Satish Chandra, C.J:— The two questions referred for our opinion in R.A No. 206 of 1974–75 raise the question whether for determining capital gains, an assessee is entitled to rely on the written down value of an asset and not the fair market value of the asset as on January 1, 1954, while determining the cost of its acquisition. This question has been specifically answered in CIT v. Upper Doab Sugar Mills, [1979] 116 ITR 240 (All) by holding that, firstly, s. 55(2) of the I.T Act does not apply or prevail over s. 50 and that in cases where assets have not been acquired in any of the modes mentioned in s. 48 of the Act, the option was not available and the written down value and not the fair market value of the asset has to be taken as the cost of acquisition. This decision is applicable on all fours. We, therefore, have no hesitation in answering both the questions in the affirmative, in favour of the department and against the assessee.
2. In R.A No. 207(Alld.) of 1974–75, the Tribunal has referred the following question of law:
“Whether, on the facts and in the circumstances of the case and on a perusal of the assessment order dated February 28, 1973, when in compliance with the directions given by the AAC the ITO made a fresh assessment by computing the capital gains and the profit under s. 41(2) of the Act, which computations are not in dispute, an appeal before the AAC against such assessment order is competent?”
3. It appears that the AAC made certain directions in accordance with which the ITO computed the capital gains under s. 41(2) of the Act. The assessee filed an appeal which was dismissed as incompetent. On further appeal, the Tribunal held that in the present case, the ITO did not go beyond the directions given by the A AC in his remand order. It was not a case where the ITO has done something in accordance with the directions but in doing so there is a difference of opinion. It held that the appeal was incompetent.
4. On the findings of the Tribunal, it is apparent that the assessee had a right of appeal only against the remand order passed by the AAC. The ITO who had only worked out the details in accordance with the directions of the AAC had not passed any order of his own, which could be appealed against. The learned counsel for the assessee submitted that the finding that the ITO did not go beyond or outside the instructions given in the remand order is incorrect. This finding is not the subject-matter of any question referred to us. On the other hand, the question referred to us specifically mentions that the computations made by the ITO were not in dispute.
5. If the assessee wanted to challenge the finding of the Tribunal that the ITO had not done anything beyond the directions given to him, it should have, on the failure of its application under s. 256(1), applied to this court under s. 256(2) for a question challenging that finding. But this was not done. The finding of the Tribunal is that the ITO has not gone beyond the remand order. No right of appeal exists in such a situation. This question is, therefore, answered in the negative, in favour of the department and against the assessee. The Commissioner will be entitled to costs, which we assess at Rs. 200.