SUPREME COURT OF INDIA

Before:- S.P. Bharucha, D.P. Mohapatra and S.N. Phukan, JJ.

Civil Appeal No. 3285 of 1998. D/d. 16.11.2000.

Commnr. of Income-tax Gujarat-I, Ahmedabad - Petitioner

Versus

Leena Investment Pvt. Ltd. - Respondent

Income-tax Act, 1961, Section 256(2) - Income-Tax - Mixed Question of Fact and Law - Reference to High Court - Question of law - Whether surplus realised on sale of shares is a capital gain exempted under Section 47(iv) of the Act, is a mixed question of fact and law and fact - Reference to High Court held to be maintainable.

[Para 1]

Case Referred :-

Commissioner of Income Tax v. M/s. Sercon Pvt. Ltd.

ORDER

The High Court declined to call for a reference of the following question proposed by the Revenue :

"Whether the Appellate Tribunal is right in law and on facts in holding that the surplus realised on sale of shares is a capital gain exempt under Section 47(iv) of the Act."

It did so because the question was covered by its decision in the case of Commissioner of Income Tax v. M/s. Sercon Pvt. Ltd. It appears from the record that the Revenue had approached this Court in a special leave petition against the decision of the High Court in the case of M/s. Sercon Pvt. Ltd. but that special leave petition was dismissed on the ground that no Statement of Case had been filed. It is clear that the question raises mixed issues of fact and law and that, therefore, it should be considered by the High Court.

2. The appeal is accordingly allowed. The order under challenged is set aside. The Tribunal shall refer the question quoted above to the High Court for its consideration after drawing up a Statement of Case.

3. No order as to costs.

Appeal allowed.