2005 (2) TMI 78

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ot in a position to exercise his right as an owner, at least for the years under consideration. – Thus, question referred to the court is, therefore, answered in the affirmative, i.e., in favour of the assessee
Judge(s) : D. A. MEHTA., MS. H. N. DEVANI. JUDGMENT The judgment of the court was delivered by D.A. Mehta J.- The following question, identically worded in both the references, has been referred for the opinion of this court by the Income-tax Appellate Tribunal under section 256(2) of the Income-tax Act, 1961 ("the Act"), at the instance of the Commissioner of Income-tax, Baroda: "Whether, on the facts and in the circumstances of the case and in law, the Appellate Tribunal is right in law in deleting the income from property .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ttention to the findings recorded by the Tribunal for the assessment year 1977-78 as well as the decision of the apex court in the case of CIT v. Podar Cement Pvt. Ltd. [1997] 226 ITR 625. The relevant portion for the assessment year 1977-78 of the Tribunal's order reads as under: "9.2. At our instance, learned counsel for the assessee had given a note in respect of this property, the sum and substance of which is (A) the assessee had purchased this property but, it had not received the possession thereof, (B) Earlier his property belonged to one Shri Jadav, (C) Shri Jadav had sold this property to S/Shri S. B. Patel and C.B. Patel on March 18, 1968. However, he had not handed over the possession of the property to the said parties, (D) th .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... onsiderable force in the submissions made on behalf of the assessee. In our view, the point at issue is fully covered by the aforesaid two decisions in the case of R.B. Jodha Mal Kuthiala [1971] 82 ITR 570 (SC). On the proper appreciation of the facts and circumstances obtaining in respect of this property, it cannot be disputed that the assessee was bit up a position to exercise the rights of owner on the said property, as he had not control over the same. Further, it is pertinent to note that in the assessment years 1972-73 to 1975-76, the assessee had not shown any income from this property and the same was accepted by the Income-tax Officer. During the course of hearing, we were told by learned counsel for the assessee that no remedial .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X