Judgment :- K. A. THANIKKACHALAM J. In pursuance of the direction given by this court in T. C. P. No. 19 of 1981, dated March 30, 1981, the Tribunal referred the following two questions, for the opinion of this court, under section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") "(1) Whether, on the facts and in the circumstances of the case, the petitioner is entitled to depreciation and/or development rebate as claimed in respect of the assessment years 1973-74 and 1974-75 ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the petitioner is not entitled to the deduction of the entire sum of Rs. 55, 000 being the contribution to the paddy processing research centre ?" * The assessee is a company, whose shares are wholly held by the State Government of Tamil Nadu. The business of the assessee, as its name indicates, is to ensure supply of essential goods. One of the issues that arose for consideration related to the claim for depreciation and development rebate in respect of machinery in thirteen modern rice mills taken over by the assessee-corporation in pursuance of various Government orders. These rice mills were transferred to the assessee-corporation, by an order, dated October 26, 1972, issued by the Secretary to the Government, Co-operative Department, to the Registrar of Co-operative Societies. There was a further order in G.O. No. 632, dated December 7, 1974, detailing the conditions of transfer. A clarification was issued in G.O. No. 168, dated March 29, 1976, to the effect that the thirteen modern rice mills were set up from loans advanced by the National Co-operative Development Corporation and that the Government undertook to repay the unpaid loan. Ad hoc payments were sanctioned in G.O. No. 174, dated July 2, 1976, and it was argued that such ad hoc payments should be treated as share capital. G.O. No. 405, dated July 7, 1978, confirmed that the value of the assets be fixed at Rs. 184.50 lakhs and that the properties had been taken over by the Government in 1972-73 and transferred by the Government to the assessee-corporation. It was further stated therein that the ownership of the assets vested with the assessee-corporation with effect from 1972-73 and that there was no need for registration, as the Government was a party to the transfer. 184.50 lakhs and that the properties had been taken over by the Government in 1972-73 and transferred by the Government to the assessee-corporation. It was further stated therein that the ownership of the assets vested with the assessee-corporation with effect from 1972-73 and that there was no need for registration, as the Government was a party to the transfer. This was reiterated in G.O. No. 453, dated August 5, 1978However, separate documents were executed on August 7, 1978, recording that the properties stood transferred with effect from December 1, 1972, to the assessee-corporation and possession was handed over to the assessee-corporation on December 1, 1972. On the basis of these various orders, it was contended by the assessee that all the assets including land, buildings, plant and machinery belong to the assessee from that date and that the assessee was eligible for depreciation, development rebate, etc. The Income-tax Officer denied the claim on the ground that the properties did not vest with the assessee as owner in law. The Appellate Assistant Commissioner concurred with the findings of the Income-tax Officer, rejecting the assessee's claim that the transfer did not require registration in view of the Government Grants Act, 1895 A combined reading of the earlier Government orders and the sale deeds executed in the year 1978 by the Government in favour of the Tamil Nadu Civil Supplies Corporation Ltd., would go to show that the thirteen modern rice mills were vested with the assessee-corporation in the year 1972. Therefore, the assessee is the owner of the thirteen rice mills, entitled to claim depreciation and development rebate in the assessment years 1973-74 and 1974-75. The conveyance deed executed by the Government in the year 1978 is only by way of clarification in the matter of vesting the ownership of the mills with the assessee-corporation. Section 53A of the Transfer of Property Act would apply and the doctrine of part performance is applicable to the facts of this case. Since the Government transferred the 13 mills to the assessee-corporation, the transfer deeds need not be registered under section 17 of the Registration Act, since the assignment was made under the Government Grants Act, 1895 "Transfer" is defined in section 2(47) of the Income-tax Act, 1961, wherein relinquishment is also considered as transfer. Since the Government transferred the 13 mills to the assessee-corporation, the transfer deeds need not be registered under section 17 of the Registration Act, since the assignment was made under the Government Grants Act, 1895 "Transfer" is defined in section 2(47) of the Income-tax Act, 1961, wherein relinquishment is also considered as transfer. In the present case, in the earlier Government orders, the Government relinquished their right over the thirteen rice mills and vested the same in favour of the assessee-corporation even in the year 1972. Therefore, such vesting of the ownership by the Government is valid and the assessee would become the legal owner from the year 1972 onwards. The fact that proper conveyance deeds were executed only in 1978 would not in any way go to show that the assessee-corporation is not the legal owner of the thirteen rice mills from the year 1972 onwards. According to learned counsel appearing for the assessee in the case of CIT v. Tamil Nadu Agro Industries Corporation Ltd. 1987 (163) ITR 61, 1984 (41) CTR 223, 1985 (20) TAXMAN 16 , 1987 (41) CTR(Mad) 233, this court held the terms of the sale to be operative and effective only from March, 1975, and not from any anterior point of time. Therefore, according to learned counsel appearing for the assessee in the sale deed the parties can fix that the sale will take effect from an anterior date. Therefore, according to learned counsel, even though the sale deed was executed in the year 1978, inasmuch as possession was given to the assessee-corporation in the year 1972, it would go to show that