{"id":52488,"date":"2009-02-11T00:00:00","date_gmt":"2009-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/87-vs-tax-on-11-february-2009"},"modified":"2015-12-22T16:12:37","modified_gmt":"2015-12-22T10:42:37","slug":"87-vs-tax-on-11-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/87-vs-tax-on-11-february-2009","title":{"rendered":"87 vs Tax on 11 February, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
87 vs Tax on 11 February, 2009<\/div>\n
Bench: F.I. Rebello, R.S. Mohite<\/div>\n
                                         1\n\n\n\n\nhvn\n\n\n\n\n                                                                                    \n                IN    THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                            \n                      ORDINARY ORIGINAL CIVIL JURISDICTION\n\n                     INCOME TAX REFERENCE NO. 1 OF 1994\n                                 ALONG WITH\n                     INCOME TAX REFERENCE NO. 3 OF 1994\n\n\n\n\n                                                           \n      Mr. Pallonji M. Mistry (Decd.),\n      Executrix of his Estate,\n      Mrs. Dhun R. Shroff\n      M\/s. Pallonji & Co. Pvt. Ltd.\n\n\n\n\n                                            \n      87, Abdul Rehman Street,\n      Mumbai.                         ... Appellant\n                              \n      The Commissioner of Income\n                                       Versus\n\n\n      Tax, Bombay City-V, Bombay.                 ...       Respondent\n                             \n      Mr.Niraj Seth along with Ms.Jyotsna Kendhalkar i\/by\n      Vigil Juris for the Appellant.\n\n      Mr. P.S. Sahadevan for the Respondent.\n        \n\n\n                              CORAM: F.I. REBELLO, &\n                                     R.S. MOHITE, JJ.\n<\/pre>\n
                              DATED: FEBRUARY 11, 2009<\/p>\n
      ORAL JUDGMENT (Per F.I. Rebello,J.):\n<\/p>\n
      .    Income Tax Reference No.           3 of 1994 is in respect<\/p>\n
      of    the assessment years 1976-77, 1977-78,                      1978-79,<\/p>\n
      1979-80, 1980-81, 1979-80.             Income Tax Reference No.<\/p>\n
      1    of   1994       is in respect of the      assessment              years<\/p>\n
      1984-85        and    1985-86.    In      respect        of     both       the<\/p>\n
      References,           the   learned     tribunal         has      referred<\/p>\n
      several        questions for determination of this                   court.\n<\/p>\n
      In    our      opinion,     if question No.       2      is     answered,<\/p>\n
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\n                                          2<\/span><\/p>\n
    there      will be no need to answer the other questions<\/p>\n
    referred      to.      The question for consideration before<\/p>\n
    us reads as under :\n<\/p>\n
                “Whether the Appellate Tribunal erred in law<\/p>\n
                in    holding      that the property           would       stand<\/p>\n
                transferred        only with effect from the                 date<\/p>\n
                of    registration of the Deeds of                Conveyance<\/p>\n
                of flats?”\n<\/p><\/blockquote>\n
    2.     A    few facts may now be set out.                The      assessee<\/p>\n
    had    1\/3rd share in the property known as                     Bhaktawar<\/p>\n
    building.         The    other    shares were         held      by     other<\/p>\n
    persons.         The    property      consists        of    five       flats<\/p>\n
    jointly owned by the co-owners and 32 flats occupied<\/p>\n
    by the tenants.          Another three flats at the relevant<\/p>\n
    time    were in possession of the Court Receiver.                          Out<\/p>\n
    of    32    flats,      9    flats    were     sold    prior        to     the<\/p>\n
    accounting        year      relevant      to the    assessment           year<\/p>\n
    1976-77.         This transfer of 9 flats was accepted                      by<\/p>\n
    the    Income Tax Officer in assessment year                      1975-76.\n<\/p>\n
    Out of remaining 23 flats, 19 were sold on different<\/p>\n
    dates      during      the accounting year relevant                 to     the<\/p>\n
    assessment        year      1978-79      and   in   respect         of     the<\/p>\n
    balance, conveyances were executed in the subsequent<\/p>\n
