TMI Blog1991 (8) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 117 ITR 581. The assessee was a tenant in premises No. 240E, Acharya Jagadish Chandra Bose Road, Calcutta. He was a monthly tenant in the property since 1940 under certain earlier landlords. On March 27, 1967, the landlords entered into an agreement for leasing out the property to Associated Battery Makers (Eastern) Ltd., permitting them to construct a building on the said premises. The assessee was also a party to the said agreement. As part of the agreement, the assessee received a sum of Rs. 4,50,000 in consideration of which he permitted the new lessees to put up the construction. He transferred his tenancy rights to Associated Batteries and became a licensee in respect of the premises under Associated Batteries. The sum of Rs. 4,50, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in the affirmative, whether on the facts and in the circumstances of the case, the Tribunal was right in holding that there was a transfer of the assessee's right of tenancy under the landlords within the meaning of section 2 (47) of the said Act ? 3. If the answer to question No. (2) is in the affirmative, whether on the facts and in the circumstances of the case, the Tribunal was correct in holding that the sum of Rs. 1,83,201 represented capital gains assessable under section 45(1) of the said Act for the assessment year 1967-68 ? Before us, learned counsel raised only one contention based on the decision of the Supreme Court in CIT v. B. C. Srinivasa Setty [1981] 128 ITR 294. He submits that, even assuming that the assessee had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction for actual cost was taxable under section 48 read with section 45 of the Income-tax Act. We find that, under section 256(1), the assessee applied to the Tribunal for a reference of six questions to the High Court, one of which perhaps had reference to the above argument, for the statement of facts accompanying the application refers to the "actual cost" having been ignored in the computation of the capital gain. The question was phrased in the following manner : "Whether the Tribunal was justified in law in computing the capital gains at Rs. 1,83,201 within the meaning of section 48 of the Income-tax Act, 1961 ?" The Tribunal, however, in view of its findings in the appellate order, rejected the application and refused to refer th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though there were certain High Court decisions on the same lines. In the above circumstances, the question which learned counsel seeks to argue is a question which was not argued before the High Court. It is question of which reference was sought but declined by the Tribunal. It is now well-settled law that the jurisdiction of the High Court in a reference under the Income-tax Act is in the nature of advisory jurisdiction and only such issues can be and are answered as arise properly on the facts and the questions referred to the High Court. In the circumstances, we are unable to permit the assessee to raise the question before us. As we have stated earlier, it does appear that, on merits, the assessee has a good case in view of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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