9911796707
TMI Blog1990 (2) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-3-1978 for Rs.30.656 8-3-1978 for Rs. 20.448 Rs. 78,049 The assessee made a fixed deposit with the State Bank of India, Tuticorin on 9th March, 1978 vide F.D. No. 653499 of Rs. 1 lakh. Thus, more than the full consideration received was placed in a fixed deposit. 3. In the return filed, capital gains were neither shown nor any capital gain was brought to tax in the assessment for the year 1978-79. 4. In the next year, in the statement filed, the assessee had stated that a loan had been availed of against the fixed deposit. The ITO took the view that the assessee forfeited the exemption from capital gains and what is more, the non-furnishing of particulars in the asst. yr. 1978-79 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its made after the 27th April, 1978. In the present case, the deposit was made on 9th March, 1978 and the assessee s case goes outside the purview of the Explanation. The exemption granted could have been withdrawn in terms of s. 54E(2) only "where the new asset is transferred, or converted (otherwise than by transfer) into money, with in a period of three years from the date of its acquisition, the amount of capital gains arising from the transfer of the original asset not charged under s. 45 on the basis of the cost of such new asset as provided in cl.(a) or, as the case may be, cl.(b), of sub-s. (1) shall be deemed to be income chargeable under the head "Capital gains" relating to capital assets other than short-term capital assets of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n processed at two appellate levels and it would appear that bringing the amount of capital gains to tax itself is seen to be contrary to the statutory provision, it is a case of hardship. In an appeal in penalty proceedings, the question of giving any directions pertaining to the assessment cannot arise. However, there have been cases in the past where, to quote from the decision of the Madras High Court in SETH LUNIDRAM TIKAMDAS vs. CIT (1979) 10 CTR (Mad) 186 : (1980) 121 ITR 824 (Mad), "taking note of this hardship, the Tribunal satisfied its judicial conscience by expressing a pious hope that "the department should consider the case of the assessee sympathetically and when any application for sympathetically consideration is made to it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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