9911796707
TMI Blog1984 (4) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent-assessee is a Hindu undivided family and the assessment year in question is 1974-75 for the accounting year ending March 31, 1974. For this year, the assessment was completed on a total income of Rs. 23,368 on February 26, 1977, by the Income-tax Officer. In that year, the assessee had sold certain land measuring 9,800 sq. feet for Rs. 66,000 and it claimed that since the land was appurtenant to the residential house and since it has incurred expenditure more than the sale price, the capital gains on the sale of the land was exempt under section 54 of the Act. The contention was accepted by the Income-tax Officer. However, on making enquiry, subsequently in respect of the nature of the land sold by the assessee and the legal posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Assistant Commissioner by holding that though the Appellate Assistant Commissioner referred to the decision in Indian Eastern Newspaper Society v. CIT [1979] 119 ITR 996 (SC), reopening on the sole ground of audit pointing out a mistake was not justified under section 147(b). The Department then filed an application for reference which has been rejected by the Tribunal on February 14, 1983. So the present application has been filed. The learned counsel for the Department contended that the audit only pointed out the correct position of law and not interpreted the law and, therefore, this amounts to information within the meaning of section 147(b) and the case could be reopened by the Income-tax Officer. According to the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding of fact is specifically challenged by the assessee and question is raised and referred incorporating such challenge, the court would not suo motu go into the validity of the finding of fact: Shanti Devi Jalan v. CIT [1983] 139 ITR 288. The same is the view taken in Addl. CIT v. R. D. Ramnath Co. [1983] 141 ITR 897 (Delhi), that when the finding of the Tribunal that business was not distinct was not challenged, the Tribunal's order cannot be set aside even if the court held the transaction to be speculative. The question referred was academic and cannot be answered. So we have to see whether the decision of the Supreme Court in Indian and Eastern Newspaper Society v. CIT [1979] 119 ITR 996, concluded the matter. The Supreme Court, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation of the Tribunal that the Income-tax Officer reopened the assessment on the sole ground of audit pointing out a mistake that the assessee being a Hindu undivided family was not entitled to exemption from capital gains under section 54, helps the Revenue and not the assessee and there is no question of disturbing the finding of fact. This court in Shrigopal Rameshwardas v. Addl. CIT [1979] 119 ITR 980 at p. 986 has held that the word " assessee " occurring in section 54 is applicable only to a living person and not to an artificial juridical person. In that case, the assessee, a Hindu undivided family, sought exemption on capital gains in respect of a house property and it was held that the same is not allowable. Accordingly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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