SANJAY KISHAN KAUL, J.

( 1 ) THE petitioner is a resident of K - 644, western Avenue, Sainik Farm, New Delhi and is aggrieved by the assessment order dated 17. 02. 2003 assessing the said property to tax and fixing the rateable value as also by the impugned notice dated 19. 02. 2003 making demand on the petitioner in respect of the property in question.

( 2 ) IT is stated in the writ petition that the petitioner became owner and occupier of the property in question in pursuance to the agreement to sell dated 08. 12. 1999 for a total consideration of Rs. 24 lakhs.

( 3 ) LEARNED counsel for the petitioner relied upon the judgment of this Court in CWP No. 4640/2002 titled k. T. S. Tulsi Vs. MCD. decided on 07. 01. 2003 and contends that property of the petitioner is liable to be assessed to property tax in terms of the said judgment relating to the same area and the principles of parity must also be applied.

( 4 ) A reading of the impugned order shows that the petitioner assessee attended to the office of the Joint Assessor and Collector and submitted the requisite documents. The Joint assessor and Collector asked for the transfer duty for disposal of the pending case, but the same was not submitted by the assessee. It was under these circumstances the assessing authority came to the conclusion that the proposed rateable value is liable to be fixed in terms of the proposal.

( 5 ) ON a querry being put to the learned counsel for the petitioner, the learned counsel states that the petitioner is not willing to pay 5% transfer duty payable to the respondent corporation, since there is no transfer, which has taken place in terms of Section 147 of the Delhi Municipal Corporation Act, 1957 ( hereinafter to be referred to as, the Act ). Learned counsel submits that the said Section itself stipulates that the Corporation can levy duty on transfer of immovable property and, thus, in the absence of transfer, such duty is not payable. This contention of the learned counsel for the petitioner is based on the fact that only an agreement to sell has been executed, but the sale deed has neither been executed nor registered. According to the learned counsel for the petitioner, by reason of the fact that no such sale deeds are being registered in the area in question in view of certain decisions taken by this Court and the supreme Court dealing with the issue of challenge to the acquisition proceedings in respect to the area in question, no transfer has taken place.

( 6 ) LEARNED counsel for the petitioner has relied upon a judgment of the Supreme Court in Municipal Corporation of Delhi Vs. Pramod Kumar Gupta, 43 (1991) DLT 149. The said case dealt with the issue of duty payable on an instrument of sale of immovable" property in case of Court Auction Sale where the same was confirmed and certificate to purchaser was issued under Order 21 Rule 94 of The Code of Civil Procedure, 1908. It was held that such an instrument cannot attract the provisions of Section 147 of the act since the title passed under the auction sale by force of law and transfer becomes final when an order under Rule 92 confirming it is made and the certificate was issued under rule 94 formally declaring the effect of the. same was not extinguishing or creating title.

( 7 ) LEARNED counsel for the petitioner also referred to the judgment of the learned Single judge of this Court in Municipal Corporation. of Delhi Vs. Hotu Ram, 2002 0 MCC 195. This judgment dealt with the issue of difference between sale and lease and it was held that in a lease, there is only partial transfer or demise while the revisionary rights continue to remain with the transferor. It was held that transfer of the property in question was not a sale within the meaning of Section 54 of the transfer of Property Act, 1882 and consequently no duty could be imposed under Section 147 of the Act.

( 8 ) I have considered the submissions advanced by learned counsel for the parties.

( 9 ) THE transaction, i

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