Commissioner Of Income-Tax, Jullundur v. Amrit Sports Industries, Jullundur .

1. A plot of land measuring approximately 16 marlas (3,360 sq. ft.) was sold by Guru Nanak Public Welfare Trust, Milap Chowk, Jullundur, for a sum of rupees forty thousand to M/s. Amrit Sports Industries, Basti Nau, Jullundur, the respondent-assessee in this case, vide sale deed No. 3809 dated September 8, 1977. Shri Nirmal Singh, Inspector, made his report dated April 20, 1978, to the effect that the plot in dispute was of the market value of Rs. 1,32,000 on the date of the sale. The Competent Authority initiated proceedings under Section 269D of the I.T. Act, 1961 (hereinafter referred to as "the Act"), and the relevant notice was published in the Official Gazette on June 3, 1978. It appears that in the meantime the assessee-respondent had built some shops on this plot of land and had let them out to some tenants. The actual notice of the proceedings was in fact served upon the assessee-respondent, but no such notices were served upon the tenants, who were occupying the shops built on the plot in dispute. The Competent Authority, vide its order dated March 21, 1980, held that the case fell under Section 269F(6) of the Act and passed an order of acquisition of the property in dispute. The assessee-respondent went up in appeal, which was allowed on grounds, inter alia, (i) that Section 269D(2) of the Act had not been complied with inasmuch as the tenants occupying the shops built on the land in dispute had not been served with any notices, and (ii) that the conditions precedent for the initiation of proceedings were wanting in this case because the action had been taken by the Competent Authority merely on the report of an inspector of the Department, who had not, properly assessed the market value of the property in dispute on the date of its transfer. The grounds urged on behalf of the assessee-respondent prevailed with the Income-tax Appellate Tribunal, who reversed the order passed by the Competent Authority and ordered the property to be released forthwith. The Revenue has come up in appeal under Section 269H of the Act.

2. On behalf of the Revenue, Mr. Awasthy has argued that under Section 269D of the Act, the condition precedent for initiation of proceeding is the publication of the notice in the Official Gazette, which admittedly was done in this case. On the second point, it was argued that the report submitted by the income-tax inspector was prima facie good material on the basis of which the Competent Authority could initiate action. In support of his submissions Mr. Awasthy relied upon CIT v. Smt. Vimlaben Bhagwandas Patel, [1979] 118 ITR 134, wherein a Division Bench of the Gujarat High Court has taken the view that the condition regarding the locality notice or the personal notice did not render the determination made by the Competent Authority as void. In coming to that conclusion the Gujarat High Court had relied upon an earlier Full Bench decision of that High Court, Dungarlal Harichand v. State of Gujarat, AIR 1977 Guj 23, wherein also it was laid down that a locality notice was not mandatory in respect of a case which arose out of the Bombay Town Planning Act No. 27 of 1955, We might add at this place that as far as this court is concerned, the law is practically well settled that in a case under Section 4 of the Land Acquisition Act the service of the notice on the land-owner as also the locality notice are conditions precedent for validating the acquisition proceedings. (See in this connection Rattan Singh v. State of Punjab, AIR 1976 P&H 279 [FB]). In other words, there is a direct conflict between Full Benches of two courts about the principle of law which has been relied upon by the learned judges, who decided Smt. Vimlaben Bhagwandas Patel's case, [1979] 118 ITR 134. Mr. Gupta, the learned counsel for the assessee-respondent, has asserted that under Section 269D(2), it has been expressly laid down that the Competent Authority shall be under an obligation to issue notices to all persons interested in the property including those who are holding it as tenants. According to him, the issuance of notices to the persons concerned is also a condition precedent for the initiation of the proceedings. The learned counsel has also relied upon some observations made in U.S. Awasthi v. IAC, [1977] 107 ITR 796 (All) and Mohammed Mahboob Ali Saheb v. IAC, [1978] 113 ITR 167 (AP).

