TMI Blog1973 (8) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, Bangalore Bench, has referred the following question of law arising out of its order in I.T.A. No. 14800(?) of 1964-65, for the opinion of this court : " Whether, on the facts and in the circumstances of the case, the Tribunal is justified in not deducting Rs. 41,517 while computing the capital gains ? The computation of the capital gains was for the assessment year 1962-63 (the accounting year ending 31st March, 1962). The assessee is the widow of J.B. Pinto who was a partner in five firms. The assessee filed a return, and thereafter a revised return, showing an income of Rs. 18,150 and a loss of Rs. 94,666 under capital gains. The revised return came to be filed consequent on it being pointed out by the Income-tax Officer tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings, the assessee in her letter dated 28th January, 1964, gave a break-up of this consideration amount and one of the items was a sum of Rs. 41,517 which was stated to be " lawyer's fees and travelling expenses and damages for mental worry and suffering on account of wrongful withholding and detention of my property ". The Income-tax Officer did not accept the explanation in this behalf and also in regard to certain other items. He noticed that the release deed itself did not specify any amount being paid towards such expenses or damages and no such explanation had been given in the estate duty proceedings and at earlier stages in the proceedings and the assessee was taking inconsistent stands. It was urged before him that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong in proceeding on the basis that the amount of expenses was not known and misconstrued the claim of the assessee. It is argued that there was no dispute about the quantum of expenses and the Appellate Assistant Commissioner had accepted the same, though he rejected the claim on the basis that as it had been reimbursed it could not be deducted and the case of the assessee all along was that the amount was not part of the consideration for the release and there was no opportunity to the assessee to adduce evidence in this behalf. It is argued that the assessee was not claiming a deduction under section 48(i) but the claim was that the amount should be excluded from the consideration for the release. We are unable to accept the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 48(i) of the Income-tax Act in computing the capital gains is untenable. The question framed is also on the basis that a deduction of expenses was being claimed and the plea taken in the course of the proceedings before the authorities below also is to the same effect. On the ground that there was no evidence to support the contention that Rs. 41,517 represented expenses, the assessee's claim for deduction was rejected, which was justified. Even assuming that what the assessee represented was correct, the deduction was not permissible in terms of section 48(i). According to the assessee, Rs. 41,517 represented " Lawyer's fees and travelling expenses and damages for mental worry and suffering on account of wrongful withholding and detent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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