TMI Blog1980 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of shares in certain companies. She sold these shares and realised amounts far in excess of what she had paid for them. To begin with, she took the stand that the excess amount was not liable to tax. But this contention was soon given up. Then she took the position, and this was her case throughout, that this amount would be liable to tax as capital gains as capital gains tax levy had been introduced from 1st April, 1956, in the income-tax law. A provisional assessment under s. 23B of the Indian I.T. Act, 1922, was made and she paid the amount of capital gains tax. In due course the ITO made the regular assessment and taxed this amount as business profits. From this order, she appealed to the AAC. Her appeal was dismissed. Then she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that the application, in substance, sought a review of the order of the Tribunal and this the Tribunal could not do as it had no power to review its own order. Immediately, the appellant applied to the ITO on May 31, 1964, for the refund of the amount she had paid as capital gains tax. The ITO refused to refund. The appellant then brought four writ petitions on August 10, 1964, asking for an order of mandamus directing the ITO to rectify the assessments and to refund to her the amount of capital gains tax which had been collected from her. The learned judge dismissed the writ petitions. From this decision the appellant appeals to this court. It is true that in the beginning the appellant contended that she was not liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she understood that the amount in question was subject to capital gains and that this amount she was prepared to pay and that she was not liable to be penalised for any default. She had herself described the surplus as capital receipts. When the ITO made the application on May 9, 1963, she seems to have been advised that she could ask for refund because there was no direction by the Tribunal in its order to tax the amount as capital gains. We think the application by the ITO under s. 35 was entirely misguided. The ITO had himself taken the right course when he revised the assessment on May 2, 1963, treating the amount in question as subject to capital gains instead of as business income. That he was right in doing so we do not doubt. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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