TMI Blog1987 (6) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the two years under appeal. The assessee pleaded before the Income-tax Officer that the flat was not registered in her name and, therefore, she was not the owner of the flat within the meaning of section 22 of the Income-tax Act, 1961 and hence it was not assessable in her hands as income from house property. This plea of the assessee was not accepted. Therefore, the ITO, after deducting the municipal taxes and maintenance expenses took the income from the flat at Rs. 71,052 and Rs. 71,276 respectively for the years under appeal. 3. The assessee came up in appeal before the Appellate Asstt. Commissioner and relied on the order of the Tribunal in her own case in ITA No. 1642 (Cal.)/85 dated 8-11-85 for the assessment year 1980-81 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould follow its earlier decision. The third objection taken by the assessee's counsel was that the decision in CIT v. Ganga Properties Ltd. [1970] 77 ITR 637 (Cal.) and CIT v. Smt. T.P. Sidhwa [1982] 133 ITR 840 (Bom.) are in favour of the assessee and, therefore, the decision of the Delhi High court in Sushil Ansal's case should be ignored in this case. 6. The facts leading to the present controversy are that the assessee had purchased a flat on the basis of an agreement dated 4th December, 1972 while the building was under construction. According to the assessee's counsel, the assessee was given possession of the flat in the accounting year 1973-74. The assessee had leased out the flat and earned income. The admitted position is that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [IT Reference No. 88 of 1986]. As these two decisions are available supporting the above view including one from Hon'ble Calcutta High Court, the decision in Smt. T.P. Sidhwa's case could not be followed. 8. A question has been raised by the assessee's counsel that the Tribunal in its earlier order decided the issue in favour of the assessee and the income assessed by the ITO has been deleted. The counsel has filed various orders of the Tribunal. The orders of the Tribunal have been carefully perused. The argument of the assessee is correct that ordinarily, the Tribunal should follow its own earlier decision provided there is no change in the facts and if there are certain changes in the facts, the same must be considered by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular attention was drawn on clause 35 of the agreement. The whole argument made by the assessee's counsel resorting to sections 60 to 63 of the Act for exclusion of the income being an irrevocable agreement is fallacious. The agreement was between the assessee and the builder. The builder constructed a multistoreyed building and a flat had been booked by the assessee. Under the said circumstances, an agreement had been executed between the assessee and the builder or the owner. Certain conditions had been incorporated in the agreement, fulfilment of which were necessary for the execution of the final deed in favour of the assessee. Clause 35 of the agreement does not contain a clause of irrevocable agreement. This clause is only a condit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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