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(b) the parties were in unauthorized occupation of the premises and the appellant had not given possession of the premises in part performance of the agreement, as required under section 53A of the Transfer of Property Act;

(c) most of the agreements entered into by the appellant were to not registered and consequently, were not in the nature of agreement referred in section 53A of the Transfer of Property Act.

Being so, the provisions of section 2(47)(v) of the Act were not attracted, as elaborated hereunder:

- CIT V. G. Saroja: 301 ITR 124 (Mad)

- C.S. Atwal vs. CIT: 279 CTR 330 (P&H).

In the present case, it is respectfully submitted that out of the aforesaid, the fundamental conditions are, inter alia, not fulfilled, as discussed hereunder:

(A) Agreement not "a contract to transfer for consideration any immovable property" referred in section 53A;

It is, at the outset, submitted that the agreement entered into by the appellant is not a contract for transfer of immovable property as envisaged in section 53A of the TPA, particularly having regard to the fact that the appellant, being a sick company, was barred from selling/ disposing off any asset, including the aforesaid residential quarters, without prior permission of the BIFR and the financial institutions.

For the aforesaid reasons, it is submitted that the agreement entered into by the appellant is not a contract for transfer of immovable property as envisaged in section 53A of the TPA, since:

(i) the appellant is barred from selling/ disposing off any assets of the company;

(ii) agreement entered into by the appellant is contingent in nature and hence, not enforceable.

(B) : Possession not handed over In the case of the appellant, it is further submitted that the appellant did not even hand over the possession of the property in pursuance of the agreement, as required in section 53A of the TPA and on the contrary the occupants were in illegal/ forced possession of the premises and for that reason, too, provisions of section 2(47)(v) of the Act are not applicable, as elaborated hereunder:

(vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immovable property.

[Explanation 1].--For the purposes of sub-clauses (v) and (vi), "immovable property" shall have the same meaning as in clause (d) of section 269UA.] [Explanation 2.--For the removal of doubts, it is hereby clarified that "transfer" includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as being effected or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India;] Provision of section 53A of the Transfer of Property Act 1882 provides that "SECTION 53A OF TRANSFER OF PROPERTY ACT, 1882 Part performance.