    accounting        years.      The Assessing Officer held                 that<\/p>\n
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\n                                          3<\/span><\/p>\n
    the    assessee        was    the    owner of the       23     flats       in<\/p>\n
    dispute as mere execution of conveyance deed was not<\/p>\n
    enough without the deed being registered as required<\/p>\n
    under the provisions of the Registration Act.                         Since<\/p>\n
    that    has not been done, the Assessing Officer                        held<\/p>\n
    that    the assessee continued to be the owner of                         the<\/p>\n
    23     flats.          On    reference      to     the       respective<\/p>\n
    Commissioner        under Section 146(3), the order of the<\/p>\n
    Assessing        Officer was upheld.         In appeal on           behalf<\/p>\n
    of    the    assessee,
\n                              ig  an    emphasis      was     led      on     the<\/p>\n
    provisions        of    the Maharashtra Apartment              Ownership<\/p>\n
    Act.       1970    and      the Maharashtra       Apartment         Rules,<\/p>\n
    1972.      Based on this act and rules, it was contended<\/p>\n
    that    the transfer made by the assessee was complete<\/p>\n
    and the ownership cannot be attached to the assessee<\/p>\n
    so    as    to    assess      the     income     therefrom         in     the<\/p>\n
    assessees        hands.      The learned Commissioner did                 not<\/p>\n
    agree      with the contention as advanced on behalf                       of<\/p>\n
    the    assessee and held that the assessee was rightly<\/p>\n
    treated      as    owner of the property.           Against         which,<\/p>\n
    the assessee preferred an appeal before the I.T.A.T.\n<\/p>\n
    The    contentions urged before the Commissioner                        were<\/p>\n
    also urged before the I.T.A.T.               The learned I.T.A.T.\n<\/p>\n
    confirmed        the orders of the Commissioner (Appeals).\n<\/p>\n
    The tribunal has been pleased to make the reference.\n<\/p>\n
    After      hearing      parties      with    their      consent,          the<\/p>\n
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\n                                         4<\/span><\/p>\n
    question      has      been    reframed to address            the      issue<\/p>\n
    which arises.\n<\/p>\n
    3.    At the threshold on behalf of the appellant, the<\/p>\n
    learned       counsel        submits     that     the      concept          of<\/p>\n
    ownership considering the provisions of the Transfer<\/p>\n
    of    Property      Act      read   with    Registration            Act     is<\/p>\n
    different      in      the context of the provisions of                    the<\/p>\n
    Income      Tax    Act.      What is to be considered for                  the<\/p>\n
    purpose      of    Income
\n                             ig    Tax Act are the         provisions           of<\/p>\n
    Section      22 of the Act of 1963.             In support thereof,<\/p>\n
    the    learned      counsel      has placed       reliance          on     the<\/p>\n
    judgment      of    the Supreme Court in           Commissioner             of<\/p>\n
    Income Tax Vs.          Podar Cement Pvt.Ltd.            226 ITR 625.\n<\/p>\n
    4.     In    Podar Cement (supra), the assessee was                        the<\/p>\n
    owner    of four flats in a building called as “Silver<\/p>\n
    Arch”,      Nepeansea Road, Bombay.             The builder of             the<\/p>\n
    said    building        was    M\/s.     Malabar    Industries            Pvt.\n<\/p>\n
    Ltd.     Out      of    the four flats,         two    were       directly<\/p>\n
    purchased      by      the    respondent        company       from         the<\/p>\n
    builders      and      the other two were purchased                 by     its<\/p>\n
    sister      concern      and subsequently by           the      assessee.\n<\/p>\n
    The    possession of the flats was taken after payment<\/p>\n
    of    consideration in full some time in August, 1973.\n<\/p>\n
    The    flats      in question in fact had been let out                      to<\/p>\n
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\n                                      5<\/span><\/p>\n
    various persons.        The rental income from these flats<\/p>\n
    were    included      in the Return of the assessment                for<\/p>\n
    the    assessment      years in question, namely,             1975-76<\/p>\n
    and    1976-77.       It   was submitted on behalf            of     the<\/p>\n
    assessee      that    the rental income of the          flats        was<\/p>\n
    assessable      as    income    from    other    sources         under<\/p>\n
    Section      56 of the Act and not as Income from                house<\/p>\n
    property      under    Section 22 of the Income           Tax      Act.\n<\/p>\n
    The    submission was based on the contention that the<\/p>\n
    assessee<\/p>\n
                  was not the legal owner of the property in<\/p>\n
    the    flats    and    as such the income from          the      flats<\/p>\n
    could not be assessed as income from house property.\n<\/p>\n
    The    Assessing Officer assessed the income as income<\/p>\n
    from    house      property.    In an appeal preferred,              the<\/p>\n
    order    of the Assessing Officer was upheld.                 In     the<\/p>\n
    appeal before the I.T.A.T.           it held that income from<\/p>\n
    the    flats    cannot     be taxed as    income      from       house<\/p>\n
    property under Section 22 of the Act.              Reference was<\/p>\n
    made    at    the    instance of the Revenue to           the      High<\/p>\n
    Court.       The High Court confirmed the view taken                  by<\/p>\n
    the    tribunal      and held that the income in            question<\/p>\n
    was    assessable      under Section 56 of the          Act.         The<\/p>\n
    matter    was      taken up in appeal before         the      Supreme<\/p>\n
    Court.       The    Supreme    Court    for   the     purpose         of<\/p>\n
    considering        the contentions considered Section 9(1)<\/p>\n
    of    the Old Act as also Section 22, 27 and 56 of the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:20:26 :::<\/span>
\n                                        6<\/span><\/p>\n
    Act    of 1961.The learned Supreme Court then from the<\/p>\n
    submissions of the parties observed as under:\n<\/p>\n
              “…..     that the controversy revolves around<\/p>\n
              the    meaning      to    be given to the          word       “of<\/p>\n
              which    the assessee is the owner”                occurring<\/p>\n
              in Section 22 of the Act.”\n<\/p><\/blockquote>\n
    .      After    considering         various   authorities,              the<\/p>\n
    learned court observed as under :\n<\/p>\n
              “One    of the most important of these                  powers<\/p>\n
              is the right to exclude others.”\n<\/p>\n
    .     What   flows    from this proposition is               that       the<\/p>\n
    assessee     should     be    in a position to          exclude         all<\/p>\n
    other    persons     from     the use of the        property.            In<\/p>\n
    other    words    the    assessee      must   be      in     exclusive<\/p>\n
    possession      in his own right to the exclusion of all<\/p>\n
    others.\n<\/p>\n
    .     Reliance    was placed in the case of R.B.                    Jodha<\/p>\n
    Mal    Kuthiala    Vs.       C.I.T.     Punjab,       J.&      K.       and<\/p>\n
    Himachal     Pradesh,82       ITR 570.    The learned            Supreme<\/p>\n
    Court    noted    the law as followed by the other                    High<\/p>\n
    Courts    as to how they have understood the ratio                       of<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:20:26 :::<\/span>
\n                                       7<\/span><\/p>\n
    the    judgment      in Jodhamal (supra).        The      Rajasthan<\/p>\n
    High Court had addressed the issue as to whether the<\/p>\n
    words    “of    which      the   assessee is    owner”        can     be<\/p>\n
    applicable      only to the registered owner or also                  to<\/p>\n
    such    persons      in whose favour registered sale               deed<\/p>\n
    has    not been executed but an agreement for sale has<\/p>\n
    been executed and the possession of the property has<\/p>\n
    been    given and consideration had been paid.                   After<\/p>\n
    considering        various aspects, the court was             pleased<\/p>\n
    to hold that it is not required that the Deed has to<\/p>\n
    be    registered.        What is to be considered is whether<\/p>\n
