TMI Blog2014 (12) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the building – also, the Tribunal did not consider the written submissions - there are certain errors in the Tribunal order dated 7th March, 2013 – the reasons provided by the assessee are satisfactory in nature, thus, the order of the Tribunal is recalled and the matter is remitted back to the Tribunal – Decided in favour of assessee. - M.A. No. 103/Hyd/2014 In ITA No. 295/Hyd/2012 - - - Dated:- 10-12-2014 - Shri B. Ramakotaiah And Smt. Asha Vijayaraghavan,JJ. For the Applicant : Sri S. Rama Rao For the Respondent : Sri Rajat Mitra ORDER Per Asha Vijayaraghavan, JM: By this Miscellaneous Application (MA) the assessee seeks recall of Tribunal order in ITA No. 295/Hyd/2012 dated 7.3.2013 for A.Y. 2008-09. 2. The petitioner in this MA has pointed out that certain mistakes that have been committed by the Tribunal while passing the order in ITA No. 295 dated 7th March, 2013 and pointed out that the Tribunal had failed to consider certain facts. Accordingly, the learned counsel pleaded that the above order of the Tribunal be recalled in the interest of justice and fair play. 3. The petitioner herein is an individual deriving income from legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-Tax Act he pleaded before the Tribunal that the case be adjourned so as to enable the petitioner to get his case represented. The Tribunal, however, did not accept the petitioner's request but suggested that a written submission be filed. Accordingly, the petitioner herein submitted detailed written submissions before the Tribunal. 7. The ITAT vide order in ITA No. 295/H/2012 dated 7.3.2013 decided the appeal and dismissed all the grounds. The Tribunal in their order at para 16 mentioned that the assessee appeared in person for seeking adjournment. However, the Tribunal required the assessee to argue the matter . 8. On merits, the ITAT held that the land sold is a capital asset. At para 21 of the order of the ITAT, it is held that: With regard to the ground No. 1, following the decision of the coordinate bench of the Tribunal in the case of Smt. Gousia Begum and others, in ITA No. 1024/Hyd/2011 and Others, vide its order dated 16/-01/2012, we hold that the land is a capital asset in the present case and attracts provisions of section 2(14) of the Act, and hence will not eligible for exemption of profit on sale of agricultural land u/ s 2(14)(iii)(b) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was asked to argue the matter. As submitted earlier, the petitioner does not possess the knowledge of Income-Tax proceedings and, therefore, was not in a position to argue the matter. The same was explained before the ITAT and in spite of a specific request for adjournment it was not acceded to. The petitioner submits that the request for adjournment was made as the petitioner's representative was not in a position to attend. Therefore, the petitioner submits that he is prevented by sufficient reason in not presenting the matter when the case was called. 12. It is further submitted that during the course of hearing, when the petitioner sought adjournment, the Tribunal mentioned that written submissions may be filed. Accordingly, the petitioner filed the written submissions. The Tribunal acknowledged the receipt of such written submissions at Para No. 18 of the appellate order but the same were not considered. It is submitted that the facts were clearly narrated in the written submissions filed and they should have been considered before an ex parte decision was taken. 13. The petitioner, therefore, submits that in view of the Rule 24 of Income- Tax (Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n consideration of the totality of facts and circumstances of the case, we are not in agreement with the view taken by the Revenue authorities in rejecting the assessee's claim for exemption under S. 54F of the Act. The Revenue authorities have denied the claim for exemption, going by the schedule of property and map appended to sale deed through which the assessee purchased the property in question. A reading of the said schedule, which has been extracted by the Revenue authorities in their impugned orders, opens with 'All that the plot No. 539-III ... and does not conclusively rule out existence of any structure thereon. On the other hand, the property receipt, produced by the assessee before the Revenue authorities, containing Door No. and even the name of the assessee, evidences the existence of a residential structure, clinches the matter in favour of the assessee. Merely because it is titled as 'provisional receipt', its evidentiary value cannot be mitigated, because it is issued by a statutory authority, viz. a local body, and contains details like door no. and assessee's name, date and amount of tax collected, etc. All these details are capable of bein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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