The Asst. Commissioner of Income Tax, Circle 8(1), Hyderabad v. M/s. Konde Anjaiah (HUF), Hyderabad

ITA 455/HYD/2011 | 2007-2008
Pronouncement Date: 10-02-2012 | Result: Allowed

Appeal Details

RSA Number 45522514 RSA 2011
Assessee PAN BHPPK7024R
Bench Hyderabad
Appeal Number ITA 455/HYD/2011
Duration Of Justice 10 month(s) 23 day(s)
Appellant The Asst. Commissioner of Income Tax, Circle 8(1), Hyderabad
Respondent M/s. Konde Anjaiah (HUF), Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 10-02-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 10-02-2012
Assessment Year 2007-2008
Appeal Filed On 18-03-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH HYDERABAD BEFORE CHANDRA POOJARI ACCOUNTANT MEMBER & SMT. ASHA VIJAYARAGHAVAN JUDICIAL MEMBER ITA NO. 455/HYD/2011 ASSESSMENT YEAR 2007-08 THE ACIT CIRCLE 8(1) HYDERABAD VS SHRI KONDE ANJIAH (HUF) RR DISTRICT APPELLANT RESPONDENT ITA NO. 456/HYD/2011 ASSESSMENT YEAR 2007-08 THE ACIT CIRCLE 8(1) HYDERABAD VS SHRI KONDE MALLESH (HUF) RR DISTRICT APPELLANT RESPONDENT ITA NO. 435/HYD/2011 ASSESSMENT YEAR 2007-08 THE ACIT CIRCLE 8(1) HYDERABAD VS SHRI KONDE SRI SAILAM (HUF) RR DISTRICT (PAN BHPPK 7024 R) APPELLANT RESPONDENT ITA NO. 436/HYD/2011 ASSESSMENT YEAR 2007-08 THE ACIT CIRCLE 8(1) HYDERABAD VS SMT. KONDE ANJAMMA (HUF) RR DISTRICT (PAN AYWPK0259K) APPELLANT RESPONDENT ITA NO. 447/HYD/2011 ASSESSMENT YEAR 2007-08 THE ACIT CIRCLE 8(1) HYDERABAD VS SHRI KONDE SANDAIAH(HUF) RR DISTRICT (PAN BJSPK 7138 K) APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRINIVAS RESPONDENT BY : SHRI A.V. RAGHURAM ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 2 DATE OF HEARING : 1.2.2012 DATE OF PRONOUNCEMENT : 10.2.2012 ORDER PER ASHA VIJAYARAGHAVAN JM . THESE FIVE APPEALS PREFERRED BY THE DIFF ERENT ASSESSEES ARE DIRECTED AGAINST THE DIFFERENT ORDERS PASSED BY THE CIT(A) V VIJAYAWADA THEY ARE PERTAINING TO THE ASSESSMENT Y EAR 2007- 08. SINCE ISSUES INVOLVED IN THESE APPEALS ARE CO MMON IN NATURE THEY ARE CLUBBED HEARD AND DISPOSED OFF VI DE THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE ALONG WITH OTHER FAMILY MEMBERS SOLD LAND ADMEASURING 4.33 ACRES IN PEERAMCHERU VILLAGE RAJENDRA NAGAR MANDAL RR DIST RICT TO M/S PBEL PROPERTY DEVELOPMENT (INDIA) PVT. LTD. FOR A S ALE CONSIDERATION OF RS.23 64 25 000/-. IN THE ASSESSM ENT ORDER THE ASSESSING OFFICER OBSERVED THAT OUT OF THE 193 GUNTAS OF LAND 165 GUNTAS WERE RELATABLE TO FOUR HUFS OF THE KONDE FAMILY GROUP OF WHICH THE ASSESSEE IS A PART AND CO NCLUDED FOR THE DETAILED REASONS ENUMERATED IN THE ORDER THAT CAPITAL GAINS ARISING ON THE SALE OF 165 GUNTAS OF LAND WAS CLEAR LY TAXABLE IN THE HANDS OF THE FOUR HUFS. THE ASSESSEE HUF IS ON E SUCH TAXABLE ENTITY. THE ASSESSING