1982 (7) TMI 214

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.... cost of each of the plots acquired by the assessee in 1963 was Rs. 13,923. The cost of the superstructure on each of the plots constructed in 1975 was Rs. 20,285. Thus the total cost of the property sold came to Rs. 68,416, and the capital gain according to the assessee was Rs. 61,583. As stated already, the ITO accepted the assessee's working of the capital gains at Rs. 61,583. He also accepted the assessee's contention that the assets were long term capital gains. The CIT acting under s. 263 of the IT Act was of the opinion that as the building was constructed only in 1975 and sold in the same year, the assets sold should have been treated as short term capital assets in so far as the building and appurtenant land were concerned. He, the....

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....rm capital gains. The assessee is in appeal. 2. The ld. Counsel for the assessee submitted that the decision of the Bombay High Court in (1980 124 ITR 570 (Bom) was not applicable to the present case. A Full Bench of the Tribunal in ITA No. 1852 (Bom) of 1977-78 reported in Dwarkadas & Co. (P) Ltd. vs. ITO (1982) 1 ITD 303 (Bom) had held, under similar circumstances, that having regard to the decision of the Supreme Court in the case of CIT vs. Rai Bahadur Hardutroy Motilal Chamaria (1967) 66 ITR 443 (SC) that the Commr. was not competent to revise an order of the ITO on which an appellate order has been passed by the AAC or the CIT(A). The Tribunal had noticed the distinction between s. 154 which was considered by the Bombay High Court in....

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.... regarded that the transfer was only in respect of the plot of land. 4. We find that the Full Bench of the Tribunal in ITA No. 1852 (Bom) of 1977-78 has fully considered all the arguments of revenue. The Tribunal has also referred to the decision of the Bombay High Court in CIT vs. Sakseria Cotton Mills Ltd. (1980) 124 ITR 570 (Bom) and Supreme Court's decision in Madura Mills Co. Ltd. The conclusion arrived at was that the decision of the Bombay High Court rendered while interpreting s. 154 was not applicable to orders passed under s. 263. Respectfully following the decision of the Full Bench, we hold that the order of the ITO merged with the order of the CIT(A) and the jurisdiction of the CIT under s. 263 to revise the order of the ITO w....