3. The questions of law canvassed at the Bar are not free from difficulty and as indicated earlier, if we were to accept the view expressed by the Gujarat High Court, we might have to doubt the correctness of the decision given in Rattan Singh v. State of Punjab, AIR 1976 P & H 279 [FB], The matter is likely to crop up in a large number of cases. In this situation, we deem it proper that this case should be decided by a larger Bench. Let the papers be placed before Hon'ble the Chief Justice for obtaining suitable orders in that behalf.

Sandhawalia, C.J.

4. In this reference to the Full Bench, the two significant general questions that have come before us are :

" (i) Whether the initiation of proceedings for the acquisition of immovable property in certain cases of transfers to counteract evasion of tax Under Chapter XX-A of the Income-tax Act, 1961, is complete by the publication of the notice in the Official Gazette under Section 269D(1) of the said Act ? and,

(ii) Whether the transferee, though himself personally served with an individual notice under Section 269D(2)(a) of the Income-tax Act, 1961, can assail the said acquisition proceedings on the alleged non-service on any other person or persons interested in the said property ? "

5. The undisputed facts fall within a narrow compass. A plot of land measuring approximately 16 marlas situate near Milap Chowk, Basti Nau, Jullundur City was sold by its owner M/s. Guru Nanak Public Welfare Society for a sum of Rs. 40,000 only to M/s. Amrit Sports Industries, Jullundur, vide registered sale deed dated September 8, 1977, Shri Nirmal Singh, inspector, made his report dated April 20, 1978, to the effect that the plot aforesaid was of the market value of Rs. 1,32,000 on the date of the sale. The Competent Authority being satisfied under Section 269C of the I.T. Act, 1961 (hereinafter called "the Act"), initiated the acquisition proceedings under Section 269D of the Act, by the publication of the relevant notice in the Official Gazette on June 3, 1978, within the prescribed period of limitation. It would appear that in the meantime the assessee-transferee had built some shops on this plot of land and had inducted some tenants thereon. It is not in dispute that under Section 269D(2)(a) of the Act, the transferor as well as the assessee-transferee had been duly served but apparently some of the tenants in occupation of the shops were not individually served under the said provisions.

6. Objections against the acquisition proceedings were filed on behalf of the assessee-transferee. During the proceedings that followed, a copy of the valuation report was duly furnished to the assessee-transferee, who by way of reply, placed on record a copy of the valuation report from M/s. Avinash Khosla and Associates. The Competent Authority noticed that since no objection to the legality or basis of the initiation of proceedings was taken and the sole objection of the assessee-transferee was with regard to the justification of the apparent consideration of Rs. 40,000, he would deal with the said objection only in detail. In an order, remarkable both by lucidity and exhaustiveness, the Competent Authority, on consideration of the materials before it, estimated the fair market value of the plot at Rs. 1,12,320. Because the assessed fair market value exceeded the apparent consideration by more than 25 per cent., the Competent Authority found that the presumptions in Section 269C(2) of the Act were directly attracted to the case. He, therefore, held in terms that the consideration for the transfer of the immovable property had not been truly stated in the instrument of transfer with the object of facilitating the reduction or evasion of the tax liability and for the concealment of an income or money or other assets which have not been and which ought to be disclosed by the assessee-transferee for the purpose of tax statutes, As a necessary consequence, in pursuance of Section 269F(6) of the Act, the orders for acquisition of the property were passed with the prior approval of the Commissioner of Income-tax, Jullundur.

7. The assessee-transferee alone appealed against the order aforesaid. The Tribunal first took the view that even though the assessee-transferee had been duly served under Section 269D(2), yet the mere failure to serve the tenant in the shops of the disputed property was a material defect which vitiated both the proceedings and the consequential order and for that reason alone, the same should be struck down. However, as an additional reason, the Tribunal held that there was not any adequate material for the finding with regard to the objects specified in Clause (a) or (b) of Section 269C(1) of the Act, and, therefore, these findings could not also be sustained. As a result, the order of the Competent Authority was set aside and the property was directed to be released forthwith.

8. The Commissioner of Income-tax appeals. The matter originally came up for consideration before the Division Bench and by its lucid reference order dated December 3, 1981, has been referred for decision by the Full Bench in view of the significant questions involved and some apparent conflict of authority on the point.

