Appeal Details
Counselvise Citation
[2012] 140 COUNSELVISE.COM (IT) 66478 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
1 year(s) 3 month(s) 7 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-11-2012
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
B
Assessment Year
1997-1998
Appeal Filed On
22-08-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1508/ HYD/2011 : AS SESSMENT YEAR 1997-98 SHRI SHARAD B.PITTI, HYDERABAD [PAN - ADFPP 2418K] V/S. DY. COMMISSIONER OF INCOME-TAX CIRCLE 16(3), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY RESPONDENT BY : SHRI LAXMI NIWAS SHARMA, CA-AR SMT. G.V.HEMALATHA, CIT-DR DATE OF HEARING 12.10.2012 DATE OF PRONOUNCEMENT 27.11.2012 O R D E R PER SANJAY ARORA, ACCOUNTANT MEMBER: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-V, HYDERABAD (CIT(A) FOR SHO RT) DATED 17.6.2011, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT FOR ASS ESSMENT YEAR (A.Y) 1997-98 VIDE ORDER UNDER SECTION 143(3) R/W S. 254 OF THE INCOME TAX A CT, 1961 (THE ACT HEREINAFTER) DATED 31.12.2008. 2.1 OPENING THE ARGUMENTS FOR AND ON BEHALF OF THE ASSESSEE, IT WAS SUBMITTED BY THE LD. A.R., HIS COUNSEL, THAT THE SUBJECT MATTER OF T HE INSTANT APPEAL IS COVERED BY THE ORDER BY THE TRIBUNAL IN THE CASE OF SURESH VYAS AND OTHERS , WHO ARE THE CO-OWNERS OF THE SAME PIECE OF LAND (ADMEASURING 4850 SQ. YDS., SIT UATE AT PARK LANE, SECUNDERABAD), ALSO SOLD ALONG WITH, TAX ON CAPITAL GAINS ARISING ON WH ICH IS THE BONE OF CONTENTION BETWEEN THE PARTIES, I.E., THE VENDOR-ASSESSEE AND THE REV ENUE (VIDE ITA NOS. 598 TO 2 601/HYD/2006 DATED 24.9.2009). WHILE THE ASSESSEE CLAIMS THE SAME TO ARISE FOR THE YEAR RELEVANT TO A.Y. 2006-07, I.E., ON THE SALE OF THE SAID LAND VIDE SALE DEED DATED 08.4.2005 , THE REVENUE CONTENDS IT TO BE SO FOR THE CURRENT YE AR. THE TRIBUNAL HAS, IN THE CASE OF CO- OWNERS, CLEARLY HELD THAT THE POSSESSION OF THE LAN D WAS NOT TRANSFERRED BY THE VENDORS, I.E., THE OTHER CO-OWNERS, TO THE VENDEE (OR THE `A GREEMENT-HOLDER), M/S REVATHI TOBACCO CO. (P). LTD. (RTC), DURING THE RELEVANT YE AR IN PURSUANCE TO THE AGREEMENT TO SELL DATED 16.5.1996 . THE SAID FINDING WOULD HOLD EQUALLY IN THE CASE OF THE ASSESSEE AS WELL. HE THEN TOOK US THROUGH THE RELEVANT PART OF THE TRIBUNALS ORDER (SUPRA) (AT PB PAGES 1-12), READING PARA 10 THEREOF, WHICH IS REPR ODUCED AS UNDER:- 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. EVEN THOUGH ADDITIONAL GROUND HAS BEEN RAISED WITH REGARD TO LEGALITY OF THE PROCEEDINGS INITIATED UND ER SECTION 147/148, NO SERIOUS ARGUMENTS HAVE BEEN ADVANCED ON THAT ASPECT . HENCE, WE ARE NOT INCLINED EITHER TO ADMIT OR TO GO INTO THE SAME. A S FOR THE MERITS OF THE CASE, WE FIND THAT THE CIT(A) HAS DISCUSSED AT LENG TH ALL ASPECTS OF THE MATTER, BEFORE CONCLUDING THAT THE ASSESSEES ARE NO T LIABLE FOR ANY CAPITAL GAINS TAX, SINCE NO TRANSFER HAS TAKEN PLACE DURING THE YEAR UNDER APPEAL. IT IS AN UNDISPUTED FACT AS NOTED BY THE CIT(A) THA T THE ENTIRE SALE CONSIDERATION WAS NOT RECEIVED BY THE ASSESSEES AND THE BALANCE AMOUNT WAS NOT PAID BY M/S REVATHI TOBACCO CO. SIMILARLY, ASSESSEES HAVE ALSO NOT DISCHARGED THEIR PART OF THE OBLIGATIONS IN TER MS OF THE SALE AGREEMENT AND HAVE NOT OBTAINED PERMISSIONS FROM THE APPROPRI ATE AUTHORITIES. THE SAID M/S REVATHI TOBACCO CO., SHOWED IN ITS BALANCE SHEET EVEN AS ON 31.3.1997 , THE AMOUNTS PAID TO ASSESSEES ONLY AS ADVANCE. C ONSEQUENTLY, THE PROPERTY IN QUESTION WAS NOT SHOWN BY IT, AS AN ASSET, IN ITS BALANCE SHEET. IT IS ALSO WORTH NOTING THAT THE COMPANY, M /S REVATHI TOBACCO, HAS ALSO NOT THE ASSET IN ITS WEALTH-TAX RETURN, NOR DI SCLOSED ANY RENTAL INCOME IN RELATION TO THE PROPERTY IN QUESTION. THE REPRE SENTATIVE OF THE M/S REVATHI TOBACCO, DURING THE COURSE OF CROSS-EXAMINA TION CATEGORICALLY MENTIONED THAT THE COMPANY WAS IN POSSESSION OF 500 SQ. YARDS OF LAND AS TENANT AND ALSO MENTIONED THAT THE AMOUNT PAID AS A N ADVANCE WAS TRANSFERRED TO THE LAND ACCOUNT ONLY ON 31.3.1999 . IT IS ONLY AFTER TAKING INTO ACCOUNT ALL THE FACTORS THAT THE CIT(A) HAS CO NCLUDED THERE WAS NO TRANSFER OF PROPERTY UNDER SECTION 53[A] OF THE TRA NSFER OF PROPERTY ACT, AND CONSEQUENTLY, CAPITAL GAINS TAX WAS NOT EXIGIBL E IN THE HANDS OF THE ASSESSEES IN THE YEAR UNDER APPEAL. THE ADDITIONAL EVIDENCE SOUGHT TO BE FILED BY THE LEARNED COUNSEL FOR THE ASSESSEE DURIN G THESE APPELLATE PROCEEDINGS BEFORE US, ONLY STRENGTHENS THE CONCLUS ION AND FINDINGS OF THE 3 CIT(A). IN THE CIRCUMSTANCES, WE FIND NO INFIRMITY IN THE IMPUGNED ORDERS OF THE CIT(A) ON THIS ISSUE. WE ACCORDINGLY UPHOLD THE SAME, AND REJECT THE GROUNDS OF THE REVENUE IN ITS APPEAL ON THIS ISSUE . [EMPHASIS, BY WAY OF UNDERLINING, OURS] 2.2 IN FACT, HE FURTHER CONTINUED, IT IS ONLY A SINGLE PIECE OF LAND, WITH THE ASSESSEE HOLDING A DEFINED, ALBEIT UNDIVIDED SHARE THEREIN ( AT 51%), WITH ALL THE CO-OWNERS HAVING ACTED IN UNISON, FIRSTLY, IN AGREEING TO SELL THE S AID LAND TO RTC AT A CONSIDERATION OF RS.582 LAKHS VIDE AGREEMENT TO SELL (ATS) DATED 16. 5.1996 , AND THEN IN THE ACTUAL SALE OF LAND ON 08.4.2005 VIDE A TRIPARTITE AGREEMENT, I.E. , BETWEEN THE CO-OWNERS, THE AGREEMENT HOLDER (RTC) AND THE BUYER, M/S REGENT ASSOCIATES ( OR RA/PURCHASER). AS SUCH, THERE IS COMPLETE PARITY, NAY, UNITY OF FACTS IN THE CASE OF THE ASSESSEE AND THE OTHER CO-OWNERS. THE TRIBUNAL HAVING FOUND AS A FACT THAT THERE WAS NO TRANSFER DURING THE CURRENT YEAR INASMUCH AS THERE WAS NO DELIVERY OF POSSESSION DUR ING THE SAID YEAR, SO THAT CONDITIONS OF SECTION 2(47) OF THE ACT WERE NOT MET, WHICH WAS SO ONLY IN FINANCIAL YEAR 2005-06, THERE IS NO QUESTION OF THE MATTER BEING VISITED AG AIN OR OF TAKING A DIFFERENT VIEW THEREOF. HE THEN TOOK US THROUGH THE SALE DEED DAT ED 08.4.2005 (PB PAGES 71 TO 94), ADVERTING TO CLAUSE 18 THEREOF (PB PAGE 87), WHEREB Y IT STANDS CLARIFIED THAT POSSESSION STANDS DELIVERED ON THE EXECUTION OF THE SAID DEED. IT IS, THUS, ONLY ON THE FINAL SALE OF LAND THAT ITS POSSESSION WAS DELIVERED AND THE TRAN SFER MATERIALIZED, I.E., BOTH ON FACTS AND IN LAW. ON BEING QUESTIONED AS TO WHY AND WHAT LED TO THE INCLUSION OF A THIRD PARTY INTO THE SALE TRANSACTION, I.E., BETWEEN THE CO-OWNERS ( VENDORS) AND THE VENDEE (RTC), IT WAS POINTED OUT BY HIM THAT A PART OF THE CONSIDERATION WAS WITHHELD BY THE VENDEE AS THE ASSESSEE WAS UNABLE TO DELIVER POSSESSION OF THE LA ND, A PART OF WHICH (1620 SQ. YARDS) WAS IN POSSESSION OF BHARAT PETROLEUM CORPORATION L IMITED (BPCL) AS A TENANT. IT WAS ON ACCOUNT OF THIS DISPUTE, SO THAT THE POSSESSION OF THE LAND COULD NOT POSSIBLY BE DELIVERED TO THE VENDEE, THAT THE TRANSACTION DID N OT MATURE, AND THE FINAL SALE TOOK PLACE ONLY IN APRIL, 2005 AND, ACCORDINGLY, DULY RETURNED BY THE ASSESSEE AS LONG TERM CAPITAL GAINS FOR THAT YEAR, I.E., A.Y. 2006-07. 4 2.3 THE LD. CIT-DR, ON THE OTHER HAND, WOULD SUBMIT THAT THE STATED REASON FOR THE ASSESSEE BEING UNABLE TO DELIVER POSSESSION OF THE LAND, I.E., ON ACCOUNT OF HIS SUBSISTING DISPUTE QUA A PART THEREOF, AND OF THERE BEING THUS NO TRANSFE R IN TERMS OF SECTION 2(47) OF THE ACT READ WITH SECTION 53A OF THE TRANSFER OF PR OPERTY ACT, 1882, IS ONLY AN ALIBI. THIS IS, AS WOULD BE APPARENT FROM THE PERUSAL OF R ECORD, THE VENDEE (RTC) WAS WELL AWARE OF THE LONG STANDING DISPUTE WITH BPCL AT THE TIME OF ENTERING THE AGREEMENT IN 1996. THE PURCHASE OR TRANSFER AS CONTEMPLATED BY AND AMONGST THE PARTIES (IN 1996) WAS ON AS IS WHERE IS BASIS, SO THAT THE VENDEE WOULD ACQUIRE THE SAME RIGHTS AS WERE FOR THE TIME BEING HELD BY THE VENDORASSESSEE. IN FAC T, THE SAID DISPUTE SURVIVES EVEN AFTER APRIL, 2005, WHEREAT THE SALE HAS TAKEN PLACE, WI TH THE SALE DEED MAKING IT ABUNDANTLY CLEAR THAT THE LAND IS BEING SOLD BEARING THE SAID ENCUMBRANCE, I.E., BY WAY OF A PART THEREOF BEING A SUBJECT MATTER OF DISPUTE WITH TENA NT (BPCL), AND FOR WHICH SHE DREW OUR ATTENTION TO SEVERAL CLAUSES (VIZ. 7, 12 TO 14, 16) OF THE SALE DEED DATED 08.4.2005. WHAT THEN, IS THE DIFFERENCE BETWEEN THE TWO TRANSACTION S, I.E., DATED 16.5.1996 AND 08.4.2005; THE LATTER BEING ADMITTED BY THE ASSESSEE AS A SALE AND, THUS, A TRANSFER UNDER LAW, EXIGIBLE TO TAX ON THE CAPITAL GAIN ARISING THEREON ? THE TERMS OF THE AGREEMENT TO SELL DATED 16.5.1996, WHICH HAS INEXPLICABLY NOT BEEN EN CLOSED BY THE ASSESSEE AS A PART OF ITS PAPER-BOOK, WOULD ALSO BE RELEVANT IN THIS REGARD. POSSESSION, IN FACT, WAS NEVER AN ISSU E, AND THE AMOUNT WITHHELD BY THE VENDEE (RS.50 LAKHS), OUT OF ASSESSEES SHARE OF RS.296.82 LAKHS, WAS ONLY FOR THE REASON THAT THE AGREEMENT HAD NOT BEEN REGISTERED, SO THAT THE TITL E IN RESPECT OF THE LAND HAD NOT FORMALLY PASSED OVER. IF THE VENDEE COULD PAY AS MUCH AS RS .246.82 LAKHS TO THE ASSESSEE, IT COULD WELL PAY THE BALANCE RS.50 LAKHS AND TAKE POSSESSIO N OF THE PROPERTY, EVEN AS THE DISPUTE WHICH IS EVEN OTHERWISE THE SUBJECT MATTER OF THE COURT PROCEEDINGS AND, THUS, ADJUDICATION QUA THE LEGAL RIGHTS OF THE PARTIES TO THE DISPUTE W OULD CONTINUE. IF THE POSSESSION HAD NOT PASSED OR TAKEN OVER, AS CONTEND ED, WHAT HAD THE PAYMENT WHICH WAS MADE IN INSTALLMENTS - BEEN MADE FOR AND TOWARD ? IT IS INCONCEIVABLE THAT ANY ONE WOULD MAKE PAYMENT IN SUCH HUGE SUMS WITHOUT GETTIN G ANYTHING IN RETURN. THERE IS IN 5 FACT NO DISPUTE OR AMBIGUITY QUA THEIR RESPECTIVE RIGHTS BETWEEN THE PARTIES; THE E NTIRE CONSIDERATION ON SUBSEQUENT SALE, I.E., RS.490 LAKH S ( QUA THE ASSESSEES SHARE), SAVE RS.50 LAKHS WHICH WAS YET TO BE RECEIVED BY THE ASSESSEE, WAS RECEIVED OR TO BE RECEIVED ONLY BY THE VENDEE (AGREEMENT HOLDER). THAT IS, WHILE T HE SO CALLED OWNER, WHO HAS PURPORTEDLY NOT TRANSFERRED OR PARTED WITH THE RIGH TS OR INTEREST IN THE LAND, GETS RS.50 LAKHS, WHICH WAS IN ANY CASE DUE TO HIM (AS FAR BAC K AS IN THE YEAR 1996), THE AGREEMENT HOLDER POCKETS THE ENTIRE APPRECIATION ON THE LAND , I.E., ASSUMING THAT BOTH THE YEAR 1996 AND 2005 TRANSACTIONS WERE AT FAIR MARKET VALUES OF THE LAND THEREAT, AND ON WHICH (THE PRICE) THERE IS NO DISPUTE. THE VENDEES INTEREST I N THE LAND, THUS, CANNOT BE DENIED; IS IRREFUTABLE AND, IN FACT, ADMITTED TO BY ALL THE PA RTIES TO THE TRANSACTION (PER THE SALE DEED DATED 08.4.2005). EVEN ON FACTS, THE ARGUMENT ADOP TED IS INCORRECT. THIS IS AS THE VENDEE WAS ALREADY A TENANT (FOR THE PAST SEVERAL YEARS) O F 500 SQ. YDS. OF THE LAND UNDER REFERENCE AND, THUS, IN POSSESSION THEREOF. WHERE IS THE QUESTION OF DELIVERY OF ITS POSSESSION WHEN THE LAND IS ALREADY UNDER ITS POSSE SSION AS A TENANT, SO THAT THE SAME IS RETAINED BY IT, CEASING TO PAY RENT THEREAFTER, I.E ., POST MAY, 1996 ? FURTHER ON, THERE IS NO QUESTION OF THE CASE BEING CONSIDERED AS COVERED. THIS IS AS THE TRIBUNAL HAS ITSELF CONSIDERED THE MATTER IN THE ASSESSEES OWN CASE ON AN EARLIER OCCASION, REMANDING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER (A .O.) FOR CONSIDERATION ANEW, REFERRING TO SOME ASPECTS OR DIMENSIONS OF THE CASE THAT HAD REMAINED TO BE CONSIDERED, OR REPRESENTED LATER DEVELOPMENTS, WHICH, IN ITS VIEW COULD HAVE A BEARING IN THE MATTER (VIDE ORDER IN ITA NOS. 1216 & 1222/HYD./2003 DATED 24-08-2007/ PB PGS 53-69). THE PRESENT PROCEEDINGS ARE CONSEQUENT TO THE FRESH ASS ESSMENT PURSUANT TO THE SAID DIRECTIONS BY THE TRIBUNAL, SO THAT THE SAME CANNOT BE EQUATED OR CONSIDERED AT PAR WITH THE ASSESSMENT CONCLUDED/MADE PRIOR THERETO. IT WAS FUR THER SUBMITTED BY HER THAT THE DISPUTE WITH BPCL CONCERNED ONLY THE ASSESSEE, AND NOT THE OTHER CO-OWNERS, AS APPARENT FROM THE FACT THAT THE COURT CASE/S INVOLVED ONLY THE AS SESSEE, AND NOT THEM. AS SUCH, THERE ARE MATERIAL DIFFERENCES BETWEEN THE TWO CASES, AND THE RE IS NO QUESTION OF THE INSTANT CASE BEING CONSIDERED AS COVERED. 