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I.T.A. No. 905/ KB of 1983-84, decided on 13th September, 1987.
---Taxability--Avoidance of incidence of tax is permissible in law.
--Adventure in the nature of trade or investment--Test--No general or universal test can be laid down for deciding as to whether an isolated transaction of purchase and sale of land by a person carrying on different business was adventure in the nature of trade or an investment--Each case having its own peculiar facts has to be decided on totality of evidence on record and real intention of the purchaser at the time of original purchase--Where assessee purchased a plot with intention of earning profit thereon, gains called by him capital gains, held, would not partake that character and would constitute his income exposed to the exigency of income-tax.
Praise &, Co. (Pvt.) Ltd. v. C.I.T.) West Bengal (1966) 60 ITR 566 distinguished.
S.K. AR.K.AR. Somasundaram Chettiar. C.I.T. Madras (1963) 47 ITR 336 and Regent Estates Ltd. v. C.I.T. West Bengal (1963) 48 ITR 162 ref.
Bachu Bai F.E. Dinshaw, Karachi v. C.I.T. 1967 P T D 170; C . I. T . v . Ashaland Corporation 1982 P T D 241, C .I . T. v . Mana Raj Gupta (1982) 137 ITR 195 and Provident Investment Ltd. v. C.I.T. (1953) 24 ITR 33 mentioned.
---Taxability--Sale of land--Unless a registered sale-deed is executed in respect of an immovable property the owner is not divested of his right and the property remains vested in him--Contention that assessee, the seller was still the owner of the property as no sale-deed had been executed till then and no profit thus could accrue to him legally which could be offered for tax as the transaction was not at all a sale and there was , no agreement to sell, was without substance.
--Contents of document are important to determine its nature rather than its title or nomenclature given by the parties.
---S. 54--Transfer of property--'Sale' and 'licence'--Distinction.
---S. 105--Lease--Definition.
---Taxability--Assessee allowed partners of a registered firm to enter his plot of land and to raise construction thereon in return of s certain premium--Assessee did not either divest or intended to dives himself of his ownership rights or transferred right in the property- Such document was neither sale-deed nor agreement to sell, the deed being nothing but a licence deed and money paid being nothing but only premium as such subject to incidence of tax.
Mehmood A. Hashmey for Appellant.
Mohammad Farid, D.R. for Respondent.
Date of hearing: 8th September, 1987.
.--The appellant, an individual, declared in his return, inter alia, Rs.3,40,000 as an amount exempt from tax on the ground that it was obtained on sale of a piece of plot of land. The I.T.O., however, was of the view that the transaction was an adventure in the nature of trade. He, therefore, taxed aforesaid amount. Having been aggrieved and dissatisfied the appellant went up in appeal but the assessment order was confirmed. He still feels aggrieved and has come up in second appeal before us.
2. Mr. Mahmood Hashmey, the learned counsel for the appellant firstly apprising us of the brief facts submitted that a plot of land bearing No.255 and having an area of 7,501 square yards, was purchased by the appellant jointly with one Malik Fayyaz Ahmad on I5t June, 1973 for a consideration of Rs.6,00,000. According to learned counsel a building was standing thereon. It was then divided into two plots and one plot, whereon the building was standing and which comprised of an area of 6,522 square yards was transferred by both the owners to M/s. Kashif Mohammad Ali & Co. Ltd. of which both the co-owners were the directors. Mr. Mahmood Hashmey further explained that the other plot admeasuring 979 square yards remained in the names of both the co-owners for sometime and subsequently the appellant obtained the ownership of this whole plot of land after paying Rs.80,000 to Malik Fayyaz Ahmad, being half of the consideration. The learned counsel contended that after sometime he sold the plot in April, 1980 to M/s. Qaiser Naeem & Co. for a consideration of Rs.5,00,000 which resulted in a capital gain of Rs.3,40,000. Turning to the merits of the appeal the learned counsel took us through several rulings to bring home his contention that aforesaid transaction was not an adventure in the nature of trade, hence not taxable. The cases relied upon by him, which we shall advert to subsequently are: (1963) 47 ITR 336, S.K. AR.K.AR. SOMASUNDARM CHETTIAR v. C.I.T. MADRAS; (1963) 48 ITR 162, REGENT ESTATES LTD. v. C.I.T. WEST BENGAL; (1966) 60 ITR 566 PRAISE AND C0. (PVT) LTD. v. C.I.T., WEST BENGAL. Mr. Mahmood Hashmey further argued though alternatively that even if it was held that aforesaid amount was arising out of an adventure in the nature of trade, it was not taxable as the sale was not yet complete. In order to fortify himself he cited following cases at the Bar:
(1) 1967 P T D 170 Bachu Bai F.E. Dinshaw, Karachi v. C.I.T
(2)1982 P T D 241 C.I.T. v. Ashaland Corporation;
(3) (1982) 137 ITR 195, C.I.T. v. Hans Raj 'Gupta.
3. Mr. Mohammad Hashmey also submitted that in law an assess, was entitled to avoid the incidence of tax if he legally could do though evasion thereof was not permissible. In this connection he put his reliance on (1953) 24 ITR 33, PROVIDENT INVESTNIEVT LTD. v. CIT.
4. Mr. Mohammad Farid, the learned D.R. controverted all the submissions and disputed the contention of Mr. Mahmood Hashmey that the amount of Rs.3,40,000 was a capital again, hence not taxable and that it was riot taxable because the sale was not yet complete. On our request he produced before us photostat copy of an "Indenture of Sale" which has actually given rise to both the submissions of Mr. Mahmood Hashmey, the learned counsel for the appellant.
5. We have heard both the learned counsel for the appellant as well as learned D.R. at length and have also gone through all the case-law cited at Bar. Starting with last submission of Mr. Mahmood Hashmey we respectfully agree with .him that avoidance of incidence of tax is permissible in law. However, we do not feel that the appellant has succeeded in avoiding it. Now, taking up the first submission of Mr. Mahmood Hashmey we think that no general or universal test can be laid down for decision as to whether an isolated transaction of purchase and sale of land by a person carrying on different business was adventure in the nature of trade or an investment. Each case has its own peculiar facts and we have to decide the issue on totality of the evidence before us. Since Mr. Mahmood Hashmey has relied upon certain cases, let, therefore, first analyse them to find out what principle of law they propound.
6. In the case of Regent Estates Ltd. (Supra) the assessee, a property owning company purchased foreign exchange in the sum of US Dollars 90,000 at the rate of Rs.333 and 8 annas for each 100 Dollars on 15th June, 1949 for delivery to be effected on 15th July and 15th August, of 1949. However, for some reasons the delivery was not taken on due dates and subsequently on 23rd September, 1949 the entire foreign exchange was sold at the rate of Rs.474 and 12 annas for each 100 US Dollars. Thus, the assessee company earned an income of Rs.1,27,125. Before I.T.O. it was claimed that it was exempt as a casual and non-recurring receipt not arising from business of the assessee. The matter finally reached before their Lordships of Calcutta High Court. It was urged, inter alia that since the memorandum of association of the assessee did not empower it to trade in foreign exchange and since the company was basically formed for the purpose of dealing in real estate, the gain could not be taxed, as it was the only solitary instance of this nature of transaction. Let us point out that in this case while the assessee was holding the foreign exchange the Sterling was devalued vis-a-vis US Dollar, which resulted in unexpected profit to the assessee. Their Lordships after considering all the facts and circumstances of the case came to the conclusion that the assessee had purchased the foreign exchange with intention to earn the profits, hence the gain was taxable.
7. In Chettiar's case (Supra) the assessee who was running his business in yarn and paper in India went on a pleasure trip to Ceylon and purchased a coconut plantation for Rs.1,10,000 after borrowing money. After some time he sold it and earned an income of Rs.16,485. The question arose as to whether it was taxable or not. Indeed the contention of the assessee was that he did not purchase the coconut plantation with the intention of selling it subsequently on profit. According to him it was a solitary instance and could not be termed as adventure in the nature of trade. The Madras High Court, however, turned down his submission and held that under the facts and circumstances of that case the assessee had intention of re-selling it on profit.
8. The third case relied upon by Mr. Mahmood Hashmey is that of Praise and Co. (Supra). In this case the assessee company carried on business in share dealings but in 1952 it purchased a piece of land and then subsequently sold it on profit. The question which went before the Calcutta High Court was as to whether the gain in the hands of the assessee was taxable. Their Lordships after reviewing the entire case-law on the subject answered the question in the affirmative. In this case also their Lordships took into consideration the totality of the evidence on record.
9. Thus, in view of all the case-law cited above we have to look into the facts and circumstances to find out as to whether the appellant had any intention to earn profit. We, therefore, revert to the facts of this appeal.
10. Mr. Mahmood Hashmey has vehemently argued that the appellant was dealer in chemicals and purchasing. the plot of land was his first dealing in real estate. The learned C.I.T. (Appeals), on the other hand, has observed that the appellant was dealer in-real estate. The learned Assessing Officer, however, has not recorded any finding on this point. However, it appears from perusal of the assessment order that the appellant declared his income derived from salary received from M/s. Kashif Mohammad Ali & Co. Ltd., from house rent and from PIAC AND NIT as dividend. From assessment order it further appears that the appellant was one of the Directors of M/s. Kashif Mohammad Ali & Co. Ltd. It further appears that the appellant and Malik Fayyaz Ahmed had transferred major part of the plot of land to aforesaid Kashif Mohammad Ali & Co. Mr. Mahmood Hashmey conceded before us that M/s. Kashif Mohammad Ali & Co. Ltd. built a complex of shops and apartments and then sold it to various individuals. Thus, it is established by evidence on record that during assessment year 1980-81 the appellant was not a. dealer in chemicals but was deriving his profits from his real estate business. Now, it is clear from record that the original plot of land having an area of 1.55 acres was purchased by Malik Fayyaz Ahmed and the appellant on 1-6-1973. Whether M/s. Kashif Mohammad Ali & Co. Ltd. had already been incorporated before 1st June, 1973 is a question which cannot be answered from the record. However, the subsequent events do establish that both 'Malik Fayyaz Ahmed and the appellant had purchased the plot of land for commercial purposes and it became their stock-in- trade. The facts discussed above clearly disclosed that the plot of land was not purchased for residential purposes at all. The fact that it was bifurcated and the fact that a commercial complex with flats was built on major portion of it by a private limited company floated by the appellant and his partner Malik Fayyaz Ahmed, go to establish beyond doubt that .the intention was commercial from the very beginning. There is no evidence to establish that the appellant wanted the other portion measuring 979 square yards for any other purpose than commercial. It is important to note the fact that the appellant subsequently transferred this piece of land to a registered partnership firm called M/s. Qaiser Naeem & Co., which was constituted by his one son and two daughters. We shall revert to this aspect of the matter subsequently when we are dealing with the question of transfer by sale but it is sufficient to point out at this juncture that the constitution of a registered firm and. then the transfer of this piece of land after purchasing at half of the share from Malik Fayyaz Ahmad strongly evinces the working of the mind of the appellant. Their Lordships of Madras High Court in Chettiar's case (supra) and their Lordships of Calcutta High Court in Praise and Co's case (supra) have taken into consideration all the factors and circumstances which were prevalent at the time of purchase of the plot of land and the facts which transpired subsequently.' We have, therefore, also taken into consideration all circumstances which were attending at the time of the original purchase of the plot of land and all the subsequent events which followed it in order to ascertain the real intention of the appellant which he had at the time of original purchase. Thus, we are of the view that the appellant purchased aforesaid plot of land with intention of earning profit thereon, hence the gains called by him capital gains do not partake that character and constitute his income exposed to the exigency of income-tax. This discussion takes us to the alternative submission of Mr. Mahmood Hashmey.
