Gujarat High Court
Pradip Ramanlal Sheth vs Union Of India And Ors. on 9 March, 1992
Equivalent citations: [1993]204ITR866(GUJ)
Author: S.B. Majmudar
Bench: S.B. Majmudar
JUDGMENT S.B. Majmudar, J.
1. In this petition under article 226 of the Constitution of India, the petitioner who was the owner of a property consisting of land admeasuring about 357 sq. mtrs. (428 sq. yards) along with the superstructure bearing sub-plot No. 6/2 of Final Plot Nos. 306-307 and 308 of the Town Planning Scheme No. 8 at Mithakhali in this town, has brought in challenge the order passed on January 31, 1992, by members of the appropriate authority functioning under section 269UD of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). The challenge at this stage of the final hearing of this petition is confined to two deductions made by the appropriate authorities from the amount held payable to the petitioner for compulsory purchase of the aforesaid property by the Central Government. These disputed deduction are :
(a) Rs. 35,333; and
(b) Rs. 1,02,062.
2. In order to appreciate the controversy centering round the two disputed amounts, it is necessary to note a few introductory facts :
As noted earlier, the petitioner was the owner of the aforesaid property. He had entered into an agreement of sale dated October 30, 1991, with Messrs. Manipal Saubhagya Nidhi Limited (purchaser) for the sale of the said property for a consideration of Rs. 17,75,000. The purchaser had paid to the petitioner on execution of the agreement a sum of Rs. 4,50,000 as earnest money. The said agreement was registered with the Sub-Registrar, Ahmedabad, at Sr. No. 27198 on October 30, 1991. As per Chapter XX-C of the Act, a provision is made for purchase by the Central Government of immovable property in certain cases of transfer. In this Chapter are found section 269U to section 269UO. These provisions confer a statutory right of pre-emption on the Central Government to purchase any immovable property which is sought to be sold by the seller to the purchaser on an apparent consideration of the amount mentioned in the agreement of sale provided the prescribed value of the transfer of any immovable property exceeded Rs. 5,00,000 which, at the relevant time, was Rs. 10,00,000. We are told at the Bar that, as on this date also, the said prescription continues : As the agreement of sale in the present case was for an apparent consideration of Rs. 17,75,000, the seller and the purchaser had to follow the procedure laid down by section 269UC of the Act. The said provision reads as under :
"Section 269UC. (1) Notwithstanding anything contained in the transfer of Property Act, 1882 (4 of 1882), or in any other law for the time being in force, no transfer of any immovable property of such value exceeding five lakh rupees as may be prescribed, shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property (hereinafter referred to as "the transferor"), and the person to whom it is proposed to be transferred (hereinafter referred to as "the transferee"), in accordance with the provisions of sub-section (2) at least three months before the intended date of transfer.
(2) 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.
(3) Every statement referred to in sub-section (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 action on behalf of himself and on behalf of the other parties."
3. On the basis of the statements furnished by the concerned parties under section 269UC(2), the appropriate authority, in exercise of its powers under section 269UD(1), passed an order for the purchase by the Central Government of the aforesaid immovable property at an amount equal to the amount of apparent consideration. The said provision, apart from the provisos with which we are not concerned, reads as under :
"269UD. (1) 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 record in writing, make an order for the purchase by the Central Government of such immovable property at an amount equal to the amount of the apparent consideration :......"
4. The said order of the appropriate authority is annexed at annexure B to the petition. When this petition was originally filed in this court, the order was challenged on the ground that it had become infructuous and incompetent as the amount to be paid to the petitioner or seller by the Central Government was not paid within the requisite time and, therefore, the appropriate authority was required to return the property to the petitioner as it stood revisited in the petitioner. But that challenge was given up at the time when this petition was moved for admission and the challenge in this petition was confined only to the aforesaid two disputed amounts which are deducted by the appropriate authority from the total amount held payable to the petitioner, as per section 269UC(1) read with section 269UD(1). The liability to make payment flows from section 269UF(1), which provides that, where an order for the purchase of any immovable property by the Central Government is made under sub-section (1) of section 269UD, the Central Government shall pay, by way of consideration for such purchase, an amount equal to the amount of the apparent consideration.
