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TMI Blog2014 (1) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... The tribunal cannot decide whether profit on sale of land is exempt from capital gains on the ground the land is agricultural land, without first establishing that the land was in fact agricultural land - This factum does not appear to have been examined by lower authorities - While the Tribunal does not have the power for enhancement of assessment, it certainly has the power and in fact it is obliged to enquire into all aspects an allowance which is questioned before them – Relying upon Commissioner Of Income-Tax Versus Cochin Refineries Limited [1987 (1) TMI 9 - KERALA High Court] - it cannot be held that profit on sale is exempt from capital gains without first being certain that all the requirements for the provisions of the Act are satisfied - If the lower authorities have not considered one of the aspects required to be satisfied for allowance, the tribunal is well within rights to remand the matter to the files of the AO for fresh consideration in accordance with law - Decided against Assessee. - M.A. Nos. 96 to 102/Hyd/2012 - - - Dated:- 1-2-2013 - Shri Chandra Poojari And Asha Vijayaraghavan,JJ. For the Applicants: Shri A.V. Raghuram For the Respondent : Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o notice of the Hon'ble ITAT by filing written submissions". 3. We find that this will amount to review of our decision in the impugned order. Under sec 254(2) only patent mistakes are liable to be rectified and not a review of the decision of the tribunal. In the circumstances the first point for rectification is dismissed. 4. The second point or rectification is as under: " The applicant further submitted that there is another mistake in not considered the prayer to direct the AO to allow cost of the land which is not considered by the Hon'ble ITAT. The applicant invited kind attention to the written submissions at page 20 where summary of the prayer is made and where it is submitted that the AO has considered entire receipt to be capital gains without allowing cost of acquisition. The prayer was to direct for allowing deduction u/s 54F and cost of acquisition. The Hon'ble ITAT was kind enough to direct the AO to verify the claim of 54F in para 46 of the order." 5. We find from Para 46 of our order, we have set aside the entire computation of capital gains in respect of the property under dispute in accordance with law and giving reasonable opportunity to the Assessee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disposed of by a common order. 12. MA 98/H/12 is against the our order in ITA No 1529/H/11 dt 22.3.12 in the case Kum Potla Shanthi for AY 2007-08. The ground seeking for rectification of our order is as under: " The applicant submitted that as far as direction to verify the distance from any municipality there cannot be any grievance. But giving direction to verify the nature of land is not arising out of the appeal of the department, as could be seen from the ground that is re-produced above. The only grievance of the department in their appeal is that the land loses it character once it is given for development of township. The applicant, therefore, submitted that the Hon'ble ITAT has gone into question that is not raised and issued directions on the same. The applicant submitted that this is a mistake apparent from the order and prayed for considering this petition and passing appropriate order. In this regard, the assessee invited attention to the decision of Kerala High Court in the case of Chochin Refineries Ltd., 173 ITR 461 wherein their lordships held that a relief not sought for cannot be granted by the ITAT." 13. The CIT(A) has held that the impugned land sold b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The basic issue to be decided is whether the land will constitute a capital asset. If the tribunal is of the opinion that the lower authorities have not examined all the aspects to be complied before a relief can be granted, they cannot close the eyes and grant relief only on the issue raised by the revenue. In the circumstances we do not find any infirmity in our directions and accordingly we dismiss the MA filed by the Assessee. 16. In the result the Assessee's MA No 98/H/12 in ITA No 1529/H/11 for AY 2007-08 in the case of Kum Potla Shanthi is dismissed. MA No 99/H/12 in ITA No 1530/H/11 Kum Potla Shanthi AY 2008-09 17. The MA by the Assessee is similar to the MA No 98/H/12 in ITA No 1529/H/11 for AY 2007-08 in the case of the same Assessee. 18. The issue has been considered in detail in MA No 98/H/12 supra. For the reasons stated in MA No 98/H/12 in ITA No 1529/H/11 for AY 2007-08 at paragraphs 4and 5 supra, the MA No 99/H/12 in ITA No 1530/H/11 for AY 2008- 09 in the case of Kum Potla Shanthi is dismissed. MA No 101/H/12 in ITA No 1531/H/11 for AY 2008-09 in the case of Shri. Potla Nishanth 19. The MA by the Assessee is similar to the MA No 98/H/12 in ITA No 1529 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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