6 2.4 IN REJOINDER, THE LD. A.R. WOULD SUBMIT TH AT THE LEGAL DISPUTE WITH BPCL BEARS ONLY THE ASSESSEES NAME AS THE SAME PREDATES THE T RANSFER OF 49% OF HIS SHARE IN THE LAND BY THE ASSESSEE IN FAVOUR OF OTHER CO-OWNERS, I.E., SURESH VYAS AND OTHERS. IT NEEDS TO BE APPRECIATED THAT THE ENTIRE 4850 SQ. YARDS OF LAND IS A SINGLE PIECE OF LAND, AND NO PART THEREOF IS EARMARKED IN FAVOUR OF THE ASSESSEE OR A NY OF THE OTHER CO-OWNERS, AND ALL OF THEM ARE SITUATED AT PAR WITH RESPECT TO THE VARIOU S INCIDENTS QUA THE LAND. THE TRIBUNAL IN THE ASSESSEES CASE, THOUGH REMITTED THE MATTER BAC K TO THE FILE OF THE A.O., YET ITS DIRECTIONS HAVE NOT BEEN FOLLOWED BY THE REVENUE, S O THAT NOT MUCH TURNS THEREON, E.G., DIRECTOR OF THE VENDEE-COMPANY (RTC), THOUGH CONFIR MS OF HAVING TAKEN POSSESSION OF THE LAND (VIDE HIS STATEMENT ON OATH DATED 30-12-20 08), YET THE LAND REFERRED TO BY HIM MEASURES 5325 SQ. YARDS, WHILE THE LAND IN QUESTION IS ADMITTEDL Y ONLY 4850 SQ. YARDS. FURTHER, THE TENANTS, WHOSE STATEMENTS ALSO STAND R ECORDED AND RELIED UPON BY THE A.O. IN FRAMING THE IMPUGNED ASSESSMENT ARE NOT THE TENANTS OF THE ASSESSEES LAND, BUT THE ADJOINING LAND, SO THAT THE SAID DEPOSITIONS ARE TO NO EFFECT OR PURPOSE. THESE DISCREPANCIES WERE POINTED OUT BY THE ASSESSEE TO T HE LD. CIT(A) IN THE APPELLATE PROCEEDINGS, WHO THOUGH HAS CHOSEN TO IGNORE THE SA ME. HOWEVER, WHEN QUESTIONED AS TO HOW THE STATEMENT OF A WRONG MEASUREMENT OF LAND WO ULD OTHERWISE DETRACT FROM THE MERITS OF THE DIRECTORS DEPOSITION, WHEN CLEARLY I T WAS THE ASSESSEES LAND QUA WHICH HE HAS BEING QUESTIONED; THE ASSESSEE ADMITTEDLY OWNIN G NO OTHER LAND IN THE AREA AND, FURTHER, WHICH STOOD SOLD (OR AGREED TO BE SO) TO H IS COMPANY, AND PARTICULARLY WHEN THE QUESTION (OR THE ANSWER THERETO) HAD NOTHING TO DO WITH THE MEASUREMENT, HE CONCEDED TO THERE BEING NO DOUBT WITH REGARD TO THE IDENTITY OF THE LAND QUA WHICH THE DIRECTOR WAS BEING QUESTIONED, I.E., THE LAND UNDER REFERENCE. I T WAS FURTHER CLARIFIED TO HIM THAT IN CASE OF A SUBSISTING DOUBT AS TO THE SAID IDENTITY, THE MATTER, AS ALSO QUA THE OTHER OBJECTIONS RAISED BY THE ASSESSEE, WOULD, WHERE NOT SUITABLY M ET OR ADDRESSED OR OTHERWISE CONSIDERED AS NOT RELEVANT, WOULD HAVE TO BE NECESS ARILY RESTORED BACK TO THE FILE OF THE AUTHORITIES BELOW, SO THAT NO DOUBT QUA THE PRIMARY FACTS OF THE CASE OBTAIN. FURTHER, HE 7 WAS ALSO UNABLE TO ANSWER AS TO WHY THE ORDER OF TH E TRIBUNAL IN THE ASSESSEES CASE (WHICH IS DATED 24-08-2007) WAS NOT BROUGHT TO ITS NOTICE WHILE BEING SEIZED WITH AND DECIDING THE CASE OF THE CO-OWNERS, CONCERN AS THEY PURPORTEDLY DO WITH THE SAME SET OF FACTS, SO THAT IT DECIDES THEIR CASE INDEPENDENT OF THE EARLIER ORDER BY THE TRIBUNAL (AS WELL AS THE FINDINGS IN THE PROCEEDINGS PURSUANT TH ERETO) VIDE ITS ORDER DATED 24-09-2009 (SUPRA). FINALLY, ON BEING ASKED AS TO WHAT CONS TRAINED OR PREVENTED, I.E., ASSUMING THAT THE POSSESSION WAS NOT TAKEN, THE DELIVERY OF THE POSSE SSION TO THE VENDEE FOR THE BALANCE UNDISPUTED LAND ADMEASURING 2730 SQ. YARDS (I.E., 4 850 1620 500), HE SUBMITTED THAT POSSESSION THEREOF COULD NOT, IN LAW, BE DELIVERED IN VIEW OF RULE 20C OF THE INCOME TAX RULES, 1962 (THE RULES HEREINAFTER), WHICH STIPUL ATES PRIOR PERMISSION FROM THE APPROPRIATE AUTHORITY BEFORE THE AGREEMENT TO SELL COULD BE ACTED UPON. WHEN FURTHER ENQUIRED AS TO WHEN THE SAID PERMISSION WAS, IN FAC T, GRANTED, HE STATED THAT THE SAME WAS NO LONGER REQUIRED; THE SAID RULE HAVING BEEN SINCE OMITTED. THE FIRST APPELLATE AUTHORITY IN THE CASE OF CO-OWNERS, AS WELL AS THE TRIBUNAL U PHOLDING HIS ORDER (VIDE ITS ORDER DATED 24.9.2009 (SUPRA)), HAS CONSIDERED THIS ASPECT. HE WAS, THE SAME BEING NOT ON RECORD, REQUIRED TO FURNISH A COPY OF THE APPLICATION, IF A NY, MADE TO THE APPROPRIATE AUTHORITY SEEKING THE REQUISITE APPROVAL UNDER CHAPTER XX-C O F THE ACT; COPY OF THE AGREEMENT TO SELL (ATS) DATED 16.5.1996, AS ALSO THE ADDITIONAL EVIDENCES ADMITTED BY THE TRIBUNAL ON THE EARLIER OCCASION, AND WHICH WERE DIRECTED BY IT FOR BEING EXAMINED IN THE SET ASIDE PROCEEDINGS. THE HEARING WAS CLOSED AT THIS STAGE. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 WE SHALL PROCEED BY DELINEATING THE ISSUE TH AT ARISES FOR OUR CONSIDERATION, I.E., WHETHER THERE IS A TRANSFER OF A CAPITAL ASSET BY T HE ASSESSEE VIDE AGREEMENT TO SELL (ATS) DATED 16.5.1996 ENTERED INTO BY IT ALONG WITH OTHER CO-OWNERS, BEING MEMBERS OF THE VYAS FAMILY, WITH RTC, AND AGAINST WHICH HE RECEIVE D RS.2,47,65,600/- TOWARD HIS SHARE OF RS.296.82 LAKHS DURING THE PREVIOUS YEAR RELEVAN T TO THE ASSESSMENT YEAR UNDER 8 REFERENCE, I.E., A.Y 1997-98, PURSUANT TO THE SAID AGREEMENT. WHILE THE REVENUE MAINTAINS THAT THERE HAS BEEN A TRANSFER OF THE SUB JECT MATTER OF TRANSFER, THAT IS: (A) A PORTION OF PROPERTY (BEARING MUNICIPAL NUMBE R 103 AT PARK LANE, SECUNDERABAD) ADMEASURING 2864.55 SQ. YARDS, ALONG WITH BUILDING OF COUNTRY TILED ROOF AND A TIN SHED; (B) A LAND AND BUILDING (BEARING MUNICIPAL NUMBER 1 -2-42, SITUATE AT PARK LANE, SECUNDERABAD) ADMEASURING 1306 SQ. YARDS, PLUS PASS AGES ADMEASURING 489 SQ. YARDS. [NOTE: THOUGH THE TOTAL AREA WORKS OUT TO 4659.55 S Q. YARDS (INCLUDING PASSAGES), IT IS STATED IN THE ATS DATED 16.5.1996 THAT ON MEASUREME NT, THE ACTUAL AREA WAS FOUND TO BE AT 4850 SQ. YARDS, WHICH IS AN ADMITTED FACT BETWEE N THE PARTIES, AND AS ALSO UNDISPUTED AS FAR AS THE REVENUE IS CONCERNED] UNDER SECTION 2(47) OF THE ACT READ WITH SECTION 53 A OF THE TRANSFER OF PROPERTY ACT, 1882, THE ASSESSEE CONTENDS THAT THE TRANSACTION (I .E., VIDE ATS DATED 16.5.1996) DID NOT MATURE INTO A TRANSFER AS NO POSSESSION OF THE PROP ERTY WAS GIVEN, AND WHICH WAS BY ALL THE VENDORS ONLY SUBSEQUENTLY VIDE THE DEED OF SALE DATED 08.4.2005. THE ISSUE/S 3.2 IT IS AT THIS STAGE CLEAR THAT THERE ARE VA RIOUS DIMENSIONS TO THE ISSUE, OR SUB-ISSUES, WHICH WOULD NEED TO BE ADDRESSED IN ADJUDICATING TH E SAME, VIZ. WHETHER THE SUBJECT MATTER OF THE DISPUTE CAN BE RE GARDED AS COVERED BY THE ORDER BY THE TRIBUNAL DATED 24.9.2009 (SUPRA) IN THE CASE OF THE CO-OWNERS ? HAS ANY TRANSFER WITHIN THE MEANING OF SECTION 2(47 ) OF THE ACT TAKEN PLACE PURSUANT TO THE AGREEMENT TO SELL DATED 16.5.1996 ? FURTHER, THE SUB-ISSUES THEMSELVES REQUIRE ANSWERIN G QUESTIONS OF FACT OR OF LAW, AS E.G., WHETHER THE POSSESSION OF THE WHOLE OR PART OF THE LAND WAS DELIVERED PURSUANT TO THE AGREEMENT DATED 16.5.1996? LIS: WHETHER COVERED? 3.3 WE SHALL BEGIN BY FIRST EXAMINING IF THE M ATTER, AS CONTENDED BY AND ON BEHALF OF THE ASSESSEE, CAN BE SAID TO BE COVERED BY THE TRIB UNALS ORDER DATED 24.9.2009 (SUPRA). 9 WE THINK IT AS NOT SO. THIS IS FOR THE REASON THAT THE ISSUE IN THE ASSESSEES OWN CASE HAD BEEN HEARD AND ADJUDICATED BY THE TRIBUNAL ON AN EA RLIER OCCASION; THE TRIBUNAL CONSIDERED IT AS FACTUALLY INDETERMINATE, AND WHILE STATING WH Y IT SO CONSIDERS, RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR HIS D ECISION AFRESH IN ACCORDANCE WITH LAW. REFERENCE FOR THE PURPOSE IS MADE TO PARA 21 OF THE SAID ORDER DATED 24/8/2007 (AT PB PAGE 68), WHICH IS REPRODUCED BELOW FOR THE SAKE OF CLARITY:- 21. IN THIS VIEW OF THE MATTER AND KEEPING IN VIEW THAT THE ASSESSEE HAS FILED CERTAIN ADDITIONAL EVIDENCE AS REFERRED TO HE REINABOVE, WE ARE OF THE VIEW THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD . CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO SHAL L EXAMINE THE SAME AFRESH IN THE LIGHT OF OUR OBSERVATIONS HEREIN ABOVE AND A CCORDING TO LAW AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND ACCORDINGLY THE GROUNDS TAKEN BY THE REVENUE IN ITS APPEAL AND GROUNDS TAKEN BY THE ASSESSEE IN HIS APPEAL AND C.O. ARE AL LOWED FOR STATISTICAL PURPOSES . THIS ORDER WAS NOT CHALLENGED AND, THUS, ACCEPTED B Y BOTH THE PARTIES. THAT BEING THE CASE, THE SAME ASSUMED FINALITY, AND THE PRESENT PR OCEEDINGS WOULD HAVE TO BE NECESSARILY CONSIDERED ON THE BASIS OF THE FINDINGS IN THE SUBSEQUENT PROCEEDINGS, FOR WHICH DIRECTIONS WERE ALSO GIVEN BY THE TRIBUNAL. T HAT IS, THE AUTHORITIES BELOW WERE BOUND TO CONSIDER THOSE DIRECTIONS, AND ALSO EXAMIN E THE MATTER AFRESH, AND WE ARE AGAIN BOUND TO CONSIDER THE RESULT OF THOSE FINDINGS IN T HE APPELLATE PROCEEDINGS WHERE AS UB THE INSTANT CASE, THE MATTER CONTINUES TO BE AGITAT ED. IT WOULD, OF COURSE, BE A DIFFERENT MATTER IF THE TRIBUNAL IN THE CASE OF THE CO-OWNERS HAD ALSO ISSUED SIMILAR DIRECTIONS (OR WERE ADOPTED BY THE ASSESSING AUTHORITY), AND THE T RIBUNAL ON A CONSIDERATION OF THOSE FINDINGS AND MATERIALS FOUND THAT NO TRANSFER HAD T AKEN PLACE. IN THAT CASE, NO DOUBT, THERE WAS SCOPE TO, WITH REFERENCE TO THOSE FINDING S AND MATERIALS, HOLD THAT THE MATTER STANDS COVERED BY THE TRIBUNALS ORDER IN THE CASE OF CO-OWNERS. THIS IS NOT TO SAY THAT THE TRIBUNALS ORDER DATED 24/9/2009 IN THE CASE OF CO- OWNERS IS NOT RELEVANT; THE SAME HAS A 10 STRONG PERSUASIVE VALUE, BUT ONLY THAT THE MATTER C ANNOT BE FORECLOSED, TREATING IT AS COVERED BY IT. FURTHER, THOUGH OUR EXAMINATION REVEALS NO SUCH FINDINGS OR MATERIALS (AS RECORDED BY THE TRIBUNAL IN THE ASSESSEES CASE), W E SHALL, FOR THE SAKE OF COMPLETENESS OF THIS ORDER, ALSO ENLIST THE SAME. IT IS CLEAR THAT THE TRIBUNAL IN THE CASE OF THE CO-OWNERS APPROVED THE ORDER OF THE FIRST APPELLATE AUTHORITY , ENDORSING HIS FINDINGS, WHICH ARE, THEREFORE, REPRODUCED FROM THE APPELLATE ORDER IN T HE CASE OF ONE OF THE CO-OWNERS, I.E., SURESH VYAS (VIDE ORDER DATED 06.2.2006/ PB PAGES 1 3-51 ): PARA 9, PAGE 49:- 09. I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPEL