TMI Blog1997 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandra Bose Road, Calcutta, by the Central Government at an amount of declared apparent consideration of Rs. 19.405 lakhs only. The facts leading to the filing of the petition are that respondents Nos. 4 to 16, being the successors-in-interest of one Munshi Abdul Kader (since deceased), son of the late Chand Mistry, claimed to be the co-owners and joint sharers of the property in question. According to them, the said Munshi Abdul Kader claimed the rayet 100 Zaminder Pravash Chandra Mondal and others in respect of the property in question and after the abolition of the Zamindary Pratha, the said Abdul Kader became the absolute owner lawfully of the said property and came into its possession by constructing a two-storeyed building which he used for his residence. The name of Munshi Abdul Kader was also mutated as the owner in possession of the property in question and he also started paying tax to the Tollygunge Municipality. The said property was duly assessed with Tollygunge Municipality in the name of the deceased Abdul Kader as Municipal Premises No. 166/2, Russa Road South, Calcutta-700 033. It is also claimed that the said Abdul Kader who was absolutely seized and possessed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said case did not and could not attract the provisions relating to pre-emptive purchase as contained in Chapter XX-C of the Income-tax Act, 1961, and that the exercise of the pre-emptive power of purchase conferred by the said Chapter of the Act was neither appropriate nor proper. The case of the petitioners is that under the law of inheritance governing the Muslims, each co-owner is a co-transferor in the agreement for sale and he having a specific share in the undivided joint ownership property can sell his own share and thus, even if one composite agreement is executed by 13 co-owners and co-sharers, each of them could be deemed to have executed an agreement for sale and therefore even if the total apparent unencumbered consideration of the property may be considered to be above Rs. 60 lakhs, yet the property could not attract the provisions of pre-emptive purchase by the Central Government because the share of each of the 13 co-owners would in any case come to be less than Rs. 10 lakhs as per sale transaction. The petitioners claimed that even though there was a composite agreement for sale, this should be construed as 13 sale agreements because all the 13 co-owners have sold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem had his/her respective share in the property which they were holding as co-owners. Each of respondents Nos. 4 to 16 could have the property partitioned by metes and bounds and thus could have executed separate sale agreements, if they so chose. Instead of executing separate sale agreements, however, they decided to enter into one composite agreement. It did not take away their right of selling the property individually. Respondents Nos. 1 to 3, therefore, could not have in law treated the transaction as a composite transaction attracting the imposition of the provisions contained in Chapter XX-C of the Income-tax Act. In my opinion, even though there is one agreement to sell, it must be deemed that there are as many as 13 transactions of sale of immovable property entered into by the 13 co-owners in favour of the petitioners. In the case of Surinder Gupta v. Chief CIT [1996] 221 ITR 375, a Division Bench of the Delhi High Court took a similar view in an identical matter. Their Lordships observed as under : " CIT v. T. V. Suresh Chandran [1980] 121 ITR 985 (Ker) was a case under section 269C of the Income-tax Act. The transferors were co-owners having inherited the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners and respondents Nos. 4 to 8 is to be understood only as an agreement to convey the respective undivided shares of respondents Nos. 4 to 8. It is not in dispute that the value of each such share is less than Rs. 10,00,000. The recitals in the agreement in more than one place refer to the fact that what is sold is the individual undivided share in the property. Consequently, the impugned order made under Chapter XX-C of the Act taking the total consideration, the collective shares, cannot be sustained (sic). Both the writ petitions are, accordingly, allowed. No costs." In the case of Appropriate Authority v. J. S. A. Raghava Reddy [1993] 199 ITR 508, a Division Bench of the Karnataka High Court took the following view : " Under the general law, a single property can be owned by more than one person and, in that event, each will be a co-owner along with others. Each one will be entitled to sell his share according to his own will and wish. The other co-owners will not be entitled to place any embargo nor is their consent required for such a sale. For all purposes, a co-owner will be the owner of his definite share in the property and he is entitled to alienate his shar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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