D.K. DESHMUKH, J.

By this petition filed under Article 226 of the Constitution of India, the Petitioner takes exception to the order dated 29th August, 1989 passed by the appropriate authority (I.T. Department) Bombay under sub section (1) of section 269UD of the Income-tax Act, 1961. By that order the appropriate authority in exercise of its power under sub section (1) of section 269UD of the Income-tax Act ordered the purchase of the immovable property of the petitioner by the Central Government.

2.At the out set, it may be pointed out that in this petition, the entire order dated 29th August, 1989 has not been challenged, but challenge has been restricted only to that part of the order whereby the amount of apparent consideration has been fixed at Rs.21,14,684/-.

3.The facts that are material and relevant for deciding the present petition are that on 14-6-1989 the petitioner entered into an agreement to sell the immoveable property to Trambak Holdings Private Limited, a company incorporated under the Companies Act. By that agreement the petitioner agreed to transfer the property for consideration of Rs.21,50,000/-. Out of the total amount of consideration, the amount of Rs.3,01,000/- was to be paid on the date of the agreement and the balance amount of consideration was to be paid within 15 days of getting the necessary approval or no objection from the appropriate authority appointed under Chapter XX-C of the Income-tax Act. It transpires that pursuant to this agreement on 21-6-1989 an application in form No.37-I prescribed by Income-tax Rules 1962 was submitted to the appropriate authority, and on 29-8-1989, the appropriate authority made an order for compulsory purchase of the property and fixed apparent consideration as observed above at Rs.21,14,684/-. In other words, from the amount of consideration mentioned in the agreement an amount of Rs.35,316/- was discounted. It is this discounting, which is challenged in the present petition.

4.The learned counsel appearing for the petitioner submits that discounting of the amount of Rs.35,316/- by the order impugned is contrary to the provisions of the Income-tax Act. He submits that, according to the agreement between the parties, the petitioner was to get balance amount of consideration within 15 days from the date on which the appropriate authority grants no objection. In the submission of the learned counsel, according to the provisions of the Income-tax Act, as it stood then, the appropriate authority after application in form No.37-I has been submitted can make an order for compulsory purchase within a period of two months and thereafter, the amount of apparent consideration is to be tendered by the government to the transferee within a period of 30 days of the order. The learned counsel submits that according to the terms of the agreement the petitioner was to get the balance amount of consideration at an earlier point of time than was tendered to him or paid by the government and, therefore, there is no question of discounting any amount from the amount of consideration mentioned in his agreement. According to the learned counsel discounting of any amount from the amount of consideration mentioned in the agreement can be made only in case where, according to the agreement between the parties, the payment is required to be made at a point of time later than the period required for making payment under the provisions of the Act. He submits that according to the provisions of the Act as they were in force at the relevant time the appropriate authority had to make the order for purchase within two months from the date on which application in form No.37-I is submitted, otherwise, the appropriate authority has to issue no objection certificate. The petitioner was to get as per the agreement Rs.21,50,000/- within two months and 15 days from the agreement. However, now because the property is purchased by the Central Government, he gets only Rs.21,14,184/- and that too at a later date. According to the learned counsel this is contrary to the stated object of the Act. The learned counsel in support of his contention relies on the judgment of this Court in Shrichand Raheja v/s. S.C. Prasad, (1995) 213 ITR 33. [LQ/BomHC/1994/750]

5.The learned counsel appearing for the respondents, on the other hand, submits that according to the provisions of section 269UD what is required to be paid by the Central Government to the transferee is the amount of apparent consideration. The learned counsel relying on the definition of term "apparent consideration" appearing in section 269-UA(b) submits that in any case where any part of consideration is payable at a date subsequent to the date of the agreement for sale, the value of the consideration payable after the date of the agreement is to be deemed to be discounted value of such consideration, as on the date of such agreement for transfer, determined by adopting such rate of interest as may be prescribed in this behalf. According to the learned counsel this rate of interest is prescribed as 8% under the rules framed under the Act. According to the learned counsel, in the present case as the balance amount of consideration was to be paid after the date of the agreement, therefore, in terms of the provisions of the Act the amount had to be discounted. The learned counsel in support of this proposition relies on the judgment of the Division Bench of this Court in Smt.Vimla Devi G. Maheshwari v/s. S.K. Laul, (1994) 208 I.T.R. 734. The learned counsel submits that the judgment of the Division Bench of this court in Vimla Devis case has been confirmed by the Supreme Court, in as much as, the petition for special leave to appeal No.5188 of 1993 was rejected by the Supreme Court by its order dated 10-8-1993 by a speaking order. He also relies on two other judgments of this Court, one in Writ Petition No.2025 of 1993, Mona Nitin Pradhan v/s. S.C. Prasad decided on 8/9th February, 1994 and other in Writ Petition No.366 of 1994 Mrs. Samira Jamil Parkar v/s. Union of India, decided on 25th February, 1994. In so far as the judgment of this court in Shrichand Rahejas case referred to above is concerned, the learned counsel points out that the judgment of this court in Shrichand Rahejas case was challenged before the Supreme Court and the Supreme Court by its judgment dated 17-2-1995 allowed the appeal filed against that judgment and therefore in the submission of the learned counsel the judgment of this court in Shrichand Rahejas case cannot now be relied on as binding precedent.

6.It is to be seen that it is section 269-UD of the Income-tax Act, which lays down that the appropriate authority after receipt of statement under sub-section 3 of section 269-UD in respect of any immoveable property may make an order for the purchase by the Central Government of such immoveable property at an amount equal to the amount of apparent consideration. It is thus clear that the Central Government can purchase immoveable property under the provisions of Chapter XX-C of the Income-tax Act at an amount equal to the amount of apparent consideration. The term "apparent consideration" has been defined in section 269 UA(b) of the Act. The provisions of Section 269 UA(b) in so far it relates for the purpose of decision of this writ petition reads as under:

UA(b) "apparent consideration"

(1) in relation to any immoveable property in respect of which an agreement for transfer is made, being immoveable property of the nature referred to in subclause (i) of clause (d), means:

(i) if the immoveable property is to be transferred by way of sale, the consideration for such transfer as specified in the agreement for transfer;"

"and where the whole or any part of the consideration for such transfer is payable on any date or dates falling after the date of such agreement, for transfer the value of the consideration payable after such date shall be deemed to be the discounted value of such consideration, as on the date of such agreement for transfer, determined by adopting such rate of interest as may be prescribed in this behalf;"

7.It is thus clear from the perusal of the above definition that the amount of apparent consideration is the amount of consideration, which is mentioned in the agreement. However, when the agreement does not contemplate payment of whole of the amount of consideration on the date of the agreement itself, but contemplates payment of balance amount of consideration at a date subsequent to the date of the agreement, then the amount of apparent consideration has to be arrived at by making deduction from the amount of consideration mentioned in the agreement. It is, therefore, necessary to see as to what are the stipulations in the agreement between the parties in this regard. It is clause 1 and clause 2 of the agreement between the parties dated 14-6-1989, which is relevant for this purpose, which reads as under:

(1) The vendor shall assign and transfer and the purchaser shall take over and acquire from the vendor the said shares and as incidental to the sale thereof the rights to use, enjoy and occupy as a member of the said society the said office Unit No.603, on the 6th floor of the Dalamal Tower, Nariman Point, Bombay-400 021, at or for the agreed purchase price of Rs.21,50,000/- (Rupees Twenty One Lacs Fifty Thousand only).

(2) The purchaser shall on the execution hereof pay to the vendor the sum of Rs.3,01,000/- (Rupees Three Lacs One Thousand only) towards the agreed purchase price and the balance thereof within 15 days of getting the necessary approval or No Objection from the prescribed authorities appointed under Chapter XX-C of the Income-tax Act, 1961, as referred to in clause 13 hereunder.