LANT AND THE ASSESSING OFFICER ALONG WITH THE MATERIAL AVAILABLE ON RECORD. IT IS CLEAR FROM THE ENTRIES MADE IN THE BOOKS OF ACCOUNT OF RE VATHI TOBACCO CO. PVT. LTD. AND FROM THE STATEMENT OF SRI PARAMESHWER RAO BEFORE THE ASSESSING OFFICER AND THE SALE DEED EXECUTED BY REVATHI TOBAC CO CO. PVT. LTD. WITH REGENT ASSOCIATES THAT POSSESSION WAS NOT HANDED OV ER AND THE ENTIRE CONSIDERATION WAS NOT PAID. THEREFORE, SECTION 53A OF THE TRANSFER OF PROPERTY ACT HAS NO APPLICATION AND THE TRANSFER IS NOT COMPLETE. BESIDES, IT IS ALSO CLEAR THAT THE APPELLANT DID NOT OBTAIN NECESSARY APPROVALS FROM THE APPROPRIATE AUTHORITY AND UNLESS SUCH APPROVALS ARE OBTAINED, THE TRANSFER CANNOT BE SAID TO BE COMPLETE. IN THE CIR CUMSTANCES, I HOLD THAT THERE WAS NO TRANSFER OF THE PROPERTY. THE AMOUNT RECEIVED AS ADVANCE REMAINS AS A LIABILITY AND DOES NOT REPRESENT THE P ROPERTY OF THE APPELLANT. AS CLAIMED BY THE APPELLANT, THE AMOUNT HAD TO BE R EFUNDED IF DEMANDED BY REVATHI TOBACCO CO. PVT. LTD. AS THE APPELLANT DID NOT OBTAIN NECESSARY PERMISSIONS AS AGREED TO IN THE AGREEMENT . A MERE BROWSE OF THE FINDINGS OF THE FIRST APPELLA TE AUTHORITY (SUPRA), AS WELL AS BY THE TRIBUNAL CONFIRMING THE SAME (AT PARA 10 OF THE ORDER DATED 24/9/2009, REPRODUCED AT PARA 2.1, PG. 2 OF THIS ORDER), WOULD MAKE IT CLEAR THAT THE SAME ARE WITHOUT REFERENCE TO THE FOLLOWING, AND WHICH STAND CONSIDERED BY THE AU THORITIES BELOW IN THE INSTANT CASE: (A) THE ATS DATED 16.5.1996, WHICH IS A PRIME DOCUM ENT GOVERNING THE CONTRACTUAL RELATIONSHIP BETWEEN THE ASSESSEE AND THE VENDEE (R TC); 11 (B) THE STATEMENT OF THE PURCHASER (RTC), WHICH WAS DIRECTED FOR BEING TAKEN BY THE TRIBUNAL; THE REVENUE RELYING ON ITS LETTERS DATED 15.12.1999 AND DATED 27.3.2001, ALLOWING THE ASSESSEE OPPORTUNITY TO CONTROVERT IT; (C) EXAMINATION OF THE TENANTS, PARTICULARLY IN RES PECT OF WHOM ADDITIONAL EVIDENCES WERE SOUGHT TO BE RELIED UPON BY THE ASSESSEE BEFORE THE TRIBUNAL IN HIS CASE. THE ISSUE, THUS, CANNOT BY ANY STRETCH BE CONSIDER ED AS COVERED BY THE ORDER DATED 24.9.2009 BY THE TRIBUNAL (SUPRA). RATHER, IT IS S URPRISING AND MOST INAPPROPRIATE THAT, FIRSTLY, THE TWO CASES WERE NOT CLUBBED (FOR HEARIN G BEFORE THE TRIBUNAL), AS WAS THE APPEAL OF ALL THE OTHER CO-OWNERS AND, TWO, THE FACT THAT THE CASE OF ONE OF THE CO-OWNERS (THE ASSESSEE) HAD BEEN HEARD AND SET ASIDE BY THE TRIBU NAL ON AN EARLIER OCCASION (ON 24.8.2007) WAS NOT BROUGHT TO THE NOTICE OF THE TRI BUNAL WHILE HEARING AND DECIDING THE CASE OF THE OTHER CO-OWNERS, WHICH IT DID IN SEPTEM BER, 2009. TRANSFER: AS LEGALLY DEFINED 3.4 THE NEXT ISSUE TO BE CONSIDERED IS IF THERE HAS BEEN A TRANSFER WITHIN THE MEANING OF SECTION 2(47) OF THE ACT READ WITH SECTION 53A O F THE TRANSFER OF PROPERTY ACT, 1882 (T.P. ACT HEREINAFTER) VIDE ATS DATED 16.5.1996? T OWARD THIS WE, FIRSTLY, REPRODUCE THE RELEVANT SECTIONS, I.E., SEC. 2(47) OF THE ACT AND SEC. 53A OF THE T.P. ACT, AS UNDER:- 2(47) TRANSFER, IN RELATION TO A CAPITAL ASSET, INCLUDE S, ( I ) THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSET ; OR ( II ) THE EXTINGUISHMENT OF ANY RIGHTS THEREIN; OR ( III ) THE COMPULSORY ACQUISITION THEREOF UNDER ANY LAW; OR ( IV ) IN A CASE WHERE THE ASSET IS CONVERTED BY THE OWN ER THEREOF INTO, OR IS TREATED BY HIM AS, STOCK-IN-TRADE OF A BUSINESS CARRIED ON BY HIM, SUCH CONVERSION OR TREATMENT; OR ( IVA ) THE MATURITY OR REDEMPTION OF A ZERO COUPON BOND; OR ( V ) ANY TRANSACTION INVOLVING THE ALLOWING OF THE POS SESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANC E OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPE RTY ACT, 1882 (4 OF 1882); OR ( VI ) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEM BER OF, OR ACQUIRING SHARES IN, A CO-OPERATIVE SOCIETY, COMPANY OR OTHER ASSOCIATION OF PERSONS OR BY 12 WAY OF ANY AGREEMENT OR ANY ARRANGEMENT OR IN ANY O THER MANNER WHATSOEVER) WHICH HAS THE EFFECT OF TRANSFERRING, OR ENABLING T HE ENJOYMENT OF, ANY IMMOVABLE PROPERTY. EXPLANATION 1 FOR THE PURPOSES OF SUB-CLAUSES ( V ) AND ( VI ), IMMOVABLE PROPERTY SHALL HAVE THE SAME MEANING AS IN CLAUSE ( D ) OF SECTION 269UA; EXPLANATION 2 FOR THE REMOVAL OF THE DOUBTS, IT IS HEREBY CLAR IFIED THAT TRANSFER INCLUDES AND SHALL BE DEEMED TO HAVE ALWAYS INCLUDE D DISPOSING OF OR PARTING WITH AN ASSET OR ANY INTEREST THEREIN, OR CREATING ANY I NTEREST IN ANY ASSET IN ANY MANNER WHATSOEVER, DIRECTLY OR INDIRECTLY, ABSOLUTELY OR C ONDITIONALLY, VOLUNTARILY OR INVOLUNTARILY, BY WAY OF AN AGREEMENT (WHETHER ENTE RED INTO IN INDIA OR OUTSIDE INDIA) OR OTHERWISE, NOTWITHSTANDING THAT SUCH TRAN SFER OF RIGHTS HAS BEEN CHARACTERIZED AS BEING EFFECTED OR DEPENDENT UPON O R FLOWING FROM THE TRANSFER OF A SHARE OR SHARES OF A COMPANY REGISTERED OR INCORP ORATED OUTSIDE INDIA ; SECTION 53A OF TRANSFER OF PROPERTY ACT, 1882 PART PERFORMANCE 53A. WHERE ANY PERSON CONTRACTS TO TRANSFER FOR CONSIDER ATION ANY IMMOVABLE PROPERTY BY WRITING SIGNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTA INED WITH REASONABLE CERTAINTY, AND THE TRANSFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY OR ANY PART THEREOF, OR THE TRANSFEREE, BE ING ALREADY IN POSSESSION, CONTINUES IN POSSESSION IN PART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT IN FURTHERANCE OF CONTRACT, AND THE TRANSFEREE HAS PERFORMED OR IS WILLING TO P ERFORM HIS PART OF THE CONTRACT, THEN NOTWITHSTANDING THAT WHERE THERE IS AN INSTRUM ENT OF TRANSFER, THAT THE TRANSFER HAS NOT BEEN COMPLETED IN THE MANNER PRESCRIBED THE REFOR BY THE LAW FOR THE TIME BEING IN FORCE, THE TRANSFEROR OR ANY PERSON CLAIMI NG UNDER HIM SHALL BE DEBARRED FROM ENFORCING AGAINST THE TRANSFEREE AND PERSONS C LAIMING UNDER HIM ANY RIGHT IN RESPECT OF THE PROPERTY OF WHICH THE TRANSFEREE HAS TAKEN OR CONTINUED IN POSSESSION, OTHER THAN A RIGHT EXPRESSLY PROVIDED B Y THE TERMS OF THE CONTRACT: PROVIDED THAT NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT S OF A TRANSFEREE FOR CONSIDERATION WHO HAS NO NOTICE OF THE CONTRACT OR OF THE PART PERFORMANCE THEREOF . 13 WHETHER ON FACTS A TRANSFER IN LAW? 3.5 WE MAY NOW EXAMINE THE TRANSACTION FOR SATISF ACTION OR OTHERWISE OF THE REQUIREMENTS OF LAW, WITH REFERENCE TO THE MATERIAL ON RECORD, MOST NOTABLY THE AGREEMENT DATED 16.5.1996. THE VENDEE-TRANSFEREE HAS PAID NO T ONLY THE ASSESSEE BUT EACH OF THE CO- OWNERS ALL BUT ONE (I.E., THE LAST OR THE FIFTH) IN STALLMENT AGREED TO BE PAID (ON OR BEFORE 18.11.1996) BESIDES THE DOWN PAYMENT, COVERING IN E ACH CASE AROUND 85% OF THE TOTAL CONSIDERATION. IT HAS, THUS, PERFORMED SOME ACT IN FURTHERANCE OF THE CONTRACT. IT IS ALSO CLEARLY WILLING TO PERFORM ITS BALANCE PART OF THE CONTRACT. THIS IS APPARENT FROM THE FACT THAT IF THE AGREEMENT FAILED FOR WANT OF SUCH PERFO RMANCE BY THE VENDEE, THE AGREEMENT PROVIDES FOR ITS TERMINATION, EVEN OBVIATING THE NE ED FOR ANY NOTICE OF CANCELLATION OR TERMINATION TO BE GIVEN BY THE VENDORS TO RTC, THE PURCHASER (CLAUSE 22). TIME IS OF ESSENCE AND, FURTHER, ANY DELAY IN MAKING ANY OF TH E PAYMENTS WOULD ENTAIL INTEREST COST @ 21% PER ANNUM (CLAUSES 4, 6, 11 AND 22). NO INTE REST HAS, HOWEVER, I.E., IN THE FACTS OF THE CASE, BEEN PAID OR REQUIRED TO BE PAID BY TH E VENDEE. AS REGARDS POSSESSION, THE DOCUMENT (AGR EEMENT) IS SILENT ON THIS ASPECT, APART FROM IN RESPECT OF 500 SQ. YDS., OF WHICH THE VENDE E IS ALREADY IN POSSESSION BY VIRTUE OF TENANCY. CLAUSE 17 PROVIDES FOR RETENTION OF POSSES SION AS TENANT TILL THE TIME OF EXECUTION OF DEED OF SALE, WHICH IS TO BE LATEST BY 30.11.199 6/CLAUSE 6, WHEREAFTER THE POSSESSION WOULD BE ENJOYED IN HIS OWN RIGHT AS AN OWNER. THE LAW DOES NOT DRAW ANY DISTINCTION AS TO THE CAPACITY UNDER WHICH THE POSSESSION IS BEING RETAINED, AS LONG AS IT IS IN TERMS OF THE CONTRACT. IN FACT, BEFORE US IT WAS AN ADMITTED POSITION THAT THE VENDEE-PURCHASER STOPPED PAYING RENT, IF NOT POST MAY, 1996, SUBSEQU ENT TO NOVEMBER, 1996, SO THAT IT CONTINUES TO BE IN POSSESSION SINCE THAT DATE, BEIN G RETAINED IN ITS OWN RIGHT AND NOT AS A TENANT. WE HAVE ALREADY NOTED THAT THE TRANSACTION OR AGREEMENT WOULD FAIL IF THE VENDEE FAILED TO DISCHARGE ANY OF THE OBLIGATIONS CAST ON IT, SO THAT EVEN THE CEASURE OF PAYMENT OF RENT IS ALSO IN TERMS OF THE CONTRACT. THE REQU IREMENT OF LAW QUA POSSESSION IS, THUS, ALSO MET. WE ARE, THUS, UNABLE TO SEE AS TO HOW THE CONTRACT IS NOT OF THE NATURE REFERRED UNDER SECTION 53A OF THE T.P. ACT. COMING TO SECTI ON 2(47)(V) OF THE ACT, IT ONLY FURTHER 14 EMPHASIZES ALLOWANCE OF POSSESSION ON THE PART OF T RANSFEROR, TO BE TAKEN BY THE TRANSFEREE, OR BEING RETAINED IT, IN PART PERFORMAN CE OF THE CONTRACT (BY AND ON BEHALF OF THE TRANSFEREE). THAT IS, IT ONLY REITERATES THE R EQUIREMENT QUA POSSESSION AS PROVIDED FOR IN SECTION 53A OF THE T.P. ACT. RATHER, WHILE THE TERMS OF SECTION 53A OF THE T.P. ACT REQUIRE FOR THE ACTUAL TAKING OF POSSESSION BY THE TRANSFEREE, SECTION 2(47)(V) OF THE ACT ONLY REQUIRES OF IT BEING ALLOWED (BY THE TRANSFERO R) TO BE TAKEN (BY THE TRANSFEREE) I.E., IN DISCHARGE OF THE FORMERS OBLIGATION UNDER THE CONT RACT. AS SUCH, EVEN IF POSSESSION HAS NOT, FOR SOME REASON, BEEN ACTUALLY TAKEN, AS LONG AS TRANSFEROR ALLOWS IT TO BE TAKEN, I.E., PLACES NO HINDRANCE OR RESTRICTION AS REGARDS IT, T HE REQUIREMENT OF LAW IS SATISFIED. THIS IS AS TERMS OF SECTION 2(47)(V) OF THE ACT ARE SPECIFI C, WHILE REFERENCE TO SECTION 53A OF T.P. ACT THEREIN IS ONLY FOR DETERMINATION IF THE CONTRA CT UNDER REFERENCE IS OF THE NATURE REFERRED TO IN THAT SECTION. WE HAVE ALREADY CLARI FIED THAT THE ASSESSEE CONTINUES TO BE IN POSSESSION OF 500 SQ. YDS., I.E., A PART OF THE PRO PERTY, BOTH BEFORE AND AFTER 16.5.1996; IN FACT, RETAINING IT IN HIS OWN RIGHT AND CEASING TO PAY RENT IN DUE COURSE OF TIME. AS REGARDS THE BALANCE 4350 SQ. YDS., W E ARE AGAIN UNABLE TO SEE ANY DISPUTE BETWEEN THE PARTIES WITH REGARD TO ITS POSSESSION. 1620 SQ. YDS. OF IT IS NOT IN (PHYSICAL) POSSESSION OF THE ASSESSEE, BEING TENANTED TO BPCL, EVEN THOUGH THE LD. A.R. DURING HEARING WOULD SUBMIT THAT THE DISPUTE IS ONLY QUA 800 SQ. YDS., I.E., THE PORTION OCCUPIED BY THE PETROL PUMP, WITH THE BALANCE BEING OPEN LAN D. WHETHER THE DISPUTE, WHICH ON THE BASIS OF THE MATERIAL ON RECORD BEFORE US, EXTENDS TO 1620 SQ. YDS., IS RESTRICTED TO 800 AND ODD SQ. YDS. OR NOT, THE FACT IS THAT THE ASSESSEE IS NOT IN A POSITION TO DELIVER THE POSSESSION TO THE VENDEE TO THE EXTENT IT IS WITH B PCL. THIS IS AS IT ITSELF IS NOT IN POSSESSION THEREOF, AND OF WHICH, AS WELL AS OF THE SUBSISTING DISPUTE WITH BPCL, THE TRANSFEREE-VENDEE IS WELL AWARE OF (REFER PREAMBLE AT PAGES 3 & 4 AS WELL AS CLAUSE 14 TO 16 OF THE ATS DATED 16/5/1996). CO ULD IT BE, THEREFORE, THAT THE SAID 1620 SQ. YDS. O F LAND, WHICH WAS LEASED TO BPCL (WHICH HAD THOUGH EXPIRED), IS NOT SOLD OUT OR TRANSFERRED TO THE VENDEE VIDE ATS DATED 16-05-1996, EVEN AS HELD BY THE FIRST APPELLA TE AUTHORITY IN THE ASSESSEE'S CASE IN 15 THE FIRST ROUND (REFER PARAS 13, 17 AT PAGES 10, 14 OF THE TRIBUNA LS ORDER DATED 24-8-2007). WE ARE WHOLLY UNABLE TO SUBSCRIBE TO THIS PROPOSITI ON. POSSESSION IN LAW DOES NOT IMPLY ONLY OR EXCLUSIVELY A PHYSICAL POSSESSION, BUT AS M UCH OF IT AS THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE INTENTION OF THE PARTIES , ADMIT OF. IF, FOR EXAMPLE, A PART OF THE PROPERTY IS (SAY) SUBJECT TO TENANCY, AND IT IS MUT UALLY AGREED THAT THE SAME MAY CONTINUE, THE TENANT SHALL CONTINUE TO RETAIN AND ENJOY THE P HYSICAL POSSESSION, EVEN AS THE OWNERSHIP OF THE PROPERTY, WHICH IN THIS CASE WOULD INCLUDE LEGAL POSSESSION, SHALL CHANGE HANDS. IN THE INSTANT CASE, AS THERE IS A SU BSISTING DISPUTE WITH THE TENANT, THE BUYER IS PLACED - BY THE OWNERS IN THE SAME POSIT ION AS THEY HOLD VIS-A-VIS THE SAID PART OF THE LAND, INCLUDING THE RIGHT TO COMPROMISE, SET TLE WITH THE TENANT OR GET IT EVICTED THERE-FROM (CLAUSE 16). TRANSFER, IT MUST BE APPREC IATED, IS DEFINED MOST COMPREHENSIVELY U/S. 2(47) OF THE ACT AND CLAUSE (V ) REPRESENTS ONLY ONE MODE THEREOF. COMING BACK TO THE FACTS OF THE CASE, ONCE THE ASSESSEE RELINQUISHES ITS RIGHT IN THE SAID LAND, THE REQUIREMENT OF LAW AS TO TRANSFE R IS SATISFIED, AND A TRANSFER IN LAW FRUCTIFIES OR INURES. CLAUSES 14 TO 16 OF THE ATS M AKE IT ABUNDANTLY CLEAR THAT THOUGH THE ASSESSEE IS NOT IN POSSESSION OF THE SAID LAND, IT HAS RELINQUISHED ALL ITS RIGHTS THEREIN IN FAVOUR OF THE TRANSFEREE, PLACING IT IN THE SAME PO SITION AS IT STANDS. CLAUSE 14 PLACES THE VENDEE-PURCHASER IN THE SAME POSITION AS THE ASSESS EE IS IN RELATION TO THE ACQUISITION PROCEEDINGS IN RESPECT OF THE SAID LAND, WHICH STA NDS SINCE CHALLENGED BEFORE THE HON'BLE HIGH COURT OF ANDHRA PRADESH (UNDER WRIT PETITION 1 7385/89) AND ARE PENDING BEFORE IT, AS THE ASSESSEE. THAT IS, THE VENDEE COULD REPRESEN T IN THE SAID PROCEEDINGS IN HIS OWN RIGHT, AT ITS OWN COST AND EXPENDITURE AND, OF COUR SE, THE CONCOMITANT RISK. CLAUSE 15 FURTHER CLARIFIES THAT IN THE EVENT OF THE SAID WRI T PETITION FAILING, THE VENDORS SHALL NOT BE LIABLE FOR ANY REFUND OR COMPENSATION TO THE VENDEE -PURCHASER. CLAUSE 16 AGAIN MAKES IT CLEAR THAT THE VENDORS SHALL NOT BE RESPONSIBLE FOR EVICTION OF THE TENANT FROM THE PREMISES IN OCCUPATION OF THE TENANT (BPCL) OR TO GIVE VACAN T POSSESSION THEREOF TO THE PURCHASER, WHO SHALL BE ENTITLED TO DEAL WITH, SETTLE OR COMPR OMISE WITH THE SAID TENANT IN ANY MANNER IT DEEMS FIT, WHICH OF COURSE SHOULD NOT INV OLVE ANY FINANCIAL LIABILITY TO THE 16 VENDOR/S. IT SHALL ALSO BE AT LIBERTY ON THE EXECUT ION AND REGISTRATION OF THE SALE DEED, GET THE SAID TENANCY ATTORNED IN ITS FAVOUR, AND WHICH SHALL BE CONSIDERED AS THE DELIVERY OF THE POSSESSION IN RESPECT OF THE SAID PROPERTY. NOW, WHAT DO ALL THESE CONVENANTS, DULY COMPLIED WITH, IMPLY OR CONFIRM IF NOT A COMPLETE R ELINQUISHMENT OF ALL RIGHTS, EXCEPT THAT OF A REGISTERED, TITLE HOLDER ? THE POINT TO BE CONSIDERED AND UNDERSTOOD IS: COULD ANY ONE PASS A BETTER TITLE THAN IT HOLDS ? THOUGH THE LEASE WITH BPCL HAS EXPIRED, THE QUEST ION IS NOT OF THE NATURE OF RIGHTS, I.E., LEASE-HOLD OR FR EE-HOLD, IN RESPECT OF THE SAID LAND, BUT THAT IT HAD TRANSFERRED ALL THE RIGHTS IT HAD, I.E., ITS ENTIRE PROPERTY IN THE SAID LAND, A CAPITAL ASSET BY DEFINITION, IN FAVOUR OF THE VENDEE. WE SA Y TRANSFER AND NOT AGREE TO TRANSFER AS WE OBSERVE, FIRSTLY, UNCONDITIONAL RELINQUISHMEN T HAS ALREADY OCCURRED AND, SECONDLY, WE HAVE ALREADY NOTED THAT THERE HAS BEEN NO BREACH IN ANY OF THE CONDITIONS OR TERMS OF THE CONTRACT (ATS) BY VENDEE-PURCHASER (RTC) FOR US TO CONSIDER NON-PASSING OF ANY RIGHTS IN THE LAND OR PROPERTY THEREIN, WHICH IS CO NTEMPLATED TO BE TRANSFERRED. WHAT DO ALL THESE CONVENANTS IMPLY OR CONFIRM, IF NOT A COMPLET E RELINQUISHMENT OF ALL RIGHTS, EXCEPT THAT OF A REGISTERED, TITLE HOLDER ? RATHER, ALL THAT THE ASSESSEE HAD TO DO TO EXHIBI T OTHERWISE WAS TO SHOW OF HAVING RESTRAINED RTC IN R EPRESENTING EITHER ON ITS BEHALF OR IN OWN ITS RIGHT IN THE COURT PROCEEDINGS AS MAY HAVE TAKEN PLACE SINCE 16-05-1996. FURTHER, NEITHER THE FIRST APPELLATE AUTHORITY NOR THE TRIBU NAL IN THE CASE OF CO-OWNERS HAS HELD ADVERSELY QUA THIS PART OF THIS LAND. THE TRANSFER OF THE ASSESS EES PROPERTY IN 1620 SQ. YARDS RENTED TO THE BPCL IS, THUS, NOT TO BE VIEWED FROM THE STAND POINT OF ASSESSEE HAVING DELIVERED THE PHYSICAL POSSESSION THEREOF, W HICH IS LEGALLY NOT POSSIBLE AS IT DID HAVE IT, WITH THE MATTER BEING SUBJECT TO A LEGAL D ISPUTE, BUT WHETHER ITS PROPERTY IN THE SAID LAND, INCLUDING ITS LEGAL POSSESSION, IS TRANS FERRED OR NOT, AND WHICH WE FIND TO HAVE ON THE BASIS OF THE RELINQUISHMENT, WITH THE TRANSF EREE HAVING PERFORMED ALL HIS ACTIONS IN RESPECT OF HIS PART OF THE CONTRACT. IN FACT, THIS IS PRECISELY WHAT THE LD. DR SEEKS TO EMPHASIZE AND TO BRING HOME WHEN SHE STATES THAT TH E ASSESSEE HAD SOLD HIS SHARE OF THE PROPERTY ON AS IS WHERE IS BASIS. NOT ONLY THIS, THE DISPUTE WITH BPCL SUBSISTING, THE SAME WAS TRANSFERRED IN THE SAME MANNER SUBSEQUENTL Y TO RA. IN FACT, EVEN IF A BETTER TITLE TO THE SAID LAND HAD BEEN PASSED TO THE BUYERRA LA TER, IT WOULD BE OF NO CONSEQUENCE; 17 THE ASSESSEE HAVING ALREADY TRANSFERRED IT ENTIRE R IGHTS OR PROPERTY IN THE SAID LAND TO RTC, SO THAT THE SUBSEQUENT TRANSFER TO THE BUYER IS ONL Y BY THE LATTER, I.E., THE RTC. HOWEVER, THE FACT THAT THERE WAS NO OR HARDLY ANY IMPROVEMEN T IN THE TITLE OVER THE SAID LAND MAKES IT ABUNDANTLY CLEAR THAT NEITHER THERE WAS THE DISP UTE IN RELATION TO THE SAID LAND IN ANY MANNER RESPONSIBLE FOR NOT EXECUTING THE SALE DEED, AS CONTENDED, NOR THE AMOUNT OF CONSIDERATION WITHHELD ON ITS ACCOUNT. WE HAVE ALRE ADY NOTED THAT BOTH THE PARTIES HAD DONE WHAT ARE REQUIRED BY THEM IN RESPECT OF THE SA ID LAND. NEXT, WE SHALL CONSIDER THE TRANSFER QUA THE BALANCE 2730 SQ. YARDS. IN OUR CONSIDERED VIEW THE POSSESSION WITH REGARD TO THIS LAND IS SUBSTANTIALLY AND ESSENTIALLY THE SAME AS FOR THE 500 SQ. YARDS THAT STOOD TENANTED T O THE VENDEE. WE SAY SO AS ONCE THE TENANT CEASES TO PAY THE RENT, THE ENJOYMENT OF POS SESSION BY IT IS ONLY IN ITS OWN RIGHT, I.E., AS A VENDEE-PURCHASER, UNDER ATS DATED 16/5/1 996. THE AGREEMENT, AS AFORE-NOTED, IS SILENT WITH REGARD TO POSSESSION, EXCEPT IN RESP ECT OF THE LAND THAT HAD BEEN LEASED TO BPCL (AND WHICH AS FAR BACK AS IN THE YEAR 1962). T HE LAND, AS APPARENT FROM THE DOCUMENT/ATS DATED 16-05-1996, IS FREE FROM ANY ENC UMBRANCES, INCLUDING THE TENANCY RIGHTS, SO THAT THERE IS NO RESTRICTION OR HINDRANC E TO THE DELIVERY OF ITS POSSESSION, MUCH AS IN RESPECT OF 500 SQ. YARDS ALREADY UNDER POSSES SION OF THE VENDEE-PURCHASER AND, THUS, CONTINUES TO BE RETAINED BY IT. FURTHER, BOTH THE P ARTIES HAVE PERFORMED, AND ARE ALSO WILLING (OR AT LEAST THE TRANSFEREE) TO PERFORM THE BALANCE UNPERFORMED PART OF THE CONTRACT, WHICH WE OBSERVE AS ONLY THE REGISTRATION OF THE DEED AND, CORRESPONDINGLY, THE PAYMENT OF THE FINAL INSTALLMENT. UNDER THE CIRCUMS TANCES, NON-PAYMENT OF THE LAST INSTALLMENT AND CONSEQUENTLY NON-EXECUTION OF THE S ALE DEED IS OF NO CONSEQUENCE. IN FACT, ANY ATTEMPT BY THE ASSESSEE TO RESTRAIN THE V ENDEE FROM THE ASSUMING POSSESSION WOULD IMMEDIATELY RESULT IN THE LATTER CEASING TO P AY THE INSTALLMENT/S AS MAY BE DUE, LEADING TO THE STALLING OF THE OPERATION OF THE AGR EEMENT. THE FINAL INSTALLMENT IS WITHHELD ONLY ON ACCOUNT OF, AND ONLY UNDERSTANDABLY SO, NON -EXECUTION OF THE SALE DEED, AND WHICH COULD FURTHER BE DUE TO SOME TECHNICAL REASON S OR EVEN CONSCIOUSLY, I.E., BY DESIGN. THIS IS ALSO EVIDENT FROM THE FACT THAT A BREACH OF ANY OF THE TERMS AND CONDITIONS OF THE 18 AGREEMENT, INCLUDING AS TO PAYMENT (BY THE VENDEE), WOULD RESULT IN TERMINATION OF THE AGREEMENT, WITHOUT AS MUCH AS A NOTICE OF CANCELLAT ION BY THE VENDORS, BESIDES ENTAILING STRINGENT COSTS; TIME BEING ESSENCE OF THE CONTRACT . IN FACT, BOTH THE PARTIES DID NOT COMPLAIN OF NON-PERFORMANCE OF THE CONTRACT, WITH T HE VENDEE-PURCHASER, A COMPANY, TRANSFERRING THE AMOUNT PAID IN ITS ACCOUNTS TO THE LAND ACCOUNT AS FAR BACK AS ON 31-03- 1998 OR 31-03-1999, EVEN AS NOTHING, MUCH LESS MATE RIAL, WHICH WOULD RESULT IN RIGHTS IN THE LAND INURING TO IT (VENDEE) TRANSPIRED IN THOSE YEARS. NOT ONLY THE AGREEMENT CONTINUES TO BE IN FORCE YEARS LATER, ALL THE RIGHTS ENJOYED BY AND SUBSEQUENTLY TRANSFERRED BY RTC IN FAVOUR OF THE BUYER-RA WERE ONLY THOSE AS DERIVE D BY VIRTUE OF ATS DATED 16-05-1996. NON-EXECUTION OF SALE DEED OR ITS REGISTRATION, WHI CH (REGISTRATION) HAS IN FACT BEEN UNDERTAKEN OF THE SALE DEED DATED 8-04-2005; THE SA ME HAVING BEEN EXECUTED ONLY ON STAMP PAPER OF RS. 200/- ONLY, WOULD IN ANY CASE GI VE RISE TO SUIT FOR SPECIFIC PERFORMANCE. POSSESSION: THE FACTUAL EDIFICE 3.6 WE MAY ALSO HASTEN TO ADD THAT OUR FINDINGS AS TO THE OBSERVANCE OF THE TERMS AND CONDITIONS OF THE ATS DATED 16-05-1996 (INCLUDING A SSUMPTION OF POSSESSION BY THE VENDEEPURCHASER) BY BOTH THE PARTIES THERETO (REFE R PARA 3.5 ABOVE), IS BASED NOT ONLY ON THE INFERENCE(S) DRAWN FROM THE CUMULATIVE EFFECT T HEREOF, I.E., THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES, INCLUDING THE ABSENCE OF ANY SUI T FOR SPECIFIC PERFORMANCE OR ANY COMPLAINT AGAINST THE OTHER (OVER THE SEVERAL YEARS THE AGREEMENT CONTINUED TO BE IN FORCE), DESPITE THE VENDORS HAVING BEEN PAID ALL BU T THE LAST INSTALLMENT (AND WHICH IS TO CULMINATE IN THE EXECUTION OF THE SALE DEDUCTION); NON-INTERFERENCE BY THE VENDORS IN ANY OF THE LEGAL RIGHTS CONFERRED BY ATS, ETC. BUT ALSO ON THE BASIS OF DIRECT EVIDENCE AS TO THE POSSESSION. WE HAVE ALREADY NOTED THE ABSENCE OF AN Y ADVERSE CLAIM(S) IN THIS REGARD; PROPERTY BEING NOT SUBJECT TO ANY TENANCY EXCEPT TH AT OCCUPIED BY BPCL (PHYSICAL POSSESSION OF WHICH WAS NEVER CONTEMPLATED), AND OF THE AMOUNT PAID HAVING BEEN TRANSFERRED BY THE VENDEE-COMPANY IN ITS BOOKS TO L AND A/C MUCH PRIOR TO THE EXECUTION OF 19 SALE DEED, WHICH IN ANY CASE IS IN FAVOUR OF THE TH IRD PARTY, I.E., REGENT ASSOCIATES (RA), TO WHICH THE VENDEE ITSELF IS A PARTY DERIVING ENTI RE APPRECIATION ON THE SAID LAND DURING THE INTERVENING YEARS. THE FIRST (DIRECT) EVIDENCE IN THIS REGARD ARE THE LETTERS DATED 15-12-1999 AND 27- 03-2001 (PART OF WHICH STAND ALREADY REPRODUCED BY THE FIRST APPELLATE AUTHORITY VIDE HIS ORDER