COMMISSIONER OF INCOME TAX Vs. ANAND PRASAD

JUDGEMENT

(1.) FOR the asst. yrs. 1958 -59, 1959 -60 and 1960 -61, the following question has been referred for our opinion in respect of the assessee who was the late R.S. Banarsi Dass of Delhi:

(2.) THE facts of the case are that the assessee had an estate at Lawrence Road and some plots were sold in the relevant financial years 1957 to 1960, which correspond to the three assessment years. The ITO considered that the sale of the plots constituted a business and the taxable profits in that business for the three years were Rs. 63,971 for 1958 -59 asst. yr., Rs 1,61,489 for the asst. year 1959 -60 and Rs. 39,212 for the asst. year 1960 -61. It appears that even for the two earlier assessment years, namely, 1956 -57 and 1957 - 58, the same view had been adopted, but the Tribunal had reversed the decision of the ITO and of the AAC, by its order dt. 30th Oct., 1963. By that judgment the Tribunal had held that the sales of land were not an adventure in the nature of trade and hence these profits were not assessable to tax.

(3.) THE ITO preferred appeals to the Tribunal and set out identical grounds of appeal for the three years. Although the grounds of appeal have been annexed to the statement of the case as annex. C, we find that in fact annex. C is not the grounds of appeal, but some other application. So, we are unable to peruse the said grounds. In any event, the Tribunal merely repeated its decision for the previous two years and also noted that a reference application to the High Court against the Tribunal's decision for the years 1956 -57 and 1957 -58 had failed. Then the Tribunal noted in paragraph No. 5 of its order dt. 24th Oct., 1968, that it was now contended that if the profits were not taxable as "business gains", then they were taxable under the head "Capital gains". This contention was opposed by the assessee on the ground that no such contention had been raised before the AAC and this ground should not now be allowed. The Tribunal held: