COMMISSIONER OF INCOME TAX Vs. VIJAYMAL SAND

JUDGEMENT

(1.) BY this reference made at the instance of the Revenue, the Tribunal has referred the following two questions of law to this Court under s. 256(1) of the IT Act, 1961 : '(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the surplus realised by the assessee on the sale of the shares and flat represented by them in Suburban Queen Co -operative Housing Society Ltd. constituted long -term capital gain and was entitled to relief under s. 80T(b)(ii) of the IT Act, 1961 ? (2) Whether the Tribunal was justified in holding that the capital asset sold by the assessee on 16th April, 1974 was the very same asset as the share in the Suburban Queen Co -operative Housing Society Ltd. purchased by him in 1964 ?'

(2.) THE counsel for the parties are agreed that in view of the decision of the Supreme Court in Ramesh Himmatlal Shah vs . Harsukh Jadhavji Joshi : AIR1975SC1470 , it is clear that the deduction in respect of transfer of the shares of the Suburban Queen Co -operative Housing Society Ltd. shall amount to transfer of right or interest in the flat and, hence, the assessee will be entitled to deduction in respect of long -term capital gain arising on account of the transfer of the same under s. 80T(b)(i) of the Act. In view of the above stance of the counsel for the parties, we hold that the Tribunal was not justified in holding that the surplus realised by the assessee on the sale of the shares and flat represented by them in Suburban Queen Co -operative Housing Society Ltd. constituted long -term capital gain and was entitled to relief under s. 80T(b)(ii) of the IT Act, 1961. On the other hand, it would be the relief under s. 80T(b)(i) of the Act. The above question No. 1 is answered accordingly. In view of the answer to question No. 1, question No. 2 is not pressed by the Revenue. The same is, therefore, returned unanswered. No order as to costs.