DATED 06-02-2006 ON RECORD) IN THE CASE OF CO -OWNER SHRI SURESH VYAS, AFFIRMING OF HAVING BEEN PUT IN POSSESSION OF THE PROPERTY, AND WHICH WERE DULY TAKEN INTO ACCOUNT IN FRAMING THE ASSESSEE'S ORIGINAL ASSESSMENT DATED 27 -03-2003. WHY WOULD ANYONE, WHO IS ACTUALLY NOT IN POSSESSION, CONFIRM OF BEING SO, I. E., CONCEDE TO BE IN ENJOYMENT OF A RIGHT OR ADVANTAGE WHICH STANDS DENIED TO IT OR IS YET TO BE RECEIVED BY IT? IN FACT, THE PURCHASER IS THE ONE WHO IS DIRECTLY IMPACTED AND WOULD BE TH E MOST AGGRIEVED BY THE NON-GRANT OF POSSESSION, I.E., WHERE SO, SO THAT THAT IT INCONCE IVABLE THAT HE WOULD NOT STATE THE TRUTH AND ACT TO HIS OWN DETRIMENT. THE SAID LETTERS IN F ACT ONLY REITERATE ITS STATED POSITION PER THE NOTES TO THE FINAL ANNUAL ACCOUNTS FOR THE FINA NCIAL YEAR 1997-98, CONFIRMING OF THE PROPERTY BEING IN ITS POSSESSION. THE ASSESSEE HAS, DESPITE SEVERAL OPPORTUNITIES, NOT CONTROVERTED THESE CLAIMS OR REBUTTED THEM WITH ANY POSITIVE MATERIAL/ EVIDENCE, THE ONUS FOR WHICH WAS HEAVY ON IT; THE TRIBUNAL ON AN EARLI ER OCCASION RESTORING THE MATTER BACK ONLY SO THAT THIS ASPECT IS FACTUALLY DETERMINED, T AKING ALL SUCH MATERIALS INTO CONSIDERATION. IN FACT, EVEN IN THE FIRST ROUND, TH E FIRST APPELLATE AUTHORITY, PRIOR TO CONFIRMING THE ASSESSMENT VIDE ORDER DATED 22-08-20 03, PROVIDED AMPLE OPPORTUNITY TO THE ASSESSEE TO DISPROVE THE SAME AND WHICH FORMED THE BASIS OF HIS FINDINGS AS TO THE POSSESSION. THE POSITION REMAINS MUCH THE SAME EVEN AT THE CONCLUSION OF THE SECOND ROUND BEFORE THE ASSESSING AND THE FIRST APPELLATE AUTHORITY. THE SECOND EVIDENCE IS THE STATEMENT OF SHRI V. PA RAMESHWAR RAO, ASSISTANT MANAGER, WHO WAS SUMMONED BY THE ASSESSING OFFICER IN THE CASE OF ONE OF THE CO- OWNERS, SHRI SURESH VYAS, IN THE PRESENCE OF HIS RE PRESENTATIVE (REFER PARA 7 OF THE APPELLATE ORDER DATED 06-02-2006 SUPRA). AN OPPORTU NITY TO CROSS EXAMINE RTC (BEFORE THE ASSESSING AUTHORITY) WAS AGAIN PROVIDED BY THE FIRST APPELLATE AUTHORITY IN THAT CASE, 20 AND WHICH WAS AVAILED OF; TO, HOWEVER, NO RESULT. A N IMPASSE WAS CREATED, WITH THE VENDEE-COMPANY WANTING THE DETAILS ON WHICH CLARIFI CATION WAS TO BE SOUGHT BY THE CROSS- EXAMINER, AS IT NEEDED TO CONSULT ITS RECORDS, WHIL E THE APPELLANT CO-OWNERS WERE DISINCLINED TO SUPPLY THE LIST OF THE POINTS ON WHI CH THEY NEED CLARIFICATION. THIS IS BY ITSELF MOST SURPRISING AS, EVIDENTLY, THE ISSUE, WH ICH WAS THE BONE CONTENTION BETWEEN THE PARTIES, WAS CLEARLY QUA POSSESSION, AND WHICH HAD BEEN CONFIRMED BY THE VE NDEE TIME AND AGAIN. THOUGH ALL THIS TRANSPIRED IN THE CASE O F THE CO-OWNERS, THE FACT REMAINS THAT DESPITE EXTENSIVE OPPORTUNITY, NO REBUTTAL OF THE S TATEMENT OF SHRI V. PARMESHWAR RAO, ASSISTANT MANAGER, AMONG OTHERS, STANDS BROUGHT ABO UT. REFERENCE TO THESE FACTS IS MADE AS THE FIRST APPELLATE AUTHORITY (IN THAT CASE) MAK ES REFERENCE TO HIS STATEMENT IN HIS ORDER DATED 06-02-2006, MAKING IT, RATHER, ONE OF THE GRO UNDS FOR HOLDING THAT THE POSSESSION HAD NOT BEEN TRANSFERRED TO RTC (WHOSE ORDER HAS SI NCE BEEN CONFIRMED BY THE TRIBUNAL). ON THE CONTRARY, IT IS THE ASSESSEE-APPELLANTS CAS E (IN THAT CASE) BEFORE HIM (THE FIRST APPELLATE AUTHORITY) THAT THE ASSESSING AUTHORITY H AD SELECTIVELY RELIED UPON THE STATEMENT OF SH. V. PARAMESHWAR RAO, ASSISTANT MANAGER, REPRO DUCING ONLY THE PART FAVOURABLE TO THE REVENUE. NEITHER THE FIRST APPELLATE AUTHORITY NOR (EVEN) THE TRIBUNAL HAS REPRODUCED THE SAID STATEMENT, MUCH LESS IN FULL, IN THEIR RES PECTIVE ORDERS, NOR HAS THE SAME BEEN PLACED BY THE ASSESSEE ON RECORD IN THE INSTANT CAS E. THE ONLY IMPORT THUS IS THAT THE SAID STATEMENT, TO CROSS EXAMINE WHICH OPPORTUNITY WAS P ROVIDED, WAS ONLY IN CONFIRMATION OF ITS EARLIER STAND (VIDE LETTERS DATED 15-12-1999 AN D 27-03-2001, AS WELL AS THE NOTES TO THE ACCOUNTS) OF THE VENDEE-COMPANY. AS SUCH, THER E IS NOTHING CONTRADICTORY IN THE STAND OF THE VENDEE-COMPANY (RTC) - AS STATED BY TH E FIRST APPELLATE AUTHORITY (REFER PARA 8, PAGE 17 OF THE APPELLATE ORDER DATED 06-02-2006 AT PB PG. 45) - WHICH HAS CONSISTENTLY MAINTAINED OF HAVING TAKEN POSSESSION, AND WHICH IS STATED AS THE REASON BY THE SAID AUTHORITY FOR ADMITTING THE ADDITIONAL EVIDENCES IN THE CASE OF THE CO-OWNER, SH. SURESH VYAS, I.E., THE SALE DEED DATED 08-04-2005. THE THIRD EVIDENCE IS THE STATEMENT OF SHRI M. KISH AN RAO, DIRECTOR, REVATHI TOBACCO COMPANY (P.) LTD. (RTC) DATED 30-12-2008 BE FORE THE ASSESSING OFFICER, WHICH 21 STANDS EXTENSIVELY REPRODUCED AND RELIED UPON BY HI M AS WELL AS BY THE LD. CIT(A) IN THEIR RESPECTIVE ORDERS UNDER CHALLENGE. HE WAS QUE STIONED ON ALL ASPECTS OF THE MATTER, INCLUDING THE VARIOUS OBJECTIONS OR GROUNDS TAKEN B Y THE ASSESSEE TOWARD ITS CASE FOR NON- DELIVERY OF POSSESSION. IT STANDS CLARIFIED BY HIM THAT HIS COMPANY PAID THE AMOUNTS TO TWO TENANTS, VIZ. M/S. BHARAT KAGAZ BHANDAR AND M/S . QUALITY HOTELS, THROUGH CHEQUES, FOR GETTING THE PREMISES EVICTED, BESIDES STOPPED P AYING RENT (TO THE ASSESSEE) FOR THE PART OF THE PROPERTY, ADMEASURING 500 SQ. YARDS, UNDER R ENT WITH IT (IN ANSWER TO QUESTION NO. 5). THIS SINGLE, SPECIFIC FACT, WHICH IS NEITHER DE NIED NOR REBUTTED BY THE ASSESSEE, LEAVES NO ROOM FOR ANY DOUBT QUA THE POSSESSION OF LAND. THOUGH THERE IS NO MENTION OF ANY TENANCY IN THE ATS (OTHER THAN OF BPCL AND THE VEND EE ITSELF), AND WHICH IS THE BASIS OF OUR UNDERSTANDING (UP TO THIS STAGE) OF THE POSSESS ION STATUS (AND WHICH WOULD THEREFORE STAND TO BE MODIFIED TO THIS EXTENT), THE VERY FACT THAT THE OTHER TENANTS WERE PAID BY THE VENDEE, WHICH IS THROUGH CHEQUES, UNEQUIVOCALLY EST ABLISHES ITS PRIMACY IF AT ALL THERE WAS ANY DOUBT WITH REGARD TO IT - OVER THE SAID LAN D. WHY WOULD IT PAY THE TENANTS, IF NOT TO SECURE PHYSICAL POSSESSION FROM THEM, IMPLYING O F HAVING BEEN ALLOWED LEGAL AND CONSTRUCTIVE POSSESSION (I.E., TO THE EXTENT ADMISS IBLE UNDER THE CIRCUMSTANCES) BY THE ASSESSEE, SO THAT IT HAS ALREADY TAKEN PHYSICAL POS SESSION (BEING POSSIBLE) OF THE UNTENANTED PORTION, AS ITS VACATING THE TENANTS (TO WHOM THE PAYMENTS WERE MADE) WOULD MAKE LITTLE SENSE OTHERWISE . THE VENDOR, THUS, AS ALSO ABUNDANTLY REFLECTED PE R THE ATS, TRANSFERRED THE LAND ON AS IS WHERE IS BASIS. WHI LE THE LAND IN THE ASSESSEES OWN POSSESSION WAS TAKEN OF OR ASSUMED FORTHWITH, TO TH E EXTENT IT WAS IN POSSESSION OF OTHERS, POSSESSION TO THE EXTENT LEGALLY PERMISSIBLE WAS GI VEN TO THE VENDEE, ALLOWING THUS POSSESSION IN RESPECT OF THE ENTIRE LAND. THIS PERH APS ALSO EXPLAINS THE NOTE QUA ASSUMPTION OF THE POSSESSION IN ITS ACCOUNTS FOR TH E YEAR 1997-98, AS IT MAY WELL BE THAT THE PAYMENT (FOR EVICTION) WAS MADE AND THE TENANTS VACATED IN THAT YEAR. HOWEVER, THAT WOULD NOT MATTER, AS IT (THE VENDEE) HAD ALREADY OB TAINED LEGAL POSSESSION AND, EQUALLY IMPORTANT, BEEN ALLOWED POSSESSION BY THE TRANSFERO R DURING THE RELEVANT PREVIOUS YEAR, I.E., THE FINANCIAL YEAR 1996-97, ON MAKING PAYMENT S UNDER ATS. 22 HE FURTHER CONFIRMS OF HAVING RETAINED POSSESSION O F THE PROPERTY RIGHT UP TO ITS SALE IN THE MONTH OF APRIL, 2005, RECEIVING RS. 3.9 0 CRORES IN RESPECT OF THE ASSESSEE'S SHARE (51%) IN THE LAND UNDER REFERENCE ADMEASURING 4850 SQ. YDS. (THE TOTAL AMOUNT RECEIVED THOUGH IS ADMITTEDLY RS. 4.40 CRORES, THE BALANCE RS. 50 LACS HAVING BEEN RECEIVED INDIRECTLY FROM THE BUYER-RA, I.E., THROUG H THE VENDOR-ASSESSEE, WHO THUS GETS TO RETAIN ONLY RS. 50 LACS). THOUGH IT IS QUIZZICAL TH AT TWO SEPARATE SALE DEEDS SHOULD BE OR WERE EXECUTED FOR THE TRANSFER OF THE UNDIVIDED SHA RES IN THE SAME PIECE OF LAND, I.E., FOR THE SALE OF THE ASSESSEE'S SHARE AND THAT OF THE CO -OWNERS, THE MEMBERS OF THE VYAS FAMILY (WHOSE SHARES ARE ALSO SEPARATELY DEFINED), THE FAC T OR POSITION QUA POSSESSION IS UNAMBIGUOUSLY STATED BY HIM. HE WAS ALSO QUESTIONED WITH REGARD TO THE LAND GIVEN ON LEASE TO M/S. HUSSAIN TRAVELS; M/S. SARASWATI STEELS; AND M/S. NON-KINGS HOTEL, RENT FROM WHOM IS STATED TO HAVE BEEN RECEIVED AND RETURNED BY THE ASSESSEE. HE EXPRESSED HIS IGNORANCE, STATING THAT HE WAS NOT AWARE OF THESE TENANTS NOR HAD ANY CONNE CTION WITH THEM (IN ANSWER TO QUESTION NO. 9). THE ASSESSEE'S CONTENTION OF HAVIN G BROUGHT THE INFIRMITY/S IN THE DIRECTORS STATEMENT (DATED 30/12/2008) TO THE NOTI CE OF THE LD. CIT(A), WHO THOUGH HAS CHOSEN TO IGNORE THE SAME, IS TO NO AVAIL AS, AS AL READY CLARIFIED, THERE IS NO OTHER LAND BELONGING TO THE ASSESSEE AT PARK LANE, SECUNDERABA D, MUCH LESS ONE WHICH IS TRANSFERRED (OR AGREED TO BE TRANSFERRED) TO RTC, SO THAT EVEN ALLOWING FOR SOME DISCREPANCIES, HE WAS ONLY SPEAKING QUA THE ASSESSEES LAND. IN FACT, THE ASSESSEE ALSO OBJ ECTS TO HIS STATING OF THE ASSESSEE AS SHARAD B. PATTI (HUF ) (WHICH COULD BE FOR THE REASON THAT THE ASSESSEE BECAME THE OWNER BY VIRTUE OF THE SETTLEME NT OF THE PROPERTY UNDER REFERENCE BY HIS GRAND-FATHER, SHRI PANNA LAL BANSI LAL, UNDER T WO GIFT DEEDS), STATING THAT THE LAND SOLD BY HIM IS IN HIS INDIVIDUAL CAPACITY. THE POIN T TO BE BORNE IN MIND, AS ALSO CLARIFIED DURING HEARING, IS THAT NEITHER THE ASSESSEES STAT US NOR THE MEASUREMENT OF LAND IS IN DISPUTE, OR FOR WHICH THE SAID STATEMENT IS BEING R ELIED UPON. ONCE THE IDENTITY OF THE LAND IS THAT OF THE ASSESSEE, AS THE READING OF THE FULL STATEMENT MAKES IRRESISTIBLY AND ABUNDANTLY CLEAR, THE ASSESSEE'S OBJECTIONS ARE OF NO MOMENT. IN FACT, ANY DOUBT, WHERE VALID, WOULD NECESSARILY REQUIRE RESTORATION BACK F OR THE PURPOSE. THE ASSESSEE'S 23 OBJECTIONS TO THE SAID STATEMENT OF THE DIRECTOR ST AND LISTED AT PARA 9 OF THE ASSESSMENT ORDER, AND HAVE BEEN DEALT WITH BY BOTH THE AUTHORI TIES BELOW, AND ALSO BY US ELSEWHERE IN THIS ORDER. THE ASSESSEE, AS ALSO AFORE-NOTED, WAS ALSO ALLOWED ADEQUATE OPPORTUNITY TO REBUT THE SAID STATEMENT BY BOTH THE AUTHORITIES BE LOW, WITH THE LD. CIT(A) OBSERVING THAT THE APPELLANT DID NOT ASK FOR ANY CROSS-EXAMINATION , BEING CONTENT TO FILE HIS OBJECTIONS, WHICH, HOWEVER, WERE FOUND BY HIM AS TO NO EFFECT O R AVAIL; THE EVIDENCES FURNISHED BY THE ASSESSEE IN THIS REGARD BEING MERELY SELF-SERVI NG IN NATURE, PROVIDING NO DEFINITE EVIDENCE AS REGARDS POSSESSION, SO THAT THE SAME WE RE DISMISSED BY HIM. IT IS THIS FINDING BY HIM THAT THE ASSESSEE WAS REQUIRED TO DISLODGE I N THE APPELLATE PROCEEDINGS BEFORE US. THE SAID MATERIAL, A SAMPLE ON WHICH STANDS ALSO RE PRODUCED BY THE LD. CIT(A) AS A PART OF HIS ORDER (STATING OF THE OTHER LETTERS AS BEING SIMILAR), REQUISITIONED DURING HEARING, STANDS EXAMINED BY US TO FIND OURSELVES IN TOTAL AG REEMENT WITH THE FINDINGS OF THE AUTHORITIES BELOW. IT WOULD BE RELEVANT TO MENTION THE DETAILS THEREOF, WHICH ARE AS UNDER:- NAME OF