Decided on September 05,1994



Pradeep Parikh, Accountant Member - (1.) THE assessee is a co-operative housing society and is in appeal before us against the order of the CIT (Appeals), dated 16 12-1993 for assessment year 1990-91.
(2.) The first ground of appeal, shortly stated, is that the CIT (Appeals) erred in upholding the action of the ITO of taxing the sum of Rs. 10 lakhs received from Mr. Parmeshwar Mittal as a casual and non-recurring income chargeable to tax under Section 10(3) of the Income-tax Act, 1961. The assessee, who is the purchaser, had signed a Deed for Sale dated 21-2-1968 with M/s. Ram Narayan & Sons Pvt. Ltd., the vendor to buy a piece of land at Juhu, Bombay, wherein one M/s. Bombay Real Estate Corporation was a confirming party. The piece of land sought to be purchased by the assessee was part of a huge land known as Ruia Park belonging to the vendor. One of the covenants mentioned in the aforesaid deed reads as under : No building or buildings or structure or structures shall be constructed or erected on the portion of land, hereditaments and premises retained by the vendor or any part thereof out of the land hereditaments and premises described in the First Schedule hereunder written exceeding 35 feet in height from the ground level, nor will the existing buildings or structures thereon or any of them be added to or raised over a height of 35 feet from the ground level and in the event of the vendor selling the whole or any part of the said portion so retained by it, then in that case the vendor shall procure from the purchaser or transferee thereof, as the case may be, a covenant in terms similar to this covenant.
(3.) IN November 1985, one Mr. Parmeshwar Mittal informed the assessee-society that he was buying some plots of land located in Ruia Park, opposite the building owned by the society and that he proposed to construct building 60 feet high from the ground level and sought the permission of the society in respect of the height. Further, vide his letter dated 13-1-1986, he indicated that in the event of the society acceding to his request, he was prepared to pay a sum of Rs. 30 lakhs to the Common Amenities Fund of the society as a gesture of goodwill.;

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