OFFICER OBSERVED THA T THE LAND SOLD WAS LOCATED WITHIN A DISTANCE OF EIGHT KILOMETRES F ROM THE LIMITS OF THE HYDERABAD MUNICIPAL CORPORATION AND THEREFO RE WAS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 21(4) O F THE IT ACT. AS THE TRANSACTION OF SALE OF SUCH LAND ATTRACTED C APITAL GAINS AND AS NO RETURN OF INCOME HAD BEEN FILED BY THE FA MILY MEMBERS OF THE GROUP NOTICES U/S 148 OF THE ACT WE RE ISSUED. ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 3 3. THE ASSESSEE FILED A NIL RETURN ON 22.12.2009 I N HUF CAPACITY AND ADDITIONALLY A RETURN DISCLOSING TOTAL INCOME OF RS.6 68 750/- IN THE INDIVIDUAL CAPACITY ON 31.3.20 09 IN RESPECT OF THE SAME TRANSACTION. WHILE TAX LIABILITY WAS D ENIED IN HUF STATUS IN THE INDIVIDUAL RETURN INCOME DECLARED IN RESPECT OF THE SALE TRANSACTION WAS SHOWN AFTER CLAIMING STATUTORY DEDUCTIONS. 4. THE ASSESSING OFFICER DETERMINED THE ASSESSEES SHARE IN THE TOTAL LAND SOLD AT 47 GUNTAS IN FOUR DIFFERENT SURVEY NUMBERS. HE FURTHER HELD THAT ANY CAPITAL GAINS AR ISING FROM THE TRANSACTION WAS ASSESSABLE IN THE HANDS OF THE ASSESSEE IN HUF CAPACITY ONLY AFTER REJECTING THE EXPLANATION O F THE ASSESSEE THAT THE LAND BELONGED TO THE ASSESSEE IN HIS INDIV IDUAL CAPACITY. THOUGH THE ASSESSEE DENIED ANY INCOME ARISING IN TH E HANDS OF THE HUF THE ASSESSING OFFICER PROCEEDED TO DISCUSS THE COMPUTATION OF TOTAL INCOME FILED IN THE RETURN FUR NISHED IN THE INDIVIDUAL CAPACITY. AS PER THE ASSESSEE HE HAD R ECEIVED ONLY 55% SHARE OF THE SALE CONSIDERATION IN HIS INDIVIDU AL CAPACITY FROM THE SALE OF THE 47 GUNTAS OF LAND. THE CLAIM OF EXEMPTION OF RS.78 65 000/- U/S 54B OF THE ACT AND EXEMPTION OF RS.1 13 17 000/- U/S 54F OF THE ACT MADE IN THE IND IVIDUAL RETURN WAS REJECTED IN THE CURRENT PROCEEDINGS. SI MILARLY THE CLAIM OF EXEMPTION FROM CAPITAL GAINS ON TENANT LAN D WAS ALSO REJECTED. THE ASSESSING OFFICER HELD THAT THE TOTA L SALE CONSIDERATION OF RS.5 28 75 000/- FOR 47 GUNTAS OF LAND WAS ASSESSABLE IN THE ASSESSEES HANDS. AFTER REDUCING THE COST OF ACQUISITION ADOPTED AT RS.2/- PER SQUARE YARD AS ON 1.4.1981 AS PER THE INFORMATION OBTAINED FROM THE SUB REGISTRAR OFFICE THE LONG TERM CAPITAL GAIN TAXABLE WAS DETERMINED AT RS.5 28 15 969/-. ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 4 5. AGGRIEVED WITH THE ORDER OF THE ASSESSING OFFIC ER THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). DU RING THE APPEAL BEFORE THE CIT(A) ADDITIONAL GROUND WAS RA ISED BY THE ASSESSEE. THE EFFECTIVE ADDITIONAL GROUND IS AS FO LLOWS: A) THAT IN THE LIGHT OF SETTLED LEGAL POSITION AS DECIDED BY THE JURISDICTIONAL TRIBUNAL IN THE CASE OF SRINIVAS PANDIT (HUF) VS. ITO WARD 7(4) ITA NO.56/H/07 ASSESSMENT YEAR 2003-04 DATED 23.4.2010 THE JURISDICTIONAL