These two appeals, involving common point of dispute, are disposed of together for sake of convenience. 2. assessees are individuals. assessment year is 1980-81 and relevant previous year ended on 31-12-1979. 3. facts of case are: (i) One Shri Tulsidas Hargovindas was member of joint Hindu family of Hargovindas Girdharlal. (ii) On 8-4-1960, said joint Hindu family was partitioned under registered deed. (iii) On said partition, Shri Tulsidas Hargovindas got following properties: (a) One bungalow known as 'Tulsi Kunj'. (b) 77 shares/debentures of seven companies mentioned in order of ITO. (c) One security of 3 per cent, 1970-75 first development loan. aggregate value of aforesaid properties was Rs. 1,70,500. (iv) On 16-5-1960, Shri Tulsidas Hargovindas settled aforesaid properties in trust. Under said deed of trust, income/assets were to be administered by trustees as under: "5. (a) trustees shall give to party of first part net income that remains from all properties of trust as stated in above para after deducting expenses for administration and management of trust properties and also taxes of local authorities and other Government taxes, till lifetime of party of first part. (b) If net annual income as stated above is less than Rs. 12,000, trustees shall give to party of first part on demand by party of first part such amount of trust properties. (c) trustees shall give Rs. 1,000 per month towards said amount and if at end of year net income is more than Rs. 12,000, trustees shall give surplus amount at end of year after accounts are prepared. (d) If I, party of first part, fall ill, entire expenses thereof shall be given by trustees out of trust properties. Over and above this, if party of first part need money for any reason, trustees shall give, if found fit and reasonable, amount which may be reasonable to party of first part. 6. I, party of first part, shall have right to reside in bungalow named 'Tulsi Kunj' stated in sub-para (a) of para (i) and Hargovindas, father of party of first part and Lalitaben mother of party of first part shall have right to reside therein till their lifetime during and after lifetime of party of first part. After death of party of first part, father of party of first part and mother, bungalow named 'Tulsi Kunj' stated in sub-para(a) of para (i), shall be given as its proprietary owner to Smt. Shakuntala, sister of party of first part. If my said sister Smt. Shakuntala is not living, it should be given to son of said Smt. Shakuntala and if there are more sons than one, it should be given to all sons in equal proportion. If circumstances arise to divide bungalow between sons of Smt. Shakuntala, sister of party of first part, divisions shall be made as stated in para 8 below. income of bungalow during period after my death till arrival of time for its distribution shall be distributed in proportion in which property is to be distributed according to circumstances stated in sub- paras (a), (b) and (c) of para 7 below. 7. trustees shall perform funeral ceremony of party of first part according to status of family and meet with Government taxes, estate duty and other liabilities and expenses as necessary out of properties excepting properties stated in sub-para (a) of para (i) and properties which remain thereafter shall be distributed by trustees as under: (a) If Smt. Shakuntala, sister of party of first part has one daughter at time of death of party of first part, 10 per cent of trust properties except property of sub-para (a) of para (i), shall be given to her and if there are more daughters than one, 10 per cent shall be distributed among all of them in equal proportion. trustees all decide according to their absolute desire as to which kind and nature of properties may be given towards said 10 per cent and no said daughter shall have any right to receive or to demand any nature or kind of property. (b) After administering 10 per cent of property as stated in above sub-para (a), balance of properties shall be distributed in equal proportion between Smt. Shakuntala, sister of party of first, part, and her sons who may be living at time of death of party of first part. (c) However, if any sons of Smt. Shakuntala, sister of party of first part has died at time of death of party of first part, share of such deceased son shall be given in equal proportion to heirs of said deceased's son. 8. Whenever occasion arises to distribute immovable properties stated above in sub-para (a) of para (i), it shall be absolute right and authority of trustees to decide whether properties be distributed by metes and bounds and to allot portion or to divide