5. Mr. G. N. Shah, learned counsel appearing for the petitioner, in support of the two disputed claims, submitted that as per section 269UD(1) and section 269UF(1) read with the definition of apparent consideration as found in section 269UA(b), the entire amount of Rs. 17,75,000 as mentioned in the agreement of sale dated October 30, 1991, should be treated as apparent consideration for the transfer of the property and, if the Central Government wanted to exercise its right of pre-emption, it was bound to pay to the petitioner the whole of that amount and the Central Government could not have deducted from that amount the aforesaid two disputed amounts of Rs. 35,333 and Rs. 1,02,062. So far as the first amount was concerned, it was submitted by Mr. Shah that, as per the agreement, out of the total consideration of Rs. 17,75,000, the purchaser had paid Rs. 4,50,000 at the time of that agreement and the balance amount of Rs. 13,25,000 was to be paid by the purchase as per the agreement on the execution of the deed of conveyance by the vendor and the sale was to be completed within one month of the receipt of the certificate to be issued under section 269UL(3) of the Act. The said provision lays down that, in a case where the appropriate authority does not make an order under sub-section (1) of section 269UD for the purchase by the central Government of an immovable property, or where the order made under sub-section (1) of section 269UD stands abrogated under sub-section (1) of section 269UH, the appropriate authority shall issue a certificate of no objection referred to in sub-section (1) or, as the case may be, sub-section (2) and deliver copies thereof to the transferor and the transferee. It was therefore, contended that the apparent consideration of the agreement as reflected by the agreement of sale cannot be reduced by discounting at the rate of 8 per cent. of the balance consideration of Rs. 13,25,000 as tried to be done by the appropriate authority, and the said deduction is contrary to the provisions of section 269UC(1) and section 269UF(1) read with the definition provision in section 269UA(b).
6. On the same lines, it was contended by Mr. Shah, that deduction of Rs. 1,02,062 as per clause 14 of the agreement of sale is equally illegal and de hors the aforesaid relevant provisions and hence the respondents are required to be directed to restore these amounts to the petitioner with interest at the rate of 18 per cent, from January 31, 1992, as that was the date on which the impugned decision effecting such deductions was rendered by the appropriate authority. This prayer has been engrafted in this petition as prayer No. A (1) by way of an oral amendment which has been granted by us. Learned counsel for the respondents could not effectively challenge the request for such oral amendment as made by Mr. Shah for the petitioner as it was purely an off-shoot of the main contentions in the petition which centres round the aforesaid illegal deductions for the consideration of which this petition was admitted to final hearing by a speaking order of the Division Bench of this court on April 1, 1992.
7. On the other hand, it was submitted by Mr. Shelat, learned standing counsel for the revenue, that both the deductions are legally well sustained. So far as the first deduction of Rs. 35,333 is concerned, Mr. Shelat relied upon the definition of apparent consideration as found in section 269UA latter part. In that light, it was contended by Mr. Shelat that the Legislature itself has contemplated the discount from the balance of consideration which remained unpaid at the time of execution of the document and as per rule 48-I of the Rules framed under the said Chapter XX-C, 8 per cent. discount is permitted and that is how this deduction is legally permissible and within the framework of the statutory provision.
8. So far as the grievance regarding the second deduction of Rs. 1,02,062 is concerned, Mr. Shelat submitted that the definition of apparent consideration itself shows that it would take in its sweep the entire consideration for the transfer as may be specified in the agreement for transfer and such clarification can be gathered for a conjoint reading of the agreement and, if it is so done, clause 15 which is a part and parcel of the agreement, has also to be given effect to, with a view to finding out as to what was the actual consideration agreed to be received by way of net monetary benefit by the seller. To enter into such an agreement as per clause 14 of the agreement of sale, the petitioner-seller had agreed to bear 50 per cent. of the costs of registration fees, typing, stamp duty payable on the execution of the document of sale as also legal fees of the lawyer. That much amount was agreed to be received less by the seller from the purchaser. To that extent, the apparent consideration for the purposes of the relevant provisions of the Act has to be treated to be reduced and that is precisely what is done by the appropriate authority and hence, according to Mr. Shelat, no fault can be found even with the second deduction of Rs. 1,02,062.
9. In the light of the rival contentions, the following points arise for out consideration :
(i) Whether the appropriate authority was justified in computing the apparent consideration in the present case for the purposes of sections 269UD(1) and 269UF(1) by deducting Rs. 35,333 from the amount of Rs. 17,75,000 mentioned as the price of the property subjected to the agreement of sale ?
