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Showing 61 to 80 of 524 Records
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2007 (12) TMI 490 - SUPREME COURT
Suit for permanent and mandatory injunction - Disputed tittle of ownership - Jurisdiction under Section 151 of the Code of Civil Procedure - encroached portion of the suit property by erection of structure - decree of permanent injunction - Respondents contended that they are owners of a portion of Survey No. 1008/1 - appellants who are the owners of the abutting land bearing CTS No. 4823/A-1 had encroached upon a portion - Plaintiffs purchased the said plots by a deed of sale dated 7.11.1984, whereas the date of purchase made by the defendants dated 17.8.1992
HELD THAT:- The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the courts could pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on the premise that a party against whom an order of injunction was passed, acted in breach thereof; so as to relegate the parties to the same position as if the order of injunction has not been violated, but, it is another thing to say that the courts shall exercise the same power while granting a decree permanent injunction in mandatory form without deciding the question of title and/or leaving the same open. How, in the event the structures are demolished, it would be possible for the appellants to work out their remedies in accordance with law in regard to the title of the property has not been spelt out by the High Court.
We, therefore, are of the opinion that the interest of justice would be subserved if the impugned judgments are set aside and the matter is remitted to the learned Trial Judge for consideration of the matter afresh. The plaintiffs may, if they so desire, file an application for amendment of plaint praying inter alia for declaration of his title as also for damages as against the respondents for illegal occupation of the land. It would also be open to the parties to adduce additional evidence(s). The learned Trial Judge may also appoint a Commissioner for the purpose of measurement of the suit land whether an Advocate - Commissioner or an officer of the Revenue Department.
Before us, additional documents have been filed by the appellants showing some subsequent events. It would be open to the defendants to file an application for adduction of additional evidence before the Trial Judge which may be considered on its own merits.
Appeal is allowed.
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2007 (12) TMI 489 - CESTAT MUMBAI
CENVAT credit - inputs/capital goods - Welding Electrodes used by the appellants for maintenance - Held that: - the issue has been covered in favor of the assessee in the case of Commissioner vs. Modi Rubber Ltd [2000 (5) TMI 64 - CEGAT, NEW DELHI] in coming to the conclusion that welding electrodes used for repairs are eligible inputs entitled to credit - credit is admissible on welding electrodes - appeal allowed - decided in favor of appellant.
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2007 (12) TMI 488 - SUPREME COURT
Constitutional validity of section 35 of the Chhattisgarh Vanijyik Kar Adhiniyam, 1994 - Held that:- Appeal dismissed. High Court was right in holding that section 35 of the Act was constitutionally invalid. The direction for refund of the amount collected from the respondent under the provisions of the said section had been rightly directed to be refunded.
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2007 (12) TMI 487 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... petitioner by observing that the matter lies within the domain of Excise and Taxation Officer. Similar order has been passed by the Director, Food and Supplies Haryana on 26.7.2007 (P/18). In view of the above, we dispose of the writ petition by directing respondent No.5 Excise and Taxation officer to decide the claim made by the petitioner by passing a speaking order on the legal notice sent by the petitioner after affording an opportunity of personal hearing to the petitioner. After passing of order by the Excise and Taxation Officers, the petitioner may challenge the same in appeal, if so advised, as per the law provided by the Haryana Value Added Tax Act, 2003. It is made clear that any observation made by the Managing Director, Haryana Agro Industries Haryana Ware Housing Corporation and Director Food and Supplies Haryana ( P.18 )in their respective orders, shall not be taken into consideration by respondent no.5. The writ petition stands disposed of in the above terms.
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2007 (12) TMI 486 - CESTAT AHMEDABAD
Validity of SCN - time limitation - Held that: - the demand confirmed is based on the two amendments made one in 2003 and another in October 2004. In such a situation, the question of fraud, collusion cannot arise - the show-cause notice has been issued after one year from the relevant dale and therefore, the demand is time-barred - appeal dismissed - decided against Revenue.
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2007 (12) TMI 485 - SUPREME COURT
Writ Petition Seeking investigation by the Central Bureau of Investigation (CBI) - Powers of Magistrate u/s 156(3) CrPC - Remedies against Grievance that the police station is not registering his FIR u/s 154 CrPC - Alternative remedy to a writ petition - Son of the appellant was a Major in the Indian Army - His dead body was found at Mathura Railway Station - G.R.P, Mathura investigated the matter and gave a detailed report, stating that the death was due to an accident or suicide - Army officials also held two Courts of Inquiry and both times submitted the report that the deceased had committed suicide.
