D.A.MEHTA - (1.)The Income Tax Appellate Tribunal, Ahmedabad Bench 'C' has referred the following question for the opinion of this Court, at the instance of the revenue :
"Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in coming to the conclusion that capital gain should be bifurcated on the basis of total consideration of sale between land and building and that in respect of land the same may be treated as long term capital gain?"

(2.)The assessment year under consideration is 1979-80 and the relevant accounting period for the said assessment year is S.Y.2034. The assessee, individual, purchased a plot of land bearing No.2 in Survey No.97 at Umarwada on 21st December, 1973 at a cost of Rs.17,999.00. Thereafter, he constructed a building thereupon and on completion of building in March, 1977, total cost of building was Rs.1,11,307.00. The building along with the plot of land was sold on 5th January, 1978 for a sum of Rs.1,95,000.00. In the return of income filed for the assessment year under consideration, the assessee declared long-term capital gain of Rs.51,299.00 and claimed exemption under Section 54-E of the Income Tax Act,1961 (the Act) as well as deduction 80-T of the Act.
(3.)The Income-tax Officer came to the conclusion that the transaction resulted in short-term capital gain as the assessee could not have transferred the building independently of the land itself and the building which was completed in March, 1977 was sold after about 9 months, and hence, the assessee's claim for treating the transaction as long-term capital gain was rejected.