the ownership has been vested with the assessee from the year 1972 onwards. Therefore, it was submitted that the Tribunal was not correct in refusing depreciation and development rebate to the assessee-corporation for the assessment years 1973-74 and 1974-75. On the other hand, learned standing counsel appearing for the Department submitted that in order to claim depreciation and development rebate, the assessee should be the owner of the asset. In the present case, the assessee claimed depreciation and development rebate for the assessment year 1973-74 and 1974-75 during which period the assessee was not the legal owner of the assets. As per the earlier Government orders the possession of the thirteen rice mills was given to the assessee. In the present case, the assessee claimed depreciation and development rebate for the assessment year 1973-74 and 1974-75 during which period the assessee was not the legal owner of the assets. As per the earlier Government orders the possession of the thirteen rice mills was given to the assessee. During those times, the owner of the rice mills was not the Government, but the co-operative society. The co-operative society is not the Government. A regular sale deed was executed in the year 1978 by the Government after the Government purchased the said thirteen rice mills from the co-operative societies, in favour of the assessee-corporation. Therefore, the Government became the owner of the thirteen rice mills only in the year 1978 and not in the earlier years. Though the sale deed was executed by the Government in the year 1978, registration of the same is not necessary under the Government Grants Act, yet the Government cannot vest the ownership of the property with the assessee-corporation beyond the day for the execution of the sale deed. The provisions of section 53A of the Transfer of Property Act would not be applicable to the facts of this case. The definition of "transfer" as stated in section 2(47) of the Income-tax Act, 1961, would be applicable only for assessment made for levying capital gains tax. It is only in that context relinquishment is stated to be "transfer" therein. For these reasons, it was submitted that the Tribunal was correct in not granting the depreciation and development rebate to the assesseeWe have heard the rival submissions. We have already set out the facts in detail in the foregoing paragraphs on this issue. The assessee claimed depreciation and development rebate in respect of thirteen rice mills transferred by the Government in favour of the assessee-corporation. The sale deeds were executed in the year 1978. It is no doubt true that when the Government transfers its properties, it need not be by a registered sale deed. It can be done under the Government Grants Act. In such a case, no registration is necessary. This legal position would hold good for the transfer deeds executed by the Government in favour of the assessee corporation in the year 1978. The assessee claimed depreciation and development rebate for the assessment years 1973-74 and 1974-75. It can be done under the Government Grants Act. In such a case, no registration is necessary. This legal position would hold good for the transfer deeds executed by the Government in favour of the assessee corporation in the year 1978. The assessee claimed depreciation and development rebate for the assessment years 1973-74 and 1974-75. The assessee has to establish that the assessee is the legal owner of the assets over which the depreciation and development rebate were claimed. The assessee relied upon various Government orders as enumerated in the foregoing paragraphs, which were issued in the year 1972, vesting possession of the thirteen rice mills with the assessee-corporation. During those times the co-operative societies were the owners of the thirteen rice mills and the Government was not the owner of those thirteen mills. In fact, the Government purchased those thirteen rice mills from the co-operative societies and thereafter executed the conveyance deed in favour of the assessee-corporation in the year 1978. According to the assessee, the sale deeds executed in the year 1978 would relate back to the year 1972 when the possession was handedover to the assessee-corporation by virtue of the Government orders. As already pointed out in the year 1972, the Government is not the owner of the thirteen rice mills, but only the co operative societies are the owners. It remains to be seen that the co operative societies are not the Government. Even the registered sale deeds would take effect from the date of the execution and it cannot take effect beyond the date of the executionIn CIT v. Tamil Nadu Agro Industries Corporation Ltd. 1987 (163) ITR 61, 1984 (41) CTR 223, 1985 (20) TAXMAN 16 , 1987 (41) CTR(Mad) 233 this court held that one of the conditions precedent for claiming depreciation under section 32 of the Income-tax Act, 1961, is that the assessee must be the owner of the building, machinery, plant or furniture as the case may be. The use of the expression "owned by the assessee and used for the purpose of business or profession" emphasises that it is not mere user irrespective of ownership that is contemplated by section 32 as a necessary condition for claiming the allowance of depreciation. The use of the expression "owned by the assessee and used for the purpose of business or profession" emphasises that it is not mere user irrespective of ownership that is contemplated by section 32 as a necessary condition for claiming the allowance of depreciation. Such ownership must necessarily mean legal title to the asset in the assessee and the user thereof by the assessee while being such owner in the course of the business of the assessee. Persons who are merely in possession, without any title to the property cannot claim depreciation It was further held that the Tribunal's interpretation of section 47 of the Registration Act was erroneous. In the instant case, the terms of the sale deed indicated that the parties intended the sale to be operative and effective only from March, 1975, and not from any anterior point of time. This was also the effect of section 47 of the Registration Act. The assessee was not the legal owner of the building