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TMI Blog1978 (12) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... t entitlement certificates. The AAC held that the appellant had himself admitted the liability for capital gains in the returns filed by him and the ITO was perfectly justified in making the assessments and the appellant can have no grievance against the assessment orders and the ITO's action in assessing the profits on the sale of the import entitlement certificates as capital gains on the basis of the appellant's returns fully justified. Aggrieved against the order of the AAC, the appellant has come up in appeal the Tribunal. 3. Before the Tribunal, it is contended for the appellant that he is entitled to raise the objection in appeal even though such objection regarding capital gains was not raised at the time of assessment and as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it must be taken that it had resiled from the position which it had wrongly taken while filing the return and it is incumbent on the IT Department to find out whether a particular income was assessable in the particular year or not. Merely because the assessee wrongly included the income in its return for the particular year, it cannot confer jurisdiction on the Department to tax that income in that year even though legally such income did not pertain to that year. 5. In the present case, even though the appellant has filed the returns admitting capital gains, he can challenge it as there is no estoppel in tax matters. When the appellant challenges his liability to capital gains, it must be taken that he had resiled from the position whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at question leads into the realm of law and that has to be decided according to the provisions of the IT Act. s. 246(c) gives right of appeal to any assessee who "denies his liability to be assessed under this Act". The denial of liability to be assessed may be in respect of the whole income or part of the income. It may be based on any ground, whether of fact or law and it may be total denial of liability or denial of liability under particular circumstances. The appellant, in the present case, is denying his liability to be assessed in respect of a part of his income. A statutory right of appeal conferred under s. 246(c) cannot be nullified or defeated by pinning the appellant to the returns filed by him. An assessee who denies liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, there was no occasion for the ITO to call for objections nor the appellant appeared before the ITO and stated that he has no objection for any action proposed to be taken by the ITO. The decision relied on by the learned Departmental Representative does not obviously apply to the facts of the present case. 8. It was next contended by the learned Departmental Representative that no claim for exemption from capital gains was made before the ITO and consequently, the appellant is precluded from raising this issue before the AAC and the Tribunal. In support of this contention, the decision of the Supreme Court in Addl. CIT vs. Gurjargravures P. Ltd., (5) is relied on. 9. In the Supreme Court decision relied on for the Revenue, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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