Sri.N.V.George, Trichur V. DCIT, Thrissur

MA 88/COCH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0804 (ITAT-COCHIN)
• Duration Of Justice: 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 29-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA

Judgement Text

1 NA NO.88/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.P. 88/COCH/2013 (ARISING OUT OF I.T.A NO. 266/COCH/2012) (ASSESSMENT YEAR 2009-10) SHRI N.V. GEORGE VS DY.CIT, CENT.CIR. 25/180, GEO BHAVAN THRISSUR CHALAKKUDY PAN : AOAPG4670G (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ANIL D NAIR RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 23-08-2013 DATE OF PRONOUNCEMENT : 23-08-2013 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE PRESENT MISCELLANEOUS PETIT ION ON THE GROUND THAT THIS TRIBUNAL HAS NOT DISPOSED OF GROUNDS RAIS ED BY THE ASSESSEE IN GROUNDS NO.C,D & F. 2. ACCORDING TO THE LD.COUNSEL, THE NON CONSIDERATI ON OF THE SPECIFIC GROUNDS RAISED BY THE ASSESSEE IN GROUNDS C,D,&F IS AN ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. THE LD.COUNS EL FURTHER POINTED OUT THAT WHEN THE ASSESSING OFFICER ESTIMATED THE SALE CONSIDERATION AT THE 2 NA NO.88/COCH/2013 TIME OF SALE OF PROPERTY, HE OUGHT TO HAVE ESTIMATE D THE SALE CONSIDERATION AT THE TIME OF PURCHASE ALSO. HOWEVER, ACCORDING T O THE LD.COUNSEL, THE ASSESSING OFFICER HAS ESTIMATED ONLY THE SALE CONSI DERATION AT THE TIME OF SALE OF THE PROPERTY AND NOT AT THE TIME OF PURCHAS E. THEREFORE, THESE GROUNDS RAISED BY THE ASSESSEE NEED TO BE DISPOSED OF. WE HEARD, SMT. S VIJAYAPRABHA, THE LD.DR ALSO. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THIS TRI BUNAL AT THE TIME OF DISPOSAL OF THE APPEAL FOUND THAT THE INTENTION OF THE ASSESSEE WAS TO DO BUSINESS IN REAL ESTATE, THEREFORE, THE PROFIT AROS E ON SALE OF THE LAND HAS TO BE ASSESSED AS BUSINESS PROFIT. HOWEVER, THIS TRIB UNAL HAS NOT CONSIDERED THE ISSUE OF ESTIMATION OF PURCHASE PRICE WHICH WAS SPECIFICALLY RAISED BY THE ASSESSEE IN GROUNDS NO.C,D&F OF THE GROUNDS OF APPEAL. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE NON CONSIDERATION OF THE GROUNDS OF APPEAL IS AN ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN GROUNDS NO.C,D&F NEED TO BE DISPOSED OF. THEREFORE, THE AP PEAL OF THE ASSESSEE IS REOPENED ONLY FOR THE PURPOSE OF CONSIDERING THE GROUNDS RAISED AT C,D&F OF GROUNDS OF APPEAL. IT IS MADE CLEAR THAT THE OTHER PART OF THE ORDER OF THE TRIBUNAL DATED 24-05-2013 REMAINS AS S UCH. 3 NA NO.88/COCH/2013 4. THE REGISTRY IS DIRECTED TO POST THE APPEAL OF T HE ASSESSEE FOR HEARING GROUNDS NO.C,D&F OF GROUNDS OF APPEAL ON 17 -09-2013. SINCE THE DATE OF HEARING IS ANNOUNCED IN THE PRESENCE OF BOTH THE PARTIES, THERE IS NO NEED FOR ISSUING NOTICE OF HEARING TO EITHER PARTY. IN OTHER WORDS, THE COPY OF THIS ORDER SHALL BE TREATED AS NOTICE OF HE ARING. 5. WITH THE ABOVE OBSERVATIONS, THE MISCELLANEOUS P ETITION OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD AUGUST, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 23 RD AUGUST, 2013 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH