9911796707
TMI Blog2005 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... law: "1. Whether the amount received by the assessee by sale of flats/shops made during the year and the amount of unsold stock of flats/shops should have been also considered when the Revenue considered the value of construction made during the year to the tune of Rs. 1,11,96,287 to the opening stock/work-in-progress and the amount indicated by the progress report to the tune of Rs. 2,70,21,070? 2. Whether the assessment in that context made by the Revenue and the conclusion drawn by the Income-tax Appellate Tribunal is perverse and bad in law?" Heard Shri R.L. Jain, learned senior counsel with Ku. V. Mandlik, learned counsel for the Revenue, and Shri Mahesh Sharma, learned counsel for the assessee. The issue which arises for considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s), we find that the assessee has shown the cost of construction more than the value determined by the Valuation Officer. Since the Commissioner of Income-tax (Appeals) has properly adjudicated the issue in the right perspective, we find no infirmity therein and uphold the same." It is against this finding, the Revenue is in appeal. Having heard learned counsel for the parties and having perused the record of the case, we are of the opinion that this appeal deserves to be allowed resulting in setting aside of the impugned order and remand of the case to the Tribunal to again decide the same afresh on the merits. In our opinion, the Tribunal did not seem to have examined the factual issue in its correct perspective. It is one thing to say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. It is only then that this court can examine the finding on the merits. An issue of fact cannot be raised for the first time in second appeal by any party to the appeal. It is for this reason that more responsibility lies on the shoulders of the Tribunal-being the last court of appeal so far as the facts are concerned to examine the case on all corners relating to the facts and then decide whether the additions are capable of being sustained or not. We do possess the powers under section 260A of the Act to remand the case again to the Tribunal for deciding the appeal on the merits. Indeed, this power is conceded to exist in us while hearing the appeal. We also feel that no prejudice is caused to the parties in remand because they wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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