MUNICIP ALITY WAS RAJENDRA NAGAR MUNICIPALITY AND NOT THE HYDERAB AD MUNICIPALITY AND AS RAJENDRA NAGAR MUNICIPALITY WAS NOT NOTIFIED BY THE CENTRAL GOVT. THE AGRICULTURAL LAN D IN QUESTION CANNOT BE TREATED AS CAPITAL ASSET BY TAKI NG THE DISTANCE FROM THE LIMITS OF HYDERABAD MUNICIPALITY. B) THAT THE ACTION OF THE ASSESSING OFFICER TREATIN G THE LAND IN QUESTION AS CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) (III)(B) OF THE ACT IS CONTRARY TO THE LEGAL POSITION PROPOUNDED BY THE JURISDICTIONAL TRIBUNAL HYDERABA D. 6. THE CIT(A) ADMITTED THE ADDITIONAL GROUND AND A FTER ELABORATE DISCUSSION HELD AS FOLLOWS: RESPECTFULLY FOLLOWING THE JUDICIAL PROPOSITION LA ID DOWN BY THE TRIBUNAL HYDERABAD AND THE JURISDICTIONAL TRIB UNAL IT IS HELD THAT THE AGRICULTURAL LAND CLAIMED TO AHVE BEEN SOLD BY THE ASSESSEE DOES NOT CONSTITUTE A CAPITAL ASSET WITHIN THE MEANING OF THE PROVISIONS OF SECTION 2(14) OF T HE ACT. CONSEQUENTLY SALE OF SUCH LAND DOES NOT GIVE RISE TO ANY LEVY OF TAX U/S 45 OF THE ACT. IN THE LIGHT OF THE ABOVE FINDING THAT THE LAND SOLD BY THE ASSESSEE DOES NOT GIVE RISE TO ANY TAXABLE CAPITAL GAINS THE GROUNDS RELATING TO THE ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 5 STATUS IN WHICH THE GAINS SHOULD BE ASSESSED OR THE EXTENT OF LAND SOLD BY THE ASSESSEE AND THE CONSEQUENTIAL GROUNDS RELATING TO EXEMPTIONS U/S 54B & 54F OF THE ACT ARE RENDERED REDUNDANT AND BEING ACADEMIC IN NATURE NO ADJUDICATION OF THE REST OF THE GROUNDS OF APPEAL A RE WARRANTED. THE ADDITION MADE IN THE ASSESSMENT ORD ER TOWARDS LONG TERM CAPITAL GAINS IS THEREFORE DELET ED. 7. AGGRIEVED THE DEPARTMENT IS IN APPEAL BEFO RE US AND RAISED THE FOLLOWING GROUNDS: 1. THE CIT(A) ERRED IN LAW AND FACTS IN ACCEPTING THE APPEAL OF THE ASSESSEE AND GRANTING RELIEF TO THE ASSESSEE . 2. THE CIT(A) ERRED IN HOLDING THAT THE LAND OR THE CAPITAL ASSET IN QUESTION TRANSFERRED BY THE ASSESSEE IS UN DER RAJENDRA NAGAR MUNICIPALITY WHICH IS NOT NOTIFIED BY THE CENTRAL GOVT. FOR THE PURPOSE OF TREATING THE SAME AS CAPITAL ASSET AS REQUIRED BY U/S 2(14)(III)(B) OF THE ACT 1961. 3. THE CIT(A) FAILED TO APPRECIATE THAT THE LAND OR THE CAPITAL ASSET IN QUESTION IS WITHIN THE DISTANCE OF EIGHT K ILOMETRES FROM THE MUNICIPAL LIMITS OF HYDERABAD MUNICIPAL CORPORATION WHICH IS NOTIFIED BY THE CENTRAL GOVT. UNDER NOTIFICATION. 4. THE CIT(A) ERRED IN APPRECIATING THE FACT THAT T HE LAND OR CAPITAL ASSET IN QUESTION BEING REGISTERED BY THE R AJENDRA NAGAR REVENUE AUTHORITIES DOES NOT PARTAKE THE CHAR ACTER OF THE LAND OR CAPITAL ASSET AS ENVISAGED U/S 2(14) (III)(B) OF THE ACT 1961 AS THE LAND IN QUESTION LIES WITHIN 8 ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 6 KILOMETERS DISTANCE FROM THE MUNICIPAL LIMITS OF HY DERABAD MUNICIPAL CORPORATION. 