High Court Of Madhya Pradesh
CIT vs. Smt. Saraswati Bai Jaiswal
Section 45
Dipak Misra & A.K. Shrivastava, JJ.
ITA No. 38 of 2000
31st March, 2003
Counsel Appeared
Rohit Arya, for the Appellant : Sumit Nema, for the Respondent
JUDGMENT
Dipak Misra, J. :
This is an appeal preferred under s. 260A of the IT Act, 1961 (hereinafter referred to as “the Act”). This appeal was admitted on the following substantial questions of law :
“1. Whether, on the facts and circumstances of the case, learned CIT(A) and the Tribunal erred in giving direction to the AO to assess the income of Rs. 2,65,370 from sale of plot under the head ‘Capital gain’ in place of adventure in the nature of trade and business assessed by AO ?
2. Whether, on the facts and circumstances, the learned Tribunal was right in deciding the case relying on a decision against which reference under s. 256(2) of the IT Act is pending before the Court ?”
Mr. Sumit Nema, learned counsel appearing for the assessee-respondent, submitted that the controversy involved in this case is no more res integra inasmuch as this Court in IT Ref No. 123 of 1998 CIT vs. Smt. Samswati Jaiswal (2003) 184 CTR (MP) 432 : (2003) 264 ITR 358 (MP) decided on 5th Feb., 2003, has answered the reference preferred by the Revenue under s. 256(2) of the Act against the Revenue and in favour of the assessee.
Mr. Rohit Arya, learned counsel for the Revenue, made enormous strenuous endeavour to distinguish the aforesaid decision. Regard being had to the submissions raised at the Bar and the laborious attempt made by learned counsel for the Revenue and upon bestowing our anxious consideration and referring to the decision rendered in the case of Smt. Saraswati Jaiswal (supra), we have no iota of doubt in our mind that the decision rendered in the aforesaid case would apply on all fours and in full force to the present case. We may profitably refer to paras 7 and 8 (p. 365) of the earlier order. They read as under : “When the application for reference was filed by the Revenue for referring the matter to this Court, the Tribunal in para. 2 has expressed the view as under : ‘2. We have heard both the parties. We find that the Tribunal has considered this matter at length. The conclusion of the Tribunal is recorded in para. 6 of its order. From the perusal of the same, it is seen that the Tribunal has recorded the finding that in this case, the assessee had not purchased the land, but it was received by her as per the will of her late mother. It was further found that the assessee has not shown the land by her own volition, but it was compulsorily acquired by the Jabalpur Development Authority. When the land was compulsorily acquired by the Government, the assessee did try to maximise the compensation by way of opting to accept the developed plot as against the cash compensation. On these facts, the Tribunal concluded that it is a case of realisation of the value of the land received by the assessee as per her mother’s will and there was no adventure in the nature of trade. The finding of the Tribunal is based upon the appreciation of the relevant facts. Therefore, no question of law arises therefrom.” Taking into consideration the totality of facts and circumstances of the case, we are of the considered view that in the case at hand, the Tribunal has addressed itself to the factual situation and arrived at the conclusion that the assessee was entitled to be assessed under the head of “Capital gain” and not under the head of ‘profit arising from adventure’. We are disposed to think that the whole analysis is based on appreciation of facts and it has been clearly held by the apex Court in G. Vankataswami Naidu vs. CIT (1959) 35 ITR 594 (SC), that it would depend upon all the relevant facts and circumstances. In the case at hand, principally as questions of fact are involved, we are not inclined to call for the statement of facts from the Tribunal.”
4. As the obtaining factual matrix is similar, we are disposed of to think that the decision rendered in the case of Smt. Saraswati Jaiswal (supra) squarely applies to the present case and accordingly we hold that the Tribunal has not erred in recording a finding that the assessee was entitled to the benefit on the head of “Capital gain” and not liable to be assessed under the head of “speculative trade or business”. Thus, in view of our preceding analysis, we do not find any merit in the appeal and the same stands dismissed without any order as to costs.
[Citation : 264 ITR 366]