    the    person who was put in possession can enjoy                    the<\/p>\n
    property      to    the exclusion of others.         The      Supreme<\/p>\n
    Court    then      noted    that the law laid      down       by     the<\/p>\n
    Supreme    Court in Jodhamal (supra) has been                 rightly<\/p>\n
    understood by the High Courts of Punjab and Haryana,<\/p>\n
    Patna,    Rajasthan etc and held that the             requirement<\/p>\n
    of    registration        of   sale deed in    the    context         of<\/p>\n
    Section 22 is not warranted.\n<\/p>\n
    .     While    so holding, it also noted         the      amendment<\/p>\n
    carried out to Section 27 of the Act by Finance Act,<\/p>\n
    1987 by substituting some of the clauses with effect<\/p>\n
    from    1.4.1988.         The court addressed to        itself,         a<\/p>\n
    question whether this amendment was clarificatory or<\/p>\n
    declaratory        and    after considering various           aspects<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:20:26 :::<\/span>
\n                                        8<\/span><\/p>\n
    was    pleased    to hold that it had no          hesitation           to<\/p>\n
    hold    that the amendment in the Fiance Bill of                    1988<\/p>\n
    was    declaratory\/clarificatory in nature, in so                     far<\/p>\n
    as    it relates to Section 27(iii), (iiia) and (iiib)<\/p>\n
    and    consequently      provisions were retrospective                 in<\/p>\n
    operation.       The learned court then observed that in<\/p>\n
    view    of that the views taken by the High Courts                     of<\/p>\n
    Patna,    Rajasthan      and Calcutta, gets added              support<\/p>\n
    and    consequently      the    contrary view taken            by     the<\/p>\n
    Delhi,<\/p>\n
              Bombay and Andhra Pradesh High Courts is not<\/p>\n
    good    law.     The    following        paragraph    may      now     be<\/p>\n
    reproduced :\n<\/p>\n
              “64.     We    are    conscious       of    the      settled<\/p>\n
              position      that    under the common         law      owner<\/p>\n
              means    a    person      who has    not    valid       title<\/p>\n
              legally conveyed to him after complying with<\/p>\n
              the    requirements of law such as Transfer of<\/p>\n
              Property      Act,Registration Act, etc.              But in<\/p>\n
              the    context of Section 22 of the Income Tax<\/p>\n
              Act    having      regard to the ground          realities<\/p>\n
              and    further having regard to the object                   of<\/p>\n
              the    Income      Tax    Act, namely, “to         tax      the<\/p>\n
              income”,      we    are      of the view, owner         is     a<\/p>\n
              person    who      is entitled to      receive        income<\/p>\n
              from the property in his own right.”\n<\/p><\/blockquote>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:20:26 :::<\/span>
\n                                      9<\/span><\/p>\n
    .     It would thus be clear from the law declared                        by<\/p>\n
    the    Supreme    Court      in the case      of     Poddar        Cement<\/p>\n
    (supra), that there is no requirement that there has<\/p>\n
    to    be a registered Deed of conveyance for a                     person<\/p>\n
    to be treated as an owner for the purpose of Section<\/p>\n
    22 of the Income Tax Act.\n<\/p>\n
    5.    Considering the law as declared, we may refer to<\/p>\n
    the<\/p>\n
           findings recorded in so far as the assessee                        is<\/p>\n
    concerned.        The    tribunal      in     its      order         dated<\/p>\n
    16.2.1988, held as under :\n<\/p>\n
              “Out    of the 40 flats, 5 flats were retained<\/p>\n
              by    the co-owners and 3 flats continue                     tobe<\/p>\n
              in    the   possession of the         Court         Receiver.\n<\/p><\/blockquote>\n
              Nine    flats      were sold in the earlier                years<\/p>\n
              and the transfer was accepted as complete by<\/p>\n
              the    Revenue authorities.          We are         concerned<\/p>\n
              with    the    status of the balance              23     flats.\n<\/p><\/blockquote>\n
              Out    of   these     23 flats, 19         were       sold      to<\/p>\n
