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TMI Blog1983 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee as long-term capital gains ?" The assessee was holding 201 shares of Rs. 500 each in Kanadukathan Electric Supply Corporation, which went into liquidation some years back. The assessee was receiving dividend from the liquidator of the company during the last few years prior to the assessment year 1969-70. In the year of account relevant for the assessment year 1969-70, the assessee received by way of third and fourth dividends a total sum of Rs. 33,165 which, along with the other dividends received previously, exceeded the original cost of the shares by Rs. 13,590. This was brought as " capital gains " by the ITO. On appeal, the AAC relying on the decision of the Tribunal in the case of another assessee by name Smt. C. T. Oppilal A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, the learned counsel refers to the decisions of this court in T. M. Rangachari v. CIT [1976] 102 ITR 50, CIT v. M. A. Alagappan [1977] 108 ITR 1000, CIT v. C.T. Oppilal Achi [1977] 109 ITR 126 and the decision of the Supreme Court in the case of CIT v. R. M. Amin [1977] 106 ITR 368, which arose out of the judgment of the Gujarat High Court in CIT v. R. M. Amin [1971] 82 ITR 194, relied on by the Tribunal in this case. In T. M. Rangachari v. CIT [1976] 102 ITR 50, a Division Bench of this court, to which one of us was a party, had taken the view that s. 46(2) is a charging provision independent of s. 45 and, therefore, even if a particular income cannot be brought to charge under s. 45 of the Act, the same can be brought to charge under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, but held that s. 46(2) itself is a charging section and it will apply only in relation to companies which fall within the scope of the definition of de company " in s. 2(17) of the I.T. Act, 1961. Since the Tribunal had not given its decision on that question, this court remitted the matter to the Tribunal for consideration of that question. Though this court has remitted the matter to the Tribunal, it clearly ruled that s. 46(2) is charging section apart from s. 45 and that it will apply to all receipts from the liquidator in the course of the liquidation of the company as dividends towards the shares held by them. In this case the question as to whether the assessee-company is company as defined in s. 2(17) of the Act doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held against the Revenue. The Supreme Court affirmed the decision of the Gujarat High Court and held that s. 46(2), as a charging section, can be applied for the amount received from the official liquidator; but the company in liquidation should be a company as contemplated in s. 2(17) of the Act. As already stated, we are not now concerned with the question as to whether the company in liquidation is a company as defined in s. 2(17) of the Act. Thus, the question as to whether s. 46(2) can be used as a charging section without reference to s. 45 seems to be concluded by the decision referred to above. Though the Tribunal purported to follow the decision of the Gujarat High Court, it has not referred to s. 46(2) and considered the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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