9911796707
TMI Blog2001 (12) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of maintainability of the revision petition first. For the assessment year 1996-97, the return of income was filed on October 30, 1996, disclosing capital gains at Rs.4,78,19,737 by taking the book value as the cost of acquisition of the asset at Rs.31,50,000. A revised computation of income was filed and on January 12, 1999, assessment order was passed accepting the revised computation of income. Being aggrieved by the aforesaid order, the assessee filed an appeal before the Commissioner of Income-tax (Appeals), inter alia, raising a plea that the assessee is entitled to substitute the book value of asset by the indexed value of the asset as per section 48 of the Income-tax Act and the Assessing Officer was wrong in rejecting the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the revision petition both on the ground of maintainability as well as on merits. There can be no dispute that the assessee is entitled to substitute the cost of acquisition of an asset from book value to indexed cost of acquisition. In the instant case, the issue as to whether the Commissioner of Income-tax was justified in rejecting the revision petition on the merits would arise only if the assessee is able to overcome the hurdle of maintainability of the revision petition. Therefore, the crux of the problem in the instant case is having raised the issue of substituting the cost of acquisition of the asset from the book value to the indexed cost of acquisition before the Commissioner of Income-tax (Appeals), whether the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s maintainable. Mr. Jetley, learned counsel for the Revenue, on the other hand, contended that the issue is concluded by the decision of the apex court in the case of Hindustan Aeronautics Ltd. v. CIT [2000] 243 ITR 808 in favour of the Revenue. Mr. Jetley relied upon the judgment of the Madras High Court in the case of Kadri Mills (Coimbatore) Ltd. v. CIT [2000] 243 ITR 861 and submitted that the assessee has an option to choose the remedy of pursuing an appeal under section 246 or perusing the remedy of revision petition under section 264 in respect of the issues arising out of the assessment order or otherwise. It was submitted that once the remedy of appeal was chosen, it was open for the assessee to seek remedy on all issues in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the assessee failed to pay the admitted tax cannot render the order sought to be revised, covered under section 264(4)(c) of the Income-tax Act. In other words, it was submitted that an order can be said to be the "subject-matter of an appeal" within the meaning of section 264(4)(c) only if the appeal was considered and disposed of on the merits. Mr. Pandit brought to our notice that the decision of the Kerala High Court was, inter alia, based upon the decision of the apex court in the case of Board of Revenue v. Raj Brothers Agencies [1973] 31 STC 434, where the identical expression "the order made subject of an appeal" was construed by the apex court to mean "subject of an effective appeal". Mr. Pandit contended that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while dealing with section 30(2) of the Indian Income-tax Act, 1922 (similar to section 249(2) of the Income-tax Act, 1961), held that the dismissal of an appeal as time barred is an order passed in the appeal and hence, an appeal lies from that order to the Appellate Tribunal. It was clearly held by the Supreme Court in that case, that it makes no difference whether the order of dismissal is made before or after the appeal is admitted. Applying the aforesaid ratio to the facts of the present case, even if the appeal was dismissed before it was admitted, the remedy available to the assessee was to file a further appeal to the Tribunal and not to file a revision petition under section 264 of the Income-tax Act. Once the remedy of appeal wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various decisions cited on behalf of the assessee. Although the decision of the Supreme Court in the case of Board of Revenue v. Raj Brothers Agencies [1973] 31 STC 434, on an analogy supports the contention of the assessee, the same is distinguishable, firstly, on account of it being a matter pertaining to the Madras General Sales Tax and, secondly, in that case, there was a decision of the Madras High Court which was followed for several years and the Supreme Court did not want to disturb the settled position in law. In the instant case, the petitioner did argue before the Commissioner of Income-tax (Appeals), regarding the applicability of section 249(4) and tried to make out a case on the merits that he was entitled under section 48 r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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