HELD THAT:- It has been held by this Court in CBI & another vs. Rajesh Gandhi and another[1996 (10) TMI 503 - SUPREME COURT] that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C.
It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another, but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.
In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide.
It has been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above.
Thus, appeal stands dismissed.
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2007 (12) TMI 484 - SUPREME COURT
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... ... ..... ructions were issued long back rather -as back as in 1967 and certain instructions are not even available in some of thee regions and it is difficult to keep a track on the old instructions. Keeping in view the above aspects and consolidated instructions including some more items are as under " (b) In the present case, the amounts received by the employees were not in the nature of "wages", as they were not given to the employees under the terms of the contract of employment, either express or implied. The appointment letters expressly state that employees are not entitled to any other remuneration. Thus the distribution of service charges is expressly excluded from the wages." 10. In view of the above-said office memorandum and the view taken by the Madras High Court in Sathianathan's case (supra) the orders of the ESI Court and the High Court cannot be maintained and are accordingly set aside. 11. The appeal is allowed without any order as to costs.
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2007 (12) TMI 483 - SC ORDER
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... ... ..... a,Adv. And Mr. B.V. Balaram Das,Adv. ORDER Delay condoned. The special leave petition is dismissed.
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2007 (12) TMI 482 - SUPREME COURT
Extradition Act, 1962 - formal request for extradition did not satisfy the requirements of Article 9 of the Extradition Treaty as well as Section 7 of the Act - filed an application for supply of deficient documents and requested supply of copies thereof to lead his defence - declined by the learned Magistrate - legality and validity of the Order - recommended the extradition of the appellant to United States of America - Drug trafficking and money laundering - Sale and supply of MDMA - controlled substance and other offensive substances - Appellant is an Indian citizen - holds an Indian Passport - also a resident of United States of America - order of extradition on the basis of the material which would constitute 'evidence' and as some of the documents - HELD THAT:- In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word "evidence" has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate has greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.
If evidence stricto sensu is required to be taken in an enquiry forming the basis of a prima facie opinion of the Court, the same would lead to a patent absurdity. Whereas in a trial the court for the purpose of appreciation of evidence may have to shift the burden from stage to stage, such a procedure is not required to be adopted in an enquiry. Even under the Code of Criminal Procedure existence of strong suspicion against the accused may be enough to take cognizance of an offence which would not meet the standard to hold him guilty at the trial.
In a case of this nature the second part of Section 10 of the Act would apply which does not contemplate production of any oral evidence by the Central Government. No fact needs to be proved by evidence. What is necessary is to arrive at a prima facie case finding that a case has been made out for extradition from the depositions, statements, copies and other informations which are to be gathered from the official certification of facts and judicial documents that would include the indictment by the Grand Jury.
Section 10 of the Act provides as to what would be received in evidence. The marginal note although may not be relevant for rendition of decisions in all types of cases but where the main provision is sought to be interpreted differently, reference to marginal note would be permissible in law. [See Deewan Singh and Ors. vs. Rajendra Pd. Ardevi and Ors.[2007 (1) TMI 551 - SUPREME COURT].
The use of the terminology 'evidence' in Section 7 of the Act must be read in the context of Section 10 and not d'hors the same. It is trite that construction of a statute should be done in a manner which would give effect to all its provisions.
Section 10 of the Act clearly provides that any exhibit or deposition which may be received in evidence need not be taken in the presence of the person against whom they are used or otherwise. It also contemplates the copies of such exhibits and depositions and official certificates of facts and judicial documents stating facts would, if duly authenticated, be received as evidence.
We, therefore, are of the opinion that an information need not be a documentary evidence or an oral evidence as is understood under the Indian Evidence Act.
Thus, we are of the opinion that no case has been made out for interference with the impugned judgment. The appeal is dismissed.
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2007 (12) TMI 481 - DELHI HIGH COURT
Penalty levied u/s 271(1)(c) - concealed or furnished an inaccurate particulars of income - excess deduction claimed u/s 80-M - HELD THAT:- We are unable to find any error or infirmity in the order passed by the Tribunal which has concluded that there was no justification for the AO to have levied the penalty particularly when the AO has not found that the particulars furnished by the Assessee were false and where the AO had not also unearthed any material fact or particulars which the Assessee did not disclose.
No substantial question of law arises in this appeal. Dismissed.
