OMPRAKASH Vs. ADDITIONAL COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is an application by the assessee under Section 256(2) of the I.T. Act, 1961.

(2.) THE facts, briefly stated, are that in the assessment year 1951-52, the assessee was assessed as an individual. He was allowed a sum of Rs. 57,200 as business loss in respect of 369 shares on the ground that the market value of shares in the previous year had fallen. In the assessment year 1965-66, the status of the assessee was HUF. In the previous year, corresponding to this assessment year, the shares were sold for a sum of Rs. 2,04,225. THE purchase price of the shares was Rs. 2,07,755. THE ITO held that as the shares were sold really for the same price for which they were purchased, there was no loss and that the sum of Rs. 57,200, which was allowed as business loss in the assessment year 1951-52, should be taken to be "deemed profit" under Section 41(1) of the Act. THE assessee filed an appeal which was allowed by the AAC. But, in further appeal, the Tribunal upheld the view taken by the ITO. THE assessee applied to the Tribunal for stating a case and referring certain questions of law to the High Court. Question No. 1 formulated by the assessee in the reference application is as follows :

(3.) THE assessment order for the assessment year 1951-52 is a part of the statement of the case submitted by the Tribunal. That order shows that the status of the assessee then was 'individual'. THEre is no dispute that the status of the assessee in the assessment year 1965-66 is HUF. THE point that the assessee wanted to raise was that as there was no identity of status of the assessee in the assessment years 1951-52 and 1965-66, Section 41(1) was not attracted. THE Tribunal refused to refer this aspect of the matter on the reasoning that this question was not raised before it and, therefore, it could not be said to arise out of its order. In our opinion, the Tribunal is not correct on this point. THE question whether Section 41(1) was applicable on the facts and in the circumstances of the case was admittedly raised before the Tribunal. THE contention that the assessee wants to raise by pointing out that there was no identity of status of the assessee is only one aspect of the same question. Where the question itself is under issue, there is no further limitation imposed by Section 256(1) that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over-refinement to hold that each aspect of a question is itself a distinct question. (See CIT v. Indian Molasses Co. P. Ltd. [1970] 78 ITR 474 (SC)).