High Court Of Madhya Pradesh : Indore Bench
CIT vs. Ajit Singh Khajanchi
Sections 256(2)
A.M. Sapre & Ashok Kumar Tiwari, JJ.
MCC No. 137 of 1995
13th May, 2004
Counsel Appeared
R.L. Jain, for the Appellant : Joshi, for the Respondent
ORDER
A.M. Sapre, J. :
This is an application made at the instance of Revenue (IT Department) under s. 256(2) of the IT Act requesting this Court to direct the Tribunal to refer the questions of law which according to Revenue do arise out of the order, dt. 25th Aug., 1993, passed by Tribunal in ITA No. 1133/Ind/1989.
Heard Shri R.L. Jain, learned counsel for the applicant and Shri Joshi, learned counsel for the respondent. Having heard learned counsel for the parties and having perused the record of the case, we are satisfied that question of law does arise out of the order, passed by the Tribunal, referred supra and hence, the Tribunal should have referred the two questions of law proposed by the Revenue to the Tribunal in their application made under s. 256(1) of the Act. In other words, on perusal of the entire controversy involved in the case, it does appear to us that questions proposed are questions of law and need to be answered by this Court in its reference jurisdiction under s. 256(1) of the Act. When the issue proposed to be debated at the instance of either Revenue or assessee is not squarely covered by the decision of Supreme Court or by the jurisdictional High Court (M.P.) and when it involves some interpretation of section of the Act on admitted facts emerging from the record of the case, then in our opinion, the question proposed does satisfy the test of it being a question of law for being referred to this Court for answer. It may be that the view taken by the Tribunal may eventually be upheld by the High Court on merits, but then that is no ground to hold that the question proposed is not a question of law. In other words, it still remains a question of law capable of being answered by this Court in its reference jurisdiction.
We do not wish to burden our order by taking note of facts of this case in much detail as the same has got to be stated by the Tribunal in the statement of fact. Suffice it to say that the issue involved in the case centers around as to whether assessee is entitled to take benefit of s. 54F of the Act in respect of the transaction entered into by an assessee which is not evidenced by registered deed of sale. Though the Tribunal by placing reliance on some of the decision of High Courts have decided the issue in favour of assessee by holding that he is entitled to get the benefit of s. 54F ibid while determining his taxing liability, yet in our opinion, it would be proper if the issue is examined by this Court in its reference jurisdiction.
We accordingly allow the application and direct the Tribunal to refer to this Court following two questions of law by taking recourse to the provisions of s. 256(1) ibid :
“(i) Whether, on the facts and in the circumstances of the case, Tribunal was justified in law in allowing the benefits of s. 54F to an assessee who owned another residential house on the date of transfer?
(ii) Whether, on the facts and in the circumstances of the case, Tribunal was justified in law in allowing the benefit of s. 54F even if the transfer is not evidenced by a registered deed?”
6. Let the statement of case be sent to this Court by the Tribunal within six months. A copy of this order together with all original papers relating to this case (if there are with the registry) be remitted to Tribunal to enable the Tribunal to refer the questions as directed.
No costs.
[Citation : 272 ITR 208]
