TMI Blog2002 (2) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... point of time, the argument on which the matter had been decided against the petitioner was put across to the petitioner. If the Hon ble Bench was pleased to construe the agreement in a manner different than the way it was construed earlier, natural justice, in the least, mandated that the argument should have been put across to the assessee and a reasonable and proper opportunity given to meet. (Affidavit of Sh. H. Mitter, CA is attached). It is neither a case of the AO nor the case of the CIT(A) that the security deposit was not refundable or transferable. On the contrary, as highlighted above, the learned CIT(A) has accepted that the amount is refundable but despite this refundability it was to be taxed. The Hon ble Bench has proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the logic of the AO and held that although the amount of security deposit is refundable and actually refunded at the time of sale of flat and identical amount is simultaneously received from the person who is purchasing the flat. In effect, the refund to the erstwhile owner is made up by the payment by the new purchaser and the assessee did not suffer financially. 3. The CIT(A) did not agree with the findings of the Tribunal in the assessee s own case on the same issue for the asst. yr. 1983-84 when the question was raised for the first time up to asst. yr. 1991-92. It was also pointed out that for the asst. yr. 1988-89, no addition was made by the AO himself. It was also placed on record that in the past, additions have been delete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due, mandates against it being a security deposit. It was also argued that the Tribunal has also considered the decision in the case of McDowell Co. Ltd. vs. CTO (1985) 47 CTR (SC) 126 : (1985) 154 ITR 148 (SC), though the same was not mentioned by either the AO or the learned CIT(A) or by the learned Departmental Representative in the course of hearing of the case. 5. Learned authorised representative also submits that while deciding the issue against the assessee and against the past history and the decision of the Tribunal, the Tribunal has denied the natural justice to the assessee to defend its cause and on this account reliance was placed on the decision of the apex Court in the case of CIT vs. Jai Prakash Singh (1996) 132 CTR (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flat owners was refundable. The basis, however, was that because the refund to the flat owners at the time of sale of the flat did not result in a financial loss, as it was made good by the person who had purchased the flat, in effect, the security deposit always remained with the appellant. In the circumstances, whatever security deposit have been received in the year of account, were liable to tax as income. The Hon ble Bench, it is apparent, did not deal with or endorse this reasoning. They have merely referred to it, but this is not the basis of their decision. It has been held by the Hon ble Tribunal that under the various agreements signed, it could not be said that the amounts received from the flat owners was refundable in the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent, and, it is in that context, that the Hon ble Court has been pleased to observe that a precedential value of a decision is not taken away merely because it is submitted that an argument has not been considered or because the decision was badly argued or inadequately considered and fallaciously reasoned. Rectification of this error is not only within the power of the Hon ble Bench under s. 254(2) [CIT vs. S.S. Gupta], but also within the inherent power of the Hon ble Bench under s. 256(1) [Prakashchand Lunia vs. ITO (1996) 54 TTJ (Jp) 383 : (1996) 56 ITD 1 (Jp)], [CIT vs. ITAT (1979) 12 CTR (Ker) 303 : (1979) 120 ITR 231 (Ker)], [Laxmi Electronic Corporation Ltd. vs. CIT (1992) 102 CTR (All) 293 : (1991) 188 ITR 398 (All)]. The inhere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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