Perusal of the above clauses in the agreement shows that the total amount of consideration was agreed at Rs.21,50,000/-. Out of that amount of Rs.3,01,000/- was paid on the date of the agreement and the balance amount of consideration was agreed to be paid within a period of 15 days from the date on which approval or no objection from the appropriate authority under the provisions of Chapter XX-C of the Income-tax Act is secured. It is, therefore, clear that as by the terms of the agreement the entire amount of consideration mentioned in the agreement was not to be paid on the date of the agreement and payment of part of the amount of consideration was deferred, to be paid on a date subsequent to the date of the agreement, the amount of apparent consideration had to be arrived at by discounting some amount in accordance with the provisions of the Act and rules framed thereunder. In so far as the submission of the learned counsel that the discounted value is to be determined with reference to the date of the payment and not with reference to the date of agreement is concerned, in our opinion, the submission is not well founded. It is to be seen that the validity of the Chapter XX-C of the Income-tax Act was challenged and that challenge was considered by the Supreme Court in its judgment in C.B.Gautam v/s. Union of India, (1993) 199 I.T.R. 530. The Supreme Court after considering the provisions of Chapter XX-C of the Act and the affidavits filed on behalf of the Respondents before the Supreme Court and the circular issue by the Central Board of Direct Taxes, has observed thus:

"In our opinion, before an order for compulsory purchase is made under section 269UD, the intending purchaser and the intending seller must be given a reasonable opportunity of showing cause against an order for compulsory purchase being made by the appropriate authority concerned. As we have already pointed out, the provisions of Chapter XX-C can be resorted to only where there is a significant undervaluation of property to the extent of 15 per cent, or more in the agreement of sale, as evidenced by the apparent consideration being lower than the fair market value by 15 per cent or more."

It is thus clear that when an application in form 37-I is submitted to the appropriate authority the appropriate authority at that juncture will have first to arrive at the amount of apparent consideration, then to compare that amount with the fair market value of the property and it is only thereafter, of course after granting an opportunity of being heard to the parties concerned, can make an order for compulsory purchase of the property. Thus, it is clear that the appropriate authority has to arrive at the amount of apparent consideration before it decides finally to purchase the property. It is, therefore, obvious that determination of the amount of apparent consideration has no connection with the date of actual payment. It is further to be seen here that the definition of the term of apparent consideration contemplates determination of apparent consideration whenever in the agreement concerned the payment of the balance amount of consideration is deferred and is not to be made on the date of the agreement itself. In our opinion, therefore, where the payment is required to be made as per the agreement within the period which is taken for making of the payment in case of compulsory purchase of the property under the provisions of the Act or not is totally irrelevant.

8.It is further to be seen that the Division Bench of this Court in its judgment in Smt.Vimla Devis case referred to above has considered this aspect of the matter. The clauses of the agreement which the Division Bench was considering in Vimla Devis case have been quoted in that judgment and they read as under:

"The sum of Rs.23,00,000/- (rupees twenty-three lakhs only) shall be paid by the transferee to the transferor as follows, that is to say, the sum of Rs.2,00,000/- (rupees two lakhs only) on or before the execution of this agreement as and by way of earnest money or deposit and part payment of the purchase price of the Share Certificate No.3 bearing five shares bearing Nos.11 to 15 both inclusive with incidental rights to use and occupy flat No.1 ( the payment and receipt whereof the transferor doth hereby admit and acknowledge) and the balance amount will be given by the transferee to the transferor on delivering the original certificates and actual vacant possession of the said flat to the transferee."

Clause 11 of the said agreement is also as follows:

"The transferor agrees with the transferee that they will do and execute such other acts and assurance as may be required by the society or the transferee whenever called upon by them in order to effectuate the said transfer in the manner aforesaid, but all the costs and expenses including transfer fees payable to the said society shall be paid by the transferor and the transferee in equal share. The balance payment will be given by the transferee within 30 days from the receipt of no objection letter in respect of Form No.371, strictly."

9.Comparison of the two clauses in the agreement, which was considered by the Division Bench in Vimla Devis case and in the present case shows that the clauses are almost identical, except that in the present case the balance amount of consideration was to be paid within 15 days of the grant of no objection and as per the agreement that was considered in Vimla Devis case that payment was to be made within 30 days of the grant of no objection. The Division Bench after considering the above quoted clauses in the agreement and the definition of the term apparent consideration has observed thus:

"In the present case, on a perusal of clauses 3 and 11 of the agreement, we find that under the agreement the sum of Rs.2 lakhs is paid on or before the execution of the agreement while the balance of Rs.21 lakhs is to be paid within 30 days from the receipt of the no objection letter in respect of form No.37-I. This clearly prescribes a date for payment which is subsequent to the date of the agreement. The contention of Mr.Dastur that the exact date must be spelt out in the agreement itself does not appeal to us. So long as the agreement clearly provides that any part of the consideration is to be paid at a date later than the date of the agreement and such date is capable of being ascertained, there is no reason why the provision of section 269UA(1) should not be attracted. In our view, in the facts of the present case, the discount has been properly calculated."