THE TENANT/ LESSEE PERIOD OF LEASE PURPOSE RENT EVIDENCE/S 1.HUSSAIN TRAVELS 2 MONTHS (01/3/ TO 30/04/04) PARKING OF CARS RS. 3,000/- PER MONTH CONFIRMATION LETTER/RECEIPT 2.SARASWATI STEELS 3 DAYS (MAY 15-17, 2004) STORING MATERIAL RS. 500/- (LUMP SUM) ---DO--- 3.NON-KINGS HOTELS 7 DAYS (01/06/04 TO 0 7/06/04 ) PARKING OF CARS RS. 6,000/- LUMP SUM ---DO--- THE SAME, IN FACT, GIVES RISE TO MORE QUESTIONS THA N IT ANSWERS. STORING OF MATERIAL AND PARKING OF CARS ARE REGULAR FEATURES OF THE BUS INESSES OF THESE PERSONS, TO WHOM THE LAND HAS BEEN GIVEN ON LICENSE. HOW IS IT THAT ALL OF THEM, AND AT THE SAME TIME, REQUIRED THE ASSESSEES OPEN, UNTENANTED LAND (AND WHICH HAS BEEN SO FOR DECADES) FOR SUCH A REGULAR PURPOSE OF THEIR ESTABLISHMENTS, HAVING ADM ITTEDLY NEVER REQUIRED EVER BEFORE OR AFTER THE SAID PERIOD. IN FACT, IF ANYTHING, IT ONL Y SHOWS THAT THE ASSESSEE HAS NO EVIDENCE, 24 NOT TO SPEAK OF CREDIBLE MATERIAL, TO PROVE OR TO E XHIBIT ITS CLAIMS. HE WANTS US TO BELIEVE THAT WHILE VENDOR PAID IT IN CRORES, ALSO PAYING TH E TENANTS TO GET THE PREMISES IN THEIR OCCUPATION VACATED, YET DID NOT TAKE POSSESSION OF THE OPEN, UNTENANTED LAND. FURTHER, THAT SOON AFTER THE FIRST APPELLATE AUTHORITY CONFIRMING THE ASSESSMENT OF THE CAPITAL GAINS UNDER THE ATS DATED 16-05-1996 IN HIS HANDS, AND TH E MATTER WAS PUT BY HIM IN THE APPELLATE PROCESS BEFORE THE SECOND APPELLATE AUTHO RITY, HE WAS, AS IF OUT OF THE BLUE, APPROACHED, ONE AFTER THE OTHER, BY NOT ONE BUT THR EE PERSONS, HAVING THEIR ESTABLISHMENTS (IN THE VICINITY) SINCE LONG FOR USE OF HIS VACANT LAND FOR THEIR REGULAR BUSINESS PURPOSES, THOUGH FOR EXTREMELY SHORT PERIODS OF TIME, AND WHI CH COINCIDENTLY SYNCHRONIZED CHRONOLOGICALLY. AND HE, THOUGH WAS FACING LEGAL DI SPUTE SINCE (AT LEAST) 1982 WITH ONE OF HIS TENANTS (BPCL), BESIDES ONLY AWARE THAT THE OTH ER TENANTS HAD TO BE PAID TO GET THE PREMISES VACATED OF THEIR OCCUPATION (FOR WHICH RIG HT WAS GRANTED TO THE VENDEE), WITHOUT DEMUR, WITHOUT INFORMING THE OTHER CO-OWNERS AS WEL L AS THE VENDEE, AND WITHOUT ANY SECURITY, ALLOWED THEM TO TAKE PHYSICAL POSSESSION OF THE LAND, AND WHICH THOUGH FOR REGULAR, RECURRING PURPOSES, INEXPLICABLY DID NOT S URFACE EVER BEFORE OR AFTER. THE STORY EXTENDS OUR INCREDULITY TO THE EXTREME, AND IN OUR VIEW HAS BEEN RIGHTLY CONSIDERED AS AN AFTER-THOUGHT OR A COVER-UP BY THE A.O., AND AS SEL F-SERVING BY THE LD. CIT(A). THE PERSONS GIVING THE CONFIRMATORY LETTERS WERE NOT PR ODUCED BEFORE EITHER AUTHORITY; IN FACT, THE SAID LETTERS, SAID TO CONSTITUTE ADDITIONAL EV IDENCES, WERE NOT EVEN PLACED ON RECORD BY THE ASSESSEE IN THE FIRST INSTANCE, AND FORM PAR T OF RECORD ONLY ON BEING REQUISITIONED DURING HEARING. THE TAXING AUTHORITIES ARE NOT SUPP OSED TO LOOK AT THE DOCUMENTS BEFORE THEM WITH BLINKERS ON THEIR EYES, WITHOUT REGARD TO THE CONTEXT AND THE FACTS AND CIRCUMSTANCES OF THE CASE, AND HAVE RIGHTLY REJECTE D THE SAID EVIDENCES. IN FACT, EVEN IF THE ASSESSEE HAD, WITHOUT THE KNOWLEDGE OF THE VENDEE, ALLOWED TEMPORARY POSSESSION OF THE PROPERTY, TO WHICH HE MAY HAVE HAD ACCESS ON ACCOUN T OF GOOD FAITH OR RELATIONS WITH THE VENDEE (WHICH THOUGH GIVEN THE STATE OF AFFAIRS AND OF SEVERAL CO-OWNERS IS VERY IMPROBABLE), THAT WOULD NOT IN ANY MANNER DETRACT F ROM THE FACT THAT THE LEGAL AND PHYSICAL (TO THE EXTENT ADMISSIBLE) POSSESSION OF T HE LAND WAS WITH THE VENDEE AFTER AT 25 LEAST NOVEMBER, 1996, UP TO THE TIME OF ITS SALE IN APRIL, 2005, AS UNEQUIVOCALLY CLARIFIED BY IT THROUGH ITS DIRECTOR SHRI M. KISHAN RAO IN TH E COURSE OF ASSESSMENT PROCEEDINGS. APPROVAL OF THE ATS UNDER THE ACT 3.7 THEN, IT IS SAID THAT THE POSSESSION COULD NOT BE GIVEN DUE TO THE OPERATION OF CHAPTER XXC OF THE ACT. NO RULE 20C, AS CONTENDED BY THE LD. AR DURING HEARING, HAS BEEN FOUND BY US ON THE STATUTE BOOK. HOWEVER, DEL IVERY OR TAKING OF THE POSSESSION IS A MATTER OF FACT, TO BE DECIDED ON THE BASIS OF THE F INDING (S) OF FACT IN THIS REGARD. THE LAW ONLY LAYS DOWN THE MANNER AND PROCEDURE BY WHICH TH E TRANSFER OF IMMOVABLE PROPERTY (WHERE QUALIFIED, SO THAT THE PROVISIONS OF THIS CH APTER ARE ATTRACTED, WHICH IS STATED TO BE SO IN THE INSTANT CASE) IS TO BE EFFECTED, I.E., BY ENTERING INTO AN AGREEMENT FOR TRANSFER IN WRITING BETWEEN THE PARTIES (I.E., THE VENDOR AND V ENDEE) FOUR MONTHS PRIOR TO THE INTENDED DATE OF TRANSFER, INFORMING THE CENTRAL GO VERNMENT (IN THE APPROPRIATE AUTHORITY) OF THE SAME. IT DOES NOT THUS BAR THE P ARTIES FROM ENTERING INTO AN AGREEMENT OR BARS TAKING POSSESSION UNDER SAID AGREEMENT. IN FACT, THE PROVISIONS OF THE CHAPTER, VIZ. SECTION 269UD(1A), 269UE(3), MAKE IT ABUNDANTLY CLE AR THAT THE POSSESSION OF THE PROPERTY COULD BE WITH A PERSON OTHER THAN THE OWNE R OR THE TRANSFEROR. IN FACT, THE IMPUGNED TRANSFER, AS EFFECTED UNDER ATS DATED 16-0 5-1996, SATISFIES ALL THE STATED REQUIREMENTS, EXCEPT, AS STATED, QUA INFORMING THE APPROPRIATE AUTHORITY. THE ASSESSEE' S OBJECTION IS APPARENTLY NOT UNDERSTANDABLE INASMUCH AS HE HAS RECEIVED PAYMENTS (ACTING) UNDER THE SAID AGREEMENT, AND WAS REQUIRED TO MOVE AN APPLICATION UNDER SAID CHAPTER BY LAW; IN FACT, ALSO CONTRACTUALLY OBLIGED TO DO SO. THAT IS, WHEN THE ASSESSEE HIMSELF CHOOSES NOT TO ADHERE TO THE LAW, HOW COULD IT CLAI M OF BEING PREVENTED BY IT (LAW) IN PERFORMING HIS PART OF THE CONTRACT, I.E., ALLOWING POSSESSION, WHICH, AS CLARIFIED, IS A MATTER OF FACT, TO BE DETERMINED ON A HOST OF FACTS , INCLUDING THE INTENTION AND CONDUCT OF THE PARTIES. WE DO OBSERVE THAT CLAUSE 5 OF THE AGR EEMENT PROVIDES FOR THIS ASPECT, OBLIGING THE PARTIES TO COMPLY WITH AND FULFILL THE CONDITIONS AS REQUIRED U/S. 269UC AND 26 OTHER APPLICABLE PROVISIONS (OF THE CHAPTER) OF THE ACT. IT ALSO CONTEMPLATES THE SITUATION OF THE APPROPRIATE AUTHORITY REFUSING TO GRANT CLEA RANCE AND ORDERING ACQUISITION OF THE SCHEDULED PROPERTY, IN WHICH CASE THE VENDOR SHALL BE LIABLE TO REFUND ALL THE AMOUNTS RECEIVED UNDER THE CONTRACT ALONG WITH INTEREST @ 1 2% P.A. TO THE VENDEE-PURCHASER. THIS BECOMES, HOWEVER, A THEORETICAL OR HYPOTHETICAL POS SIBILITY WHERE ADMITTEDLY NO APPLICATION UNDER THE CHAPTER HAS BEEN MOVED BY EIT HER PARTY (TO THE TRANSACTION); THERE BEING NOTHING ON RECORD TO SUGGEST OTHERWISE; THE A SSESSEE BEING RATHER SPECIFICALLY REQUIRED BY THE BENCH DURING HEARING TO FURNISH A C OPY OF THE REQUISITE APPLICATION. THERE IS THUS NO QUESTION OF THE CENTRAL GOVERNMENT REFUS ING THE CLEARANCE AND THE AMOUNT RECEIVED BECOMING LIABLE TO BE REFUNDED TO THE PURC HASER. SO, HOWEVER, IT CANNOT BE DENIED THAT THERE IS NO ESTOPPEL AGAINST LAW, AND N ON-APPLICATION BY EITHER PARTY OR EVEN NON-PROVISION WITH REGARD TO IT IN THE AGREEMENT (I .E., THE ATS DATED 16/5/1996), WOULD NOT OPERATE TO STALL OR CEASE THE OPERATION OF LAW, WHICH SHALL IN ANY CASE OBTAIN. THE SAID CHAPTER XX-C WAS ON THE STATUTE BOOK UP TO 30-06-20 02 (SEE SECTION 269UP), SO THAT IT IS DEFINITELY IN FORCE AND, THUS, APPLICABLE TO THE TR ANSFERS EFFECTED DURING THE RELEVANT PREVIOUS YEAR, BEING THE FINANCIAL YEAR 1996-97. NO W, THEREFORE, THE CONSEQUENCE OF NON- INFORMING THE APPROPRIATE AUTHORITY AND, THUS, NON- OBSERVING THE PROCEDURE PRESCRIBED UNDER THE SAID CHAPTER SHALL HAVE TO BE SEEN, AS TH E SAME SHALL FOLLOW OR COULD NOT BE SAID TO BE NOT AN EMINENT POSSIBILITY, AT LEAST DURING T HE RELEVANT YEAR, IF NOT EVEN SUBSEQUENT THERETO. WE HAVE PERUSED THE ENTIRE CHAPTER, PROVIS ION BY PROVISION. THE ONLY CONSEQUENCE OF NOT FOLLOWING THE REQUIREMENTS OF TH E SAID CHAPTER, OR OF HAVING ACTED IN DISREGARD TO IT; ANY PENALTY THAT THE LAW MAY HAVE PRESCRIBED (WHICH THOUGH WOULD BE A SUBJECT MATTER OF CHAPTER XXI OF THE ACT) APART, IS THAT THE CENTRAL GOVT., ACTING THROUGH THE APPROPRIATE AUTHORITY (AS DEFINED U/S. 269UA(2) OF THE ACT) RETAINS THE RIGHT TO ACQUIRE THE SAID PROPERTY BY PAYING THE PROPOSED TRANSFEROR THE APPARENT CONSIDERATION, I.E., AS STATED IN THE AGREEMENT TO SELL. AS SUCH, THUS, ALL THAT COULD HAPPEN, WHICH IS ONLY THE OUTCOME THAT MAY HAVE OCCURRED WHERE THE PRESCRIBED PROCEDURE HAD BEEN FOLLOWED, IS THAT THE CENTRAL GOVERNMENT RETAINS THE RIGHT TO PU RCHASE THE IMMOVABLE PROPERTY UNDER REFERENCE AT THE SAME PRICE AS AGREED TO BETWEEN TH E PARTIES. ALL THAT THUS TRANSPIRES, IN 27 CASE THE APPROPRIATE AUTHORITY, ON A CONSIDERATION OF THE APPLICATION RECEIVED BY IT CONSIDERS THE STATED CONSIDERATION (TERMED APPAREN T CONSIDERATION) AS INADEQUATE OR BELOW PAR AND DECIDES (WHICH IS THROUGH A FORMAL OR DER) TO ACQUIRE THE PROPERTY (WHICH OF COURSE IS PRECEDED BY HEARING THE INTERESTED PARTIE S) IS A SUBSTITUTION OF THE TRANSFEREE, INASMUCH AS THE PROPERTY VESTS WITH THE CENTRAL GOV T., WHICH IS OBLIGED TO PAY THE STATED CONSIDERATION (TO THE PARTIES ENTITLED THERETO) WIT HIN ONE MONTH THEREOF (I.E., OF SUCH VESTING). THE TRANSFERORRESPONDENT OF COURSE WOULD BE LIABLE TO REFUND THE AMOUNT ALREADY RECEIVED FROM THE INTENDED TRANSFEREE. THE RIGHTS OF THE TRANSFEROR ARE THUS TOTALLY PROTECTED, WITH IN FACT THE LAW SPECIFICALLY PROVID ING IMMUNITY TO IT AGAINST ANY CLAIMS BY OR ON BEHALF OF THE TRANSFEREE. THUS, WHETHER THE A PPLICATION UNDER CHAPTER XX-C WAS MOVED OR NOT, WHERE CLEARANCE THERE-UNDER IS NOT OB TAINED, IT WOULD ADVERSELY IMPACT ONLY THE TRANSFEREE(S); THE TRANSFEROR IN ANY CASE BEING ENTITLED BY LAW TO THE STATED CONSIDERATION. THE TRANSFER IS THUS COMPLETE QUA THE TRANSFEROR, THOUGH CANNOT BE SO SAID QUA THE TRANSFEREE. IN FACT, THE AGREEMENT HAVING BEEN EXECUTED IN MAY, 1996, AND ALSO ACTED IN THE MAIN DURING THE FINANCIAL YEAR 1996-97 , WHEREAT THE SAID CHAPTER WAS IN FORCE, THE SAME (CHAPTER XX-C) CLEARLY APPLIES TO T HE TRANSACTION, AND CAN BE INVOKED ANY TIME EVEN SUBSEQUENTLY. THE UNCERTAINTY OR THE POSS IBILITY OF THE ASSESSEE BEING LIABLE TO REFUND THE AMOUNT RECEIVED FROM THE PURCHASER-VENDE E (RTC), WHICH POSSIBILITY THUS EXISTS THEORETICALLY EVEN TO DATE, IS MATCHED BY A STATUTORY RIGHT TO AN EQUAL AMOUNT FROM THE CENTRAL GOVT. AND, THUS, WOULD BE OF NO AVAIL, I.E., AS FAR AS THE TRANSFEROR IS CONCERNED. THE ASSESSEETRANSFERORS OBJECTIONS IN THIS REGARD THUS FAIL. POSSESSION: OTHER ARGUMENTS 3.8 THE ASSESSEE'S NEXT ARGUMENT IS THAT THE FAC T THAT NO POSSESSION WAS GIVEN BY IT (VENDORS) TO RTC PURSUANT TO THE ATS DATED 16-05-19 96, BUT ONLY SUBSEQUENTLY IN 2005 TO THE BUYERRA ON EXECUTION OF THE SALE DEED DATED 08-4-2005 (PB PAGE 71-94), IS BORNE OUT BY THE SAID DEED, AND TOWARD WHICH REFERENCE WA S MADE BY THE LD. AR TO CLAUSES 17 AND 18 OF THE SAID DEED, WHICH READ AS UNDER:- 28 1 7. THAT THE SAID AGREEMENT HOLDER WHO IS ALSO THE TENA NT IN RESPECT OF A PORTION OF THE SCHEDULE PROPERTY ADMEASURING 500 SQ. YARDS HEREBY HANDOVER POSSESSION OF THE SAID 500 SQ. YARDS TO TH E SAID PURCHASER . 