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2007 (12) TMI 480 - SUPREME COURT
Determination of the “Market Value” of an immovable property based on “Proposed Land Use”- Enhancement on compensation for acquisition of the land - four sale deeds related to sale transactions - Prior to the issuance of notification u/s 4 of the Land Acquisition Act ('the Act') - land for construction of a cooperative sugar mill - land was situate as one compact unit in four villages and belonged to 17 families - deduction by way of allowance from the price exhibited by the exemplars of small plots which have been filed by the parties - HELD THAT:- The land has not been acquired for a Housing Colony or Government Office or an Institution. The land has been acquired for setting up a sugar factory. The factory would produce goods worth many crores in a year. A sugar factory apart from producing sugar also produces many by-product in the same process. One of the by-products is molasses, which is produced in huge quantity. Earlier, it had no utility and its disposal used to be a big problem. But now molasses is used for production of alcohol and ethanol which yield lot of revenue. Another by-product begasse is now used for generation of power and press mud is utilized in manure. Therefore, the profit from a sugar factory is substantial. Moreover, it is not confined to one year but will accrue every year so long as the factory runs.
A housing board does not run on business lines. Once plots are carved out after acquisition of land and are sold to public, there is no scope for earning any money in future. An industry established on acquired land, if run efficiently, earns money or makes profit every year. The return from the land acquired for the purpose of Housing Colony, or Offices, or Institution cannot even remotely be compared with the land which has been acquired for the purpose of setting up a factory or industry.
After all the factory cannot be set up without land and if such land is giving substantial return, there is no justification for making any deduction from the price exhibited by the exemplars even if they are of small plots. It is possible that a part of the acquired land might be used for construction of residential colony for the staff working in the factory. Nevertheless where the remaining part of the acquired land is contributing to production of goods yielding good profit, it would not be proper to make a deduction in the price of land shown by the exemplars of small plots as the reasons for doing so assigned in various decisions of this Court are not applicable in the case under consideration.
Therefore, we are of the opinion that a deduction of 10% from the market value of the land, which has been arrived at by the High Court would meet the ends of justice. Therefore, the market value of the acquired land for the purpose of payment of compensation to the land owners has to be assessed at ₹ 1,08,000/- per acre.
Thus, the appeals are partly allowed. The claimant- appellants will be entitled to compensation at the rate of ₹ 1,08,000/- per acre. Besides the above amount, they will also be entitled to the statutory sum in accordance with Section 23(1-A) and solatium at the rate of 30% on the market value of the land in accordance with Section 23(2) of the Act. They will also be entitled to interest as provided in Section 28 of the Act. The appellants will be entitled to their costs.
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2007 (12) TMI 479 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... or owner of the property or the unit holder which were added in Section 199 with effect from 01.04.1997. Therefore, we accept the view taken by the CIT (A) as well as the Tribunal as the correct view and accordingly answer both the questions against the revenue. We are also of the view that judgments of Madras High Court in the case of Tanjore Permanent Bank Ltd (supra) and Birla Janahit Trust (supra) would not be applicable to the facts of the present case as those judgments were in respect of earlier assessment years. The amendment made with effect from 01.04.1997 did not apply to those cases. Moreover, CBDT circular of 2002 was also not subject matter of consideration in those two judgments. Therefore, we do not deem it necessary to undertake in detail discussion about the aforementioned two judgments. In view of the above, these appeals fail and the substantial questions of law raised by the revenue are answered against the revenue. The appeals are accordingly dismissed.
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2007 (12) TMI 478 - MADRAS HIGH COURT
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... ... ..... 115J of the Act has only the power of examining whether the books of account are certified by the authorities under the Companies Act as having been properly maintained in accordance with the Companies Act. The assessing officer, thereafter has the limited power of making increases and reductions as provided for in the Explanation to the said section. To put it differently, the assessing officer does not have the jurisdiction to go behind the net profit shown in the profit and loss account except the extent provided for in the explanation to section 115J of the Act. 6. In the light of the exposition of law in respect of the jurisdiction of the assessing officer, which has been over-reached in this case, we are of the view that the order of the assessing officer is hit by the ratio laid down in the case of Apollo Tyres cited supra and the Tribunal has rightly reversed it. We do not find any ground to interfere with the order of the Tribunal. The appeal is dismissed. No costs.
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2007 (12) TMI 477 - ITAT DELHI
Validity of reopening of assessment u/s 147 - escaped assessment - Income from undisclosed sources - bogus transactions of purchase and sale of shares.
