MOHD. ATIQUE, Bhopal V. THE ACIT 3(1), Bhopal

MA 69/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2406 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-09-2020
• Assessment Year: 2003-2004
• Appeal Filed On: 21-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GIRISH AGRAWAL; NISHA LAHOTI A RS
• Keywords: Additional evidence; Question of law; Set aside
• Section: 143(3); 153A; 274; 143(2); 13; 153; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NOS.67 TO 73/IND/2019 (ARISING OUT OF IT(SS)A NO.30 TO 36/IND/2016) ASSESSMENT YEAR: 2001-02 TO 2007-08 MOHD. ATIQUE SHAFIQUE VILLA, BUNGLOW NO.7, AHMEDABAD PALACE ROAD, BHOPAL / VS. A C IT - 3 (1) BHOPAL ( APPELLANT ) ( RE VENUE ) P.A. NO. AGWPA6383N APPELLANT BY SHRI GIRISH AGRAWAL , & MISS NISHA LAHOTI, ARS RE VENUE BY SHRI ASHISH PORWAL , SR. D R DATE OF HEARING: 18.09.2020 DATE OF PRONOUNCEMENT: 26.11.2020 / O R D E R PER KUL BHARAT, J.M: THESE MISC. APPLICATIONS BY ASSESSEE SEEKING FOR RE CALLING OF THE ORDER OF THE TRIBUNAL DATED 30.04.2019 PASSED I N IT(SS)A NOS.30 TO 36/IND/2016 PERTAINING TO ASSESSMENT YEAR S 2001-02 TO 2007-08. MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 2 2. THE CONTENTION OF THE ASSESSEE IN THE MISC. APPL ICATION AND THE SUBMISSIONS MADE BY THE ASSESSEE ARE REPRODUCED AS UNDER; ASSESSEE SUBMITS THAT FOLLOWING SUBMISSION MAY PLEA SE BE CONSIDERED AS A SUMMARY FOR ALL THE SEVEN MISCELLAN EOUS APPLICATIONS FILED FOR AY 2001-02 TO 2007-08. A. COMMON TO ALL SEVEN YEARS I.E. A.Y. 2001-02 TO 2007 -08 1. COMPUTATION OF AGRICULTURAL INCOME EARNED FROM LEAS EHOLD AGRICULTURE LAND - A. MANNER OF COMPUTING AGRICULTURAL INCOME FROM LEASE HOLD LAND AS DIRECTED BY HONBLE CO-ORDINATE BENCH IN TH E FIRST ROUND OF APPELLATE PROCEEDINGS VIZ A VIZ ORDER OF T HE HONBLE BENCH IN THE IMPUGNED ORDER SR. NO. PARTICULARS AS PER IMPUGNED ORDER BY THE HONBLE BENCH, DATED 30.04.2019 AS PER THE ORDER OF HONBLE BENCH DATED 31.01.2013 1 COMPUTATION OF AGRICULTURAL INCOME FROM OWNED LAND RS.6000 PER ACRE [PAGE 4 PARA 4] RS. 6000 PER BIGHA. THIS RATE PER BIGHA HAS BEEN ACCEPTED BY THE DEPARTMENT AND NOT IN DISPUTE. [PAGE 17 OF IMPUGNED ORDER] 2 FINDING OF FACT ARRIVED AT BY THE AUTHORITIES BELOW A. AGRICULTURAL ACTIVITIES ON LEASE HOLD LAND NOT SUPPORTED BY CREDIBLE EVIDENCE. LD. AO WAS DIRECTED [PAGE 17] A. TO CONSIDER ADDITIONAL EVIDENCES MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 3 B. EVIDENCES FURNISHED ARE NOT SUFFICIENT TO COME TO A CONCLUSION THAT ASSESSEE IS CARRYING OUT AGRICULTURAL ACTIVITY AT LEASE HOLD LAND. THESE EVIDENCES