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

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellenous Civil Case No. 16 of 1983
Judge
Reported in[1984]149ITR158(MP)
ActsConstitution of India - Article 134A; Income Tax Act, 1961 - Sections 54
AppellantKanhaiyalal and Ramswaroop
RespondentCommissioner of Income-tax
Appellant AdvocateA.K. Chitale, Adv.
Respondent AdvocateR.C. Mukati, Adv.
Cases ReferredShrigopal Rameshwavdas v. Addl.
Excerpt:
- .....on appeal by the aac and the income-tax appellate tribunal. at the instance of the assessee, the tribunal referred the following question of law for the opinion of this court: ' whether, on the facts and in the circumstances of the case, the appellate tribunal was right in holding that a sum 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 ' 3. when the matter came up for hearing before us, decision of a division bench of this court in shrigopal rameshwavdas v. addl. cit : [1979]119itr980(mp) , was cited before us. in that case it was 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.....
Judgment:

Vijayvasgtya, J.

1. This is an application under Article 134A of theConstitution of India for the grant of a certificate under Article 133 ofthe Constitution to prefer an appeal to the Supreme Court against theorder passed by this Court on January 20, 1983, in Misc. Civil Case No. 108of 1981 : Kanhyalal & Ramswaroop v. CIT : [1984]149ITR157(MP) .

2. The facts giving rise to this application briefly stated are as follows :

The applicant, who was assessed as HUF for the assessment year 1976-77, sold its house on January 1, 1975, for a sum of Rs. 83,000. The capital gains worked out at Rs. 64,465. The applicant, however, purchased a house for Rs. 44,945 on December 31, 1975, and claimed deduction thereof under Section 54 of the I.T. Act, 1961 (hereinafter referred to as ' the Act '). The ITO disallowed the claim for deduction holding that the benefit of the provisions of Section 54 of the Act was not available to the assessee who was not a natural person but a HUF. The order of the ITO was affirmed on appeal by the AAC and the Income-tax Appellate Tribunal. At the instance of the assessee, the Tribunal referred the following question of law for the opinion of this Court: ' Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that a sum 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 '

3. When the matter came up for hearing before us, decision of a Division Bench of this Court in Shrigopal Rameshwavdas v. Addl. CIT : [1979]119ITR980(MP) , was cited before us. In that case it was 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 and that the provisions of Section 54 of the Act were not attracted in the case of a HUF. Following the aforesaid decision, we answered the question of law referred to us by the Tribunal in the affirmative and against the assessee. The applicant has sought a certificate to prefer an appeal to the Supreme Court from the aforesaid order passed by us.

4. Having heard the learned counsel for the parties, we have come to the conclusion that this is a fit case in which the certificate prayed for by the applicant should be granted. No decision of the Supreme Court on the question involved is brought to our notice. The question involved is aboutthe interpretation of the provisions of Section 54 of the Act and it is not disputed that it is a substantial question of law of general importance. In our opinion, the said question needs to be decided by the Supreme Court.

5. The application is, therefore, allowed. The applicant is granted a certificate to prefer an appeal against the order dated January 20, 1983, passed by this Court in Misc. Civil Case No. 108 of 1981. There shall be no order as to the costs of this application.


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