9911796707
TMI Blog1986 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 7623 sq. yds. was acquired by the Government of Gujarat for the purpose of constructing residential quarters for its employees. According to the land acquisition order of the District Deputy Collector of Bulsar a notification for acquisition under s. 4 of the land Acquisition Act, was published by the Government of Gujarat on 7th Sept., 1972. After necessary proceedings, the land was finally acquired and vested in the Government by an Award and an order of vesting passed by the District Deputy Collector on 6th July, 1975. As the transfer of the land was effected on 6th July, 1975 during the relevant previous year, the ITO was of the view that capital gains arising therefrom was includible in the total income of the assessee. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land in question as non-agricultural land. In this connection, he relied on the order of the Hon'ble Gujarat High Court in the cases of CIT vs. Siddharth J. Desai (1983) 28 CTR (Guj) 148 : (1983) 139 ITR 628 (Guj) and CIT vs. Vajulal Chunilal HUF (1979) 10 CTR (Guj) 79 : (1979) 120 ITR 21 (Guj) as also referred to s. 23 of the Land Acquisition Act, more particularly the foot notes at page 893 of AIR Manual Vol. 23. Finally, he submitted that since the Revenue has accepted the said order of the AAC dt. 13th March, 1986, inasmuch as further appeal was preferred before the Tribunal. The land in question should be treated as agricultural land. The ld. representative for the Department, on the other hand, submitted that just because the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h effect from 1st April, 1983 and the provision of s. 54B of the Act, the ld. counsel for the assessee strongly argued that the benefit as contemplated under s. 54B of the Act would be available to the assessee HUF. In this connection, he highlighted the fact that with effect from 1st April, 1983, the words in the case of an assessee being an "individual" were inserted in s. 54 of the Act, but similar words were not inserted in s. 54B of the Act. In this respect, he invited our attention to (1982) 134 ITR 138 (statute) paragraph 39 (iii) with a view to impress upon us that the benefit under s. 54 of the Act, was given only in the case of individual taxpayers and not HUF. Since similar amendment was not made in s. 54B of the Act, the ld. cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under s. 54 B of the Act. The relevant provisions of s. 54 as it stood prior to the amendment with effect from 1st April, 1983, reads as under: "Whether a capital gains arises from the transfer of a capital asset to which the provision of s. 53 are not applicable, being buildings or lands appurtenant thereto the income of which is chargeable under the head 'Income from house property', which in two years immediately preceeding the date on which the transfer took place, was being used by the assessee or a parent of his mainly for the purposes of his won or the parent's own residence (hereinafter in this section referred to as the original asset), and the assessee has within a period of one year before or after that date purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Sojpal had held that the provisions of s. 54 of the Act would be applicable to an individual and not to an HUF. Since the language of s. 54 and s. 54B of the Act, is almost identical, we are of the view that the benefit as contemplated under s. 54B of the Act, would be available only in the case of an individual and not in the case of assessee. HUF, like the one in the present case. It is no doubt true that the decision in the case of Narayanaswamy in a way helps the assessee. However, the decision of the Hon'ble Bombay High Court in the case of Rowji Sojpal is contrary to the one in the case of Narayanaswamy. Since the decision of the Hon'ble High Court of Bombay is binding on us, as it was pronounced prior to the formation of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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