(ii) Whether the appropriate authority was justified in deducting Rs. 1,02,062 by way of 50 per cent. cost of registration fees and stamp duty agreed to be borne by the petitioner seller for executing the sale deed as per clause 14 of the agreement to sell, while computing the apparent consideration for the purpose of sections 269UD(1) and 269UF(1) ?
10. We shall deal with these points seriatim :
Point No. 1. - So far as the deduction of Rs. 35,333 is concerned, it is necessary to note the relevant chronology of the events. The date of agreement to sell is October 30, 1991. The said agreement is annexed as annexure-A to the petition. As per clause 1 of the said agreement, the price of the immovable property sought to be sold by the petitioner to the vendee including the land and the superstructure is fixed at Rs. 17,75,000. As per clause 2 of the agreement, the purchaser, i.e., the vendee, is said to have paid to the vendor, namely, the petitioner, on execution of the agreement, a sum of Rs. 4,50,000 as earnest money on the same day, i.e., October 30, 1991. As per clause 3 of the agreement, the balance amount of sale consideration payable to the vendor (petitioner) shall be paid by the purchaser to the vendor. The sale was to be completed within one month on receipt of the certificate under section 269UL of the Act as noted earlier. Thus, on October 30, 1991, out of the total sale consideration, only Rs. 4,50,000 were paid to the petitioner by the purchaser and the balance of Rs. 13,25,000 was agreed to be paid by the purchaser to the petitioner on the happening of the future contingencies as mentioned in paragraph 3 of the agreement of sale. It is not in dispute between the parties that, in the meantime, the petitioner as well as the purchaser had already approached the appropriate authority under section 269UC(1) of the Act and the appropriate authority ultimately passed the impugned order on January 31, 1992, for the purchase by the Central Government of the immovable property for an amount equal to the aforesaid amount of apparent consideration. In that view of the matter, there remained no occasion for the purchaser to pay the balance of sale consideration to the vendor, namely, the petitioner. But, if, in the meantime, the appropriate authority had decided to the contrary, meaning thereby that the property was not to be purchased by the Central Government by exercising the right of statutory pre-emption, then the appropriate authority would have issued the necessary requisite certificate to that effect under section 269UL(3) as noted earlier. If that had happened, the purchaser would have been required to pay the balance of sale consideration to the vendor, i.e., the petitioner, as per clause 3 of the agreement within a further period of one month from that date meaning thereby that the balance amount would have been required to be paid by the purchaser to the vendor, i.e., the petitioner, by February, 29, 1992, and that is the precise date in the impugned order, annexure-B, which mentions that the last date on which no objection certificate is expected is January 31, 1992, and as such the last date for payment is taken as February 29, 1992. Thus, as per the relevant terms of the agreement of sale, the balance amount of consideration of Rs. 13,25,000 could have been paid by the purchase on or before February 29, 1992, as that was the time available to him under the terms of the agreement to make good the balance amount of consideration to the vendor. In the background of this undisputed factual position, the first point is required to be considered.
11. It is contended by Mr. Shah, for the petitioner that, on a conjoint reading of section 269UC(1), section 269UD(1) and section 269UF(1), the Central Government will be under a statutory obligation to pay by way of consideration for such statutory purchase of pre-emptive nature an amount equal to the amount of consideration to the seller, namely, the petitioner, whose proposed voluntary transfer of his property has got intercepted by the thrust of this statutory provision and the exercise of power thereunder by the concerned authority. If that is so, submits Mr. Shah, the apparent consideration as mentioned in the document has to be paid by the Central Government to the petitioner and the appropriate authority has no power to deduct anything from the said amount of apparent consideration. He placed reliance on the relevant paragraphs 1, 2 and 3 of the agreement of sale. It was submitted by Mr. Shah that the apparent consideration is Rs. 17,75,000 and nothing less.
12. On the other hand, Mr. Shelat for the Revenue submitted that the amount which is to be paid by the Central Government to the seller is the amount of apparent consideration and, in order to determine that amount, the appropriate authority has to keep in view the definition of the term "apparent consideration" which reads as under :
"269UA. (b) 'apparent consideration', -
(1) in relation to any immovable property in respect of which an agreement for transfer is made, being immovable property of the nature referred to in sub-clause (i) of clause (d), means, -
(i) if the immovable property is to be transferred by way of sale, the consideration for such transfer as specified in the agreement for transfer :.....
and where the whole or any part of the consideration for such transfer is payable on any date or dates falling after the date of such agreement for transfer, the value of the consideration payable after such date shall be deemed to be discounted value of such consideration, as on the date such agreement for transfer, determined by adopting such rate of interest as may be prescribed in this behalf;"
13. Mr. Shah, for petitioner, relied upon the first part of the definition in section 269UA(b)(1), while Mr. Shelat, for the Revenue, relied on the last part beginning with "and where the whole or any part of the consideration for such transfer is payable on any date or dates falling after the date of such agreement for transfer" and ending with "determined by adopting such rate of interest as may be prescribed in this behalf".
