MADHUKAR SUNDERLAL SHETH Vs. S K LAUL

JUDGEMENT

(1.) THIS writ petition challenges the letters addressed by the Income-tax Department to the petitioners at Exhibits C,e and G under which the department has said that on going through the agreement of sale it is found that the sale is subject to the approval of the Charity Commissioner and the Reserve Bank. Without such an approval the sale cannot take place and hence Form No. 37-I which is filed is treated as invalid. The agreement of sale in respect of the immovable property in question is between a public trust which is registered under the Bombay Public Trusts Act, 1950 and the purchasers, who are the petitioners. Under section 36 of the Bombay Public Trusts Act, 1950 and the purchasers, who are the petitioners. Under section 36 of the Bombay Public Trust Act, no sale of any immovable property belonging to a public trust registered under the Act shall be valid without the previous sanction of the Charity Commissioner.

(2.) SECTION 269uc of the Income-tax Act provides that no transfer of immovable property of value exceeding Rs. 5 lakhs shall be effective except after an agreement of transfer is entered into as prescribed therein, at least three months before the intended date of transfer. It requires that at least three months before the intended date of transfer the agreement of sale shall be reduced to writing in the form of a statement as set out in sub-sections (2) and (3) and shall be furnished to the appropriate authority, in accordance with Rule 48l of the Income-tax Rules. Rule 48l of the Income-tax Rules prescribers form No. 37-I for furnishing the particulars of such a sale. The scheme therefore is that at least three months before the intended date of transfer form No. 37-I has to be submitted to the income-tax authorities so that the income-tax authorities may exercise their power under section 269ud of the Income-tax Act if they so desire.

(3.) THE purpose of Chapter XX- C (which contains these provisions) is to curb sales of immovable properties for apparent consideration which is less than the real consideration. Hence power is given to the income-tax authorities to purchase the property for apparent consideration. In the case of a public trust, however, certain special provisions have been enacted under the Bombay Public Trusts Act to ensure that property belonging to a public trust is not sold by the trustees for an apparent consideration which is less than the real value of the property. In other words, it is necessary to ensure that when an immovable property of a public trust is sold, the public trust gets the full market value of the property. Hence section 36 of the Bombay Public Trusts Act makes the sale of an immovable property of a public trust invalid without the sanction of the Charity Commissioner. If section 269ud can be brought into operation before the sanction of the Charity Commissioner is obtained, the consequences of an agreement for sale of the property of a public trust for a consideration less than the market value of the property, may be visited on the public trust. The income-tax authorities would pay the apparent consideration which is less than the market value to the public trust to acquire the property. The beneficiaries of the public trust would be the losers. They would lose the protection which section 36 of the Bombay Public Trusts Act gives them.