by paying compensation and to decide to whom to give compensation and of such amount and in such manner or to divide immovable properties by selling same." (v) Smt. Shakuntala, sister of settlor, died on 12-10-1970. (vi) In their wealth-tax return for assessment year 1971-72 assessees had shown value of their remainderman's interest in aforesaid trust at Rs. 71,585 each, as on 31-12-1970 being valuation date. (vii) On 29-12-1979, assessees sold their remainderman's interest in aforesaid trust to Nishant trust for consideration of Rs. 1,76,000 each. 4. In their income-tax returns for year under appeal, assessees claimed that on aforesaid transaction, no capital gains was chargeable under section 45 of Income-tax Act, 1961 ('the Act') in following terms: "2. I was having remainderman's interest in Tulsidas Hargovindas trust which I have sold to Nishant trust on 29-12-1979 for consideration of Rs. 1,76,000. It is submitted that as aforesaid property did not cost anything to assessee capital gain is claimed in view of decision of Madras High Court in CIT v. K. Rathnam Nadar [1969] 71 ITR 433." 5. During course of assessment proceedings, assessee reiterated their claim in following manner: "Please refer to your above cited notice. In this connection I beg to submit as under: Under deed of settlement dated 16th May, 1960, made by Tulsidas Hargovindas, I became entitled to remainderman's interest in value of property compressed under trust on expiry of last survivor. Settlor, Shri Tulsidas Hargovindas, is still alive. In circumstances date of creation of will and other day in connection with will are not necessary. value of remainderman's interest as on date of settlement i s not known and there is no previous owner of property sold by me, i.e., remainderman's interest. Thus, as there was no previous owner of remainderman's interest I do not know cost of acquisition of remainderman's interest. I may again reiterate that what is sold by me is remainderman's interest which is property to which computation provisions of section 45 is not applicable and all transaction covered by section 45 must fail under computation provisions. I may rely on decisions of Supreme Court in CIT v. B.C. Srinivasa Setty [1981] 128 ITR 294." 6. ITO, vide his letter dated 22-11-1982, called upon assessees to furnish him cost of remainderman's interest as on 1-1-1964 in following manner: following manner: "3. On verification of your above statements from your case records it is seen that in your case previous owner is settler of trust who is Shri Tulsidas Hargovindas. You have got your remainderman's interest under trust after death of Smt. Shakuntala. She cannot be stated to be previous owner as per Explanation of section 49(1) of Income-tax Act, 1961, because she did not acquire asset in form of remainderman's interest by mode of acquisition other than that referred to in clauses of sub-section (1) of section 49. In this case asset in form of remainderman's interest became property in her hands under transfer to trust. Therefore, in this case last previous owner is settlor. Thus, cost of acquisition in your hands is to be determined as cost of acquisition which was in hands of previous owner or fair market value of asset on 1st day of January, 1964, at your option. Here capital asset, namely, corpus of trust become property of previous owner before 1st day of January, 1964, and capital asset in form of remainderman's interest become property in your hands by modes specified in sub-section (1) of section 49. Now you furnish working of cost of acquisition of this asset as per above provisions." 7. For reasons stated in assessment orders, ITO did not accept stand taken on behalf of assessees and worked out taxable capital gains of Rs. 74,561 each on basis that value of remainderman's interest as on 12-10-1970, day on which Smt. Shakuntala died was Rs. 71,585 as per t h e wealth-tax assessment for assessment year 1971-72 in each of cases. 