Devesh Behari Saxena vs Dy. Commissioner of Income Tax and Another

List revised. None appears for the petitioner.

The petitioner is challenging the order passed u/s 269UD(1) of the Income Tax Act, 1961, by the appropriate authority. In favour of the petitioner, an agreement to sell without being accompanied by the delivery of possession was executed. The question is whether on the basis of such an agreement to sell, an interest in the property which is the subject-matter of the agreement to sell, can be said to have been created in favour of the petitioner, and if not, whether he can maintain the writ petition under Article 226 of the Constitution. A similar question came up before the Karnataka High Court in Rajata Trust v. Chief CIT [1992] 193 ITR 220 in which the said court held that no interest is created on the basis of agreement to sell in the proposed transferee and, therefore, the transferee cannot object to the purchase of the property by the Central Government u/s 269UD(1) which is inserted in Chapter XX-C and, moreover, the agreement for sale specifically provided that if the property was acquired by the Central Government, the agreement would be treated as sale and it would be entitled to refund of the advance. The SLP filed against the aforesaid decision of the Karnataka High Court was dismissed by the Supreme Court (see [1991] 192 ITR 139).

We are in agreement with the aforesaid decision and, therefore, the instant petition is dismissed in limine, with the observation that the petitioner has no right to object to the purchase of the property by the Central Government u/s 269UD(1) of the Income Tax Act.