Case Law Details
Amjad Ahmedbhai Sheikh Vs ACIT (Bombay High Court)
We find that the assessee and Shri Narendra Kanhaiyalal Parikh were joint purchasers of agricultural land by virtue of sale-deeds dated 23.03.2004 and 29.04.2004. After converting the same for non-agricultural use, various plots came to be sold. Prima-facie we find that as the co-owner has been granted benefit of capital gains with regard to the same transaction which assessment order has been accepted by the Revenue, said aspect deserves to be taken into consideration while adjudicating the claim of 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.
Accordingly, the substantial question of law as framed is answered by holding that the effect of the sale transaction of the co-owner being extended the benefit of 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 the question of limitation. The appeal shall be decided on its own merits without being influenced by any observations made in this judgment. The appeal be preferably decided within a period of three months from the date of its first hearing.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
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