9. One may now inevitably turn first to question No. (i) posed at the very outset and obviously the answer thereto must turn on the particular language and import of Section 269D of the Act. However, before specifically addressing myself to the said provision, it seems apt to seek a clue to the question in the larger scheme of the newly inserted Chap. XX-A of the Act. This was added to the statute book by the T.L. (Amend.) Act, 1972, with effect from November 15, 1972. The avowed objects and reasons therefor were couched in the following terms in the Bill introduced in Parliament:

" Statement of Objects and Reasons (1) To counter evasion of tax through understatement of the value of immovable property in sale deeds and also to check the circulation of black money, by empowering the Central Government to acquire immovable properties, including agricultural lands, at prices which correspond to those recorded in sale deeds ;

(2) to curb the widespread practice of benami holding of property with a view to tax evasion, by debarring, the real owner from enforcing his claim to such property in a court of law unless he has declared the income from that property or the property itself for purposes of income-tax and wealth-tax or has given notice of his claim to the property to the income-tax authorities; and (3) to improve the present arrangements for valuation, for purposes of income-tax, wealth-tax and gift-tax laws, of buildings, lands and other assets, by augmenting the set up of the official valuation machinery and enhancing its powers on the one hand, and by bringing about better regulation and discipline over non-official valuers, on the other.

For achieving the first object, the Bill (vide Clause 4) seeks to insert a new Chapter XX-A in the Income-tax Act, 1961. A new Section 281A (vide Clause 5) is proposed to be inserted in the same Act for achieving the second object. The remaining provisions of the Bill are for giving effect to the third object."

10. From the above as also from the particular provisions of section 269a to section 269r, contained in Chap. XX-A, there seems to be little doubt that these provisions were directed to achieve the laudable object of curbing the evasion of tax and the generation of black money by under-stating and under-valuing the transfer of immovable properties. That this evil had attained enormous proportions (and indeed continues to grow despite these provisions) was not denied at the bar, as also the fact that Parliament was ultimately compelled to legislate in order to counter the same, is again not in dispute. Therefore, on larger canons of construction, the interpretation of the provisions in Chap. XX-A must be one conducive to the avowed purposes of its enactment by Parliament and not one which in the ultimate analysis may tend to frustrate the same in actual practice.

11. It is apt now to read the relevant part of Section 269D of the Act :

(1) The Competent Authority shall initiate proceedings for the acquisition, under this Chapter, of any immovable property referred to in Section 269C by notice to that effect published in the Official Gazette :

Provided that no such proceedings shall be initiated in respect of any immovable property after the expiration of a period of nine months from the end of the month in which the instrument of transfer in respect of such property is registered under the Registration Act, 1908 (XVI of 1908):...

(2) The Competent Authority shall-

(a) cause a notice under Sub-section (1) in respect of any immovable property to be served on the transferor, the transferee, the person in occupation of the property, if the transferee is not in occupation thereof, and on every person whom the Competent Authority knows to be interested in the property ;

(b) cause such notice to be published-

(i) in his office by affixing a copy thereof to a conspicuous place ;

(ii) in the locality in which the immovable property to which it relates is situate, by affixing a copy thereof to a conspicuous part of the property and also by making known in such manner as may be prescribed the substance of such notice at convenient places in the said locality. ......"

12. Now, the very core of the stand taken by Mr. B.S. Gupta, the learned counsel for the respondents (in support of the primary finding of the Tribunal), is that the very assumption of jurisdiction commences and is complete only by both the publication of the notice in the Official Gazette as also the valid service of notices on the transferor, the transferee, the occupants and other interested persons as specified in Sub-section (2), Clause (a) of Section 269D of the Act. The whole emphasis is that until all the class of interested persons is individually served, there is no valid assumption of jurisdiction and consequently any failure of service upon them would go to the very jurisdiction and thus vitiate the proceedings. On this ground, it was contended that such non-service or failure of valid service on any one of the interested persons goes to the very root of the matter and irrespective of the person raising the issue (e.g., though such a person may himself have been duly and validly served), such a default would denude the proceedings of their lawful base and render them non est.

