COMMISSIONER OF INCOME TAX Vs. PREM KUMAR

JUDGEMENT

(1.) BY this application under Section 256(2) of the IT Act 1961, the Department seeks calling of a reference on the following question of law, which is alleged to arise out of Tribunal's order dt. 30th June, 1997: Whether on the facts and circumstances of the case, Hon'ble Tribunal was justified in holding that no capital gain is exigible to tax in asst. yr. 1984 -85 We have heard learned Counsel for the IT Department.

(2.) THE essential facts in this case are that the land of the respondent was acquired under the Land Acquisition Act, 1894. The land acquisition notification was issued on 15th Nov., 1975. Section 17(4) of the Land Acquisition Act, 1894 had been applied. Possession of the land was taken on 23rd Dec, 1983 (i.e. during asst. yr. 1984 -85). A small part of the compensation that is Rs. 25,000 was received by the respondent on 11th July, 1984 ( i.e. during asst. yr. 1985 -86). The compensation award was given by the Collector/Land Acquisition Officer on 18th Sept., 1986. The remaining compensation amounting to Rs. 1,77,708 pursuant to the said award was received by the respondent on 3rd Sept., 1987 ( i.e. during asst. yr. 1988 -89).

(3.) THE learned Counsel for the Department has relied upon a large number of authorities referred below: (1) CIT v. Nawab Mahmood Jung Bahadur : [1988]172ITR592(AP) ; (2) Syed Abdul Basir v. CIT ; (3) CIT v. Shiv Chand Satnam Paul ; (4) G.M. Omer Khan v. Addl. CIT : [1992]196ITR269(SC) ; (5) CIT v. Smt. Sheggy Abdulla : [2000]243ITR792(Ker) ; (6) Smt. Jeejeebai Shinde v. CIT : [1983]144ITR693(MP) ; (7) Executors to the Estate of late Shrimant Saraswatibai Patwardhan v. CIT : [1984]150ITR234(Bom) ; (8) Harish Chandra and Ors. v. CIT (1985) 45 CTR (Delhi) 329 : (1985) 154 ITR 478; (9) Buddaiah v. CIT : [1985]155ITR277(KAR) ; (10) CIT v. Purshottambhai Maganbhai Hatheesing (HUF) : [1985]156ITR150(Guj) ; (11) S. Appala Narasamma v. CIT : [1987]168ITR17(AP) ; (12) CIT v. Subodh Kumar Jain : [1996]221ITR802(MP) . In substance relying upon the aforesaid authorities and also relying upon the definition given in Section 2(47) of the IT Act, 1961, the contention of the Department is that for determining the assessment year in which capital gain should be taxed, it is the date of transfer which has to be considered and because under Section 16 of the Land Acquisition Act, 1894, the title passes to the Government upon taking of possession, therefore, the date of transfer in matters of compulsory land acquisition would be the date on which possession is taken.