5. THE CIT(A) ERRED IN APPRECIATING THE FACT THAT T HOUGH THE LAND OR CAPITAL ASSET IN QUESTION IS SITUATED UNDER RAJENDRA NAGAR MANDAL IT IS STILL WELL WITHIN THE DISTANCE OF 8 KILOMETERS FROM THE LIMITS OF HYDERABAD MUNICIPAL CORPORATION WHICH IS NOTIFIED BY THE CENTRAL GOVT. 6. THE CIT(A) RELIED UPON THE FACT THAT THE LAND O R CAPITAL ASSET IN QUESTIONS FALLS WITHIN THE DISTANCE OF 8 K ILOMETERS FROM LIMITS OF RAJENDRA NAGAR MUNICIPALITY WHICH I S NOT NOTIFIED BY THE CENTRAL GOVT. WHILE NOT RECOGNISING THE FACT THAT THE LAND OR THE CAPITAL ASSET IN QUESTION IS W ITHIN 8 KMS. FROM THE MUNICIPAL LIMITS OF HMC WHICH IS NOTI FIED BY THE CENTRAL GOVT. AS ENVISAGED U/S 2(14)(III)(B) OF THE ACT 1961. 7. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT TH E SAID INTERPRETATION OF 2(14)(III)(B) WOULD RENDER THE IN TENTION OF THE LEGISLATION OTIOSE WHICH GIVES RISE TO A QUESTION OF LAW. 8. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI A.V. R AGHURAM SUBMITTED THAT THE ORDER OF THE CIT(A) IS INCORRECT IN AS MUCH AS THE COMMISSIONER HAS DECIDED ONLY UPON THE ADDITION AL GROUND OF APPEAL VIZ. APPLICATION OF SECTION 2(14)(III)(B ) OF THE ACT TO THE ASSESSEES CASE AND HELD THAT NO ADJUDICATION OF TH E REST OF THE GROUNDS OF APPEAL ARE WARRANTED. THE LEARNED COUNS EL FURTHER SUBMITTED THAT THE COMMISSIONER SHOULD BE DIRECTED TO ADJUDICATE ON THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE HIM IF TRIBUNAL DECIDE THE LEGAL ISSUE IN F AVOUR OF THE DEPARTMENT. ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 7 9. WE HEARD BOTH THE PARTIES AND PERUSED THE MATERI ALS AVAILABLE ON RECORD. THE ASSESSEE OBJECTED AT THE T IME OF HEARING TO THE GROUNDS RAISED BY THE REVENUE. SIMILAR ISSU E CAME UP FOR CONSIDERATION BEFORE THIS TRIBUNAL IN ITA NOS.1024 TO 1027/HYD/2011 & 4 OTHERS IN THE CASE OF GOUSIA BEGU M HYDERABAD & OTHERS. THE TRIBUNAL VIDE ITS ORDER DA TED 16 TH JANUARY 2012 HAS HELD AS FOLLOWS: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE DO NOT FIND MERIT IN THE CONTENTION OF THE ASSESSEE. THE L AND IN QUESTION GIVING RISE TO CAPITAL GAIN WAS IN FACT URBAN LAN D THOUGH AGRICULTURAL OPERATIONS HAVE BEEN CARRIED OUT ON TH EM. THE ASSESSEE PLACED BEFORE THE LOWER AUTHORITIES PAHANI PATRIKA CERTIFICATE AND DETAILS OF ELECTRICITY BILL/SLAB PA SS BOOK ETC. WE HAVE HELD ON THAT BASIS IN EARLIER PARAS THAT THE A SSESSEE DERIVED AGRICULTURAL INCOME. BUT THE QUESTION STILL REMAIN S WHETHER THE IMPUGNED LAND COME WITHIN THE MEANING OF CAPITAL A SSET. THE LAND IS SITUATED AT NARSING VILLAGE OF RAJENDRA NAG AR MANDAL R.R. DISTRICT WHICH IS WITHIN THE MUNICIPAL LIMITS OF RAJENDRA NAGAR. ACCORDING TO THE LEARNED COUNSEL FOR THE ASS ESSEE RAJENDRA