DCIT, YAMUNANAGAR V. RAM NIWAS GARG, YAMUNANAGAR

MA 215/CHANDI/2018

AI Insights

The case involves multiple Miscellaneous Applications filed by the Revenue against the order of the ITAT, which had earlier remanded the matter to the Assessing Officer based on an additional ground raised by the assessee challenging the validity of reassessment proceedings under section 147. The Revenue contended that the Tribunal's earlier order contained a mistake apparent from the record as the Assessing Officer had already adjudicated on the issue during the original assessment proceedings. The Tribunal acknowledged the mistake and modified its earlier order to direct the CIT(A) to re-examine the issue, thus correcting the course of action.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 397126 (ITAT-CHANDIGARH)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2025
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RANJIT KAUR; RANJIT KAUR
• Assessee Lawyers: AJAY JAIN; PARIKSHIT AGGARWAL
• Keywords: Set aside; Capital asset; Opportunity of being heard; Reassessment proceedings; Cost of acquisition; Reopening of assessment; Capital Gains
• Section: 147; 148; 133(6); 2(14)

Judgement Text

" आयकर अपीलȣय अͬधकरण, चÖडीगढ़ Ûयायपीठ, चÖडीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH, ‘B’, CHANDIGARH BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER & SHRI KRINWANT SAHAY, ACCOUNTANT MEMBER M.A No. 214/Chd/2018 (Arising out of ITA No. 230/CHD/2017) Assessment Year: 2008-09 The DCIT, Yamunanagar Shri Rakesh Tyagi, Gobindpur, Yamunanagar PAN ACXPT3538K M.A No. 216/Chd/2018 (Arising out of ITA No. 232/CHD/2017) Assessment Year: 2008-09 The DCIT, Yamunanagar Smt. Ritu Rani, New Grain Market, Jagadhri, Yamuna Nagar. PAN : AIUPR9055L M.A No. 217/Chd/2018 (Arising out of ITA No. 233/CHD/2017) Assessment Year: 2008-09 The DCIT, Yamunanagar Smt. Rani Devi, H.No. 1739, Sector 17, HUDA, Jagadhri, PAN : AGEPD6583H Ǔनधा[ǐरती कȧ ओर से/Assessee by : Sh. Ajay Jain, CA राजèव कȧ ओर से/ Revenue by : Dr. Ranjit Kaur, Addl. CIT Sr.DR & M.A No. 215/Chd/2018 (Arising out of ITA No. 231/CHD/2017) Assessment Year: 2008-09 The DCIT, Yamunanagar Shri Ram Niwas Garg, House No. 90, Shashtri Colony, Yamuna Nagar. PAN : AAGPN0573M (Appellant) (Respondent) M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 2 ( Physical Hearing ) Ǔनधा[ǐरती कȧ ओर से/Assessee by : Sh. Parikshit Aggarwal, CA and Ms. Shruti Khendalwal, Advocate राजèव कȧ ओर से/ Revenue by : Dr. Ranjit Kaur, Addl. CIT Sr.DR सुनवाई कȧ तारȣख/Date of Hearing : 23.05.2025 उदघोषणा कȧ तारȣख/Date of Pronouncement : 30.05.2025 आदेश/Order Per Laliet Kumar, JM : These are Miscellaneous Applications (M.As) filed by the Revenue seeking rectification of the order dated 03.04.2018 passed by the Tribunal. 2. The learned Departmental Representative (Ld. DR) submitted that there is an apparent mistake in the impugned order, which warrants rectification under section 254(2) of the Income Tax Act. In support of the plea, the Ld. DR invited our attention specifically to paragraphs 6 to 10 of the Tribunal’s order, which, according to the Revenue, contain conclusions or omissions leading to a mistake apparent from the record. 3. The learned Departmental Representative (Ld. DR) submitted that there is a mistake apparent from the record in the impugned order which warrants rectification under section 254(2) of the Income Tax Act, 1961. He invited our attention to paragraphs 7 and 8 of the Tribunal’s order, wherein the Tribunal had admitted an additional ground M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 3 raised by the assessee challenging the validity of the reassessment proceedings under section 147. It was submitted that the issue of jurisdiction under section 147 was not raised before the learned CIT(A), albeit it was decided against the assessee by the Assessing Officer. The said ground was introduced before the Tribunal as an additional ground, and the Tribunal, after admitting it, remanded the matter to the file of the Assessing Officer for passing a fresh assessment order. According to the Revenue, this action by the Tribunal amounts to a mistake apparent from the record. The finding of the Tribunal given in para 6-10 are as under: “6. The assessee, it was submitted, claimed it to be an AOP. The Tax Authorities did not accept it and considered the transfer of land in the name of individual members. The ld. AR submitted that in the proceedings before AO and the CIT(A), the assessee on account of lack of proper advice, did not raise the jurisdictional issue which on facts ought to have been raised. The following additional ground, accordingly was raised : \"That on law, facts, circumstances and legal position of the case, the initiation, continuation and conclusion of the impugned assessment u/s 147 r.w.s 148 of the Income Tax Act is illegal and deserves to be quashed.