8. In appeals before Commissioner (Appeals) assessee reiterated their stand that since there was no cost in acquiring remainderman's interest, no capital gains could be worked out under section 45. Reliance was placed on decision in cases of CIT v. B.C. Srinivasa Setty [1981] 128 ITR 294 (SC), CIT v. Clive Mills Co. Ltd. [1982] 9 TAXMAN 80 (Cal.) and CIT v. Satya Paul [1983] 13 TAXMAN 235 (Cal.). Distinguishing decisions in these cases, Commissioner (Appeals) held that "remainderman's interest was capital asset whose cost of acquisition was capable of estimation and whose cost in fact was estimated at Rs. 71,585 as on 31-12-1970..." In this view of matter, Commissioner (Appeals) confirmed action of ITO. 9. Being aggrieved by orders of Commissioner (Appeals), assessees have come up in appeal before Tribunal. learned counsel for t h e assessees submitted that Commissioner (Appeals) has failed to appreciate ratio laid down in case of B.C. Srinivasa Setty (supra). In this connection, he invited attention of Tribunal to following observation: "What is contemplated is asset in acquisition of which it is possible to envisage cost. intent goes to nature and character of asset, that it is asset which possesses inherent quality of being available on expenditure of money to person seeking to acquire it...." (p. 300) and submitted that remainderman's interest is not asset which could be available for price. Till Smt. Shakuntala was alive, assessee had only contingent interest in trust properties and, therefore, there was no question of acquiring such interest for price. It was only on her death that remainderman's interest sprang up for which assessees had paid nothing or for that matter settlor too had paid nothing. In fact, it was only by deed of trust, remainderman's interest was created and that too on happening of certain contingency, for which no cost element could be identified or envisaged. He further submitted that even assuming that assessees had acquired remainderman's interest under section 49(1)(iii)(d) of Act, since there was no 'last previous owner' of such interest as contemplated in Explanation to sub-section (1) of section 49, its cost of acquisition could not be conceived. In other words, he emphasised fact that even though remainderman's interest is asset, provisions of section 45 cannot be attracted because on facts and in circumstances of case, no cost at all could be conceived for acquiring such asset. He, therefore, urged, that income-tax authorities were not justified in working out chargeable capital gains in instant case. In support of his contentions learned counsel for assessees, apart from relying on decision in case of B.C. Srinivasa Setty (supra), relied on decisions in cases of Evans Fraser & Co. Ltd. v. CIT [1982] 137 ITR 493 (Bom.), CIT v. Modiram Laxmandas (P.) Ltd. [1983] 142 ITR 702 (Bom.), CIT v. Mrs. Shirinbai P. Pundole [1981] 129 ITR 448 (Bom.,) and Nila Products Ltd. v. CIT [1984] 148 ITR 99 (Bom.) learned representative for revenue kly relied on orders of income-tax authorities and urged that Tribunal should uphold orders of Commissioner (Appeals). 10. We have carefully considered rival submissions of parties and we find considerable force in stand taken on behalf of assessees. It is no doubt true that remainderman's interest is asset. In fact, assessees had shown its value at Rs. 71,585 each in their wealth-tax returns for assessment year 1971-72. It is also not in dispute that assessees have sold such interest at Rs. 1,76,000 each, to Nishant trust. On these facts, question is whether provisions of said section 45 are attracted. Now in order to apply provisions of said section, two things are required, viz., (i) cost of acquisition of asset, and (ii) price at which such asset was sold. As stated earlier, assessees have sold their remainderman's interest at Rs. 1,76,000 each. question now to be examined is cost of acquisition of such interest. assessees acquired such interest only on 12-10-1970 when Smt. Shakuntala died. Prior to that date this interest was not in existence and there was no 'last previous owner' of such interest as contemplated in Explanation to sub-section (1) of section 49. Therefore, cost of acquisition of such interest cannot be undignified or conceived which is required for computing chargeable capital gains under section 45. settlor of trust was full owner of properties settled in trust and, therefore, there is no question of his having remainderman's interest in trust properties for which he might have said something as 'the last previous owner'. In other words, in our opinion, cost of acquisition of remainderman's interest cannot be conceived or identified. Therefore, assessees' case squarely falls within ratio laid down in case of B.C. Srinivasa Setty (supra). In this view of matter, provisions of section 45 cannot be attracted and assessees would not be liable to capital gains on transactions involved in instant cases. ITO is, therefore, directed to modify assessments accordingly. 