Calcutta High Court
Kelvin Jute Co. Ltd. And Anr. vs Appropriate Authority And Ors. on 18 May, 1990
Equivalent citations: (1991)1CALLT385(HC), 1990(2)CHN385, [1990]185ITR453(CAL)
JUDGMENT Susanta Chatterji, J.
1. The present writ petition has been filed by the Kelvin Jute Company Limited, a public limited company, and one of its shareholders challenging the orders issued by the appropriate authority constituted under Section 269UD of the Income-tax Act dated November 25, 1988, and May 2, 1989, and to refrain from giving any effect to or taking any steps in terms thereof or thereunder and to issue to the petitioners no objection certificate in respect of the transfer of the land. It is stated that the petitioner No. 1 company is the owner of the land situated at No. 3, Burdwan Road, Calcutta, containing an area of 19 cottahs, 13 chittacks and 5 sq. ft. and, on the said premises, there are several buildings, dwelling houses, tenements, tiled roof structures and shops which have been let out to several monthly tenants and the remaining portion of the said premises has been mortgaged by the company with the State Bank of India for securing loans and advances for the purposes of its business. The petitioner No. 1 company is stated to be a sick industrial unit within the meaning of the Sick Industrial Companies (Special Provisions) Act of 1985. It is claimed that the Industrial Reconstruction Bank of India prepared a rehabilitation scheme for the revival of the company which was modified by the Board of Industrial and Financial Reconstruction. The draft scheme envisaged huge cost of. modernisation and the means of finance proposed in the said scheme included, inter alia, a sum of Rs. 17 lakhs to be realised on the sale of the aforesaid premises and a portion of the property at Titagarh. The petitioners have stated in detail in the writ petition that the aforesaid scheme further stipulated that the State Bank of India would give necessary permission for sale of the said premises and the portion of the property at Titagarh and for utilisation of the sale proceeds towards meeting a part of the cost of the said scheme. It is asserted that the scheme further provided that the State of West Bengal will also give the necessary permission for sale of the said properties and utilisation of the sale proceeds towards meeting a part of the cost of the aforesaid scheme. The petitioners claimed further that the draft scheme as formulated by the Board of Industrial and Financial Reconstruction has since been finalised in its meeting held on July 13, 1989, and the petitioner No. 1 company is required to give effect to the same with effect from September 1, 1989. It is also placed on record that, on September 1, 1988, the petitioner-company entered into an agreement for sale with Granito Ceramics Pvt. Ltd. having office at No. 19, R.N. Mukherjee Road, Calcutta, whereby the company agreed to sell to the transferee the said premises free from all encumbrances but subject to the monthly tenancies and for a lump sum price of Rs. 65 lakhs which was appropriated towards the consideration at the time of completion of the sale. The transferee proposed to demolish the existing tenements on the said premises and construct a new building thereon. On September 29, 1988, the petitioner-company is alleged to have received a letter dated September 8/9, 1988, from respondent No. 3, the Assistant Engineer (Technical), having his office at No. 54, Rafi Ahmed Kidwai Road, Calcutta, that the said respondent would inspect the said premises on September 23, 1988. On November 28, 1988, the petitioner No. 1 company received the order dated November 25, 1988, passed by respondent No. 1 in respect of the said Form No. 37-I filed on September 5, 1988. The petitioners alleged that, in the said purported order, it was made clear that the proposed transfer was null and void under Section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976. The exemption under Section 20 of the 1976 Act did not seem to have been obtained and even if the exemption was applied for, such exemption would be given only for using the excess vacant land for industrial purpose and not for the purpose of sale or for real estate development. According to the petitioners, the aforesaid order dated November 25, 1988, and the provisions of Chapter XXC of the Income-tax Act are wholly illegal, invalid and without or in excess of jurisdiction and are ultra vires the Constitution. On February 27, 1989, the company entered into another agreement with the transferee whereby it agreed to sell to the transferee the said premises free from all encumbrances whatsoever and in the said agreement dated February 27, 1989, it was duly stated that the company had already obtained a no objection certificate from the Competent Authority under the 1976 Act to any construction upon the said land. It is also disclosed in the writ petition that, on March 7, 1989, the company and the transferee filed Form No. 37-I before respondent No. 1, the Appropriate Authority, in respect of the said agreement dated February 27, 1989. On May 9, 1989, the petitioner-company is alleged to have received an order dated May 2, 1989, passed by respondent No. 1 and, in the said purported order, it was alleged that the statement in Form No. 37-I was premature and invalid and there was no question of acting upon it in any manner and the same was filed as such. It was pointed out in the said order that although a "no objection" certificate was obtained by the company for construction of the said premises, there was still a possibility that ultimate permission will be withdrawn by the Competent Authority and, in that case, the provisions of Sections 6 to 14 of the 1976 Act would immediately come into play. The petitioners challenged the said order claiming it to be wholly illegal, invalid and without or in excess of jurisdiction. Consequently, the petitioners have challenged the orders on the ground that, prior to the passing of the said purported orders, no opportunity was afforded to the company to make its representation and that the consideration for the transfer of the said premises by the company to the transferee was truly and correctly stated in the agreements dated September 1, 1988, and February 27, 1989, respectively. It is emphatically claimed that the consideration represents the fair market value of the said premises and that the respondents have no right or power or authority or jurisdiction to pass the impugned orders under Chapter XXC of the Income-tax Act in respect of the said transfer. The petitioners have tried to make out a case that, in passing the impugned orders, respondent No. 1 has clearly exceeded its authority or jurisdiction under the said Act and has travelled beyond the scope of the provisions of Chapter XXC. The petitioners also tried to make out a case that respondent No. 1 failed to appreciate that the purpose for which the said Chapter XXC has been enacted is apparently to prevent evasion of tax. Although respondent No. 1 is concerned with countering evasion of tax, the said respondent is not competent to declare any agreement for transfer either premature or invalid. It is highlighted that the object of Chapter XXC being apparently to counter evasion of tax, the said respondent, concerned with countering evasion of tax, is not competent to declare any agreement for transfer either premature or invalid. In the instant case, according to the petitioners, the authority concerned refused to act upon the statement in Form No. 37-I, In the absence of any such finding, there is no bar to issue a no objection certificate in respect of the said transfer.
2. The writ petition is contested by respondents Nos. 1 and 2 by filing an affidavit-in-opposition It is disclosed in detail that, on September 5, 1988, a statement in Form No. 37-I under Section 269UC(1) of the Income-tax Act read with Rule 48L of the Income-tax Rules, 1962, was filed before the Appropriate Authority, Income-tax Department, Calcutta After considering all the facts and records, respondent No. 1 being the appropriate authority came to the conclusion that the statement in Form No. 37-I is premature and invalid and, therefore, the question of acting upon it did not arise. It was held, inter alia, that the proposed transfer was null and void in view of the provisions of Section 5(3) of the Urban Land Ceiling Act It was recorded that although the application was made under the Urban Land Ceiling Act, no exemption was, however, allowed and even if any such exemption was granted, the excess vacant land could be used only for industrial purposes and not for the purposes of sale. It is placed on record also that on March 7, 1989, the same parties who filed Form No. 37-I on September 5, 1988, again filed another Form No. 37-I purporting to transfer the very same property, viz., No. 2, Burdwan Road, Calcutta, and for the very same consideration, viz., Rs. 65 lakhs. The appropriate authority considered the matter and again came to the conclusion that the statement in Form No. 37-I was premature and invalid and the question of acting on such Form No. 37-I did not arise. Respondent No. 1, however, held that the transferor-company was permitted to contract subject to the provisions of Section 22 of the Urban Land Ceiling Act and, if the Competent Authority under the Urban Land Ceiling Act was not satisfied, they might withhold the permission to retain the land in excess of the said limit and, in that event, if Sections 6 to 14 of the Urban Land Ceiling Act were not satisfied, they might withhold permission to retain the land in excess of the said limit and in that event, Sections 6 to 14 of the Urban Land Ceiling Act would come into operation. Respondent No. 1 concluded that it was not a clear-cut permission or clearance under the Urban Land Ceiling Act. The guidelines laid down by the Ministry of Works and Housing by Circular No. 1157/56-UCU dated September 12, 1976, were not complied with. It is further placed on record that petitioner No. 1 company owns several properties having a total area 76 cottahs, 9 chittacks and 1 sq. ft. apart from extensive vacant land at its factory at Titagarh. The petitioners themselves filed an application under Section 20 of the Urban Land Ceiling Act in respect of vacant land at the Titagarh factory and they have also filed statements under Section 6(1) of the Urban Land Ceiling Act and nothing has been disclosed as to what happened to the said application made under Section 20 of the Urban Land Ceiling Act. The respondents have, however, formally denied allegations of the averments made by the petitioners in the writ petition. The petitioners have also filed an affidavit-in-reply controverting the assertions of the respondents and have reiterated the points taken in the main writ petition.
