The Commissioner of Income Tax and The Income Tax Officer vs Sri Gurappa P. Gavali

Deepak Verma, J.—Heard Sri. Aravind Kumar, learned Counsel appeared for appellant, on the question of admission.

Revenue is in appeal against the order dated 18.10.2007 passed by Income Tax Appellate Tribunal in ITA No. 360/BANG/2006 for the assessment year 2002-03.

Assessee had preferred an appeal before the Tribunal challenging the order dated 12.01.2006 passed by the Commissioner of Income Tax (Appeals), Belgaum.

During the course of hearing before the Tribunal, respondent - assessee took two new grounds, that is to say

i) The Commissioner of Income Tax (Appeals) ought to have appreciated that the property in question never belonged to the Hindu undivided family. Therefore, capital gains cannot be computed in the status of HUF; and

ii) There existed no Hindu undivided family. Therefore, no portion of capital gains can be brought to tax in the hands of HUF.

Nodoubt, it is true that the aforesaid two grounds were taken by the assessee for the first time before the Tribunal. Those grounds were neither considered by the Assessing Officer nor by the Commissioner of Income Tax. According to Tribunal, new grounds taken required detailed enquiry in respect of the claim made by the assessee.

It appears to us that with an intention to do complete justice between the parties and especially in the light of the new two grounds taken by the assessee before the Tribunal, it thought it fit to remand the matter to the Assessing Officer to consider the matter afresh, after giving adequate opportunity to the assessee.

In the light of the said finding, appeal was partly allowed and matter was remanded. It is against this order, revenue is before us challenging the correctness, validity, propriety and legality thereof.

Learned Counsel for appellant contended that assessee had filed his returns in the capacity of HUF. Having done so, he could not have turn around to say that the same be treated as return on his individual behalf, unless he has filed a revised return to that effect.

We find from the impugned order passed by Tribunal that nothing has been decided on merits. Only because two new grounds were raised before the Tribunal for the first time, which were not there before the Assessing Officer or the Commissioner of Income Tax (Appeals), thus to (sic) record (sic) findings on the said two grounds, the matter has been remanded to the Assessing Officer to consider the same.

Against such an order, we are of the opinion that no substantial questions of law would arise for consideration before us.

However, it is clarified that the appellant is at liberty before the Assessing Officer to raise all grounds in respect of the aforesaid two grounds, for which the matter has been remanded to Assessing Officer. According to us, the Assessing Officer alone would be in a better position to consider the objection, which were tried to put forth before us in this appeal.

In this view of the matter, no substantial questions of law would arise for consideration before us. Accordingly, appeal stands finally disposed of.