|The Tax Publishers2021 TaxPub(DT) 0623 (Bang-Trib)
INCOME TAX ACT, 1961
Where Tribunal had not adjudicated the main grievance of assessee regarding conclusions of AO that the gain on sale of property was short-term capital gain and had adjudicated on the issue whether the income in question give rise to capital gains or business income and CIT(A) had also not rendered any clear finding on the issue, therefore, order of Tribunal suffered from mistake apparent from the face of the record, in as much as ground raised by assessee remains undecided.
Appeal (Tribunal) - Rectification of mistake - Gain on sale of property - Business income or capital gain
This Miscellaneous Petition was filed by the assessee under section 254(2) pleading for recall of the order passed by this Tribunal or grant any other relief as Tribunal may deem fit. The issue that arose for consideration in appeal as to whether revenue authorities were justified in treating the gain on sale of properties by the assessee which was considered by assessee as a long-term capital gain, as giving rise to business income. In this MP, assessee had submitted that there are some erroneous assumptions regarding the co-ownership agreement which formed the basis for conclusions that the gain on sale of property was business income. Held: Tribunal had not adjudicated the main grievance of assessee regarding conclusions of AO that the gain on sale of property was short term capital gain and has adjudicated on the issue as to whether the income in question give raise to capital gains or business income. The findings of AO were contradictory as already pointed out above and CIT(A) had also not rendered any clear finding on the issue. In these circumstances, order of the Tribunal suffers from mistake apparent from face of record in as much as ground raised by the assessee remains undecided. Hence, order of Tribunal was recalled and Registry is directed to fix the appeal for hearing afresh in due course after notice to parties.
FAVOUR : In assessee's favour.
IN THE ITAT, BANGALORE BENCH
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