Shri Manubhai Morarbhai Patel(HUF), Dist.Baroda v. The Income tax Officer,Ward-3(1),, Baroda

MA 315/AHD/2008 | 2004-2005
Pronouncement Date: 22-03-2010 | Result: Partly Allowed

Appeal Details

RSA Number 31520524 RSA 2008
Assessee PAN AABHM4333H
Bench Ahmedabad
Appeal Number MA 315/AHD/2008
Duration Of Justice 1 year(s) 3 month(s) 19 day(s)
Appellant Shri Manubhai Morarbhai Patel(HUF), Dist.Baroda
Respondent The Income tax Officer,Ward-3(1),, Baroda
Appeal Type Miscellaneous Application
Pronouncement Date 22-03-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 22-03-2010
Assessment Year 2004-2005
Appeal Filed On 03-12-2008
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI JM AND D.C.AGRAWAL A M MANUBHAI MORARBHAI PATEL (HUF) JASPUR ROAD PADRA DIST.BARODA. VS INCOME TAX OFFICER WARD 3(1) AAYAKAR BHAVAN NR.RACE COURSE CIRCLE BARODA. (APPELLANT) .. (RESPONDENT) P.A.NO.AABHM 4333 H 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.990/AHD/2 008 PRONOUNCED 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 O N LEASE HOLD RIGHTS THROUGH THE LAND OWNERS HAD DEPOSED BEFORE T HE LD. A.O. HAVING GIVEN THE LAND ON LEASE FOR CULTIVATION TO T HE APPELLANT. THE LD. A.O. HAS FURTHER ERRED IN HOLDING THAT NO AGRIC ULTURAL INCOME WAS EARNED BY THE APPELLANT SINCE THE LEASE AGREEME NT WAS NOT REGISTERED OR NOTARIZED AND PROCEEDED TO DENY THE B ENEFIT OF M.A. NO.315/AHD/2008 ARISING OUT OF ITA NO.990/AHD/2008 ASST. YEAR : 2004-05 2 AGRICULTURAL INCOME HAVING BEEN EARNED FROM THE SAI D LEASE LAND. THIS ACTION OF BOTH THE LOWER AUTHORITIES IS IN CLE AR BREACH OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVE S 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. CI T (A) AND THERE IS NO ADJUDICATION BY HIM ON THIS ISSUE. IN ANY CASE IT W OULD BE A CLEAR EXERCISE IN FUTILITY AND FOR THAT MATTER ORDER OF THE TRIBUN AL 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 HEAR ING BEFORE THE TRIBUNAL. 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 FACTS AND IS NOT PURELY ILLEGAL GROUND. EVEN OTHERWISE EVEN IF IT IS ADMIT TED STILL 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 GE NERAL 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. 3 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT THIS GROUND R AISED 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 ORDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO POST IT FOR HEA RING IN DUE COURSE. EVEN THOUGH THIS IS A FACT THAT RELEVANT ISSUE HAS NOT B EEN RAISED BEFORE THE CIT (A) OR ISSUE MIGHT REQUIRE INVESTIGATION OF THE FAC TS BUT SINCE ONCE THE GROUND IS RAISED BY THE ASSESSEE IT IS REQUIRED TO BE DISPOSED OF AND AS IT HAS NOT BEEN DONE SO THE ORDER OF THE TRIBUNAL IS R EQUIRED TO BE RE-CALLED TO 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 4