in the assessment year 1973-74 and was not entitled to depreciation in respect of the building in that year In the above said decision, this court pointed out that the terms of the sale deed also indicate that the parties intended the sale to be operative and effective only from March, 1975, and not from any anterior point of time. Taking advantage of this finding, an argument was advanced by learned counsel for the assessee that the sale could be operative and effective in the present case from the year 1972 onwards, since the possession was given to the assessee-corporation of the thirteen rice mills. Inasmuch as in the year 1972, the Government is not the owner of the thirteen rice mills and the co-operative societies were the owners, it cannot be said that the sale deed could be operative and effective from 1972 onwards. Further, in Hamda Ammal v. Avadiappa Pathar 1991 BankJ 418, 1990 (4) JT 391 , 1990 (2) Scale 970 , 1991 (1) SCC 715 , 1990 (S2) SCR 594, 1991 (1) BLJR 615, the Supreme Court held that section 47 of the Registration Act makes it clear that after the registration it will relate back to the date of execution of the sale deed. The vendee gets rights which will be related back on registration from the date of the execution of the sale deed and such rights are protected under Order 38, rule 10, C.P.C., read with section 47 of the Registration Act. It also remains to be seen that section 53A of the Transfer of Property Act was held not applicable as this provision was available only as a defence and not as forming the title by itself. In other words, section 53A of the Transfer of Property Act can be used as a shield and not as a swordLearned counsel appearing for the assessee submitted that section 2(47) of the Income-tax Act, 1961, defines "transfer" and transfer includes relinquishment. Through the earlier Government orders, the Government relinquished its rights over thirteen modern rice mills in favour of the assessee-corporation. Therefore, the assessee-corporation would become the owner of the thirteen rice mills from the year 1972 onwards. It should be remembered that relinquishment is included within the meaning of the word "transfer" only for the purpose of assessment to be made for levying capital gains tax and not for other purposes. Therefore, it cannot be said that by relinquishment the assessee has become the legal owner of the thirteen rice mills in the year 1972. For these reasons, we consider that the assessee was not the legal owner of the assets in the assessment years under consideration over which depreciation and development rebate were claimed. In that view of the matter, we answer question No. 1 referred to us in the negative and against the assessee In so far as question No. 2 is concerned, it relates to deduction claim of Rs. 55, 000. The assessee had given Rs. 55, 000 as contribution to the Paddy Processing Research Centre, which was taken over by the assessee in November, 1973, on the basis of an order of the Government of Tamil Nadu. The arrangement was that the assessee was to bear one-third of the expenditure of the Research Centre. It appears that the total funds of the Research Centre, according to the profit and loss account amounted to Rs. 1, 52, 163, while the expenditure amounted to Rs. 98, 587, Rs. 55, 000 was shown as a contribution by the assessee. The arrangement was that the assessee was to bear one-third of the expenditure of the Research Centre. It appears that the total funds of the Research Centre, according to the profit and loss account amounted to Rs. 1, 52, 163, while the expenditure amounted to Rs. 98, 587, Rs. 55, 000 was shown as a contribution by the assessee. Thus, the Tribunal took the view that it is not an expenditure for scientific research and that this amount represented only a transfer entry made on March 31, 1974, in pursuance of a journal voucher. Only the actual expenditure could be allowed under section 35 of the Act. Since the actual expenditure amounted to Rs. 1, 00, 873, what was allowable was one-third of the same and it was this amount of Rs. 33, 628 that was allowable and was allowed by the first appellate authority. It was the assessee's case that the entire amount of Rs. 55, 000 as contribution should have been allowed. Before us, learned counsel appearing for the assessee submitted that the research centre was transferred to the assessee-corporation. Thereafter, the assessee was looking after the research centre. The assessee incurred expenditure amounting to Rs. 98, 587. According to the profit and loss account of the research centre, the contribution amounted to Rs. 1, 52, 163. The assessee claimed Rs. 55, 000 as contribution by the assessee. According to learned standing counsel, since the entire expenditure was incurred by three entities, the assessee would be entitled only to one-third of the expenditure incurred out of Rs. 1, 00, 873. After the research centre was taken over by the assessee, it was stated that the assessee was incurring the entire expenditure. Though the entire expenditure was amounted to Rs. 98, 587, the assessee claimed Rs. 55, 000 as the expenditure incurred by it. After the research centre was taken over by the assessee, there is no possibility of dividing the expenditure incurred by the assessee for three entities. It is only by a surmise, the Tribunal divided the entire expenditure into three parts. There is no evidence for the said division. Only the actual expenditure could be allowable under section 35 of the Act. The actual expenditure incurred by the assessee was shown as Rs. 55, 000. The actual expenditure was incurred after the research centre was handed over to the assessee. There is no evidence for the said division. Only the actual expenditure could be allowable under section 35 of the Act. The actual expenditure incurred by the assessee was shown as Rs. 55, 000. The actual expenditure was incurred after the research centre was handed over to the assessee. Therefore, the assessee would be entitled to the entire expenditure of Rs. 55, 000. Hence, the Tribunal is not correct in allowing only one-third of Rs. 1, 00, 873. In that view of the matter, we answer question No. 2 referred to us in the negative and in favour of the assessee. No costs.