S.K.SEN, J. - (1.) THE petitioner has approached this Court against the order, dt. 27th Dec., 2001, passed by the respondent No. 1 under S. 269UD(1) of the IT Act, 1961 (hereinafter referred to as 'the Act'), for pre emptive purchase of the property by respondent No. 2 belonging to the respondent No. 3. The petitioner has alleged in the petition that he entered into an agreement to sale dt. 3rd Sept., 2001, with the respondents No. 3 for the purchase of the residential house No. 9/42, Suryodaya Colony, Rana Pratap Marg, Lucknow, for the total sale consideration of Rs. 30,00,000 (Rupees thirty lacs) and an advance of Rs. 11,00,000 (Rupees eleven lacs) was paid by the petitioner to the respondent No. 3. Since the value of the property in question is more than Rs. twenty lacs, the transferor was under an obligation to obtain no objection certificate under the provisions contained in Chapter XX C of the Act. The petitioner and the respondent No. 3 jointly applied in the prescribed Form 37 I on 18th Sept., 2001, for no objection certificate from the respondent No. 1. The respondent No. 1 inspected the property in question on 6th Nov., 2001, and thereafter issued the show cause notice under S. 269UD(1A) of the Act to the petitioner as well as the respondent No. 3 calling upon them to show cause as to why an order under S. 269UD be not passed acquiring the property. In the show cause notice the value of the property was determined at Rs. 41,85,509. The petitioner as well as respondent No. 3 filed their reply on 21st Dec., 2001, stating inter alia that the evaluation of the fair market value of the property is not, in accordance with law. The petitioner referred to two sale instances pertaining to the property Nos. 9/9 and 9/22 of the same locality wherein the rate of the land was taken at Rs. 4,450 per sq. mtr. Thereafter a second show cause notice dt. 22nd Dec., 2001, was issued to the petitioner and the respondent No. 3 and in response to the said show cause notice the petitioner submitted his reply dt. 26th Dec., 2001, before the respondent No. 1. The reply was also filed by the respondent No. 3 on 26th Dec., 2001, before the respondent No. 1 stating, inter alia, that the respondent No. 3 had agreed to sell the Lucknow property only with a view to purchase another property at Delhi and as such there cannot be any question of evading tax. The Appropriate Authority after considering the replies to the show cause notice passed the impugned order dt. 27th Dec., 2001 under S. 269UD(1) of the Act. Being aggrieved by the impugned order the petitioner has approached this Court.
(2.) SRI Pardiwala, the learned counsel for the petitioner, has strongly urged before us that the proceedings under S. 269UD(1A) was not followed according to the procedure laid down in the IT Rules, 1962, as the respondent No. 1 has ignored the sale instances of similar properties situated at 9/9 and 9/22, Suryodaya Colony, quoted by the petitioner solely on the ground that those transactions were not subject to the provisions of Chapter XX C of the Act. He further urged that in determination of the fair market value of the property the respondent No. 1 has not considered the rate fixed by the District Magistrate, Lucknow, proposed for determining the value of the property for levy of stamp duty and the respondent No. 1 has passed the order only on the basis of single comparable sale of the property at 9/31, Suryodaya Colony. The further contention of Sri Pardiwala, the learned counsel for the petitioner, is that Chapter XX C has been deleted. He further submits that the valuation report was not supplied to the petitioner in time, and the same was given only on 24th Dec., 2001, barely one day before hearing and as such the principle of natural justice was not followed. The learned counsel for the petitioner has relied upon the judgment in Ajeet Singh & Anr. vs. Appropriate Authority & Ors. (1997) 142 CTR (All) 306 : (1997) 226 ITR 330 (All). It is also submitted before us that the fair market value under S. 2, sub S. (22B) of the Act was not properly considered. Sri O.P. Dua, senior advocate, assisted by Sri Amitabh Misra for respondent No. 3 has adopted the arguments made by the learned counsel by the petitioner. He further submits that the sufficient opportunity was not afforded to the respondent No. 3 by the Appropriate Authority as the valuation report was supplied on 24th Dec., 2001. Sri S.C. Misra, the learned Advocate General appearing on behalf of the Revenue, has strongly urged before us that there is no irregularity in the procedure followed by the competent authority and the sale instances which were not taken into account were rightly left out of consideration in view of the fact that they were not sale under the Act. He further submits that it is not obligatory to accept the District Magistrate's valuation report, which is meant for the purpose of assessing stamp duty. The property, which was taken into as the sale instance, was the only property comparable to work out the valuation of the property under transfer.
(3.) WE have heard Sri Y.J. Pardiwala, the learned counsel for the petitioner, assisted by Sri D.D. Chopra and Sri S.C. Misra, the learned Advocate General appearing on behalf of the respondents 1 and 2, and Sri O.P. Dua, senior advocate assisted by Sri Amitabh Misra for the respondent No. 3.;