14. It cannot be gainsaid that the exact connotation of the words as defined by the aforesaid provision has to be gathered from a comprehensive reading of the relevant parts of the said definition. It is, therefore, not possible to read the first part of the definition of "apparent consideration" in isolation and de hors the second and the last part wherein it is laid down by the Legislature that, where the whole or any part of the consideration for such transfer is payable on any date or dates falling after the date of such agreement for transfer, the value of the consideration payable after such date shall be deemed to be the discounted value of such consideration, as on the date of such agreement for transfer, determined by adopting such rate of interest as may be prescribed in this behalf. Thus, discount from the value of deferred consideration is contemplated by the Legislature itself. On the express language of the last part of the definition, it becomes clear that where the payment of any part of the specified consideration as found in the agreement for transfer is deferred to a future date, then the value of such consideration payable after the said date mentioned on the execution of the agreement is, by a statutory fiction, deemed to be the discounted value of such deferred consideration, as on the date of such agreement for transfer, determined by adopting such rate of interest as may be prescribed in this behalf by statutory rules.
15. As noted earlier, rule 48-I of the Income-tax Rules, which is in Part X-C, dealing with purchase of immovable properties under Chapter XX-C, provides that the rate of interest for determination of the discounted value of consideration under sub-clause (1) or sub-clause (2) of clause (b) of section 269UA shall be 8 per cent, per annum.
16. In the present case, the agreement of sale provides for deferment of payment of part consideration to the petitioner to the tune of Rs. 13,25,000 and this payment of consideration is permitted to be deferred till February 29, 1992, as seen earlier. Till that date, liberty was available to the purchaser to pay up the balance amount of Rs. 13,25,000. Therefore, that part of the consideration mentioned in the agreement which could be paid by the purchase up to February 29, 1992, had to be subject to the process of discounting by 8 per cent. per annum as laid down by the last part of the definition of the term "apparent consideration" occurring in section 269UA(b)(1). It is not disputed between the parties that, on the basis, the value of Rs. 13,25,000 would get discounted and reduced by way of an amount of Rs. 35,600 being 8 per cent. of Rs. 13,25,000 for four months, to be precise, 122 days. This result is obtained by a conjoint operation of the last part of the definition of "apparent consideration" found in section 269UA(b) and rule 48-I of the relevant Rules. In fact, so far as this factual aspect is concerned, there is no dispute between the parties, but the grievance voiced by the learned advocate for the petitioner was that such discounting of part consideration is de hors the provisions of the relevant statutory scheme. It is not possible to agree with this contention. The scheme of the definition of apparent consideration as found in section 269UA(b) especially the last part thereof contra-indicates such a contention.
17. Mr. Shah submitted that even if such discounting of the value of deferred consideration can be treated to have been contemplated as per clause 3 of the agreement and as per the last part of the definition provision, the discounting of the value of such consideration should be made from the date on which the order under section 269UD is passed, and for a further period of one month which may be available to the purchaser to pay up the balance consideration as per clause 3 of the agreement. Mr. Shah, in this connection, submitted that the period for which the discount is to be made would begin after January 31, 1992, i.e., from February 1, 1992, and would end on February 29, 1992. On the express language of the last part of the definition of "apparent consideration" as found in section 269UA(b), it is not possible to agree with this contention. Mr. Shah would have been right if it was mentioned by the Legislature in the said provision about discounting of value of the deferred consideration as under :
"The value of the consideration payable after such date shall be deemed to be the discounted value of such consideration as mentioned in such agreement."