WERE FURNISHED BEFORE LD. CIT(A) IN FIRST ROUND OF APPELLATE PROCEEDINGS. [PAGE 16 3 RD LINE FROM START]. FILED BEFORE LD. CIT(A). B. DETERMINE TOTAL LAND TAKEN ON LEASE C. ALLOW DEDUCTION ON LEASE RENTAL D. TO COMPUTE AGRICULTURAL INCOME OUT OF SUCH LEASE HOLD LANDS 2. CLAIM OF AGRICULTURAL INCOME EARNED FROM LEASE HOLD LAND HAS NOT BEEN ADDRESSED BY THE AUTHORITIES IN ACCORDANCE TO THE DIRECTION GIVEN BY HONBLE COORDINATE BENCH IN THE FIRST ROUND OF APPEAL SR. NO. BASIS ON WHICH ADVERSE VIEW TAKEN DESPITE SPECIFIC DIRECTION GIVEN BY THE HONBLE BENCH IN ITS FIRST ORDER FINDING OF LD. AO AND LD. CIT(A) REMARKS/CLAIM OF ASSESSEE 1 COLUMN NO. 4 OF KHASRA LD. AO & LD. CIT(A): NAME OF ASSESSEE IS NOT REASON SUBMITTED BEFORE LD. CIT(A) MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 4 APPEARING IN COLUMN 4 OF KHASRA THEREBY LAND HAS NOT BEEN GIVEN ON LEASE AS PER GOVERNMENT RECORDS. ADDITION SUSTAINED. CIT(A) ORDER PAGE 5 LAST PARA IT CAN CREATE A RIGHT OF POSSESSION AS A MOURUSI KASTKAR U/S 168 RWS 187 OF THE LAND REVENUE CODE, 1959 IN FAVOUR OF LESSEE. THERE ARE ALSO DEPARTMENTAL INSTRUCTIONS THAT PATWARIS WILL NOT ENTER NAME OF LEASE HOLDER IN COLUMN 4 OF KHASRA 2 LEASE AGREEMENTS LD. AO: LEASE DEEDS ARE ON PLAIN PAPER WITH NO STAMP ON THEM AND IT APPEARS THAT THEY HAVE BEEN SIGNED IN ONE HAND WRITING. LD. CIT(A): LEASE DEEDS ARE ON PLAIN PAPER FILED AS ADDITIONAL EVIDENCE CANNOT BE ACCEPTED AS GOOD EVIDENCE TO PROVE THE CLAIM OF AGRICULTURAL BOTH LD. AO AND LD. CIT(A) HAVE GIVEN FACTUALLY INCORRECT FINDING. LEASE AGREEMENTS ARE ON STAMP PAPER DATED TO RESPECTIVE YEARS. COPIES ALSO FURNISHED BEFORE HONBLE BENCH. [PB 51 TO 57] THERE IS NO FINDING GIVEN ON THESE FACTUAL AND VERIFIABLE RECORDS WHICH THE MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 5 INCOME EARNED FROM LEASE HOLD LAND AUTHORITIES BELOW HAVE WRONGLY STATED TO ARRIVE AT AN ADVERSE VIEW. 3 FURNISHING OF PROOF OF AGRICULTURAL ACTIVITIES BEING CARRIED OUT ON OR ANY PROOF OF SALE OF YIELD LD. AO: ASSESSEE FAILED TO FURNISH ANY PROOF TO ESTABLISH THAT AGRICULTURAL INCOME IS EARNED. LD. CIT(A): NO SUCH FINDING NO SUCH DIRECTION WAS GIVEN BY HONBLE CO- ORDINATE BENCH IN FIRST ROUND OF APPELLATE PROCEEDINGS. FINDINGS GIVEN IN THE IMPUGNED ORDER THAT AO WAS DIRECTED TO VERIFY THE CLAIM OF ASSESSEE IS NOT IN ACCORDANCE WITH DIRECTION GIVEN IN FIRST ORDER. 