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12. That now brings us to the question as to whether the assessee is right in contending that it had incurred no cost when it obtained the right to obtain a sale deed. This contention seems to have been founded on a decision of this court in CIT v. Home Industries . It must be remembered that the decision, to which one of us (Desai J.) was a party, specifically dealt with the question as to whether goodwill, which was a self-created and self-generated asset, created or generated by the activities of the assessee and which was a capital asset of the assessee, can be said to have been acquired by it particular point of time for the any cost or any cost in terms of money and whether such a type of capital asset on transfer gives rise to chargeable gains under s. 12B(1) of the Indian I.T. Act, 1922. The Division Bench referred to the provisions of s. 12B(1) of the Indian I.T. Act, 1922, and s. 45 of the I.T. Act, 1961, and pointed out that the concept of profit and gain arising from the transfer or sale, as contemplated by the abovementioned provisions, necessarily implies that there is something received in excess of the capital asset which is transferred or sold and profit or gain arising from sale has a necessary reference to the difference between the cost price of the asset and the sale price of the asset. The Division Bench pointed out that the charging provision in both the Acts itself brings in the concept of actual cost to the assessee of the capital asset, and what is done by the machinery provision, which is contained in sub-s. (2) of s. 12B of the Indian I.T. Act, 1922, and s. 48 of the I.T. Act, 1961, is to elaborate that concept and lay down the mode or method by which such profit or gain is to be computed. The Division Bench has, in that case, however, observed as follows (p. 633) :

"If the capital asset is such that it has cost nothing in terms of money to the assessee, the charging provision must be interpreted as being not referable to such capital asset, and a self-created or self-generated goodwill being such asset, will be outside the purview of the charging section."

13. It was then observed by the Division Bench (p. 634) :

"Since we have been come to the conclusion that self-created or self-generated goodwill is not capital asset which could be said to have been acquired by the assessee-firm at any particular point of time and is not a capital asset which could be said to have cost something in terms of money to the assessee, such goodwill not be a capital asset the transfer of which will give rise to chargeable capital gain either section 12B(1) of the 1922 Act or section 45 of the 1961 Act."

14. Apart from the fact that in that case the Division Bench was dealing with the question whether "goodwill" is a self-generated asset, it is difficult for us to see how that decision can be relied upon by the assessee in this case. We have in this case an agreement of sale in favour of the assessee which gave a right to obtain a conveyance of the property agreed to be sole. It is difficult for us to see how it can be contended on behalf of the assessee that when the assessee acquired the right to obtain a conveyance, this right did not cost it anything. When the agreement of sale was entered money. Indeed, that was the consideration paid to the vendor for executing the agreement of sale by the vendor. The mere fact that ultimately the earnest money was to be treated as a part of the purchase price, the balance of which was to be paid on the completion of the sale, did not detract from agreement of sale was the payment of earnest money. The assessee had paid at the time of the execution of the agreement of sale Rs. 90,000. He had then acquired a right to obtain a sale deed. When he gave up that right or assigned it in favour of M/s. Advani and Batra, he received Rs. 5,90,000 and Rs. 90,000 was treated as refund of consideration. Therefore, the actual cost to the assessee of the right to obtain the sale deed on the date of the agreement of sale was Rs. 90,000. Therefore, this was, in our view, clearly a case which squarely fell within s. 45 of the Act and the assessee had made a profit or gain arising from the transfer of the capital asset which was the right to obtain a sale deed in respect of immovable property. Question No. 1 referred at the instance of the assessee would, therefore, have to be answered in the affirmative.