Ismail Abdul Karim Balwa v. The Dy. Commissioner Of Income Tax

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL LODG. NO.1850 OF 2012 Ismail Abdul Karim Balwa. v. The Dy. