TMI Blog2021 (1) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... dings of the AO are contradictory as already pointed out above and the CIT(A) has also not rendered any clear finding on the issue. In these circumstances, we are of the view that the order of the Tribunal suffers from mistake apparent from the face of the record in as much as ground No.5 and 6 raised by the Assessee remains undecided. Hence, the proper course would be to recall the entire order rather than deciding the other grounds as these grounds are interconnected or interlinked. The order of the Tribunal is recalled and registry is directed to fix the appeal for hearing afresh in due course after notice to parties. Assessee s Miscellaneous Petition is allowed. - MP No.5/Bang/2021 (in ITA No.367/Bang/2018) - - - Dated:- 29-1-2021 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nonagricultural purpose. The said request was granted by the District Commissioner, Ramnagar District, by a conversion order dated 11.08.2010. 4. The assessee and the other two co-owners sold the property acquired by them on 17.09.2005 under three different sale deeds as per the following details: (a) Sy No. 126, measuring 3.29 acres in favour of Sri. D. VenkataNarayanaSwamy for a sale consideration of ₹ 31,50,000/-. Sale Deed dated 25.07.2012. (b) Sy. No. 126, measuring 1.20 acres in favour of Sri. John Baptist Carnelio for a sale consideration of ₹ 1,05,62,500/-. Sale deed dated 07.08.2012. (c) Sy. No. 126, measuring 39.5 guntas and Sy. No.127/2 measuring 23.5 guntas in favour of M/s Sri Manjunatha Warehousing Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of conversion to the date of sales made on 25.7.2012, 07.08.2012 and 17.08.2012 is less than 3 years and accordingly the asset sold is a 'short term capital asset' and the gain is to be treated as Short term capital gain and thereby the assessee is not entitled for claiming deduction u/s 54F. 6. However in the computation of total income the AO has treated the gain on sale of land as business income. Thus there is contradiction in the order of the AO. The computation of gain has again been made by the AO in the manner one would compute capital gain. The rate of tax is same for both business income and short term capital gain and therefore it is not discernible from the order of assessment as to whether the AO has treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has also submitted written submissions before the Tribunal and on page 5 of he said written submission, it is submitted that the intention of the co-ownership agreement made between the assessee s brother and relative is only for the purpose of better future understanding to divide the share of land, the rights on property or gain/losses and hence, it is seen this is not the contention of the assessee that this land was not purchased in pursuance to the co-ownership agreement dated 15.06.2002. Hence, we proceed on this basis that the land in question was purchased by the assessee along with co-owners in pursuance to the deed of co-ownership entered into by the assessee with other 2 co-owners Shri. N. Srinivasan and K. N. Ramesh. Copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document was incomplete and never acted upon. The learned counsel in the course of argument, apart from reiterating what is stated in the MP also submitted that the main issue which was raised by the assessee in ground Nos.5 and 6 had not been decided and therefore the order of the Tribunal should be recalled. Learned DR submitted that there is no mistake or mistake apparent from the face of the order of the Tribunal. 10. We have given a carefully consideration to the rival submissions and we find that the Tribunal has not adjudicated the main grievance of the assessee regarding conclusions of the AO that the gain on sale of property was short term capital gain and has adjudicated on the issue whether the income in question give raise to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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