Validity of reopening of assessment u/s 147 - escaped assessment - HELD THAT:- Assessee found to have received cheques issued from the said bank account. Thus, the information was not vague or too general but specific and concerning the assessee herself. We, therefore, hold that the AO had valid reason to believe that income chargeable to tax has escaped assessment. It may be noted that under similar circumstances, Hon'ble Delhi High Court in the case of CIT vs. Vipin Batra [2007 (5) TMI 51 - HIGH COURT,NEW DELHI] has upheld the validity of reassessment and directed the Tribunal to deal with the case on merits. When the original assessment was completed under s. 143(1)(a), the AO has no occasion to form an opinion in such original assessment which can be said to have changed while reopening the assessment. This view is fortified by the decision of Hon'ble Supreme Court in the case of Asstt. CIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd.[2007 (5) TMI 197 - SUPREME COURT]. We, therefore, uphold the action of AO in assuming jurisdiction for framing reassessment under s. 147. Accordingly, the cross-objection raised by assessee is to be dismissed.
Bogus transactions - We find that after the assessee having furnished proof for purchase, sale, registration of shares in her name duly supported by market quotations etc., the AO ignored the same on the basis of statement of the share broker, namely, Shri Satish Goel through whom the assessee has sold the shares. The purchase of shares were in the earlier years and the same transaction is not found to be bogus. Thus, the assessee has proved the purchase of shares at least. The transfer of shares were held to be bogus on the basis of statement of chartered accountant/company law consultant of Globe Commercial Ltd. Similarly, the statement of Shri Satish Goel as recorded by Dy. Director of IT, Gurgaon, though made available to the assessee but the objection raised thereagainst has not been considered. The statement of a person may give rise to conduct further enquiry but that cannot be held as a sacrosanct particularly when a person challenges the contention of such statement in view of specific proof.
In view of the above principles laid down in the case of SMC Share Brokers Ltd. [2006 (8) TMI 110 - DELHI HIGH COURT] and Kishinchand Chellaram [1980 (9) TMI 3 - SUPREME COURT], it is seen that unless the principles of natural justice are followed by allowing assessee to cross-examine a person whose statement is said to be relied upon, such statement cannot be admitted in evidence. If such statement is discarded, there is no material with the AO to hold that the transaction of sale of shares is bogus. Since the assessee has specifically requested for an opportunity to cross-examine, which was denied, we find it difficult to admit the evidence in the form of statement of Shri Satish Goel to hold the transaction as bogus. Consequently, the transaction is to be treated as genuine and the claim of the assessee is allowable. We, therefore, sustain the deletion of addition by learned CIT(A).
We, therefore, do not find any justification to sustain the addition as made by the AO - In the result, the appeal and cross-objection are dismissed.
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2007 (12) TMI 476 - PUNJAB AND HARYANA HIGH COURT
Interpretation of provisions of s. 124 - Assumption of Jurisdiction with the AO - vests with the Director General or Chief CIT or CIT respectively - No objection with regard to jurisdiction of the AO raised - transferring the case of the appellant-assessee - HELD THAT:- A perusal of sub-s. (3)(b) of s. 124 of the Act shows that the jurisdiction of an AO cannot be called in question by an assessee after the expiry of one month from the date on which he was served with a notice under sub-s. (1) of s. 142 of the Act or after completion of assessment, which was to be earlier. It is further evident that sub-s. (4) of s. 124 has been made subject to the provisions of sub-s. (3) in case an assessee has questioned the jurisdiction of an AO. It is only in those jurisdiction that the AO is to refer the matter for determination to the Director General or the Chief CIT or the CIT as per the provisions of s. 124(2) of the Act. It is, thus, evident that before (sic-after) the expiry of the period of one month from the date of service of notice under sub-s. (1) of s. 142 of the Act, no right to question the jurisdiction of an AO would survive.
In the present case, notice under s. 142(1) of the Act was issued to the appellant-assessee on 25th Feb., 1993 and the return was to be filed on or before 15th March, 1993, which, in fact, has been filed on 1st March, 1993. No objection to the jurisdiction till 6th Sept., 1994 was raised when the appellant-assessee requested for transfer of the case to Delhi. Therefore, it is not possible to conclude that the AO was under obligation to refer the question of jurisdiction to the Director General or Chief CIT as per the provisions of s. 124(2) r/w s. 124(4) of the Act, as is contended by learned counsel for the appellant-assessee.
We are further of the view that it would not make any difference even if at one stage accounts for AY 1992-93 were transferred to New Delhi, which were returned to the AO, Sirsa, because there was no effective transfer of record. Moreover, the substantial business in the financial year 1992-93 was transacted at Sirsa. The argument that the record at one stage was transferred and, therefore, the assessment order passed by the AO at Sirsa is bad cannot be accepted and we have no hesitation to reject such an argument.
Thus, this appeal fails. The questions of law are answered against the appellant-assessee and in favour of the Revenue.
