1988 (2) TMI 40

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....or the years in question. The validity of the notices has been questioned on the ground that the Income-tax Officer had acted without jurisdiction. The legal position is that in a case where the jurisdiction of the Income-tax Officer is assailed in issuing notice under section 148 of the Act, it is for the Department to satisfy the court about the existence of the same. This position has not been disputed before us, and rightly, by Shri Choudhury, in view of the catena of decisions of the Supreme Court starting from Calcutta Discount Co. v. ITO [1961] 41 ITR 191 (SC). It is also well-settled that if the Income-tax Officer were to lack jurisdiction, notice under section 148 can be quashed by this court in exercise of its power under article ....

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....ut had only been requisitioned. The acquisition really came on March 9, 1971. The point for determination, therefore, is whether the assessee-company can be said to have earned any capital gains prior to the acquisition of land on March 9, 1971. Now, a, reference to section 45 of the Act shows that capital gain arises when there is a transfer of capital asset " in the previous year. The word " transfer has been defined in section 2(47) of the Act to include compulsory acquisition of a capital asset under any law. It is thus apparent that there was no transfer before the land was acquired on March 9, 1971. Therefore, in so far as assessment years 1965-66 to 1971-72 are concerned, it cannot be said that there was any capital gain on the tr....