Nagendra Prasad Singh, J.

1. The Income-tax Appellate Tribunal under Sec.256(1) of the I.T. Act, 1961 (hereinafter to be referred to as "the Act"), has submitted the statement of the case for opinion of this court on the following question of law :

"Whether, on the facts and in the circumstances of the case, the Tribunal have correctly held that the capital gains tax was not chargeable on the sale of land bearing plot Nos. 679 and 680 and in giving a finding that the land in question was agricultural land ?"

2. In view of Sec. 45 of the Act any profit and gain arising from the transfer of capital asset is chargeable to income-tax under the heading "Capital gains" and is treated to be an income of the previous year in which the transfer took place. "Capital assets" has been defined in Sub-section (14) of Sec.2 of the Act. The definition of "Capital asset" has been amended by the Finance Act, 1970, which came into force with effect from April 1, 1970. In this reference we are concerned with the definition of "Capital asset" as it stood prior to April 1, 1970. During the relevant period an agricultural land could not have been included in the definition of "capital asset". As