JAYSHREEBEN VADILAL MEHTA Vs. O D MOHINDRA

JUDGEMENT

(1.) ALL the aforesaid petitions involve a common question about the applicability of the definition of "apparent consideration" given under S. 269UA(b) for the purposes of paying the amount to the vendor when an order for purchase of the property under Chapter XX C under S. 269UD is made. In all these cases, while making the order for purchase of the property, the appropriate authority has determined the amount payable for such purchase by applying the provisions of S. 269UA(b). In doing so from the apparent consideration stated in the agreement to sell, the sum payable on account of stamp duty by the purchaser under the agreement has been deducted so also the consideration which was payable after the date of agreement for transfer has been discounted by adopting the prescribed rate of interest for that purpose. The grievance has been raised regarding these two deductions made in the apparent consideration for the purpose of arriving at payment to be made under S. 269UF of the Act, one on account to stamp duty, etc., payable by the purchaser as cost of conveyance and, secondly, the discounted value of consideration as on the date of agreement to sell as distinguished from the discounted value of consideration payable as on the date of transfer.

(2.) BOTH learned counsel appearing for the parties have stated that the controversy raised before us has been the subject matter of a decision of this Court in the case of Pradip Ramanlal Sheth vs. Union of India (1993) 113 CTR (Guj) 75 : (1993) 204 ITR 866 (Guj) : TC S3.166 in which while it has been held that the expenses to be borne by the purchaser for conveying the property more particularly, the expenditure of purchasing the stamp duty, etc. cannot be deducted from apparent consideration stated in the agreement to sell for the purpose of arriving at the discounted value and for determining the consideration payable under S. 269UF. However, this Court has held that on a plain reading of the provisions of S. 269UA(b) defining the term "apparent consideration" the amount stated in the agreement to sell as consideration, if the whole or any part of it is payable after the date of the agreement then that consideration has to be discounted by applying the prescribed rate of interest. The contention that the meaning of agreement to transfer in the context of payment of consideration should relate to the document which is finally executed as sale deed before registration inasmuch as unless such duly executed sale deed is registered, the same continues to remain an agreement to transfer, else it would lead to anomalous situation that the purchaser would be getting a lesser payment than was payable to him under the agreement on the date of transfer which is neither the object of the provision nor is envisaged under the statute, was not accepted. However, in spite of the aforesaid position, learned counsel for the petitioner urged that the aforesaid decision of this Court requires reconsideration, particularly, in view of a decision of the Bombay High Court which had taken a contrary view to what has been taken by this Court.

(3.) WE may reproduce S. 269UA(a) and (b) in order to appreciate the controversy :