Case Law Details
The Commissioner of Income Tax (Appeals) so also the learned Tribunal upon perusal of the agreement in question found that the possession as contemplated in Section 53A of the Transfer of Property Act was in fact not handed over by the assessee to the developer. It has further been found that the agreement only permitted the development to be carried out by the said developer. It has been found that the entire control over the property was in fact with the assesee inasmuch as the licence to construct the property was also in the name of the assessee and the occupancy certificate was also given to the assessee. It was therefore found that the execution of the agreement could not amount to transfer as contemplated under Section 53A of the Transfer of Property Act.
HIGH COURT OF BOMBAY AT GOA
TAX APPEALS NO. 11 & 12 OF 2013
TAX APPEAL NO.11 OF 2013, TAX APPEAL NO.12 OF 2013
Please become a Premium member. If you are already a Premium member, login here to access the full content.
To add: What is all the more noteworthy is the HC’s view, holding that, -The said question therefore cannot be said to be a question of law, leave aside, the substantial question of law. The appeals are therefore found to be without merit and as such, stand dismissed.
No doubt, as held in decided court cases (see the commentary in Palkhivala’s Text Book, on the topic of “Inference of Law, Fact, or Mixed (question of) Law and Fact”, u/s 256 of IT Act), – it is not always easy to distinguish between questions of fact and questions of law, or mixed questions.
Nonetheless, courts cannot afford to, rather ought not, bypass, unwittingly or otherwise, but desirably need to be focussed on the other valid principles of guidance laid down in those old HL and PC decisions (-as per the footnotes there under, no recent case has been cited; – does that mean, Indian courts have had no occasion at all in the past decades to consider them !).
One such point for useful guidance, as narrated therein, is that, – “the court must guard against the attempt which is often made to secure for a finding on a mixed question of law, and fact the unavailability which belongs only to a finding on a question of pure fact” (- though this narration is not happily worded, the import seems to be quite clear; however, for clarity, one may read the HL’s decisions cited).
An instance which perforce comes to one’s mind is the recently reported SC case in re. Nahalchand(the dispute has been on car parking in a building complex of ‘Flats’); for , that is a case in which anyone or more of the above referred principles could possibly have been brought up for due consideration by court(s)(s), but not seen to have been done so.
impromptu:
The reasoning behind / the logic in arriving at the conclusion, in one’s quick perception, is quite sound. this is one such instance in which the itat , also the CIT(A),can be said to have construed the implications of sec 53A in proper light; Instead of taking an in-box or closed view, by following a beaten track.
Some of the viewpoints put forth in the article recently published on this website,- a critique on the SC Ruling in re Podar Cement’s case,- it may be noted, are aimed at giving a re-look into and considering afresh the implications of section 53A, with a different stroke.