Patna H.C : This appeal on behalf of the CIT, Patna, is against the order of the Tribunal, dt. 12th Feb., 1999, whereby and whereunder the Departmental appeals were dismissed.

JUDGMENT

BY THE COURT :

Heard learned counsel appearing for the appellants and the respondent. This appeal on behalf of the CIT, Patna, is against the order of the Tribunal, dt. 12th Feb., 1999, whereby and whereunder the Departmental appeals were dismissed. Learned counsel for the appellants only contended that the learned Tribunal has erroed in law while rejecting the appeal. Because, in view of the provisions of s. 176(3A) of the IT Act, where any business is discontinued in any year, any sum received after the discontinuance shall be deemed to be the income of the recipient and charged to tax according in the year of receipt. Since, the assessee had received the refund after acquisition of the erstwhile company. it was the liability of the recipient-assessee to pay the taxes. Learned counsel for the respondent pointed out that no plea was ever raised on behalf of the Department to take the aid of s. 176(3A) of the IT Act at any stage, either before the AO or the Tribunal. Because, in order to apply theaforesaid provision, it will be necessary for the authorities to find out that in case such sum would have been included in the total income of the person, who carried on the business, had such sum been received before the discontinuation of the company, he would have been liable for payment of tax on such income. In this case, no such argument was ever advanced before the appellant authority nor any other ground was made out in this appeal. Therefore, it will not be open to the appellants to raise this question in this appeal. In our view, the submission made on behalf of the respondent appears justified. We therefore, for the reasons stated above, feel not inclined to interfere with the impugned order. The appeal is accordingly dismissed.

[Citation : 248 ITR 447]