TMI Blog2002 (5) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ed October 9, 1984; (v) assessment of lease income and value of impugned property in income-tax and wealth-tax assessments by the Revenue during various years; (vi) certificate dated March 15, 1989, of Lake Palace Hotels and Motels Pvt. Ltd. are self-serving documents and the upper portion of Shiv Nivas Palace Stood transferred on June 16, 1972, making the appellant liable to capital gain under section 45 of the Act?" - - - - - Dated:- 10-5-2002 - Judge(s) : N. N. MATHUR., D. N. JOSHI. JUDGMENT The judgment of the court was delivered by N.N. MATHUR J.-This reference application under section 256(2) of the Income-tax Act, 1961, is at the instance of the assessee. The facts giving rise to the instant reference application are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee that by a subsequent memorandum of undertaking, hereinafter referred to as "MoU", dated January 12, 1973, the parties agreed and accepted that only the lower portion of the Shiv Nivas Palace was transferred for a consideration of Rs. 95,000 and the upper portion thereof was not transferred to the transferee. It was also submitted that subsequently the upper portion was sold out by the assessee to Lake Palace Hotels and Motels Pvt. Ltd. under a lease deed dated December 14, 1978. It was also submitted that the cancellation deed dated October 9, 1984, was also executed between the parties. It was contended that since the registered sale deed executed between the parties on June 16, 1972, was not acted upon and the entry made in the books w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act seeking certain questions to be referred to this court for the opinion. The Tribunal found the questions formulated not worth reference as its findings being essentially finding of fact recorded on appreciation of material on record. It is submitted by Mr. Rajendra Mehta, learned counsel for the assessee, that a deed of cancellation of instrument dated May 10, 1972, in respect of the subject property known as the upper portion of Shiv Nivas Palace was executed between the assessee and Lake Palace Hotels and Motels Pvt. Ltd. on October 5, 1984. The parties stated in the said instrument that Lake Palace Hotels and Motels Pvt. Ltd. did not pay consideration for upper portion, that possession of the said portion was also not delivered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the clauses of certain documents which is purely a question of law. Learned counsel has referred to the decisions of the apex court in CIT v. Daulatram Rawatmull [1964] 53 ITR 574; G. Venkataswami Naidu and Co. v. CIT [1959] 35 ITR 594 and Oriental Investment Co. P. Ltd. v. CIT [1969] 72 ITR 408. It is consistently held that if the point raised in the reference relates to construction of document of title or interpretation or the relevant provision of a statute is a pure question of law. On the other hand, it is submitted by Mr. Bhandawat that the finding of fact cannot be disturbed by the High Court on a reference except on the ground that there is no evidence to support it or it is perverse. Learned counsel has placed reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale was sham. If the assessee succeeds therein no capital gain will accrue. Thus, in our opinion, the Tribunal has committed an error in refusing to refer the question of law as formulated by the assessee in his application for the opinion of this court. For the aforesaid reason, we allow this reference application and direct the Income-tax Appellate Tribunal Jaipur, to draw up the statement of facts and refer the following question of law for the opinion of this court: "Whether the learned Tribunal had material and was right in law in holding, (i) memorandum of undertaking dated January 12, 1973; (ii) reversal of entry for Rs. 2,30,000 on March 31, 1973; (iii) letting out of upper portion of Lake Shore Palace Hotels Co. Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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