TaxTMI 
TaxTMI 
2017 (8) TMI 328
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.... as eleven grounds of appeal. As a matter of fact the learned counsel for the assessee, Ms. Ananya Kapoor, advocate pressed only ground Nos. 3, 4 and 5 which pertained to one issue only and the said grounds are reproduced hereinbelow. "3. That the Commissioner of Income-tax (Appeals) has erred in law and on facts in holding that no cognizance can be taken of the claim made by the assessee that sale of property be treated as capital gain and indexation benefit should be allowed to the assessee. The action of the Commissioner of Income-tax (Appeals) in rejecting the claim is illegal and bad in law. 4. That the Commissioner of Income-tax (Appeals) has erred in law and on facts in holding that the assessee did not require any ....
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....ities below. The learned counsel, Miss Ananya Kapoor argued that the claim made before the Assessing Officer during the course of assessment proceedings is well within the law and held by the hon'ble jurisdictional High Court in the case of CIT v. Sam Global Securities Ltd. in I. T. A No. 214 of 2013 dated September 2, 2013 [2014] 360 ITR 682 (Delhi). The said decision dated September 2, 2013 of the hon'ble jurisdictional High Court is reproduced below (page 683) : "The Revenue in this appeal, which pertains to the assessment year 2001-02 rely upon the judgment of the Supreme Court in Goetze (India) Ltd. v. CIT [2006] 284 ITR 323 (SC). The contention is that the respondent-assessee should be denied deduction under section 1....
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.... (Appeals) held that Sun F and C Mutual Fund was duly approved mutual fund under section 10(23D). He observed that dividend from the units of mutual fund was exempt under section 10(35)(a). Similarly with regard to the loss, he observed that units of mutual funds were sold and not shares, and therefore, the adverse effect of Explanation to section 73 was not applicable. Reliance was placed upon the decision of the Supreme Court in Apollo Tyres Ltd. v. CIT [2002] 255 ITR 273 (SC). In spite of the said observations, the Commissioner of Income-tax (Appeals) did not allow the appeal on the ground that the assessee had not filed a revised return within the time allowed under section 139(5) of the Act, but had only filed a revised computation. ....
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..... We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier.' 7. Reference was also made to an earlier decision of the Supreme Court in Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688 (SC), wherein it has been held as under (page 386 of 292 ITR) : 'An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is....
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....han by a revised return, and did not impinge on the power of the Tribunal.' 9. In CIT v. Natraj Stationery Products P. Ltd. [2009] 312 ITR 22 (Delhi) reliance placed on Goetze (India) Ltd. (supra) by the Revenue was rejected, as the assessee had not made any 'new claim' but had asked for re-computation of deduction under section 80-IB. The said decision may not be squarely applicable but the courts have taken a pragmatic view and not the technical view as what is required to be determined is the taxable income of the assessee in accordance with the law. In this sense, assessment proceedings are not adversarial in nature. 10. In CIT v. Rose Services Apartment India P. Ltd. [2010] 326 ITR 100 (Delhi) relying upon....
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....dgment of the hon'ble Bombay High Court in the said case is placed at paper book pages 8 to 13 and the relevant paragraph read by the learned counsel is reproduced hereinbelow (page 599) : "What is capital asset is defined in section 2(14) of the Income-tax Act, 1961. Under that provision, a capital asset means property of any kind held by assessee, whether or not connected with his business or profession. The sub-clauses which deal with what property is not included in the definition of capital asset are not relevant. Under section 2(47), a transfer in relation to a capital asset is defined as including the sale, exchange or relinquishment of the asset or the extinguishment of any right therein or the compulsory acquisition th....