3. At the time of hearing of the case, the learned lawyers appearing for both sides have unequivocally agreed that there is no bar to disposing of the present matter fully and finally notwithstanding the pendency of the writ petition being numbered 2821 of 1986 (Union of India v. G.V. Gautam) before the Hon'ble Supreme Court. It is also agreed that, before the Hon'ble Supreme Court, a limited question of the constitutional validity of the provisions of Chapter XXC of the Income-tax Act is pending for adjudication and that the said limited question is Sub-judice. It is suggested that for the purpose of disposal of the present writ petition, the question of the constitutional vires of Chapter XXC of the Income-tax Act is not required to be gone into. It is also agreed that this court will consider the aspect as to whether the impugned orders are fair or justified on the face of the relevant provisions under Chapter XXC of the Income-tax Act.
4. Dr. Pal appearing for the contesting respondents Nos. 1 and 2 has mainly argued that, in the absence of the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, and the State Bank of India, the present writ petition ought not to be decided and the same may be dismissed in limine. It is also contended that the first Form No. 37-I was filed by Kelvin Jute Co. Ltd. as transferor and Granito Ceramics P. Ltd. as transferee whereby the transferor intended to transfer No. 3, Burdwan Road, Calcutta, for a consideration of Rs. 65 lakhs under an agreement dated September 1, 1988. The prayer was rejected by order dated November 25, 1988, as it was found premature. The second application has been filed and the same is wholly misconceived. He has drawn the attention of the court to the fact that, under Section 269UC(3), Income-tax Act, inter alia, requires Form No. 37-I to be filed within such time as may be prescribed. Rule 48L(2)(b) of the Income-tax Rules provides that Form No. 37-I should be filed before the expiry of 15 days from the date on which the agreement for transfer is entered into. According to Dr. Pal, the second agreement dated February 22, 1989, is verbatim the same as the first agreement and an attempt is being made to circumvent the provisions of Section 269UC of the Act read with Rule 48L without complying with the earlier order dated November 25, 1988. It is also argued that, under Section 269UD(1) of the Act, the appropriate authority has implied power to decide all things which will be incidental to the question of purchase by the Central Government of the immovable property in question for the following reasons :
(1) The entire scheme under Chapter XXC of the Act contemplates a time factor as will appear from the following :
(a) Section 269UC(1) of the Act requires the agreement to be reduced to writing at least three months before the intended date of transfer.
(b) Section 269UC(3) of the Act read with Rule 48L requires Form No. 37-I to be filed within 15 days from the date of entering upon the agreement for sale. Form No. 37-I requires all sorts of particulars to be furnished.
(c) The proviso to Section 269UC(1) of the Act requires an order to be passed within two months from the end of the month in which the statement in Form No. 37-I has been filed.
(d) Section 269UE(2) of the Act requires possession to be given within 15 days from the service of the order.
(e) Section 269UG(1) of the Act requires consideration to be paid by the Central Government within one month from the end of the month in which the property vested in the Central Government.
