COMMISSIONER OF INCOME TAX Vs. SARASWATI JAISWAL

JUDGEMENT

(1.) THIS is an application under Section 256 (2) of the IT Act, 1961. In this application, following questions are proposed by the Revenue calling for statement of facts from the Tribunal :

(2.) THIS Court had issued notice to the assessee on whose behalf Mr. Sumit Nema, learned counsel has entered appearance. In support of the application, it is submitted by Mr. Rohit Arya, learned counsel for the Revenue, that the Tribunal has erred in law by rejecting the application forming the subject-matter of RA No. 24/jab/1998 contained in Annexure P-4 by refusing to refer the aforesaid questions to this Court. It is submitted by him that on scrutiny of facts in entirety, it is graphically clear that the assessee had inherited some agricultural land and there was a compulsory acquisition by the Jabalpur Development Authority and the assessee instead of accepting compensation accepted the offer of the Jabalpur Development Authority for acceptance of certain plots and later on sold them phase-wise basis and, therefore, the said transaction conducted by her would come within the ambit and sweep of speculative transaction and by no stretch of imagination categorised as capital gain. It is put forth by him that when the total number of plots have been 58 and in the relevant assessment year i. e. , 1991-92 she has sold 10 plots, there remains no iota of doubt that the income would squarely come in the head of profit arising from the adventure in the nature of trade. In support of his contention, he has placed reliance on the decisions rendered in the case of G. Venkataswami Naidu and Co. v. CIT AIR 1959 SC 359 and Kanwarlal Manoharwal v. CIT (1975) 101 ITR 439 (Mad ).

(3.) MR. Sumit Nema, learned counsel appearing for the assessee-respondent, per contra contended that the Tribunal while deciding the appeal has discussed in detail in para 5 of its order how there is absence of speculative transaction and the whole action of the assessee evolves around the centre of M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as 'the 1973 Adhiniyam' ). It is urged by him that the offer was given by the Jabalpur Development Authority under Section 56 of the Act and it was accepted by the assessee and hence, there was no element of speculation to get the enhanced compensation. It is urged by him that when the factum of compulsory acquisition is involved, it would be disastrous to hold that there is speculation by the assessee. In support of his contention, he has placed reliance on a Division Bench decision of this Court rendered in the case of CIT v. Smt. Bilkish Bai (1997) 225 ITR 570 (MP ).