T.Dhevanathan, CHENNAI V. ACIT, CHENNAI

MA 141/CHNY/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3583 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 30-10-2015
• Assessment Year: misc
• Appeal Filed On: 28-08-2015
• Court: TRIBUNAL
• Department Lawyers: V VIVEKANANDAN
• Assessee Lawyers: N DEVANATHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] M.P.NO.141/MDS/2015 [IN I.T.(SS)A.NO.19/MDS/2013] BLOCK PERIOD 1.4.1996 TO 5.12.2002 SHRI T. DHEVANATHAN NO.3, DHEENDAYALU STREET CHENNAI - 17 VS. THE ASSTT. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE II(5) CHENNAI [PAN AACPD 9556 C] ( PETITIONER ) ( ,-./ /RESPONDENT) PETITIONER BY : SHRI N. DEVANATHAN, ADVOCATE RESPONDENT BY : SHRI V. VIVEKANANDAN, CIT / DATE OF HEARING : 30 - 1 0 - 2015 / DATE OF PRONOUNCEMENT : 30 - 10 - 2015 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THE ASSESSEE FILED HE PRESENT MISCELLANEOUS PET ITION ON THE GROUND THAT GROUND NO.3 WITH REGARD TO TRANSACTION IN PUZHAL PROPERTY WAS NOT DISPOSED OF. 2. REFERRING TO THE MISCELLANEOUS PETITION, THE LD. CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRANSACTION IN RES PECT OF PUZHAL MP NO.141/15 :- 2 -: PROPERTY AS RAISED AS GROUND NO.3 BEFORE THIS TRIBU NAL. HOWEVER, WHILE DISPOSING OF THE APPEAL, THIS TRIBUNAL OMITTE D TO CONSIDER THE GROUND RAISED BY THE ASSESSEE. THE LD. COUNSEL FU RTHER SUBMITTED THAT IN RESPECT OF THE PROPERTY AT ROYAPETTAH, EVE N THOUGH NO SPECIFIC GROUND WAS RAISED, THE ISSUE ARISES FOR CONSIDERATI ON WAS INDICATED IN THE GROUNDS OF APPEAL. REFERRING TO THE GROUNDS OF APPEAL, MORE PARTICULARLY, GROUND NO.1, THE LD. COUNSEL SUBMITTE D THAT THE ENTIRE ORDER OF THE CIT(A) IS CHALLENGED BEFORE THIS TRIB UNAL, THEREFORE, THE ORDER OF THE CIT(A) WITH REGARD TO ROYAPETTAH PROPE RTY IS ALSO UNDER CHALLENGE. HENCE, IT CANNOT BE SAID THAT NO SPECIF IC GROUND WAS RAISED BEFORE THIS TRIBUNAL . ACCORDING TO THE LD. COUNSEL , THE ISSUE RAISED BY THE ASSESSEE BEFORE THIS TRIBUNAL IN RESPECT OF TR ANSACTION IN PUZHAL PROPERTY AND PROPERTY AT ROYAPETTAH HAS TO BE DISPO SED OF. 3. ON THE CONTRARY, SHRI V. VIVEKANANDAN, LD. DEPARTME NTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE, ADMITT EDLY, RAISED A GROUND WITH REGARD TO TRANSACTION IN PUZHAL PROPERT Y AS GROUND NO.3 BEFORE THIS TRIBUNAL. IN FACT, THIS TRIBUNAL OMIT TED TO CONSIDER THIS GROUND OF APPEAL, THEREFORE, TO THAT EXTENT THERE I S AN ERROR IN THE ORDER OF THIS TRIBUNAL WHICH NEEDS TO BE RECTIFIED. 4. HOWEVER, IN RESPECT OF PROPERTY AT ROYAPETTAH, NO S PECIFIC GROUND WAS RAISED BY THE ASSESSEE BEFORE THIS TRIB UNAL. GENERAL MP NO.141/15 :- 3 -: GROUND I.E GROUND NO.1 CANNOT BE CONSTRUED AS GROUN D OF APPEAL WITH REGARD TO ROYAPETTAH PROPERTY. THEREFORE, ACCORDIN G TO THE LD. DR, IT CANNOT BE SAID THAT THE GROUND RELATING TO ROYAPETT AH PROPERTY WAS NOT DISPOSED OF. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR, T HE ASSESSEE HAS RAISED A SPECIFIC GROUND WITH REGARD TO ADDITION ON SALE OF PUZHAL PROPERTY AS GROUND NO.3. THIS GROUND RAISED BY THE ASSESSEE WAS NOT DISPOSED OF BY THIS TRIBUNAL WHILE DISPOSING OF THE APPEAL. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT NON-DISP OSAL OF A SPECIFIC GROUND RAISED BY THE ASSESSEE AS GROUND NO.3 WITH REGARD TO PUZHAL PROPERTY IS AN ERROR WITHIN THE MEANING OF SEC. 254 (2) OF THE ACT HENCE, IT NEEDS TO BE RECTIFIED. 6. NOW. COMING TO THE PROPERTY AT ROYAPETTAH, AS RIGHT LY SUBMITTED BY THE LD. DR, NO SPECIFIC GROUND WAS RAI SED BY THE ASSESSEE., THEREFORE, IT CANNOT BE SAID THAT THE IS SUE OF PROPERTY AT ROYAPETTAH WOULD BE COVERED BY GROUND NO.1. GROUND NO.1 IS GENERAL GROUND, THEREFORE, IT CANNOT BE SAID THAT G ROUND NO.1 WOULD COVER THE TRANSACTION WITH REGARD TO PROPERTY AT RO YAPETTAH. UNLESS THERE IS A SPECIFIC GROUND RAISED BY THE ASSESSEE, THIS TRIBUNAL IS OF MP NO.141/15 :- 4 -: THE CONSIDERED OPINION THAT THE DEPARTMENT MAY NOT HAVE AN OCCASION TO ARGUE THE GROUND RAISED BY THE ASSESSEE. IT IS WELL SETTLED PRINCIPLES OF LAW THAT BY RAISING A NEW GROUND THE OTHER PARTY CANNOT BE TAKEN TO SURPRISE AND THE OTHER PARTY SHOULD BE GIVEN OPPORTUNITY WHILE HEARING THE APPEAL. SINCE NO SPECIFIC GROUND WAS RAISED, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ISSU E WITH REGARD TO PROPERTY AT ROYAPETTAH CANNOT BE RAISED AT THIS STA GE. AT THE BEST, THE ASSESSEE SHOULD HAVE RAISED THIS GROUND AS ADDITION AL GROUND AT THE TIME OF FINAL HEARING OF THE APPEAL. SINCE SUCH AN EXERCISE WAS NOT DONE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION T HAT THE ISSUE WITH REGARD TO ROYAPETTAH PROPERTY CANNOT BE RAISED AT T HIS STAGE. HOWEVER, AS POINTED OUT EARLIER WITH REGARD TO PUZH AL PROPERTY, GROUND NO.3 WAS NOT DISPOSED OF. THEREFORE, TO THAT EXTEN T, THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL WHICH NEEDS TO BE REC TIFIED. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS REOPENED AND POSTED FOR HEARING ON 4.11.2015. THE REGISTRY IS DIRECTED TO POST THE AP PEAL ON 4.11 2015 AS PART HEARD FOR DISPOSAL OF GROUND NO.3 RAISED BY THE ASSESSEE. 7. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS PARTLY ALLOWED. MP NO.141/15 :- 5 -: ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 30 TH OCTOBER, 2015, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ) ) (N.R.S. GANESAN) / JUDICIAL MEMBER / CHENNAI / DATED: 30 TH OCTOBER,2015 RD !' / COPY TO: 1 . PETITIONER 4. # # $ / CIT 2. %#&' / RESPONDENT 5. ()*# +, / DR 3. # # $ (! *) / CIT(A) 6. )./ 0 / GF