TaxTMI 
TaxTMI 
2011 (10) TMI 78
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.... of this Court has admitted the present appeal on the following substantial questions of law: 1. Whether on true and correct interpretation of the provisions to section 250 of the Act the Tribunal was legally correct in holding that the assessee's claim for being assessed as per second proviso to section 112 (1) could not have been considered and allowed from the stage of the first Appellate Authority? 2. Whether there existed any basis for the Tribunal to hold that there arose no cause of action from the order passed by the Assessing Officer and the first Appellate Authority was not legally correct in allowing the relief to which the assessee was undisputedly entitled in law? The brief facts of the case are th....
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....ze (India) Ltd. Vs. CIT, (2006) 284 ITR, 323 (SC), the appeal of the department was allowed. Being not satisfied, the assessee has knocked the door of this Court by filing the present appeal. With this background, Sri Asish Bansal, holding brief of Sri S.K.Garg, learned counsel for the assessee submits that as per proviso of section 112 (1), the long term capital gain will have to be computed at the rate of 10%. This is a statutory right of the assessee which was raised before the first Appellate Authority. For this purpose, he relied on the ratio laid down in the following cases:- 1. Nation Thermal Power Co. Ltd. Vs. CIT (2006) 229 ITR, 383 (SC); 2. CIT Vs. Jai Parabolic Springs Ltd. (2008) 306 ITR 42 (Del.); ....
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....ce as per C.B.D.T. Circular No.14 (XL- 35)1955 dated 11 April 1955. Even under the bonafide belief, the assessee has shown the long term capital gain at the rate of 20%, but it was expected from the A.O. to know the latest amendment. The mistake might have been corrected by passing an order under section 154 of the Act. In the case of CIT Vs. Mahalaxmi Sugar Mills Co. Ltd. (1986) 160 ITR 920 SC, it was observed that: "There is a duty cast on the Income-tax Officer to apply the relevant provisions of the Indian Income-tax Act for the purpose of determining the true figure of the assessee's taxable income and the consequential tax liability. That the assessee fails to claim the benefit of a set-off cannot relieve the Income-tax Offi....
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....x. 42.3 This amendment takes effect retrospectively from the 1st day of April, 2000 and shall accordingly apply in relation to the assessment year 2000-2001 and subsequent years." In the instant case, the Tribunal heavily relied on the ratio laid down in the case of Goetze (India) Ltd. Vs. CIT, (2006) 284 ITR, 323 (SC), where a Division Bench of Hon'ble Supreme Court observed that: "The decision in question is that the power of the Tribunal under section 254 of the Incometax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the Assessing Officer to entertain a c....
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....e. Hon'ble Supreme Court observed that: "Where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee." Similarly, in the case of CIT Vs. Jai Parabolic Springs Ltd. (2008) 306 ITR 42 (Del). it was observed that: "There was no prohibition on the powers of the Tribunal to entertain an additional ground which according to the Tribunal arose in the matter and for the just decision of the case. There was no infirmity in the order of the Tribunal." It is also pertinent to mentio....