TMI Blog2017 (8) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant : Ananya Kapoor and Sanat Kapoor, Advocates For the Respondent : Bedobani Chaudhuri, Senior Departmental Representative ORDER B. P. Jain (Accountant Member) 1. This appeal of the assessee arises from the order of the learned Commissioner of Income-tax (Appeals) XIX, New Delhi, vide order dated June 21, 2016 for the assessment year 2010- 11. 2. The assessee has raised as many as eleven grounds of appeal. As a matter of fact the learned counsel for the assessee, Ms. Ananya Kapoor, advocate pressed only ground Nos. 3, 4 and 5 which pertained to one issue only and the said grounds are reproduced hereinbelow. 3. That the Commissioner of Income-tax (Appeals) has erred in law and on facts in holding that no cognizance can be taken of the claim made by the assessee that sale of property be treated as capital gain and indexation benefit should be allowed to the assessee. The action of the Commissioner of Income-tax (Appeals) in rejecting the claim is illegal and bad in law. 4. That the Commissioner of Income-tax (Appeals) has erred in law and on facts in holding that the assessee did not require any capital asset and hence did not acquire any rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had not claimed the said deduction or business loss in the return of income filed on October 31, 2001, declaring a taxable income of ₹ 1,72,910. Subsequently, notice for scrutiny assessment under section 143(2)(ii) was issued. During the course of the assessment proceedings, the respondent- assessee had filed a revised computation of income vide letter dated January 12, 2004, claiming that dividend of ₹ 80,48,977 from the units of mutual fund was exempt under section 10(33) of the Act and loss on sale of units amounting to ₹ 85,18,583 was a business loss and not speculative loss. 3. The claims were rejected by the Assessing Officer on three grounds that the respondent-assessee had not filed a revised return within the time allowed under section 139(5) of the Act dividend was received from Sun F and C Mutual Fund, which was not included in the specified list of mutual funds approved by the SEBI and as the assessee was dealing with shares, income/loss from shares/units was speculative loss and not business loss. 4. The Commissioner of Income-tax (Appeals) dismissed the appeal of the assessee, but on remand the matter was restored to the first app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing questions of law arising in assessment proceedings although not raised earlier.' 7. Reference was also made to an earlier decision of the Supreme Court in Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688 (SC), wherein it has been held as under (page 386 of 292 ITR) : 'An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessed in seeking modification of the order of assessment passed by the Income-tax Officer. This court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x (Appeals) and the Tribunal has the discretion to allow a new ground to be raised. 12. In view of the aforesaid discussion, we are not inclined to interfere with order passed by the Tribunal. The appeal is dismissed. 5.1 In view of the facts and decision of the hon'ble jurisdictional High Court in the case of Sam Global Securities Ltd. (supra), the claim made during the assessment proceedings is held to be valid and I find no defect in the same. 6. As regards the claim made for selling of the right, the question arises whether the right to receive in the flat is a property which comes in the ambit of capital asset or not has been scrutinised by the hon'ble Bombay High Court in the case of CIT v. Tata Services Ltd. reported in [1980] 122 ITR 594 (Bom). The copy of the judgment of the hon'ble Bombay High Court in the said case is placed at paper book pages 8 to 13 and the relevant paragraph read by the learned counsel is reproduced hereinbelow (page 599) : What is capital asset is defined in section 2(14) of the Income-tax Act, 1961. Under that provision, a capital asset means property of any kind held by assessee, whether or not connected with his busi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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