The Commissioner ignored that decision in dismissing the revision.
He redetermined the assessable income under the heading capital gains but did number issue a numberice of demand as prescribed in s. 29 of the Income tax Act.
It was a companydition of the agreement that it should have operation only after the Purchaser Firm or its numberinees were appointed as the Managing Agents of the Company.
It received the price for the said shares at the rate of Rs.
As numberappeal lay to the Appellate Assistant Commissioner against the calculations made by the Income tax Officer, the Commissioner had certainly power to revise the said order.
Because of certain differences between the partners, they decided among themselves to sell their shares and to surrender their Managing Agency.
In terms of the agreement, the Purchaser Firm paid for the entire shareholding of the partners of the Agency Firm at Rs.
Appeal by special leave from the judgment and decree dated July 28, 1959 of the Allahabad High Court in Civil Miscellaneous Writ No.
Thereafter, on July 28, 1959, the assessee filed Writ Application No.
It was assessed to income tax for the year 1948 49 and the Income tax Officer by his order dated June 5, 1952.
It may be numbericed that long before the revision petition was dismissed, the appeal filed by the assessee against the order of the Income tax Officer to the Appellate Assistant Commissioner was dismissed on March 8, 1957.
Its karta was one Dwarkanath and the present karta is his son Ramji Prasad.
But the Income tax Officer refused to issue any such numberice.
Meanwhile on September 27, 1956, the appellant filed an application before the Commissioner of Income tax under s. 33A 2 of the Income tax Act for revising the order of the Income tax Officer dated September 28, 1955.
13, 14, 15, 16, 20, 21, 25, 27, 29 partly, 31, 32, 34, 37, 38.41, 42, 44 are based on 46 and 50 partly and paras 17, 18, 19, 22, 23, 24, 26, 28, 29, partly 30, 33, 35, 36, 39, 40, 43, 48 partly are based on perusal of the record, those of paras 47, 48 partly 49 and 50 partly are based on legal advice, which I believe to be true, that numberpart of this affidavit is false and numberhing material has been companycealed in it.
The High Court dismissed the said application in limine mainly on the following three grounds 1 the affidavit filed in support of the writ petition was highly unsatisfactory and on the basis of such an affidavit it was number possible to entertain the petition 2 the facts given in the affidavit were incomplete and companyfused and 3 even on merits, there was numberforce in the revision petition Hence the appeal.
Under that agreement it was provided that 65012 shares held by the 11 partners of the Agency Firm, directly or through their numberinees, should be sold to the Purchaser Firm at Rs.
In paragraphs which are based on a perusal of the record the deponent referred to the relevant orders of the Income tax authorities and also to the relevant agreements and the companyies of the said orders and agreement were also annexed to the affidavit as schedules.
The assessee preferred an appeal against that order to the Appellate Assistant Commissioner under s. 30 of the Income tax Act and that was dismissed on March 8, 1957, on the ground that it was number maintainable.
It is number clear from the schedules whether certified companyies or the original of the orders received by the appellant were filed.
Out of the total shareholding the appellant held 11,230 shares.
On further appeal, the Income tax Appellate Tribunal, Delhi Bench, held that the said receipt bad to be taxed as capital gains under s. 12B. of the Income tax Act, 1922, and directed the Income tax Officer to modify the assessment in accordance with its order.
2071 of 1959 in the High Court of Judicature at Allahabad, inter alia, for a writ of certiorari or any other direction or order of like nature to quash the order of the Income.tax Commissioner, Lucknow, dated March 28, 1959, and the Order of the Income tax Officer dated September 28, 1955, and for a writ of mandamus or any other order or direction of the like nature directing the Commissioner to pass a fresh order in accordance with the decision of the Bombay High Court and direct the Income tax Officer to pass a fresh order in accordance with law and to issue a numberice of demand as required by s. 29 of the Income tax Act.
The result was, numberappeal lay against the companyputation made by the Income tax Officer to the Appellate Assistant Commissioner.
65 per share and that the Agency Firm should before November 15, 1946, resign its office of Managing Agency of the Company.
But it is said that the affidavit filed in support of the application did number speak to matters which were within the deponents own knowledge.
65 per share.
On October 30, 1946, the Company held its General Body Meeting and accepted the resignation of the Agency Firm and by another resolution appointed the Purchaser Firm as the Managing Agents in its stead.
2,98,909 realized by the assessee under the head income from business, i.e., the difference in the amount for which it purchased the shares and that for which it sold them.
The Income tax Officer rejected the said companytentions of the assessee.
On September 7, 1946, the said 11 partakers entered into an agreement with the firm of Messrs. Chhuttu Ram Sons of Bihar, hereinafter called the Purchaser Firm.
assessed the excess amount of Rs.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The said Agency Firm was formed under an instrument of partnership dated February 26, 1938, with 11 partners 3 of them are companypendiously described as the Bombay Group and the remaining 8 of them as the Kanpur Group.
But the said Officer declined to issue the numberice of demand.
The said family was one of the II partners of the Agency Firm belonging to the Kanpur Group.
65 per share.
V. Viswanatha Sastri, Rameshwar Nath, S. N. Andley and L. Vohra, for the appellant.
The assessee raised various companytentions before the Income tax Officer, inter alia, that the said income was number liable to be taxed under s. 12B of the Income tax Act under the head capital gains and that in any case in order to determine the amount of capital gains the market value of the shares only should be taken into companysideration, as the price of Rs.
Gopal Singh and R. N. Sachthey, for the respondents.
65 per share included also the companysideration for the relinquishment of the managing agency rights.
The assessee made an application under s. 35 of the Income tax Act to the Tribunal for further directions and the Tribunal, by its order dated March 26, 1954, amended its previous order dated August 3, 1953, by substituting the word processed in place of the word assessed in its previous order.
In September 1946 shareholding of the partners of the Agency Firm in the Company was as follows Kanpur Group 32,500 shares.
The appellant is a Hindu undivided family.
2071 of 1959.
Indeed, on March 8, 1957, the Appellate Assistant Commissioner rejected the appeal filed by the appellant as being number maintainable.
11, 12.
In the year 1938 the Company appointed Messrs. Pira Mal Girdhar Lal Co., hereinafter called the Agency Firm, as its Managing Agents.
62 of 1964.
With certain variations in the companystitution of the Agency Firm, the said firm functioned as the Managing Agents of the Company till September 1946.
On February 28, 1938, a formal agreement was entered into between the Company and the Agency Firm.
Gujarat Cotton Mills Co. Ltd., hereinafter called the Company, is a limited companypany having its registered office at Ahmedabad.
On November 18, 1957, the attention of the Commissioner was also drawn to the fact that the Bombay High Court in the case of a reference to that Court at the instance of the Bombay Group held that the market value of the shares should be taken into companysideration to ascertain the excess realized on the sale of the shares of the assessee for the purpose of capital gains tax.
On appeal, the Appellate Assistant Commissioner of Income tax companyfirmed the same.
Bombay Group 26,362 shares.
After making an infructuous attempt to get suitable directions from the Appellate Tribunal, on March 5, 1956, the assessee filed an application before the Income tax Officer to issue a numberice of demand under s. 29 of the Income tax Act so that it might prefer an appeal against the same to the appropriate authority.
On March 28, 1959, the Commissioner dismissed the revision petition on two grounds, namely, 1 that it was number clear whether the revision petition under s. 33A of the Income tax Act was maintainable, and ii on merits.
