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Kishan Lal Vs. Inspecting Assistant Commissioner of Income-tax (Acquisition Range) and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petition No. 448 of 1979
Judge
Reported in(1983)36CTR(All)86; [1983]142ITR312(All); [1983]15TAXMAN549(All)
ActsIncome Tax Act, 1961 - Sections 269C and 269D(1); Registration Act, 1908
AppellantKishan Lal
Respondentinspecting Assistant Commissioner of Income-tax (Acquisition Range) and ors.
Appellant AdvocateH.S. Nigam, Adv.
Respondent AdvocateAshok Gupta, Adv.
Excerpt:
- - katju, learned counsel for the respondents, however, contended that so long as the notice was published in the gazette dated 2ist december, 1974, well within nine months of the end of march, 1974, the proceedings stood initiated within time, irrespective of the date on which the said gazette was made available to the public. awasthi's case [1977]107itr796(all) ,we are clearly of opinion that the proceedings in the instant case also were initiated beyond the period prescribed for the same in section 269d of the act and were as such without jurisdiction......to the public on 16th january, 1975. he contends that the publication in the gazette of the notice for acquisition should be taken to have been made on 16th january, 1975, and as this date fell beyond 9 months of the end of the month in which the sale deed in question was registered (dated the 18th march, 1974), the competent authority was wholly incompetent to initiate the acquisition proceedings.3. sri m. katju, learned counsel for the respondents, however, contended that so long as the notice was published in the gazette dated 2ist december, 1974, well within nine months of the end of march, 1974, the proceedings stood initiated within time, irrespective of the date on which the said gazette was made available to the public.4. a similar question came up for consideration before.....
Judgment:

H.N. Seth, J.

1. By this petition under art, 226 of the Constitution, the petitioner seeks to challenge the validity of the proceedings under Chap. XX-A of the I.T. Act, 1961 (hereinafter referred to as 'the Act'), for the acquisition of the property purchased by him under a sale deed registered on 18th March, 1974. The petitioner claims that the said acquisition proceedings are barred by time. According to him the order of acquisition has been passed without statutory notice to him and as such also the entire proceedings stands vitiated. He contends that he came to know about the acquisition proceedings only when the respondents wanted to take possession of the property in pursuance of the order of acquisition made under Section 269F of the Act. He has accordingly approached this court for relief under Article 226 of the Constitution.

2. Section 269D(1) of the Act enables the Competent Authority to initiate proceedings for acquisition under Chap. XX-A of any immovable property referred to in Section 269C by a notice to that effect published in the Official Gazette. A proviso added to that sub-section provides that no such proceedings are to he initiated in respect of any immovable property after the expiration of a period of 9 months from the end of the mouth in which the instrument of transfer in respect of such property is registered under the Registration Act, 1908. Facts which are no more in controversy are that the sale deed in respect of the properties sought to be acquired was registered in the office of the Registrar on 13th March, 1974. The Competent Authority purported to initiate proceedings for acquisition of the same by means of a notice which was published in the Gazette dated 21st December, 1974. The petitioner has filed a letter dated 26th September, 1979, from the Assistant Controller, Supplies, in the Department of Publications, Government of India as annex. 2 to the writ petition wherein it has been stated that the copies of the Gazette of India, Part III, Section 1, dated December 21, 1974, were made available to the public on 16th January, 1975. He contends that the publication in the Gazette of the notice for acquisition should be taken to have been made on 16th January, 1975, and as this date fell beyond 9 months of the end of the month in which the sale deed in question was registered (dated the 18th March, 1974), the Competent Authority was wholly incompetent to initiate the acquisition proceedings.

3. Sri M. Katju, learned counsel for the respondents, however, contended that so long as the notice was published in the Gazette dated 2Ist December, 1974, well within nine months of the end of March, 1974, the proceedings stood initiated within time, irrespective of the date on which the said Gazette was made available to the public.

4. A similar question came up for consideration before a Divsion Bench of this court in the case of U. S. Awasthi v. IAC : [1977]107ITR796(All) . This court, after taking into consideration that the publication of a notification for initiating proceedings for acquisition under Chap XX-A of the I.T. Act, 1961, is complete only when the Gazette containing the said notification becomes available to the public, held that as in that case the Official Gazette containing the notice under Section 269D was not available to the public before the end of the nine months' period prescribed by the said section, the proceedings had not been commenced within the statutory period and the Competent Authority had no jurisdiction to continue the same. Following the decision of this court in U. S. Awasthi's case : [1977]107ITR796(All) , we are clearly of opinion that the proceedings in the instant case also were initiated beyond the period prescribed for the same in Section 269D of the Act and were as such without jurisdiction. In this view of the matter it is not necessary for us to go into the further controversy raised by the petitioner with regard to the present proceedings being vitiated also for the reason that the provisions of the Act concerning service of notice upon him have not been complied with.

5. In the result, the petition succeeds and is allowed. The entire, proceedings for acquisition of the property in dispute initiated on the basis of the notification published in the Gazette dated 21st December, 1974, which was made available to the public only on 16th January, 1975, are quashed.

6. During the pendency of the writ petition the petitioner sought interim order from this court restraining the respondents from taking possession of the property from him. The petitioner was, vide this court's order dated 12th October, 1979, directed to pay respondent No. 2 a sum of Rs. 250 per month by the 7th of each month beginning with 7th November, 1979. The order further directed that in case the writ petition ultimately succeeded, the respondents were to refund all the money deposited under it. As the petition has succeeded, we direct that respondent No. 2 should refund all the amounts deposited by the petitioner under this court's order dated 12th October, 1979, forthwith.

7. The petitioner shall be entitled to his costs in this petition.


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