TMI Blog1996 (3) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment years 1984-85 to 1987-88. All the above five appeals have been preferred against the common order of the CWT(A) dated 12-8-1992. 2. The above four departmental appeals have been filed by delay of one day. Application for the condonation of the said delay has been filed by the department. After hearing both the parties and considering the facts and circumstances of the case, the said delay is hereby condoned and the appeals are admitted. 3. Shortly stated relevant facts leading to these appeals are that the assessee-company is in occupation of an immovable property situated at 6/1/2, Queen's Park, Calcutta. The said property belongs to one Smt. Swasti Choudhury who let it out to Dhruba Kumar Sen as tenant in June 1971. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property for all the five years 1984-85 to 1988-89 treating the assessee as owner of the said property considering various facts and circumstances enumerated by him in para 4.10 of his assessment orders each dated 20-3-1992. Aggrieved against this the assessee went in appeal before the CWT(A), who decided all the five appeals of the assessee by his impugned consolidated common order dated 12-8-1992, whereby the ld. CWT(A) allowed the assessee's appeal for the assessment years 1984-85 to 1987-88 holding the assessee-company as not assessable to wealth-tax in respect of the property in question but the ld. CWT(A) disallowed the assessee's appeal on this point for the assessment year 1988-89. Hence the assessee being aggrieved regarding the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in question and the assessee still remains lessee/tenant of the lessor/owner. He has also argued that the assessee/lessee is still paying rent of the premises to the lessor and has taken up through page Nos. 32, 33 and 35 of his paper book emphasising that the assessee has not been shown as owner of the property in these papers in the Municipal Corporation, Calcutta and that the annual rent payable has been shown at Rs. 3,000 in the paper bearing serial No. 35 of the paper book. He has also taken up through income-tax assessment order for the assessment year 1987-88 which is placed at page Nos. 61 to 64 in his paper book and he has specifically referred to para 3 of the said assessment order in which at page 62 of the paper book it is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom those of the cited case, no such right of letting out the flat and thereby earning rental income without being the owner by virtue of a registered conveyance deed is given to the assessee under the agreement to sell as had been given to the assessee of the cited case. In that case also the Hon'ble Calcutta High Court, following the Supreme Court decision in Nawab Sir Mir Osman Ali Khan's case also observed that the flat in question may not belong to the assessee in the sense in which it has been explained by the Supreme Court. As such, the facts of the present case being quite different the department gets no help from Smt. Damyanti Devi Jhunjhunwalla's case. As the sale deed has not been executed nor registered by the lessor in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinued his possession as such and that the assessee did not do any act in furtherance of the contract as is required in section 53A of the T.P. Act. He has also contended that the assessee paid a sum of Rs. 25,000 under the agreement but has done nothing in furtherance of the contract. He has also contended that a person cannot be both the landlord and the tenant of a property at the same time. He has therefore argued that in view of the above the assessee is not assessable under the WT Act in respect of the said property. As against this, the Ld. D.R. relying on Smt. Damyanti Devi Jhunjhunwalla's case has supported the impugned order of the Ld. CWT(A). 8. We have consciously considered the rival contentions. The assessee undisputedly is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performance of a contract of the nature stipulated in section 53A of the T.P. Act and in consequence being assessable in respect of the said property under the WT Act cannot be upheld. In our opinion, in view of the legal position as discussed above while dealing with the department's four appeals, neither the assessee is the owner of the property, nor the said property can be said to be belonging to the assessee and so the assessee is not assessable for the said property under the WT Act. The impugned order in this regard is, therefore, liable to be set aside. 9. In the result, the four appeals of the department bearing WTA Nos. 62 to 65 (Cal.) of 1993 are dismissed and the assessee's appeal bearing WTA No. 51 (Cal.) of 1993 is hereby a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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