(2) It is in this context that the purchase order has to be passed by the Appropriate Authority under Section 269UD(1) of the Act. Unless the transferor has the immediate right to transfer the property, the question of filing any statement under Section 269UC of the Act cannot arise.
(3) The Appropriate Authority, therefore, has to find out whether the Central Government can purchase the property in question. Section 269UI of the Act gives power to the Appropriate Authority to make the investigation. It is now held that the said power is a quasi-judicial power or a judicial power.
(4) The above provisions will show that there is an implied power to find out whether the Central Government can purchase the property or not. In other words, power has been given to the Appropriate Authority to find out whether the transferor has any immediate right to transfer and there is no fetter or impediment in transferring the property in question.
5. It is now a well-established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. The rule of prohibition by necessary duplication to such implied power could be applied only where a specified procedure is laid down for the performance of a duty and there is an express prohibition.
6. Dr. Pal had drawn the attention of the court to the decision in J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh , Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd., , CIT v. Shahzada Nand and Sons , ITO v. M.K. Mohammed Kunhi [1969] 71 ITR 815 (SC). It is emphasized that the Urban Land (Ceiling and Regulation) Act, 1976, is a special Act and non-compliance with the said special Act will vest the property in the State Government and as a result thereof, the transferor has no right to transfer the property and, consequently, the Central Government cannot purchase the property. The determination of this question is implicit in the provision of Chapter XXC. '
7. Mr. B.N. Sen and Mr. R.N. Bajoria, learned lawyers appearing for the petitioners, have strongly contended that the impugned orders suffer from various inherent defects. It is submitted that, in the changed circumstances, the second agreement was made and there is no bar to the filing of the application in Form No. 37-I and it cannot be argued that that is an attempt to circumvent the provisions of law. It is placed on record that there is no bar or impediment to the filing of the second application if it fulfils all the conditions as required under the law. A strong argument has been made that, looking at the scope of the provisions under Chapter XXC of the Income-tax Act, the power exercised by the respondent authority is unwarranted and uncalled for. The acts done or caused to have been done are contrary to or inconsistent with the provisions of law and the impugned orders ought not to be sustained. In support of their contention, they have drawn the attention of the court to various cases such as Gobind Dayal v. Inayatullah [1885] ILR 7 All 775 [FB], Motilal Gori Lal v. Ram Pal Jagannath, and Audh Behari Singh v. Gajadhar Jaipuria, .
8. With great anxiety, this court has considered the submissions made on behalf of the respective parties and having gone through the impugned orders, this court finds that Chapter XXC of the Income-tax Act consisting of Sections 269U to 269UO inserted by the Finance Act, 1986, mainly deals with purchase by Central Government of immovable properties in certain cases of transfer. Section 269UC envisages restrictions on transfer of immovable property. Section 269UC(1) provides, inter alia, that, notwithstanding anything contained in the Transfer of Property Act, 1882, or in any other law for the time being in force, no transfer of any immovable property of such value exceeding Rs. 5 lakhs as may be prescribed, shall be effected except after the agreement for transfer is entered into between the person who intends transferring the immovable property and the person to whom it is proposed to be transferred in accordance with the provisions of Sub-section (2) at least three months before the intended date of transfer. Sub-section (2) provides that the agreement referred to in Sub-section (1) shall be reduced to writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties. Sub-section (3) provides that every statement referred to in Subsection (2) shall,--
(i) be in the prescribed form ;
(ii) set forth such particulars as may be prescribed ; and
(iii) be verified in the prescribed manner, and shall be furnished to the appropriate authority in such manner and within such time as may be prescribed by each of the parties to such transaction or by any of the parties to such transaction acting on behalf of himself and on behalf of the other parties.
