9911796707
TMI Blog1975 (8) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... . The said loss had arisen, according to the assessee, in share dealing and as such the assessee was entitled to set off the said loss against his other income. The Income-tax Officer in his order of assessment came to the view that the said loss of Rs. 23,100 was speculative loss and as such not entitled to be set off against business gains. The assessee preferred an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner agreed with the view of the Income-tax Officer. The assessee thereupon preferred an appeal to the Income-tax Appellate Tribunal. By an order dated the 16th December, 1969, the Appellate Tribunal disposed of the appeal. The Tribunal came to the conclusion that the departmental authorities w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Section 254(1) of the Income-tax Act, 1961, authorises the Appellate Tribunal after giving both the parties to the appeal an opportunity of being heard "to pass such order thereon as it thinks fit". Therefore, the Tribunal has authority and jurisdiction to pass such order as the Tribunal thinks fit on the appeal before it. The amplitude of the power of the Tribunal is only circumscribed by the subject-matter of the appeal. The question, therefore, is what is the appeal before the Tribunal. This question had been the subject-matter of several judicial pronouncements to some of which my attention was drawn. It is not necessary to refer to all of these. Reliance may, however, be placed on the observations of the Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Officer as well as Appellate Assistant Commissioner was whether the loss of Rs. 23,100 should be treated as speculative loss or business loss. The grounds of appeal filed before the Tribunal by the petitioner were as follows : "Grounds of appeal 1. For that on the facts and in the circumstances of the case the learned Appellate Assistant Commissioner was not justified in confirming the Income-tax Officer in treating the loss of Rs. 23,100 in share account as speculation loss. 2. For that the learned Appellate Assistant Commissioner has erred on both points of law as well as fact." Therefore, the subject-matter of the appeal was the controversy as to whether the loss claimed by the assessee was a loss in the nature of a spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Income-tax Officer v. M. K. Mohammad Kunhi [1969] 71 ITR 815 (SC). There the question was whether the Tribunal had ancillary power to grant stay of recovery proceedings pending an appeal before the Tribunal. The amplitude of the power of a Tribunal which included the power of the Tribunal to grant ancillary relief is not in dispute before me but the amplitude, as I mentioned before, is circumscribed by the subject-matter of the appeal. The question in this application is only what was the subject-matter of the appeal. It was then contended on behalf of the revenue that the petitioner had an alternative remedy within the Income-tax Act, 1961, and as such was not entitled to any relief. Under sub-section (4) of section 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication under article 226 was entertained by the High Court at the time when there was still time for revision application. In the instant case before me the application under article 226 had been moved after the expiry of the time to make an application for reference under section 256 of the Income-tax Act, 1961. In the view, however, that I have taken as mentioned before, the order of the Appellate Tribunal dated the 15th of October, 1971, passed in I. T. A. No. 3804 (Cal) 69-70 directing the Appellate Assistant Commissioner of Income-tax to find out whether the loss was capital loss or not is set aside. The rest of the order of the Appellate Tribunal is, however, affirmed. The rule is made absolute to the extent indicated above. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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