Ashok Bhushan, J. - (1.) ALL these income -tax appeals filed under s. 260A of the I.T. Act, 1961, arising out of order dt. 28th Dec, 2004 of the Tribunal, have been heard together and are being decided by this common judgment. The first three appeals have been filed against the order of Tribunal dt. 28th Dec., 2004 and next three appeals have been filed challenging the order passed by the Tribunal rejecting the miscellaneous application filed by the assessee for rectification of the order dt. 28th Dec., 2004. The first three appeals have been admitted on following question of law: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the agreement to sell dt. 7th Sept., 1991 amounts to transfer by virtue of s. 2(47)(v) and (vi) of the I.T. Act".
(2.) THE last three appeals being I.T.A. Nos. 97 of 2007, 452 of 2007 and 453 of 2007 have been admitted on following question of law: "Whether on the facts and in the circumstances of the case, the Tribunal, having recorded a categorical finding of fact that possession has not been delivered to the buyers as per agreement dt. 7th Sept., 1991 was legally justified in making out an altogether new case with reference to s. 2(47)(vi) of the I.T. Act for the first time in favour of Revenue without allowing an opportunity to the appellant to meet it and thus holding contrary to the settled law by the apex Court on the point and thereby illegally rejecting the miscellaneous application under s. 254(2) of the Act with reference to the order in I.T.A. No. 703/Del/1997 - The facts giving rise to these appeals now need to be noted. Smt. Pushpa Devi Jain, Sri C.P. Jain and Sri Ved Prakash Jain were co -owners of the property being Bungalow No. 210B, West End Road, Meerut measuring about 45, 000 sq. yds. Vide agreement dt. 4th July, 1974, all the co -owners agreed to transfer the entire property for a sum of Rs. 18 lacs to Sri M.P. Jain, Sri K.C. Verma, Sri Mangal Sain and Sri Manohar Lal. At the time of agreement, the co -owners received advance money of Rs. 2 lacs. As per agreement, a sum of Rs. 6 lacs was further received by the co -owners on the basis of agreement and possession of the property was handed over to the purchasers on 4th July, 1974. The balance payment of Rs. 10 lacs was not paid to the co -owners by the purchasers and thus, the deal remained incomplete. The co -owners entered into a written agreement dt. 7th Sept., 1991 with one M/s. Agarwal Associates for transferring the property being Bungalow No. 210B for a consideration of Rs. 55 lacs. The agreement laid down certain conditions regarding modes of payment and responsibility of the purchasers for getting ceiling permission to sale.
(3.) A search was conducted in November, 1994 in the premises of the assessee and certain documents relating to sale of Bungalow No. 210B were found and seized. Besides certain noting papers about the payments received by the owners were found. A copy of the agreement dt. 7th Sept., 1991 was also found. The agreement dt. 7th Sept., 1991 was registered on a stamp paper of Rs. 6. On inquiry assessee admitted that the deal was for Rs. 84 lacs and out of this amount, a sum of Rs. 21 lacs was left with the purchasers for setting old disputes about the land and for obtaining necessary permission from the concerned authorities. The deal was for "as is where is basis". The total sum of Rs. 63 lacs was to be received by the co -owners.;