11. In result, both appeals are allowed. Per Shri V.S. Gaitonde, Accountant Member-I have gone through order of my learned brother colleague. I have also taken full benefit of indulgence granted to me in matter of discussing and making all efforts to understand and appreciate each other's views. I am thankful to my brother colleague. I have, however, found myself in respectful disagreement with him. 2. facts have been discussed at length in order of my learned brother and need no repetition but following aspects may be highlighted: (a) Shri Tulsidas Hargovindas who had received certain properties on partition was considered fully competent to alienate properties in form of (i) bungalow Tulsi Kunj, (ii) shares, and (iii) securities of aggregate value of Rs. 1,70,500. (b) Shri Tulsidas settled above properties in trust on 16-5-1960 under certain terms mentioned in paragraph No. 3 of order of my learned brother. On fulfillment of certain conditions trustees were required to distribute immovable property to assessee. As Shri Tulsidas is alive question of distribution did not arise. (c) Before occasion for actual handing over property arose assessee sold his interest to Nishant trust for Rs. 1,76,000. 3. assessee's contention was that as he had no cost for asset, there is no question of capital gain. This contention was rejected by authorities below for reasons given by them. 4. I do not find any basis for proposition canvassed on behalf of appellant that wherever there is no cost of asset to assessee there are no capital gains liable to be taxed. CIT v. K. Rathnam Nadar [1969] 71 ITR 433 (Mad.) had following observation: "...Though goodwill is capital asset, in case of goodwill of business, it cannot be said that it became capital asset of firm at any particular point of time. It is something which goes on slowly growing and perhaps waxing and waning also. What exactly is value of goodwill of business at any point of time may have to be worked on proper basis by cost accountants." (p. 434) It was further observed that unlike British and American Taxation Laws, Indian Act did not have in its contemplation that self-created assets like copyright, patents and goodwill should be subjected to capital gains arising on their transfer. This judgment was followed by other High Courts. Gujarat High Court h e l d contrary view in CIT v. Mohanbhai Pamabhai [1973] 91 ITR 393. However, now we have to see Supreme Court judgment in B.C. Srinivasa Setty's case (supra). Their Lordships did not agree that goodwill is capital asset within scope of section 45, as goodwill denotes only benefit arising on account of variety of elements going into its making and its composition varies in different trades and businesses. Its value may fluctuate from one moment to another. It is also impossible to predicate moment of its birth. What is contemplated by section 48(ii) of Act is asset in acquisition of which it is possible to envisage cost. 5. above legal position, thus, can be summed up by stating that there can be no capital gains liable to tax on assets (i) which are self generated having no cost (ii) whose moment of birth is not ascertainable. Neither of these conditions hold in this case. asset sold by assessee cannot be said to be self-generated. Its moment of birth is also known, viz., date of execution of trust. It may be that between date of execution of trust dated 16-5-1960 and date of death of Smt. Shakuntala having prior interest (12-10-1970) interest of assessee was contingent, but this does not lead to conclusion that asset was not asset under section 2(14) of Act or that is was self- generated or that moment of birth is not known. It may also be mentioned here that instances covered by Supreme Court judgment above do not extend to cases covered by section 49 which makes special provision for 'deemed cost'. It cannot be disputed that asset in question, viz., remainderman's interest became property of assessee in terms covered by section 49(1)(iii)(d). Consequently read with Explanation to section 49, cost to assessee is cost of previous owner. In this case previous owner was Shri Tulsidas. Since, however, Shri Tulsidas himself obtained assets under conditions mentioned in section 49(1)(i), we will have to trace ownership back to bigger HUF which perhaps acquired property otherwise than under process mentioned under section 49. fact that ITO has not gone through this exercise and wrongly adopted wealth-tax value as cost cannot be allowed to colour issue regarding liability to capital gains. 