TMI Blog2006 (12) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... following effective ground : "I. On the facts the circumstances of the case and in law the ld. CIT(A) erred in directing the Assessing Officer to treat the capital asset sold as a long-term capital asset and not as a short-term capital asset. 4. The facts, in brief, are that the assessee is a partnership firm engaged in the business of bill discounting and financing. The assessee sold its office premises for a consideration of Rs. 38,50,000 and paid tax on long-term capital gain of Rs. 34,15,675 after reducing the indexed cost of acquisition from the sale proceeds. The Assessing Officer held that the transfer of the office premises in question in favour of the assessee was completed only on the execution of deed of apartment on 18-2-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any thereof, or transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract, then, the registration of the agreement is not material. In the case of the appellant, it is a fact that he had entered into an agreement for purchase of the said property and also executed on 18-2-1992 by making the 50 per cent of the agreed consideration and enjoyed the possession of his already possessed property as a owner and not as a tenant which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. The premise is owned by a trust governed by the provisions of Bombay Public Trust Act, 1950. Vide Agreement dated 28-1-1992, the said trust entered into an agreement with all tenants for conversion of tenancy rights into ownership rights. The total sale consideration, in the case of assessee stood at Rs. 1,58,500 against which the assessee paid a sum of Rs. 79,250 as part payment. After the payment of this sum, the assessee was not required to pay any rent/compensation. In this factual background, it is the case of the assessee that the assessee become owner of the said premises in 1992 only and started enjoying the property as owner from that period which was enjoyed by the assessee as the tenant hitherto before, whereas it is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d premises and will also acquire a proportionate or pro rata undivided interest in the land on which the said building is constructed and in the common areas and facilities in the said building known as "Ararat", as contemplated under the Maharashtra Apartment Ownership Act. 10. On and from January 1, 1992 the Tenant will not be required to pay any rent in respect of the said premises to the Landlord. However, if the proposed scheme of conversion of the said tenanted premises into ownership as contemplated, cannot be implemented by the reason of non-sanction thereof by the Charity Commissioner or for any other reason whatsoever, then the landlord will be bound to once again commence recovering and receiving the same rent payable in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Charity Commissioner. As per provisions of section 36 of the Bombay Public Trust Act, 1950, alienation of immovable property of public trust is valid only with the previous sanction of the Charity Commissioner, and the Charity Commissioner is also empowered to change the conditions of transfer. Section 36(2) also provides that if the sanction of the Charity Commissioner is obtained by fraud or misrepresentation or concealing the material, such sanction, if granted, can be withdrawn. Thus, no agreement can be entered into by Public Trust without the previous approval of the Charity Commissioner and if entered into such agreement would have no legal force. This fact further can be established by clause 4 of the aforesaid agreement whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Chaturbhuj Dwarkadas Kapadia v. CIT [2003] 260 ITR 491 (Bom.). We most humbly state that there is no dispute with the ratio of this decision because if the transfer comes within the purview of section 53A of the Transfer of Property Act, then, the same can be regarded as transfer within the meaning of section 2( 47 )( v ) of the Act. However, now material question before us is whether the provisions of section 53A are applicable in the present case so as to treat it as transfer within the meaning of provisions of section 2( 47 )( v ) of the Act. On a plain reading of section 53A of the Transfer of Property Act, 1882, it transpires that the terms of the contract should be ascertainable with reasonable certainty whereas in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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