TMI Blog2021 (3) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee for seeking benefit of capital gains. The said assessment order dated 30.03.2013 was in existence when the Tribunal decided the appeal. The same was however not brought on record by the assessee. In the peculiar facts of the present case as it is found that co-owner of the same land has been granted benefit of capital gains we find that the effect of the assessment order passed in the case of the co-owner deserves to be considered by the Income Tax Appellate Tribunal. For the said purpose, a re-consideration of the proceedings by the Income Tax Appellate Tribunal would be necessitated. The substantial question of law as framed is answered by holding that the effect of the sale transaction of the coowner being extended the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the Tribunal was justified in treating the said transaction as business income insofar as the appellant is concerned? Learned counsel Shri Anand Parchure waives notice for the respondent. 2. In this appeal filed under Section 260A of the Income Tax, 1961 (for short, the said Act ), the order dated 23.11.2017 passed by the Income Tax Appellate Tribunal is under challenge. The facts relevant for adjudication of the present appeal are that for the assessment year 2010- 11 the appellant-assessee filed his return and declared a total income of ₹ 27,43,007/-. In the revised return of income, the assessee claimed deduction of ₹ 80,000/- under Section 54F of the said Act on long term capital gain. The assessment was complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x return had sought benefit of capital gains on account of sale of the land. The Deputy Commissioner of Income Tax was pleased to grant such benefit under Section 50C of the said Act and capital gain was calculated accordingly. This order passed by the Deputy Commissioner of Income Tax was accepted by the Revenue and it is thus submitted that since in the case of the co-owner of the same land income from the same transaction that was jointly entered into was considered as capital gain, the Revenue was not justified in treating the sale transaction in a different manner insofar as the assessee was concerned. The income of the assessee from the same transaction could not be treated as business income and the benefit of capital gains ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. Since the Tribunal found that the assessee had sold four plots to different parties in the said assessment year, it concluded that in the light of the nature of business of the assessee and development activity carried on it was clear that the assessee intended to exploit the commercial potential of the land. It is undisputed that the assessment order dated 30.03.2013 in the case of Shri Narendra Kanhaiyalal Parikh, co-owner of the said lands along with the assessee permitted the said co-owner to take into account full value of the sale consideration for the purposes of Section 50C of the said Act for computing capital gains. This assessment order however was not placed before the Income Tax Appellate Tribunal by the assessee. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains deserves to be considered by the Income Tax Appellate Tribunal as income from the same transaction has been treated as business income insofar as the assessee is concerned. In that view of the matter the following order is passed: The order passed by the Income Tax Appellate Tribunal, Nagpur Bench, Nagpur on 23.11.2017 is set aside. The proceedings are remanded to the Tribunal to re-consider the appeal with a liberty to the assessee to raise additional grounds in support thereof. The assessee is at liberty to place on record the assessment order dated 30.03.2013 passed by the Assessing Officer in the case of Shri Narendra Kanhaiyalal Parikh for its due consideration by the Income Tax Appellate Tribunal without going into th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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