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TMI Blog2012 (8) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... business income - now the Revenue wants to overcome its own mistake through this miscellaneous petition, so that the impugned quantum addition can also be challenged but the law do not permit such an attempt. The jurisdiction as prescribed u/s.254(2) is limited to the extent to rectify a mistake which is apparent in the order of the Tribunal. - MA Nos.151 to 153/Ahd/2009 ITA Nos.663 to 665/Ahd/2005 - - - Dated:- 15-6-2012 - SHRI MUKUL Kr.SHRAWAT, AND SHRI A. MOHAN ALANKAMONY, JJ. Revenue by : Shri B.L. Yadav, Sr. D.R. Assessee(s) by : Shri J.P. Shah O R D E R PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER : [A] MA No.151/Ahd/2009 This miscellaneous application was filed on 6.5.2011 arising from the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in the case of NTPC u/s CIT (229 ITR 383) the tribunal has jurisdiction to examine a question of law which arises from the facts as found from the orders of authorities below and having a bearing on the tax liability of the assessee. Therefore, the ITAT ought to have considered the grounds of appeal filed by department or in the alternative the department should be allowed additional ground raised before the ITAT as the primary facts are same and available on records. 3. Ld.Sr.DR Mr.B.L.Yadav vehemently argued that although the ground of the Revenue has not specified the quantum which was disputed but factually the Revenue wanted to agitate the deletion of an addition of Rs.12,41,105/-. Ld.DR has therefore placed his reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the CIT(A) having deleted the addition, the profit to the extent, as was declared by the assessee, stands assessed as business income. Hence no finding was given on the merits of the addition and the ground was dismissed due to error in framing the ground of appeal. 4.1. According to Mr.Shah, it is very strange that the Revenue Department is now asking to allow additional ground to be raised although such a request was never made at the time of hearing and now the order has already been pronounced. He has referred the following para from the said petition of the Revenue:- It was mentioned in the miscellaneous Petition filed dtd: 4/5/2009 that in view of the decision of the Supreme Court in the case of NTPC u/s.CIT (229 ITR 383 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the nature of gain whether on sale of land it was non-business income or not. The Tribunal is therefore expected to decide the issue which has been raised before it, hence vide para-15 the Tribunal has taken the view as follows:- 15. In view of above facts, we are of the opinion that the ground No.(1) raised by the Revenue does no arise out of the Order of CIT(Appeals) because the CIT(Appeals) having deleted the addition, the profit to the extent, as was declared by the assessee, stands assessed as business income. More so, the assessee is not in appeal on this point. 5.1. Now the Revenue wants to overcome its own mistake through this miscellaneous petition, so that the impugned quantum addition can also be challenged but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly the total profit on this transaction was at Rs.36,000/- and Rs.12,41,105/- being enhancement due to adoption of sale particulars of Rs.475/- per sq.yd. The assessing officer further made an addition of Rs.3,43,456/- on account of undisclosed investment in construction. This figure was arrived at by deducting the cost of construction of Rs.2,57,378/- shown by the assessee from the cost of construction of Rs.6,00,834/- determined by the valuation officer. Thus it can be seen that the facts in the cae of Shri Kanaiyalal Hemrajani in the case of assessee s i.e. Shri Indrajit Hemrajani is different. In the case of the Kanaiyalal Hemrajani it was the case of estimation of sale price also unexplained investment in the construction of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of hearing, both the parties were in agreement that the CIT(Appeals) while deciding these two appeals of S/Shri Indrajit N.Hemrajani Kailash N.Hemrajani, Godhra had relied upon the decision in the case of Kanaiyalal N.Hemrajani and, therefore, the Tribunal may follow the its decision arrived at in the case of Shri Kaniyalal N.Hemrajani (above cited ITA No.722/Ahd/2005 for Asst.Year 1996-97). 28. After considering the totality of the facts and circumstances of the case and the fact that the Revenue s appeal in the case of Shri Kanaiyalal N.Hemrajani, which was relating to addition on account of sale price of land determined by the Assessing Officer on the basis of adoption of sale price of Rs.475/- per sq.yard, having been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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