2004 (3) TMI 34

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..... e Income-tax Appellate Tribunal has referred the following question for answer by this court: "Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified that the assessee-trust was not liable to the charge of capital gains tax in view of the provisions of section 53 of the Income-tax Act, 1961?" The relevant assessment year is 1986-87, during which the ass .....

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..... ficiaries, they are entitled to the benefit of section 53 of the Heard learned counsel for the parties. Section 53 of the Act reads as under: "53. Notwithstanding anything contained in section 45, where in the case of an assessee being an individual, the capital gain arises from the transfer of a capital asset (other than a short-term capital asset) being buildings or land appurtenant thereto, a .....

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..... that nothing contained in this section shall apply to a case where the assessee owns on the date of such transfer any other residential house." The provisions of section 53 of the Act envisage that in a case of capital gain arising from the transfer of a capital asset other than short-term capital asset being buildings or land appurtenant thereto and being a residential house, the income of whic .....

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..... se an "individual" sells his residential house and when he has no other residential house, capital gain is exempted on transfer of such house. An assessee under the Act is a "person". A "person" has been defined in section 2(31) of the Act, which includes an individual, a Hindu undivided family, a company, a firm, an association of persons or a body of individuals whether incorporated or not, a lo .....

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..... Revenue. Undisputably, in the case in hand, the assessee is a "trust" and the trust has been assessed in the status of "association of persons", and the association of persons is not entitled to the benefit of exemption under section 53 of the Act. Therefore, in our opinion, the Tribunal has committed an error to extend benefit of exemption under section 53 of the Act to the "association of perso .....

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