9911796707
TMI Blog1985 (11) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered Office No. 1527, Jalan mehsuri, Alor Setar, Kodah. Total sale value $7,02,310-65 Add : Compensation received from . Government of Malyaysia $ 19,962.10 Less : Compensation paid to 7,22,272.75 workers and valuation fees 1,976.66 Brokerage paid to brokers 14,046.20 Brokerage paid to agent 39,803.34 Fees paid to advocate 43,407.66 . 59,233.86 Net realisation $ 6,63,038.89 The assessee was holding the abovesaid property from 1951. The cost of acquisition of the property was $ 11,107.50. The assessee was owning the property even prior to 1st Jan., 1964. The assessee is not having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with law after giving the assessee an opportunity of binge heard. 3. The assessee is in appeal before us and the first contention urged by the ld. counsel was that there was a merger of the order of the ITO with that of the AAC dt. 24th Jan., 1984 and, therefore, the CIT could not have passed the order in revision which he did on 3rd/12th Sept., 1984. In support of this proposition, reliance was placed on the decision of the Special Bench of the Tribunal in the case of Dwarakadas Private Ltd. vs. ITO (1982) 13 TTJ (Bom) : 107 (1982) 1 ITD 303 (Bom) (SB). The second contention put forth was that in any event, the Tribunal had been holding that capital gains arising in Malaysia could not be subjected to tax in India in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Oil Engines ltd. vs. IAC (1984) 8 ITD 733 (Pune.). The learned Departmental Representative also submitted that the decision of the Madras High Court in the case of CIT vs. Emco-K. C. P. Limited (1984) 147 ITR 603 (Mad) squarely supported the stand. On the point of the applicability of s. 54-B, the submission of the ld. Departmental Representative was that when there was a reference to an individual or a parent of his, it is clear that assessee such as HUFs were excluded from the purview of exemption under s. 54-B. In this regard, reliance was placed on decisions reported in Shrigopal Rameshwardass vs. Addl. CIT 1978 CTR (MP) 293 : (1984) 119 ITR 980. CED vs. Smt. Ram Sumant Devi (1984) 38 CTR (All) 111 : (1979) 147 ITR 233 (All) and CIT vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Special Bench of the Tribunal referred to, we have, therefore, to hold that there was a merger in the present case of the order of the ITO with that of AAC. However, the issue is academic in the present case. This is because the Tribunal has been holding that income from capital gains arising in Malaysia cannot be included in the Indian assessment for the reasons stated in the order of the Tribunal already referred to in ITA No. 1381/Mds/83 of December, 1983 and earlier orders. When such income cannot be included, by omitting to include that income, it cannot be said that the ITO had committed an error prejudicial to the Revenue. Therefore, on merits, the CIT was not justified in passing the order that he did. 6. In the view that w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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