Elizabeth Joseph Vs Commissioner of Income Tax

K.S. Paripoornan, J.@mdashAt the instance of an assessee to Income Tax, the Income Tax Appellate Tribunal has referred the following question of law for the decision of this court:

"Whether, the Tribunal was right in finding that ''the unregistered written agreement dated January 26, 1973, is a sale itself and that, therefore, the capital asset was transferred on January 26, 1973, for a specific price of Rs. 6,25,000'' and was the Tribunal right in finding that ''the capital gain is to be assessed on that basis'' ?"

2. We are concerned with the assessment year 1973-74. The respondent is the Revenue, The assessee herein is the owner of an estate, along with her father-in-law. By a deed dated January 26, 1973, the owners of the estate, the assessee and her father-in-law, sold the trees in the estate to one S.K. Abdul Wahab. The question arose as to whether the deed dated January 26, 1973, is only an agreement to sell or a sale itself. The assessing authority held that the deed represented a sale of specific assets (trees in a specified area). The Appellate Assistant Commissioner reversed the said decision. The Income Tax Appellate Tribunal, following its earlier decision in I. T. A. No. 241-293/Coch of 1976-77 dated December 18, 1978, held that there was a sale of the specific trees standing in the specified area in the schedule and capital gains exigible to tax arose during the relevant accounting period relevant to the assessment year 1973-74. The order of the Appellate Tribunal, dated December 18, 1978 in I. T. R. Nos. 241-293/ Coch. of 1976-77 was the one rendered in the case of the other co-owner, the father-in-law of the assessee. At the instance of the other co-owner, a question of law, similar to the one formulated herein, was referred to this court in M.D. Joseph (Legal heir of Late M.V. Dominic) Vs. Commissioner of Income Tax, ). By a separate judgment delivered today, we have held therein that the unregistered written agreement dated January 26, 1973, is a sale itself. We have declined to answer the other limb of the question in view of the order of remit made by the Appellate Tribunal dated December 18, 1978. Our reasoning and conclusion in M.D. Joseph (Legal heir of Late M.V. Dominic) Vs. Commissioner of Income Tax, ) squarely applies to this case as well.

3. In the light of our decision in M.D. Joseph (Legal heir of Late M.V. Dominic) Vs. Commissioner of Income Tax, ), we hold that the Appellate Tribunal was justified in rinding that the unregistered written agreement dated January 26, 1973, is a sale itself. We answer this aspect of the question in the affirmative, against the assessee and in favour of the Revenue.

4. We decline to answer the other limbs of the question. Our decision in M.D. Joseph (Legal heir of Late M.V. Dominic) Vs. Commissioner of Income Tax, ) will apply with equal force herein also regarding those aspects. We make this position clear.

5. The reference is answered against the assessee and in favour of the Revenue.

6. A copy of this judgment under the seal of this court and the signature of the Registrar will be sent to the Income Tax Appellate Tribunal, Cochin Bench.