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Section 45 of the Income tax Act, 1961 — Capital gains — Even if the Tribunal found the facts of the present case akin to those arising in the decision of Chaturbhuj Dwarkadas Kapadia (supra), in facts of the case, the consequential directions for taxing the income in the assessment year 2003-04 ought to have been granted.[2019] 52 ITCD 137 (BOM)
Facts: This Appeal is filed by the Revenue to challenge the judgment of the Income Tax Appellate Tribunal. The Appeal arises out of the return of income filed by the assessee for the assessment year 2007-08. The question involved is of taxing the capital gain arising at the hands of the assessee for transfer of a long term capital asset. By the impugned judgment, the Tribunal held that the same could be taxed only in the assessment year 2003-04 and not in the present assessment year. The Tribunal relied on a decision of this Court in the case of Chaturbhu Dwarkadas Kapadia
V/s. Commissioner of Income Tax [2003] 260 ITR 491 (Bom.).
Held, that we are of the opinion that even if the Tribunal found the facts of the present case akin to those arising in the decision of Chaturbhuj Dwarkadas Kapadia (supra), in facts of the case, the consequential directions for taxing the income in the assessment year 2003-04 ought to have been granted. In absence of any such specific direction, there is a risk of the assessee arguing that the assessing officer cannot reopen the assessment, since there is no directions issued by the Tribunal for taxing the income for the said year. To put the entire issue beyond the possibility of doubt or debate, we issue such directions. We are informed that subsequent to the Tribunal passing the impugned judgment, the Assessing Officer has already passed a fresh order of the assessment for the assessment year 2003-04 taxing the capital gain in the said year. It is therefore, clarified that the above direction would operate from the date of the judgment of the Tribunal, which in any case the Tribunal ought to have issued. In the result, the Appeal is disposed of in above terms.