N.N. Mathur, J. - (1.) THIS application under Section 256(2) of the Income-tax Act, 1961, has been made by the Department seeking a direction against the Income-tax Appellate Tribunal to refer the following questions of law for the opinion of this court : "(1) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was legally justified in holding that reopening of the case for the year under consideration was not valid, nor justified ? (2) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was legally justified in holding that the income is not assessable in the assessment year 1987-88, despite the amended provisions of Section 45(5) of the Income-tax Act, 1961 ? (3) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was legally justified in allowing relief to the assessee by holding that the decision of the Supreme Court in the case of G.M. Omer Khan v. CIT [1992] 196 ITR 269 was applicable in the present case where income had been assessed on the basis of the provisions of Section 45(5) of the Income-tax Act, 1961 ?"
(2.) THE necessary facts leading to the instant application are that the Land Acquisition Officer, Jodhpur, made an award with respect to the land of the assessee-respondent acquired under the notification dated October 10, 1974. On appeal, the amount of compensation was enhanced. THE respondent-asses-see received the enhanced compensation on October 27, 1986. An assessment was made on the amount of compensation as well as enhanced compensation in the assessment year of 1975-76. THE proceedings were reopened under Section 147, Clause (a), for the year 1987-88 on the ground that the amount of compensation has been received in the year 1986. THE assessee took the plea that income by way of capital gain was assessable in the relevant assessment year only and the amount of interest was to be assessable in respect of the year of which the interest related. This plea was rejected by the Assessing Officer. THE Commissioner of Income-tax (Appeals) set aside the order of the assessment. THE Commissioner of Income-tax held that as the amount of enhanced compensation was received by the assessee in the year 1986, therefore, the capital gain could not be assessed for the assessment year 1987-88 as per Section 45(5) as the same was introduced in the year 1988. On second appeal by the Department, the Income-tax Appellate Tribunal agreed with the view of the Commissioner of Income-tax. It is contended by Mr. Sandeep Bhandawat learned counsel for the Revenue that Sub-section (5) of Section 45 specifically deals with the cases of compulsory acquisition and is applicable with reference to the date of receipt of the compensation notwithstanding anything contained in Sub-section (1) of Section 45 relating to the year in which the transfer took place. We find no substance in the contention of teamed counsel for the Revenue. The note on Finance Bill, 1987, clearly speaks that the amendments will take effect from April 1, 1988, and will accordingly apply in relation to the assessment year 1988-89 and subsequent years. It is not in dispute that Sub-section (5) of Section 45 was introduced by the Finance Bill, 1987. It is also not in dispute that the enhanced compensation was received on October 17, 1986. Thus, the instant matter pertains to the assessment year 1987-88. Thus, Sub-section (5) of Section 45 is not attracted. The Tribunal has rightly held that the assessment can be made only in accordance with the provisions of Section 45(1) of the Income-tax Act. In view of the aforesaid, no referable question of law arises from the order of the Tribunal. The Tribunal was perfectly justified in refusing to make a reference on the questions of law formulated by the Department for the opinion of this court. Accordingly, the reference application is rejected.;