TaxTMI 
TaxTMI 
1985 (4) TMI 105
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....1,85,000 minus Rs. 1,21,275. The ITO it appears from the original assessment order, treated the capital gain as long-term capital gain and accordingly after allowing set off of capital loss of Rs. 30,483 determined for the asst. yr. 1970-71, took the net capital gain of Rs.33, 287. It would be relevant to mention at this stage that during the year under appeal, s. 2(42A) was inserted w. e. f. 1st April, 1974 defining "short-term capital asset". The definition indicated that the short-term capital asset means a capital asset held by an assessee for not more than 60 months immediately preceding the date of its transfer. The ITO took action under s. 147 (b) the Act. A notice under s. 148 was issued and was served upon the assessee on 8th Sept.....
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.... 147 (b) of the Act. The CIT (Appeals) therefore, rejected the argument of the assessee. 3. Shri Bajoria, the counsel of the assessee, urged that the action taken by the ITO was illegal. Shri Bajoria stated that the facts are not in dispute and the facts are correctly reproduced in the original assessment order. The computation of the capital gain is also not in dispute. he stated that on those facts the ITO could have not taken action under s. 147 (b) of the Act. Shri Bajoria referring to the decision of the Supreme Court in Kalyanji Movji & Co. 1976 CTR (SC) 85 : (1976) 102 ITR 287 (SC) urged that the Supreme Court in this decision indicated that s. 34 (1) (b)/147(b) is applicable where in the original assessment the income liable liab....
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.... the decision in Indian Eastern News Paper Society vs. CIT (1979) 12 CTR (SC) 190 : 119 ITR 996 (SC). 4. Shri Dasgupta, the Departmental Representative, stated that in order to appreciate the reasoning adopted by the ITO for reopening the assessment under s. 147 (b) certain dates are necessary. He gave the following dates: (1) Notice under s. 148 served on the assessee on 8th Sept., 1977 (2) The decision in (1976) 102 ITR 287 (SC) delivered on 10th Dec., 1975 (3) The decision in (1979) 12 CTR (SC) 190 : (1979) 119 ITR 996 (SC) delivered on 31st August,1979 (4) The date of completion of the re-assessment on 15th march, 1978 (5) The date of the order of the CIT (A) passed on 28th Sept., 1981 Shri Dasgupta u....
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....ated the gain of the assessee as short-term capital gain on 15th March, 1973. The assessee did not accept the finding of the ITO on this issue. This assessee came in appeal. The appeal of the assessee was heard on 14th Sept., 1981 and the order was passed by the CIT (A) on 28th Sept., 1981. The decision of the Supreme Court in (1979) 119 ITR 996 (SC) was delivered on 31st August, 1979 and by this judgment the Supreme Court did not approve the law indicated in (1976) 102 ITR 287 (SC) that action under s. 34 (1) (b) can be taken for the mistake committed by the ITO due to oversight, inadvertence or mistake. When the Appellate CIT took the appeal for the decision, the law on this particular issue indicated in Kalyanji & Mavji Co. vs. CIT (1976....
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....ia & Eastern News Paper Society vs. CIT. Shri Dasgupta has referred to certain dates and has indicated that when the ITO assumed jurisdiction, he assumed legally in view of the decision in (1976) 102 ITR 287 (SC). The fact as urged by Shri Dasgupta could not be considered in piecemeal. The assessment proceeding is in continuation till it is finally settled. The assessee did not accept the re-assessment order passed by the ITO on 15th march, 1978 and the assessee was in appeal before the CIT (A). The appeal of the assessee was taken up for hearing on 14th Sept., 1981. the decision of the supreme Court in (1976) 102 ITR 287 (SC) which was delivered on 10th Dec., 1975, was re-considered in (1979) 119 ITR 996 (SC) which was delivered on 31st Au....