High Court Of Madras
CIT vs. Malladi Project Management (P)Ltd.
Section 260A
Asst. Year 1999-2000
K. Raviraja Pandian & P. P. S. Janarthana Raja, JJ.
Tax Case Appeal No. 1506 of 2008
24th September, 2008
Counsel Appeared :
Arun Kurian Joseph for Mrs. Pushya Sitaraman, for the Appellant
JUDGMENT
K. Raviraja Pandian, J. :
The Revenue on appeal against the order of the Tribunal dt. 6th Feb., 2008, by formulating a question of law to the effect that whether on the facts and circumstances of the case, the Tribunal was right in not considering the specific ground raised by the Revenue on the issue of treatment of consideration received for sale of shares classified as current investments, whether as business income or capital gains ?
2. The facts culled out from the memorandum of grounds are as follows :
“(i) The relevant asst. yr. is 1999-2000. The assessee is a company, filed its return of income on 31st Dec., 1999 admitting a total income of loss of Rs.1,79,45,982. The assessee transferred shares during the relevant year consisting both of fixed investments and current investments. The current investments were held as stock-in-trade and so the profit on sale was calculated without indexation while the long-term capital gains on the fixed investment was calculated after indexing the cost of the shares by the AO.
(ii) The assessee carried the assessment order on appeal before the CIT(A), who held that the current investments were also to be treated as investment and not as stock-in-trade, and the loss on the sale of the same shall be assessed as capital loss.
(iii) The Revenue, being aggrieved by the order of the CIT(A), filed an appeal before the Tribunal. The Tribunal, by the order impugned has decided the issue in favour of the assessee.”
One of the grounds on which the present appeal is filed is that the Tribunal has totally lost sight of, of the ground Nos. 5 to 5.2 on the issue of treatment of current investments, which has not at all been adjudicated.
We have heard the argument of the learned counsel for the Revenue and perused the materials available on record. We are of the view that if a particular ground has been raised by the Revenue and that ground has not been answered by the Tribunal, it is for the Revenue to bring the same to the notice of the Tribunal and get it rectified by procedure known to law. The non-consideration by itself cannot be a reason for filing an appeal. Even an appeal is filed, it has to be remitted back to the Tribunal, once again for reconsideration of the issue if the statement made by the Revenue is correct. Thereafter, the Tribunal has to do the very same exercise. Instead, the Revenue could have approached the Tribunal pointing out the mistake in not considering the specific ground raised by the Revenue and obtained an order by way of rectification, which process has not been done in this case, even though the order of the Tribunal was made on 6th Feb., 2008.
6. For the above reasons, we dismiss the appeal by observing that it is open to the Revenue to approach the Tribunal.
[Citation : 324 ITR 87]