11. Relying very strongly on Ashaland's case (supra) Mr. Mahmood Hashmey has submitted that the profit derived by the appellant from transfer of the plot of land in favour of M/s. Qaiser Naeem and Co. was not taxable as the sale was not yet complete. In this connection he has also relied upon the case of Hans Raj (supra) and case of Dinshaw (supra). Let us, therefore, examine as to what principle of law these cases have enunciated. Starting with Ashaland's case (supra) which according to Mr. Mahmood Hashmey, was fully covering the case of the appellant we find that the assessee company, dealing in real estate, entered into an agreement on 14-11-1970 regarding sale of certain property and received Rs.5,000 as advance, Subsequently, it received on 15th December, 1970 Rs.2,08,772 from the purchaser. Since both the amounts totalling Rs.2,13,772 were received in accounting year relevant to assessment year 1971-72 and since the assessee was maintaining accounts on cash basis it offered Rs.90,403 as net profit in assessment year 1971-72, The I.-T.O, however, assessed it at Rs.91,000. But as luck could have it the C.I.T. got hold of the file and came to the conclusion that since sale deeds were executed on 23rd February, 1972 and 26th June, 1972 namely in accounting year relevant to assessment year 1972-75, the assessee was not entitled to be assessed as was done by the I.T.O. He, therefore, after cancelling the assessment directed the I.-T.O. to frame fresh assessments according to law. The matter finally came up before their Lordships of Gujrat High Court and it was held that since whole property was stock-in-trade of the assessee and since it was not divested of its ownership till the date when the sale deeds were executed, it remained the owner thereof and no profit could be deemed to have accrued to it in assessment year 1971-72. In other words it was held that the assessee was liable to be assessed in assessment year 1972-73 on the profits accrued to it in aforesaid transaction.
12. Now as far as the case of Hans Raj Gupta (supra) is concerned, it reveals around its own facts. In this case the assessee sold his land to one company for Rs.2,00,000. and received the amount. However, subsequently another company purchased the same plots of land from the assessee and paid the sale consideration. No registered documents, however, were executed on either occasion. The question, which came up before their Lordships of Delhi High Court was as to whether the income from these properties after the dates of transfer should be taxed in the hands of the assessee or in the hands of respective companies which were holding possession thereof by virtue of payment of sale price. Here again their Lordships of Delhi High Court reiterated the same principle of law that unless property is legally transferred the ownership would remain where it is and the owner would be liable to pay tax.
13. The third case is from our own Karachi High Court. In this case the property originally belonged to F.E. Dinshaw and after his death his executors entered into an agreement on 14-12-1946 with Mrs. Eduljee to sell them for a consideration of Rs.7,50,000 and paid Rs.75,000 in advance also. On 7th February, 1951 the balance amount was paid and the possession was taken over. Mrs. Eduljee also started collecting rent from Ist February, 1951. In their return for assessment year 1953-54 the beneficiary of M/s. Dinshaw did not declare rental income amounting to Rs.16,400 for the reason that the possession was already given to Mrs. Eduljee and she was realizing rent. The I.T.O., however, held that since the sale-deeds were not executed in favour of Mrs. Eduljee the beneficiaries remained the owner of the property and thus were entitled to receive rent. The High Court finally confirmed this view.
14. From all these cases it appears that the settled legal position is that unless a registered sale-deed is executed the owner is not divested of his rights and the property remains vested in him. Mr. Mahmood Hashmey, the learned counsel has thus relied upon this principle. He has argued that since the sale-deeds have not been executed, therefore, the appellant is still the owner hence no profit can accrue to him legally which could be offered for tax. We are afraid the submission of Mr. Qaiser Naeem & Co. came into possession but this does not appear to be the case. The learned D.R. Mr. Mohammad Farid has given us photostat copy of the so-called indenture of sale which was produced by the appellant before I.T.O. Mr. Mahmood Hashmey has admitted that aforesaid firm called M/s. Qaiser Naeem & Co. came in possession of the plot of land under authority of this document which has been called "Indenture of Sale". It is also the case of Mr. Mahmood Hashmey that since the appellant was maintaining mercantile system of accounts the gain was declared in the relevant assessment year though payments stretched over several years up to assessment year 1985-86. Let us, therefore, firstly examine this document. For sake of convenience we are reproducing it hereinbelow: -
"THIS AGREEMENT made at Karachi or, this 17th day of April, 1980 BETWEEN Mian Mohammad Shafiq s/o Mian Mohammad Hussain hereinafter referred to as the party of the first part and Messrs Qaiser Naeem & Company, a partnership registered with the Registrar of Firms at Karachi represented by its partner Mian Ahsan Elahi S/o Mian Fazal Karim, hereinafter referred to as the party of the Second Part.
