Commissioner of Income Tax vs H.H. Maharani Prabha Rajyalaxmi

A.R. Tiwari, J.—The applicant (Commissioner of Income Tax, Bhopal, has filed this application u/s 256(2) of the Income Tax Act, 1961 (for short "the Act"), seeking a direction to the Tribunal to state the case and refer the proposed question of law as extracted below arising out of the order dated September 10, 1990, passed in I.T.A. No. 495/Ind of 1987 connectible with the order of refusal dated December 10, 1990, passed on RA Nos. 195 and 196/Ind of 1990 :

" Whether, on the facts and in the circumstances of the case and having regard to the provision of Section 55(2) of the Income Tax Act, the Income Tax Appellate Tribunal was correct in holding that no capital gain accrued to the assessee ?"

Briefly stated, the facts of the case are that the Assessing Officer added a sum of Rs. 50,250 being capital gain on sale of agricultural land on consideration of Rs. 1,75,000. The assessee contended that this was not taxable as the cost in the hands of the assessee was nil. The assessee filed an appeal. The appellate authority (Appellate Assistant Commissioner) deleted the addition in view of the judgment of this court in Commissioner of Income Tax Vs. H.H. Maharaja Sahib Shri Lokendra Singhji, . The Department then, filed an appeal which was registered as No. 496/Ind of 1987 for the assessment year 1983-84. The appeal was dismissed. The applicant then filed an application u/s 256(1) of the Act. The Tribunal declined to state the case and refer the question. On rejection of the application, the applicant filed this application u/s 256(2) of the Act.

We heard Shri D. D. Vyas, learned counsel for the applicant. None appeared for the non-applicant.

Shri Vyas submitted that the order is passed on the decision rendered by this court as noted above, but, as the SLP has been filed and is pending against the decision, the linchpin of the order, the question of law as proposed arose in the matter. He, therefore, prayed for a direction on the ground of pendency of the special leave petition.

The point raised stands concluded by the decision rendered by this court. In our opinion, mere pendency of a SLP does not give rise to a referable question of law. This position is settled by the decision in Commissioner of Wealth-tax Vs. Smt. Usha Devi (Lrs. of H.H. Maharaja Yeshwant Rao Holkar), and in M. C. C. No. 48 of 1985 Ganga Cut Piece Centre Vs. Commissioner of Income Tax, ), decided on December 19, 1995.

Nothing substantial is urged to take a different view in the matter.

In the result, this application is held to be devoid of merit and is accordingly dismissed, with no order as to costs. Counsel fee for the applicant is, however, fixed at Rs. 750, if certified.