JUDGMENT
1. In respect of the assessment year 1981-82, the petitioner is seeking reference of following question to this court :
“Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in deleting the addition of Rs. 29,00,773 made by the Assessing Officer on account of compensation received by the assessed on acquisition of agricultural land ?”
2. It appears that some agricultural land had been acquired by the respondent as its trading asset. This land was, however, compulsorily acquired under the provisions of the Land Acquisition Act compensation was received. The Income-tax Officer added a sum of Rs. 29,00,773 as profit from business. The said addition was deleted by the Tribunal in view of the fact that a similar addition which had been made was the subject matter of a decision of this court in D. L. F. Housing and Construction (P.) Ltd. v. CIT [1983] 141 ITR 806 (Delhi). This case pertained to the assessment year 1961-62 and it was held by this court that the excess amount received by the assessed was not taxable as profit. It was mentioned in that judgment that the receipt was also not taxable as capital gain because agricultural land was outside the purview of the relevant provisions.
3. The Tribunal, in the present case, has followed the decision of this court in D. L. F. housing and Construction (P.) Ltd. v. CIT [1983] 141 ITR 806 (Delhi) and has deleted the aforesaid addition. It is contended by Shri Jain that the provisions of the Income-tax Act have now been amended with effect from April 1, 1970, and agricultural land would be regarded as a capital asset. It may be that the profit in question could have been taxed as capital gain but, as rightly pointed out by the Tribunal in its order passed under section 256(1), the Department at no stage raised any contention to this effect. Neither before the Income-tax Officer nor before the Commissioner of Income-tax (Appeals), nor before the Tribunal, was it ever submitted that even if the excess is not taxable as business profit, nevertheless tax should ve levied on capital gains. As this question was neither raised nor argued nor dealt with by the Tribunal, the petitioner cannot raise this contention for the first time by way of an application under section 256 of the Act. The only contention raise by the Department is already covered by the earlier decision of this court in D. L. F. Housing and Construction (P.) Ltd. v. CIT [1983] 141 ITR 806 and following that, we decline to call for a reference in this case.