              different parties during the accounting year<\/p>\n
              relevant      to    the assessment         year       1976-77.\n<\/p><\/blockquote>\n
              The     declaration        as     required        under        the<\/p>\n
              Maharashtra        Apartment      Ownership Act,             1970<\/p>\n
              was    executed by the co-owners some time                      in<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:20:27 :::<\/span>
\n                                       10<\/span><\/p>\n
              July,     1974.    Deed of apartment was executed<\/p>\n
              during      1975   in    favour of each of              the     19<\/p>\n
              tenants.        Registration,        however, was            done<\/p>\n
              later     on after the end of the previous year<\/p>\n
              relevant      to   the assessment          year       1976-77.\n<\/p><\/blockquote>\n
              Similarly,       the    balance flats were sold                 in<\/p>\n
              the subsequent assessment years.”\n<\/p><\/blockquote>\n
    .     From   the above facts what emerges is                  that       the<\/p>\n
    flats    were<\/p>\n
                     initially occupied by the tenants.                       19<\/span><\/p>\n
    flats    were sold to different parties in the                     course<\/p>\n
    of      assessment        year         1976-77.          The       entire<\/p>\n
    consideration       was    received in the course               of     that<\/p>\n
    assessment      year.      Thus    the       purchasers         were      in<\/p>\n
    possession      and    the entire consideration was                  paid.\n<\/p>\n
    Similarly       declaration        as     required        under          the<\/p>\n
    Maharashtra      Ownership       Act    was executed          in     July,<\/p>\n
    1974.    The Deed of apartment was executed in 1975 in<\/p>\n
    favour of each of 19 tenants.             From the order of the<\/p>\n
    Assessing     Officer, however, we find that the rental<\/p>\n
    income    has    been     assessed      in    the    hands        of     the<\/p>\n
    assessee     for    the relevant assessment years.                     From<\/p>\n
    these    facts what really emerges is that though rent<\/p>\n
    was    not   actually received, the A.O.               proceeded          on<\/p>\n
    the    footing     that the rent was receivable as                   there<\/p>\n
    was    no registration of the conveyance in favour                        of<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:20:27 :::<\/span>
\n                                       11<\/span><\/p>\n
    the    tenants      and the assessee continued to             be     the<\/p>\n
    owner.\n<\/p>\n
    .     On the facts noticed, in our opinion, it may                    be<\/p>\n
    possible      to    arrive   at    the   conclusion       that       the<\/p>\n
    assessee herein ceased to be the owner.               However, as<\/p>\n
    relevant sale documents are not available before us,<\/p>\n
    in our opinion, the proper course would be to remand<\/p>\n
    the    matter      back to the tribunal for answering                the<\/p>\n
    issue    in    the<\/p>\n
                          context of the law as laid            down      in<\/p>\n
    Poddar    Cement (supra) and the observations made                    by<\/p>\n
    us in this judgment.\n<\/p>\n
    .     In the light of the above, question referred                    is<\/p>\n
    answered      in    the   affirmative     in   favour       of       the<\/p>\n
    assessee and against revenue.\n<\/p>\n
    (R.S. MOHITE, J.)                        (F.I. REBELLO,J.)<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:20:27 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court 87 vs Tax on 11 February, 2009 Bench: F.I. Rebello, R.S. Mohite 1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX REFERENCE NO. 1 OF 1994 ALONG WITH INCOME TAX REFERENCE NO. 3 OF 1994 Mr. Pallonji M. Mistry (Decd.), Executrix of his Estate, Mrs. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-52488","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\n87 vs Tax on 11 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/87-vs-tax-on-11-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"87 vs Tax on 11 February, 2009 - 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