13. One may now proceed to cost the aforesaid contention on the anvil of Section 269D of the Act. It is unnecessary to quote the preceding Section 269C because it is common ground that this broadly spells out the conditions precedent for the acquisition proceedings. Once these subjective preliminary requisites are satisfied, the Competent Authority is empowered to initiate the proceedings for the acquisition. This initiation is in terms provided for by Sub-section (i) of Section 269D of the Act. The plain language thereof lays down that the Competent Authority shall initiate the proceedings by notice to that effect published in the Official Gazette. Therefore, the conclusive step which, in essence, amounts to the assumption of jurisdiction for acquisition, is in these terms spelt out by the law itself. When the language of Section 269D(1) of the Act itself declares when and how initiation of the acquisition proceedings is to be done, it seems inapt to go on and hold that despite this mandate, the initiation would still be incomplete till the fortuitous circumstance of the issue of notices to the transferor, the transferee, the occupants and persons interested, and not only that, but much later, by their effective service as well.

14. Viewed in the correct perspective, sub-section (1) of section 269d of the Act is the primary and the main provision for the initiation of acquisition proceedings. Sub-section (2), which obviously follows, is in a way a subsidiary and a supplementary provision to the aforesaid basic one. It seems elementary that where public notice by publication in the Official Gazette is provided, and, added thereto, individual notices or other modes of publication are also provided, then the latter are secondary in nature. Again, the notices prescribed under Sub-section (2) are merely reflections and copies of the notice originally published in the Official Gazette under Sub-section (1). The law provides primarily and first, the publication of the notice in the Official Gazette and then a replica thereof is to be served on individuals or published as laid down in Sub-section (2)(b), An overall analysis thereof would disclose that apart from publication in the Gazette, the law also provides a publication in the locality where the property is situated as also affixing a copy thereof in the office of the Competent Authority. These are in the nature of public notices supplemental to the publication in the Official Gazette which plants presumptive knowledge of the same to everyone concerned. Apart from these, a further modus of service of notice is provided on the transferor, the transferee, the occupant and other persons interested in the property if known to the Competent Authority. I am clearly of the view that these are subservient and supplemental provisions and the initiation of proceedings is complete with the publication in the Official Gazette. To put it in other words, the assumption of jurisdiction by the Competent Authority arises from such publication. The proceedings under Section 269D(2) of the Act being procedural and supplementary, are in no way jurisdictional. Any defect or irregularity therein consequently cannot affect the assumption of jurisdiction by the Competent Authority and, therefore, in no way vitiates the initiation of proceedings once validly done. Therefore, a default in service of the persons interested or even of publication under Sub-section (2)(b) does not affect the jurisdiction of the Competent Authority but at the very highest pertains to the exercise of the power thereunder. It is well settled that an erroneous exercise of power does not vitiate the proceedings, but merely calls for correction, be it in the appellate, revisional or any other jurisdiction.

15. The view I am inclined to take is buttressed by the exhaustive Division Bench judgment in CIT v. Smt. Vimlaben Bhagwandas Patel, [1979] 118 ITR 134 (Guj), in the following terms (p. 172):

" In the case before us we are unable to read such a mandate in Section 269D so as to agree with the learned advocate for the respondents that individual as well as locality notices are conditions precedent for initiating acquisition proceedings. If that had been the legislative intent as contended on behalf of the respondents, it would have been appropriately expressed as has been done in Section 4 of the Land Acquisition Act. The Legislature would have said in no uncertain terms by prescribing that the competent authority shall initiate proceedings for acquisition of immovable property by a notice to that effect published in the Official Gazette as well as by individual and locality notices. There was no necessity, if the legislative intent had been to treat individual and locality notices as jurisdictional facts or conditions precedent for exercise of the jurisdiction, to provide for such notices in Sub-section (2) instead of in Sub-section (1)."

16. The aforesaid view has been expressly reiterated in the later Division Bench judgment in CIT v. Shilaben Kanchanlal Rana, [1980] 124 ITR 420 (Guj).