4 MERE EXISTENCE OF AGRICULTURAL LAND LD. AO: MERE EXISTENCE OF AGRICULTURAL LAND DOES NOT ESTABLISH THAT ACTUALLY ANY INCOME HAS BEEN GENERATED ON IT BY THE ASSESSEE LD. CIT(A): NO SUCH FINDING HONBLE COORDINATE BENCH IN THE FIRST ROUND HAS SPECIFICALLY NOTED THAT ASSESSEE IS EARNING AGRICULTURAL INCOME BOTH FROM SELF OWNED LAND AND LEASE HOLD LAND, THIS FACT IS NOT UNDER DISPUTE. LD. AO TRAVELLED BEYOND THE DIRECTION GIVEN BY HONBLE MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 6 COORDINATE BENCH DIRECTION GIVEN TO LD. AO WAS VERY SPECIFIC TO ASCERTAIN THE QUANTUM OF LEASEHOLD LAND AND COMPUTE AGRICULTURAL INCOME THEREON AFTER DEDUCTING LEASE RENT ON SUCH LEASEHOLD LAND. 3. NO REFERENCE TO THE COMPLIANCE OF DIRECTION GIVEN B Y HONBLE BENCH AND SUBMISSION THEREON ON THE ADDITIONAL GROU NDS OF APPEAL RAISED CHALLENGING THE LEGALITY/JURISDICTION WERE FILED BEFORE HONBLE BENCH DURING THE APPELLATE PROCEEDIN GS RELATING TO IMPUGNED PROCEEDINGS STATING THAT THE A DDITION WAS MADE WITHOUT REFERENCE TO ANY INCRIMINATING MAT ERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH A. LD. DR WAS DIRECTED TO FILE A REPORT FROM ASSESSING OFFICER FOR INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH IN RELATION TO THE ADDITION MADE. B. LD. DR VIDE LETTER DATED 01.02.2019 PROVIDED COPIES OF PAGE 262, 263 AND 274 TO 278 IN RESPECT OF INCRIMIN ATING MATERIAL FOUND AND SEIZED DURING THE CONDUCT OF SEA RCH OF THE ASSESSEE. C. REPLY FILED BY ASSESSEE IN RESPONSE TO ABOVE MENTIO NED LETTER I. PAGE 262 AND 263 THESE DOCUMENTS HAVE ALREADY BEE N CONSIDERED BY THE HONBLE CO-ORDINATE BENCH VIDE OR DER DATED 31.01.2013 PAGE 6 PARA 6. MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 7 CONTENT OF THESE DOCUMENTS HAVE FOLLOWING DISCREPANCIES 1. IT IS AN INCOMPLETE DOCUMENT 2. IT IS NOT SIGNED 3. IT HAS SEVERAL OVER-WRITING, SCRIBBLING AND CUTTING PAGE NO. 2 OF THIS SEIZED DOCUMENT STATED DETAILS O F MOVEABLE AND IMMOVEABLE PROPERTIES ALONG WITH AGRICULTURAL LAND II. PAGE 274 TO 278 PARTNERSHIP DEED FOR THE BUSINESS RUN UNDER THE NAME AND STYLE OF M/S. S T DEVELOPERS . ASSESSEE I.E. MOHD. ATIQUE IS NOT A PARTY TO THIS D EED AND HENCE THE DOCUMENT NEITHER BELONGS TO NOR PERTA INS TO HIM D. NO REFERENCE HAS BEEN MADE IN THE IMPUGNED ORDER ON THE ABOVE MENTIONED POINTS RELATING TO CALLING OF REPOR T BY HONBLE BENCH, REPORT SUBMITTED BY LD. AO AND THE SUBMISSIONS MADE BY ASSESSEE. B. RELATING TO A.Y. 2002-03 TO 2007-08 1. REFERENCE TO PARA IN THE IMPUGNED ORDER ON THE BASI S OF WHICH FINDING HAS BEEN GIVEN FOR DISPOSAL OF APPEAL S A.Y. 2002-03 TO 2007-08 WHILE DISPOSING APPEAL THE ABOVE MENTIONED SIX APPE ALS, REFERENCE HAS BEEN MADE TO PARA 14 OF THE IMPUGNED ORDER. IN PARA 14 OF THE IMPUGNED ORDER ADDITIONAL