JUDGMENT
B.P. Jeevan Reddy, C.J.
1. This is a petition for issuance of an appropriate writ, order or direction quashing the order dated January 22, 1991, passed by the Deputy Commissioner of Income-tax (Appropriate Authority), Income-tax Department, Lucknow, and also further commanding the respondents to issue a “no-objection certificate” under Chapter XX-C of the Income-tax Act, The petitioner, who is the owner of certain property at Kanpur, entered into an agreement of sale with one Mohammed Ibrahim on September 20, 1988, for sale of the said property for a consideration of Rs. 24 lakhs. The petitioner gave intimation of the said agreement to the appropriate authority as contemplated by Sub-section (3) of Section 269UG. According to Sub-section (1) of Section 269UD, the appropriate authority has to make an order thereunder within two months from the end of the month in which the intimation aforesaid is received by the appropriate authority. This means that the authority had to pass an order purchasing the property, if it so chose, on or before February 28, 1990.
2. On February 19, 1990, the appropriate authority passed an order “filing” the intimation filed by the petitioner on the ground that there is a contradiction between the recitals made in the agreement of sale and in the affidavit sworn by the transferor on January 23, 1990. It was pointed out that, while in the agreement of sale, it was stated that the property in question was attached for non-payment of “government dues and tax”, the affidavit shows that it was attached for excess profits tax dues. It was pointed out that, even according to the agreement of sale, the property is under attachment and, if so, it cannot be sold by virtue of the prohibition contained in Section 64, Civil Procedure Code. It was observed that the parties have not obtained any permission from the appropriate court for selling the said property.
3. On receiving the said order, the petitioner filed another application on March 21, 1990. In this, he stated that the property was attached for realis ing certain outstanding excess profits tax dues some time in 1954 and that the said demand has been fully satisfied. It was also pointed out that the “Tax Recovery Officer, Kanpur, has already written to the Tahsildar to release the property in his favour. This has been done some time in December, 1983.” It was submitted that the property is no longer subject to attachment and that the Tahsildar’s possession, if any, is wrongful. It was, therefore, prayed that a no objection certificate may be issued. This application was rejected by the appropriate authority on March 29, 1990. It was again reiterated that “there is no judicial order rescinding or withdrawing or
terminating the appointment of the Tahsildar as the receiver. That being so, there is no material before us to show that there is any error apparent on the record.” The application for rectification was, accordingly, dismissed.
4. The petitioner then made yet another application on November 12, 1990. In this, he stated that the property was attached for realisation of outstanding excess profits tax demand, that the said demand has been satisfied which would be evident from a copy of the letter dated July 21, 1986, from the Income-tax Officer, Circle-II(a), Kanpur, to the A. D. M. (Finance and Revenue) Collectorate, Kanpur. A copy of the said letter was enclosed to the said application which stated that the entire excess profits tax arrears have been satisfied and that the excess profits tax recovery certificate may be returned to the Tax Recovery Officer for necessary action at his end. The petitioner, therefore, prayed that a “no-objection certificate” may be issued. This application was also rejected by the appropriate authority by its order dated January 22, 1991. In this order, the appropriate authority says that though it appears that the excess profits tax dues have been satisfied, it is not clear as to whether the excess profits tax demand alone was responsible for appointment of the receiver or whether some other dues or taxes are pending against the transferor. It has been observed that, if all the demands which led to the appointment of receiver have been satisfied, as alleged by the transferor, there should be no difficulty in the transferor getting a release order from the court of law. Since no such order has been produced by the transferor, the appropriate authority ordered the said application dated November 12, 1990, also to be filed. It is then that the petitioner approached this court by way of this writ petition.
5. In the writ petition, it is reiterated that the excess profits tax dues having been cleared, the authority had no reasonable basis for “filing” the application filed by the petitioner. A counter-affidavit sworn to by the Inspector of Income-tax posted in the office of the appropriate authority has been filed. It is stated that, for any action to be taken or any order to be passed under Chapter XX-C of the Income-tax Act, the first requirement is that the property in question should be transferable. In this case, the property, being under attachment, is not transferable. If so, no further question can arise either of the authority purchasing the property or of issuing a no objection certificate.
6. A rejoinder affidavit is filed reiterating the contentions of the writ petition.
7. From the facts stated above, it is clear that the main ground for rejecting the petitoner’s application appears to be the one stated in the order of the appropriate authority dated January 22, 1991. In short, the authority
was not satisfied that the excess profits tax arrears/dues were the only dues payable and that there were no other dues or arrears under any other taxing enactment. The authority felt that even though the excess profits tax arrears appeal to have been satisfied, there is nothing to show that there were no other tax arrears or that any such tax arrears, if any, were satisfied. In this connection, we may notice a provision contained in Section 269UG. Sub-section (1) of Section 269UG reads as follows :
“269UG. (1) The amount of consideration payable in accordance with the provisions of Section 269UF shall be tendered to the person or persons entitled thereto, within a period of one month from the end of the month in which the immovable property concerned becomes vested in the Central Government under Sub-section (1), or, as the case may be, Sub-section (6), of Section 269UE ;
Provided that if any liability for any tax or any other sum remaining payable under this Act, the Wealth-tax Act, 1957 (27 to 1957), the Gift-tax Act, 1958 (18 of 1958), the Estate Duty Act, 1953 (34 of 1953), or the Companies (Profits) Surtax Act, 1964 (7 of 1964), by any person entitled to the consideration payable under Section 269UF, the appropriate authority may, in lieu of the payment of the amount of consideration, set off the amount of consideration or any part thereof against such liability or sum, after giving an intimation in this behalf to the person entitled to the consideration.”
8. This sub-section provides that the amount of consideration payable in case an order of purchase is made by the Central Government shall be tendered to the person or persons entitled thereto within one month of the property vesting in the Central Government. The proviso to Sub-section (1) says further that, if any liability for any tax or any other sum, whether payable under the Income-tax Act, Wealth-tax Act, Gift-tax Act, Estate Duty Act or the Companies (Profits) Surtax Act, is remaining payable by any person entitled to receive the consideration under Section 269UF, the appropriate authority may pay over the said amount towards the discharge of such liability, after giving due intimation thereof to the person concerned. This is a sufficient safeguard for the Department. In this view of the matter, the following direction is made to which both the petitioner’s counsel and the standing counsel for the Revenue have no objection :
1. Within two months from the date of production of a certified copy of this order by the petitioner before the appropriate authority, the appropriate authority shall decide whether it proposes to purchase the said property under Section 269UG and, if it decides to purchase the said property, it shall make an order to that effect.
2. If the authority does not propose to purchase the said property within that period, it shall issue a “no-objection certificate” within one week of the expiry of the said period.
3. If the appropriate authority passes an order purchasing the property, it may write immediately to the Income-tax Officer, Circle II(B), Kanpur, or such other authority as it thinks appropriate enquiring whether there are any arrears outstanding from the transferor or the transferors, as the case may be, in lieu of which the property in question is attached and if it is found that any such arrears are outstanding, to pay over the same to such authority ; the balance of the consideration shall then be paid over to the transferor within the time prescribed in subjection (1) of Section 269UG.
4. It is evident that, if a “no-objection certificate” is issued and the property is sold, the property will pass to the purchaser subject to the attachment or other encumbrances, if any, subsisting in the property on the date of sale.
9. The writ petition is disposed of accordingly. No costs.
10. Certified copy of this order may be given to learned counsel for the parties on payment of usual charges within four days.