10.It is further to be seen that the judgment of this court in Vimla Devis case was challenged before the Supreme Court in petition for special leave to appeal No.5188 of 1993 and that petition was dismissed by the Supreme Court by its order dated 10-8-1993, which reads as under:

"We see no ground to interfere with the impugned judgment of the High Court. We agree with the reasoning and the conclusion reached therein.

The special leave petition is dismissed."

11.It is further to be seen that this question was again considered by this court in its judgment in the case of Mona Pradhan referred to above. In paragraph 5 the court has observed thus:

"Mr. Dastur, next contended that in the present case appropriate Authority (sic) by which Rs.80,00,000/- payable under the Agreement 30 days after permission under Chapter XX-C of the Income-tax Act could not have been discounted. Petitioner submitted that the interpretation of Section 269 UA(b) of the income-tax Act given by the Division Bench of this court in case of Smt. Vimla Devi G. Maheshwari v/s. S.K. Laul and ors. in Writ Petition No.514 of 1993 decided on 10th March, 1993 was also erroneous and it was contrary to the stand of the Department before the Supreme court in the case of C.B. Guatam v/s. Union of India (reported in 199 ITR p. 530). We do not see any merit in the said contention. The Division Bench of this Court in the case of Smt. Vimla Devi G. Maheshwari v/s. S.K. Laul and Ors. (Supra) has approved the method of discounting the deferred payment as being in conformity with Section 269 UA (b) of the said Act. In the said judgment, it has been held that where the payment is subsequent to the date of Agreement as in the present case the provision of Section 269 UA (b) is attached. In the present case the period of 156 days has been correctly calculated. Under the agreement Rs.80,00,000/- were payable 30 days after obtaining permission/ certificate under Chapter XXC of the said Act. The Agreement is dated 27th May, 1993. The Form No.37-I has been executed on 4th June 1993. The impugned order has been passed on 27th September, 1993 and taking into account the above dates the period of 156 days has been properly calculated and if that is the basis then Rs.80,00,000/- have been properly discounted under Section 269 UA(b) of the said Act as stated above. Further, the constitutional validity of the Act has also been upheld by the Supreme Court in the case of C.B. Gautam (Supra). As regards the said contention, Mr. Dastur contends that Writ Petitions are pending in this Court. However, the petitioner has not laid the foundation of her challenge of the constitutionality of Section 269 UA(b)."

12.We further find that this court considered in its judgment, in the case of Mrs.Samira Parkar referred to above, clauses in the agreement, which are identical to the one which are in the present case and the Division Bench in paragraph 7 of the judgment observes as follows:

"Mr. Dada next contended that the Appropriate Authority has not given the basis of calculating deferred value of Rs.29,81,504/-. We do not see any merit in the said contention. Under the above Agreement, the total consideration was Rs.30 lacs. Rs.23 lacs was paid on or before 10th September 1993 and Rs.7 lacs was payable only after the expiry of 15 days from the receipt of NOC under Chapter XX-C of the Income Tax Act. In the circumstances, the Appropriate Authority has correctly calculated the deferred value of Rs.29,81,504/- on the basis that the payment was deferred for 127 days from 10th September, 1993 i.e. the date of the Agreement. This was also calculated in terms of Section 269 UA(b) of the Income Tax read with Rule 48-I of the Income Tax Rules. In the circumstances there is no merit in the said contention."