9. Looking further, it appears that, under Section 269UD, the appropriate authority, after the receipt of the statement under Sub-section (3) of Section 269UC in respect of any immovable property, may, notwithstanding anything contained in any other law or any instrument or any agreement for the time being in force, and for reasons to be recorded in writing, make an order for the purchase by the Central Government of such immovable property for an amount equal to the amount of the apparent consideration. Provided that no such order shall be made in respect of any immovable property after the expiration of the period of 2 (two) months from the end of the month in which the statement referred to in Section 269UC in respect of such property is received by the appropriate authority and provided further that, in a case where the statement referred to in Section 269UC in respect of the immovable property concerned is given to an appropriate authority, other than the appropriate authority having jurisdiction in accordance with the provisions of Section 269UB, to make the order referred to in this Sub-section in relation to the immovable property concerned, the period of limitation referred to in the preceding proviso shall be reckoned with reference to the date of receipt of the statement by the appropriate authority having jurisdiction to make the order under the said Sub-section. Section 269UD(2) indicates, inter alia, that the appropriate authority shall cause a copy of its order under Sub-section (1) in respect of any immovable property to be served on the transferor, the person in occupation of the immovable property if the transferor is not in occupation thereof, the transferee, and on every other person whom the appropriate authority knows to be interested in the property.
10. Looking to the impugned order, this court finds that the appropriate authority held that the statement in Form No. 37-I is still premature and invalid and that there is no question of acting upon it in any manner and, consequently, the statement has been filed. The reason is three-fold (1) although a no objection certificate has been obtained by the transferor-company to the construction at premises No. 3, Burdwan Road, Calcutta, there is still a possibility that, ultimately the permission can be withdrawn by the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, and, in that case, the provisions of Sections 6 to 14 will immediately come into play. (2) The guidelines issued by the Government of India, Ministry of Works and Housing, Circular Letter No. 1157/76-U dated August 28, 1976, provides that while granting exemption to an industry to hold vacant land beyond the ceiling limit, the State Government may prescribe conditions subject to which the exemption is being granted. (3) Normally, exemption should be granted in cases where the land sought to be exempted is required for the purpose of an existing industry or is required for office expansion within the next 5 (five) years or for any other purpose incidental or ancillary to the carrying on of the existing industry, the impact of Sub-section (2) of Section 20 upon non-compliance of the essential conditions as incorporated therein.
11. The appropriate authority has mainly considered that since the Urban Land (Ceiling and Regulation) Act has not run its full course, one cannot say with certainty that the property will not be acquired by the State Government. Besides, the transferor, having extensive lands at its factory premises at Titagarh, may choose to surrender the subject property rather than the lands at Titagarh and, consequently, the circumstances do not warrant the consideration of the application under Form No. 37-I and it has been filed on the ground that it is premature.
12. This court had occasion to scrutinize the impugned orders in the background of the facts of the case and the provisions of law as they stand. The law is very clear that no statutory authority can exercise its power by way of surmises and conjectures. It is not permissible in law to conjure up any instance which is likely to happen upon non-fulfilment of certain events. This negative approach is never appreciated by jurisprudence. Under the present concept of law, the prospective transferor and the transferee have right to enter into an agreement for sale if there is no bar or impediment in law. The sale is proposed without offending any provision of law prohibiting such transfer. The provisions of the Urban Land (Ceiling and Regulation) Act, 1976, are clear enough as to the right to hold the land upon fulfilling certain conditions. Once the conditions are fulfilled, the question of vesting will not arise and any surmise due to any eventuality is ruled out. The appropriate authority has to exercise its power strictly according to the statute. The question of any implied power or any ancillary power does not appear as sought to be done in the instant case. It has to be remembered that, in order to fulfil the scheme in question as indicated above, in order to revitalise the sick industry and to revamp its economy to save the sick industry and for the survival of its employees, a proposal has been made to raise funds and finance by selling the land in question at No. 3, Burdwan Road, Calcutta, and, broadly speaking, the said purpose of raising funds by selling the property in question is closely associated with the concept of saving the sick industry and the funds to be utilised for survival of the industry. It cannot be said that the consent of the State Government and the financial institutions including the State Bank of India had not been obtained. In this background, it cannot be surmised that although a no objection certificate has been granted by the competent authority for raising a building thereon it could be recalled and there is a chance of "if" and "but" to effect the transfer of the property in accordance with law.
