COMMISSIONER OF INCOME-TAX VS SURAJI DEVI KUNJI LAL JAIPURIA CHARITABLE TRUST, 1992 PTD-ALLAHABAD-HIGH-COURT-INDIA 1068 (1990)

(a) Income-tax--

---Charitable purposes---Trust---Trust held to be public charitable trust-- Income exempt from tax.

On the facts and in the circumstances of the case, the assessee-trust was a public charitable and religious trust and its income was exempt from tax under section 11 of the Indian Income-tax Act, 1961. [p. 1069] A

CIT v. Surji Devi Kuji Lal Jaipuria Charitable Trust (No.2) [1990] 186 ITR 745 (All.) fol.

(b) Income-tax--

----Capital gains---Difference between price at which property had been sold and its fair market value---Difference assessed as gift under the Indian gift-tax Act---Difference not assessable as capital gains.

The difference between the actual consideration for transfer of the property and its fair market value had been brought to tax under the Indian Gift Tax Act. Hence, no tax could be levied on such difference on the ground that it is capital gain. [p. 1069] B

JUDGMENT

B.P. JEEVAN REDDY, C.J.----Two questions are stated under section 256 of the Income Tax Act, 1961. They are:

"1. Whether, on the facts and in the circumstances of the case, the respondent assessee, a trust created by the instrument executed on April 24, 1958, is a public charitable and religious trust and its income is exempt from tax under section 11 of the Income-tax Act, 1961?

2. Whether, on facts and in the circumstances of the case, .the Tribunal was right in holding that the amount of difference between the fair market value of the land and the price at which it had been sold could be taxed as a capital gain?"

So far as the first question is concerned an identical question with respect to the very same trust for the assessment years 1967-68, 1968-69 and 1969-70 was referred to this Court in I.T.R. No.617 of 1977 and has been answered by a Bench of this Court in favour of the assessee on August 9, 1990 (CIT v. Surji Devi Kunji Lal Jaipuria Charitable Trust (No.2) [1990]. 186 ITR 745). Following- the said decision, the first question is answered in the affirmative, i.e., in favour of the assessee and against the Revenue.

So far as the second question is concerned, the order of the Tribunal says that the difference between the fair market value of the assets and the actual consideration was brought to tax under the Gift Tax Act. A copy of the gift tax assessment order was also placed before the Tribunal. Acting upon the same and applying clause (iii) of section 47 the Tribunal held that no capital gains tax can be levied upon the said difference amount. The Tribunal followed the decisions of the Delhi, Andhra Pradesh and Karnataka High Courts in preference to the decision of the Kerala High Court. On reading of section 47(iii), we are of the opinion that the. Tribunal was right in doing so. Accordingly, the second question is also answered in the affirmative, i.e., in favour of the assessee and against the Revenue.

No costs.

M.BA./1582/TReference answered