9911796707
TMI Blog1998 (11) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings is A-21, Nizamuddin (West), New Delhi. On January 3, 1996, the petitioner entered into an agreement to sell the said property in favour of Seraveall Resorts and Hotels (Pvt.) Ltd., for a consideration of Rs. 2.60 crores. The building is a two-and-a-half storeyed house. The relevant recitals of the agreement are briefly enumerated in the succeeding paragraphs. On September 12, 1995, the intending vendor had taken a loan of Rs. 65 lakhs from the intending vendee and had agreed to pay back the same without interest by December 31, 1995, which the vendor failed to repay. It was agreed that the loan amount of Rs. 65 lakhs shall be treated as earnest money so as to form, part of the sale consideration. Over and above the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market value of the property was higher by 29.68 per cent. A show-cause notice Was issued to the intending transferor and transferee on September 20, 1986. Replies were filed. It was brought to the notice of the appropriate authority that the tenant, Shri Peter Godwin, was no longer employed with the United Nations Development Fund. He was in arrears of rent for the last six months. An application for eviction was filed against Shri Godwin. After hearing the parties to the agreement, the appropriate authority arrived at the following findings, inter alia : "At the time of hearing, the transferor, was questioned on the loan a sum of Rs. 65,00,000 taken by the intending vendor on December 10, 1995 (12-9-1995 ?), for his personal needs as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already been passed on to the intending vendor, the nomenclature given to the consideration and part possession is not very material. The fact remains that prior to the filing of Form No. 37-I, Rs. 65,00,000 was given to the intending vendor by the intending vendee and part possession. was also handed over to the intending vendee. In view of these facts and placing reliance on the Rajasthan High Court's decision, the appropriate authority holds that part performance of the agreement dated January 3, 1996, was made by the parties concerned much before the submission of Form No. 37-I, hence, it is treated as void ab initio. As a result of, this, the Form No. 37-I filed on July 31, 1996, becomes not maintainable and is deemed never to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided that allowing the possession of the property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882, amounts to transfer. In the case of Rajasthan Patrika Ltd. [1995] 213 ITR 443 (Raj), it had stood conclusively established by the petitioner's own case that possession had been taken over by him and according to the agreement in question the petitioner had acquired the right to use, occupy, hold and enjoy the part of the immovable property. On the facts found, the Rajasthan High Court had arrived at a finding that the parties had effected the transfer before filing the statement in Form No. 37-I which amounted to violation of the relevant provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Appropriate Authority [1991] 188 ITR 623, has been upheld by the Supreme Court in Appropriate Authority v. Tanvi Trading and Credits Pvt. Ltd. [1991] 191 ITR 307. Secondly, we find it difficult to agree with the view taken by the appropriate authority that a transfer as defined in section 269UA(f) had already taken place between the parties. The recitals of the agreement have been quoted hereinabove. The property is two-and-a-half storeyed. The ground floor was in the possession of the intending vendor ; the first floor in the possession of Mr. Peter Godwin ; and the barsati floor in the possession of Mr. S. S. Soin---both as tenants. The tenants were to be evicted. The possession on being assumed by the intending vendor, was to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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