TMI Blog2004 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake touching that issue, which was not before the AAC nor any direction has been given by the AAC to this effect. - We answer question No. 1 in the affirmative, i.e., in favour of the assessee - - - - - Dated:- 7-5-2004 - Judge(s) : Y. R. MEENA., SHASHI KANT SHARMA. JUDGMENT On a Miscellaneous Application No. 44 of 1999 in D. B. I. T. R. No. 33 of 1983, this court has recalled its main order dated January 20, 1995 (CIT v. Mahindra and Co. [1995] 215 ITR 922), which includes the order dated July 11, 1995, whereby some correction has been made in the order dated January 20,1995. After recalling the order dated January 20, 1995, we hear this reference afresh. In the reference under section 256(1), the Tribunal has referred the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . were taken over. The net worth of the assets amounted to Rs. 1,39,330 against which the assessee- company had issued the shares to the tune of Rs. 33,333 to the amalgamating company. The balance of Rs. 1,05,997 was transferred by the assessee-company to the credit of its capital reserve account. In the original assessment, the assessee claimed that by taking over the assets of the company, allotment of shares against that is not a transfer for the purpose of section 45 of the Income-tax Act. Especially he referred clause (vi) of section 47. That was accepted by the Assessing Officer in the original assessment. But there was a dispute as to whether on transfer of some other asset, the provision of section 52(2) can be invoked. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income-tax (Appeals) has been affirmed by the Tribunal holding that there was no direction by the Appellate Assistant Commissioner to the Assessing Officer to reopen the issue as to whether on amalgamation the assets taken over by the assessee-company should be treated as transfer or not for the purpose of section 45 of the Act. Heard learned counsel for the parties. Mr. Kasliwal, learned counsel for the assessee, submits that a similar issue has been considered by this court in the case of CIT v. Lal Chand Agarwal [2003] 259 ITR 497, wherein this court has taken the view that the power of the Assessing Officer is limited to giving effect to the order of the Commissioner of Income-tax (Appeals) or the Appellate Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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