13.Now, this takes us to the judgment of the Division Bench of this Court in the case of Shrichand Raheja. It is to be seen that by that judgment the Division Bench has decided two writ petitions. First writ petition was writ petition No.862 of 1994, which was filed by Shrichand Raheja and the other writ petition was writ petition No.797 of 1994 which was filed by Laila Hitchens. In that case Laila Hitchens was the transferor, whereas Shrichand Raheja was the transferee. In that judgment, it is stated that though the transferor had challenged the validity of the entire order, the transferor thereafter gave up challenge to the entire order and restricted the challenge to the amount discounted from the amount of consideration mentioned in the agreement. The Court considers the challenge raised by the transferee that the purchase order stands abrogated only in writ petition No.862 of 1994 filed by the transferee and dismissed that petition. In so far as the petition of the transferor i.e. writ petition No.797 of 1994 is concerned, the court upheld the challenge to the order regarding discounted value and remanded the proceedings back to the appropriate authority. It appears that the transferee feeling aggrieved by the order dismissing his petition approached the Supreme Court challenging that order and the Supreme Court allowed the appeal filed by the transferee and allowed writ petition No.862 of 1994. The operative part of the order of the Supreme Court dated 17-2-1995 reads as under:

"For the aforesaid reason, these appeals are allowed with the result that the transferees writ petition No.862 of 1994 filed in the High court stands allowed in the manner indicated above."

14.It is, thus, to be seen that in the two petitions which were decided by common judgment in Shrichand Rahejas case referred to above first challenge was that the purchase order stands abrogated and the second challenge on behalf of the transferor was about the discounted value. It is obvious that it would be necessary to consider the second challenge only, in case the court holds that the purchase is not abrogated. Because, in the event the contention that the purchase order is abrogated is accepted, then there is no need to consider the second challenge and therefore, the learned counsel appearing for the respondents submitted that the judgment of this court in Shrichand Rahejas case does not survive.

15.The learned counsel appearing for the petitioner on the other hand, relying on the judgment of Chancery Division in the case of Curtis Moffat Limited v/s. Wheeler,1999 Law Reports, Chancery Division, page 224 submitted that the judgment of the Division Bench in writ petition No.797 of 1994 has not been set aside by the Supreme Court and therefore it operates as binding precedent.

16.We have some doubt whether as a result of the judgment of the Supreme Court referred to above dated 17th February, 1996 the judgment of this Court in Shrichand Rahejas case would operate as a binding precedent or not However, in our opinion, it is not necessary for us to pronounce on that aspect of the matter for the purpose of deciding the present petition. The Division Bench in Shrichand Rahejas case, after referring to the judgment of this court in Vimla Devis case has observed thus:

"Shri Sethna also submitted that the issue is no longer open for consideration in view of the decision of the Decision Bench of this court in Smt. Vimla Devi G. Maheshwari V. S.K. Laul (1994) 208 I.T.R. 734. The agreement before the Division Bench provided that the balance amount of Rs.21.00,000/- was to be paid within 30 days from the receipt of the no objection certificate from the appropriate authority. The Division Bench held that the date for payment of balance was subsequent to the date of agreement and consequently it was necessary to ascertain the discounted value, there cannot be any debate about the observations of the Division Bench."

17.It is to be seen that thus this court in the case of Vimla Devi was considering the clauses in the agreement which are identical to the clauses in the present case. There is no dispute before us that the judgment in Vimla Devis case covers this case against the Petitioner. The judgment in Vimla Devis case was challenged before the Supreme Court. The Supreme Court while dismissing the special leave petition preferred against that judgment has observed that the Supreme Court agrees with the reasons and conclusion reached in the judgment. Article 141 of the Constitution of India lays down that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It is now settled law that when the Supreme court dismisses a special leave petition against the judgment of a High Court by a non-speaking order, the order of the Supreme Court does not amount to a law declared by the Supreme Court. However, when the Supreme Court while dismissing the special leave petition passes a speaking order and gives reasons for dismissing the special leave petition, then it amounts to the law declared by the Supreme Court (Union of India v/s. All India Services Pensioners Association. AIR 1988 SC 501 [LQ/SC/1988/27] ). The Supreme Court in paragraph 6 of its judgment in the case of All India Services Pensioners Association, referred to above, has observed thus:

"The first ground relied on by the Tribunal not to follow the said decision is that it had been rendered by this Court while dismissing some special leave petitions. This is a wholly untenable ground. The special leave petitions were not dismissed without reasons. This Court had given reasons for dismissing the special leave petitions. When such reasons are given the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the Courts within the territory of India."