MUNICIPALITY IS NOT NOTIFIED BY THE CENTRA L GOVERNMENT AND THEREFORE THE AGRICULTURAL LANDS WHICH FALL UND ER THE JURISDICTION OF THE RAJENDRA NAGAR MANDAL CANNOT BE CONSIDERED AS CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14 ) OF THE INCOME- TAX ACT. BUT THE FACT IS THAT THIS IS URBAN LAND A KIN TO THE HYDERABAD MUNICIPALITY SITUATED WITHIN 8 KM FROM TH E LOCAL LIMITS OF HYDERABAD MUNICIPAL CORPORATION. IN SIMILAR CIRC UMSTANCES THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BO LA RAMAIAH (174 ITR 154) HELD THAT THE CAPITAL GAINS ARISING OUT OF SALE OF LAND SITUATED WITHIN 8 KM OF LOCAL LIMITS OF HYDERABAD M UNICIPALITY IS LIABLE FOR TAX ON CAPITAL GAINS IRRESPECTIVE OF THE FACT WHETHER IT FALLS UNDER THE LIMITS OF RAJENDRA NAGAR MANDAL OR OTHERWISE. ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 8 FURTHER MERE FACT THAT THE LAND IN QUESTION WAS AG RICULTURAL LAND CANNOT BE A GROUND TO CLAIM FOR EXEMPTION UNDER SEC TION 2(14) OF THE ACT AS THE LAND IS SITUATED WITHIN THE LOCAL LI MITS OF HYDERABAD MUNICIPAL CORPORATION. FURTHER IT WAS HELD RECENTL Y BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SMT. ANJANA SEHGAL (SUPRA) THAT THE EXPRESSION FROM THE LOCAL LIMITS OF ANY MUNICIPALITY USED IN SECTION 2(14)(III)(B) OF THE INCOME-TAX ACT DENOTES ANY MUNICIPALITY OR MUNICIPALITY OF THE DI STRICT IN WHICH THE LAND IS SITUATED. FURTHER CAPITAL GAINS ARISI NG FROM THE TRANSFER OF AGRICULTURAL LAND SITUATED IN MUNICIPAL OR OTHER URBAN AREAS OR NOTIFIED ADJOINING AREAS WILL BE LIABLE TO INCOME-TAX. IN THIS VIEW OF THE MATTER AND CONSIDERING THE FACTS AND THE CIRCUMSTANCES OF THE PRESENT CASE IN OUR CONSIDERE D VIEW THE LOWER AUTHORITIES ARE JUSTIFIED IN DETERMINING THE LAND IN QUESTION AS CAPITAL ASSET LIABLE FOR INCOME-TAX. WITH REGARD TO DETERMINATION OF COST OF ACQUISITION OF THE LAND DISPOSED OF WE ARE OF THE OPINION THAT CONSIDERING THE PROXIMITY OF THE LAND TO THE C ITY IT IS REASONABLE TO FIX THE VALUE OF AS ON 1.4.1981 AT RS .30 000 PER ACRE INSTEAD OF RS.10 000 DETERMINED BY THE ASSESS ING OFFICER AS AGAINST RS.1 40 000 CLAIMED BY THE ASSESSEE. ONE OF THE REASONS FOR WHICH THE CLAIM OF THE ASSESSEE FOR REL IEF UNDER S.54B WAS REJECTED BY THE ASSESSING OFFICER WAS THAT WHAT WAS PAID BY THE ASSESSEE WAS ONLY AN ADVANCE FOR PURCHASE AND UNLESS IT IS ACTUAL PURCHASE OF LAND ASSESSEE WOULD NOT BE ENTI TLED FOR RELIEF UNDER S.54B. THERE IS SOME MERIT IN THIS REASONING OF THE ASSESSING OFFICER. HOWEVER IN TERMS OF S.54B OF TH E ACT ASSESSEE HAS TO PURCHASE THE AGRICULTURAL LAND WITHIN A PERI OD OF TWO YEARS. HENCE THOUGH MERE PAYMENT OF ADVANCE DOES NOT ENTI TLE THE ASSESSEE FOR RELIEF UNDER S.54B OF THE ACT IF ULTI MATELY WHOLE TRANSACTION OF PURCHASE OF LAND WAS COMPLETED WITHI N A PERIOD OF TWO YEARS AS CONTEMPLATED UNDER S.54B OF THE ACT A SSESSEE IS ENTITLED FOR RELIEF UNDER S.54B OF THE ACT. IN THIS VIEW OF THE MATTER ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 9 WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES A ND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING WHE THER THE ASSESSEE HAS PURCHASED THE AGRICULTURAL LANDS WITHIN A PERIOD OF TWO YEARS SO AS TO QUALIFY FOR RELIEF UNDER S.54B OF THE ACT AND ACCO RDINGLY RE-DECIDE THIS ISSUE IN ACCORDANCE WITH LAW AND AFTER GIVING REASO NABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. GROUNDS OF THE ASSESSEE ON THIS ISSUE ARE ALLOWED FOR STATISTICAL PURPOSE. 10. IN VIEW OF THE ABOVE FINDINGS OF THE TRIBUNAL WE ARE INCLINED TO ALLOW THE GROUND RAISED BY THE REVENUE BY HOLDING T HAT THE LAND WHICH IS TRANSFERRED IS A CAPITAL ASSET LIABLE FOR CAPITA L GAIN. 10.1. IN VIEW OF THE ABOVE FINDINGS OF THE TRIBUNA L ON THE ISSUE RELATING TO THE TREATMENT OF THE LAND TRANSFER WE ARE OF THE OPINION THAT THE LAND TRANSFERRED BY THE ASSESSEE IS A CAPI TAL ASSET LIABLE FOR CAPITAL GAIN. HENCE THIS GROUND OF THE REVENUE IS ALLOWED. 11. NOW COMING TO THE OTHER ARGUMENT OF THE ASSESS EES COUNSEL THAT THE ISSUE RAISED BY THE ASSESSEE BEFORE THE CI T(A) HAS NOT BEEN ADJUDICATED BY HIM AND THAT MAY BE SET ASIDE TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. IN OUR OPINION THE AR IS JUST IFIED. 12. IN THE CASE OF CIT VS ASSAM SHIPPING & TRAVELS (1 98 ITR 1) SUPPORTS THE PROPOSITION THAT IT IS DUTY OF THE TRI BUNAL TO DECIDE THE MATTER IN ACCORDANCE WITH THE LAW AND THAT ITS POW ERS TO DO SO ARE NOT FETTERED BY THE ACTIONS OF THE AUTHORITIES BELOW. THEREFORE WE REMIT THE ISSUE BACK TO THE FILE OF THE CIT(A) TO PASS OR DER ADJUDICATING ON THE OTHER GROUNDS RAISED BY THE ASSESSEE BEFORE HIM . THE RELEVANT PORTION IN THE CASE OF LINKLATERS LLP VS. ITO INTER NATIONAL TAXATION WARD 1(1)(2) MUMBAI BENCH MUMBAI IS EXTRACTED BEL OW: IT IS NOTEWORTHY THAT IN TERMS OF PROVISION OF RUL E 11 OF THE APPELLATE TRIBUNAL RULES 1963 WHILE THE APPELLANT SHALL NOT EXCEPT BY LEAVE OF THE TRIBUNAL URGE OR BE HE ARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMORAND UM OF APPEAL THE TRIBUNAL IN DECIDING THE APPEAL SHALL NOT BE ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 10 CONFINED TO THE GROUNDS SET FORTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY LEAVE OF THE TRIBUNAL UNDER THIS RULE. THE MANDATE OF THE RULE IS THUS CLEAR AND UNAMBIGUOUS. WHILE THERE ARE RESTRICTIONS ON THE APPELLANT AS TO THE I SSUES HE CAN RAISE IN THE APPEAL THERE ARE NO RESTRICTIONS ON THE TRIBUNAL AS TO ON WHAT GROUNDS THE TRIBUNAL DECIDES THE APPEAL. THE ONLY RIDER IS IN TERMS OF PROVISO TO R ULE 