Venkataswami, J. - (1.) AGGRIEVED by an order of the second respondent under sub-section (1) of section 269UD of the Income-tax Act, 1961, in and by which it was decided to purchase the immovable property belonging to the petitioner situated in R.S. No. 4487 and bearing door No. 126, Santhome High Road, Madras-600 028, the present writ petition challenging the said order has been filed.
(2.) BRIEF facts are as under : The petitioner, as owner of the said property entered into an agreement on January 29, 1988, with the third respondent agreeing to transfer 90.505% of his right, title and interest in the property in question for a consideration of Rs. 32,76,733.50. The petitioner under the said agreement proposed to retain 9.495% of his right, title and interest and in addition to that, made the third spondent agree to construct for him a flat of about 1,715 sq. ft. built-up area along with 160 sq. ft. covered car park space at a cost of Rs. 3,30,300. As a required under the provisions of the Income-tax Act, the petitioner forwarded a duly verified statement in Form No. 37-1 and also a copy of the agreement of sale dated January 29, 1988. This was received by the second respondent on January 29, 1988, as seen from the impugned order. Under the provisions of the Income-tax Act, the second respondent is expected to pass orders with 60 days of the receipt of the statement in Form No. 37-1 regarding purchase of the property. In accordance with that, just before the expiry of the last day, the second respondent, by order dated March 28, 1988, has passed the impunged order deciding to purchase the property for a sum of Rs. 32,76,733.50. Mr. V. P. Raman, learned counsel appearing for the petitioner, submits that from a reading of paragraph 6 of the impugned order, it will be crystal clear that the same has been passed hastily and without application of mind, on the last day. In other words, the contention of learned counsel is that though the property agreed to be sold by the petitioner to the third respondent was in respect of 90.505% of the right, title and interest in the property for a consideration of Rs. 32,76,733.50, the impugned order will show that the second respondent has decided to purchase the entirety of the property for the sum of Rs. 32,76,733.50. On this ground alone, according to learned counsel, the impugned order is liable to be set aside, though in fact, in the affidavit filed in support of the writ petition, various other grounds have been raised challenging the impugned order. Mrs. Nalini Chidambaram, learned counsel appearing for respondents Nos. 1 and 2, submitted that a fair that a fair reading of the entire order will show that what was decided to be purchased by the second respondent was only 90.505% of the right, title and interest in the property in question and not 100% as contended by learned counsel for the petitioner. Learned counsel further submitted that this has been expressly made clear in the counter-affidavit filed by the second respondent. Therefore, according to learned counsel, the order impugned cannot be quashed on the ground that it proposed to purchase 100% right, title and interest in the property for a consideration of Rs. 32,76,733.50. I have carefully perused the impugned order in the light of the rival submissions advanced before me. I am inclined to agree with learned counsel for the petitioner. My reasons are the following : paragraphs Nos. 1 to 5 in the impugned order set out only the facts relating to the case before the second respondent. The crucial paragraph is paragraph 6. A reading of this paragraph will lead any one to the only conclusion that the second respondent has decided to purchase 100% of the right, title and interest in the property in question for a sum of Rs. 32,76,733.50. For better appreciation, paragraph 6 is extracted below : "As per the reasons recorded by us separately, we have come to the unanimous conclusion that the said property is fit for purchase by the Central Government for an amount equal to the amount of apparent consideration. Accordingly, in exercise of the powers vested in us under sub-section (1) of section 269UD of the Income-tax Act, we, the Appropriate Authority, Income-tax Department, Madras, order the purchase of the said immovable property situated in R.S. No. 4487 and No. 126, Santhome High Road, Madras-600 028, by the Central Government for a sum of Rs. 32,76,733.50 (thirty-two lakhs seventy-six thousand seven hundred and thirty-three and paise fifty only) being equal to the amount of the apparent consideration stated in the agreement of sale." In addition to the above, an annexure is given to the impugned order setting out the schedule of property proposed to be purchased. There also, the entire property is mentioned and not an undivided share of 90.505% as contended by learned counsel for respondent Nos. 1 and 2. There is force in the contention of learned counsel for the petitioner that the order has been passed by the second respondent on the last day without proper application of mind which led to this lacuna. I am not prepared to accept the statement in the counter-affidavit to the effect that the decision by the second respondent was to purchase 90.505% of the right, title and interest in the property and not 100% in view of the clear statement in paragraph 6 of the impugned order read with annexure 1. As I am of the view that the impugned order is liable to be set aside on this error which is apparent on the face of the records, I have not dealt with the other grounds.
(3.) IN the result, the order of the second respondent dated March 28, 1988, made in No. AA/Mds/1 (223) 3/ 87-88 is quashed and the writ petition is allowed. However, there will be no order as to costs. JUDGMENT OF DIVISION BENCH A.S. Anand C.J. This writ appeal is directed against the judgment dated March 7, 1989, of the learned single judge allowing W.P. No. 3924 of 1988. The appellants herein were respondents Nos. 1 and 2 in the writ petition. Respondent No. 1 herein was the third respondent in the writ petition. For facility of reference, reference to the parties shall be in the same order as in the writ petition. An order under section 269UD(1) of the Income-tax Act was issued by the second respondent whereby it was decided to purchase an immovable property belonging to the writ petitioner situated in R.S. No. 4487 and bearing door No. 126, Santhome High Road, Madras. That order was called in question before the learned single judge on various grounds. But the writ petition succeeded on a single ground without reference to the other grounds raised in the writ petition. ;