GROUNDS OF APPEAL RAISED BY ASSESSEE ARE REJECTED. CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE AND DOCUMENTS ON RECORD, IT IS SUB MITTED THAT THE AFORESAID MISTAKES ARE THE MISTAKES APPARE NT FROM RECORD WHICH GOES TO THE ROOT OF MATTER AND THEREFO RE IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE, TH E SAID ERRORS BE RECTIFIED AND CONSEQUENTIAL EFFECT BE GIVEN. IN THE ALTERNATE, THE IMPUGNED ORDER MAY PLEASE BE RECALLED AND HEARI NG BE FIXED. MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 8 AT THE COST OF REPETITION AND FOR THE EASE OF REFER ENCE, FOLLOWING SUBMISSION IS MADE IN ADDITION TO THE SUMMARY OF AL L THE MAS ALREADY PLACED ON RECORD. 1. INSTANT PROCEEDINGS ARE THE SECOND ROUND OF APPEAL BEFORE THE HONBLE ITAT BENCH OF INDORE. 2. THE ASSESSMENT WAS COMPLETED U/S 143(3) RWS 153A AN D 254. 3. DURING THE SECOND ROUND OF APPELLATE PROCEEDINGS BE FORE HONBLE BENCH, ADDITIONAL GROUNDS CHALLENGING THE L EGALITY / JURISDICTION WERE FILED. 4. HONBLE BENCH REJECTED THE ADMISSION OF THESE ADDIT IONAL GROUNDS OF APPEAL VIDE PARA 14 PAGE 25 BY STATING T HAT THE ASSESSEE WAS HAVING SUFFICIENT TIME AND OPPORTUNITY TO RAISE THIS GROUND. IT IS HELD THAT RAISING ADDITIONAL GRO UNDS AT SUCH A BELATED STAGE WHEN HONBLE BENCH IN ITS EARLIER O RDER HAD SET ASIDE THE ASSESSMENT BY GIVING CERTAIN DIRECTIO NS WOULD NOT BE OPEN FOR THE ASSESSEE TO AGITATE THE LEGALIT Y OF THE ASSESSMENT. 5. REJECTING THE ADMISSION OF LEGAL ADDITIONAL GROUNDS BY HOLDING THAT THE ASSESSEE RAISED THEM AT A BELATED STAGE IS A MISTAKE APPARENT FROM RECORD WHEN THERE IS A DIRECT DECISION DEALING WITH THE SUBJECT MATTER BY THE HONBLE JURI SDICTIONAL HIGH COURT OF MADHYA PRADESH IN THE CASE OF NANDLAL SACHDEVA [2012] 19 ITJ 361 ORDER PRONOUNCED ON 06.03.2012 7. THE TRIBUNAL ALLOWED THE CONTENTION OF THE ASS ESSEE FOR RAISING THE LEGAL ISSUE, BUT REMANDED THE MATTER TO THE CIT(APPEALS) TO CONSIDER THE AFORESAID LEGAL ISSUE. 8. IN THIS APPEAL THE SOLE CONTENTION OF THE APPEL LANT BEFORE THIS COURT IS THAT IN PLACE OF REMAND, THE TRIBUNAL ITSELF OUGHT TO HAVE ADVERTED ITSELF TO THE LEGAL ISSUE AND REMA ND IN THE MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 9 MATTER WAS NOT REQUIRED. WHILE THE LEARNED COUNSEL FOR REVENUE SUPPORTED THE REMAND ORDER. IN THIS CASE, A S PER THE FINDINGS RECORDED BY THE TRIBUNAL IN PARA 10 OF THE ORDER, WE FIND THAT ALL THE FACTS WERE BEFORE THE TRIBUNAL AN D THE TRIBUNAL IN THIS PARA SPECIFICALLY HAVE RECORDED TH IS FACT. WHEN ALL THE FACTS FOR DECIDING THE LEGAL ISSUE WER E ALREADY ON