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TMI Blog1984 (7) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Vishnu Saran Gupta and Shyam Sunder Lal Gupta for Rs. 30,000 by registered sale deed dated12-2-1963. The same day these vendees emanated to resell the properties to him or his nominee for Rs. 30,000 within three years. They also leased out the said property to the deceased assessee by an other deed executed that very day. The agreement to resell the property was renewed on different dates and lastly on9-11-1970with a change in the amount of consideration from Rs. 30,000 to Rs. 45,000. In the year under consideration, different portions of the property were sold to some relatives of the deceased and two educational institutions for a sum of Rs. 81,000. In respect of this sale, the ITO noticed that the assessee had paid stamp duty payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to appreciate the second ground taken by the revenue in the present case. In fact, in IT Appeal No. 5142 (Delhi) of 1976-77, dated31-7-1979, the Tribunal, Delhi Bench 'E', had examined the facts of the case elaborately and held as follows in paragraphs 8 to 10. We have carefully considered the submission of the learned representative of the parties. The assessee sold the property to the Guptas by sale deed dated12-3-1968. This deed did not contain any item for the repurchase of the property by the assessee. The assessee took the property on lease by a separate deed and there was no question of payment of interest on the sale proceeds by the assessee. The agreement of repurchase was by a contemporaneous deed of12-3-1967for the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Shamim Johar Left without address 6. GT Appeal No. 33, Shri Chand Miyan Refused to accept The letter sent to Mohd. Illyas, GT Appeal No. 26, has not been received back but is presumed to have been duly served. Nobody appeared on behalf of the respondents at the time of hearing of these appeals. Since the main respondent in whose case the AAC has written a detailed order was served in person and the point involved is common, we have heard the departmental representative ex parte. 5. After carefully considering all the facts and circumstances of the case, we are of the opinion that the order of the AAC in question cannot be sustained. The AAC has not given any finding of his own but has come to the conclusion relying upon the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(1) of the Act was not attracted nor did the case fall under section 52(2) as no receipt of any on-money had been proved. But ultimately, the Tribunal, after allowing certain further expenses claimed by the deceased assessee, directed the GTO to recompute the capital gain on this transaction. Therefore, the finding of the Tribunal that the deceased assessee was not the owner of the property [which of course is the subject-matter of reference before the Hon'ble High Court in RA Nos. 1281 and 1308 (Delhi) of 1979] does not in any way lead to the conclusion that he was not the transferor of the properties in question. In fact, while stating the facts in this case, in para 2 of the order, the Tribunal has mentioned that the deceased assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons he could not be considered the owner of the properties in question. 7. Coming to the liability of the assessee as pointed out above, the Tribunal has already held that section 51(2) or section 52(2) did not apply to the assessee's case as no more consideration over and above the sale price mentioned in the deeds had been passed on to the assessee under the table. This conclusion was arrived at in view of the observations of the Supreme Court in the case of CIT v. Vegetable Products Ltd. [1973] 88 ITR 192. This position of law has now been finally affirmed by the Hon'ble Supreme Court in the case of K.P. Varghese v. ITO [1981] 131 ITR 597. However, in this very judgment there are some pertinent observations of their Lordships which rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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