RAMANUJAM J.

W.P. No. 905 of 1978 has been filed by the Income-tax Officer, Company Circle II(1), Madras, for the issue of a writ of certiorari to quash the order of the Vice-President, Income-tax Appellate Tribunal, Madras, dated January 31, 1978, on the ground that he has exceeded his jurisdiction under s. 255(4) of the I.T. Act, 1961 (for short the "Act"). W.P. No. 3138 of 1978 has been filed by the assessee for the issue of a mandamus directing a fresh and de novo disposal of its appeal filed before the Income-tax Appellate Tribunal and W.P. No. 3152 of 1978 is one for the issue of a writ of certiorari to quash the orders passed by the two members of the Tribunal and the Vice-President, the third member, in its appeal The circumstances under which these writ petitions came to be filed may be briefly set out. The assessee sold an extent of 26.01 acres of land to the Government of India on March 28, 1970 for a sum of Rs. 23, 40, 000. After deducting the assessee's cost of Rs. 1, 06, 855, the capital gains arising out of the said sale was determined by the ITO at Rs. 22, 33, 145. Before the ITO, the assessee claimed exemption in respect of the entire sum of Rs. 22, 33, 145 on the only ground that the lands were sold as agricultural land and, therefore, the sale will not attract the levy of tax under the head "Capital gains". The ITO rejected that claim of the assessee. Therefore, the assessee went before the AAC but without success. Thereafter, the assessee went before the Tribunal. However, before the Tribunal, two contentions were put forward by the assessee. One was that the lands sold being agricultural lands, the sale will not attract the levy of capital gains. The second was that even if the levy of capital gains is exigible on the ground that the lands sold are non-agricultural lands, still, capital gains has to be computed taking the date of conversion of the agricultural land into non-agricultural land as the basis. So far as the first question is concerned, the Tribunal which consisted of a judicial member and an accountant member held that on the materials on record, though the lands were originally acquired as agricultural lands, when they were sold, they were non-agricultural land and that, therefore, such sale of non-agricultural land would attract the levy of capital gains. However, the two members of the Tribunal differed on the mode of computation of the capital gains. The judicial member took the view that the capital gains must be computed taking the original date of acquisition of agricultural land as the basis. The accountant member, however, disagreed with that view and held that the date of conversion should be taken as the basis for computation of the capital gains. In view of the difference of opinion between the two members of the Tribunal on the mode of computation of the capital gains, they framed the following question and forwarded the same to the President for reference to a third member.

"Whether, on the facts and in the circumstances of the case, the capital gains assessable for the assessment year 1971-72 would be Rs. 22, 33, 145 or any lesser amount ?" *

The President had referred the said question to a third member, Thiru D. Rangaswamy, the then Vice-President of the Income-tax Appellate Tribunal, Madras. Before the third member, the counsel for the assessee raised three additional points which were not urged before the two members of the Tribunal or before any of the lower authorities and those points were : (1) A circular issued by the Central Board of Direct Taxes dated August 1, 1969, clarifying the expression "cost of acquisition of the capital asset" throwing light on the mode of computation of the capital assets has Dot been considered by the two members of the Tribunal; (2) that the lands which are mainly used for removing Clay for the manufacture of brick should be taken to be the stock-in-trade and the sale of such a stock-in-trade cannot attract the levy of capital gain