9911796707
TMI Blog1995 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under section 143(3), the Assessing Officer, determined capital gains taxable in the hands of the assessee at Rs. 53,486, and completed the assessment on a total income of Rs. 56,770. The said capital gains were determined on the compensation received by the assessee on acquisition of 1.90 acres of land belonging to the assessee, and situated at Kallur. In the income-tax return, assessee offered no capital gains for taxation, on the plea that the land acquired was an agricultural land, which cannot be treated as a capital asset within the meaning of clause (b) of section 2(14)(iii) of the Income-tax Act. He also pleaded that capital gains arising in the hands of his wife should not be included as the provisions of section 64 have no application in the instant case. (b) Assessee was gifted 7 acres 80 cents of land in Survey No. 399A of Kallur Village under registered deed dated 24-8-1964, which is registered as document No. 2037 of 1964 in Sub-Registrar's office, Kurnool. The gifted extent of 7.80 acres is part of the total extent of 22.30 acres in Survey No. 399A1 and A2 and the land is called as 'Jargipette'. Out of the said extent, an extent of 1 acre 90 cents was acquired b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the same. The assessee was granted Rs. 68,970 towards compensation and Rs. 10,345.50 towards solatium. Other four persons also were given compensation with which we are not concerned in this appeal. It is enough if we note that the total compensation received by the assessee was Rs. 79,315.50. In the assessment proceedings, it is the contention of the assessee that he had gifted 10 cents to his brother, Shri Abdul Samad, 9 1/2 cents to Kulsum Bi and Rabie Bi jointly on 20-12-1969 through registered deed. In addition to the above, he claimed that as per the promises made to his father he made oral gifts on 10-4-1970 to the following five persons :--- (1) M. Abdul Samad 0.20 cents (2) Zaheera Bi 0.9 1/2 cents (3) Jaithum Bi 0.40 cents (4) Jubeda Bi 0.40 cents (5) Mehrunnisa Begum 0.40 cents It was submitted that on that ground, the whole of the compensation received should not be considered in his hands, but should be considered in the hands of the above five persons to whom oral gifts were made. (c) For the reasons exhaustively given in the assessment order, the ITO did not believe the oral gifts said to have been made by the assessee or the genuineness of those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessable on acquisition of such land would be nil in the light of the decision of the Bombay High Court in the case of Health Colonies Constructions (P.) Ltd v. A. C Chandra, ITO [1980] 4 Taxman 381. It is submitted by the learned counsel for the assessee that the Gazette notification dated 11-9-1975 itself speaks clearly that the land which was acquired was 'arable' which means cultivable land. In that view of the matter, it was contended that the AAC erred in coming to the conclusion that the land in question was not an agricultural land on the ground that the assessee did not get any compensation for loss of income. It was also the contention of the assessee that the land revenue was paid as an agricultural land, but eversince the Gazette notification was published on 15-12-1970, that is, earlier notifications, the Revenue department people were asking him not to use the land, since the land was subject-matter of acquisition, the land was not put to use for agricultural purpose after 1970. 4. It is also contended in ground No. 2 that the acquisition proceedings in fact commenced with effect from 15-12-1970 by G.O.Rt. No. 1765 (EDA) and the same was affirmed by its publicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten submissions dated 22-9-1994, it was submitted that in the original order of this Tribunal dated 30-11-1993 it was held that the relevant notification was published in A.P. Official Gazette on 24-3-1977, and therefore, the capital gains are assessable for the assessment year 1977-78. Since the Tribunal ultimately dismissed the appeal of the assessee by its order dated 30-11-1993, it was requested that the Tribunal's order dated 30-11-1993 may be amended to the effect that the capital gains are assessable for assessment year 1977-78 instead of 1978-79 and the assessee's appeal for the assessment year 1978-79 be a1lowed. In the additional submissions made by the other representation dated 22-9-1994 filed by the learned counsel for the assessee, after extracting certain portions of the Tribunal's order dated 30-11-1993 disposing of this appeal originally, from pages 6 and 7 thereof, it was submitted that the relevant assessment year for taxing the capital gains is 1977-78 and not 1978-79, and as such the capital gains were wrongly assessed in the assessment year 1978-79, which is the year under appeal. 7. The learned counsel for the assessee has also placed reliance on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, the compensation received by the assessee from the State Government is subject to capital gains tax. 10. As regards the contention of the learned counsel for the assessee that the date of acquisition should be the date of G.O.Rt. No. 1765 dated 15-12-1970, with which the acquisition proceedings in question commenced, we are unable to accept the said contention, because the said draft notification published under section 4(1) was quashed by the Hon'ble High Court, with a direction to the Government to follow the requisite procedure contemplated under the provisions of the Land Acquisition Act. Thereafter, in pursuance of the directions of the High Court, by the term notification published under section 4(1) of the Land Acquisition Act, which was published in the A.P. Gazette dated 11-9-1975, section 5(a) enquiry was conducted on 26-12-1975 and Draft Declaration under section 6 of the Land Acquisition Act was approved on 8-3-1977, which was published on 24-3-1977. Under the said notification, the R.D.O./LAO-Kurnool was appointed to conduct the award proceedings, who after conducting the necessaryproceedings, passed the award dated 25-7-1977. On this factual background, asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der it, the necessary award proceedings were conducted, which culminated in the passing of the award by the RDO/LAO-Kurnool dated 25-7-1977. 11. In the case of Vista Devi AIR 1986 SC 2025 relied upon by the learned counsel for the assessee, the question before the Supreme Court relates to dispensing 5A enquiry by invoking the provisions of section 17(1) at the time of publication of a notification under section 4(1). In our considered opinion, the said decision has no application to the facts of the case on hand, since in this case, the Hon'ble High Court in the writ petition referred to above, quashed the G.O. dispensing with enquiry under section 5A. In these circumstances, the Government has no option but to issue fresh notification and to conduct the enquiry under section 5A. 12. Similarly, in the case of Singareni Collieries Co. Ltd., the question that was considered by their Lordships of the Division Bench was about the inordinate delay in determining the compensation and paying the compensation to the claimants may be fatal. The said decision is also of no help to the assessee in this case, as we have already held, it is only the draft declaration under section 6 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal dated 11-7-1994 in M.P. No. 20/Hyd/94 preferred by the assessee, and it is only thereafter that this appeal came up for fresh consideration before us. When the order dated 30-11-1993 itself was recalled, no cognizance thereof can be taken and as such no amendment or rectification thereto can be made. Secondly, . . . such a contention with regard to the assessability of capital gains in the assessment year 1977-78 and not in the assessment year 1978-79 is taken for the first time before us, that too at this belated stage of hearing the appeal for a second time. Such a plea having not been taken before the lower authorities earlier, and having been taken for the first time before us, the same cannot be entertained in view of the decision of Full Bench of A.P. High Court in CIT v. Begum Noor Banu Alladin [1993] 204 ITR 166. Even assuming for argument sake that such a plea is tenable, we fail to see any merit in the said argument of the assessee because, it is seen from the award, a copy of which is available on record before us, that compensation amount was paid to the assessee on 30-7-1977, whereas the accounting period of the assessee relevant for the assessment year 1978-79 end ..... X X X X Extracts X X X X X X X X Extracts X X X X
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