Shri S.Vasanthakumar, CHENNAI V. ACIT, CHENNAI

MA 45/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8593 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-06-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 23-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS
• Assessee Lawyers: N DEVANATHAN
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.A.NO.45/MDS/2012 (IN I.T.A.NO.1491/MDS/2010) ASSESSMENT YEAR : 2007-08 SRI S.VASANTHAKUMAR, FLAT NO.301, 170/3, L.B.ROAD, BRINDAVAN, SRINIVASAMURTHY AVENUE, ADYAR, CHENNAI 600 020. PAN AAEPV 1555 F VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-V, CHENNAI 34. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI N. DEVANATHAN, ADVOC ATE RESPONDENT BY : SHRI SHAJI P. JACOB, IRS, ADDL. CIT DATE OF HEARING : 8 TH JUNE, 2012 DATE OF PRONOUNCEMENT : 8 TH JUNE, 2012 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSE E WHO IS THE RESPONDENT IN APPEAL, WHICH IS FILED BY THE REV ENUE. THE APPEAL FILED BY THE REVENUE IN ITA NO.1491/MDS/2010 WAS DISPOSED OF BY THE INCOME-TAX APPELLATE TRIBUNAL, C HENNAI B MA 45/12 :- 2 -: BENCH THROUGH THEIR ORDER DATED 30.1.2012. THE APP EAL OF THE REVENUE WAS ALLOWED. 2. IT IS IN THE ABOVE CONTEXT THAT THE ASSESSEE HAS FILED THIS PETITION STATING THAT CERTAIN MISTAKES CREPT INTO T HE ORDER OF THE TRIBUNAL WHICH ARE APPARENT ON FACE OF RECORDS AND, THEREFORE, THOSE MISTAKES HAVE TO BE RECTIFIED. 3. SHRI N.DEVANATHAN, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE POINTED OUT THE MISTAKES APPARENT FROM TH E RECORDS AS FOLLOWS : (I) THE FACTS OF THE PRESENT CASE AND THE FACTS OF THE CASE CONSIDERED BY THE HONBLE SUPREME COURT IN THE CASE OF SMT. INDRANI BAI REPORTED IN 200 ITR 594 ARE FUNDAMENTAL LY DIFFERENT INASMUCH AS THE HOLDING PERIOD OF THE ASSET. IN TH E PRESENT CASE, HOLDING PERIOD IS A PERIOD OF LONG 7 YEARS, W HEREAS IN THAT CASE THE HOLDING PERIOD WAS A FEW MONTHS, WHIC H CLEARLY GOES TO SHOW THE DIFFERENCE BETWEEN THE INVESTMENT AND BUSINESS. (II) AT THE TIME OF HEARING OF THE APPEAL, THE ASSE SSEE HAD FILED UNREPORTED DECISION OF THE HONBLE JURISIDICTIONAL HIGH COURT RENDERED IN THE CASE OF CIT V. S. PALANICHAMY DISPO SED OF BY THEIR LORDSHIPS ON 8.8.2011 IN TAX CASE(APPEAL) NO. 232 OF MA 45/12 :- 3 -: 2005. THE SAID DECISION OF THE HONBLE JURISDICTIO NAL HIGH COURT SQUARELY APPLIES TO THE PRESENT CASE. BUT TH IS CASE WAS NOT AT ALL CONSIDERED BY THE TRIBUNAL WHILE PASSING THE ORDER. (III) LIKEWISE, THE ASSESSEE HAS PLACED RELIANCE ON ANOTHER ORDER OF THE TRIBUNAL RENDERED BY THE TRIBUNAL D BENCH IN THE CASE OF SMT. N. KAASIVISALAM V. ACIT (93 TTJ 537), WHICH CASE ALSO WAS NOT CONSIDERED BY THE TRIBUNAL, AT TH E TIME OF HEARING OF THE APPEAL. 4. THE LEARNED COUNSEL SUBMITTED THAT NON-CONSIDERA TION OF CASE LAWS CITED BY THE PARTIES, AT THE TIME OF HEAR ING IS A MISTAKE APPARENT FROM THE RECORDS. THEREFORE, IT IS SUBMIT TED THAT THE ORDER OF THE TRIBUNAL DATED 30.1.2012 MAY BE RECALL ED AND THE APPEAL MAY BE HEARD AND DISPOSED OF ON MERITS. 5. SHRI SHAJI P. JACOB, THE LEARNED COMMISSIONER AP PEARING FOR THE REVENUE, ON THE OTHER HAND, CONTENDED THAT THE TRIBUNAL HAS CONSIDERED ALL THE FACTS AND CIRCUMSTANCES OF T HE CASE AND HAS COME TO A CONSCIOUS CONCLUSION THAT THE ASSESSE E WAS IN FACT, DOING BUSINESS AND THEREFORE, SURPLUS ON SALE OF LAND SHOULD BE TREATED AS BUSINESS INCOME. HE INVITED OUR ATTE NTION TO THE DISCUSSIONS MADE BY THE TRIBUNAL IN PAGE 4 OF THE O RDER WHEREIN MA 45/12 :- 4 -: THE FACTS OF THE CASE HAVE BEEN EXAMINED IN DETAIL. THEREFORE, HE SUBMITTED THAT THE PETITION FILED BY THE ASSESSEE I N FACT, SEEKS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL AND THE PETITION IS LIABLE TO BE DISMISSED. 6. WE HEARD BOTH SIDES IN DETAIL. 7. A COPY OF THE UNREPORTED JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. S. PALANICHAMY IS AVAILABLE ON RECORDS. LIKEWISE, COPY OF THE TRIBUN AL ORDER IN SMT. SMT. N. KAASIVISALAM V. ACIT (93 TTJ 537) IS ALSO A VAILABLE ON RECORDS. ON GOING THROUGH THE ORDER PASSED BY THE TRIBUNAL ON 30.1.2012, WE FIND THAT THOSE CASES HAVE NOT BEEN C ONSIDERED BY THE TRIBUNAL WHILE PASSING THE ORDER. NON-CONSIDER ATION OF THE DECISION OF THE HIGH COURT, CITED AT THE TIME OF HE ARING OF APPEAL, IS A MISTAKE APPARENT FROM THE RECORDS. THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CASE, WE HOLD THAT A MISTAKE IS APPARENT ON THE FACE OF THE ORDER INASMUCH AS IN NOT CONSIDERIN G RELEVANT CASE LAWS RELIED ON BY THE PARTY, AT THE TIME OF HEARING . AS THE CASE LAWS RELIED ON BY THE ASSESSEE GO TO THE ROOT OF TH E ISSUE AGITATED IN THE APPEAL, THERE IS NO SCOPE FOR PIECEMEAL REC TIFICATION OF ERROR REFLECTED IN THE TRIBUNAL ORDER. THEREFORE, IT IS NECESSARY FOR US TO RECALL THE ENTIRE ORDER AND CONSIDER THE CASE AFRESH IN THE MA 45/12 :- 5 -: LIGHT OF THE RELEVANT CASE LAWS. HENCE, THE ORDER OF THE TRIBUNAL DATED 30.1.2012 PASSED IN ITA NO.1491/MDS/2010 IS R ECALLED AND REMITTED ON THE ROLLS OF THE TRIBUNAL FOR FRESH HEA RING AND DISPOSAL ON MERITS. THE APPEAL IS POSTED FOR HEARING TO 25 TH JULY, 2012. PARTIES MAY TAKE NOTICE. 8. IN RESULT, THIS MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON FRIDAY, THE 8 TH OF JUNE, 2012 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 8 TH JUNE, 2012 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR