9911796707
TMI Blog1988 (4) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee in the said house property was 1/3rd. After adding the various expenses etc., the cost of acquisition came to Rs. 2,26,800, so that the assessee's 1/3rd share in the cost of acquisition came to Rs. 75,600. The assessee sold his 1/3rd share in the said residential house property in July, 1977 by means of a deed of relinquishment (which was registered on20th July, 1977) to the other co-owners for Rs. 1,00,000. Thus the liability for capital gains arose. The assessee purported to purchase residential flat No. B-22, Kailash Apartments for Rs. 1,11,700 on20th July, 1977. Therefore, the question arose whether the assessee was entitled to claim exemption under s. 54 since the new asset was claimed to have been purchased within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) in the absence of a registered sale deed therefor. He, therefore, held that the assessee was entitled to claim deduction under s. 54(1) to the extent claimed. On the other hand, following the Special Bench decision of the Tribunal in the case of R.K. Sawhney (1982) 2 ITD 207, he held that the notional income from flat No. B-22, Kailash Apartments was assessable as "Income from house property" and that therefore the assessee was entitled to all the statutory deductions. 4. That is how the Department has come up in appeal before us. On behalf of the Department, Smt. Archana Ranjan, the learned Departmental Representative submitted that the ITO was justified in not allowing deduction under s. 54 as the assessee could not be said to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the previous year in which the transfer took place it shall be dealt with in accordance with the provisions specified thereunder." This is the only condition which, on the facts of the present case, required to be established by the assessee i.e. whether residential flat No. B-22, Kailash Apartments came to the assessee, must amount to a sale. Sec. 2(47), which defines "transfer" in relation to a capital asset would not be relevant for our purposes because the transfer of the assessee's 1/3rd share in the residential house property M-126, Greater Kailash is not in question and is admitted. Sec. 53A of the Transfer of Property Act, 1882 deals with the equity of part performance. The right conferred by that section is the right availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also, the Supreme Court held that in the absence of a registered sale deed, in terms of WT Act, 1957, the property could not be treated as "belonging to" the purported purchaser. In view of all these facts, we are therefore clearly of the view that the ITO was quite justified in holding that the deduction under s. 54 was not available to the assessee. We uphold this view while reversing the view of the learned AAC. 6. So far as the second point is concerned, here again the order of the ITO has to be upheld and that of the learned AAC reversed because after the decisions in the cases of Sushil Ansal and (Late) Nawab Sir Mir Osman Ali Khan in the case of an agreement to sell as in the present case, the Special bench decision of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
