9911796707
TMI Blog1985 (1) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon. The assessee has come up in appeal contending that the Commissioner (Appeals) should have held the extent of the assessee's interest in the said income as nil. On the other hand, the department has come up in appeal contending that the Commissioner (Appeals) should have held that the assessee's interest in the said income extended not only to that portion which is attributable to the cost of land alone but to the entire income derived from the said property. As stated earlier, we are now considering the assessee's appeals only. Of course, in the course of our discussion, there would be findings that would affect the departmental appeals also. 3. The brief facts relating to the dispute before us in these appeals may now be stated. Late Amar Nath Ghosh had entered into an agreement on 29-12-1943 with Hindustan Co-operative Insurance Society Ltd. to buy a plot of land and had paid a sum of Rs. 1,000 as earnest money for the same. However, the land was requisitioned under the Defence of India Act and the sale could not take place soon after the said agreement. Amar Nath Ghosh died on 10-3-1947 leaving behind his widow Smt. Prokriti Devi and his only unmarried daughter Uttar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid loan. 5. It appears that the assessment order for the year 1973-74 was originally made under section 143(3) of the Income-tax Act, 1961 (' the Act '), but the same was set aside by the Commissioner under section 264 of the Act on 20-3-1980. The Commissioner set aside the original assessment which held that the assessee was owning benami properties in the names of his wife and minor son. The Commissioner directed the ITO to make proper enquiries and do the assessment again. In pursuance of the said directions of the Commissioner, the ITO made a fresh assessment on 29-3-1982, which is the subject-matter of appeal before us. In this assessment order, the ITO has narrated the facts beginning from the agreement to sell dated 29-12-1943 to the date of gift deed on 31-10-1972. From the above facts, the ITO drew the following conclusions : " For all these reasons, I am unable to accept the submission of the authorised advocate and I hold that the assessee is very much one-third owner of this property at Diamond Harbour Road, Calcutta." [Emphasis supplied] The point to note at this stage is that the ITO treated the assessee as one-third owner of not only the land but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be arrived at by multiplying the total income from the house with the fraction whose numerator is the cost of the land and whose denominator is the cost of the land plus the construction of the building. Out of the income so arrived, one-third thereof can be attributed towards the share of the assessee. He clarified that this was his alternative ground. In this connection, he also pointed out that the loan of Rs. 48,425 given by the assessee to his wife has been shown as an asset in the wealth-tax returns of the assessee and shown as a debt in the wealth-tax returns of Smt. Uttara Devi. 8. Shri G.P. Nanda, the learned representative for the department, on the other hand, supported the orders of the revenue authorities. He stated that the whole arrangement, right from the beginning, was a family arrangement by virtue of which the assessee became one-third owner of the entire property because of sections 61 and 63(b) of the Act. He urged that the arrangement made by the assessee amounted to a transfer and so the income diverted by that transfer is assessable in the hands of the assessee by virtue of section 64 of the Act. In this connection, he relied on the decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uttara Devi as well as the wealth-tax file of the assessee. 10. We have considered the contentions of both the parties as well as the facts on record. In our opinion, the assessee did become one-third owner of the land under consideration because of the several registered deeds of conveyance and mortgage referred to earlier. It is now well settled that no person can get any interest in an immovable property except by a registered document. Conversely, if a person has acquired an interest in an immovable property by virtue of a registered deed, he will not be regarded in law as having no interest therein, in spite of his verbal denial or other evidence short of another registered document depriving him of the earlier ownership already acquired. Otherwise, there was no need for the assessee to execute a deed of gift of his interest in the land in favour of his life Hence, we come to the conclusion that the assessee was indeed one-third owner of the land under consideration. The assessee had one-third interest because he was one of the three vendees whose individual shares were not specified in the deed of sale and so the legal presumption is that the shares of the vendees are equal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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