18. THAT SUBJECT TO THE FOREGOING, THE SAID VENDOR HAS DELIVERED ACTUAL PHYSICAL POSSESSION OF THE SAID SCHEDULE PROPERTY T O THE SAID PURCHASER TODAY . HOW COULD, WE WONDER, A DOCUMENT EXECUTED YEARS LAT ER THROW LIGHT ON THE FACTUAL POSITION OBTAINING DURING THE PRECEDING TEN YEARS, AND WHICH IN ANY CASE CANNOT BE DE HORS THE CONDUCT OF THE PARTIES OVER THE SAID PERIOD OF TIME. THIS IS MORE SO AS THE SAID POSITION IS CONTRARY TO THE CONSISTENT STAND OF THE VENDEERTC AND THE MATERIAL ON RECORD. HAVING NOW RECEIVED THE ENTIRE AMOUNT DUE TO IT UNDER THE SALE TO A NEW BUYER, IT DOES NOT MATTER WHETHER THE VENDEE DELIVERS BACK TH E POSSESSION TO THE VENDOR OR TO THE SAID BUYER. AS SUCH, STATING THEREIN THAT POSSESSIO N (OF THE ENTIRE SCHEDULE PROPERTY, OTHER THAN THE 500 SQ. YARDS ADMITTEDLY IN THE POSSESSION OF THE VENDEE, AND NOT AS A TENANT BUT IN ITS OWN RIGHT PURSUANT TO ATS DATED 16-05-1996) HAS BEEN GIVEN BY THE VENDOR- ASSESSEE IS OF LITTLE CONSEQUENCE THE FACT REMAIN S THAT THE PAYMENT STANDS GIVEN AND THE POSSESSION TAKEN (BY THE PURCHASERRA). IF ANYTHING , IT ONLY SHOWS THAT TWO GO SIDE BY SIDE OR HAND IN HAND, AND WHERE THE AGREEMENT IS SI LENT, AS THE ATS DATED 16-05-1996 IN THE INSTANT CASE, THE SAME IS A NORMAL AND REASONAB LE PRESUMPTION. WHAT ELSE IS THE PAYMENT BEING MADE FOR, IN WHICH CASE EVEN THE VEND EE SHOULD NOT STOPPED PAYING THE RENT OR BE LIABLE TO CONSEQUENCES FOR DOING SO ? WE HAVE ALREADY CLARIFIED THAT SECTION 2(47)(V) ONLY POSTULATES ALLOWING OF POSSESSION, SO THAT WHERE THE TRANSFEROR HAS NO OBJECTION THERETO, TAKING POSSESSION AS THE CIRCUMS TANCES ADMIT OF BY THE TRANSFEREE WOULD MAKE THE SECTION APPLICABLE. RATHER, A CLOSE EXAMINATION OF BOTH THE SALE DEED AS WELL AS THE FACTS OF THE CASE CONFIRM BEYOND DOUBT THAT RTC WAS THE HOLDER OF SUBSTANTIVE RIGHTS. THERE IS ABUNDANT REFERENCE TO ATS DATED 16 -05-1996 AND THE PAYMENTS MADE THERE-UNDER IN THE SALE DEED. WHY? WHAT FOR, WE MAY ASK, IF THE AGREEMENT HAS FAILED, LEADING TO NO SUBSTANTIVE RIGHTS IN THE LAND WITH R TC? THE ENTIRE SALE CONSIDERATION, SAVE THE AMOUNT APPROXIMATING THAT YET TO BE PAID TO THE VENDOR, IS PAID TO THE VENDEERTC. 29 WHY? IF THE AGREEMENT HAD FAILED FOR NOT MAKING PAY MENT, AS STATED THEREIN, IT WOULD NOT LEAD TO ANY RIGHT IN THE LAND BUT AT BEST ONLY A CL AIM AGAINST THE SELLER-VENDOR, AND WHICH WOULD BE INDEPENDENT AND DE HORS ANY SUBSEQUENT CONTRACT OF TRANSFER OF LAND BY HIM . IN FACT, THE ONLY RECOURSE AVAILABLE TO IT IS UNDER TH E SAID AGREEMENT, WHICH PROVIDES FOR AN AUTOMATIC TERMINATION, WHILE THE FACT IS THAT IT IS IN FORCE, AND ALL THE RIGHTS (TERMED AGREEMENT RIGHTS) ENJOYED BY THE VENDEE ARE ONLY THOSE AS DERIVED THERE-FROM AND ACCRUED TO IT BY ACTING IN ACCORDANCE THEREWITH. TH E SAID RIGHTS, ESSENTIALLY RIGHTS IN THE LAND ITSELF, BEING IN THE CAPITAL FIELD, BY ITSELF CONSTITUTE A CAPITAL ASSET. AS SUCH, EVEN IF WE SET ASIDE OR OVERLOOK THE ISSUE OF POSSESSION FO R THE TIME BEING OR FOR THE SAKE OF ARGUMENT - THOUGH ON WHICH WE HAVE ISSUED A CLEAR F INDING CONFIRMING THE TAKING OF POSSESSION AND, IN ANY CASE, ALLOWANCE OF POSSESSIO N BY THE ASSESSEE, IT IS THIS CAPITAL ASSET THAT STOOD TRANSFERRED BY THE ASSESSEE TO THE VENDEE-RTC VIDE ATS DATED 16-05- 1996, AND WHICH IN TURN STANDS TRANSFERRED BY IT PE R THE SALE DEED DATED 08-04-2005, RETURNING THE CAPITAL GAINS THEREON, EVEN AS ADMITT ED BY IT THROUGH ITS DIRECTORS DEPOSITION DATED 30-12-2008 DURING THE ASSESSMENT PROCEEDINGS. THE ONLY ISSUE, THEREFORE, PROCEEDING FURTHER ON THESE LINES, WOULD BE THE VAL UATION OF THIS BUNDLE OF RIGHTS, TERMED AGREEMENT RIGHTS IN THE SALE DEED, BEING (SAY) SH ORT OF THE TRANSFER OF THE IMMOVABLE PROPERTY (IP) ITSELF, SO THAT THE ENTIRE COST OF TH E IP CANNOT BE ALLOWED TO BE SET OFF IN COMPUTING THE CAPITAL GAINS ON THE TRANSFER OF THIS CAPITAL ASSET AND, FURTHER, WHICH COST WOULD ONLY BE THE CONSIDERATION FOR ITS TRANSFER IN THE HANDS OF THE ASSESSEE. HOWEVER, AS THE ASSESSEE DOES NOT GET ANYTHING WORTH THE NAME, DESPITE LAPSE OF SEVERAL YEARS, I.E., OVER AND ABOVE THE CONSIDERATION IT WAS ENTITLED TO FOR THE INTENDED TRANSFER OF LAND (WHICH FOR THE SAKE OF ARGUMENT - RESULTS ONLY IN TRANSFER OF SOME RIGHTS THEREIN), IT IS CLEAR THAT THE CONSIDERATION FOR THE TRANSFER OF LA ND AS AGREED TO IS THE SAME AS THAT FOR THE TRANSFER OF THE SAID AGREEMENT RIGHTS. IN FACT, E VEN IF A SOMEWHAT HIGHER DIFFERENCE THAN THE MERE RS. 83,600/- WAS TO BE PAID TO THE ASSESSE E UNDER THE SALE DEED, DISCOUNTING THE SAME FOR LONG TIME LAG OF 8 YEARS IN THE ACTUAL P AYMENT, WOULD AMOUNT TO NOTHING. IN FACT, IN OUR CLEAR OPINION, RATHER THAN OF BEING OF ASSISTANCE, THE SAID DOCUMENT, I.E., THE SALE DEED DATED 08/4/2005, EACH OF WHOSE PROVISIONS HAVE BEEN GONE THROUGH BY US TO 30 FIND THEM AS FINDING REFLECTION IN THE ATS DATED 16 -05-1996, COMPLETELY INDICTS THE ASSESSEE'S CASE, ESTABLISHING THE PRIMACY OF THE VE NDEE OVER THE LAND UNDER REFERENCE. ON THE CONTRARY, IT IS THE ASSESSEE-VENDOR WHO COULD B E SAID TO HAVE BEEN DIVESTED OF HIS SUBSTANTIVE RIGHTS IN THE LAND AND HOLDING ONLY SOM E AGREEMENT RIGHTS, FOR WHICH HE RECEIVES RS. 50 LACS ON EXECUTING THE SALE DEED. TH IS NOT ONLY CORRESPONDS DIRECTLY WITH THE FINDING BY THE AUTHORITIES BELOW IN THIS REGARD , BUT IS THE IRRESISTIBLE CONCLUSION, IF WE ARE NOT TO HOLD THAT THE ASSESSEE GIFTED NEARLY RS. 193 LACS, I.E., THE AMOUNT RECEIVED BY THE VENDEE IN EXCESS OF HIS DUES UNDER THE ATS DATE D 16/5/1996, TO THE ASSESSEE-VENDOR PURSUANT TO THE SALE DEED DATED 08/4/2005! OR, EQUI VALENTLY, OF THE ASSESSEE HAVING SHORT SOLD HIS PROPERTY TO THE BUYER (RA) BY THE SAID AMO UNT, BEING THE ADMITTED APPRECIATION IN THE PRICE OF THE LAND OVER THE INTERVENING NINE YEAR PERIOD, I.E., GIFTED A SIMILAR AMOUNT TO THE SAID BUYER! OTHER OBJECTIONS 3.9 THE DIRECTOR, SH. KISHAN RAO, WAS ALSO QUES TIONED IN RESPECT OF THE PAYMENT OF MUNICIPAL TAX AND NON-AGRICULTURAL TAX BY THE A.O., WHICH CONSTITUTES THE ASSESSEES NEXT OBJECTION, ALSO CLAIMING TO HAVE RECOVERED THE INCR EASED RENT DIRECTLY FROM BPCL. FIRSTLY, THERE IS NOTHING ON RECORD TO SHOW THE PAYMENT OF T HE SAID TAXES OR THE RECEIPT OF RENT FROM BPCL. SECONDLY, QUA BOTH THESE ASPECTS, RTC HAS STATED THAT IT BEING NO T ON THE RECORDS OF THE MUNICIPAL AUTHORITIES OR THE LEGAL O WNER OF THE PROPERTY, THE SAME WOULD ONLY BE PAID AND COLLECTED BY THE VENDORS. HOW CAN THE SAME BE FAULTED ? THE VENDORS BEING ON THE RECORD OF THE MUNICIPAL CORPORATION/AU THORITIES, THE LEVIES WOULD ONLY BE DEMANDED FROM THEM. LIKEWISE, BPCL WOULD ONLY PAY T HE REGISTERED OWNER FROM WHOM IT HAD RENTED THE PROPERTY. IN FACT EVEN THE ATS DA TED 16-05-1996 EXPLICITLY CLARIFIES THIS (REFER CLAUSE 12 THEREOF). THESE OBJECTIONS ARE THU S OF NO MOMENT. WE SHALL, NEXT, TAKE UP THE ASSESSEE'S OTHER OBJECT IONS. HE SAYS THAT THE STATEMENT OF THE DIRECTOR, SHRI M. KISHAN RAO, IS SELF-SERVIN G. WE HAVE, HOWEVER, FOUND JUST THE OPPOSITE, I.E., THE MATERIALS ADDUCED BY THE ASSESS EE TO BE SO, WHILE THE STATEMENT OF THE 31 DIRECTOR OF RTC TO BE IN CONFORMITY AND AGREEMENT W ITH ITS CONSISTENT STAND, NOT ONLY WITH REGARD TO POSSESSION, BUT THE ENTIRE TRANSACTI ON. NO ARGUMENT, MUCH LESS MATERIALS, IN SUPPORT OF THE SAID CONTENTION STANDS ADVANCED, WHI CH IN FACT WAS NOT PRESSED BEFORE US. SUMMING UP 3.10 THOUGH WE BELIEVE TO HAVE COVERED EVERY ASPECT OF THE CASE IN OUR ANALYSIS AND ADJUDICATION, IT MAY YET BE APPROPRIATE TO CAPSULE THE SAME AT ONE PLACE, WHICH IS HEREBY ATTEMPTED. THE FIRST ISSUE ARISING AND, THUS, TO BE DECIDED BY US WAS IF THE SUBJECT MATTER OF THE INSTANT APPEAL COULD BE SAID TO BE COVERED B Y THE TRIBUNALS ORDER IN THE CASE OF SH. SURESH VYAS AND OTHERS (IN ITA NOS. 598 TO 601/HYD. /2006 DATED 24/9/2009, PAPER- BOOK PG. NOS. 1-12), BEING THE JOINT CO-OWNERS OF T HE LAND UNDER REFERENCE (TO THE EXTENT OF 49%), WHO THOUGH HAD RATHER INEXPLICABLY TRANSFE RRED THEIR UNDIVIDED SHARE IN THE SAID LAND SEPARATELY TO THE SAME REGISTERED BUYER, M/S. REGENT ASSOCIATES (VIDE A SALE DEED DATED 08.4.2005); THE TRIBUNAL HAVING HELD OF THEM AS HAVING NOT TRANSFERRED THEIR SHARE IN THE LAND PURSUANT TO THE AGREEMENT TO SELL (ATS) DA TED 16.05.1996, WHICH ALSO APPEARS TO HAVE BEEN ENTERED SEPARATELY BY THEM VIDE ATS DATED 08.05.1996, WITH THE SAME VENDEE, I.E., M/S. REVATHI TOBACCO PVT. LTD. (RTC) (REFER Q UESTIONS NOS. 2,4 TO THE DIRECTOR, SH.KISHAN RAO ON 30/12/2008, AT PARA 12, PG. 4 OF T HE ASSESSMENT ORDER). BEING CO- OWNERS, A SIMILAR FINDING OUGHT RATHER TO BE A NATU RAL COROLLARY. HOWEVER, ON AN EXAMINATION OF FACTS, IT WAS FOUND TO BE NOT SO, WI TH THE TRIBUNAL HAVING IN FACT CONSIDERED AND ADJUDICATED THE ASSESSEES OWN CASE EARLIER; RA THER, PRIOR TO THAT IN THE CASE OF THE CO- OWNERS, AND ISSUED DIRECTIONS FOR COMPLIANCE, INCLU DING FOR DECIDING THE MATTER AFRESH (VIDE ORDER IN ITA NOS. 1216 & 1222/HYD./2003 DATED 24/8/2007). THE SAID ORDER WAS BINDING ON THE AUTHORITIES BELOW. NOT ONLY HAD THE REVENUE CONSIDERED THE SAME, INCLUDING THE DEPOSITION BY THE VENDEE THROUGH ITS DIRECTOR, ISSUING SPECIFIC FINDINGS AFTER ALLOWING OPPORTUNITY TO THE ASSESSEE TO REBUT THE S AME, WHICH THUS ARE REQUIRED TO BE EITHER CONFIRMED OR MODIFIED OR DISAPPROVED BY US, THEY HAD ALSO CONSIDERED THE GOVERNING AGREEMENT, I.E., THE ATS DATED 16.05.1996 AT LENGTH (REFER PARAS 21 & 22 OF THE 32 ASSESSMENT ORDER, WHICH ALSO FINDS REPRODUCTION IN THE APPELLATE ORDER), AND WHICH SURPRISINGLY HAD NOT BEEN CONSIDERED AND DELIBERATE D UPON AT ANY STAGE, INCLUDING BY THE TRIBUNAL IN THE CASE OF THE CO-OWNERS. RATHER, IT I S MOST SURPRISING AND INEXPLICABLE THAT THE TRIBUNALS ORDER DATED 24.8.2007 IN THE ASSESSE ES CASE WAS NOT MENTIONED OR REFERRED BEFORE THE TRIBUNAL AND, THUS, NOT CONSIDERED BY IT WHILE DISPOSING THE REVENUES APPEAL IN THE CASE OF CO-OWNERS IN SEPTEMBER, 2009. THE MA TTER, THEREFORE, WAS DEFINITELY AND DECIDEDLY NOT LIABLE TO BE TREATED AS COVERED BY TH E TRIBUNALS ORDER DATED 24/9/2009 (SUPRA), WHICH COULD AT BEST HAVE A PERSUASIVE VALU E (ALSO REFER PARA 3.3 OF THIS ORDER). COMING TO THE ATS DATED 16.05.1996, WHICH, INCLUDI NG THE CONDUCT OF THE PARTIES PURSUANT AND SUBSEQUENT THERETO, WOULD AND DOES FOR M THE BASIS OR EDIFICE OF OUR DECISION; THE LAW IN THE MATTER BEING TRITE. THAT I S, THAT A RIGHT TO SPECIFIC PERFORMANCE GIVES RIGHT TO OR CONSTITUTES A TRANSFER IN RESPE CT OF AN IMMOVABLE PROPERTY (IP) UNDER THE ACT (REFER S.2(47), INCLUDING SUB-CLAUSE (V) TH EREOF, REPRODUCED AT PARA 3.4 ABOVE). AS SUCH, WHAT IS TO BE