9911796707
TMI Blog1978 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... a businessman, deals in share transactions also. He has income from different sources. The ITO, " J " Ward, District V(A), Calcutta, assessed the respondent's total income, being Rs. 49,928, under s. 143(3) of the I.T. Act, 1961, in respect of the assessment year 1962-63. In his return for the relevant year the respondent had shown a loss of Rs. 23,100 in share transactions on the ground that he purchased through a share broker 15,000 ordinary shares of M/s. Hindusthan Motors Ltd. on 5th of March, 1962, for Rs. 3,17,400. The said shares were thereafter sold through another broker for Rs. 2,94,300 on March 29, 1962, and the respondent thus incurred a loss of Rs. 23,100 during the period from March 5, 1962, to March 29, 1962. The ITO conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss in question was a capital loss or a trade loss, the respondent made an application under art. 226 of the Constitution of India challenging the propriety of the order of the tribunal in that regard. The principal ground which was taken before the learned judge on behalf of the present respondent was that the Tribunal exceeded its jurisdiction in sending the matter on remand and requiring the AAC to decide whether the loss in question was a capital loss or a trade loss, for, such a question was not within the scope of the appeal before the Tribunal. Sabyasachi Mukharji J. took the view that the Tribunal clearly acted beyond its jurisdiction and that the petitioner before him, i.e., the present respondent, was entitled to the relief claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court case referred to above can be of no assistance to the present appellant. In the Supreme Court case referred to above, Ramaswami J. did accept the legal position that the word "thereon" (appearing in s. 33(4) of the Indian I.T. Act, 1922, and s. 254(1) of the I.T. Act, 1961), " of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal " . There can be no doubt that according to the decision of the Supreme Court the Tribunal has the power of remanding a case to the AAC or the ITO, as the case may be, requiring him to hold further enquiry and to dispose of the case on the basis of such enquiry. But the jurisdiction of the Tribunal is confined only to the subject-matter of the appeal. Sub-section (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the Tribunal which have been quoted at length earlier in our judgment would show unmistakably that the question as to whether the loss of Rs. 23,100 was speculative loss was the only question which was sought to be agitated before the Tribunal. Admittedly, the question whether the loss was a capital loss was neither included in the grounds taken before the Tribunal originally nor permitted to be taken subsequently by the Tribunal. The Tribunal in deciding the case went out of its way and though the question whether the loss was a capital loss was not within the scope of its authority did take up that question and the determination of that question necessitated the sending of the case on remand to the AAC. In the circumstances afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by section 33A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on merits. " In the circumstances aforesaid, the appeal ought to be dismissed and it is accordingly dismissed. There will be no order as to costs. M. M. DUTT J. --I agree. - - TaxTMI - TMITax - In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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