2001 PTD 2182 (PLP)

The principal point of the Income‑tax Officer has been that unless a clearance certificate is obtained by the Boses first, he is not minded to grant a clearance certificate to Sashank the developer. The case of Sashank in the writ petition has been that the Boses are still the legal owners of the land but they are under a compulsion to convey it to Sashank or their nominees who will be the flat owners. Further it is the case of Sashank that they are the constructors and, therefore, they are the person interested in the building constructed upon the land. Thus, they say they are entitled to clearance certificate irrespective of whether the Boses get it or not. The further case of Sashank is that the Boses would not need any clearance under section 230A for registration because the individual interest of the numerous Boses is each valued under Rs.5,00,

000. Although this is the case in the writ petition, .the application made in the prescribed form for obtaining clearance under section 230A gives a different picture. There Sashank had claimed itself to be the legal owner in respect of the land and premises. They have described the Boses as equitable and beneficial owners, again in respect of the land and premises. The bifurcation of interest made in the writ petition is, therefore, absolutely different from the bifurcation made in the section 230A from. It is, therefore, impossible on this contrary stand to give the writ petitioners any relief. However, in the interest of all concerned it should be rioted that the requirements of section 230A are as follows: "(i) A document must prospectively be in sight which require, registration under section 17. (ii) The person applying for clearance must be seeking to transfer some interest to or in property which he has; this is not necessarily immovable property; also it does not necessarily follow that if the applicant's interest sought to be transferred were the sole subject matter of a conveyance or assignment, it would have required registration under section 17. (iii) The value of the interest sought to be conveyed must exceed Rs.5,00,000. (iv) There might be several applicants under section 230A in respect of the same prospective document each applying to his own Income‑tax Officer. (v) The decision as to grant of section 230A clearance must be taken by each Income‑tax Officer independently of what course the other Income‑tax Officer might take in regard to other assessees. The above principles are not intended to be exhaustive, nor very exact, but are only laid down for the purpose of guidance on points of principle and understanding. No relief is, therefore, granted on the writ petition. The writ petitioner will be entitled to apply afresh under section 230A and if such application is made a decision will be taken thereon uninfluenced by the rejection already made. It should also be borne in mind that it is in the interests of the Revenue so to construe section 230A that the maximum number of persons require to get clearance and, therefore, have locus standi to apply for it. It is also in the interests of the Revenue that transfers are not made without clearance of tax liability. It should also not be lost sight of that persons without income‑tax liability who have engaged in some sort of productive economic activity should get the certificate or other benefits if their applications are not tainted by any illegality. All parties and all others concerned to act on a signed xerox copy of this dictated order on the usual undertakings. M.B.A./254/FC Order accordingly.