Mrs. SUJATA MANOHAR, J.

The petitioner has challenged an order dated 18-2-1993 being a de novo order under section 269-UD of the income-tax Act, 1961 under which, for reasons recorded in that order, respondents 1 and 2 exercised their power to purchase the petitioners property being Flat No. 1, on the first floor of Avanti Building, Off Netaji Subhash Road, Bombay - 400 002.

2. The petitioner entered into an agreement dated 1st of August 1987 with the 3rd respondent under which the petitioner had agreed to sell the above flat to the 3rd respondent for a sum of Rs. 23 lakhs. This was the subject-matter of an earlier order of purchase under section 269UD dated 23-9-1987. This order was challenged in Writ Petition No. 3290 of 1987. The petitioner was admitted and a stay of the order of 23-9-1987 was granted in terms of the Minutes dated 7-10-1987. The writ petition was disposed of by this Court by their order dated 18-12-1992 in the light of the judgment of the Supreme Court in the case of C.B. Gautam v. Union of India, reported in 199 I.T.R. 530. The High Court directed the Appropriate Authority to comply with the directions of the Supreme Court relating to granting a hearing to the petitioner before passing an order under section 269UD and giving reasons for the order. Accordingly, the matter was remanded to the appropriate Authority. The petitioner received a show cause notice dated 18th of January 1993 asking the petitioner to show cause why an order should not be made under section 269-UD(1). Respondents 1 and 2 also furnished to the petitioner the reasons which were recorded while passing the earlier order of 23-9-1987. Thereafter a hearing was given to the petitioner and the present impugned order, giving reasons, has been passed on 18-2-1993.

3.The present petition challenges the second order of 18th February 1993. The petitioner contends that this order deserves to be set aside because it discloses non-application of mind and also because it is an erroneous order. It is contended by Dr. Dastur, who appears on behalf of the petitioner, that the instances of sale which are relied upon by the department are not comparable instances and also because the two instances which were cited by the petitioner have been ignored in the order. We find from the order that the Appropriate Authority has in its order critically examined the three instances which were relied upon by the department. The Appropriate Authority has noted the location of these flats as also the purchase price which was paid for these flats, although they were sold much earlier. The Appropriate Authority has also dealt with the two instances which were relied upon by the petitioner. It has held that even in respect of the instance of a sale of flat in Thakur Niwas, which is relied upon by the petitioner, the rate is Rs. 2,075/- per sq. ft. as against the rate of Rs. 1,735/- per sq. ft. in the case of the petitioner. The Authority has further observed that in respect of the sale of a flat in the Rajhana Building, (the second instance relied upon by the petitioner), the petitioner has not given any particulars and hence this instance is of no assistance. The petitioner contends that the sale of this flat in Rajhans Building was approved by respondents 1 and 2 and hence they ought to have the particulars of this sale with them. In our view, when the petitioner was relying upon any sale instance, the petitioner should have furnished some particulars of that sale. We have to remember that the hearing which the Supreme Court has directed to be given is a hearing in a limited time frame looking to the scheme of Chapter XXC. Hence any elaborate inquiry extending over a long period of time is not contemplated; nor any detailed adducing of evidence which may take a considerable length of time. The Supreme Court itself has observed in the above case that looking to the time frame within which the order has to be passed, what is possible is a limited or summary inquiry, the whole purpose being to enable the petitioner to put forth his case before the department as to why a purchase order should not be made. The hearing opportunity for example, would enable the petitioner to point out why the price was appropriate. He can also point out any special circumstances in which a lower price has been agreed upon. It was therefore, for the petitioner to adduce appropriate material in support of his contention. He cannot contend that the department should search its records pertaining to some other case to gather particulars for the benefit of the petitioner. We also do not find any application by the petitioner for the production of any records. The Appropriate Authority has considered the material produced by the petitioner. The grievance, therefore, of the petitioner in the present case that the comparable sale instances have not been taken into account or have not been properly considered, does not appear to be justified.