RECORD, IN THE AFORESAID CIRCUMSTANCES, WHETHER THE TRIBUNAL COULD HAVE REMANDED THE MATTER OR OUGHT TO HAVE DECIDED THE MATTER ITSELF IS TO BE SEEN. [EMPHASIS SUPPLIED] 12. IN THIS CASE A PURE LEGAL ISSUE WAS BEFORE THE TRIBUNAL AND THE TRIBUNAL ITSELF HAS RECORDED THAT ALL THE F ACTS ARE ALREADY ON RECORD, THEN IN THE AFORESAID CIRCUMSTAN CES, THE TRIBUNAL ITSELF OUGHT TO HAVE DECIDED THE MATTER IT SELF. 13. APART FROM THIS, THE MATTER RELATES TO THE ASS ESSMENT YEAR 2000-01. EARLIER THE MATTER WAS REMANDED BY TH E TRIBUNAL VIDE ANNEXURE A-4 ON 3.6.2008 AND A SUFFIC IENT PERIOD HAS ELAPSED IN THE PROCEEDINGS AND AT HIS J UNCTURE IF THE MATER IS REMANDED TO DECIDE THE AFORESAID LEGAL ISSUE, THEN IT WILL BE THE ANOTHER ROUND OF LITIGATION. TO SAVE TIME, MONEY AND ENERGY, IT WOULD BE APPROPRIATE IF THE TR IBUNAL IS DIRECTED TO DECIDE ON THE AFORESAID LEGAL ISSUE. [E MPHASIS SUPPLIED] 6. IN THE ABOVE REFERRED DECISION, HONBLE JURISDICTIO NAL ITAT INDORE BENCH IN THE CASE OF NANDLAL SACHDEVA [201 1] 18 ITJ 846 HELD PARA 10 THE ISSUE WITH REGARD TO LEGALITY OF PRO CEEDINGS UNDERTAKEN U/S 154 AFTER ISSUE OF NOTICE U/S 143(2) IS A PURELY LEGAL ISSUE CAN BE RAISED AT ANY STAGE. THIS ISSUE WAS NOT RAISED BY THE ASSESSEE IN THE FIRST ROUND OF AP PEAL EITHER BEFORE THE CIT(A) OR BEFORE THE TRIBUNAL. [EMPHASIS SUPPLIED] THE STAGE REFERRED IN THE FINDING GIVEN IS ANY STA GE. THE ADDITIONAL GROUND OF LEGAL NATURE WERE ADMITTED BY THE HONBLE ITAT INDORE BENCH WHICH WERE THEN REMANDED TO CIT(A) FOR ADJUDICATION. THUS, ADMISSION OF ADDITIO NAL GROUND MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 10 OF LEGAL NATURE IN THE SECOND ROUND OF LITIGATION W AS DONE BY THE HONBLE ITAT INDORE BENCH IN THIS CASE. THE ISSUE RELATING TO SETTING ASIDE OF THESE ADMITT ED ADDITIONAL LEGAL GROUND TO CIT(A) WAS CHALLENGED BE FORE THE HONBLE JURISDICTIONAL MP HIGH COURT THAT THESE OUG HT TO HAVE BEEN DECIDED BY THE ITAT BENCH ITSELF RATHER THAN R EMANDING IT TO CIT(A) FOR ANOTHER ROUND OF LITIGATION. HONB LE MP HIGH COURT HELD IN FAVOUR OF THE ASSESSEE AS QUOTED ABOV E. 7. SIMILAR VIEW HAS BEEN TAKEN BY HONBLE JURISDICTION AL MP HIGH COURT IN THE CASE OF TURQUOISE INVESTMENT & FI NANCE LIMITED [2006] 154 TAXMAN 80 ORDER PRONOUNCED O N 28.03.2006 PARA 16 THE PURPOSE OF ASSESSMENT PROCEEDINGS BE FORE THE TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAX L IABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. IF, FOR EXAMPLE, A S A RESULT OF JUDICIAL DECISION GIVEN WHILE THE APPEAL IS PEND ING BEFORE THE TRIBUNAL, IT IS FOUND THAT