2011 (10) TMI 78 - HC - Income Tax

Sale of equity shares - Rate of tax on long term capital gain - 10% or 20% u/s 112 - Held that - assessee is entitled to raise the legal issue before the first Appellate Authority, which possessed co-terminus powers similar to the A.O. as per ratio laid down by Hon ble Supreme Court in the case of Jute Corporation of India Ltd. (1990 -TMI - 5320 - SUPREME Court). Hence, CIT (A) has rightly adjudicated the statutory right of the assessee and directed to allow the long term capital gain at the of 10%. - Decided in favor of assessee.

Summary

Issues:
1. Interpretation of provisions to section 250 of the Income Tax Act regarding the assessment of long term capital gain.
2. Consideration of cause of action and relief entitlement for the assessee in the assessment process.

Analysis:
1. The appeal under section 260-A of the Income Tax Act was filed by the assessee challenging the order of the Income Tax Appellate Tribunal regarding the computation of long term capital gain for the assessment year 2001-2002. The Tribunal had disallowed the assessee's claim for being assessed at a lower rate as per the proviso to section 112(1) of the Act. The first Appellate Authority had accepted the assessee's plea and directed the computation at a lower rate, but the Tribunal overturned this decision. The High Court, after considering the facts and legal provisions, held that the assessee was entitled to raise the legal issue before the first Appellate Authority, which had similar powers to the Assessing Officer. The Court referred to various legal precedents to support its decision, ultimately setting aside the Tribunal's order and restoring the decision of the CIT (A) in favor of the assessee.

2. The Court noted that the proviso to section 112(1) was introduced during the assessment year under consideration, and the assessee might not have been aware of this amendment. Despite the mistake in showing long term capital gain at a higher rate, the Court emphasized the duty of the Assessing Officer to apply relevant provisions correctly. The Court cited legal principles and circulars to support the assessee's claim for the lower rate of taxation. Additionally, the Court highlighted that the Tribunal's reliance on certain legal precedents was not applicable to the present case, as those judgments were limited to the power of the Assessing Officer and did not impinge on the power of the Income Tax Appellate Tribunal. Considering the legal principles and the facts of the case, the Court ruled in favor of the assessee, emphasizing the need for justice to be not only done but also seen to have been done.

In conclusion, the High Court allowed the appeal, setting aside the Tribunal's order and restoring the decision of the CIT (A) in favor of the assessee. The Court's detailed analysis considered the legal provisions, precedents, and the facts of the case to uphold the assessee's entitlement to be assessed at a lower rate of long term capital gain tax as per the proviso to section 112(1) of the Income Tax Act.