\" 7. In support of admission of the same, it was submitted that the jurisdictional issue going to the root of the matter may be first decided. The ground, it was submitted could not be raised on account of the ignorance of the assessee and lack of proper advise. In the facts of the case, it was submitted that since the assumption of jurisdiction itself is questionable in the circumstances, it was his prayer that the said ground may be admitted in terms of the decision of the Apex Court in the case of NTPC 229 ITR 383 (1998) (S.C). 8. The ld. CIT-DR considering the jurisdictional issue submitted that though it is a legal ground and thus he would have no objection to the admission of the same, however, since the relevant discussions are M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 4 not in the orders of the Tax Authorities, it was his prayer that in the circumstances, it would be appropriate to remand the issue. The ld. AR agreeing with the submissions stated that it was his prayer also that the issue may be remanded to the AO. 9. We have heard the submissions and perused the material available on record. It is seen that the assessment order has been passed considering the merits of the arguments raised by the assessee. The CIT(A) in appeal, it is seen proceeded to partly agree with the assessee, “Therefore, in view of above, 1 am of the view that there is an extinguishment of right in the capital asset by the appellant vide collaboration agreement dated 29.08.2007 as per sub clause (ii) to section 2(47) which is further supported by clarification of word 'transfer' by Explanation (2) below section 2(47). So, there is ‘transfer’ of capital assets as per the inclusive definition u/s 2(47) during the year under consideration.” Since the assumption of jurisdiction itself is questioned, by the assessee which aspect has not been considered by the tax authorities. Accordingly, in these circumstances without getting into the aspect of correctness of the order under challenge which is stated to have not been challenged by the Revenue and thus according to the assessee, the issue which remains open for consideration is only the applicability of Section 2(47)(ii), we deem it appropriate to not get into this debate and set aside the impugned order back to the file of the AO with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. 10. In the result, the appeal of the assessee is allowed for statistical purposes.” 4. The ld. DR, had submitted that the issue of 147, which was used an additional ground by the Assessee was admitted by the Tribunal in paragraphs 7 and 8 and thereafter the matter was remanded back to the file of the Assessing Officer for passing the fresh assessment order. M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 5 5 The elaborate submissions were filed by the Revenue in this regard in pages 1 to 13, which are as under: M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 6 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 7 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 8 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 9 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 10 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 11 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 12 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 13 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 14 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 15 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 16 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 17 M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 18 6. Per contra, the learned Authorised Representative (Ld. AR) for the assessee strongly opposed the Miscellaneous Application on various grounds. It was submitted that the issue under section 147 pertains to jurisdiction and is a legal issue, which can be raised at any stage of the appellate proceedings, even if not raised before the CIT(A). Accordingly, the Tribunal was justified in admitting the additional ground and remanding the matter to the file of the Assessing Officer. The Ld. AR submitted that the order of the Tribunal does not suffer from any mistake apparent from the record. 6.1 It was further submitted by the Ld. AR that the Revenue, in its application, has levelled certain unsubstantiated allegations against the counsel for the assessee, and our attention was drawn to specific paragraphs of the application in this regard. He submitted that such allegations are unwarranted and wholly inappropriate. He contended that the Tribunal, after due consideration, consciously exercised its jurisdiction in remanding the matter, and no error has been pointed out in the said decision which can be rectified within the limited scope of section 254(2). Entertaining such applications, it was submitted, would amount to a review of the Tribunal’s order, which is impermissible in law. In support of his arguments, he relied upon the decision of the Hon'ble Supreme Court in the case of Reliance Telecom Ltd. v. Union of India [(2021) 132 taxmann.com 64 (SC)]. M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 19 6.2 The Ld. AR has also filed detailed written submissions reiterating the above arguments, which have been taken on record and considered. The submissions filed by the assessee were as follows: “1. 