Shri Harshad M. Patel, Dist.Baroda V. The Income tax Officer,Ward-3(1), Baroda

MA 316/AHD/2008

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4318 (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

Judgement Text

MA.316/08 1 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI, JM AND D.C.AGRAWAL, A M HARSHADBHAI M. PATEL, JASPUR ROAD, PADRA, DIST.BARODA. VS INCOME TAX OFFICER, WARD 3(1), AAYAKAR BHAVAN, NR.RACE COURSE CIRCLE, BARODA. (APPELLANT) .. (RESPONDENT) P.A.NO.ADBPP 3552A 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.991/AHD/2008 P RONOUNCED 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 ON LEA SE HOLD RIGHTS THROUGH THE LAND OWNERS HAD DEPOSED BEFORE THE LD. A.O. HAVING GIVEN THE LAND ON LEASE FOR CULTIVATION TO THE APPE LLANT. THE LD. A.O. HAS FURTHER ERRED IN HOLDING THAT NO AGRICULTURAL I NCOME WAS EARNED BY THE APPELLANT SINCE THE LEASE AGREEMENT WAS NOT REG ISTERED OR NOTARIZED AND PROCEEDED TO DENY THE BENEFIT OF AGRICULTURAL I NCOME HAVING BEEN M.A. NO.316/AHD/2008 ARISING OUT OF ITA NO.991/AHD/2008 ASST. YEAR : 2004-05 MA.316/08 2 EARNED FROM THE SAID LEASE LAND. THIS ACTION OF BOT H THE LOWER AUTHORITIES IS IN CLEAR BREACH OF PRINCIPLES OF NAT URAL JUSTICE AND THEREFORE DESERVES 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. CIT (A) AND T HERE IS NO ADJUDICATION BY HIM ON THIS ISSUE. IN ANY CASE IT WOULD BE A CLEAR EXERCISE IN FUTILITY AND FOR THAT MATTER ORDER OF THE TRIBUNAL 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 HEARING BEFORE THE TRIB UNAL. 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 FA CTS AND IS NOT PURELY ILLEGAL GROUND. EVEN OTHERWISE, EVEN IF IT IS ADMITTED, STI LL 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 GENERAL 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. MA.316/08 3 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT THIS GROUND RAIS ED 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 O RDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO POST IT FOR HEARING IN DUE C OURSE. EVEN THOUGH THIS IS A FACT THAT RELEVANT ISSUE HAS NOT BEEN RAISED BEFORE THE CIT (A) OR ISSUE MIGHT REQUIRE INVESTIGATION OF THE FACTS, BUT SINCE ONCE THE GROUND IS RAISED BY THE ASSESSEE, IT IS REQUIRED TO BE DISPOSED OF AND AS I T HAS NOT BEEN DONE SO THE ORDER OF THE TRIBUNAL IS REQUIRED TO BE RE-CALLED T O 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 MA.316/08 4