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TMI Blog1980 (9) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, which correspond to the three assessment years. The ITO considered that the sale of the plots constituted a business and the taxable profits in that business for the three years were Rs. 63,971 for 1958-59 assessment year, Rs. 1,61,489 for the assessment year 1959-60 and Rs. 39,212 for the assessment year 1960-61. It appears that even for the two earlier assessment years, namely, 1956-57 and 1957-58, the same view had been adopted, but the Income-tax Appellate Tribunal had reversed the decision of the ITO and of the AAC, by its order dated 30th October, 1963. By that judgment the Tribunal had held that the sales of land were not an adventure in the nature of trade and hence these profits were not assessable to tax. On appeal, for the three assessment years now under consideration, the AAC followed the decision of the Tribunal and set aside the assessments in respect of the aforementioned profits from the sale of land. The ITO preferred appeals to the Tribunal and set out identical grounds of appeal for the three years. Although the grounds of appeal have been annexed to the statement of the case as annex. C, we find that in fact annex. C is not the grounds of appeal, but som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a " capital gain ". Mr. Ray for the assessee submits that it does not necessarily follow that there is any profit by way of capital gain, and, furthermore, it cannot be said from the record that the plots which were sold were not agricultural land, etc. In short, it is submitted that the calculation of capital gains as well as the question whether any capital gains are leviable involves a number of additional facts. Particularly, it is pointed out that the capital gains have to be calculated keeping in view the price prevailing on 1st January, 1954, in view of what is stated in s. 12B of the Indian I.T. Act, 1922. The section as it stood at the relevant time was introduced by the Finance (No. 3) Act of 1956, with effect from 1st April, 1957, and there is a proviso that the capital gains have to be taken in relation to the price prevailing on 1st January, 1954, so that the capital gains in these cases may be either negligible or non-existent. No doubt, the capital gains tax had only recently been introduced when these cases were under consideration and it may be that the capital gains were either non-existent or negligible. Undoubtedly, the facts for determining the capital gains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision under appeal. There can be no error or defect on a point which is not urged, and, hence, normally a new point is not to be permitted to be raised. Some additional points have been urged before us to show that the correct procedure was followed by the Tribunal. It was held by the Gujarat High Court in CIT v. Karamchand Premchand P. Ltd. [1969] 74 ITR 254, that a new point could not be raised before the Tribunal which had not been raised before the AAC. Certain deductions had been claimed by the assessee in its return. One of these was a sum of Rs. 25,920, being expenses of various types incurred in connection with the issue of debentures by the assessee-company. Some of these deductions were disallowed including the expenses, on the debenture issue. On appeal to the AAC, the assessee challenged the ITO's order disallowing the deductions but did not raise any question regarding the disallowance of the sum of Rs. 25,920 before the AAC. After the decision of the AAC, the Supreme Court gave a judgment in India Cements Ltd. v. CIT [1966] 60 ITR 52, which led the assessee to raise the question of expenses relating to the debenture issue in a further appeal to the Tribunal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns. The court observed as follows (p. 895) : " The only question is whether in enhancing the assessment for any year he can travel outside the record, that is to say, the return made by the assessee and the assessment order passed by the Income-tax Officer with a view to finding out new sources of income, not is close in either. It is contended by the Commissioner of Income-tax that the word 'assessment' here means the ultimate amount which an assessee must pay, regard being had to the charging section and his total income. In this view, it is said that the words 'enhance the assessment' are not confined to the assessment reached through a particular process but the amount which ought to have been computed if the true total income had been found. There is no doubt that this view is also possible. On the other hand, it must not be overlooked that there are other provisions like sections 34 and 33B, which enable escaped income from new sources to be brought to tax after following a special procedure. The assessee contends that the powers of the Appellate Assistant Commissioner extend to matters considered by the Income-tax Officer, and if a new source is to be considered, then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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