TMI Blog2004 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... - We are in agreement with the views expressed by the Tribunal that the capital gain is required to be computed on the basis of equal shares of the owners. - 2. Whether, Tribunal was justified in holding that the assessee was not entitled to deduction under section 48, in respect of the amount claimed to have been paid and received by Shri B.N. Soi from the sale proceeds of property?" - Second question is also required to be answered against the assessee and in favour of the Revenue. - - - - - Dated:- 29-10-2004 - Judge(s) : B. C. PATEL., BADAR DURREZ AHMED. JUDGMENT The judgment of the court was delivered by B.C. Patel C.J. - The assessee has approached this court against the decision rendered by the Income-tax Appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs-party No. 1 are the absolute owners and in possession of the entire built-up property with its roof with free-hold land underneath measuring about 3085.00 sq. yds. or whatsoever is more or less with the boundaries, comprising of 5 plots of varying sizes as detailed below and which are more fully shown and separately identified in the plan annexed hereto bearing property municipal No. 22, situated at Darya Ganj, Ward No. XI, New Delhi-110 002." The other recitals in the sale deed indicate the facts with regard to the ownership of the property in question. The grandmother of Shri Ashok Soi, the assessee, was the original owner and by a deed of gift registered on May 14, 1957 with the sub-registrar, Delhi, she gifted the said property to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned, he was merely entitled to receive certain payments out of the sale of the property as stated in the decree and that too for settlement of his claims, whatever they may have been. Subsequent to the preliminary decree, there was a further settlement arrived at between the parties, namely, the vendors-party No. 1 and the confirming party and they filed a joint application being I A. No. 4898 of 1993 in the said suit in the High Court of Delhi and that agreement came to be recorded so far as the property No. 22, Darya Ganj, New Delhi is concerned. Pursuant to the order made on this application, the parties were permitted to sell the property in question. On May 28, 1993, the learned single judge of this court disposed of the suit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the plan annexed hereto known as No. 22, municipal No. 4735/XI, fitted with water and electric connections, situated at Darya Ganj, New Delhi, and bounded as above along with all their ownership rights, titles, interests, with easements, privileges, with necessary fixtures and fittings, electrical/sanitary installations whatsoever appurtenant to the said property unto the 'vendee-party No. 2' absolutely and for ever who have become the absolute and exclusive owner of the abovementioned entire built-up property with its roof with free-hold land underneath measuring about 3085.00 sq. yds. known as No. 22, municipal No. 4735/XI, Darya Ganj, New Delhi, under the sale from today and shall enjoy all rights or ownership, etc., therein hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument, if capital gain arises, tax thereon is required to be recovered by the Revenue in equal shares as indicated in the document. Learned counsel for the assessee submitted that the father being a person residing with them they agreed to give a share and, therefore, he should be considered as a person entitled to receive a share from the property. From an analysis of the sale deed and the surrounding circumstances, it cannot be said that Shri B.N. Soi had any interest in the property in question. So far as the compromise agreement is concerned, it was incumbent upon the vendor-party No. 1 to pay the amount out of the sale proceeds. This, in no way diminished the shares of the four vendors. Their shares remained 1/4th each. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60,000 was paid to the mother for getting the relinquishment of her right of residence during her life time. It is in these circumstances that the question was raised whether the sum paid to the mother can be taken as a part of consideration received by the sons. It is in its context that the Tribunal and the High Court examined the case. However, in the instant case, as indicated earlier, the assessee was the absolute owner of the property. It is he who threw the property into the Hindu undivided family and, therefore, when the property is transferred consequent upon a partition suit by the owners, any amount paid to settle the claims of Shri B.N. Soi, who had no right, title or interest in the property cannot be regarded as "expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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