Income-tax---

----Reference---Question decided by High Court cannot be referred-- Pendency of special leave petition before Supreme Court does not change position---Indian Income Tax Act, 1961, S.256.

An issue decided by the High Court cannot be referred. The mere fact that a special leave petition has been filed and .is pending against the, decision does not give rise to a question of law.

C.W.T. v. Usha Devi (Smt.) (1990) 183 ITR 75 (MP) and Ganga Cut Piece Centre v. CIT (1997) 225 ITR 839 (MP), fol.

Held, that the question whether the capital gains accrued was decided in CIT v. H. H. Maharaja Sahib Shri Lokendra Singhji (1986) 162 ITR 93 (MP). Mere pendency of special leave petition against the decision did not give rise to a referable question of law.

CIT v.H. H. Maharaja Sahib Shri Lokendra Singhji (1986) 162 .ITR 93;(MP) ref.

D. D. Vyas for the Commissioner.

JUDGMENT

A.R. TIWARI, J.---The applicant -(Commissioner of Income-tax, Bhopal,. has filed this application, under section 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 R. As. 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, he 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 CIT v. H. H. Maharaja Sahib Shri Lokendra Singhji (1986),162 ITR-93. The Department then, filed an Appeal which was registered as No.496/Ind of 1.987 for the assessment year 1983-84. The appeal was dismissed. The applicant then filed an application under section 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 under section 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 special leave petition 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 special leave petition does not give , rise to. a referable question of law. This position is settled by the decision in C.W.T. v. Usha Devi (Smt.) (1990) 183 ITR 75 (MP) and in M. C. C. Np.48 of 1985; Ganga Cut Piece Centre v. CIT (1997) 225 ITR 839 (MP), 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 cost Counsel fee for the applicant is however fixed at Rs.750, if certified.

M.B.A./3030/FC Application dismissed.