Income-tax---

----Capital gains---Exemption---Capital asset---Agricultural lands-- Conditions for exemption---Sale of agricultural lands Within Municipality-- Population of entire Municipality to be taken into account---Not population of any area or village within Municipality---Indian Income Tax Act, 1961, Ss.2(14)(iii) & 45.

For claiming exemption from capital gains under section 45 of the Income Tax Act, 1961, on sale of agricultural lands within a Municipality, the population of the entire Municipality is to be taken into account and not the population of any area or village within the Municipality.

Hidhayathullah Sahib (S.) v. CIT (1986) 158 ITR 20 (Mad.) and Omer Khan (G.M:) v. CIT (Addl.) (1992) 196 ITR 269 (SC) fol.

R .D. Jolly, Sanjeev Khanna with Ajay Jha and Ms. Prem Lata Bansal for the Commissioner.

Nemo for the Assessee.

JUDGMENT

R. C. LAHOTI, J.---The Tribunal has, under section 256(1) of the Income Tax Act, 1961, and .at the instance of the Revenue referred for the opinion of the High Court the following two questions of law, relating to the assessment-year 1974-75:

"(1) Whether, on the facts and circumstances of the case the Tribunal was right in law in holding that Gaon Sabha Nagal Dewat was within the meaning of sub-clause (a) of section 2(14)(iii), a municipality within whose jurisdiction there was comprised the area in which the land in question was situate?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law-in holding that the land in question being used for agricultural purposes did not constitute capital asset within the meaning of section 2(14) of the Income-tax Act?"

The assessee is a Hindu undivided family having small income assessable as income from house property and by way of interest. During the previous year relevant to the assessment year 1974-75 certain land belonging to the assessee stood transferred as a result of acquisition by the Government. The land was agricultural and situated. in village Nangal Dewat. The compensation received by the assessee from the Land Acquisition Collector was taken by the Income-tax Officer into account for determining the capital gains. The assessee went in appeal. The Commissioner of Income-tax (Appeals) set aside the order of the Income-tax Officer and directed him to exclude the income computed under the head "Capital gains".

The Revenue preferred an appeal to the Income-tax Appellate Tribunal which has been dismissed.

The controversy stands resolved by the law laid down by the Supreme Court in the case of G. M. Omer Khan v. CIT (Addl.) (1992) 196 ITR 269. Their Lordships have approved, the decision of the Madras High Court in S. Hidhayatullah Sahib v. CIT (1986) 158 ITR 20. According to the Madras High Court, it is the population of the municipality that has to be taken into account for the purpose of section 2(14)(iii)(a), and not the population of any area within the municipality. In other words, the part of the sentence--"which has a population of not less than 10,000", refers to municipality or a cantonment board, and not to any area comprised in the erstwhile village or any fraction of the area constituting the municipality or cantonment board.

Consistently with the law laid down by the Supreme Court, both the questions are answered in the negative, i.e., in favour of the Revenue and against the assessee.

M.B.A./3205/FC Reference answered.