Judgment:
R.K. Abichandani, J.
1. In these applications made by the Revenue under s. 256(2) of the IT Act, the following two questions are proposed by the applicant for the opinion of this Court:
'1. On the facts and in the circumstances of the case and in law, the Tribunal was not justified in confirming the order of the CIT(A), Surat whereby it is an admitted fact that during the assessment year under appeal, no final deeds of the flats, etc. were executed and no registration was effected in favour of prospective buyers as contemplated under s. 54 of the Property Act. In absence of such legal obligation, the assessee was a legal and real owner of the said property and the property income was rightly taxed in the hands of the assessee under ss. 22 and 23 of the IT Act.
2. On the facts and in the circumstances of the case and in law, the Tribunal further erred in holding that if the property income is taxed in the hands of the assessee, there will be double taxation as the flat owners have also declared property income in their IT returns and WT returns ?'
2. In the applications which were made under s. 256(1) of the Act before the Tribunal for referring these questions for the opinion of this Court, the Tribunal held that the flat owners who were handed over these flats by the owner under an agreement to purchase, were being taxed by the Department and that the assessee was left only with a husk of the legal title. It was held that what was being taxed under s. 22 of the Act was the income from house property or the annual value of the property of which the assessee is the owner. The Tribunal referring to its reasoning given in para 11 of the order, held that no referable questions were involved.
3. The assessee had constructed a multi-storeyed building known as 'Dhawalgiri Flats' consisting of 48 flats and one health club with swimming pool. During the asst. yr. 1980-81, the assessee handed over possession of flats to the prospective purchasers. Agreements to sell were entered into in respect of such flats and funds obtained as per the agreements for constructing the flats. The final deeds however, could not be executed and registered and, therefore, technically the assessee remained the legal owner of the flats, which were already handed over to the purchaser.
4. The Supreme Court has now in CIT vs . Podar Cement (P) Ltd. : [1997]226ITR625(SC) , held that though under the common law 'owner' means a person who has got valid title legally conveyed to him after complying with the requirements of law such as the Transfer of Property Act, the Registration Act, etc., in the context of s. 22 of the IT Act, 1961, having regard to the ground realities and further having regard to the object of the IT Act, namely to tax the income, 'owner' is a person who is entitled to receive income from the property in his own right. The requirement of registration of the sale deed in the context of s. 22 is not warranted.
5. In view of the decision of the Supreme Court in CIT vs. Podar Cement (P) Ltd. (supra) we are of the opinion that the point is concluded and no question requiring opinion of this Court under s. 256 arises in these matters. These applications are, therefore, rejected. Rule is discharged in each of them with no order as to costs.