9911796707
TMI Blog1991 (11) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... l wealth at Rs. 9,08,664. Similarly, for the asst. yr. 1983-84 the return was filed on 12th Sept., 1983 disclosing the total wealth at Rs. 8,57,070. The WTO, however, respectively completed the assessment for both the assessment years on 24th March, 1984 and 30th Nov., 1984 at Rs. 10,42,744 and Rs. 9,27,891. Since the assessee was a partner in a firm named and styled as "Neminath Corporation", his interest in the firm was calculated at Rs. 3,29,059 and Rs. 3,71,790 respectively for the aforesaid two assessment years. But as the assessee claimed exemption under s. 5(1)(ivc) of the WT Act and as such his interest in the firm for both the years was shown at 'nil' and accordingly the assessments under s. 16(3) of the WT Act were completed, but later on the WTO reopened the assessment under s. 17(1)(b) of the Act for both the assessment years. According to him the exemption under s. 5(1)(ivc) of the WT Act was wrongly granted to the assessee. In his orders passed under s. 16(3) r/w s. 17(1)(b) of the Act for both the assessment years, the WTO noted that the firm Neminath Corporation in fact had floated a project known as "Janta Nagar Yojana" near Amaraiwadi and constructed 89 'A' Type a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion that the assessee through his firm ceased to be the owner of the tenement. The learned D.C(A) was of the further view that if on default of the instalments if the buyer was allowed to continue to hold possession of the tenement, notwithstanding the buyer was not the rightful owner, no title was to be passed to him. Having referred the decision of Hon'ble Gujarat High Court in the case of CWT vs. H.H. Maharaja F.P. Gaekwad, (1982) 28 CTR (Guj) 158: (1983) 144 ITR 304 (Guj), the learned D.C.(A) said that the order of these WTO ran counter to the proposition as was propounded in the aforesaid decision. The learned D.C.(A) also referred to the decision of the Hon'ble Supreme Court in the case of (Late) Nawab Sir Mir Osman Ali Khan vs. CWT (1986) 57 CTR (SC) 89: (1986) 162 ITR 888 (SC) and emphasised that the view of the Hon'ble Gujarat High Court was sustained. So, according to him, the WO. was not justified in withdrawing the claim of the assessee of exemption under s. 5(1)(ivc) of the WT Act for the both the assessment years. He also observed that the WTO did err in reopening the assessment under s. 17(1)(b) of the WT Act for the obvious reason that before him there was no b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 17(1)(b) of the WT Act though before him the assessee had disputed the point in issue. 7. On the other hand, the learned counsel appearing for the assessee vehemently controverted the various submissions of the learned Deptl. Representative of the Revenue. While canvassing the cause of assessee, the learned counsel strongly supported the order of the learned D.C.(A). He said that the learned D.C.(A) examined the entire facts sand circumstances of the case at length and only after that he recorded his finding which, according to him, was in order and according to the law as well as facts as were obtaining in the appeals. He urged that the withdrawal of the exemption by the WTO was completely unjustified and bad in law. He said that according to the terms of the Hire Purchase Agreement, the title to the tenement or property was not to vest in the purchaser till the last instalment was paid and, therefore, the property in question could not be said that the same belonged to the purchaser. He emphasised that the learned D.C.(A) was right to hold that even on the default of the instalments, the buyer continued to possess the tenement would not qualify the buyer to have title on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged by the Revenue sought for by way of additional ground was uncalled for and that was to be rejected. 9. After careful consideration of rival submissions of both sides and the materials available in the appeal records, including the paper compiled in Paper Book, we think that there is no merit in the case of the Revenue rather the assessee by producing materials in stouth and routh has been able to establish that the order of the learned D.C.(A) is justified No doubt the learned Deptl. Representative of the Revenue made an exertion to convince us that as per Hire Purchase Agreement the buyer becomes the rightful owner of the tenement as soon as he gets the possession of the tenement on payment of some part of the instalments, but according to the settled principle of law, to his submission we cannot concede. For transfer of an immovable property of value more than Rs. 100 a deed of conveyance is prerequisite and necessarily be registered. Here in the instant case there is only agreement of hire purchase which cannot create or covey a title in favour of the buyer even though the latter has paid some part of the instalments or the full instalments. The transfer of the title to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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