WHEREAS the party of the first part is the exclusive owner of Plot No.255/A R.A. Lines Ingle Road Karachi admeasuring 979 Sq Yds. , and has exclusive discretion -and is entitled to sell, transfer and alienate the same in any manner considered expedient by the said party of the first part.
WHEREAS the party of the first part has planned to construct "' flats and garrages on the above said plot and to receive rentals for the purposes of earning on income.
WHEREAS the party of the first part has not been able to arrange funds for the purpose of such construction and the plot remains as open plot which of course requires further expenditure and taxes from year to year without any return and the party for the first part feats that such funds may not be available in the remote future from his own resources. Besides the party of the First Part also needs funds badly.
WHEREAS the party of the second part has assured the party of the first part that they are in a position of arranging funds to raise the construction and has thus approached the party of the first part to relinquish the building rights in favour of the party of the second part and the parties of the first and second parts have agreed mutually on the terms and conditions mentioned hereinbelow: -
That it is agreed between the parties that the total consideration for the transfer alienation and relinquishment of all rights in respect of plot No.255/ A.R. Lines Karachi in favour of Party of the First Part is a sum of Rs. Five Lacs payable by the party of the second part to the party of the first part.
That the party of the second part, in pursuance of the agreement and arrangement under discussion, has paid an advance of Rs. Fifty Thousand on this 17th April, 1980.
(3) That the party of the second part has further paid the balance of the sum of Rs.4 Lacs 50 Thousand by way of remaining consideration by means of a credit entry in the Books of Account of the party of the second part, which it is assured shall remain as a floating charge on the plot, construction raised and on the business assets of the party of the second part.
(4) That the party of the second part further assures the party of the first part that the credit appearing in the books of accounts and the, charge upon as aforesaid shall diminished and be cleared from year to year as under: --
(i) The sum of Rs. 1 Lakh shall be paid by the party of the second part to the party of the first part by 31st March, 1981.
(ii) The sum of Rs. 1 Lakh shall be paid by the party of the second part to the party of the first by 31st March, 1982.
(iii) The balance of Rs.2 Lakh 50 Thousand shall be paid by the party of the second part to the party of the first part by 30th June, 1983.
(5) It is further agreed between the parties that if the construction operation of the party of the second part are postponed in view of the unforeseen circumstances, the dischargement of credit entry and release of charge shall be suitably postponed to other dates by mutual consent of the parties.
(6) It is further assured that proper accounts of expenditure incurred from time to time on the plot and construction shall be maintained by the party of the second part and the developments made in this behalf shall be communicated to the party of the first part periodically at least in every quarter.
(7) That the party of the second part assures that the plot under question and all approvals and necessary actions, constructions shall continue to remain in the name of the party of the first part although for that purpose the party of the first part shall only be a Benami until the credit is totally discharged.
(8) That the party of the first part shall execute within a month hereof a general power of attorney in favour of the party of the second part from the execution of various acts and deed to be undertaken in respect of the plot and construction etc. This power of attorney shall not be revocable except in the manner as hereinafter provided.
(9) It is further assured that the party of the first part shall not be entitled to cancel the aforesaid power if the entire consideration is paid and all acts and deeds promised in the agreement are acted upon by the party of the second part in right earnest. However, if any of the acts as contemplated and promised in the aforesaid clauses are not acted upon and any of the instalments towards dischargement of loan are not paid in accordance with the periods mentioned above or extensions granted thereto.
(10) It is further provided that in case a power of attorney is cancelled by the party of the first part, the party of the first part shall be liable for payment of the entire expenditure incurred, including all payments received by him as of the day to the party of the second part.
(11) That the party of the first part assures the party, of the second part that through the power of a attorney executed the party of the second part shall remain entitled to sell, transfer, alienate, the sub-plots, sub-constructions, flats and garrages to individual clients and purchasers.
