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TMI Blog2005 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... area of 3,500 sq. ft. and half of the ground floor including common facilities, etc., on the terms and conditions contained in the said agreement at a consideration of Rs. 21,50,500. At the time of signing of the said agreement the first petitioner duly paid the entire consideration of the said property and possession of the same was handed over on May 7, 1997, by respondent No. 9. The petitioners after having entered into an agreement as above and taken possession, engaged security agency to look after the said property. At the time of handing over of possession of the said property flooring, fixing of sanitary items, doors and windows, paintings and colourings were yet to be done, although the basic construction was otherwise completed. In spite as aforesaid since respondent No. 9 did not take any step to complete the work or execute deed of conveyance in favour of the petitioner, the petitioner was compelled to file a suit being numbered 94 of 1997 in the court of the learned 9th District Civil Judge, Senior Division, Alipore, for specific performance of the contract, confirmation of possession, decree for costs of unfinished works and for perpetual injunction. The petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion passed by the concerned officials and approved by the Commissioner, final attachment order and lastly order dated October 12, 2001, are bad in law as the same were passed on erroneous application of the law. He submits that under the provision of section 27, clause (iiia) of the said Act the petitioner has become the owner of the aforesaid flats in question. All the conditions for becoming deemed owner mentioned in clause (iiia) of the said section have been fulfilled as the petitioner has entered into an agreement for purchase followed by payment of entire consideration money and possession thereof. The aforesaid clause has been inserted in section 27 of the said Act by the Finance Act, 1987, with effect from April 1, 1988. Therefore, he submits in view of the aforesaid position of law, the pronouncement of the Supreme Court rendered in the case of Nawab Sir Mir Osman Ali Khan (Late) v. CWT [1986] 162 ITR 888 is of no relevance nor appropriate. It is true in this decision of the Supreme Court in a wealth-tax case it was held if there is no registered conveyance in favour of a person pursuant to a partly performed contract he was not the owner. Therefore the legal finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted questions of fact and this has been observed by the hon'ble Mr. Justice P.C. Ghose in his Lordship's order dated August 7, 2001. These findings and observation of his Lordship have not been challenged as such the same is binding. No additional material has been placed before this court other than what was placed at the time of dismissal of the previous writ petition on August 7, 2001. His Lordship was very categorical that the petitioner would have to file a suit to establish its title to the property. In any event pursuant to his Lordship's direction and order the Commissioner of Income-tax disposed of the representation made by the writ petitioner after giving full hearing. The impugned order contains full discussion and reasoning to reject the claim and contention of the petitioner. Exhaustive mechanism has been provided for the remedy in the relevant rules, as such the petitioner should resort to the same. These findings and order can be examined either by the civil court or by the mechanism provided in the rules. The fact finding as regards possession of the petitioner cannot be decided and examined by the writ court conveniently. Moreover, the Commissioner has decided on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertaining the writ petition are already authoritatively laid down by the hon'ble Supreme Court as well as this court, following these guidelines I am of the opinion that it is for the writ court to examine in its wisdom whether the nature of disputes involved in the writ petition are such as can conveniently be decided in a writ jurisdiction or not. Obviously the writ court will not entertain the writ petition canvassing a dispute that can appropriately be raised in a civil suit involving elaborate witness action, nor will the writ court take the role of the appeal court. Mr. Kapoor contends that in view of the observation of Justice Ghose recorded in his Lordship's order in the previous writ petition, the matter really involves disputed question of fact. As regards title to the property no material has been placed before this court to examine the same. If only the first order of Justice Ghose is read then Mr. Kapoor is right in his contention and this court would not have decided this matter, but the subsequent order of his Lordship dated August 7, 2001, has deleted the relevant portion mentioned in the earlier order dated August 7, 2001. His Lordship's own language mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practically capable and which is sufficient for practical purposes to exclude the stranger from interfering. This proposition of law is supported and based on Halsbury's Laws of England, 4th edition, Vol. 35. The above text has also been approved and accepted by the hon'ble Supreme Court in a case reported in B. Gangadhar v. B.R. Rajalingam [1995] 5 SCC 238: "... Halsbury's Laws of England, IVth edition, Volume 35, in para. 1214 at page 735, the word 'possession' is used in various contexts and phrases, for example, in the phrase 'actual possession' or 'to take possession' or 'interest in possession' or 'estate in possession' or 'entitled in possession'. In para. 1211 at page 732, legal possession has been stated that possession may mean that possession which is recognised and protected as such by law. Legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law, is sometimes said to have constructive possession." I think possession is not always conclusivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above judgment dealing with the Wealth-tax Act relied on by the Revenue was rendered on October 21, 1986. In view of the expressed provision of the transfer in the statute, the above judgment is of no assistance. The Commissioner has overlooked this relevant and appropriate aspects, this ought to have been taken into consideration. Again the definition of "house and property" has been given in section 27 of the said Act for the purpose of sections 22 to 26 this has been provided amongst others as follows: "(iiia) a person who is allowed to take or retain possession of any building or part thereof in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882), shall be deemed to be the owner of that building or part thereof." In view of almost identically the same definitions for two different purpose, I think that the ordinary meaning of transfer under the Transfer of Property Act, 1882, and read with the Registration Act, 1908, are to be understood in a liberal sense for the purpose of the Income-tax Act. I am of the opinion in the absence of compliance with the provision of the Transfer of Property Act and the Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained the deed of conveyance. I think it would be apposite to quote the relevant portion of the observation of Justice Lahoti (as his Lordship then was) who spoke for the Bench at page 780: "In our opinion, the term 'owned' as occurring in section 32(1) of the Income-tax Act, 1961, must be assigned a wider meaning. Anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having the right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title may not have been executed and registered as contemplated by the Transfer of Property Act, 1882, the Registration Act, 1908, etc. 'Building owned by the assessee' the expression as occurring in section 32(1) of the Income-tax Act means the person who having acquired possession over the building in his own right uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirements of laws such as the Transfer of Property Act and the Registration Act, etc., but nevertheless is entitled to hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... native plea is conflicting with the primary one, then no conclusion can be reached, such an alternative plea cannot be allowed to be taken. Therefore I cannot uphold the findings and decision of the Commissioner. Mr. Kapoor says that the findings and the order of the Commissioner should be ignored by me as the order passed by the Commissioner though pursuant to the order of this hon'ble court, is without jurisdiction as he cannot decide this matter at the first instance for these questions are to be decided by the Tax Recovery Officer under the provisions of rule 9 of the Second Schedule read with rule 11 of the same Schedule. The argument advanced by him is true in a legal sense but if I set aside this matter on this ground alone, then the debate and controversy remain, and in that case I am to send back this matter before the Tax Recovery Officer as suggested by Mr. Kapoor. If this course of action is taken then in essence the petitioner would be asked to exhaust his alternative remedy. I have decided not to compel the petitioner to resort to this remedy for the reasons as already recorded by me. It cannot be said that the Commissioner lacks jurisdiction inherently because he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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