17. On this specific point the view in the Allahabad High Court is also in consonance with the one which I am inclined to take. In U.S. Awasthi v. IAC, [1977] 107 ITR 796 (All), Gulati J., speaking for the Division Bench, observed in no uncertain terms as under (p. 804):

" sub-section (1) of section 269d provides for a preliminary notice. It is the preliminary notice which initiates the proceedings and the preliminary notice has to be given by publication in the Official Gazette. Unless this preliminary notice is published in the Official Gazette within 9 months from the end of the month in which the instrument of transfer is registered, proceedings cannot be said to have been initiated. Thus, the condition precedent for the initiation of proceedings is the publication of the preliminary notice in the Official Gazette within a period of nine months from the end of the month in which the sale deed is registered. In other words, it is the publication of the notice, in the prescribed manner which confers jurisdiction upon the Competent Authority to take further proceedings under Chapter xx-a. sub-section (2) of section 269d no doubt requires the Competent Authority to cause a notice under Sub-section (1) to be served upon the transferor, the transferee and other interested persons. It also requires a notice to be published by affixing a copy thereof in a conspicuous place in the office of the Competent Authority and on a conspicuous part of the property itself but these notices are not jurisdictional notices. They have to be issued after the preliminary notice has been published in the Official Gazette within the statutory time. If a notice is not published in the Official Gazette within the prescribed time, the issuance of notice to the vendors and vendees and other interested persons and affixing notices in the office of the Competent Authority and on a conspicuous part of the property will not vest the Competent Authority with the jurisdiction to commence proceedings under Chapter XX-A of the Act. These notices are ancillary notices meant only to bring to the notice of the persons concerned the initiation of proceedings under Chapter XX-A. The notices contemplated by Sub-section (2) do not provide an alternative mode of publication of the preliminary notice."

18. In fairness to Mr. B.S. Gupta, we must notice his reliance on Mohammed Mahboob Ali Saheb v. IAC, [1978] 113 1TR 167 (AP). Undoubtedly, the observations in the said case do strike a discordant note. However, an analysis of the judgment would disclose that the matter was not adequately canvassed before the Division Bench. The earlier consistent view in the Gujarat and the Allahabad High Courts was not brought to the notice of the Bench. The issue seems to have been treated as one of first impression and the sharp distinction betwixt sub-sections (1) and (2) of section 269d seems to have gone wholly unnoticed. Reliance was primarily placed on authorities under the Land Acquisition Act, 1894, the provisions whereof are not even remotely in pari materia with Section 269D of the Act. The legislative background and the particular language of Section 269D and the sequence thereof was equally not adverted to. With the greatest respect to the learned judges of the Andhra Pradesh High Court, I would wish to record my dissent from Mohammed Mahboob Ali Saheb's case, [1978] 113 ITR 167 (AP).

19. Before parting with this aspect of the case, a passing notice is also called for to the tenuous reliance of Mr. Gupta on Sections 147 and 148 of the Act and precedents thereunder. This appeared to me as an argument of desparation. Plainly enough, the language of Sections 147 and 148 of the Act does not have even a remote similarity to that in Section 269D of the Act. Undoubtedly, the very content, import and purpose of those sections is far removed from what we are called upon to construe. Pointedly, there is not a hint of any provision of publication of notice in the Official Gazette in Sections 147, 148 and 149 of the Act. That being so, the very foundation of the question that the initiation of proceedings and assumption of jurisdiction would arise by the publication in the Official Gazette, has not the least relevance to Sections 147 and 148 of the Act. It is thus unnecessary and indeed wasteful to advert to authorities under the said provisions which inevitably would turn on altogether different considerations.

20. To conclude on the first question, I would hold that the initiation of the proceedings for acquisition and the consequent assumption of jurisdiction by the Competent Authority is complete by the publication of the notice in the Official Gazette under Section 269D(1) of the Act. Consequently, a procedural defect in compliance with Sub-section (2) would not affect the jurisdiction of the Competent Authority and does not vitiate the whole proceedings under the said section.

