2006 (3) TMI 556 - AT - Income Tax

Appellate Tribunal - Seeking rectification of the order of the Tribunal - error apparent from the record - Validity of the reopening of the assessment - HELD THAT - The Tribunal ought to have send the matter back to the CIT(A) to adjudicate the issue regarding the validity of the reopening of the assessment as it was not adjudicated by him on the premise that the relief was given on merit. But, the Tribunal has out-rightly set aside the order of the CIT(A) and restore that of the Assessing Officer confirming the additions made by him without having adjudicated the issue of validity of the reopening of the assessment. To our mind, this action of the Tribunal leads to a mistake crept in the order of the Tribunal which is apparent from the record. We have also carefully examined the contentions of the assessee on other points and we find that the Tribunal has not examined the aspect of applicability of provisions of section 45(2) of the Income-tax Act when the investment shown in shares were converted in stock-in-trade. The Tribunal has also not taken into account while disposing off the appeal that in the financial year 1991-92, the assessee has purchased sizable number of shares and were reflected as investment in the balance sheet as on 31-3-1992 which was accepted by the department in that assessment year. Once, revenue has accepted the method of accounting in earlier years, it cannot be rejected in the subsequent assessment years without bringing contrary on record. We have also carefully examined the orders of the Tribunal referred to by the assessee in which under identical circumstances, the investment in shares, were treated to be the investment and on its transfer the capital gain was worked out. But, the Tribunal did not take much cognizance of these judgments of the Tribunal. The Judgment of the Kerala High Court in the case of Kethan Kumar A. Shah 1999 (8) TMI 20 - KERALA HIGH COURT was also not properly taken into account by the Tribunal while disposing off the appeal. We have also examined various judgments referred to by the assessee with regard to the scope of section 254(2) of the I.T. Act and from its reading we find that the order of the Tribunal can be rectified or recalled when it is noticed that certain important judgments or the relevant evidence were not considered by the Tribunal while disposing off the appeal. Turning to the case in hand, it is noticed that, material evidence and the important judgments referred to by the assessee, escaped the attention of the Tribunal while disposing off the appeal which lead to a mistake crept in the order of the Tribunal. We, therefore, of the view that the impugned issue requires a fresh adjudication by the Tribunal in the light of evidence and judgments referred to by the assessee. We, therefore, recall our order dated 31st August, 2005 and direct the Registry to re-fix the appeal for hearing in regular course for hearing. In the result, miscellaneous application of the assessee is allowed.

Summary

Issues Involved:
1. Rectification of Tribunal's order under section 254(2) of the I.T. Act.
2. Classification of income from sale of shares as "Capital Gains" or "Business Income."
3. Validity of reopening assessments under section 148 for assessment years 1993-94 to 1995-96.

Issue-wise Detailed Analysis:

1. Rectification of Tribunal's Order under Section 254(2) of the I.T. Act:
The assessee filed a miscellaneous application for rectification of the Tribunal's order dated 31st August 2005, claiming an error apparent from the record. The Tribunal acknowledged that certain important materials and facts were not considered while disposing of the appeal. The Tribunal decided to recall its order and re-fix the appeal for hearing, recognizing that the omission of relevant evidence and judgments led to an error in the original order.

2. Classification of Income from Sale of Shares as "Capital Gains" or "Business Income":
The assessee, a proprietor of a brokerage firm, maintained two separate accounts: one for business and one for personal investments. The income from the sale of shares held in the investment portfolio was offered for taxation under "Capital Gains." However, the Assessing Officer (AO) reclassified this income as "Business Income" based on factors such as the frequency and regularity of transactions, the large quantities of shares traded, the assessee's qualifications, and alleged borrowing of funds. The CIT(A) disagreed with the AO, ruling that the income should be classified as "Capital Gains," a decision which was later contested by the department before the Tribunal. The Tribunal initially sided with the AO but failed to consider key evidence and judgments, leading to the rectification application.

3. Validity of Reopening Assessments under Section 148 for Assessment Years 1993-94 to 1995-96:
The assessee challenged the reopening of assessments for the years 1993-94 to 1995-96, arguing it was void ab initio for lack of jurisdiction. The CIT(A) did not adjudicate this issue, considering it academic after ruling in favor of the assessee on the main issue. The Tribunal, however, set aside the CIT(A)'s order without addressing the validity of the reopening, an action that was later recognized as an error. The Tribunal should have remanded the issue back to the CIT(A) for a decision on the validity of the reopening.

Conclusion:
The Tribunal recognized that it had not considered crucial evidence and judgments in its original decision, leading to an error. It recalled its order and directed a fresh hearing to ensure all relevant materials and legal precedents are adequately considered. The issues of income classification and the validity of reopening assessments are to be re-examined in light of the omitted evidence and judgments.