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TMI Blog2012 (4) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ny such thing, but not to indicate a stand contrary to the main thing - Held that: the instant case was not one of a principle of estoppel being put against the assessee to deny any examination but it was a more a case of non-production of relevant material by the assessee which would have compelled the Tribunal or the Appellate Commissioner to examine and opine on that and merely raising a ground is not a substitute for material to make good the ground - Appeal is dismissed - 415 of 2010 - - - Dated:- 18-1-2012 - SHYLENDRA KUMAR D. V., KEMPANNA H. S. JJ. JUDGMENT D. V. Shylendra Kumar J.- 1. The appeal under section 260A of the Income-tax Act, 1961 (for short, "the Act") by an assessee, a public limited company registered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sums under some other heads, etc., and arrived at the taxable income as Rs. 5,02,09,941 and raised a demand and also directed initiation of penalty proceedings under section 271(1)(c) of the Act separately. 4. The assessee was in appeal, inter alia, contending that out of Rs.11,15,44,005 as capital gain as has been declared by the assessee in its income-tax return, while only a sum of Rs. 31,60,000 was assessable to tax being attributable to transfer of some capital assets, the balance sum of Rs.10,83,84,005 could not be assessed as income attributable to capital gain, as the amount had been transferred to capital reserve account even in terms of the note appended to the return. 5. However, this ground did not find favour with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that both the Appellate Commissioner and the Tribunal have committed a mistake in not examining the case of the assessee that the entire amount of capital gain, though has been offered so in the return of income, was not taxable as income ; that it did not represent capital gain which was taxable ; that some part of if taxable as had been offered by the assessee itself but the amount that had been trans- ferred to the capital reserve was not an amount which was, per se taxable as capital gain ; that though the assessee raised this contention not only before the Appellate Commissioner but also before the Appellate Tribunal, neither have examined this question and, therefore, the matter merits examination on the aspect of the entire amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of treating the entire capital gain as offered by the assessee to be taken as income of the assessee and to finalize the return, the appellate authorities were bound to examine this question, but having dismissed the appeals only on the principle of estop- pel as the assessee had voluntarily offered, the judgment cannot be sustained, etc. 11. Sri Shankar also places reliance on yet another judgment of the Supreme Court in the case of CIT v. V. Mr. P. Firm, Muar [1965] 56 ITR 67 (SC) to submit that the principle of estoppel is one to be called in aid against the conduct of the parties and not against statutory provisions and, therefore, submits that taxability or otherwise of the amount as income is a question based on the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital reserve or deployed as capital investment or utilizes in any other manner that does not control the amount becoming capital gain. 15. In this background, if the assessee had not made good as to for what reasons and in what manner the amount cannot be treated as capital gain before the Appellate Commissioner or before the Tribunal but merely raised a ground that it is not per se capital gain, though offered, the asses- see had failed in making good the ground and, therefore, cannot be said that the Tribunal committed a mistake in law in rejecting the ground urged by the assessee. 16. We find that the instant case was not one of a principle of estoppel being put against the assessee to deny any examination but it was a more a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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