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TMI Blog2012 (8) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal was as follows (reproduced from the appeal bearing ITA No.663/Ahd/2005 - A.Y. 1996-97, Revenue's appeal):- "1. The ld. CIT(Appeals) has erred in law and on facts in giving relief by considering the unaccounted income on sale of land as non-business income. 2. On the facts and circumstances of the cases, the ld.CIT(Appeals) ought to have upheld the order of the Assessing Officer on the above points." 2. Through this miscellaneous petition the grievance of the Revenue is as follows:- "The ITAT has held that the issue as to the nature of transaction relating to sale of land in question has not been decided by the CIT(A) in spite of the fact that the assessee had objected to the AO's action whereby profit on sale of lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law which arises from the facts of the case and in support placed reliance on National Thermal Power Co.Ltd. 229 ITR 383 (SC). Ld.DR has commented that although the Revenue has raised the issue whether the sale of land was in the nature of capital gain or business income through its ground of appeal, however, the ITAT should have been requested to decide the issue on merits that whether CIT(A) was right in deleting the impugned addition of Rs.12,41,105/-. Since the issue on merits was not decided, hence the order may be recalled with adequate directions. 4. From the side of the respondent-assessee, ld.AR Mr.J.P.Shah appeared and drawn our attention that the Revenue Department has admitted its error in framing the ground of appeal. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities below and having a bearing on the tax liability of the assessee. Therefore, the ITAT ought to have considered the grounds of appeal filed by department or in the alternative the department should be allowed additional ground raised before the ITAT as the primary facts are same and available on records. Therefore, a miscellaneous petition was filed on 4/5/09 before the ITAT, Ahmedabad with a request to decide the issue whether sale of land is capital gain or business income. However, the ITAT should have been requested to decide the issue on merits i.e. whether on the facts and in the circumstances of the case and in law, the CIT(A) was right in deleting the addition of Rs.12,41,105/-. Therefore, the earlier ground taken before the IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is apparent in the order of the Tribunal. We find no force in the miscellaneous petition filed by the Revenue, hence hereby dismissed. 6. In the result, this MA No.151/Ahd/2009 is dismissed. [ B ] MA Nos.152 & 153/Ahd/2009 7. These two miscellaneous applications pertains to two different assessee's, however, both the petitions have been filed by the Revenue on 6.5.2009 arising from the order of the Tribunal dated 20.5.2005. 8. The grievance of the Revenue is that the Tribunal has wrongly held that the facts of these two cases were similar to the facts of an another case, namely Shri Kanaiyahlal N. Hemrajani. Relevant portion of the petition is therefore reproduced below:- "The assessing officer while making the assessments has consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of unexplained investment u/s.69B therefore the ITAT erred in holding that the facts in this case is similar to that in the case of Shri Kanaiyalal Hemrajani. It is therefore requested that the Hon'ble ITAT may verify the merit of the case & decide appeals filed in both cases as the facts & the ground of appeal raised in this case is different from the case of Shri Kaniyalal Hemrajani. This Misc.petition is therefore filed against the order of ITAT as above for deciding the appeal in ITA No.664/AHD/2005 on merits." 3. From the side of the Revenue ld.Sr.DR Mr.B.L.Yadav appeared and placed reliance on the facts of the case as narrated in the miscellaneous petitions. 4. From the side of the respondent-assessee ld.AR Mr.J.P.Shah has info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 29. So far as the validity proceedings u/s.147 of the Act is concerned, the CIT(Appeals) in the case of Kanaiyalal N.Hemrajani had upheld the validity of proceedings u/s.147 of the Act and, therefore, we are surprised as to how the CIT(Appeals)has allowed this ground in the case of these two assessees. Anyhow, the Revenue having not objected to the Order of the CIT(Appeals) on this point, we are unable to deal with this issue." 6. Once the Tribunal has duly noted the submissions of both the sides and taken the cognizance of the arguments of both the sides and on that basis finalized the appeal of the Revenue, therefore at this stage through miscellaneous application Revenue has failed to demonstrate any mistake, what to say an apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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