TMI Blog1973 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... the true income is varied after the order of the Tribunal by an appellate authority. In this case, the appeal to the High Court did not succeed and the quantum fixed by the subordinate judge has been upheld and no such difficulty as envisaged by the assessee actually arose - We see no error in the order of the Tribunal - - - - - Dated:- 20-2-1973 - Judge(s) : K. SADASIVAN., P. GOVINDAN NAIR. JUDGMENT The judgment of the court was delivered by GOVINDAN NAIR J.-The Income-tax Appellate Tribunal, Cochin Bench, has referred the following two questions to this court : "Whether, on the facts and in the circumstances of the case, the assessment of the sum of Rs. 38,525 as capital gains chargeable to tax under section 45 of the Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 43,513.37 as detailed below. I, therefore, request that the assessment for 1963-64 may kindly be reopened and the capital gains assessed as required by section 45 of the Income-tax Act." Pursuant to this communication, the earlier assessment was reopened and a fresh assessment order dated November 29, 1967, annexure "A", was passed by the Income-tax Officer. He calculated the capital gains as follows : "Total acquisition price received Rs. 1,30,216 Deduct book value of the property Rs. 39,349 --------------------- Total Rs. 90,867" --------------------- The sum of Rs. 90,867 mentioned in question No. 2 was arrived at as stated above. There is no dispute regarding this amount. One of the contentions by the assessee before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or in given cases by the Supreme Court and, therefore, it was not possible for the taxing authorities to impose any tax on the basis of capital gains arising out of a compulsory acquisition of the land unless the quantum of the compensation had been settled as indicated above. Counsel also contended that the principle of equitable estoppel has no application. He further stressed that in case the High Court reduced the quantum of the compensation in appeal, the assessee will be left without a remedy and the effect of the order of assessment would be to impose a tax on a non-existing income and, therefore, the order of the Tribunal was erroneous. On behalf of the revenue, counsel did not seek to support the order of the Tribunal on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese courses need necessarily be adopted by the taxing authorities. They will be justified in taking the quantum as determined by the subordinate judge or for that matter by the Land Acquisition Officer and impose tax on that basis. Perhaps, the assessee would have been justified if he had contended before the taxing authorities that the order itself should provide for, making necessary alterations in the quantum of capital gains if the quantum determined by the subordinate judge or the Land Acquisition Officer which had been taken by the taxing authorities as the true quantum of income is varied in further appeal. Such a request would have been a legitimate request and if it had been made, we are inclined to think that the Tribunal would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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