13. Law is also clear that Chapter XXC of the Income-tax Act has been added or inserted with the concept that there should not be any shady transfer or exchange for under-the-table consideration with a view to generation of black economy. The Central Government has the option of purchasing the property by way of pre-emption. The essential theory of pre-emption is extended. Chapter XXC has to be followed to the letter and no extra power can be inferred or conferred.
14. It thus appears that, in the instant case, the appropriate authority has not acted upon the Form No. 37-I as filed by petitioner No. 1 in the view that it is premature inasmuch as complications under the Urban Land (Ceiling and Regulation) Act are likely to arise as to the question of vesting. The appropriate authority also finds difficulty in that, although the petitioner No. 1 is entitled to exemption, the operation of Section 20 of the Urban Land (Ceiling and Regulation) Act has not been exhausted. It has also tried to visualise that the properties in question are not ripe and ready for transfer and the consideration. Form No. 37-I is not an idle formality. The details of the provisions of the Urban Land (Ceiling and Regulation) Act have been considered and, on both the occasions, the appropriate authority found that it is premature to consider the Form No. 37-I in its proper perspective.
15. With great anxiety, this court has gone through the entire background of the case, the scheme to revitalise the sick industry and the agreement for sale to raise the funds for the survival of the industry. Admittedly, a scheme has been prepared to which the State Bank of India and the State of West Bengal have given consent. The transferor-company has obtained ''no objection" certificate to raise a building upon the land in question at No. 3, Burdwan Road, Calcutta. Admittedly, the petitioner-company has other lands at Titagarh but it has not appreciated the apprehension of the appropriate authority that the permission granted by the State Government may be recalled. This court also finds from the materials on record that the State Government has not acted in any manner in respect of the property at No. 3, Burdwan Road, Calcutta, treating the property as having been vested. It has to be remembered that the right of pre-emption is to accept the title as it is. The pre-emptor cannot demand to better the title before he exercises the right of pre-emption. It cannot be said that the transferor-company has no title to the property in question. When there is a proposal for sale, the appropriate authority has either to purchase the property by exercising the right under Section 269UD of the Income-tax Act and if it is not inclined to purchase, to issue a "no objection" certificate. The third alternative is not left open as the stage is premature and that the transferor has to better his title. In this regard, the theory as propounded in Motilal Gori Lal v. Ram Pal Jagannath, , is very clear. Upon scrutiny of the materials on record, this court is satisfied that the apprehension of the appropriate authority that the property at No. 3, Burdwan Road, Calcutta, may be vested subsequently upon fulfilment of certain unknown evasions is not real. Such an apprehension appears to be vague, indefinite and invalid. On the face of the record, a "no objection" certificate has been produced by the transferor-company for the purpose of raising a building upon the said land as permitted by the competent authority under the Urban Land (Ceiling and Regulation) Act. This court also does not appreciate that the matter would be kept in cold storage for an indefinite period when the person having title cannot transfer the property during the period of necessity and the Central Government also will not purchase the property by exercising its rights of pre-emption as envisaged under Chapter XXC of the Income-tax Act. It is not left to the appropriate authority to sit tight over the matter by observing that the stage is premature to act upon Form No. 37-I as filed by the petitioner-company.
16. From the materials on record, this court is of the view that the petitioner has been able to make out a saleable right having title to the property and it is for the appropriate authority either to take steps as envisaged under Section 269UD of the Income-tax Act or if it is not inclined to purchase, it may very well issue a "no objection" certificate in accordance with law.
17. For the foregoing reasons, this court is of the view that the reasons assigned by the appropriate authority in passing the impugned orders cannot be sustained in law. The writ petition is thus allowed. Let a writ of certiorari be issued quashing the impugned orders. There will be a writ of mandamus commanding the respondents-appropriate authority to consider Form No. 37-I afresh in accordance with law within a period of 60 (sixty) days from the date of communication of this order to take effective steps either under Section 269UD of the Income-tax Act or to issue a "no objection" certificate in the event there is no inclination to exercise the right of purchase. There will be no order as to costs.