Shri Manubhai Morarbhai Patel(HUF), Dist.Baroda V. The Income tax Officer,Ward-3(1), Baroda

MA 315/AHD/2008

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4316 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Keywords: Principle of natural justice

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI, JM AND D.C.AGRAWAL, A M MANUBHAI MORARBHAI PATEL (HUF), JASPUR ROAD, PADRA, DIST.BARODA. VS INCOME TAX OFFICER, WARD 3(1), AAYAKAR BHAVAN, NR.RACE COURSE CIRCLE, BARODA. (APPELLANT) .. (RESPONDENT) P.A.NO.AABHM 4333 H APPELLANT BY :- SHRI TUSHAR HEMANI AR RESPONDENT BY:- SHRI C. K. MISHRA, DR O R D E R PER D.C.AGRAWAL, ACCOUNTANT MEMBER . THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESS EE IS ARISING FROM THE ORDER OF THE TRIBUNAL IN ITA. NO.990/AHD/2 008 PRONOUNCED ON 13-06-2008. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT TRIBU NAL HAS NOT DISPOSED OFF THE FOLLOWING GROUND :- BOTH THE LOWER AUTHORITIES HAVE GROSSLY ERRED IN H OLDING THAT NO CROP WAS GROWN BY THE APPELLANT ON THE LAND TAKEN O N LEASE HOLD RIGHTS THROUGH THE LAND OWNERS HAD DEPOSED BEFORE T HE LD. A.O. HAVING GIVEN THE LAND ON LEASE FOR CULTIVATION TO T HE APPELLANT. THE LD. A.O. HAS FURTHER ERRED IN HOLDING THAT NO AGRIC ULTURAL INCOME WAS EARNED BY THE APPELLANT SINCE THE LEASE AGREEME NT WAS NOT REGISTERED OR NOTARIZED AND PROCEEDED TO DENY THE B ENEFIT OF M.A. NO.315/AHD/2008 ARISING OUT OF ITA NO.990/AHD/2008 ASST. YEAR : 2004-05 2 AGRICULTURAL INCOME HAVING BEEN EARNED FROM THE SAI D LEASE LAND. THIS ACTION OF BOTH THE LOWER AUTHORITIES IS IN CLE AR BREACH OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVE S TO BE QUASHED. 3. HE SUBMITTED THAT ASSESSEE HAD RAISED THIS GROUN D IN THE GROUND OF APPEAL BUT DID NOT GET THE ATTENTION OF THE TRIBUNA L AND ACCORDINGLY REMAINED FROM BEING ADJUDICATED. 4. THE LD. D.R. ON THE OTHER HAND OPPOSED THE MISC. APPLICATION ON THE GROUND THAT IT DOES NOT ARISE FROM THE ORDER OF CIT (A). NO SUCH GROUND WAS RAISED BY THE ASSESSEE BEFORE THE LD. CI T (A) AND THERE IS NO ADJUDICATION BY HIM ON THIS ISSUE. IN ANY CASE IT W OULD BE A CLEAR EXERCISE IN FUTILITY AND FOR THAT MATTER ORDER OF THE TRIBUN AL SHOULD NOT BE RE-CALLED. THE LD. D.R. FURTHER SUBMITTED THAT IT IS NOT RULED OUT THAT LD. A.R. DID NOT PRESS FOR THIS GROUND DURING THE COURSE OF HEAR ING BEFORE THE TRIBUNAL. ONCE THIS IS SO THEN ALSO ORDER IS NOT REQUIRED TO BE RE-CALLED. 5. THE LD. D.R. FURTHER SUBMITTED THAT THIS GROUND CANNOT BE ALLOWED TO BE ADMITTED BECAUSE IT REQUIRES INVESTIGATION OF FACTS AND IS NOT PURELY ILLEGAL GROUND. EVEN OTHERWISE, EVEN IF IT IS ADMIT TED, STILL THE RESULT IS LIKELY TO BE NIL BECAUSE TRIBUNAL CANNOT ADJUDICATE THIS GROUND AS IT HAS NOT BEEN RAISED BEFORE THE LD. C.I.T.(A). 6. IN REJOINDER LD. A.R. FAIRLY ADMITTED THAT HE HA S NOT RAISED THIS ISSUE BEFORE THE LD. CIT (A) BUT HE HAS RAISED A GE NERAL GROUND ABOUT THE PROPOSED ADDITION BY THE A.O. THEREFORE, THIS GROUN D REMAINED NON- ADJUDICATED SHOULD BE CONSIDERED AS PART OF THAT GR OUND. 3 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT THIS GROUND R AISED BY THE ASSESSEE HAS REMAINED FROM BEING ADJUDICATED. THIS IS AN INADVER TENT ERROR AND THEREFORE IN ORDER TO ADJUDICATE THIS GROUND WE RE- CALL THE ORDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO POST IT FOR HEA RING IN DUE COURSE. EVEN THOUGH THIS IS A FACT THAT RELEVANT ISSUE HAS NOT B EEN RAISED BEFORE THE CIT (A) OR ISSUE MIGHT REQUIRE INVESTIGATION OF THE FAC TS, BUT SINCE ONCE THE GROUND IS RAISED BY THE ASSESSEE, IT IS REQUIRED TO BE DISPOSED OF AND AS IT HAS NOT BEEN DONE SO THE ORDER OF THE TRIBUNAL IS R EQUIRED TO BE RE-CALLED TO THIS LIMITED EXTENT. 8. AS A RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. SD/- SD/- (BHAVNESH SAINI) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 22/03/ 2010. PATKI COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD ORDER PRONOUNCED IN OPEN COURT ON 22 /03 /2010 4