MEHTA, J. -
(1.) IN this group of two appeals at the instance of the CIT, Gujarat -III, the common order of the Income -tax Appellate Tribunal dated June 30, 1976, invalidating the acquisition of immovable property being shops, bearing Nos. 1 to 5 on the ground floor of the building known as YASHKAMAL standing on land of S.No. 91 -92 (part) on Ring Road, Surat, within town planing scheme No. 8 of the Surat Municipal Corporation, which were sought to be acquired by the order of the Competent Authority, Acquisition Range II, Ahmedabad, dated March 12, 1976, has been challenged. In order to appreciate the contentions raised in these appeals it would be necessary to advert to a few facts which have led to those two appeals.
(2.) THE owners of the shops in question were Bhagwandas R. Reshamwala and other who happen to be partners of M/s. Reshamwala Market in which the shops were situated. By a deed of conveyance dated November 26, 1973, they conveyed the right, title and interest in the shops together with the land to one Smt. Shilaben Kanchanlal Rana of Surat for a consideration of Rs. 1,05,500. Since in the opinion of the competent authority the apparent consideration stated in the deed of conveyance was less than the fair market value, he initiated the acquisition proceedings by a notice on May 18, 1974, which was published in the Central Government Gazette on August 31, 1974. Individual notices on the transferor and transferee as required under s. 269D(2)(a) of the I.T. Act, 1961 (hereinafter referred to as 'the Act'), were served on June 1, 1974 while it was served on the occupier of the said shops (A branch of Dena Bank at Surat) on December 13, 1974. The locality notice, as required under s. 269D(2)(b) of the Act, was published by affixation as well as by beat of 'theli' on December 13, 1974. The transferee filed objections before the Competent Authority, who on consideration of all the materials before him reached the conclusion that the apparent consideration as stated in the instrument of transfer was substantially less than the fair market value and, therefore, the property in question should be acquired. He accordingly made an order of acquisition under s. 269P of the Act which was challenged by the transferor and transferee by two separate appeals before the Income -tax Appellate Tribunal. A number of contentions were urged on behalf of the transferor and the transferee before the Tribunal but two contentions impressed the Tribunal which held that the acquisition proceedings were vitiated because the conditions precedent for initiation of acquisition proceedings were not complied with inasmuch as the public notice in the Government Gazette as required to be published within nine months of the last day of the month in which the instrument of transfer in respect of the property in question was registered under the Registration Act, 1908, as provided under the proviso to s. 269D(1) of the Act was not published in the Government Gazette within time and also because the locality notice was admittedly published beyond the period or limitation of 45 days of the public notice during which the transferee are entitled to file their objections under section 269E of the Act. The Tribunal in holding that the Gazette notice was not published within nine months, followed the decision of the Allahabad High Court in U. S. Awasthi v. IAC : 107ITR796(All) . The Tribunal, therefore, by its common order of June 13, 1976, allowed the appeals and set aside the acquisition order. This common order is the subject -matter of the two appeal before us.
At the outset, we must say that as far as the second ground of the Tribunal for invalidating the acquisition proceedings in question is concerned, the point is already covered by the decision of this court in CIT v. Smt. Vimlaben Bhagwandas Patel : 118ITR134(Guj) . A few dates are recapitulated for the purpose of appreciating the objections of the learned Government pleader on behalf of the Commissioner, Gujarat -III, that the Tribunal was clearly in error in reaching the conclusions that the conditions precedent for the valid initiation of the acquisition proceedings were not satisfied because the locality notice, under s. 269D(2)(b) of the Act, was published admittedly after about 3 1/2 months of the publication of the gazetted notice. It should be recalled that the competent authority started initiation of acquisition proceedings by a public notice of May 18, 1974. The individual notices, however, to the transferor and transferee proceeded the public notice. However, individual notice to the occupier, viz., the branch of Dena Bank at Surat, and the locality notice were served and published respectively on December 13, 1974, i.e., 3 1/2 months from the date of the public notice. The Tribunal, therefore, was of the view that since the service of the individual notices on the occupier as well as the publication of the locality notice were admittedly beyond the period of limitation of 45 days prescribed under s. 269E of the Act for the purpose of filing objections by the interested and/or affected persons, the condition precedent for initiation of acquisition proceedings was not satisfied, for the obvious reason that the late publication of the aforesaid two notices would inevitably result in depriving the interested or affected persons of the right to file objections within the prescribed period of limitation. This view of the Tribunal is now no more good in view of the decision of this very Division Bench in CIT v. Smt. Vimlaben B. Patel : 118ITR134(Guj) . This court has held that the service of the individual notice or publication of the locality notice are not the conditions precedent for initiation of acquisition proceeding and the question of limitation for filling objections by the interested or affected person cannot have a bearing on the question of jurisdiction, since the persons interested or affected can file their objections within 45 days from the date of the actual or constructive notice of the initiation of the acquisition proceedings. In that view of the matter, therefore, we must not detain ourselves on this point and we agree with the learned Govt. pleader that the view of the Tribunal that since the individual notice to the occupier and the locality notice were not made within the period of limitation prescribed for filing objections, there is noncompliance with the conditions precedent for the initiation of the acquisition proceedings, which are, therefore, bad in law and void, is not correct.
(3.) THIS takes us to the first ground on which the Tribunal invalidated the acquisition proceedings. The Tribunal was of the view that the Competent Authority had not validly initiated the acquisition proceeding because the notice for the acquisition of the property in question dated May 18, 1974, though published in the Central Government Gazette of August 31, 1974, could not have been, in the very nature of things, immediately available to the interested or affected persons and, therefore, there was no valid publication of the notice as required under s. 269D(1) of the Act. The Tribunal on the short ground invalidated the acquisition proceedings. In doing so, the Tribunal followed the decision of the Allahabad High Court in U. S. Awasthi's case : 107ITR796(All) . This view of the Tribunal has been seriously challenged by the learned Government Pleader on the ground that the Tribunal committed an error of law in reaching the conclusion as it did because it read more that what is prescribed under s. 269D(1) for the initiation of the acquisition proceedings. In the submission of the learned Govt. pleader for the Commissioner who is the appellant before us, the only requirement for the initiation of the acquisition proceedings is, inter alia, publication on a notice by the Competent Authority in the Govt. Gazette should have been brought to the notice of the interested or affected persons and for that matter the Govt. Gazette should be made immediately available to them. The learned Govt. pleader also pointed out that the Division Bench of the Allahabad High Court which decided the case of U. S. Awasthi : 107ITR796(All) has conceded this position that it is the publication of the public notice in the Official Gazette within a period of nine months from the end of the month in which the sale deed was registered which confers jurisdiction upon the competent authority to initiate the proceedings. The ultimate view of the Division Bench that if the Gazette in which the notice for initiation of acquisition proceedings is published, is not available to the interested or affected persons it would result in loss of jurisdiction and no acquisition proceedings can be validly initiated, was contrary to the view of this Division Bench in Vimlaben's case : 118ITR134(Guj) . In any case, there is no requirement of law that the Gazette in which the notice in question is published, should be made known to or, for the matter, should be made available to the interested or affected persons. In support of his contention, he relied upon the decision of the Supreme Court in State of Maharashtra v. MAYER Hans George : 1SCR123 . He also urged that this decision of the Supreme Court had not been brought to the notice of the Division Bench of the Allahabad High Court which decided the case U. S. Awasthi : 107ITR796(All) and, therefore, the Tribunal was not justified in invalidating the acquisition proceedings in question.;