'A' Individual alongwith other land co-owners entered into an unregistered JDA with a company, during the year in question. This agreement was subsequently endorsed in favour of a new entity and even that endorsed one also did not mature. The seller group had received Rs. 5 crores during the year as performance security deposit. The developer had agreed to pay Rs. 32 crores to the land-owners for their part of commitments. But this amount was never received by land-owners from this developer. All these are undisputed facts. 2. The case for the year in question was re-opened u/s 148 on the issue of alleged capital gains, from execution of JDA, having not been declared. Before the Ld. AO, the assessee filed objections on some tangents of invalidity of re-opening of this case and also argued that the capital gain can not be charged to tax in the subject year only on account of just signing of the JDA which too is only an unregistered agreement. However, the Ld. AO did not agree. He rejected the contentions of the assessee on the validity of re-opening u/s 148 as also held that the entire consideration of Rs. 32 crores is chargeable to tax as capital gains in the year of signing of the unregistered JDA. For bringing the capital gains to tax, the Ld. AO held that execution of JDA amounts to transfer as is contemplated u/s 2(47)(v) & (vi). He also made a reference to s. 2(47)(ii). 3. In appeal before the Worthy CIT(A), the assessee argued that capital gains can not be brought to tax in the subject year and the transaction of signing of an unregistered JDA, in the facts of this case, does not fall in either of the clauses of transfer u/s 2(47). In the order, the Worthy CIT(A) held that the action of Ld. AO in holding the execution of JDA to fall u/s 2(47)(v)/(vi) is incorrect. But he held that the transaction in question falls u/s 2(47)(ii) i.e. extinguishment of rights. On this substituted reasoning, the Worthy CIT(A) upheld the addition and dismissed the appeal of the assessee. M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 20 4. Then the A' filed appeal before the Hon'ble ITAT. But it may please be noted that the revenue chose not to file appeal against the order of Worthy CIT(A). In the original appeal memo that he filed before the Hon'ble Bench, the assessee did not raise the ground on validity of re-opening in this case. However, during the pendency of appeal, he filed application praying for admittance of additional ground u/r 11 agitating therein that re- opening u/s 148 in this case was bad in law. 5. Before the Honble ITAT, the assessee also filed Brief synopsis containing its contentions as to why its grounds including the ground on validity of re-opening deserves to be allowed. 6. The Hon'ble Bench, in their order dtd. 03.04.2018, remanded all the issues back to the file of Ld. AO to decided afresh. This included the contentions through additional ground on validity of re-opening u/s 148. As regards the merits of the matter, the assessee contended before the Hon'ble Bench that while remanding the matter, the directions should be such that the scope should be limited to examining the transaction u/s 2(47)(ii) and not u/s 2(47)(v)/(vi) since the Worthy CIT(A) had deleted the aspect of s. 2(47)(v)/(vi) and the revenue had not come up in appeal on that aspect before the Hon'ble ITAT. However, in the order, the Hon'ble Bench did not agree to this argument of the assessee and remanded the matter in entirety. The Hon'ble Bench specifically noted in Para 9 that \"Accordingly, in these circumstances without getting into the aspect of correctness of the order under challenge which is stated to have not been challenged by the revenue and this according to the assessee, the issue which remains open for consideration is only the applicability of section 2(47)(ii), we deem it appropriate to not get into this debate and set aside the impugned order back to the file of the AO with directions to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.\" 7. The revenue is aggrieved from above order of Hon'ble ITAT. They have broadly raised following contentions. But those contentions are absolutely incorrect based on our arguments which are also dealt hereunder : M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 21 7.1. The challenge to validity of re-opening, raised through additional ground by the assessee, and agreed by the CIT-DR, as having not been taken earlier and then remanded by the Hon'ble Bench to the AO, is illegal since this had already been raised through objections before the AO and the AO had dealt with these objections separately : • In their MA as also in the written arguments on that MA filed before the Hon'ble Bench, the revenue has agitated that the issue of validity of re-opening of assessment u/s 148 was raised by the assessee before the AO also and the AO having already dealt this issue, there is no reason to remand this matter to the file of AO. Our arguments on this part of MA is that on appreciation of our arguments made before the Hon'ble Bench at the time of hearing, it was the wisdom of the Hon'ble Bench exercising their vast powers u/s 254(1) to still remand the issue of validity of re- opening u/s 148 to the file of AO to decide this issue afresh. Further, it can be seen from our synopsis filed before the Hon'ble Bench at the time of hearing that it contains arguments on number of other tangents on validity of re-opening of assessment which were not raised earlier before the Ld. AO during assessment proceedings. Now to say that once having raised some tangents of reopening before the AO, the assessee is estopped from raising some new tangents before the Hon'ble ITAT is absolutely incorrect. Further, it is a case where the Hon'ble Bench has not allowed the appeal of the assessee on that new tangent and quality of re-opening, but has only remanded the matter back to the file of AO to allow the AO to deal with even those tangents. In our opinion, the not following of directions of Hon'ble Bench and asking the Bench to change the directions on AO's own views is amounting to contempt on the part of AO and the AO has decided to sit in judgment over the order of Hon'ble ITAT. He is saying in the MA that he will not deal with the matter remanded back by the Hon'ble Bench since in his own wisdom he has already dealt with this matter. It may please be noted that the issue of validity of re- opening u/s 148 was not raised before the Worthy CIT(A). M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 22 The same can be seen from the grounds of appeal raised before the CIT(A). Then it was not raised before the Hon'ble Bench in the original appeal memo. In this situation, the appellant had no choice but to raise this issue via additional ground which the Hon'ble Bench appreciated and the Ld. CIT-DR agreed. Now the Ld. AO is contending in the MA that he having dealt with this issue at the time of assessment, the assessee could not have raised this issue before the Hon'ble Bench. This is directly contrary to number of judgments where it has been held that legal issue on jurisdiction of the Assessing authority can be raised in higher appellate forum and at any stage of litigation. It is also settled law that there can not be a waiver so far as jurisdiction aspect is concerned. Some of those decisions are :  CIT vs Pruthvi Brokers & Shareholders 349 ITR 336 (Bom) o Inventors Indl. Corporation Ltd. Vs CIT 194 ITR 548 (Bom)  Ramilaben Ratilal Shah vs CIT 282 ITR 176 (Guj) Based on above arguments, the contention of the revenue that this issue having already been dealt by the AO in the 1st round of assessment, he will not deal with this 2nd time on directions of Honble Bench is total incorrect and deserves to be dismissed. 7.2. That the AR of the assessee misled the Bench and based on that CIT-DR wrongly agreed to remand the matter to the file of Ld. AO : • In their written note at Page 4 Para 5 given to the Hon'ble Bench in this MA, the revenue has contended that the Hon'ble Bench was misled by the AR of the assessee and out of utter respect to the Hon'ble Bench, the CIT DR agreed on the issue of additional ground on the basis that as per AR it was not taken before the AO and the CIT(A). This portion of note of the revenue is totally denied and strongly opposed. It is a personal attack on the counsel. It is a personal attack on the Institution of this Hon'ble ITAT M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 23 and it is also a personal attack on the CIT-DR. Firstly, kindly see the grounds of appeal before the Honble ITAT (original appeal memo) and also filed before the CIT(A) where this issue has not been raised. Further, on comparison of contentions in the synopsis filed before the Hon'ble ITAT during hearing at that time and the contentions raised before the AO during assessment, it can be seen that the assessee has raised number of new contentions before the Hon'ble ITAT on other tangents of validity of re-opening. Therefore, it was rightly appreciated and accepted by the Hon'ble Bench as an additional ground, it was admitted and finally, on consensus between all parties, it was remanded back to the file of AO. Therefore, the personal allegation made by the revenue that the AR misled the Bench is totally incorrect. The revenue may please be directed to file affidavit from their CIT DR present at that time as to whether his concession was on misleading by the AR. Else the revenue may please be directed to expunge this portion of allegation from their arguments. 