TMI Blog2007 (5) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income in which it included a long term capital gain of Rs.6,63,746/- as a part of the book profits calculated under Section 115JA of the Income Tax Act, 1961 (the Act). The Assessee computed tax at 20% in respect of the long term capital gain and at 40% in respect of the remaining income. 3. In an intimation under Section 143(1)(a) of the Act, the Assessing Officer noted that the returned total income under Section 115JA of the Act was Rs. 39,50,258/- and he levied tax on this at 40%. According to learned counsel for the Assessee this was incorrect and tax should have been levied on the long term capital gain at 20% and at 40% on the rest of the income. 4. Feeling aggrieved, the Assessee preferred an appeal before the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not cause any prejudice to the Revenue and, in a given case, it is open to the Assessing Officer to issue notice under Section 143(2) of the Act and have the evidence in support of the admissibility of the claim made by the Assessee. 7. This is what this Court had to say in the matter (page 9) : "We are, therefore, of the considered opinion that under section 143(1)(a) of the Act it is not open to the Assessing officer to make any adjustment in the returned income by disallowing any claim for deduction, allowance or relief, unless he is satisfied on the basis of information available in the return, documents, and the accounts accompanying it that such a claim is inadmissible on the face of it and there is no possibility of any debate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee is liable to be taxed at a lower rate as provided under Section 112 of the Act or not is, admittedly, a debatable issue and that has also been held by the Commissioner of Income Tax (Appeals). Unfortunately, the Tribunal was called upon only to decide this limited controversy but it has gone on the merits of the dispute and has come to the conclusion that the lower rate of tax was applicable. We are of the view that this finding of the Tribunal is per incuriam and did not arise from the order passed by the Commissioner of Income Tax (Appeals). 9. After having heard learned counsel for the parties and having gone through the records, we do not see any reason to differ with the view taken by the Commissioner of Income Tax (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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