ASHWANI KAPUR Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) The petitioner has assailed an Order dated July 29, 1993 passed under Section 269(UD)(1) of the Income Tax Act, 1961 by the appropriate authority, exercising the right of pre-emption.

(2.) Learned Senior Advocate for the petitioner has submitted that, the impugned order is perverse. It has taken into consideration matters which are extraneous. It has proceeded on a method of valuation which is incorrect. The appropriate authority has compared incomparable properties for the purpose of arriving at the valuation. On the aspect of the methods of valuations that may be availed of by the appropriate authority in order to judge the value of an immovable property with a tenant, learned Senior Advocate for the petitioner has relied upon (Lytton Hotel Pvt. Ltd. v. Airport Authority & Ors, (2001) 248 ITR 541), (Airport Authority & Ors. v. Lytton Hotel Pvt. Ltd. & Ors, (2003) 263 ITR 498), Kailash Suneja v. Airport Authority (Delhi)), (1998) 231 ITR 318 (Airport Authority & Anr. v. Kailash Suneja & Anr, (2001) 251 ITR 1) and (K.L. Suneja & Anr. v. Union of India & Ors, (2004) 266 ITR 204). He has relied upon (C.B. Gautam v. Union of India & Ors, (1993) 199 ITR 530 SC) and submitted that, Section 269UE underwent an amendment subsequent thereto. He has submitted that, the appropriate authority is not entitled to receive the immovable property free from encumbrances any longer. Therefore, the factum of existence of a tenancy had to be taken into consideration by the appropriate authority while valuing it. It had ignored the tenancy. It was not entitled to do so. Since the immovable property was encumbered with a tenancy, the value in respect thereof cannot be same as that of an immovable property which is without a tenancy. The valuation arrived at by the department is wrong. The decision to exercise the right of pre-emption stand vitiated.

(3.) Learned Senior Advocate for the petitioner has contended that, the impugned order suffers from vice of breach of principles of natural justice. The petitioner was not afforded sufficient time to reply to the show-cause notice. It is dated July 21, 199 The same was received by the petitioner on July 26, 199 The petitioner was given a hearing on July 27, 199 He has submitted that, the authorities did not furnish the valuation reports noted in the documents produced before the competent authority. The petitioner is entitled to such documents. On the aspect of violation of principles of natural justice, he has relied upon (I.T.C. Ltd. v. Airport Authority & Ors, (2002) 257 ITR 495), (SC) (Sona Builders v. Union of India & Ors, (2001) 251 ITR 197) and (Commissioner of Income-Tax v. Kishanlal & Sons (Udyog) Pvt. Ltd, (2003) 260 ITR 481). On a query from the Court, he has submitted that, the date of superannuation of the petitioner was January 1, 2007.