TMI Blog2002 (7) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... nue and against the assessee. However, the Tribunal shall consider the issue whether the agreement to sale constitutes a transfer, in the light of the guidelines laid down by their Lordships in the case of CIT v. Podar Cement Pvt. Ltd.. Question No. 2 is consequential to question No. 1, therefore, we leave it to the Tribunal to decide the issue in question No. 2 also, after taking into account the decision of their Lordships in the case of CIT v. Podar Cement Pvt. Ltd. - - - - - Dated:- 29-7-2002 - Judge(s) : Y. R. MEENA., SHASHI KANT SHARMA. JUDGMENT On an application filed under section 256(1) of the Income-tax Act, 1961, the Tribunal has referred the following questions for the opinion of this court: "Whether, on the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned. Before the Assessing Officer, the assessee submits that for immovable property transfer could be effected only by means of a registered deed which is yet to be effected and, therefore, in view of the provisions contained in section 54 of the Transfer of Property Act, 1882, the property cannot be said to have been transferred and when the property has not been transferred, there is no question of taxing any profit arising in the year under consideration. The Income-tax Officer did not accept this. According to the Income-tax Officer, the agreement has been entered into for sale through the R.F.C. and the purchaser clearly showed that the assessee has no role to play at all. The agreement between the R.F.C. and the purchaser in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of the alleged transfer of immovable property as well as movable property to Hindustan Safety Glass Works Ltd., Jaipur, as a going concern. Therefore, there was no justification for charging capital gains as well as profit under section 41(2). Both the grounds raised by the appellant, therefore, succeed. The appellant will, therefore, get resultant reliefs accordingly." In appeal before the Tribunal, the Tribunal affirming the view taken by the Commissioner of Income-tax (Appeals), in para. 6 has observed as under: "From the above three extracts it is clear that in respect of transfer, the Transfer of Property Act is not ousted as per the specific agreement and the loaner Rajasthan Financial Corporation, was obliged to receive t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to the object of the Income-tax Act, namely, 'to tax the income', we are of the view, 'owner' is a person who is entitled to receive income from the property in his own right." In the case in hand, the Commissioner of Income-tax (Appeals) as well as the Tribunal both have gone with the provisions of the Transfer of Property Act and both the authorities have taken the view that in the absence of registration the capital gain or the profit under section 41(2) cannot be taxed. Following the latest view of their Lordships in the case of CIT v. Podar Cement Pvt. Ltd. [1997] 226 ITR 625 (SC), in our view, both the authorities have committed error for the purpose of taxing income under the scheme of the Income-tax Act, 1961. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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