Thus, in our opinion, in view of the order passed by the Supreme Court referred to above the judgment of this court in Vimla Devis case in binding on us because the reasons given by this court in that judgment have been approved by the supreme Court specifically.

18.We further find that the terms of the agreement which was considered by this court in its judgment in Vimla Devis case, as also in its judgment in Mona Pradhans case, as also in its judgment in Smt.Samira Parkars case are almost identical to the terms of agreement in the present case, whereas the terms of the agreement which were considered by the Division Bench in Shrichand Rahejas case were different, and therefore, as this Court on the basis of identical terms in the agreement has held the order of discounting to be valid and in accordance with law, in our opinion, it is not possible for us to take a different view of the identical terms of the agreement in the present case.

19.So far as the submission of the learned counsel for the petition that though as per the agreement of sale the petitioner was to get the amount of consideration, which is mentioned in the agreement i.e. Rs.21,50,000/-, now the petitioner gets less amount from the Government for his property, though the Government has also to make the payment within about the same period which is stipulated in the agreement, is our opinion, this is the result of the provisions of the Act. The Act contemplates deduction of amount from the amount of consideration which is mentioned in the agreement, the moment the agreement provides that payment of any part of the amount of consideration is deferred. The language of the provisions is clear. Then is no ambiguity. It is a settled law that the intention of the legislation is to be gathered from the language of the provisions. It is only when the court finds that there is some ambiguity in the language that the court can refer to other source to gather the intention of the legislation. In the present case we find that the language of the provision is clear and unambiguous. Therefore, we will not be justified, as urged by the learned counsel for the petitioner, to refer to the affidavit files before the Supreme Court in C.B. Gautams case. It is further to be seen that the petitions has not challenged the constitutional validity of the provisions in this petition. However, the learned counsel appearing for the petitioner submitted that he should be given time to challenge the validity of the provisions of section 269UA(B) of the Act. It is however to be seen that section 269 UA(B) is found in Chapter XX-C of the Income Tax Act. The constitutional validity of entire Chapter XX-C was considered by the Supreme Court in its judgment in C.B. Gautams case. It may be pointed out here that a writ petition was filed before the Delhi High Court challenging the constitutional validity of Chapter XX C of the Income Tax Act. That petition was transferred to the Supreme Court and it was decided by the Supreme Court. The Supreme Court by its judgment in C.B. Gautams case has upheld the constitutional validity of Chapter XX C of the Constitution of India (Income Tax Act). In view of the provisions of Article 141 of the Constitution of India, the judgment of the Supreme Court holding provisions of Chapter XX C of the Income Tax Act to be constitutionally valid is binding on this Court. Therefore, it is not possible for this Court to entertain any challenge to the constitutional validity of any of the provisions contained in Chapter XX C in view of the judgment of the Supreme Court in C.B. Gautams case. In our opinion, the observations of the Supreme Court in its judgment in M/s Kesho Ram and Co. and others v/s Union of India and others, reported in (1989) 3 SCC 151 [LQ/SC/1989/298] in this regard are pertinent. The Supreme Court has observed:

"Finality in litigation and public policy both require that a litigant should not be permitted to challenge validity of the provisions of the Act or notification at different times on different grounds. Once petitioners challenge to section 3 and the impugned notification was considered by the court and the validity of the same was upheld it must be presumed that all grounds which could validity be raised were raised and considered by the court. Learned counsel for the petitioners urged that the questions which are being raised in the present proceedings were neither raised nor considered by this Court in Punjab Tin Supply Company case, therefore it is open to them to question the validity of section 3 and the Notification dated September 24, 1974. This submission is contrary to the principles of res judicata and it further ignores the binding effect of a decision of this Court does not depend upon whether a particular argument was considered or not, provided the point with reference to which the argument is advanced subsequently was actually decided in the earlier decisions."

In our opinion, therefore, till the judgment of the Supreme court in C.B. Gautams case stands, that judgment holding the provisions of Chapter XX C of the Income tax Act, to be constitutionally valid in view of the provisions of Article 141 of the Constitution of India, is binding on this Court and therefore, no challenge to those provisions though on some different grounds, can be entertained by this court.

20.In the result, therefore, the present petition fails and is dismissed. Rule discharged with no order as to costs.