18. The underlined words are not found in the said provision; instead, the words found are as on the date of such agreement. Therefore, discounting of the value is to be done from the amount of consideration which is deferred so far as payment is concerned right from the date of the agreement. Thus, the period for the purpose of computing the discount would begin, for the deferred part of the consideration, from the date of the agreement itself. That is the mandate of the Legislature. If Mr. Shah's contention is accepted, the said provision will have to be rewritten by deleting the words "on the date of" and by substituting the words "mentioned in". That exercise is not open to the court. Hence, on the interpretation of the relevant provisions of the definition of "apparent consideration" contained in section 269UA(b), it must be held that when payment of part of the consideration is deferred to the date of the agreement of transfer, then the discounted value of the deferred part of the consideration has to be determined from the date of the agreement in the light of the rate of interest fixed by rule 48-I of the Rules and that is precisely what has been done by the appropriate authority. Consequently, the deduction of Rs. 35,330 from the total consideration mentioned in the agreement of sale cannot be found fault with. Such deduction is contemplated by the statutory scheme as discussed earlier and is not contrary to or de hors it. The first point for consideration, therefore, has to be answered against the petitioner and in favour of the respondents. We may mention here that this is the only conclusion which can be arrived at on a literal construction of the relevant provisions of the definition section 269UA(b).
19. Point No. 2. - That takes us to the consideration of point No. 2. So far as this pint is concerned, the learned advocate for the petitioner is on a stronger footing. The scheme of the relevant provisions which we have seen earlier leaves no room for doubt that, if he appropriate authority takes the view that, in exercise of its statutory powers of pre-emption, the immovable property in question which is sought to be transferred under the agreement of sale is required to be purchased by the Central Government, the Central Government has to pay to the seller with a view to become statutory purchase of the said property displacing the purchaser of his choice, the full apparent consideration underlying such proposed transfer. That is the thrust of section 269UD(1) read with section 269UF(1).
20. So far as the apparent consideration is concerned, as we have seen earlier, the definition does not contemplate any deduction or reduction from the amount of apparent consideration, save and except what is expressly provided in the last part of the said definition which we have discussed in detail while dealing with point No. 1. Mr. Shelat, for the respondent, was also not in a position to controvert this factual position. However, he submitted that the deduction of Rs. 1,02,062 in the light of clause 14 of the agreement is permissible on account of the first part of the definition of "apparent consideration" as found in section 269UA(b) to the effect that, if the immovable property is transferred by way of sale, the apparent consideration for such transfer would be as specified in the agreement for transfer. He submitted that, in order to find out as to what is the consideration for transfer specified in the agreement for transfer, we have to make a conjoint reading of all the relevant clauses/paragraphs of the agreement. Mr. Shelat submitted that it is true that in paragraphs 1, 2 and 3, the total price of the transaction of the immovable property is mentioned as Rs. 17,75,000 and it is also true that, out of that consideration, Rs. 4,50,000 is treated as earnest money which was paid in cash to the petitioner-vendor on the execution of the document. It is also true that the balance of Rs. 13,25,000 was to be paid by the purchaser to the vendor at the time of the execution of the document of sale within the time contemplated by clause 3 of the agreement. But, according to Mr. Shelat, clause 14 of the agreement also is a part and parcel of the agreement and if it throws light for finding out the agreed consideration underlying the transfer, then the said clause cannot be ignored as that clause also can be said to be indicating the consideration and that way it can be said to be specified in the agreement for transfer. It, therefore, becomes necessary to have a look at clause 14 of the agreement of sale which reds as under :
"14. All the costs such as typing, stamp and registration fees and legal fees to the lawyer for the sale deed shall be borne in equal share by the 'vendor' and the 'purchaser'."
21. It, therefore, becomes clear that all the costs such as typing, stamp and registration fees and legal fees to the lawyer for the sale deed had to be borne in equal share by the vendor and the purchaser.
22. Relying on this clause 14 of the agreement, it was submitted by Mr. Shelat for the Revenue that, even if the cost of typing and legal fees for execution of the sale deed may not have been ascertained on October 30, 1991, at least the stamp duty and the registration fees were capable of being ascertained on that day as they were fixed under the relevant provisions of the Indian Registration Act and the Bombay Stamp Act, and when the petitioner-vendor had agreed to bear 50 per cent. of cost of stamp fees and registration fees as and when the sale deed was executed, in the light of the agreement of sale, to that extent the vendor had agreed to suffer a cut on his pocket by way of receiving lesser amount of consideration and thus, the apparent consideration would get reduced from Rs. 17,75,000 to the extent the vendors, namely, the petitioner, agreed to bear 50 per cent. of the cost of registration fees and stamp duty.
