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TMI Blog2006 (2) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... property by the assessee in terms of section 2(42A). The date of handing over of the possession to the assessee by the Housing Board on 1-9-1986 should be considered. On the other hand the Assessing Officer has treated the assessee as owner of the property from 13-1-1997 when the full and final payment was made by the assessee to the Housing Board and the conveyance of the property was made to the assessee by registering the property in her name. 3. In appeal the ld. CIT(A) has decided the issue by observing as under :- The assessee has placed reliance on the following : Circular No. 471 dated 15-10-1986. Judgment in the Bombay High Court in the case of CIT v. Mrs. Hilla J.B. Wadia 69 Taxman 114. The same has been examined in the light of the discussion by the Assessing Officer in his order and submissions made by the counsel of the assessee during the course of the appellate proceedings. A copy of the agreement enclosed with the written submissions has also been perused. On perusal of the same, it is observed that the assessee purchased the flats on hire purchase basis. As per the terms conditions of the agreement, the Housing Board, Haryana was the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Babi Bux AIR 1970 SC 1880 that the expression held connotes possession by the legal title. In view of this decision, the period of holding by a person should begin after he obtained the legal title which would be secured only when registration of the transfer takes place. The board circular referred to by the assessee is with reference to the flat purchased or allotted under the self financing scheme which is entirely different from the scheme of hire purchase. The case law of the Bombay High Court relied upon by the assessee is also of no help since the facts of that case are entirely different from the facts of the case of the assessee. In view of the factual and legal position discussed above, it is apparent that the houses transferred by the assessee are to be treated as short-term capital asset. The capital gains arised on their transfer are, therefore, to be taxed accordingly. The order of the Assessing Officer is, therefore, confirmed. In the result, the appeal is dismissed. 4. Being aggrieved by this order the assessee is in appeal before us taking the following grounds of appeal :- (a)That the order of the CIT(A) is bad in law and on facts. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession. Section 53A of the Transfer of Property Act, 1882 is as under :- Where any person contracts to transfer for consideration of any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law, for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust, 1999. During this period the assessee has got no title or interest in the above property as an owner. She is merely tenant and the rights of the tenant only are available to my assessee. 6. She has made the payment in the financial year 1996-97 to the tune of ₹ 85,780. Thus the total payments for acquiring rights of both the houses up to financial year 1996-97 come to ₹ 2,82,267. The final payment of ₹ 72,461 was made to the Housing Board on 13-1-1997 amounting to ₹ 72,461 and the sale proceeds amounting to ₹ 3,45,000 were received by the assessee on 21-3-1997. It is, therefore, clear she has become if at all the owner only after the payment of ₹ 72,461 on 13-1-1997. Since the ownership vested with my assessee on 13-1-1997, the sale of this asset on 21-3-1997 makes the profit realized by the assessee as a short-term capital gain. By no stretch of imagination, the assessee could claim part title ownership year after year by simply making payments through instalments in terms of the agreement executed by her with Housing Board, Haryana. The claim of the assessee, therefore, that it is a long-term capital gain and the yearwise applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 10. From a reading of the agreement under consideration dated 1-9-1986 we find that the agreement provides for a situation wherein the assessee can acquire the right of ownership over the immovable properties in question. It is in pursuance to this contract possession was handed over to the assessee of the properties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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