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TMI Blog1984 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. His third objection was that the Tribunal be pleased to consider the question whether the capital gains derived from the acquisition of agricultural land was taxable or was exempt as agricultural income. 2. We have heard the learned counsel for the assessee, Shri Kaji, and the learned departmental representative, Shri Vaidya. We find some force in the submission of Shri Kaji. The ITO had passed the rectification order to add additional compensation on the basis of the order of District Judge dated 19-11-1975 and added Rs. 67,667. In view of this fact, we correct our order as under In para 2 for the words 'High Court' read 'District Judge'. In this case, the ITO has added Rs. 67,667 for the purpose of capital gain tax which the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermits the ITO to rectify his order within a period of 4 years from the date of the original order. Thus, the original order would have been rectified on or before 24-9-1976. Thus, even on the basis of the District Judge's order, which was made on 19-9-1975, the order for rectification under section 154 could have been made as stated above before 24-9-1976. 3. In the instant case, however, the order is made by the ITO on 17-10-1980 under section 155(7A). The said order, therefore, must be held to be without jurisdiction in the light of the finding that provisions of section 155(7A) had no application for the assessment year under appeal, namely, 1972-73. 4. In my opinion, therefore, the order made by the ITO, which is beyond the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he footing of the award of the LAO. Subsequent to the award of the district Court and on 17-10-1980, he passed an order under section 155(7A) to tax the capital gains on the footing of the award of the District Court. On appeal, the AAC upheld the order of the ITO. In the further appeal before the Tribunal, several contentions were raised on behalf of the assessee. The Tribunal by its order in IT Appeal No. 2252 of 1981 dated 26-2-1983 decided the appeal as under : " It is true that the ITO has not rightly invoked the provisions of section 155(7A) as assessment year involved is 1972-73. But following the observations of their Lordships of the Gujarat High Court the ITO had right to tax the additional compensation in the year of transfer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 155(7A). The portions of the Tribunal's order extracted above clearly indicated that the Tribunal had come to the conclusion that for the year under appeal, viz., 1972-73, the provisions of section 155(7A) would not apply. Neither the ITO nor the AAC or the Tribunal had made any reference to section 154 in their orders. Though the assessee's miscellaneous application, therefore, has referred to this section, in my view, it has no relevance in the present context. Reference is made to the Tribunal's order in Gujarat High Court's decision in Topandas Kundanmal's case but this laid down only a criteria for assessability of capital gains and does not refer to section 155(7A). In the above context the assessee's appeal has to be 'allowed' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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