Delhi High Court
Sushil Ansal And Sons vs Commissioner Of Income-Tax on 17 January, 1990
Equivalent citations: [1990]183ITR443(DELHI)
Author: B.N Kirpal
Bench: B.N Kirpal
JUDGMENT Kirpal, J.
1. The question involved is whether the assessed who has paid the money for purchase of flats but in whose name there is no registered document can be regarded as an owner for the purposes of section 22 of the Act.
2. The case of the petitioner is that except for the registration of a sale deed, all the other formalities which are required for completing a sale in its favor have been completed. The assessed has paid the full consideration and has obtained possession of the flats and is enjoying all benefit as an owner.
3. The respondent, however, relies upon the decision of this court in the case of Sushil Ansal v. CIT [1986] 160 ITR 308, wherein it was held that such an income is to be taxed under section 56 and not under section 22. Learned counsel for the petitioner has brought to our notice that Sushil Ansal's case [1986] 160 ITR 308 (Delhi) was concerned with the assessment year 1970-71 when only notional income was liable to be taxed but with effect from 1976, there has been an amendment in the Income-tax Act and even the actual rent received is liable to be taxed and, therefore, the present case is distinguishable from Sushil Ansal's case [1986] 106 ITR 308 (Delhi). That apart, it is contended by learned counsel for the petitioner that though in Sushil Ansal's case [1986] 160 ITR 308 (Delhi) reference has been made to four other decisions, viz., Addl. CIT v. U. P. State Agro Industrial Corporation Ltd. , Kala Rani (Smt.) v. CIT [1981] 130 ITR 321 (P&H), CIT v. Steelcrete (P.) Ltd. and Addl. CIT v. v. Sahay Properties and Investment Co. P. Ltd. [1983] 144 ITR 357 (Pat), in fact, those decision have not been considered by this Bench. It is lastly maintained that similar question is pending determination in the Supreme Court.
4. Mr. Misra has relied upon Nawab Sir Mir Osman Ali Khan v. CWT . Curiously enough, counsel for the petitioner also relied upon the said decision in an effort to show that the Supreme Court was at pains to draw a distinction between the phraseology of the Wealth-tax Act and that of the Income-tax Act, that whereas in the Wealth-tax Act the words used are "belonging to", in the Income-tax Act the word used in section 22 is "owner". What is the full scope and impact of the decision of the Supreme court in Osman Ali's case [1986] 162 ITR 888 also have to be considered.
5. Taking all the aforesaid factors into consideration, in our opinion, a question of law does arise. Whether this case, after the reference has been made, should be heard by a Division Bench or by a larger Bench will be decided by the Bench hearing the reference.
6. We, according, direct the Tribunal to state the case and refer the showing question of law to this court:
"(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal erred in law in holding that the assessed could not be treated as the 'owner' of commercial flats in the multi-storeyed building known as 'Ansal Bhawan' at Rajendra Place, New Delhi?
(2) Whether, on the facts and in the circumstance of the case, the Appellate Tribunal did not err in law in holding that the income enjoyed by assessed from commercial flats be assessed under the head 'Income from other sources' and not under the head 'Income from house property'?"