1983 (7) TMI 14

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....aimed and obtained exemption from capital gains tax under s. 54 of the I.T. Act, for the assessment year 1972-73, in the income-tax assessment made under s. 143(3) of the said Act on July 23, 1974. Subsequently on the ground that there was information from the audit party that the exemption was not available to a HUF, the assessment was reopened by ITO under s. 147(b). In the reassessment made on January I 1, 1978, the ITO took the view that the exemption granted under s. 54 in respect of the sale of the 20% share in the property known as " Chamundeswari Bagh " at No. 9, Santhome High Road, has been wrongly allowed in the original assessment. He, therefore, withdrew the exemption granted in the original assessment. The assessee took the ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....y the assessee. The Tribunal, in dealing with the said M.P. No. 21 of 1980, held that no case has been made out for invoking the power of the rectification of a mistake apparent from the record, that the jurisdiction of the ITO to reopen the assessment under s. 147(b) was not the subject-matter of the appeal filed by the Revenue against the order of the AAC, and that there is, therefore, no question of any rectification of mistake arising. According to the Tribunal, the question of rectification will arise only if the Tribunal gives a decision on the point as to the jurisdiction earlier in one way and the Supreme Court deciding that question differently later. According to the Tribunal, as it has not decided the question of jurisdiction at ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ase on merits in favour of the petitioner, he did not agitate the question of, jurisdiction further. As a matter of the fact, he did not file an appeal against, the view taken by the AAC on the question of jurisdiction before the Tribunal. Even in the appeal filed by the Revenue against the decision of the AAC on merits, he did not raise any cross-objection questioning the jurisdiction of the ITO to reopen the assessment under s. 147(b) of the Act, on the basis of the audit report. Therefore, there was no occasion for the Tribunal to go into the question of jurisdiction. When the Tribunal has not given a decision on the point, we do not see how a mistake apparent from the record could arise from the order of the Tribunal on the question of ....