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TMI Blog2008 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... al for the opinion of this Court:- "Whether on the facts and in the circumstances of the case, the Tribunal was right in Law in holding that the capital gains are not assessable in the year under consideration as the transaction did take place on the date of notification, i.e. 15.5.1968 and not on the date of award on 29.9.1970?" 2. The assessee-respondent in this case is a HUF. For the accounting period ending 31.3.1971 assessment was completed on a total income of Rs.12,800/- vide order dated 12/15.2.1982 under Section 143(3) of the Income Tax Act (hereinafter referred to as the 'Act'). The assessee owned certain land which were in possession of S.A. Jain College, Ambala City, under some lease agreement for the period from 1.1.1947 to 31.8.1967. The lease was to expire on 31.8.1967. The College moved the Punjab Govt. for compulsorily acquisition of these lands through Education Deptt. of the Punjab Government. The notification u/s 4 of the Land Acquisition Act, 1894 was issued on 15.5.1968 and the notification u/s 6 of the same Act was issued on 13.8.1969. The notice u/s 9 of the Land Acquisition Act inviting claims to compensation was issued sometime thereafter and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government with a direction to recompute the income in case the possession of the land was taken during the period 1.4.1970 to 31.3.1971. 4. As a result of the direction of the Tribunal, the Assessing Officer vide his order dated 25.1.1988 came to the conclusion that the date of award i.e. 29.9.1970 was the actual date of taking possession of the land. The Assessing Officer also came to the conclusion that the award having been made on 29.9.1970 and the same date being the date of transfer of actual physical possession, the capital gains were rightly assessable for the year under consideration. The said assessment order was challenged by the assessee. However, after a detailed discussion, the Commissioner of Income Tax (Appeals) agreed with the conclusion of the Assessing Officer that the date of taking actual physical possession was 29.9.1970 and the capital gains were taxable for the year under consideration and the appeal filed by the assessee was dismissed. 5. The assessee filed further appeal before the Tribunal and it was argued on behalf of the assessee that the possession of land was taken on 15.5.1968, consequent upon the notification made by the State Govt. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand, Mr. Surinder Mohan Sharma, learned counsel for the assessee has supported the order of the Tribunal and has argued that the issue is required to be decided in the light of the observations of the order dated 19.12.1985 passed by the Tribunal on the basis of the date of possession and not on the basis of the date of award. It has further been contended by the learned counsel that it was a case of emergent acquisition of land and the possession of land was taken on 15.5.1968, therefore in view of the provisions contained in Section 17 of the Land Acquisition Act, 1894, the transfer took place on 15.5.1968 and thus, the Appellate Assistant Commissioner exceeded his jurisdiction in taxing capital gains for the year under consideration on the basis of the date of award made by the Land Acquisition Officer under Section 11 of the Land Acquisition Act. 10. We have heard learned counsel for the parties and perused the record. 11. Undisputedly, the assessee owned certain lands which were in possession of S.A. Jain College, Ambala City under a lease w.e.f. 1.1.1947 to 31.8.1967. The land was being used as a playground. After the expiry of lease period the said college remaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the notifications dated 15.5.1968 and 11.6.1969 issued by the Govt. of Haryana under Section 4 of the Land Acquisition Act and notification dated 18.8.1969 under Section 6 of the Land Acquisition Act for acquiring the land in dispute. There is no mention of invoking of the provisions of Section 17 of the Land Acquisition Act by the State Govt. in these notifications. It is also useful to refer to the provisions of Section 16 of the Land Acquisition Act, 1894 which are as under:- "16. Power to take possession- When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances." It is crystal clear from the above mentioned provisions that the Collector may take possession of the land after an award has been made under Section 11 of the Land Acquisition Act and thereupon the land shall vest absolutely in the Government, free from all encumbrances. In view of the above factual and legal position, it is crystal clear that the date of taking of possession of the land in the present case for the purpose of assessment of capital gains has to be taken from the date of award whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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