7.3. That the AO having already dealt with all limbs of s. 2(47) in the order in 1st round of assessment, re-dealing the same issue is not possible : • In their MA, on merits of the issue, the revenue has contended that the taxability of subject JDA has already been examined by the AO from the perspective of all clauses of s. 2(47) in the 1st round assessment order which included clauses (ii), (v) & (vi). Therefore, as per their stand in the MA, the AO is not ready to re-do the same exercise on directions of Hon'ble ITAT. In our opinion, this is also contemptuous. It is in the wisdom of the Hon'ble Bench under its vast powers u/s 254(1) to decide the issue themselves or to get it re-examined from any of the lower authority, be it AO or CIT(A). Now to challenge those directions through MA is amounting to sit in judgment over the decision of Hon'ble ITAT and is also amounting to file appeal against the decision of Hon'ble ITAT via MA before Hon'ble ITAT itself. All this is impermissible. M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 24 • Kindly further note that the assessment order is dtd. 22.03.2015 where the AO has held that execution of an unregistered JDA will invite taxation u/s 2(47) in the year of signing of JDA. At that time the pre-dominant view on this subject was in favour of revenue. Even the ITAT decision on this issue at that time was in favour of revenue. It is subsequently by decision dtd. 22.07.2015 that the Hon'ble Jurisdictional P&H High Court in C.S. Atwal vs CIT 378 ITR 244, reversed the view of ITAT and held that mere signing of an unregistered JDA will not invite taxation. This was then later-on upheld in CIT vs Balbir sigh Maini 398 ITR 531 (SC) (2017). All this development through these decisions was not available when the AO passed the order but was available when the Hon'ble ITAT was dealing with this matter. Appreciating this development, the Hon'ble ITAT chose to allow 2nd inning to the AO. Now the saying of the AO in the MA that he has already dealt with this issue is incorrect since it was not dealt in the light of these subsequent important decisions directly on the subject in hand. Therefore, the MA on this issue raised by revenue deserves to be dismissed. 7.4 Prayer of revenue in their MA is amounting to seeking review which beyond the scope of s. 254(2) :  It can be seen from the contents of the MA filed by revenue that what they are seeking is review of the entire order of Hon'ble ITAT under the garb of s. 254(2) by misrepresenting it to be a prayer for recall. This is impermissible as held in CIT vs Reliance Telecom Ltd. 440 ITR 1 (SC) (2022).  Further, they have not specifically pointed out as to which para or line of the order of Hon'ble ITAT contains any apparent mistake which can be corrected u/s 254(2). This is since the order does not actually contain any apparent mistake. In view of above, the MA filed by the revenue being devoid of merits deserves to be dismissed. Appropriate relief is prayed. M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 25 7. We have heard the rival contentions of both parties and perused the material available on record. Before we proceed to examine the order passed by the Tribunal, it is essential to set the record straight by referring to the relevant facts as recorded in the assessment order. In this regard, we refer to paragraph 9 of the assessment order at page 24, which states as under: “9. Thus on consideration of all facts of the case and material on record following points emerge: A. The collaboration agreement dated 29.08.2007 and the transfer of capital asset has taken place in the financial year 2007-08 relevant to the Assessment Year 2008-09. B. As per the agreement there is grant and assignment of various rights in the Property. The physical and vacant possessions of the property has handed over to the buyer. There is transfer of capital asset in A.Y. 2008-09. As per Sec 2(14) 'capital asset' means property of any kind. Capital asset includes every kind of property as generally understood, except those are expressly excluded from the definition. Similarly the meaning of the expression 'property' includes every conceivable thing, right or interest. C. The income tax is to be charged under the head 'Capital gains' on any profit on transfer of capital asset and shall be deemed to be income of the previous year in which the transfer took place (Sec 45(1)). In this case the transfer of capital asset took place in A.Y. 2008-09. D. The assessee's case is covered by the general provisions of Sec 45(1) and also 2(47) (ii) extinguishment of any rights there in. The case is also covered by Sec.2 (47)(vi) any transaction which has effect of transferring, or enabling the enjoyment of any immovable property. E. The transfer of the capital asset by the assessee is also covered by the provisions of Sec.2 (47)(v). This is a case of a transaction involving the