TMI Blog1958 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... he movables have been validly sold does not really arise for determination, because if the sale is invalid, when there is no sale so far as they are concerned and section 12B will be inapplicable. The decision of the Tribunal holding that it is only the profits in respect of the sale of the properties described in part 1 that are liable to tax under section 12B is correct. The appeal fails and is dismissed - - - - - Dated:- 23-9-1958 - Judge(s) : A. K.SARKAR., GAJENDRAGADKAR., VENKATARAMA AIYAR JUDGMENT The judgment of the court was delivered by VENKATARAMA AIYAR, J.---This is an appeal against the judgment of the High Court of Patna in a reference under section 66(1) of the Indian Income-tax Act, 1922. The respondent is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed recites the agreement dated the 16th March, 1946, and refers to the two classes of properties agreed to be sold thereunder. The actual conveyance under the deed is only of the properties mentioned in part 1. The price is also given as Rs. 2,00,600 which is the price mentioned in the agreement for the immovable properties set out in part 1. These are the facts material for the purposes of the present appeal. On the 1st April, 1946, section 12B of the Indian Income-tax Act came into force. It is as follows : " The tax shall be payable by an assessee under the head 'Capital gains' in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March, 1946, and before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the contention was raised that the differentiation between movables and immovables on which the judgment of the Tribunal rested had not been made at any time in the prior stages of the proceedings and that was a matter on which further evidence would have to be taken to ascertain the intention of the parties and that, therefore, the matter should be remanded for further enquiry to the Appellate Tribunal. The learned Judges refused to accede to this contention for the reason that no such application was made before the Tribunal and that it was a point which ought not to be allowed to be taken for the first time in the High Court. On behalf of the appellant, it is stated that the question as to what are immovables and what are movables, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. " According to this definition, fixtures mentioned in part 2 of the schedule could be held to be movables only if they were intended to be severed and sold separately. But that was not the intention of the parties. The collieries were sold as a going concern and the intention was, therefore, that the fixtures should pass along with the land. Therefore there was no valid sale of the fixtures as movables. Moreover, section 85 of the Contract Act provides that "Where an agreement is made for the sale of immovable and movable property combined, the ownership of the movable property does not pass before the transfer of the immovabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Transfer of Property Act, but that is subject to any different intention which is express or necessarily implied in the document. We have examined both the sale deed, dated the 17th May, 1946, and the agreement to sell, dated the 16th March, 1946, on which it was based. Now it is clear to us on a reading of these documents that there were really two sale transactions, one relating to movables and the other relating to the immovables, as set out in the two parts to the schedule. Different prices are fixed therefor and the actual conveyance under the sale deed dated the 17th May, 1946, is only of the immovables described in part 1. Then there is the fact that the price fixed for the properties sold under the deed dated the 17th May, 1946, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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