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2007 (12) TMI 475 - GUJARAT HIGH COURT
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... ... ..... e material available on record and gone through the orders of the authorities below. We do not find any infirmity or illegality in the order of the CIT (Appeals), in our opinion, the CIT (Appeals) has rightly deleted the addition. No cogent material or evidence has been brought to our notice by the ld. D.R. which may compel us to reverse the findings given by the CIT (Appeals) and, therefore, we confirm the order of the CIT (Appeals).” Considering the concurrent findings of the CIT (Appeals) and the Tribunal, we see no merit in this Appeal. Appeal stands dismissed.
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2007 (12) TMI 474 - MADRAS HIGH COURT
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... ... ..... ome or concealed its income. The CIT(A) in his order has extracted the letter of the assessee dt. 12th Aug., 2004, and also recorded a finding that all the particulars were available in the file and that the appellant stated that it had not made any deliberate attempt on its part to conceal the particulars of income and that it had co-operated in agreeing with the view of the Department after Tribunal and the High Court order and also paid the taxes. The CIT(A) also recorded a finding to the effect that there was no deliberate and malicious conduct of concealing the income and the reason offered by the assessee was acceptable. 5. When that being the factual position, we are not able to take a different view than the one taken by the statutory authorities under the Act and also the Tribunal. Useful reference can be made to the judgment of the Supreme Court in T. Ashok Pai vs. CIT (2007) 210 CTR (SC) 259 (2007) 292 ITR 11(SC). Hence, the tax case appeal is dismissed. No costs.
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2007 (12) TMI 473 - ITAT MUMBAI
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... ... ..... be subjected to be taxed on notional income. There is nothing on record, to suggest that any such interest income was materialized. The assessee has pointed out that because of non-availability of FSI on the said plot of land for which the assessee had entered into development agreement with M/s Arora Builders (Sukhmani Construction), the assessee company could not develop the said property in view of the statutory restrictions and, therefore, the whole project has become unviable to continue. Hence, no interest had accrued to the assessee in the year under consideration. Accordingly, the addition of ₹ 4,99,260 is directed to be deleted. 3. The next issue is regarding interest under s. 234B of the IT Act, 1961, which is consequential to the issue in ground No. 1 as discussed above. In view of the above, the issue at hand with regard to the interest under s. 234B of the Act is also decided in favour of the assessee. 4. As a result, the appeal of the assessee is allowed.
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2007 (12) TMI 472 - PUNJAB AND HARYANA HIGH COURT
Reopening of assessment u/s 147 - Non Service of the notice u/s 148 of the act and 142(1) of the Act - HELD:- There are categorical findings of fact recorded by the Tribunal that the revenue has not been able to produce any material to show that any notices u/s 148 was served upon the assessee in respect of the assessment years under consideration. Tribunal has noticed that the matter was time and again sent back to the AO by the CIT (A) and no authority could record positive and categoric finding that notice u/s 148 of the Act was served upon the assessee. It appears that there is no proof with regard to the service on the assessee u/s 148 of the Act.
The Tribunal has further noticed that proceedings in respect of assessment year under consideration were dropped on 31-9-2002 with specific findings by the AO that notice u/s 148 could not be served. These are pure findings of fact which would not give rise to any question of law much less a substantive question of law.
It is well-settled that issuance of a notice u/s 148 of the Act is a condition precedent for framing assessment order u/s 147 of the Act. It is equally well-settled that if no such notice is issued or notice issued is invalid and not in accordance with law or notice is not served on the proper person then assessment framed would be illegal and without jurisdiction. Therefore, we find that the Tribunal has taken correct view in these appeals. Accordingly, the appeals are dismissed.
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2007 (12) TMI 471 - BOMBAY HIGH COURT
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... ... ..... -99 in respect of any consideration received for the transfer thereof which includes extinguishments or curtailment of such right. Sec. 55(2)(a) was amended w.e.f. 1st April, 1998. Considering that it was held in the year under consideration, it would not be applicable and since the cost of acquisition was nil it was not exigible to capital gains tax. In the light of that, the issue was decided in favour of assessee and against the Revenue. 4. In our opinion, insofar as the issue pertaining to prospective and retrospective covenants (sic-operation), we do not find that there is any error committed by the Tribunal in arriving at the conclusion. The amendment was prospective and consequently would not apply in relation to the assessment year under consideration. 5. Similarly, considering the finding insofar as capital gains are concerned, we also find that there is no error of law and consequently the questions of law as framed would not arise. Appeal is accordingly dismissed.
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