9911796707
TMI Blog1996 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... s R. A. No. 248/Ind of 1992 for the assessment year 1987-88 on October 25, 1993 ; order dated July 27, 1992, passed in I. T. A. No. 1041/Ind of 1991 on rejection of the application filed under section 256(1) of the Act registered as R. A. No. 249/Ind of 1992 for the assessment year 1987-88 on October 25, 1993 ; and order dated July 27, 1992, passed in I.T.A. No. 1100/Ind/1991 on rejection of the application filed under section 256(1) of the Act registered as R. A. No. 250/Ind of 1992 for the assessment year 1987-88 on October 25, 1993, respectively, for our consideration and opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding the amount of Rs. 7,34,000 as capital receipt not exigibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sale of immovable property does not create ally interest in the immovable property but only creates a personal obligation of a fiduciary character which could be enforced by a suit for specific performance, not only against the vendor but also against the purchaser for consideration with notice. The Tribunal concluded that the amount of damages received was nothing but the compensation for the injury for non-performance of the contract. It was thus held that it was a capital receipt not exigible to capital gains tax since no transfer of property was involved and as such the Tribunal allowed all the aforesaid three appeals numbered 1100/Ind of 1991, filed by Indian Pharmaceuticals, Indore ; 1040/Ind of 1991, filed by Smt. Laxmidevi Nata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (i) the sale, exchange or relinquishment of the asset ; or (ii) the extinguishment of any rights therein ; or (iii) the compulsory acquisition thereof under any law ; or" The assessment year is 1987-88. The amended provision was brought on the statute with effect from April 1, 1985. The date of agreement is September 25, 1970. Prior to April 1, 1985, section 2(47) read as under: "(47) 'transfer', in relation to a capital asset, includes the sale, exchange or relinquishment of the asset or the extinguishment of any rights therein or the compulsory acquisition thereof under any law;" Shri Vyas placed reliance on section 2(47) of the Act ; CIT v. Tata Services Ltd. [1980] 122 ITR 594 (Bom) ; CIT v. Abbasbhoy A. Dehgamwalla [1992] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common order passed by the Tribunal. In view of this conclusion, we do not express any opinion on the merits of the matter and the question when submitted to us, can be considered in detail with the assistance of both the sides and can be answered in conformity with law. In the result, we allow these applications and call upon the Tribunal to state the cases, concerning the firm and its two partners, with reference to the aforesaid three appeals and refer the undernoted question of law for our consideration and opinion as expeditiously as possible : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding the amount of Rs. 7,34,000 as capital receipt not exigible to capital gains tax as no trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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