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TMI Blog1984 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. That the learned Income-tax Officer erred in not allowing vacancy claim of Rs. 4,171 (relating rent of Rs. 10,650) in computing the income from house property. 3. That the learned Income-tax Officer erred in law as well on fact in assessing capital gains at Rs. 63,512 in respect of two 3-bedroom flats sold by the appellant and her husband jointly. 4. That the learned Income-tax Officer erred in law in assessing a sum of Rs. 30,658 recovered by the appellant from 3 co-owners of the flat at Jindal House, representing their respective share of municipal taxes. 5. That the learned Income-tax Officer erred in allowing deduction under section 80T at the rate of 25 per cent instead of at the rate of 35 per cent. 6. That the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,512. 2. The authorised representative pointed out that here is a case where the ITO should have obtained the approval of the IAC, as per provision of section 52(2). But the said thing was not done here. From the assessment records, it is found that the contention of the authorised representative is correct. The ITO also admitted that by mistake, the approval of the IAC was not obtained. In view of the above position, I am of the opinion that as proper procedure was not adopted by the ITO, while computing the capital gains arising on sale of two flats, the assessment should be set aside. The ITO is directed to recompute the total income of the assessee after observing proper procedure and after allowing necessary opportunities to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) that the ITO should have considered the points covered by the remaining five grounds of appeal taken before the AAC, which were not at all touched upon by the AAC while disposing of the appeal. The Commissioner (Appeals), placing reliance upon judgment of the Supreme Court in CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 and judgment of the Calcutta High Court in the case of Katihar Jute Mills (P.) Ltd. v. CIT [1979] 120 ITR 861, held that the ITO rightly refused to reconsider the points covered by the remaining five grounds of appeal taken before the AAC and, as such, dismissed the appeal. 2. Now in this appeal, the contention of the learned counsel of the assessee is that the ITO was not justified in deciding to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised mixed questions of law and fact and the AAC did not at all touch them. It, therefore, cannot be said that those grounds were deemed to have been dealt with by the AAC. Since the AAC was silent on those five grounds, the question of filing appeal against the order of the AAC on those ground could not arise and, therefore, even if the assessee would not have taken a ground of appeal before the Tribunal as to those grounds having not been decided by the AAC, it was of no consequence. The AAC, in fact, decided only part of the appeal which he should have not done. The case of Katihar Jute Mills (P.) Ltd. has been misplaced by the Commissioner (Appeals). In that case, there was appeal before the AAC only on a particular point, which was dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this appeal was not fully disposed of by the AAC and on the other, the ITO is precluded from reconsidering his original findings on the points covered by those five grounds of appeal. The assessee should have taken an objection before the ITO prior to commencement of reassessment proceedings that the five grounds taken by him, should be first decided by the AAC. He did not take such objection. Then he did not raise such ground before the Commissioner (Appeals) and so also before us. However, this is a glaring mistake of procedure against which relief has to be granted to the assessee without entering into technicalities of procedure. We are, therefore, inclined to grant relief to the assessee. In this context, the following observations o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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