SEEN IS IF THE POSSESSION HAS B EEN ALLOWED BY THE ASSESSEE TO RTC PURSUANT TO THE ATS DATED 16.05.1996. THE SAID DOCU MENT WAS, ON EXAMINATION, FOUND TO BE A VERY COMPREHENSIVE DOCUMENT, ENUMERATING EVERY ENCUMBRANCE, CLAIM OR PROPOSITION TO WHICH THE SUBJECT PROPERTY WAS SUBJE CT, SUITABLY PROFILING IT, AS WELL AS THE MANNER OF ITS ACQUISITION BY ITS PRESENT OWNERS I N SHORT, EVERY ASPECT OF THE TRANSACTION. EACH OF THE CO-OWNERS WAS THE ABSOLUTE OWNER OF HIS SHARE, AGAINST WHICH NO SEPARATE ENCUMBRANCE HAD BEEN CREATED BY HIM AND, WAS THUS F ULLY COMPETENT TO SELL THE SAME, WHICH WAS THUS NOT A LEASE-HOLD PROPERTY (CLAUSES 2 1, 23). CLAUSES 1 THROUGH 4 CONTAIN STIPULATIONS AS TO PAYMENT, WITH CLAUSE 24 PROVIDIN G THE MANNER OF COMPUTATION OF THE SALE CONSIDERATION. THE APPROVAL FROM THE INCOME TA X DEPARTMENT; THE TRANSACTION BEING ALSO SUBJECT TO CHAPTER XX-C OF THE ACT, AND FOR WH ICH BOTH THE PARTIES OBLIGED THEMSELVES, FORMS PART OF THE AGREEMENT (CLAUSE 5). CLAUSE 6 PRESCRIBES THE TIME PERIOD FOR EXECUTING AND REGISTERING THE SALE DEED, I.E., 30/11/1996, ALLOWING THUS A PERIOD OF NEARLY SIX MONTHS FOR THE PURPOSE, ALSO PROVIDING F OR WHO HAS TO BEAR ITS COST (CLAUSES 19, 24). TIME IS OF ESSENCE (CLAUSES 4, 6, 11 & 22), WI TH CONSEQUENCES LISTED FOR ANY DEFAULT BY THE VENDEE, WHILE GRANTING IT THE RIGHT TO SPECI FIC PERFORMANCE, I.E., EXECUTION AND 33 REGISTRATION OF SALE DEED, WHERE THE VENDORS FAILED TO PERFORM THEIR PART OF THE CONTRACT. FURTHER, THAT NO OTHER INFIRMITY OR ENCUMBRANCE ATT ENDS THE SUBJECT LAND (I.E., OTHER THAN THOSE LISTED) IS CATEGORICALLY AFFIRMED VIDE CLAUSE S 7, 8, 9 & 23, ALSO CONTAINING REFERENCE TO SOME SPECIFIC LEGAL AND FACTUAL INCIDENTS VIDE C LAUSES 20, 21 & 25. THE TENANCY OF BPCL IS DISCUSSED IN THE PREAMBLE TO THE DOCUMENT A S WELL AS IN CLAUSES 12, 14 TO 16. A ROAD WIDENING SCHEME, IMPACTING THE RIGHTS IN THE L AND, IS ALSO LISTED AT CLAUSE 13; THE RENT AND THE WRIT PETITION CONTESTING PROCEEDINGS INITIA TED IN RESPECT OF F.S.I. FORM THE SUBJECT MATTER OF CLAUSES 17 AND 18 RESPECTIVELY, PLACING T HE VENDEE IN THE SAME POSITION AS THAT ENJOYED BY THE VENDORS, INCLUDING THE RIGHT TO DEFE ND AND PROSECUTE. CLAUSE 22 PROVIDES FOR THE AUTOMATIC TERMINATION OF THE AGREEMENT WHER E IN SPITE PERFORMANCE AND WILLINGNESS ON THE PART OF THE VENDORS, THE VENDEE FAILS TO OR DEFAULTS ON ANY OF THE TERMS OF THE AGREEMENT, WHILE AT THE SAME ALSO ALLOWING I T A RIGHT TO SPECIFIC PERFORMANCE. THE AGREEMENT (ATS DATED 16/5/1996), WH ICH STANDS ACTED UPON, AND FORMS AS IT OUGHT TO THE BASIS OF A DECISION AS TO WHETHER THE IMPUGNED TRANSACTION CONSTITUTES A TRANSFER UNDER LAW, IS INEXPLICABLY FOUND TO BE N OT DISCUSSED EITHER IN THE APPELLATE ORDER DATED 06/2/2006 (SUPRA) OR THAT BY THE TRIBUNAL DAT ED 24/9/2009 (SUPRA) CONFIRMING IT IN THE CASE OF CO-OWNERS, SH. SURESH VYAS & FAMILY (BO TH ORDERS ON RECORD), WITH WE ALSO REPRODUCING AND HIGHLIGHTING THEIR RESPECTIVE PARTS /FINDINGS FOR READ REFERENCE/CLARITY, EVEN AS THE TRIBUNAL HAD ALSO ADJUDICATED THE ASSES SEES CASE EARLIER, ADMITTING ADDITIONAL EVIDENCES AND ISSUING SPECIFIC DIRECTIONS (VIDE ITS ORDER DATED 24/8/2007 SUPRA), WHICH HAD TO BE OBSERVED BY THE AUTHORITIES BELOW, AS IND EED WAS BY THEM IN THE SET ASIDE PROCEEDINGS. THE INSTANT CASE, THUS, COULD NOT BE S AID TO BE COVERED BY THE TRIBUNALS ORDER DATED 24/9/2009 (SUPRA) IN THE CASE OF SURESH VYAS & OTHERS (REFER PARAS 2.1 & 3.3 OF THIS ORDER). THE LAND UNDER REFERENCE (ADMEASURIN G 4850 SQ. YARDS) WAS FOUND TO BE COMPRISED OF THREE SEPARATE SEGMENTS, BEARING DIFFE RENT INCIDENTS; 1620 SQ. YDS. BEING TENANTED TO BPCL, AND THOUGH THE LEASE IN ITS RESPE CT HAD EXPIRED AS FAR BACK AS IN DECEMBER, 1981, THE SAME (OR PART THEREOF) CONTINUE S TO BE IN POSSESSION OF THE ERSTWHILE LESSEE, WITH THE MATTER BEING DISPUTED; 500 SQ. YAR DS TENANTED TO AND IN POSSESSION OF THE 34 VENDEE ITSELF; THE BALANCE 2730 SQ. YDS. BEING FREE , I.E., UNENCUMBERED IN ANY MANNER. SO, HOWEVER, IT MAY BE CLARIFIED THAT THE SAID ANALYSIS BY US WAS ONLY BY WAY OF AN EXPOSITION OF THE TRANSACTION, WHICH IS ONE, SINGLE TRANSACTIO N ENVISAGING THE ENTIRE LAND AS A SINGLE, COMPOSITE PROPERTY, SOLD AT A SINGLE RATE. THERE IS THUS NO SCOPE FOR ITS DIVISION OR SEGREGATION INTO PARTS. AN EXAMINATION OF THE ATS A S WELL AS THE CONDUCT OF THE PARTIES REVEALS THAT POSSESSION, AS ADMISSIBLE UNDER THE CI RCUMSTANCES, WAS MADE OVER AND, IN ANY CASE, ALLOWED TO BE SO; THE ASSESSEE RELINQUISH ING ALL HIS RIGHTS IN THE PROPERTY, SAVE THE RIGHT TO RECEIVE THE LAST INSTALLMENT UPON EXEC UTION OF THE SALE DEED, BEING STILL THE REGISTERED OWNER THEREOF, AND WHICH (LAST INSTALLME NT) WAS HELD UP ONLY FOR WANT OF THE SAME, I.E., THE EXECUTION AND REGISTRATION OF THE S ALE DEED, AND ONLY UPON WHICH THE VENDEE-BUYER WOULD BECOME THE LEGAL AND REGISTERED OWNER THEREOF, I.E., THE ENTIRE LAND, INCLUDING THE PART THEREOF IN POSSESSION OF BPCL, P HYSICAL POSSESSION OF WHICH WAS NEVER CONTEMPLATED. REFERENCE HERE IS DRAWN TO THE COMPRE HENSIVE DEFINITION OF THE TERM TRANSFER IN LAW, THE SCOPE OF WHICH IS VERY VAST (SEE S. 2(47) AT PARA 3.4, WITH PARTICULAR REFERENCE TO CLAUSES (I), (II), (V) AND (VI) THEREO F). NOBODY CAN PASS A TITLE BETTER THAN THAT HELD BY HIM, AND PHYSICAL OR LEGAL POSSESSION, AS T HE CASE MAY BE, WAS TAKEN. THE ADDITIONAL EVIDENCES ADDUCED BY THE ASSESSEE AND CO NSIDERED BY THE AUTHORITIES BELOW STAND ALSO DISCUSSED, FINDING THEM OF LITTLE CONSEQ UENCE (REFER PARAS 3.5 & 3.6 OF THIS ORDER). SURELY, THE LAST INSTALLMENT COULD NOT BE G IVEN BY THE VENDEE-RTC UNLESS THE VENDOR ALSO EXECUTED THE SALE DEED, THE REGISTRATIO N COST OF WHICH WAS IN ANY CASE TO BE BORNE BY THE VENDEE-BUYER. THERE WAS NO DISPUTE BET WEEN THE PARTIES TO THE ATS, I.E., THE VENDORS (THE ASSESSEE AND OTHER CO-OWNERS) AND THE VENDEE-COMPANY (RTC), MUCH LESS QUA POSSESSION, WHICH THE LATTER CLAIMED TO HAVE SECUR ED UPON PAYMENT, ALSO EVICTING THE OTHER TENANTS ON PAYMENT, DULY RECORDED IN ITS REGU LAR BOOKS OF ACCOUNT. THE AMOUNT PAID TO THE VENDORS, INCLUDING THE ASSESSEE, WAS NOT REC ALLED BY THE VENDEE AND NEITHER ANY NOTICE OF CANCELLATION OR TERMINATION OF THE AGREEM ENT MOVED BY THE ASSESSEE-VENDOR, WHO HAD ADMITTEDLY YET TO BE PAID A PART OF THE CON SIDERATION. THERE WAS NO TERMINATION OF THE RELEVANT AGREEMENT, AS VEHEMENTLY CONTENDED BEFORE US BY THE LD. AR, FORMING THE THRUST OF HIS ARGUMENTS/CASE, AND THE SAME CONTINUE D TO BE IN FORCE. IN FACT, ALL THE RIGHTS 35 SUBSEQUENTLY TRANSFERRED BY THE VENDEE PER THE SALE DEED, WHICH CONTAINS AMPLE REFERENCE TO THE ATS, WERE ONLY THOSE AS SECURED OR TRANSFERR ED TO IT PER THE ATS DATED 16/5/1996. PAYMENT OF THE FULL CONSIDERATION IS NOT A CONDITIO N PRECEDENT, AND ALL THAT IS NECESSARY IS A RIGHT IN ITS RESPECT, SO THAT IN THAT SENSE THE L IABILITY TO CAPITAL GAINS UNDER THE ACT ARISES ON THE BASIS OF ACCRUAL. THOUGH THIS IS TRITE LAW, REFERENCE IN THIS CONTEXT MAY ALSO BE PROFITABLY MADE TO THE DECISION BY THE TRIBUNAL IN THE CASE OF ITO V. INDRA R. SHETE (2012) 138 ITD 264 (MUMBAI). IN FACT, THE ENTIRE AMOUNT PA ID TO THE ASSESSEE-VENDOR WAS ADJUSTED AGAINST THE AMOUNT DUE TO IT ON THE EXECUT ION AND REGISTRATION OF THE SALE DEED, SO THAT IT WAS PAID ONLY THE BALANCE AMOUNT DUE TO IT UNDER THE ATS (RS. 49.164 LACS), APPROXIMATING IT TO RS. 50 LACS, AND WHICH EXCESS, WHICH AMOUNTS TO LESS THAN 2% OF THE AMOUNT OTHERWISE DUE, IS OF NO MOMENT, PARTICULARLY CONSIDERING THE CONSIDERABLE TIME GAP OBTAINING. CONTINUING FURTHER, EVEN IF FOR ARGU MENT SAKE CONSIDERED AS SHORT OF TRANSFER OF IP, THE SUBSTANTIAL RIGHTS, TERMED AGR EEMENT RIGHTS IN THE SALE DEED DATED 08/4/2005, TRANSFERRED BY THE VENDEE-RTC THEREBY NO T ONLY ESTABLISHES BEYOND ANY DOUBT ITS PRIMACY OVER THE LAND UNDER REFERENCE, BUT ALSO BY ITSELF CONSTITUTES A CAPITAL ASSET TRANSFERRED TO IT PER THE ATS DATED 16/5/1996, DULY ACTED UPON (REFER S. (47)). THE ONLY ISSUE IN THIS CASE WOULD BE ITS SALE CONSIDERATION AS ALSO COST (AS DISTINCT FROM THAT OF LAND PER SE ), WHICH, HOWEVER, WAS AGAIN FOUND TO BE AT PAR, SO THAT NO MODIFICATION IN THE CAPITAL GAINS AS COMPUTED IS CALLED FOR (REFER PARA 3.8 OF THIS ORDER). HERE IT MAY ALSO BE PERTINENT TO STA TE THAT THE REVENUE HAS ONLY BROUGHT THE SALE CONSIDERATION PER THE ATS TO TAX AS CAPITAL GAINS, AND NOT THE ADDITIONAL RS. 83,600/- RECEIVED BY THE ASSESSEE IN MARCH, 2005 BY VIRTUE O F THE SALE DEED DATED 08/4/2005. THE ASSSESSEES OTHER OBJECTIONS, DEALT WITH AT PARAS 3 .7 & 3.9 OF THIS ORDER, WERE AGAIN FOUND TO BE OF LITTLE OR NO CONSEQUENCE. FINALLY, WE MAY, BEFORE PARTING WITH TH IS ORDER, ALSO ADD, EVEN AS NO ARGUMENTS IN THIS RESPECT WERE ADVANCED BY THE ASSESSEE, THAT WE ARE ACUTELY AWARE OF THE ASSESSEE HAVING RETURNED THE IMPUGNED CAPITAL GAINS FOR AY 2 006-07. HOWEVER, THERE IS NO ESTOPPEL AGAINST LAW, AND THE INCOME, IT IS WELL-SE TTLED, IS TO BE AND, RATHER, CAN BE, BROUGHT TO TAX ONLY IN THE RIGHT YEAR, I.E., THE YE AR OF RECEIPT OR ACCRUAL WHICHEVER IS 36 EARLIER, WHICH IS ALL WHAT THE CONTROVERSY IN THE I NSTANT CASE IS ABOUT [REFER: SS. 4 & 5 R/W OF THE INCOME-TAX ACT, 1961; CIT V. BRITISH PAINTS INDIA LTD . (1991) 188 ITR 44 (SC)]. AT THE SAME TIME, WE CANNOT BE OBLIVIOUS TO THE FAC T THAT THERE CAN BE NO DOUBLE RECOVERY OF TAX, INCLUDING THE CONCOMITANT INTEREST. AS SUCH , EVEN THOUGH THIS ORDER IS APPEALABLE, SO THAT THE ISSUE CANNOT BE SAID TO HAVE ATTAINED F INALITY OR QUIETUS, WE DIRECT THE REVENUE TO, WHILE GIVING APPEAL-EFFECT TO THIS ORDER, ADJUS T THE AMOUNT OF DIFFERENTIAL DEMAND FOR AY 2006-07, I.E., THE REDUCTION IN THE DEMAND ON EX CLUDING THE IMPUGNED CAPITAL GAINS FROM THE TOTAL INCOME FOR THAT YEAR, I.E., TREAT TH E DEMAND (TO THAT EXTENT) AS PAID FOR THAT YEAR AS PAID IN RESPECT OF THE LIABILITY FOR THE CU RRENT YEAR (AY 1997-98). THE SAID ADJUSTMENT WOULD OF COURSE BE SUBJECT TO THE OUTCOM E OF ANY APPELLATE PROCEEDINGS TO WHICH THIS ORDER MAY BE SUBJECT, AND THE DEMAND FOR AY 2006-07 WOULD REVIVE TO THE EXTENT OF THE AMOUNT ADJUSTED IN CASE OF THE SAID I NCOME IS HELD AS LIABLE TO TAX FOR THAT YEAR. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 27.11.2012 SD/- SD/- (SAK TIJIT DEY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/- 27 TH NOVEMBER, 2012 COPY FORWARDED TO: 1. SHRI SHARAD B.PITTI, 6-3-648/2, MOTI BHAVAN, SOMAJ IGUDA, HYDERABAD 2. 3. 4 5. DY. COMMISSIONER OF INCOME-TAX, CIRCLE 16(3), HYD ERABAD COMMISSIONER OF INCOME-TAX(APPEALS)-V, HYDERABAD COMMISSIONER OF INCOME-TAX-IV, HYDERABAD DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD.
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