4.It was next contended by Mr. Dastur, learned Counsel for the petitioner, that the property suffered form certain disadvantages and hence it fetched a lower price compared to the instances relied upon by the department. We find from the order that these disadvantages pointed out by the petitioner have also been considered by the Appropriate Authority. It has dealt with this submission and has concluded by saying that each building and each flat has its own good points as well as defects. Therefore, an overall picture has to be taken into consideration for taking a decision in respect of each property a conclusion with which we are in substantial agreement.

5.It was lastly contended by Mr. Dastur that the Appropriate Authority failed to take into consideration the argument of the petitioner to the effect that this flat which was the residential flat of the petitioner was sold for Rs. 23 lakhs and another flat at Laxmi Niwas was being purchased by the petitioner for the residence of herself and her family for Rs. 35 lakhs. Hence, the entire consideration amount received in respect of this flat would go to the purchase of another residential flat and the question of capital gains would not arise. There was therefore no reason for undervaluing the flat. The Appropriate Authority has, however come to a conclusion on cogent material that the price of Rs. 1,735/- per sq. ft. in respect of this flat was lower than the market price. Hence, in our view, this is not a case where we can consider the order which is impugned before us as perverse or as suffering from non-application of mind nor can it be considered as erroneous or illegal.

6.It is next contended that the apparent consideration of Rs. 23 lakhs is discounted by a sum of Rs. 40,005/-. This was not done in the original order and is done, for the first time, in the present order. This discounting has also been challenged by the petitioner. In answer to the query put by us to Mr. Sethna, learned Counsel for respondents 1 and 2 Mr. Sethna has produced before us Clause 3 of the agreement dated 1st August, 1987. It provides as follows:

"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 both hereby admit and acknowledge) and the balance amount will be given by Transferee to Transferor on delivering the original certificates and actual vacant possession of the said flat to the Transferee."

Clause II of the said agreement is also as follows :

"The Transferor agrees with the Transferee that they will do and execute such other acts and assurances as may be required by the Society or the transferee wherever called upon by them in order to affectuate the said transfer in the manner aforesaid, but all the cost 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 Transferee within 30 days from the receipt of No Objection letter 37-I, strictly."

Hence, under the agreement the sum of Rs. 21 lakhs was to be paid within 30 days of the receipt of the No Objection in respect of Form No. 37-I. In the present case Form No. 37-I was filed on 4-8-1987. The due date for issuing N.O.C. as per section 276UD(1) would be 30th of October 1987. As the payment of Rs. 21 lakhs was to be within 30 days of the issue of No Objection under Form No. 37-I, the date of receipt of the balance payment of Rs. 21 lakhs under the said agreement is taken as 30th of November 1987. As the Rule 48-I of the Income-tax Rules, 1962 this discounting is to be done at the interest rate of 8% per annum. Accordingly, the discounting price is calculated at Rs. 22,59,995/-.

7.Section 269UA(b) defines "apparent consideration". It further provides that where the whole or any part of the consideration for such transfer is payable on any date of 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. This is prescribed at 8% under Rule 48-I.

8.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 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.

9.It was pointed out by Mr. Dastur that the property which the petitioner had in turn agreed to purchase for Rs. 35 lakhs was also acquired. At an auction which was held by the department in respect of this property 18 months after the original purchase, the reserve price was fixed at Rs. 40,30,000/-, i.e. only 15% above the agreed price; and it fetched at the auction Rs. 43,10,000/-. This would go to show that there is no undervaluation in the prices agreed upon between the parties. We fail to see how this would establish that the agreement of the petitioner for sale of the Avanti property is for a proper price. We do not find any material before us which would indicate whether between the date of the agreement and the date when the property was finally auctioned there was any increase in the property price and if so, what was the extent of such increase. The fact remains that at the auction sale it fetched more than 15% of the agreed price. We may state here that we are not sitting in appeal over the Appropriate Authority. Unless its findings are perverse or show a total non-application of mind to the relevant facts, it would not be proper on our part to interfere with the order of the Appropriate Authority.

10.In the premises, the petition is dismissed.

On the application of the petitioner, possession of the premises not to be taken for a period of 10 weeks from today, on condition that the petitioner does not part with possession of the said premises or does not , in any manner, dispose of or create any third party interest in respect of the said premises.

Certified copy expedited.