A NON-TAXABLE ITEM I S TAXED OR A PERMISSIBLE DEDUCTION IS DENIED, THERE IS NO REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING THAT QUES TION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THE ITEM. WE A RE, THEREFORE, OF THE CONSIDERED VIEW THAT BOTH QUESTIO N NO. 3 AND NO. 4 IN THE DEPARTMENT'S APPEAL DESERVE TO BE ANSW ERED AGAINST THE DEPARTMENT. IN VIEW OF THE WIDE POWERS THAT THE TRIBUNAL IS INVESTED WITH, AS CLEARLY REFERRED TO A ND SPELT OUT BY THEIR LORDSHIPS IN THEIR DECISION IN NATIONAL TH ERMAL POWER CO. LTD.'S CASE (SUPRA), THE TRIBUNAL CANNOT BE PRECLUDED FROM CONSIDERING THE QUESTIONS OF LAW ARI SING IN AN ASSESSMENT PROCEEDING NOT RAISED EARLIER, AND RESTR ICTED TO ISSUES ARISING OUT OF APPEAL BEFORE THE COMMISSIONE R. [EMPHASIS SUPPLIED] 8. LD. DR RELIED ON THE DECISION OF HONBLE MP HIGH CO URT IN THE CASE OF TOLLARAM HASSOMAL [2006] 153 TAXMAN 532 (MP ) DATED 10.03.2006. MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 11 THE DISTINGUISHING FEATURES OF THE THREE DECISIONS OF THE HONBLE MP HIGH COURT ON THIS ASPECT ARE TABULATED BELOW FOR READY REFERENCE S. NO. PARTICULARS TOLLARAM HASSOMAL (SUPRA) TURQUOISE INVESTMENT & FINANCE LIMITED (SUPRA) NANDLAL SACHDEVA (SUPRA) 1. HIGH COURT MADHYA PRADESH MADHYA PRADESH MADHYA PRADESH 2. DATE OF ORDER 10.03.2006 28.03.2006 06.03.2012 3. QUORUM OF HONBLE JUDGES A) JJ. SHRI A.M. SAPRE B) JJ. SHRI ASHOK KUMAR TIWARI A) JJ. SHRI S.K. KULSHRESTHA B) JJ. SHRI ASHOK KUMAR TIWARI A) JJ. SHRI KRISHNA KUMAR LAHOTI B) JJ. SMT. VIMLA JAIN 4. AUTHOR JJ. SHRI A.M. SAPRE C) JJ. SHRI S.K. KULSHRESTHA 5. APPELLANT DEPARTMENT (DCIT) DEPARTMENT (CIT) ASSESSEE 6. SUBSTANTIAL QUESTION OF LAW ADDITIONAL SUBSTANTIAL QUESTION OF LAW FRAMED BY THE HONBLE COURT. OTHER ISSUES RAISED BY THE APPELLANT NOT EXAMINED. RAISED BY THE DEPARTMENT RAISED BY THE ASSESSEE 7. ISSUE ADDRESSED IN THE DECISION ADDITIONAL GROUND OF LEGAL NATURE RAISED IN THE FIRST ROUND OF LITIGATION ADDITIONAL GROUND OF LEGAL NATURE RAISED IN THE FIRST ROUND OF LITIGATION ADDITIONAL GROUND OF LEGAL NATURE RAISED IN THE SECOND ROUND OF LITIGATION MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 12 9. THE ANALYSIS TABULATED ABOVE ADEQUATELY FORTIFIES T HE CASE OF THE APPELLANT WHO STRONGLY RELIES ON THE LATER DECI SION IN THE CASE OF NANDLAL SACHDEVA (SUPRA). 10. ADDITIONAL GROUNDS OF APPEAL BEING LEGAL GROUNDS ON FUNDAMENTAL ISSUE OF REFERENCE TO INCRIMINATING MAT ERIAL FOUND DURING THE COURSE OF SEARCH FOR THE PURPOSE O F MAKING ADDITION AND GOES THE ROOT OF MATTER AND HENCE OUGH T TO HAVE BEEN ADJUDICATED CONSIDERING THE DECISION OF HONBL E JURISDICTIONAL MP HIGH COURT IN THE CASE OF NANDLAL SACHDEVA (SUPRA) AND TURQUOISE INVESTMENT & FINANCE LIMITED (SUPRA). 