TMI Blog1990 (6) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Tribunal right in finding that the capital gains is to be assessed on that basis ?" The respondent is the Revenue. We are concerned with the assessment-year 1973-74 for which the accounting period ended on March 31, 1973. One Shri M. V. Dominic and his daughter-in-law purchased 403 acres of coffee plantation at Nelliampathi in Pollachi on March 26, 1968. Mr. Dominic was entitled to half share. The daughter-in-law was entitled to half share. On January 26, 1973, an agreement was entered into between the said persons and one S. K. Abdul Wahab for the sale of shade trees and old coffee plants in an area of 225 acres for Rs. 6,25,000. The question as to whether any capital gains arose to the assessee by virtue of the said deed is the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal held that the deed dated January 26, 1973, is a sale itself and the capital asset dealt with in the said deed was transferred on that day. The Appellate Tribunal further held that though the consideration for the transfer was mentioned as Rs. 6,25,000, the Income-tax Officer himself held that, in view of subsequent compromise in a suit, it stood reduced by Rs. 70,000. There is a further plea before the Tribunal that another Rs. 55,000 was also reduced from the consideration stated in the deed. Holding that there was no proper or definite material on that score, the Appellate Tribunal held that the question as to whether a further sum of Rs. 55,000 was reduced from the consideration mentioned in the deed should be investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Tribunal was in error in construing the deed dated January 26, 1973, as a sale of the assets (trees specified in the schedule to the deed). We see no force in this plea. The above plea was not taken up before the Appellate Tribunal The Appellate Tribunal had not adjudicated on the said question So, it cannot be said that the said question arises out of the order of the Appellate Tribunal. It is not open to the assessee to raise a new and different question for the first time in this court. It was next argued that, until all the instalments are paid, the transfer is not complete as per the deed dated January 26, 1973, and since the last of the instalments is payable only in January, 1974, then only the transfer will become complete. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned and ascertained as situate within a specified area mentioned in the schedule. We answer the first limb of the question referred to us in the affirmative, against the assessee and in favour of the Revenue. The further question was whether the capital asset was transferred for a specified sum of Rs. 6,25,000. That is the amount shown in the deed. The Income-tax Officer himself reduced the consideration by Rs. 70,000. That was so in view of a compromise arrived at in court proceedings. There was a further plea that the consideration stood reduced by another Rs. 55,000. There was no material to determine whether the said plea is tenable or justified. There was paucity of material on that score. So, the Appellate Tribunal, expressing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument is reduced not only by Rs. 70,000 as mentioned by the officer in his original assessment order dated March 6, 1976, but also by a further sum of Rs. 55,000 as pleaded and after adjudicating the plea of the assessee that the assessee is entitled to relief under section 48 in respect of the four items mentioned by the Tribunal, the computation of the capital gains can be made. We decline to answer the third limb of the question since that cannot be answered in the light of the directions given by the Appellate Tribunal remitting two important aspects for a fresh consideration. So, the only part of the question that is relevant at this stage and which we are called upon to answer is whether, by the written deed dated January 26, 1973, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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