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TMI Blog1990 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Saving Account No. 734. 3. As per Bye-laws of the Sweta Park Co-operative Housing Society Ltd. (the society), which had constructed and given the house in question to the assessee, the assessee was required to obtain the permission of the society to complete the transaction. He, therefore, applied for the required permission on 15-2-1982. The society, however, declined on 28-3-1982 to approve of the proposed transfer whereupon the assessee issued a public advertisement on 11-4-1982 in order to explore the possibility of selling the house to other person. 4. On 15-4-1982 the officers of the Customs Department raided the premises in question and seized certain incriminating material from the possession of the said Miss. Rekhaben. She along with some of her associates was arrested. The amount of Rs. 1,30,000 available in the Bank A/c No. 734, aforesaid, was attached and prohibitory orders to the bank authorities were issued not to allow the assessee to withdraw any amount from that account. Such prohibitory orders were, however, withdrawn by Customs Department w.e.f. 2-6-1982. 5. It may also be mentioned here that in the meanwhile the ITO had initiated assessment proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 93,500 on account of purchase value (Rs. 31,000) and deduction u/s. 80T Rs. 63,500 (Rs. 5,000 plus Rs. 58,500). 8. In appeal the learned CIT(A) agreed with the ITO/IAC that the sale of the house was complete on 13-2-1982 on assessee's receiving the full consideration for the sale and transferring the possession of the house to Miss. Rekhaben on that very day. He, therefore, dismissed assessee's appeal. 9. It has been urged on behalf of the assessee that the sale of the house was not completed on 13-2-1982 due to society's withholding the requisite permission which was accorded only on 11-10-1986. In this behalf our attention was also drawn to the provisions of sec. 2(47)(v) as amended w.e.f. 1-4-1988 and it was also submitted that consideration received by the assessee under the agreement for sale was towards advance-money only and title had all along remained with the assessee. In support of these arguments reliance was placed on the following cases viz.-- 1. Alapati Venkataramiah v. CIT [1965] 57 ITR 185 (SC) 2. CIT v. Ashaland Corpn. [1981] 7 Taxman 393/[1982] 133 ITR 55 (Guj.) 3. CWT v. H.H.Maharaja F.P.Gaekwad [1982] 10 Taxman 314/[1983] 144 ITR 304 (Guj.) 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of working out the profit [See Ashaland Corpn.'s case]. Even receipt of part of the sale price and parting of possession would not divest the vendor of the immovable property of his tide to the property nor would the purchaser acquire any title to the property vide H.H. Maharaja F.P. Gaekwad's case. 14. In the instant case the property involved which is subject matter of transfer is immovable property. What the assessee had agreed to transfer to Miss. Rekhaben in consideration of Rs. 1,30,000 were (i) land worth Rs. 60,000 (ii) construction upon the land worth Rs. 70,000 (iii) loan due to the society Rs. 18,000 and (iv) Five shares held in the society. Possession of the house was delivered to Miss. Rekhaben in part-performance of this contract. Transfer of shares and loan remained to be made. That could have been done with the permission of the society which could be obtained only on 11-10-1986. No conveyance deed in respect of the immovable property, i.e., the land with structure there upon was executed on 13-2-1982. The agreement for sale dated 13-2-1982 cannot be deemed to have extinguished the title of the assessee, and simultanously created title to Miss. Rekhaben in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aben. The words "allowance of possession" used in the amended language of sec. 2(4)(v) admits of the interpretation put by us in the facts of this case. With that opinion we see no necessity to consider whether the amendment is simply expository of law and as such retrospective in effect. 17. The cases relied upon by the learned D.R. are, in our opinion, besides the point. In the case of K.S. Sheikh Mohideen the Full Bench of the Madras High Court was considering the case of an assessee who had made remittances under the National Defence Remittance Scheme earning import entitlements bringing profits to the assessee on their sales by him. Upholding the decision of the Tribunal the Full Bench observed that the cost of acquisition of the import entitlements being absent capital gain was not computable. That is obviously not the situation in the instant case. Similarly in the case of U. P. State Agro Industrial Corpn. Ltd. the Allahabad High Court was concerned with the interpretation of the expression 'building owned by the assessee' occurring in sec. 32 of the Act and had held that the said expression had not been used in that section in the sense of property, complete title in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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