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Issues:
1. Whether the Appellate Tribunal was right in law in confirming the deletion of capital gains inclusion in the total income of the assessee? 2. Whether the Appellate Tribunal was right in law in allowing a further sum under section 35B of the Income-tax Act, 1961? Analysis: 1. The case involved a dispute regarding the inclusion of capital gains in the total income of the assessee firm for the assessment year 1977-78. The assessee firm was sold as a going concern along with all its assets and liabilities, with the total sale consideration being Rs. 20,21,767.68. The Inspecting Assistant Commissioner determined the fair market value of the firm to be Rs. 69,27,000, resulting in capital gains of Rs. 32,10,140. However, the Commissioner of Income-tax (Appeals) and the Tribunal held that this addition was not taxable, citing the decision in K. P. Varghese v. ITO. The Supreme Court's ruling in K. P. Varghese clarified that the provisions of section 52(2) can only be invoked if the consideration for the transfer is understated by the assessee, which was not the case here. Therefore, the first question was concluded by this precedent, and no reference was necessary. 2. The second issue pertained to the weighted deduction under section 35B of the Income-tax Act. The Tribunal had declined to refer this question, citing a previous decision. However, the court held that the Tribunal erred in not referring the question as it raised a legal issue. The assessee had claimed deductions under various heads related to exports, and the Tribunal allowed a portion of the additional claim as weighted deduction under section 35B. This decision raised a question of law, as confirmed by the court's judgment in CIT v. Bhagat Brothers. The court directed the Tribunal to draw up a statement of case and refer the second question for further consideration. The judgment partly allowed the petition and issued a mandamus to the Tribunal for the reference, with no order as to costs.
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