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TMI Blog1988 (2) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the Income-tax Officer had acted without jurisdiction. The legal position is that in a case where the jurisdiction of the Income-tax Officer is assailed in issuing notice under section 148 of the Act, it is for the Department to satisfy the court about the existence of the same. This position has not been disputed before us, and rightly, by Shri Choudhury, in view of the catena of decisions of the Supreme Court starting from Calcutta Discount Co. v. ITO [1961] 41 ITR 191 (SC). It is also well-settled that if the Income-tax Officer were to lack jurisdiction, notice under section 148 can be quashed by this court in exercise of its power under article 226 of the Constitution. The jurisdiction of the Income-tax Officer in issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point for determination, therefore, is whether the assessee-company can be said to have earned any capital gains prior to the acquisition of land on March 9, 1971. Now, a, reference to section 45 of the Act shows that capital gain arises when there is a transfer of capital asset " in the previous year. The word " transfer has been defined in section 2(47) of the Act to include compulsory acquisition of a capital asset under any law. It is thus apparent that there was no transfer before the land was acquired on March 9, 1971. Therefore, in so far as assessment years 1965-66 to 1971-72 are concerned, it cannot be said that there was any capital gain on the transfer of the land. We are, therefore, not required to examine the question whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid receipt as income of the petitioner. Whether in fact the land was agricultural and whether it qualified to get exemption under section 47(viii) are matters on which the Income-tax Office, while passing the assessment order could have taken a view against the assessee but he did not. It may be stated here that it is well-settled that mere change of opinion cannot be regarded as a ground for entertaining the belief that income chargeable to tax has escaped assessment. This apart, it is clear from what has been stated above that there was no failure on the part of the assessee to disclose the fact of receipt of the aforesaid compensation by it. In view of all that has been stated above, we are satisfied that the Income-tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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