VIPER ESTATE AND INVESTMENT LTD Vs. APPROPRIATE AUTHORITY

JUDGEMENT

(1.) In this writ petition, the petitioners have challenged the order of rejection in respect of issuance of "no objection certificate" passed by the Assistant Commissioner of Income-tax (OSG) being the appropriate authority under letter No. AA/Cal/1930/Jan. 2000/184-185 dated May 19, 2000. According to the petitioners, the rejection cannot be given effect to in view of the applicability of the deeming provision after the expiry of 90 days from the date of submission of the form being Form No. 37-I under the Income-tax Rules, 1962. In this context, Mr. Singhvi, learned counsel appearing for the petitioners, cited a judgment reported in DLF Universal Ltd, v. Appropriate Authority, whereof it is held that the statement in Form No. 37-I was in order and was furnished to the appropriate authority within the time prescribed. The appropriate authority did not make any order within three months of its receipt of the said statement for purchase of the immovable properties in question by the Central Government. That being the position, the appropriate authority is duty bound to issue no objection certificate to the transfer of the property. It is categorically held under paragraph 19 (page 751 of 243 ITR) of the said judgment that in effect "and substance, the appropriate authority has only two options, either to grant "no objection certificate" or to invoke Section 269UD. It appears from Section 269UD that the deeming" provision will be applicable.

(2.) The respondents objected in passing such order taking the ground that the statement in Form No. 37-I was not in order and, therefore, the concerned authority is not obliged to pass such order unless the appropriate form is filed. The respondents have pointed out various defects. On an enquiry, I have come to know that the form is not required to be supplied by the authority but the format is to be prepared as per Form No. 37 by the assessee or the party concerned for the purpose of placing the same before the authority. The defects pointed out are mostly innocuous in the sense, i.e., the telephone numbers, etc., but the vital part is in respect of nonavailability of the FAR (floor area ratio). However, according to the petitioners, original application was made on January 7, 2000, and the time had to be expired by May 7, 2000. As and when the necessary clarifications were sought for, the same were supplied including the area of the land occupied in superstructure, total area of plot of land as also the remaining balance FAR worked out. Further information is also given that they have no calculation of utilised FAR. However, by the process of correspondence more time has elapsed within the prescribed three months period. In fact, the Superintending Engineer of the office of the income-tax authority has taken initiative as per the annexure from January 18, 2000, and even thereafter certain clarifications were sought for on February 8/11, 2000. But even after several correspondence nothing was finalised as a result whereof the authority concerned rejected in giving no objection certificate on May 19, 2000, which, according to the petitioners, is after the expiry of the 90 days period, that is May 7, 2000.

(3.) Mr. Rupen Mitra, learned senior counsel appearing for the authority, contended before this court that in the instant case deeming provision is not applicable since the matter was proceeded, as available from the correspondence, even within the prescribed period of 90 days. This has explained in answer to the query of the petitioners that there cannot be the rejection when the 90 days period is already over and deeming provision is operative. In this respect, I hold that the last letter dated May 19, 2000, is a matter of communication of the effect in respect of actual happening within the prescribed period. But it appears from the correspondence that the petitioners were well informed within the prescribed time by April 11, 2000, by a further letter being No. AA/Cal/1930/Jan. 2000/42-43. Now, good, bad or indifferent, if I construe either way in respect of the rejection being out of time or communication within the time, prejudicial effect in respect of either of the parties will not be ended.