6. main questions now are if 'the asset' sold by assessee is remainderman's interest in trust who was previous owner of this asset? Was there any previous owner at all? If there was no previous owner, can it be said that case is not covered under section 49 and consequently asset should be considered as one of types referred to in B.C. Srinivasa Setty's case (supra)? In my opinion, words 'the capital asset' have to be taken as referring to asset even if it existed in conglomeration or in inchoate or nebulous form. There is no dispute that Shri Tulsidas settlor was full owner of properties at time of execution of trust. Ownership is bundle of rights. All these rights dovetailed into single ownership in hands of settlor Shri Tulsidas who through settlement dated 16-5-1960 scattered them into different categories and distributed them amongst trustees, himself, first beneficiaries and remainderman, etc. transferor cannot give to transfers any better type than those vesting in transferor. Therefore, unless right in form 'remainderman's interest' was embedded in ownership rights of settlor assessee could not have acquire any such title. This right was valued for wealth-tax purposes. On its sale gave capital gains arose. No authority has been placed in support of contention that asset sold must exist in same identifiable form in hands of previous owner to fall under section 49. wordings of section 49(1)(iii) itself show that such identity was not envisaged because in every settlement on trust rights in settled property gets distributed amongst trustees and beneficiaries. If follows that asset sold by appellant does not answer description of asset described in B.C. Srinivasa Setty's case (supra) for taking it out of purview of section 45. I, therefore, hold that there was asset and that asset did exist in hands of previous owner. ratio of B.C. Srinivasa Setty's case (supra), therefore, does not apply to this case. It is to be noted that existence or otherwise of previous owner is not one of criteria referred to in Supreme Court judgment. I am, therefore, of opinion that this asset sold by assessee does constitute capital asset under section 2(14) and that capital gains are assessable under section 45. ITO has doubtless made mistake in determining 'cost' but as neither side has addressed any argument on this I am not in position to propose expansion of enquiry at this late stage. 7. argument regarding non-liability on account of no cost, thus, has its own limitations. For example in case of adverse possession there could be no cost. Still Sampath Iyenger's Law of Income-tax, Vol. 2, Seventh edn. (p. 2162) has opined that capital gains would arise on expiry of twelfth year. Further relying on A.R. Krishnamurthy v. CIT [1981] 6 TAXMAN 289 (Mad.) author has made distinction between cases where it is difficult to say that assessee has acquired asset at cost are distinguishable from cases where it is difficult for certain reasons to evaluate cost. case before us falls under latter category. Consequently capital gain is liable to tax. 8. I, therefore, hold that in this case capital gain is correctly assessed to tax and that appeals should be dismissed. 9. appeals are dismissed. REFERENCE UNDER SECTION 255(4) OF INCOME-TAX ACT, 1961 Per Shri V.S. Gaitonde, Accountant Member-Difference of opinion has arisen between Members, who constituted Bench. following point of difference is referred to Hon'ble President of Tribunal under section 255(4) of Act: "Whether, on facts and in circumstances of case, assessee is liable to be taxed as capital gains arising on account of sale of his interest in trust dated 16-5-1960?" THIRD MEMBER ORDER Per Shri T.D. Sugla, President-On difference of opinion between learned Members who heard appeals originally, following point of difference was stated: "Whether, on facts and in circumstances of case, assessee is liable to be taxed as capital gains arising on account of sale of his interest in trust dated 16-5-1960?" 2. relevant facts have been stated correctly and in detail, by learned Judicial Member in his order. There is no dispute about them. For sake of brevity, those are not stated here, in detail. Suffice it to say that assessees herein are grandsons of Shri Tulsidas, hereinafter referred to as settlor, who had received certain assets of value of Rs. 1,70,500 on partition of joint Hindu family on 8-4-1960. On 16-5-1960, settlor settled those assets on trust. While he reserved life-interest in himself, assets, after meeting certain obligations, were to be distributed amongst his sister and her sons, if any, equally after his death. provision was made for meeting certain other contingencies in this regard. fact of matter is that his sister died during his lifetime, i.e., on 12-10-1970, whereafter remainderman's interest in trust properties get vested in her (deceased sister) two sons, assessees herein. In their wealth-tax assessments, assessees have been showing value of their interest in trust properties at Rs. 71,585 each. Both assessees