aforesaid decision that, when the appropriate authority receives an application under section 269UC, then he has no jurisdiction to file that application, as had been done in the present case. He has to exercise the option which is available to him and that is either to buy the property or to issue a "No objection certificate". The right to buy two months from the end of the month within which a statement under section 269UC has been filed. In the present case, the statement was filed after, the Government lost its right to purchase the said property.
5. Following the ration of this court's decision in Tanvi Trading and Credits' case [1991] 188 ITR 623, we allow this writ petition and quash the impugned order passed by the appropriate authority and further issue a writ of mandamus directing the appropriate authority to issue to the petitioners and to respondent No. 4, within four weeks from today, a "no objection certificate" in terms of section 269UL(3).
6. The petition stands disposed of. There will be no orders as to costs.