TMI Blog1989 (12) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... ound, namely :-- "On the facts and in the circumstances of the case, the learned Dy. CIT (Appeals) has erred in directing the W.T.O. to take half of the value of Amravati Road property which has been worked at Rs. 1,60,050 and allow exemption 1,40,000 u/s. 5(1)(iv) of the Wealth-tax Act." 3. The assessee was the owner of a house situated at Amravati Road, Nagpur. In the assessment proceedings under the Income-tax Act for the assessment year 1970-71 the question of capital gains came up for consideration before the Income-tax Officer. In connection therewith, the assessee claimed that he had transferred 50% share of the aforesaid property to his wife Smt. Amrunnisa in lieu of the Mehar debt under the Agreement dated 1-7-1969. The I.T.O., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment years 1969-70 onwards. Before us certain orders of the Tribunal have been produced. One such order is dated 17-2-1982 which has been passed in W.T.A. No. 178(Nag)/1981 for the assessment year 1975-76. One more order, although of a latter date, that is 14-2-1982 relates to the earlier years, that is the assessment years 1970-71 to 1973-74. The order dated 17-2-1982 passed in W.T.A. No. 178 (Nag)/1981 for the assessment year 1975-76 has been followed in the subsequent order dated 14-9-1982 for the four assessment years 1970-71 to 1973-74. Also filed before us is the order dated 16-6-1981 passed by the Commissioner of Wealth-tax (Appeals), Nagpur, in the first appeal for the assessment years 1969-70 to 1974-75. In that order the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the facts and circumstances of the case and made a careful study of the agreement dated 1-7-1969, the earlier orders of the Tribunal and the rulings relied upon by the learned Departmental Representative and are of the firm view that whole of the aforesaid property continued to be owned by the assessee and no part thereof stood transferred to his wife. From a perusal of the various orders produced before us, we find that at no level of adjudication there had been any application of mind to the questions, firstly, as to whether the agreement dated 1-7-1969 purported to transfer any property to the assessee's wife, and, secondly, that if so, what was the nature of such purported transfer and thirdly, whether the purported transfer was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax authorities below were fully justified in taking a view that whole of the property continued to be owned by the assessee and no part thereof stood transferred to his wife. Secondly, even if for argument sake it be assumed (without admitting) that the agreement dated 1-7-1969 purports to transfer the right in property in praesenti, yet such transfer would amount to a sale and the document embodying such transfer can rightly be termed as a sale deed. The aforesaid decision of the Patna High Court is, on all fours, with the present case. It has been held therein that a gift by a Mohammedan to his wife in lieu of the dower debt after marriage is not a true "hiba-bil-iwaz", but is really a sale of property and, under the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged. As regards such exemption in relation to the assessment year 1982-83 we find that the impugned order of the Dy. CWT (Appeals) does not deal with the question of exemption under section 5(1)(iv) and, therefore, this part of the ground does not arise out of the impugned order. 8. In view of the discussion above, the two departmental appeals partly succeed. We, therefore, allow both the appeals in favour of the department in relation to the ground of transfer of half of the Amravati Road property by the assessee to his wife and hold that such purported transfer was not valid and effective and that whole of the property continued to be owned by the assessee. The appeals in relation to the second part of the ground i.e. exemption u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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