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2007 (12) TMI 408 - HC - Income TaxRecalculation of capital gains tax - Advance rent - whether be treated as the cost of acquisition of tenancy rights - Held that - In the present case the judgment is referred to in the impugned order. There may even be a case where a judgment on the issue may be delivered subsequent to the remand of the case even that would be binding on the lower authority. Still further the matter has only been remanded back to the Assessing Officer for fresh determination with liberty to the assessee to lead any further evidence if requires. The issue has not been finally determined. In case still the issue is determined against the assessee it have its remedies in accordance with law. In New Cawnpore Flour Mills v. CIT 2005 (1) TMI 50 - ALLAHABAD High Court it has been opined that the reference cannot be made in a case where in appeal the Tribunal without deciding any issue only remands the matter back. No substantial question of law arises in the present appeal. Accordingly the same is dismissed.
Issues:
1. Treatment of advance rent as the cost of acquisition of tenancy rights. 2. Remand of the case for recalculation of capital gains tax. 3. Fulfillment of requirements of a speaking order by the Tribunal. Analysis: Issue 1: Treatment of advance rent as the cost of acquisition of tenancy rights The case involved the transfer of tenancy rights by the assessee to a bank and the subsequent dispute regarding the taxation of the amount received. The Assessing Officer considered the lump sum payment made for acquiring the tenancy rights as the consideration for the asset, leading to the imposition of capital gains tax. The Commissioner of Income-tax (Appeals) upheld this decision. The Tribunal, however, remanded the case back to the Assessing Officer for fresh adjudication, allowing the assessee to present additional evidence. The senior counsel for the assessee argued against the remand, citing the judgment in CIT v. D. P. Sandu Bros. Chembur P. Ltd. [2005] 273 ITR 1. The High Court clarified that even though the Tribunal did not extensively discuss the judgment in its order, the law laid down by the Supreme Court is binding on all lower authorities. The High Court emphasized that the matter was only remanded for fresh determination, and the issue was not conclusively decided against the assessee. Issue 2: Remand of the case for recalculation of capital gains tax The Tribunal's decision to remand the case for the recalculation of capital gains tax based on the cost of acquisition of tenancy rights led to a dispute regarding the necessity of the remand. The senior counsel for the appellant argued that the Tribunal should have accepted the appeal in full without remanding the case, considering the judgment cited. However, the High Court held that the Tribunal's decision to remand was not erroneous, as it provided an opportunity for the assessee to present further evidence. The High Court emphasized that the Tribunal's order referred to the relevant judgment, ensuring its applicability to the case even if not extensively discussed in the order. Issue 3: Fulfillment of requirements of a speaking order by the Tribunal The final issue revolved around whether the Tribunal's order remanding the case fulfilled the requirements of a speaking order. The High Court addressed this by emphasizing that the Tribunal's order, although not extensively discussing the relevant judgment, met the criteria of a speaking order as it referred to the judgment and provided the assessee with an opportunity to present additional evidence. The High Court cited the principle that a remand is permissible for fresh determination when necessary and highlighted that the issue was not conclusively decided against the assessee. Consequently, the High Court found no substantial question of law in the appeal and dismissed the same. In conclusion, the High Court's judgment clarified the legal aspects surrounding the treatment of advance rent, remand for recalculation of tax, and the requirements of a speaking order, ultimately upholding the Tribunal's decision to remand the case for fresh adjudication.
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