Avadh Behari ( 1 ) THE appellant Smt. Krishna Devi Dalmia is the assessee. She filed Income Tax returns for the assessment years 1957-58 to 1961-62. She had aquired large number of shares in certain Companies. She sold these and realized amounts far in excess of what she had paid for these. To begin with she took the stand that the excess amount was not liable to tax. But this contention was soon given up. Then she took the position, and this was her case throughout, that this amount would be liable to tax as capital gains as capital gains tax levy had been introduced from 1st April 1956 in the income tax law. A provisional assessment u/s 238 of the Indian Income Tax Act 1922 was made and she paid the amount of capital gains tax. ( 2 ) IN due course the Income Tax Officer. made the regular assessment and taxed this amount as business profits. From this order she appealed to the Appellate Assistant Commissioner. Her appeal was dismissed. Then she took the matter in appeal to the Income Tax Appellate Tribunal. There, as before, her contention was that this amount was merely a capital gain and that the Income Tax Officer. and the appellate assistant commissioner were wrong in taxing this amount as business profit as if she were a dealer in shares. The Tribunal by order dated March 14, 1963, accepted the appeal and held that the amounts in question were "merely capital accretions" and were not liable to be taxed as business profits. The Tribunal said this : "from a fair consideration of all the facts in the case, we held that the sale of shares was for necessities and not with any profit making motive. In those circumstances, we cannot hold that the assessee was a dealer in shares in this year. The assessment will be revised in accordance with the above. " ( 3 ) AFTER the making of the order by the Tribunal the Income Tax Officer. treated, as he was bound to treat, the amounts in question as capital gains instead of business income and accordingly revised the assessment on May 2, 1963. ( 4 ) ON May 9, 1963, the Income Tax Officer. " ( 3 ) AFTER the making of the order by the Tribunal the Income Tax Officer. treated, as he was bound to treat, the amounts in question as capital gains instead of business income and accordingly revised the assessment on May 2, 1963. ( 4 ) ON May 9, 1963, the Income Tax Officer. addressed a letter to the Tribunal u/s 35 of the Indian Income Tax Act 1922 (the Act) seeking a direction that he be ordered to tax the amount in question as capital gains in view of the Tribunal s positive finding that this was not a business income. It was submitted that a direction to this effect should be incorporated in the order of the Tribunal. This application was dismissed by the Tribunal on April 4, 1964 on the ground that the application in substance sought a review of the order of the Tribunal and this the Tribunal could not do as it had no power to review its own order. ( 5 ) IMMEDIATELY appellant to the Income Tax Officer. on 31. 5. 64 for refund of wrote amount she had paid as capital gains tax. The Income Tax Officer. refused to refund. The appellant then brought four writ petitions on August 10, 1964, asking for an order of mandamus directing the Income Tax Officer. to rectify the assessments and to refund to her the amount of capital gains tax which had been collected from her. The learned judge dismissed the writ petitions. From his decision the appellant appeals to this court. ( 6 ) IT is true that in the beginning the appellant contended that she was not liable to any tax on the excess amount realised by her from the sale of shares but this stand was soon abandoned. The consistent stand of the assessee throughout the case was that she was liable to be taxed on the capital gains and not on business profits. This position she adopted throughout before the income tax authorities. Her pleaders pleaded the caw on this footing, throughout. Only after the Income Tax Officer. made the application ; on May 9, 1963 that her hopes ware raised. She probably though! that as the Tribunal had given no direction in its order as to how the amount in question had be taxed she was entitled to refund. Her pleaders pleaded the caw on this footing, throughout. Only after the Income Tax Officer. made the application ; on May 9, 1963 that her hopes ware raised. She probably though! that as the Tribunal had given no direction in its order as to how the amount in question had be taxed she was entitled to refund. This is why she made the application for refund to the Income Tax Officer. ( 7 ) IN our opinion, there is no merit in these appeals. Clearly the Tribunal has held that the surplus amounts accruing to the appellant from the sale of shares were "capital accretions". If this is so, there can be no manner of doubt that in terms of this finding her assessment had to be revised by the Income Tax Officer. The only course was to tax the capital accretions as capital gains. The law regarding capital gains tax levy had come into force on 1st April 1956 and under this law if there was a capital accretion it had to be taxed as capital gains. This position the appellant herself accepted throughout the proceedings and never for a moment did she dispute it. She in fact paid capital gains tax on the provisional assessment u/s 238 of the Act. In her letters and representations to the department she said that she understood that the amount in question was subject to capital gains and that this amount she was prepared to pay and that she was not liable to be penalised for any default. She had herself described the surplus as capital receipts. When the Income Tax Officer. made the application on May 9, 1963, she seems to have been advised that she could ask for refund because there was no direction by the Tribunal in its order to tax the amount as capital gains. ( 8 ) WE think the application by the Income Tax Officer. u/s 35 was entirely misguided. The Income Tax Officer. had himself take. i the right course when he revised the assessment on May 2, 1963 treating the amount in question as subject to capital gains instead of as business income. That he was right in doing so we do not doubt. u/s 35 was entirely misguided. The Income Tax Officer. had himself take. i the right course when he revised the assessment on May 2, 1963 treating the amount in question as subject to capital gains instead of as business income. That he was right in doing so we do not doubt. The Tribunal had clearly found that the sale was for necessities and the surplus amounts in her hands as a result of the sale were in the nature of "capital accretions". The Tribunal directed the income tax officer to revise the assessment in terms of this finding. This he did on May 2, 1963. We do not understand why an application was made on May 9, 1963 for a direction from the Tribunal when the Tribunal had clearly said that the assessce should be taxed on capital accretions and not on business profits. The making of the application and its consequent dismissal on April 4, 1964 by the Tribunal was the sole reason, so it seems to us, which led the appellant to make the claim for refund. ( 9 ) BUT if the Income Tax Officer. was misguided in making the application, so was the appellant in making a claim for refund. The order of the Tribunal clearly indicates that it was the assessee s own case that surplus was subject to capital gains and not business profits. This case of the assessee the Tribunal accepted in appeal. The Income Tax Officer. accordingly revised the assessment. There is no question of refunding the amount to the appellant which she had willingly paid knowing fully well as part of her positive case that she was liable to pay gains tax. ( 10 ) THE order of the Tribunal is final, no doubt. But to say that on this finality the appellant s claim to refund is well founded is to misread the final order of the Tribunal. There is no justice in the appellant s claim. "finality is a good thing but justice is a better". Lord Atkin has told us. (Rash Behari Lal v. The King Emperor, 60 IA 354 (361 ).