11 THAT THE TRIBUNAL SHALL NOT REST ITS DECISION ON ANY O THER GROUND UNLESS THE PARTY WHO MAY BE AFFECTED THERE BY HAS H AD A SUFFICIENT OPPORTUNITY OF BEING HEARD ON THAT GROUN D. IN EFFECT THUS AS LONG AS AFFECTED PARTIES HAVE AN OP PORTUNITY OF HAVING BEEN HEARD ON THE GROUND ON WHICH APPEAL IS DECIDED THE TRIBUNAL CAN DECIDE THE APPEAL ON ANY OF THE ISSUE WHETHER RAISED BY THE PARTIES OR NOT. IT IS ALSO IMPORTANT TO APPRECIATE THAT THE EXPRESSIONS SUBJE CT MATTER OF APPEAL AND GROUNDS OF APPEAL CANNOT BE USED INTERCHANGEABLY AS THEY HAVE DISTINCT CONNOTATIONS. WHILE THE TRIBUNAL CANNOT ENLARGE THE SCOPE OF SUBJECT M ATTER OF APPEAL INASMUCH AS A DISALLOWANCE NOT MADE BY ANY OF THE AUTHORITIES BELOW CANNOT BE MADE BY THE TRIBUNA L OR ANY ADDITION OF INCOME NOT MADE BY THE AUTHORITIES BELOW CANNOT BE MADE BY THE TRIBUNAL BUT WITHIN THE SUB JECT MATTER OF APPEAL THE TRIBUNAL CAN EXAMINE ANY ASPE CT OF THE MATTER WHETHER THE SAME HAS BEEN EXAMINED BY THE AUTHORITIES BELOW OR NOT. IT IS THUS NOT ONLY INV ITATION OF THE PARTIES BUT ALSO ON ITS OWN THAT THE TRIBUNAL CAN A DDRESS ITSELF TO AN ASPECT RELATED TO THE ISSUE IN APPEAL EVEN THOUGH THE SAME MAY NOT HAVE BEEN SPECIFICALLY RAIS ED BY EITHER OF THE PARTIES. 13. IN THE PRESENT CASE WHILE THE DEPARTMENTAL AP PEAL WAS BEING HEARD BY THE BENCH THE LEARNED COUNSEL SHRI A.V. ITA NOS.455 & OTHER 4 APPEALS OF 2011 S/SHRI KONDA ANJAIAH (HUF) & OTHERS 11 RAGHURAM HAS OBJECTED TO THE CIT(A) NOT CONSIDERING THE ALL THE GROUNDS RAISED BEFORE HIM AND POINTED OUT THAT THE DECISION HAS BEEN GIVEN ONLY IN RESPECT OF THE ADDITIONAL GROUND . THE COUNSEL HAS NOT FILED CROSS OBJECTIONS AGAINST THE ORDER OF THE CIT(A) BUT HAS MERELY RAISED N ISSUE THAT THE CIT(A) HAS OMITT ED TO ADJUDICATE ON CERTAIN GROUNDS IN THE COURSE OF HEA RING OF THE DEPARTMENTAL APPEAL. APPLYING THE PRINCIPLE LAID DOWN BY CIT VS ASSAM SHIPPING & TRAVELS (198 ITR 1) AND LINKLA TERS LLP VS. ITO INTERNATIONAL TAXATION WARD 1(1)(2) MUMBAI W E ARE OF THE OPINION THAT THE TRIBUNAL CAN DECIDE THE ISSUE AND THEREFORE WE REMIT THE ISSUE BACK TO THE FILE OF THE CIT(A) TO P ASS ORDER ADJUDICATING ON THE OTHER GROUNDS RAISED BY THE ASS ESSEE BEFORE HIM. 14. IN THE RESULT THE APPEALS OF THE REVENUE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON: 10.2.2012 SD/- SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER DATED THE 10 TH FEBRUARY 2012 COPY FORWARDED TO: 1. THE ACIT CIRCLE 8(1) HYDERABAD 2. S/SHRI K. MALLESH & K. ANJAIAH(HUF) H NO.1-19/2 PEERAMCHERU VILLAGE RAJENDRA NAGAR MANDAL RR DIST RICT K. SRI SAILAM H.NO.1-15 SMT.K. ANJAMMA 1-19/2 & K. SANDIAH PEERAMCHERU VILLAGE RAJENDRA NAGAR MANDAL RR DISTRICT. 3. THE CIT(A)- VIJAYAWADA 4. THE CIT HYDERABAD 5. THE DR ITAT HYDERABAD NP/