1982 (7) TMI 214 - AT - Income Tax

Summary

Issues:
1. Jurisdiction of CIT to revise order under s. 263 based on nature of capital gains.
2. Applicability of previous judgments on the present case.
3. Determination of capital gains based on the date of construction of the building.

Analysis:

1. The appeal was against the CIT's order under s. 263 of the IT Act, challenging the treatment of long-term capital gains by the ITO. The CIT contended that the assets sold should have been treated as short-term capital assets due to the recent construction of the building. The assessee argued that the plots were acquired on a lease, and the construction was done to prevent repossession, justifying the treatment as long-term capital gains. The CIT overruled the objection, citing precedent, and directed the ITO to reassess the profits as short-term gains. The Tribunal held that the CIT's jurisdiction to revise the ITO's order was barred due to the order merging with that of the CIT(A), thereby allowing the appeal.

2. The assessee argued that the CIT had no jurisdiction under s. 263 to revise the ITO's order, citing a Tribunal decision and the Supreme Court's ruling. The Tribunal agreed, emphasizing the distinction between s. 154 and s. 263. Additionally, the assessee contended that the CIT did not specifically find an error prejudicial to revenue in the ITO's order. The Tribunal concurred, noting the lack of a specific finding in the CIT's order, leading to the setting aside of the CIT's order.

3. The Tribunal raised the issue of determining capital gains based on the date of construction of the building when sold with the land. It questioned whether the land and building should be considered separately for capital gains calculation. Without a definitive finding on these aspects by the authority invoking s. 263, the order could not be modified. Consequently, the Tribunal set aside the CIT's order, allowing the appeal.

This comprehensive analysis covers the jurisdictional challenges, applicability of precedent, and the intricacies of determining capital gains in the context of the date of construction of the building.