herein have sold their interest on 29-12-1979 to another trust by name Nishant trust for consideration of Rs. 1,76,000 each. 3. It has been claim of assessee that no surplus liable to tax as capital gains arose on above transactions as asset in form of remainderman's interest in trust property did not cost them or anybody else anything. claim has been rejected by ITO and Commissioner(Appeals) has agreed with ITO. As already stated, learned Members who heard appeals, originally, have differed. learned Judicial Member has taken view that remainderman's interest in trust property, which has been sold in this case, did not cost assessee anything and assuming capital asset, i.e., remainderman's interest in trust properties, became property of assessees in terms of section 49(1)(iii)(d), there being no previous owner of such capital asset, its cost of acquisition cannot possibly be conceived. For this and other reasons given in paragraph No. 10 of his order, learned Judicial Member has taken view that surplus is not liable to tax as income under head 'Capital gains' within meaning of section 45. learned Accountant Member has been of view that settlor has been full owner of properties at time of execution of trust, that ownership is bundle of rights and, that remainderman's interest is part of those rights and therefore, remainderman's interest was also owned by settlor as part of his overall ownership rights over assets. For this and other reasons given in paragraph Nos. 6 and 7 of his order, he has held that surplus has been rightly assessed to capital gains tax. 4. It is reiterated before me by Shri J.P. Shah, learned counsel for assessees, that remainderman's interest in trust properties in altogether new asset. Placing reliance on observations of Supreme Court in case of CWT v. Trustees of H.E.H. Nizam's Family (Remainder Wealth) Trust [1977] 108 ITR 555 at p. 596, it is submitted that right to receive share in corpus of trust at uncertain future date cannot, certainly, be correlated with trust property itself. More or less, same view, it is stand, has been taken by Bombay Bench 'E' of Tribunal in case of Gopaldas T. Aggarwal v. ITO [1983] 6 ITD 451. Referring to observations of Supreme Court in case of B.C. Srinivasa Setty (supra) that all transactions to be covered by section 45 must fall under governance of its computation provisions, it is contended that transactions to which computation provisions cannot be applied, must be regarded as never intended by section 45 to be subject-matter of charge. What is contemplated by section 48(ii) is asset, in acquisition of which it is possible to envisage cost, it must be asset which possesses inherent quality of being available on expenditure of money to person seeking to acquire it. Referring then to decision of Bombay High Court in case of Evans Fraser & Co. Ltd. (supra), it is stated that above observations of Supreme Court are equally applicable as regards 'cost of improvement'. According to Shri Shah, value of asset in shape of remainderman's interest fluctuates as result of number of factors, such as, age and health of settlor. Though value of asset will increase with passage of time, it is difficult to value cost of any improvement of asset. In any event, it is not capable of improvement at ascertainable cast. Reliance is also placed on decision of Delhi High Court in case of Bawa Shiv Charan Singh v. CIT [1984] 149 ITR 29 and Bombay High Court's decisions in cases of Nila Products Ltd. (supra) and Mrs. Shirinbai P. Pundole (supra). Fairly admitting that in all above three cases, question involved was that of surrender of tenancy rights, it is urged that ratio laid down is that cost of acquisition of asset and cost of improvement thereon must be fairly and reasonably ascertainable in order to attract provisions of section 45. In this context, my attention was also invited to order of Bombay High Court under section 256(2) of Act holding that no question of law arose out of Tribunal's conclusion that amount of Rs. 3 lakhs received by assessee on relinquishment of tenancy right was not taxable under section 45-CIT v. A.R. Dias & Bros. (IT Appeal No. 61 of 1984 dated 21-9-1984)-Bombay Chartered Accountant Journal, December, 1984 edn., p. 996. 