11. FOR THE APPLICATION OF JUDICIAL DISCIPLINE, RELIANC E IS PLACED ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T OF MADHYA PRADESH IN THE CASE OF AGRAWAL WAREHOUSING & LEASING LTD. [2002] 124 TAXMAN 440 ORDER PRONOUNC ED ON 11.07.2002 PARA 8 OBVIOUSLY, THE COMMISSIONER (APPEALS) NOT ONLY COMMITTED JUDICIAL IMPROPRIETY BUT ALSO ERRED IN LA W IN REFUSING TO FOLLOW THE ORDER OF THE TRIBUNAL. EVEN WHERE HE MAY HAVE SOME RESERVATIONS ABOUT THE CORRECTNESS OF THE DECISION OF THE TRIBUNAL, HE HAD TO FOLLOW THE ORDE R. HE COULD AND SHOULD HAVE LEFT IT TO THE DEPARTMENT TO TAKE T HE MATTER IN FURTHER APPEAL TO THE TRIBUNAL AND GET THE MISTAKE, IF ANY, RECTIFIED. [EMPHASIS SUPPLIED] PARA 9 ' THE LEARNED MEMBERS OF THE TRIBUNAL WHO DECIDED THE APPEAL UPHOLDING THE VIEW TAKEN BY THE COMMISSI ONER (APPEAL) ALSO DID NOT OBSERVE THE DUE PROCEDURE AS LAID DOWN BY VARIOUS JUDICIAL PRONOUNCEMENTS. IT IS SIGNIFICA NT TO NOTE THAT THE DECISION IN THE CASE OF ARIHANT BUILDERS, DEVELOPERS & INVESTORS (P.) LTD. (SUPRA ) WAS RENDERED BY THE SAME BENCH OF THE TRIBUNAL COMPRISING OF THE SAME MEMBER S WHO DECIDED THE APPEAL GIVING RISE TO THIS REFERENCE. T HE LEARNED MEMBERS TOOK UPON THEMSELVES TO OVER-RULE THEIR OWN JUDGMENT IN THE CASE OF ARIHANT BUILDERS, DEVELOPER S & INVESTORS (P.) LTD. (SUPRA). THIS AGAIN IN OUR OPIN ION WAS NOT PROPER. IN PARA 21 OF THEIR ORDER, THE LEARNED MEMB ERS HAVE MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 13 REFERRED TO CERTAIN DECISIONS OF THE SUPREME COURT WHEREIN THE APEX COURT HAS UNDERTAKEN REVIEW OF ITS OWN EAR LIER DECISIONS. HOWEVER, THE LEARNED MEMBERS SEEM TO HAV E MISSED THE POINT THAT THE REVIEW WAS UNDERTAKEN BY LARGER BENCH. THE LEGAL POSITION ON THE POINT IS MADE LUCU LENT BY THE SUPREME COURT IN THE CASE OF PRADIP CHANDRA PARIJA V. PRAMOD CHANDRA PATNAIK [2002] 254 ITR 99 IN FOLLOWI NG TERMS :- JUDICIAL DISCIPLINE AND PROPRIETY DEMANDS THAT A BE NCH OF TWO JUDGES OF THE SUPREME COURT SHOULD FOLLOW A DECISION OF A BENCH OF THREE JUDGES. IF THE BENCH OF TWO JUD GES CONCLUDES THAT AN EARLIER JUDGMENT OF A BENCH OF TH REE JUDGES IS SO VERY INCORRECT THAT IN NO CIRCUMSTANCES CAN I T BE FOLLOWED, THE PROPER COURSE FOR THE BENCH OF TWO JU DGES TO ADOPT IS TO REFER THE MATTER BEFORE IT TO A BENCH O F THREE JUDGES, SETTING OUT THE REASONS WHY IT COULD NOT AG REE WITH THE EARLIER JUDGMENT. IF, THEN, THE BENCH OF THREE JUDGES ALSO COMES TO THE CONCLUSION THAT THE EARLIER JUDGMENT O F A BENCH OF THREE JUDGES IS INCORRECT, REFERENCE TO A BENCH OF FIVE JUDGES IS JUSTIFIED. (P.99) CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE, DOCUMENTS ON RECORD AND JUDICIAL PRECEDENCE, MISCELLANEOUS APPLICATIONS OF THE ASSES SEE BE ALLOWED. 