23. It is not possible to agree with this submission of Mr. Shelat. It is true that, if ultimately the sale deed is executed, then on the one hand, the vendor may receive Rs. 17,75,000 and, on the other hand, he may have to be out of pocket to the extent of 50 per cent. of stamp fees and registration fees while ultimately executing the said document in favour of the purchaser. These expenditures are to be borne by him independently of the main consideration which is to be paid to him by the purchaser for the sale of the property. The total consideration is fixed as per paragraphs 1, 2 and 3 of the agreement. Paragraph 14 of the agreement operates in a different field. In this connection, paragraph 4.1 of the agreement becomes relevant. It lays down that "if the purchase fails to pay the sale consideration as stated hereinabove and gets the sale deed executed, the vendor shall be entitled to forfeit the earnest money of Rs. 4,50,000".
24. It is obvious that the above paragraph 4.1 are only paragraphs 1 to 4. Paragraph 14 comes later, and as per paragraphs 1 to 4, the purchaser has to pay in addition to the earnest money of Rs. 4,50,000, the balance of consideration within one month from the date of the receipt of the certificate under section 269UC. As seen earlier, the balance of consideration is Rs. 13,25,000 and, if he fails to pay that balance, he is liable to forfeit the earnest money as mentioned in paragraph 4.1 of the agreement. It must, therefore, be held that the total consideration apparent from the document for the sale of the property in question, is to be culled out from the relevant operative portion of paragraphs 1, 2 and 3 only, and it has nothing to do with the latter paragraph 14, which deals with a miscellaneous item of costs of execution of the sale deed, and provides a mode by which they are to be borne. The deal with a separate contractual obligation undertaken by the vendor vis-a-vis the purchaser and they do not project backwards in the field of fixation of consideration for the said transaction. It is also interesting to note that clause 14 of the agreement would operate only in the contingency wherein the Central Government decides not to purchase this property and a certificate to that effect is issued by the appropriate authority under section 269UL(3), only then the question of meeting the costs of execution of sale deed by the vendor in favour of the purchaser, pursuant to the agreement, would assume importance. That stage was never reached. It was a future contingency which was contemplated by clause 14 of the agreement. It has nothing to do with the question of fixation of the total consideration for the sale of the immovable property under the agreement. But, even that apart, it cannot be said that clause 14 specified any part of consideration for effecting the transfer of the property. Unless it goes that far it could not be covered by the definition of "apparent consideration" as found in section 269UA(b)(1)(i) on which strong reliance was placed by Mr. Shelat for the Revenue. To recapitulate, the said provision contemplates transfer for a fixed amount indicative of consideration for the transfer of the property in question. When we turn to paragraphs 1 and 2 of the agreement, we find that Rs. 17,75,000 is the only specified amount as fixed consideration for the transfer and it is divided into two parts. Rs. 4,50,000 was already paid by way of earnest money by the purchaser and the balance amount of Rs. 13,25,000 was to be paid by the purchaser to the vendor on a later date by way of deferred payment as per the terms of paragraph 3. So far as clause 14 is concerned, it does not specify any amount. It is true that registration fees and stamp duty may ultimately get ascertained, but the ascertainment would depend upon the relevant provisions of the Registration Act and the Stamp Act that may be holding the field at the time when the document of sale is executed, and not at any prior point of time when the agreement of sale is executed. Section 269UA(b)(1)(i) refers to consideration for the transfer as specified in the agreement of transfer. At the time of agreement of transfer, it would be too premature to say as to what would be the exact registration fee and the stamp duty payable on the execution of the ultimate sale deed if at all that stage is reached. But, even that apart, keeping the entire clause 14 in view, it becomes clear that it has not contemplated any exact amount of cost for the sale deed at the stage of execution of the agreement of sale. The cost contemplated by clause 14 at the rate of 50 : 50 will get ascertained and specified only when the time for execution of the sale deed under the agreement would be reached in future. It is also pertinent to note that typing charges and legal fees are also placed on the same footing as stamp and registration fees by clause 14. Mr. Shelat, for the Revenue, could not urge that such typing charges and lawyer's fees for the execution of the sale deed could be ascertained on the date on which the agreement of sale was executed as they would depend upon a future contingency. If that is so, we fail to appreciate how stamp duty and registration fees could be said to be specified at the time of execution of the agreement when the future execution of the sale deed was still in embryo, and a mere future contingency. It must, therefore, be held that clause 14 does not specify any part of consideration for the transfer so as to get covered by the sweep of the first part of the definition "apparent consideration" as submitted by Mr. Shelat and, consequently, the appropriate authority had no power, authority or jurisdiction to deduct the amount of Rs. 1,02,062 from the total amount of apparent consideration of Rs. 17,75,000 on the supposition that in future if the sale takes place, the petitioner would have been out of pocket to the extent of Rs. 1,02,062 as 50 per cent. of the total registration fees and stamp duty. On such hypothetical basis, such deduction could not have been effected by the appropriate authority. The said deduction is found to be totally de hors and ultra vires the relevant provisions of the statutory scheme as examined by us hereinabove.
25. We may also in this connection refer to one submission of Mr. Shah for the petitioner. He states that, if the Revenue's contention is right and clause 14 is to be given effect to for deciding the quantum of apparent consideration as specified in clause 1 to 3 in the agreement, then, in that case, the provision of the second part of the definition of the term "apparent consideration" as found in section 269UA(b) would be rendered unworkable. We find considerable force in this contention of Mr. Shah. To recapitulate, the second part of the said definition provides that, if payment of any part of the apparent consideration as specified in the agreement of sale is deferred to a future date, the discounted value of such deferred part of consideration has to be arrived at while computing the apparent consideration under the agreement of sale. If clause 14 also can be treated to be constituting such deferred part of consideration as the amount as contemplated therein has to be partly paid by the purchaser at a future date, when the sale deed is to be executed, then, it would be impossible to work out the percentage of discount of such deferred part of consideration which would remain in a nebulous stage at the time of execution of the agreement and which is going to be ascertained at a future date. The second part of the definition of "apparent consideration", therefore, rules out such deferment of any unascertained amount of consideration and contemplates only specified amount of consideration which is clearly fixed in the agreement by payment of which is deferred to a future date. We entirely concur with the aforesaid contention of Mr. Shah and hold that, for the purpose of the definition of the term "apparent consideration" only that part of the consideration is to be reckoned which is clearly fixed and ascertained in the agreement of sale itself and which is not likely to be ascertained and computed at a future date. Even on this ground, clause 14 which does not indicate any specified amount cannot be treated to be forming part and parcel of the scheme of apparent consideration as envisaged by the agreement.
26. This conclusion of ours gets further strengthened if we look at rule 48-I of the Income-tax Rules. As noted by us earlier, before the sale is effected by the parties, they have to follow the procedure prescribed in section 269UC(1) and have to furnish a statement to the appropriate authority in the prescribed from under section 269UC(3) read with section 269UC(1). The prescribed form is provided under rule 48L which lays down that the statement to be furnished to the appropriate authority under sub-section (3) of section 269UC shall be in Form No. 37-I. When we turn to Form No. 37-I, we find that the statement of transfer of the immovable property furnished under section 269UC has to mention the total apparent consideration for the transfer of the property in words as well as in figures. It is easy to visualise that when such apparent consideration is to be mentioned in words as well as in figures by the concerned parties to the agreement to sell as per the aforesaid statutory provision, the parties have to mention the consideration in words as well as figures on the date on which the property was agreed to be transferred and that never contemplated a future contingency that had to take place as per clause 14 when the sale deed was likely to be executed in the future after the entire gamut of sections 269UC, 269UD and 269UE was undergone. It is, therefore, found that the relevant scheme contraindicates the contention of learned counsel for the Revenue that the future cost of registration and stamp duty that the vendor had agreed to bear up to 50 per cent. vis-a-vis the purchaser could be legally deducted from the specified apparent consideration for deciding the amount payable by the Central Government to the seller as per the relevant provisions. Consequently, point No. 2 will have to be answered in favour of the petitioner and against the respondents. Once that conclusion is reached the prayer for 18 per cent. interest from January 31, 1992, on the amount which is found to be illegally deducted by the respondents springs up for consideration.
27. As we have found earlier, the respondents are not authorised to deduct Rs. 1,02,062 from the total amount found payable to the petitioner by the Central Government. Therefore, the aforesaid deduction has to be treated as unauthorised. If that is so, the liability of the respondents to refund to the petitioner the said amount with interest would at once arise. Mr. Shah for the petitioner submitted that he is entitled to be paid the amounts wrongfully deducted with 18 per cent. interest from January 31, 1992, that is the date on which the impugned order effecting this deduction was passed by the appropriate authority. Mr. Shelat, for the Revenue, on the other hand, vehemently opposed this submission of Mr. Shah and stated that till the petitioner filed this petition in this court he was harping on the contention that because the respondents have not paid up the entire amount within the time-limit fixed by section 269UG(1), the petitioner had become entitled to get the property revested in him under section 269UH(1). As that was the stand of the petitioner till he filed this petition in this court on March 16, 1992, there was no occasion for the petitioner to demand from the respondents this amount of Rs. 1,02,062 as he was not ready to receive the same till that date and he was only harping on revesting the property in him because according to him the Revenue had missed the bus by not paying the amount within the requisite time. Mr. Shelat further submitted that it is on April 1, 1992, when this petition was admitted to final hearing, that the Division Bench which passed an order at the admission stage noted that the petitioner's learned counsel gave up his challenge to the efficacy of the order and only on April 1, 1992, he stated that he did not press the contention that the respondents have failed to comply with the provisions of section 269UG and the property be revested in him and only then he stated before this court that he was confining his challenge in the petition only to the aforesaid two deductions and in the light of that stand taken by the petitioner this a court directed the respondent-authorities to pay up the balance amount as per the impugned order to the petitioner within seven days, and so far as the disputed two amounts of Rs. 35,330 and Rs. 1,02,062 are concerned, no direction for payment to the petitioner was made at that stage as that dispute had to be resolved at the time of the final hearing of this petition.
28. Mr. Shelat contended for the Revenue that till April 1, 1992, the petitioner was not willing to receive this amount under the order and only after April 1, 1992, he showed his willingness to receive the balance amount and to agitate and get the decision of this court on the disputed amounts. Therefore, till today no occasion arose for the Revenue to pay up the disputed amount to the petitioner and, therefore, the respondents may not be saddled with interest on the disputed amount which has been found to be payable by the respondents to the petitioner by our present order. We find considerable force in the contention of Mr. Shelat for the Revenue, that till April 1, 1992, the petitioner was riding on one horse, namely, he was only harping on the contention that the impugned order has become non set and he was not interested in receiving any amount under the order. It is only on April 1, 1992, as noted by the Division Bench in its speaking order while admitting the petition, that the petitioner gave up the challenge to the efficacy of the impugned order and agreed to concentrate on his claim for the disputed amounts and also agreed to receive the balance of payment under the order within seven days as ordered by the court. Thus, the petitioner is not entitled to any interest on the amount of Rs. 1,02,062 from the date of the impugned order, i.e., January 31, 1992, as claimed by the petitioner and to that extent his request has to be rejected. But it is equally unreasonable and too extreme a proposition on the part of the Revenue to contend that no interest should be awarded to the petitioner on this amount at all. At least from April 1, 1992, the respondents had become alive to the stand of the petitioner that he was claiming this amount from the respondents and he had confined his challenge in this petition for the two amounts. The order dated April 1, 1992, was passed after hearing the learned advocates on both the sides. Hence, clearly from the date, the respondents were alive to the grievance of the petitioner that he was claiming this amount. Ultimately, it is found by us today that his claim for a large amount was partially justified. Hence, so far as Rs. 1,02,062 was concerned, he is entitled to be awarded reasonable interest at least from April 1, 1992, as from that date the controversy had started centering round the same and had become alive between the parties. Now remains the question of rate of interest. Even though the petitioner has claimed 18 per cent. interest per annum, in our view, the interests of justice would be served if we direct the respondents to pay additional amount to the petitioner with 12 per cent. interest from April 1, 1992, till the amount is actually paid to the petitioner by the respondents. The second point, therefore, is answered in favour of the petitioner and against the Revenue, to the aforesaid extent, so far as the claim of interest is concerned.
29. In the result, this petition is allowed to a limited extent as indicated above. Rule issued in this petition is partly made absolute by issuing a writ of mandamus for quashing and setting aside the order at annexure B so far as it directed deduction of Rs. 1,02,062 from the apparent consideration payable to the petitioner. We direct the respondents to pay to the petitioner the additional amount of Rs. 1,02,062 with 12 per cent. interest from April 1, 1992, till the amount is paid up to the petitioner. The respondents shall make the aforesaid payment to the petitioner at the earliest.
30. Before parting with this judgment, we may note one request of Mr. Shelat for the respondents. He submitted that the respondents would like to get this order contested before the Supreme Court and hence the operation of this order may be stayed for a period of three months. His request being reasonable is granted. The present order will remain stayed for three months from today. Orders accordingly.
31. In the facts and circumstances of the case, there will be no order as to costs.