5. It is pertinent to mention that at time of hearing on 15-2-1985 at Ahmedabad, Shri Shah had raised new point, namely, that remainderman's interest was mere chance to succeed and, therefore, as held by Supreme Court in case of Smt. Rukamanbai v. Shivram AIR 1981 SC 1881 at p. 1886, such interest is in nature of space successions and, therefore, not property. departmental representative, Shri S. Bhattacharya, had then sought adjournment on ground that it was new point raised and that he wanted time to meet point. However, when case was heard at Bombay, Shri Shah submitted that he was not serious in contending that remainderman's interest is in nature of space successions and, therefore, not property. His only attempt was to establish that reasoning of Supreme Court and of Bombay High Court, as given in respect of goodwill, will kly apply to case of asset of type of remainderman's interest. 6. Shri Bhattacharya, senior departmental representative submits that Third Member has no jurisdiction to entertain new point, as, according to him, if Third Member accepts new point, his view is going to be minority view and for purpose of finally disposing of appeal in case like present one, there has got to be majority view. Reliance in this behalf is placed on decision of Patna High Court in case of Hanutram Chandanmul v. on decision of Patna High Court in case of Hanutram Chandanmul v. CIT [1953] 23 ITR 505. On merits, he stated that expression property' has not been defined in Act. Section 6 of Transfer of Property Act, 1882, refers to all types of properties which can be transferred except few mentioned in section. One such exception is property in nature of spes successionis. This, according to Shri Bhattacharya, only means that spes successionis is also property though it may not be transferable. Referring to facts in present case, Shri Bhattacharya submits that there cannot even be dispute in this case as remainderman's interest has, as matter of fact, been transferred. Therefore, it is not case which can even fall within exception. My attention is also invited to Salmond on Jurisprudence, Twelfth edn., where it has been stated as under: "Ownership is either vested or contingent. It is vested when owner's title is already perfect, it is contingent when his title is as yet imperfect, but is capable of becoming perfect on fulfillment of some condition. In former case ownership is absolute; in latter it is merely conditional. In former case investive fact from which he derives right is complete in all its parts; in latter it is incomplete, by reason of absence of some necessary element, which is nevertheless capable of being supplied in future..." (p. 262) It is argued that Supreme Court's decision in case of B.C. Srinivasa Setty (supra) deals with intangible asset, i.e., goodwill, which has three peculiar features, namely, (i) indeterminate factors contributing to formation of goodwill, (ii) its time of birth is not known, and (iii) its value is fluctuating from year to year, etc. Therefore, great caution is necessary while applying ratio of B.C. Srinivasa Setty's case (supra) to case like present one where capital asset is tangible asset. Taking me through paragraph Nos. 8 to 11 of Commissioner (Appeals)'s order, Shri Bhattacharya submits that remainderman's interest can be purchased even at initial stage. According to him, ownership is bundle of rights. person who owns property also owns life-interest as well as remainderman's interest and, therefore, it is not correct to say that remainderman's interest was not owned by anybody. As regards cost of improvement also, Shri Bhattacharya points out that fluctuation in price of asset on account of passage of time is not improvement of asset and market value goes up because of fluctuation. case of goodwill is different. value of goodwill goes up and goes down with business and fluctuation of business prospects. decisions in regard to tenancy rights, relied upon by Shri Shah, according to Shri Bhattacharya, are distinguishable as tenancy rights cannot, admittedly, be acquired at cost, there being prohibition of accepting salami, etc. As regards Bombay Bench order of Tribunal, Gopaldas T. Aggarwal's case (supra), and Bombay High Court's decision under section 256(2), essential fact has been that property was received on inheritance which could not have been visualized. In other words, submission is that remainderman's interest is capital asset, that it is possible to envisage cost of acquisition of remainderman's interest and that question of any improvement in case of remainderman's interest does not, possibly, arise. 7. As stated earlier, Shri Shah, learned counsel for assessee, has not pressed his contention that remainderman's interest is not capital asset. Even otherwise, I am of view that assessees, herein, were to get right of enjoyment over trust property after death of settlor which event is bound to happen. What is uncertain about it is only timing of it. Accordingly, it is difficult to accept that such interest is not property and, therefore, not capital asset. Moreover, assessees have been able to sell their interests in this case and if it was to property, it would be difficult to conceive how such interest could be transferred in view of section 6. I, therefore, proceed on basis that remainderman's interest is property and, therefore, capital asset. 