J.R Chopra, J.:— These two writ petitions raise common questions of fact and law and, therefore, on joint request, they were heard together and are being decided by a common order. The facts necessary to be noticed for the disposal of these two writ petitions, briefly stated, are that Shri Keshav Singh, the petitioner, who belongs to Jodhpur has some commercial as well as residential properties. He transferred one residential property to his grandson, Vikram Singh, by a registered sale deed dated March 26, 1981, for a sum of Rs. 90,000 mentioning in the sale deed that a lesser consideration is being charged from him for the sale of this property on account of natural love and affection for him. Likewise, he transferred 4 shops to Shri Vikram Singh, his grandson, for a sum of Rs. 55,000, vide a registered sale deed dated March 25, 1981, which sale forms the subject-matter of Writ Petition No. 1384 of 1981. The contention of the petitioners is that this transfer for a lesser consideration is actuated by natural love and affection for the seller's grandson, Shri Vikram Singh, in whose favour these properties have been transferred. When the income-tax authorities were informed about these sale deeds which have been registered, action was initiated by non-petitioner No. 2, Inspecting Assistant Commissioner of Income-tax, Jaipur (Competent Authority), for undertaking a valuation of these properties under Chapter XX-A of the Income-tax Act because it was felt that these properties have been transferred for inadequate consideration and, therefore, the possibility has to be examined whether they can be acquired under Chapter XX-A of the Income-tax Act which deals with acquisition of immovable properties in certain cases of transfer to counteract evasion of tax.
2. The contention of the respondents is that the writ petitions are premature. Whether section 269Q of Chapter XX-A of the Act is applicable in the matter should be raised before the Valuation Officer and the question of the applicability of this section should further be raised before the Competent Authority and, therefore, the writ petitions are premature and the petitioner be directed to approach the proper forum for redressal of his grievances.
3. I have heard Mr. Rajendra Mehta, appearing for the petitioners, and Mr. D.S Shishodia, appearing for the Revenue, and I bestowed my thoughtful consideration to the rival submissions made at the Bar. Section 269Q reads as under:
“269Q. Chapter not to apply to transfers to relatives.— The provisions of this Chapter shall not apply to or in relation to any transfer of immovable property made by a person to his relative on account of natural love and affection for a consideration which is less than its fair market value if a recital to that effect is made in the instrument of transfer.”
4. This section of Chapter XX-A was in force at the time when these sale deeds were executed and registered. This entire chapter was deleted from the statute book by introducing section 269RR with effect from September 30, 1986, and, thereafter, it was substituted by Chapter XX-C. Now the transfers which have been made after September 30, 1986, are governed by the provisions of the aforesaid Chapter XX-C of the Income-tax Act.
5. The application of Chapter XX-A is exempted in case of transfers which are made in favour of the relatives for lesser consideration on account of natural love and affection. Whether a transfer has been made in favour of a relative and on account of natural love and affection cannot be decided by the Valuation Officer, and, therefore, this contention of Mr. Shishodia that this point should be raised before the Valuation Officer has no substance. Now, so far as the applicability of the section to this particular sale deed is concerned, it has to be determined on the basis of the averments that were made in the sale deed because what the section requires is that the sale deed should be in favour of a relative and a grandson is definitely a relative of his grandfather. Section 2, clause (41) defines a relation which includes all lineal descendants and that covers a grandson. The sale deed is for a lesser consideration and it has been mentioned in the sale deed that it has been made for a lesser consideration on account of natural love and affection for the purchaser who happens to be the grandson of the seller and, therefore, there cannot be any dispute so far as the applicability of this section is concerned. Moreover, now, at this stage, this objection raised by Mr. Shishodia can only be termed as technical. The writ petition has already been admitted and it has now been heard for final disposal and, therefore, the petitioner cannot be non-suited on the basis of this technical plea. Of course, if the Department disputes this fact that the sale deed has been made in order to secure evasion of tax and has not been made out of natural love and affection for the purchaser, then that is a different matter but, in this case, in the reply that has been filed by the Department, it has not been contended that this sale deed has not been executed by the seller in favour of the purchaser on account of natural love or affection for his grandson (his legal relation), but it has been made for the mala fide purpose of avoiding the tax. When that plea is not there, then section 269Q of Chapter XX-A is fully applicable. It means that the provisions of Chapter XX-A of the Income-tax Act are applicable to the cases of such transfers of immovable properties transferred prior to September 30, 1986, as they are covered by section 269Q, of Chapter XX-A of the Income-tax Act.
6. The result is that these writ petitions deserve to be allowed and the order of reference made by the Competent Authority that the valuation of these properties be done by the Valuation Officer deserves to be quashed and the notices, annexure 2 and annexure 4, issued in consequence thereof by the Valuation Officer in both these Writ Petitions No. 1384 of 1981 and No. 1383 of 1981, deserve to be quashed.
7. In the result, these writ petitions are allowed, the order of reference made by the Inspecting Assistant Commissioner, Jaipur, dated March 16, 1981, and the consequential notices issued by the Valuation Officer bearing annexures 2 and 4 in both these writ petitions, i.e, Writ Petitions Nos. 1384 of 1981 and 1383 of 1981 are hereby quashed.
8. Both these writ petitions stand disposed of, accordingly, on merits with no order as to costs.