TMI Blog1967 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ce paid by the respondents was recouped out of the depreciation allowed in proceedings for assessment of income-tax and the written down value of the omnibus in the record of the income-tax office was nil. In proceedings for assessment to income-tax for the assessment year 1959-60, the Income-tax Officer brought to tax Rs. 14,500 as deemed profit under section 10(2)(vii) of the Income-tax Act, 1922, and the balance of Rs. 8,500 as income arising from carrying on trade. In appeal to the Appellate Assistant Commissioner, the order of the Income-tax Officer was substantially confirmed. The Appellate Assistant Commissioner, however, held that the excess over the original price of the omnibus represented not the trading profits but capital gains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consideration for the sale of the omnibus was only Rs. 6,000 and the respondents had received consideration for parting with the right to ply the omnibus under the permit granted to them. The Tribunal also held that the right to ply the omnibus was not property. The Tribunal still held that the amount of Rs. 8,300 which represented the difference between the consideration for sale and the right to ply the omnibus and the original value of the omnibus was capital gain chargeable to tax under section 12B. The reasons recorded by the Tribunal in support of this view are however not clear. In the application submitted by the Commissioner praying that questions arising out of the order of the Tribunal be referred under section 66(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2B. We do not propose in this case to express any opinion on the question whether the right to ply an omnibus under a permit is a capital asset within the meaning of section 2(4A) of the Act. The Tribunal recorded a finding in their order that the right to ply the omnibus was not property ; if it is not property it cannot be a capital asset, for a capital asset under section 2(4A) of the Income-tax Act means " property of any kind held by the assessee, whether or not connected with his profession or vocation ........" The Commissioner of Income-tax apparently felt aggrieved by the decision of the Tribunal and applied to the Tribunal to draw up a statement of case, and submitted that the question in that behalf, which we have set out e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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