allowing of the possession of any immovable property go be taken or retained in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act. The facts of the case is covered by the decision in 256 ITR 282 (Mad) M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 26 F. The facts of the case and the terms of the collaboration agreement reveals that collaboration agreement enables the passing of domain and control of the Property by grant of irrevocable authority. Thus the date of the agreement of development will constitute the date of the transfer of the capital asset. Reliance can be placed on Chaturbhuj Dwarikadas Kapadia v CIT 260 ITR 491 (Bom). G Sec. 48 of the Act takes into consideration the full value of the consideration received or accruing as a result of the transfer of the capital asset. In this case the full value of the consideration has accrued to the assessee in the AY.2008-09. 11. In view of above discussion it is established that land transfer by the assessee vide collaboration agreement dated 29.08.2007 is transfer as per provision of section 2(47)(v) and (vi) of the Income Tax Act and Capital gain earned on this transaction is taxable u/s 45(1) of the Income Tax Act 1961. The capital gain in the hands of the assessee is computed as under:- Full value of consideration Assessee's share 1/10 x Rs.32,00,00,000/-Rs.3,20,00,000/- Less: Index cost of acquisition 358002 x 785/497 Rs. 5,65,455/- Cost of acquisition etc. Rs.3,58,002/- [½ of Rs.7,16,003/-(662500+53000+503)] Long Term Capital Gain Rs.3,14,34,545/- 8. Besides the above, if we refer to paragraphs 4 and 5 of the assessment order, it is amply clear that the assessee had raised objections against the issuance of notice under section 148 of the Act. The Assessing Officer, by his order dated 25.07.2014, had disposed of the objections filed by the assessee. In fact, this order forms part of the assessment order itself, appearing at pages 5 and 6. The relevant portion of the said order is as follows: M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 27 No. ACIT/YNR/2014-15/ Office of the Dy. Commissioner of Income Tax, Circle, Yamuna Nagar. Dated: 25.07.2014 To Sh. Rakesh Kumar Tyagi, S/o Sh. Ishwar Dutt, Gobindpuri, Yamuna Nagar. Sir, Sub: Speaking order in reply to objections raised in the case of Sh. Rakesh Kumar Tyagi R/o Gobindpuri, Yamuna Nagar for the Assessment Year 2008-09 PAN: ACXPT3538K-Regarding- Please refer to your letter dated 07.07.2014 received in this office on 21.07.2014 on the above noted subject. 2. In respect of the objection that year of taxability has not been ascertained, it is stated that the taxability of capital gain in respect of property/land transferred vide collaboration agreement dated 29.08.2007 is for the assessment year 2008-09 since the transfer of land has taken place on 29.08.2007 vide agreement dated 29.08.2007. The assessing officer, in the reasons recorded u/s 147, is very clear on this aspect. 3. In respect of objection that the assessing officer is unclear about the head under which the income is taxable, it is brought to your notice that throughout the reasons so recorded u/s 147, the assessing officer is clear about escapement of income on account of capital gains on transfer of land. The assessing officer in its reasons has rebutted the arguments of the assessee so called for u/s 133(6) in respect of the assessee's claim that the property/land was converted by him as stock in trade is not charged to capital gains. 4. In respect of objection that the assessing officer is not clear about the documents on the basis of which the property/land is to be taxed, it is stated that the assessing officer is clear throughout the reasons & it has been discussed exhaustively that the parent document ie. collaboration agreement dated 29.08.2007 is the document on the basis of which transfer of property/land has been made & taxability on account of capital gains arises in respect of above. M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 28 5. It is stated that the reasons so recorded while issuing notice u/s 148 are valid as per law & on merits. The assessing officer has proper satisfaction to believe that escapement of income has taken place due to non charging of capital gain income on account of transfer of land. The assessing officer on application of mind has proper reasons to believe that escapement of income has occurred in respect of above mentioned land. Yours faithfully, Sd/- (Zahid Parvez) Asstt. Commissioner of Income Tax, Circle, Yamuna Nagar. 9. It is also pertinent to mention that while the assessee did prefer an appeal before the CIT(A), the issue of validity of reopening under section 147 was not agitated before the said authority—consequently, the appellate order passed by the Ld. CIT(A) is silent on this issue. 