3. PER CONTRA LD. DR OPPOSED THESE SUBMISSIONS AND SUBMITTED THAT THE SUBMISSIONS OF THE ASSESSEE ARE BEYOND THE SCOPE OF SECTION 254 OF THE ACT. HE SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORDS. HE FURTHER SUBMITTED IF THE PRAYER OF THE ASSESSEE IS ALLOWED IT WOULD TANTAMOUNT TO REVIEWIN G OF THE ORDER WHICH IS NOT PERMISSIBLE UNDER THE LAW. HE SUBMITTE D THAT MISC. APPLICATIONS FILED BY THE ASSESSEE ARE LIABLE TO BE DISMISSED HAVING NO MERITS. MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 14 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORDS AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. ADMITTEDLY, THE JUDGMENTS OF THE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF NANDLAL SACHDEVA (2012) 19 ITJ 361 WAS NOT BROUGHT TO NOTICE OF THIS TRIBUNAL. IT IS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT THERE ARE TWO CONFLICTING JUDGMENTS OF T HE HON'BLE JURISDICTIONAL HIGH COURT. IT IS FURTHER PO INTED OUT THAT THE JUDGMENT IN THE CASE OF NANDLAL SACHDEVA (SUPRA) IS A LATER JUDGMENT. CONSIDERING THE FACTS THAT THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT WAS NOT BROUGHT TO OUR NOTICE AT THE TIME OF PASSING OF ORDER WHICH IS SUBSEQUENTLY, BROUGHT TO OUR NOTICE, THEREFORE, W E RECALL OUR ORDER IN RESPECT OF THE ADDITIONAL GROUNDS TAKEN B Y THE ASSESSEE. FURTHER, THE ASSESSEE HAS ALSO POINTED OUT TH AT IN EARLIER ROUND OF LITIGATION THE TRIBUNAL HAD DIRECTED TO COMPUTE AGRICULTURAL INCOME @ OF RS. 6,000/- AND ALSO T HE INCOME EARNED FROM LEASEHOLD AGRICULTURAL LANDS WAS ALSO NOT DECIDED. CONSIDERING MATERIAL AVAILABLE ON RECORDS WE DEEM IT PROPER THAT BOTH ISSUES REQUIRE THE DECISION AS HAVE NOT BEEN ADDRESSED IN THE ORDERS, SOUGHT TO BE RECTIFIED, WHICH IS A MISTAKE APPARENT FROM RECORDS. THEREFORE, WE RECALL OUR ORDER DATED MOHD. ATIQUE /MANOS.67 TO 73/IND/2019 15 30.04.2019 TO THE EXTENT OF DECIDING AFOREMENTIONED ISSUES AND REGISTRY IS DIRECTED TO FIX THE APPEALS FOR HEARING ON 18.01.2021. 5. IN THE RESULT, MISC. APPLICATIONS FILED BY THE AS SESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26 .11. 2020. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 26/ 11/2020 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE