1. The following question of law is involved in this reference under Section 66(1) of the Indian Income-tax Act, 1922 :
'Whether, on the facts and in the circumstances of the case, the Tribunal Was right in holding that in the appeals preferred by the assessee against the fresh, assessments made according to the directions of the Appellate Assistant Commissioner, the assessee could be allowed to raise a new. ground which had not been raised in the appeals filed against the original assessments which had been set aside by the Appellate Assistant Commissioner in respect of the assessment years 1948-49, 1949-50 and 1950-51 ?'
2. The assessee is a jute milling company. Its accounting year ends on 31st March each year. The original assessments were made on February 11, 1953, January 3, 1964, and December 30, 1964, respectively, for the aforesaid three years, but those orders were set aside on appeal with a direction on the Income-tax Officer to make fresh assessments and accordingly he has made fresh assessments. On appeals before the Appellate Assistant Commissioner it was contended by the assessee for the first time, that the sale proceeds of loom hours were not its revenue receipts and, therefore, could not be brought to tax. These proceeds were included in the assessee's total income in the original as well as in the fresh assessments because the assessee did not make any such claim before the Income-tax Officer.
3. Before the Appellate Assistant Commissioner reliance was placed by the assessee on the decision of the Supreme Court in the case of Commissioner of Income-tax v. Maheshwari Devi Jute Mills Ltd. reported in : 57ITR36(SC) in support of the above claim. It was contended by the department that the assessee should not be allowed to take this new plea, but it was rejected by the Appellate Assistant Commissioner who, by following the above decision of the Supreme Court, held that the sale proceeds of loom hours were not revenue but capital receipts and were assessable as capital gains.
4. The department then filed appeals before the Tribunal. It was urged on its behalf that the Appellate Assistant Commissioner was not justified in admitting the above new plea. It was also argued that, as the assessee has shown the said sale proceeds as its income in the returns, the Appellate Assistant Commissioner has treated the same as the capital gains. It was also contended that the earlier assessment orders were final so far as the sale proceeds of loom hours were concerned and, therefore, the Appellate Assistant Commissioner should not have followed the said decision of the Supreme Court. The Tribunal has, however, rejected these contentions and has dismissed these appeals.
5. Mr. Ajit Sen Gupta, the learned counsel for the revenue, has repeated the above contentions before us, but we are not impressed by them. The fresh assessment orders have wiped away the previous assessment orders. The tax has to be assessed in accordance with the provisions of the Act. Capital gains can only be assessed under Section 12B of the Act. It is the duty of the revenue authorities to comply with the provisions of the Act and, hence, the appellate authorities were justified in allowing the assessee to take the said new plea, for those sale proceeds were not revenue but capital receipts.
6. In this view of the matter, we return our answer in the affirmative and against the revenue. As no one has appeared for the assessee we do not propose to make any order as to costs.
7. I agree.