8. There being no dispute that if surplus arising on sale transaction of remainderman's interest herein is to be taxed as income under head 'Capital gains', it has to fall within sub-clause (d) of clause (iii) of sub-section (1) of section 49 and if that be so, it has to further fall within preview of Explanation 1 which reads as under: "In this sub-section expression 'previous owner of property' in relation to any capital asset owned by assessee means last previous owner of capital asset who acquired it by mode of acquisition other than that referred to in clause (i) or clause (ii) or clause (iii) or clause (iv) of this sub- section." This takes me to question whether there was 'previous owner' of property which in this case is remainderman's interest. It was vehemently argued by Shri Shah that previous owner which would be joint Hindu family on partition of which settlor acquired this property, owned entire corpus of trust and never owned remainderman's interest as such. In other words, his submission has been that even if it is held that remainderman's interest is covered by section 49(1)(iii)(d), there being no previous owner of remainderman's interest, transaction will not attract capital gains liability. In my view, argument, though ingenious, is fallacious. It does not need argument to say that ownership is bundle of rights over property. person cannot give what he does not possess. fact that settlor has created remainderman's interest, is in my view, sufficient to justify finding that he possessed or owned interest. It is different thing that he owned both life-interest and remainderman's interest and two taken together constituted full ownership. As I understand, owner of property can divide his ownership rights in number of ways. For instance, if he owns big house, he can dispose it of room by room, floor by floor and wing by wing. He can also dispose of his ownership rights by providing for its enjoyment periodwise. Likewise, he can also dispose of those rights in manner it has been done in this case, i.e., by creating life-interest for somebody and remainderman's interest for somebody else. These are different methods of disposing of ownership rights. It does not mean that merely because owner of building has decided to dispose of room, he is not owner of room as such. person who is full owner of property is also owner of its parts. Accordingly, I am inclined to hold that previous owner in this case, is also owner of remainderman's interest. 9. This takes me to third and more important aspect of matter, namely, what is its cost to previous owner. Supreme Court has, admittedly, held in case of B.C. Srinivasa Setty (supra) that unless it is possible to conceive cost of capital asset and it is available on expenditure of amount, surplus arising on sale thereof will not attract expenditure of amount, surplus arising on sale thereof will not attract capital gains tax. In my view, for purpose of finding whether remainderman's interest is available for price or not one has to assume that there are people who have remainderman's interest. assessees herein having disposed of their remainderman's interest, it is difficult to accept that person possessing remainderman's interest would not sell it for price. I also do not find any difficulty in computing value of remainderman's interest in hands of previous owner once it is accepted as concept that previous owner owned entire property and could dispose of his ownership rights in any manner he liked including by creating life-interest and remainderman's interest. mere fact that it is difficult to compute cost of remainderman's interest in hands of previous year does not justify conclusion that cost cannot be conceived. For this and other reasons given by learned Accountant Member, I hold that remainderman's interest is capital asset and that said capital asset was owned by previous owner in terms of Explanation 1 to section 49(1). Accordingly, I further hold that assessees are liable to tax under head 'Capital gains' on surplus arising from sale transactions of their remainderman's interest. 10. In result, I agree with learned Accountant Member. This order will now go to Division Bench for decision according to majority view. *** VASTAL N. PARIKH v. INCOME TAX OFFICER