Capital gains on share sale surplus and no refund where tax was paid consistently with the assessee's own stand.

Where the Tribunal had found that surplus from sale of shares was capital accretion and not business profit, the income was to be treated as capital gains in line with the assessee's own stand and the provisional assessment already made. A later rectification application under section 35 could not disturb that finding or create a right to refund of tax voluntarily paid on the same basis. The commentary states that the assessee was not entitled to refund and that the appeals were liable to be dismissed.

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Issues: Whether the assessee was entitled to refund of capital gains tax after the Tribunal had held the surplus on sale of shares to be capital accretions and the Income-tax Officer had revised the assessment accordingly.

Analysis: The Tribunal had conclusively found that the surplus realised from the sale of shares was not business profit but capital accretion. In consequence, the proper course was to assess the amount as capital gains, which was consistent with the assessee's own stand throughout the proceedings and with the provisional assessment already made under section 23B. The subsequent application by the Income-tax Officer under section 35 could not alter the effect of the Tribunal's finding, and the assessee could not seek refund of tax voluntarily paid on the basis of her own case.

Conclusion: The assessee was not entitled to refund, and the appeals were liable to be dismissed.

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