TMI Blog1964 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessees' trading stock. He also held that the holding of shares in 9 companies which according to him were associated concerns of Messrs. Surajmull Nagarmull were not part of the assessees' trading stock. About the remaining companies the Income-tax Officer agreed to value the opening and closing stock at the cost price or market price whichever was lower and made the assessment accordingly. The Appellate Assistant Commissioner did not accept the segregation by the Income-tax Officer of shares in the companies which were associated concerns of Messrs. Surajmull Nagarmull. He thought that all the shares held by the assessee whether of associated concerns or not became part of the trading stock of the assessee on August 1, 1952. The Appellate Assistant Commissioner accordingly set aside the assessment of the Income-tax Officer and directed him to make a fresh assessment on the basis that the assessee became a dealer in shares on August 1, 1952. He further directed that the cost or the market price whichever was lower should be the basis of valuation on and from August 1, 1952. The department did not ' challenge the finding of the Appellate Assistant Commissioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of shares laid down by the Appellate Assistant Commissioner in his earlier order was not correct, when that order of the Appellate Assistant Commissioner was not questioned before the Appellate Assistant Commissioner even in the second appeal. Mr. Sukumar Mitra, learned counsel for the assessee, has argued before us that the Tribunal has jurisdiction to allow any new question to be raised for the first time in the appeal before it, and should allow such a question to be raised if it is a question of law which can be decided on the facts already on record. Learned counsel has relied on a number of authorities in support of this proposition. Mr. Mitra urged further that, as a matter of public policy, the Tribunal should have taken into account the decision of the Bombay High Court in Commissioner of Income-tax v. Bai Shirinbai K. Kooka [1956] 30 ITR 753 . The principle of valuation of shares laid down in this decision was contrary to the view taken by the Appellate Assistant Commissioner. The decision incidentally has now been approved by the Supreme Court in CIT v. Bai Shirinbai K. Kooka [1962] 46 ITR 86 (SC). On behalf of the respondent the propositions of Mr. Mitra were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 958. We have looked into the grounds of appeal which by the consent of parties has been tendered as an exhibit in this reference and marked A . We do not find that any challenge to the principle of valuation suggested by the Appellate Assistant Commissioner has been specifically made in these grounds of appeal in the light of the aforesaid decision of the Bombay High Court. When the matter, however, was heard by the Appellate Tribunal, the point was sought to be raised and the Appellate Tribunal refused to entertain the contention. On these facts, we are unable to come to the conclusion that the Appellate Tribunal has arbitrarily exercised its discretion against the assessee. The first order of the Appellate Assistant Commissioner laying down the method or principle of valuation made on February 27, 1958, had become final and binding on the parties since no appeal was preferred against it. That order, in our opinion, was not open to attack in the assessees' appeal against the Appellate Assistant Commissioner's order of November 29, 1958. In other words the assessee not having pursued his statutory remedies in respect of the first order of the Appellate Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer had acted arbitrarily and in violation of the Tribunal's direction. He proceeded, however, to consider the correctness of the Tribunal's order and held that there was no manifest injustice done to the assessee. The Supreme Court found that the Income-tax Officer by his letter dated March 24, 1955, virtually refused to carry out the directions which the superior Tribunal had given him in the exercise of its appellate powers in respect of an order of assessment made by him and such refusal was in fact a denial of justice. The order of the Appellate Tribunal having become final, it was not open to the Judicial Commissioner to hold that the order was wrong. As the Income-tax Officer had failed to carry out a legal duty imposed on him such a failure was destructive of a basic principle of justice and a writ of mandamus should issue ex debito justitiae to compel him to carry out the directions given by the Appellate Tribunal. The reason why I have cited above the two cases is that in the present reference also the order of the Appellate Assistant Commissioner passed on February 27, 1958, was not challenged in accordance with law having regard to the provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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