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TMI Blog2020 (11) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... the first round of appellate proceedings viz a viz order of the Hon'ble Bench in the impugned order Sr. No. Particulars As per impugned order by the Hon'ble Bench, dated 30.04.2019 As per the order of Hon'ble Bench dated 31.01.2013 1 Computation of agricultural income from owned land Rs. 6000 per acre [page 4 para 4] Rs. 6000 per bigha. This rate per bigha has been accepted by the Department and not in dispute. [page 17 of impugned order] 2 Finding of fact arrived at by the authorities below a. Agricultural activities on lease hold land not supported by credible evidence. b. Evidences furnished are not sufficient to come to a conclusion that assessee is carrying out agricultural activity at lease hold land. These evidences were furnished before Ld. CIT(A) in first round of appellate proceedings. [page 16 3rd line from start]. Ld. AO was directed - [Page 17] a. To consider additional evidences filed before Ld. CIT(A). b. Determine total land taken on lease c. Allow deduction on lease rental d. To compute agricultural income out of such lease hold lands 2. Claim of agricultural income earned from lease hold land has not been addressed by the authorities in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific to ascertain the quantum of leasehold land and compute agricultural income thereon after deducting lease rent on such leasehold land. 3. No reference to the compliance of direction given by Hon'ble Bench and submission thereon on the additional grounds of appeal raised challenging the legality/jurisdiction were filed before Hon'ble Bench during the appellate proceedings relating to impugned proceedings stating that the addition was made without reference to any incriminating material found and seized during the course of search a. Ld. DR was directed to file a report from Assessing Officer for incriminating material found and seized during the course of search in relation to the addition made. b. Ld. DR vide letter dated 01.02.2019 provided copies of page 262, 263 and 274 to 278 in respect of incriminating material found and seized during the conduct of search of the assessee. c. Reply filed by assessee in response to above mentioned letter - i. Page 262 and 263 - These documents have already been considered by the Hon'ble Co-ordinate Bench vide order dated 31.01.2013 page 6 para 6. Content of these documents have following discrepancies - 1. It is an incompl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal grounds by holding that the assessee raised them at a belated stage is a mistake apparent from record when there is a direct decision dealing with the subject matter by the Hon'ble Jurisdictional High Court of Madhya Pradesh in the case of Nandlal Sachdeva - [2012] 19 ITJ 361 - order pronounced on 06.03.2012 - "7. The tribunal allowed the contention of the assessee for raising the legal issue, but remanded the matter to the CIT(Appeals) to consider the aforesaid legal issue. 8. In this appeal the sole contention of the appellant before this Court is that in place of remand, the Tribunal itself ought to have adverted itself to the legal issue and remand in the matter was not required. While the learned counsel for revenue supported the remand order. In this case, as per the findings recorded by the Tribunal in para 10 of the order, we find that all the facts were before the Tribunal and the Tribunal in this para specifically have recorded this fact. When all the facts for deciding the legal issue were already on record, in the aforesaid circumstances, whether the Tribunal could have remanded the matter or ought to have decided the matter itself is to be seen. [emphasis supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of the item.......... We are, therefore, of the considered view that both question No. 3 and No. 4 in the Department's appeal deserve to be answered against the Department. In view of the wide powers that the Tribunal is invested with, as clearly referred to and spelt out by their Lordships in their decision in National Thermal Power Co. Ltd.'s case (supra), the Tribunal cannot be precluded from considering the questions of law arising in an assessment proceeding not raised earlier, and restricted to issues arising out of appeal before the Commissioner." [emphasis supplied] 8. Ld. DR relied on the decision of Hon'ble MP High Court in the case of Tollaram Hassomal [2006] 153 Taxman 532 (MP) dated 10.03.2006. The distinguishing features of the three decisions of the Hon'ble MP High Court on this aspect are tabulated below for ready reference - S. No. Particulars Tollaram Hassomal (supra) Turquoise Investment & Finance Limited (supra) Nandlal Sachdeva (supra) 1. High Court Madhya Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that the decision in the case of Arihant Builders, Developers & Investors (P.) Ltd. (supra ) was rendered by the same Bench of the Tribunal comprising of the same members who decided the appeal giving rise to this reference. The learned members took upon themselves to over-rule their own judgment in the case of Arihant Builders, Developers & Investors (P.) Ltd. (supra). This again in our opinion was not proper. In para 21 of their order, the learned members have referred to certain decisions of the Supreme Court wherein the Apex Court has undertaken review of its own earlier decisions. However, the learned members seem to have missed the point that the review was undertaken by larger Bench. The legal position on the point is made luculent by the Supreme Court in the case of Pradip Chandra Parija v. Pramod Chandra Patnaik [2002] 254 ITR 99 in following terms :- Judicial discipline and propriety demands that a Bench of two judges of the Supreme Court should follow a decision of a Bench of three judges. If the Bench of two judges concludes that an earlier judgment of a Bench of three judges is so very incorrect that in no circumstances can it be followed, the proper course for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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