(12) That the parties assure cash other than the agreement to relinquish and sell is final and irrevocable and is not capable of being rescinded or withdrawn and for all practical purpose shall be deemed to a transaction in final.
In WITNESSES WHEREOF the parties hereinabove mention have set and subscribed their respective hands on this day, month and year mentioned above."
Mian Mohammad Shafiq
party of the first part.
(Sd.)
Mian Ahsan Elahi"
15. Now from perusal of its opening part it appears that the document was executed between the appellant and 51/s. Qaiser Naeem and Co. Since M/s. Qaiser Naeem and Co. is a registered partnership firm hence it has no legal personality and could not have entered into any agreement hence it is not a legal document. Nevertheless, we are of the view that this finding makes no difference as far as the taxability of the amount is concerned for the reason that the document would be looked into for collateral purposes.
16. If we read whole of the document it appears to us that the intention of the parties has been to put the partners of the firm called M/s. Qaiser Naeem and Co. into possession of the plot of land for purposes of raising construction thereon. It further appears that aforesaid firm made credit entry in its account books for Rs.4,50,000. The document also talks of execution of power of attorney. However, now here it has been mentioned that the appellant would execute a sale-deed in favour of the partners of aforesaid firm. After carefully going through the whole of it we are of the view that it is nothing but a licence deed executed by the appellant in favour of tile partners of the aforesaid firm or at least in favour of Mian Ehsan Ilahi. The licence has been defined by Section 52 of the Easement Act, 1982 as under:
"Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immovable property of the granter, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a licence."
17. Thus, if we read 4th paragraph of the document it appears that the appellant has actually relinquished the building rights in favour of the partners of aforesaid firm in return of Rs.5.00,000. Thus, it is a licence deed. It is settled law that the, contents of a document are important to determine its nature than its title or nomenclature given by the parties.
18. In order to fortify our finding let us also mention here that it is not a sale-deed. In this regard we would like to reproduce section 54 of the Transfer of Property Act. It reads:
"'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs, in possession of the property.
A contracts for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
19. From its perusal it is clear that sale is a transfer of ownership whereas the licence consists of a right to do or continue to do something upon the property of the owner, thus, a sale-deed is that which demises the property but a licence deed witnesses granting of permission to do some act oh the property. The former is a registered deed if value of property is more than one hundred rupees whereas the latter need not be registered under the Registration Act. Though, the consideration may pass in both cases but in case of sale it is called sale price and in case of licence it is called premium. It is not an agreement of sale either. As 'pointed out earlier the parties have not stipulated that a sale-deed would be executed later on. Let us also mention here that it is also not a lease agreement. A lease has been defined under section 105 of the Transfer of Property Act as follows
"105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lesser, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. "
20. It is clear from this definition that lease consist of transfer of a right to enjoy an immovable property and this document has not transferred any right in the plot of land. It has only granted a right to build as explained earlier. However, even if it is held to be a lease-deed it would not help the appellant.
21. Thus, we are of the view that the appellants allowed the partners of the aforesaid firm to enter his plot of land and to raise construction thereon in return of a certain premium. He did not either divest or intended to divest himself of his ownership rights or transferred right in the property. As such, the question regarding sale-deed does not arise at all. Let us also mention here that the document is written on stamp paper of four rupees and is attested by a Notary Public.
22. As we have already pointed out that aforesaid firm called M/s. Qaiser Naeem and Co is constituted by son and daughters of the appellant and is nothing but a family affair of the appellant. This fact is also fully borne out of aforesaid document. Our finding that the licence was granted to the partners of the firm or in any case to Mr. Ahsan Elahi is on the basis that aforesaid firm, was not only a family affair but also for the reason that it is possession of entire plot of land. Be it as it may the document produced before I.T.O. is nothing but a licence deed and the money paid is nothing but premium. As such, neither it is sale-deed nor an agreement to sale. The arguments of Mr. Mahmood Hashmey, therefore, appears to be untenable in law. His very strong reliance on case of Ashaland (supra) also appears to be wholly misplaced. Thus, his second leg of arguments also fails.
23. Since no other ground has been pressed we find no force in this appeal and it stands, rejected accordingly.
M.B.A. /429/ T. Appeal dismissed.
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