10. In the above background, the assessee raised an additional ground before the Tribunal challenging the legality of the reassessment. The Tribunal, in paragraph 6 of its order, recorded this additional ground and proceeded on the footing that the Assessing Officer had not adjudicated the said issue. On that basis, the matter was remanded to the Assessing Officer with a direction to pass a fresh speaking order in terms of paragraph 9 of the Tribunal’s order. 11. However, as the record now clearly shows, the Assessing Officer had in fact adjudicated this jurisdictional objection in the assessment proceedings themselves. Therefore, the Tribunal’s observation that the AO had not examined the issue M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 29 was factually incorrect. It is also brought to our notice that the assessee Devi Dayal (PAN: AAJPD5851H), who was part of the common group of appeals, was not included in the rectification applications filled by the revenue. However, a similar issue arose in his case and the AO had already complied with the Tribunal's directions by reiterating the original findings in the giving effect order. 12. The Ld. DR contended that remanding the matter to the Assessing Officer in such a situation is an exercise in futility, as the issue was already considered in the original assessment proceedings. The Tribunal’s remand direction, being based on an erroneous factual assumption, therefore constitutes a mistake apparent from the record. We find merit in this contention. 13. The test under section 254(2) is whether there is a mistake which is patent, obvious and self-evident. In the present case, the Tribunal proceeded on the incorrect assumption that the Assessing Officer had not adjudicated on the validity of reopening under Section 147. This error, having led to a remand of the matter, is an error apparent from the record and liable to be rectified. 14. In our considered view, the remand of the matter to the Assessing Officer in paragraph 9 of the Tribunal's order was not warranted and requires modification. Since the issue was not adjudicated by the CIT(A), the appropriate course would M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 30 have been to remand the matter to the CIT(A) for consideration of the additional legal ground. Accordingly, we deem it just and proper to modify paragraph 9 of the Tribunal’s order dated 03.04.2018 by substituting the words “Assessing Officer” with “CIT(A)”. The direction shall now be read as under: 9. We have heard the submissions and perused the material available on record. It is seen that the assessment order has been passed considering the merits of the arguments raised by the assessee. The CIT(A) in appeal, it is seen proceeded to partly agree with the assessee, “Therefore, in view of above, 1 am of the view that there is an extinguishment of right in the capital asset by the appellant vide collaboration agreement dated 29.08.2007 as per sub clause (ii) to section 2(47) which is further supported by clarification of word 'transfer' by Explanation (2) below section 2(47). So, there is ‘transfer’ of capital assets as per the inclusive definition u/s 2(47) during the year under consideration.” Since the assumption of jurisdiction itself is questioned, by the assessee which aspect has not been considered by the tax authorities. Accordingly, in these circumstances without getting into the aspect of correctness of the order under challenge which is stated to have not been challenged by the Revenue and thus according to the assessee, the issue which remains open for consideration is only the applicability of Section 2(47)(ii), we deem it appropriate to not get into this debate and set aside the impugned order back to the file of the Ld. CIT(A) with the M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 31 direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. 15. In the light of the above, Miscellaneous Applications filed by the Revenue are allowed. However, we deem it appropriate to express our displeasure at the tone and tenor adopted in the drafting of the Miscellaneous Applications, wherein certain unwarranted allegations have been levelled against the Ld. Authorised Representative for the assessee. Such language and imputations are wholly inappropriate in pleadings before a quasi-judicial forum and do not advance the cause of justice. The Revenue is advised to exercise caution and maintain decorum in future pleadings. 16. In the result, all the MAs are allowed to the aforesaid extent. Order pronounced on .05.2025. Sd/- Sd/- (KRIWANT SAHAY) (LALIET KUMAR) Accountant Member Judicial Member “आर.क े.” आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the order forwarded to : 1. अपीलाथȸ/ The Appellant 2. Ĥ×यथȸ/ The Respondent 3. आयकर आयुÈत/ CIT M.A.Nos.-214 to 217-Chd-2018 ITA Nos. 230 to 232-Chd-2017 Rakesh Tyagi and Others, Yamunanagar 32 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय आͬधकरण, चÖडीगढ़/ DR, ITAT, CHANDIGARH 5. गाड[ फाईल/ Guard File सहायक पंजीकार/ Assistant Registrar "