21. Once the answer to the first question is rendered in the terms aforesaid, question No. (ii) posed at the outset would not detain us for long. Mr. B.S. Gupta had to fairly concede that the settled general rule is that where the statute provides for service of notice, it is the aggrieved party alone who can complain of the non-service of such statutory notice and the third person cannot take up cudgels on its behalf pro bono publico. Nevertheless, it was sought to be contended before us on behalf of the respondents that the provisions of Section 269D(2) of the Act are so exceptional that, as in the present case, even though the transferee had been duly served, he could still make a grievance of the notices being not served on his tenants and not only that but could assail the validity of the whole proceedings on that ground.

22. It is not easy to accede to the patently tall stand taken on behalf of the respondents. The larger view, that only the person aggrieved can make a grievance of his non-service, is not only sound in principle but has equally the support of binding precedent. In Begum Noorbanu v. Deputy Custodian-General of Evacuee Property, AIR 1965 SC 1937, the non-service of notice under Section 7 of the Administration of Evacuee Property Act was sought to be made a ground of attack. Their Lordships, while repelling the same, observed in no uncertain terms as follows (p. 1940) :

" Apart from that there is a good deal of force in the argument that the objection of non-service of notice could properly be taken only by the person on whom the notice is not served and not by third parties."

23. Following the above in the particular context of Section 269D of the Act, the Division Bench in CIT v. Premanand Industrial Co-operative Service Society Ltd., [1980] 124 ITR 772 (Guj.), has held that a third party cannot make a grievance of non-service in the following terms (p. 781):

" It may also be pointed out that no individual member of the society of any of the three co-operative societies has made any grievance about any non-service of notice upon him. In the context of notice required to be served under the provisions of the Administration of Evacuee Property Act, it was held by the Supreme Court in Begum Noorbanu v. Deputy Custodian-General of Evacuee Property, AIR 1965 SC 1937, that an objection as to non-service of notice can properly be taken not by third parties, but only by the person on whom the notice is not served. In the instant case, no objection whatsoever has been raised by the members. The objections were raised by the co-operative societies themselves, the transferees. In the instant case, however, the contention urged on behalf of the Commissioner is correct, namely, that the Tribunal should not have entertained these objections about non-service of the notice on the individual members and should have rejected these contentions."

24. Nearer home, the view finds support from two Full Bench judgments of this court in Ashok Kumar v. State of Haryana, AIR 1975 P & H 71 and Harnek Singh v. State of Punjab, AIR 1972 P & H 232, to the effect that the person entitled to a statutory notice alone can make a grievance about its non-service.

25. Apart from precedent, it seems to be well settled that in cases where a statutory notice is provided, a person aggrieved by non-service would have a right to seek a review and be heard in case of an adverse order against him. In a variety of jurisdictions, it has been held that an authority would be having inherent jurisdiction to review an order at the instance of a person who is entitled, in law, to be heard and who in fact has not been heard either in violation of the specific provision of infraction of the principle of natural justice. However, non-service on one person out of many would not necessarily render, without jurisdiction, the whole of the proceedings or vitiate what has already been validly done. It was not denied before us that under Section 269D(2)(a) of the Act there may be a host of persons interested who may be entitled to individual notices and to hold that non-service on any one of them or any defect in the validity of service may vitiate the proceedings, would in practical effect virtually hamstring the finalisation of the acquisition proceedings and might well tend to frustrate the purposes of the enactment of Chap. XX-A.

26. To finally conclude, the answer to question No. (i) formulated at the outset is rendered in the affirmative and it is held that under Section 269D of the Act, the initiation of proceedings for acquisition and the consequent assumption of jurisdiction by the Competent Authority is completed by the publication of the notice in the Official Gazette.

27. The answer to question No. (ii) is rendered in the negative and it is held that it is only the person aggrieved by the non-service of the individual notice under Section 269D(2)(a) of the Act upon him who can make a grievance thereof. Consequently, the transferee who has been validly served cannot assail the acquisition proceedings on the alleged ground of the non-service on the tenant of the property.

28. Learned counsel for the parties are agreed that apart from the above, other issues on merits also arise. We accordingly direct that this case be now placed before a Division Bench for a decision thereon in accordance with the answers rendered to the legal questions above.

Prem Chand Jain, J.

29. I agree.

M.R. Sharma, J.

30. So do I.