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Kanhyalal and Ramswaroop Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 108 of 1981
Judge
Reported in[1984]149ITR157(MP)
ActsIncome Tax Act, 1961 - Sections 54
AppellantKanhyalal and Ramswaroop
RespondentCommissioner of Income-tax
Appellant AdvocateA.K. Chitale, Adv.
Respondent AdvocateR.C. Mukati, Adv.
Cases ReferredShrigopal Rameshwardas v. Addl.
Excerpt:
- .....counsel for the assessee was unable to point out any other decision to the contrary. under the circumstances, following the decision of this court in shrigopal rameshwardas v. addl. cit : [1979]119itr980(mp) , our answer to the question referred to us is in the affirmative and against the assessee. 4. in the circumstances of the case, parties shall bear their own costs of this reference.
Judgment:

Sohani, J.

1. By this reference under Section 256(1) of the LT. Act, 1961 (hereinafter referred to as ' the Act '), the. Income-tax Appellate Tribunal, Indore Bench, has referred the following question of law to this Court for its opinion:

'Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that a sura of Rs. 45,945 was not allowable as deduction under Section 54 of the Act for the purpose of assessing the net capital gain in the hands of the assessee-HUF '

2. The material facts giving rise to this reference briefly are as follows :

The assessee is a HUF and the assessment year in question is 1976-77. In that assessment year the assessee sold its house on 1st January, 1975, for a sum of Rs. 83,000. After deducting the cost, the capital gains worked out at Rs. 64,465. The assessee, however, contended that the assessee had purchased a house for Rs. 44,945 on December 31, 1975, and the assessee, therefore, claimed deduction under Section 54 of the Act. The ITO held that the assessee being a HUF was not entitled to the benefit of the provisions of Section 54 of the Act. The order of the ITO was affirmed by the AAC on appeal. On further appeal, the Tribunal held that the word ' assessee ' occurring in Section 54 of the Act referred only to living persons. In this view of the matter theTribunal dismissed the appeal. Hence, at the instance of the assessee, the aforesaid question of law has been referred to this Court for its opinion.

3. Learned counsel for the assessee conceded that the question arising in the instant case arose for consideration before another Division Bench of this Court in Shrigopal Rameshwardas v. Addl. CIT : [1979]119ITR980(MP) . In that case it has been held that the word ' assessee ' occurring in Section 54 of the Act, construed in its context, referred to living persons and not to fictional or artificial juridical persons. In this view of the matter it was held that the provisions of Section 54 of the Act were not attracted in the case of a HUF. Learned counsel for the assessee was unable to point out any other decision to the contrary. Under the circumstances, following the decision of this Court in Shrigopal Rameshwardas v. Addl. CIT : [1979]119ITR980(MP) , our answer to the question referred to us is in the affirmative and against the assessee.

4. In the circumstances of the case, parties shall bear their own costs of this reference.


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