COMMISSIONER OF INCOME TAX Vs. CHANDRA BALAKRISHNAN

JUDGEMENT

(1.) BOTH the appeal and the reference are at the instance of the Revenue in respect of two different assessees. The Tribunal in the order impugned in ITA No. 97 of 1999 has followed its earlier decision which is the subject -matter of IT Ref. No. 9/2001. In IT Ref. No. 9/2001, the Tribunal has referred the Mowing question of law under Section 256(1) of the IT Act, 1961 (for short the Act).

(2.) IN this case the Tribunal had decided the appeal filed by the respondent -assessee in IT Ref. No. 9 of 2001 evidenced by Annexure B order. The Tribunal did not decide the rate of tax applicable to capital gains in the block assessment made under Section 158BC of the Act in the appellate order. The assessee, therefore, filed a miscellaneous petition M.P. No. 119/Coch/1997 in the appeal IT(S&S;)A. No. 6/Coch/1996. The Tribunal, by its order dt. 8th Dec., 1997, allowed the miscellaneous petition and ordered that the correct rate of tax applicable to long -term capital gains is at the rate of 20 per cent only under Section 112(1)(a)(ii) of the Act and not at the rate of 60 per cent as provided under Section 113 of the Act. It would appear from para. 3 of the said order that the Departmental Representative agreed to the above view being taken.

(3.) SRI . P.K.R. Menon, learned senior counsel (Government of India) Taxes appearing for the Revenue in both the cases submitted that the Tribunal did not consider the question regarding the rate of tax applicable on long -term capital gains in a block assessment under Section 158BC of the Act. Counsel also pointed out that the Tribunal had clearly stated that the Revenue had contended that the rate of tax on long -term capital gains in a block assessment under Section 158BC is 60 per cent under Section 113 of the Act. The senior counsel accordingly submitted that the Tribunal must be directed to consider the question afresh.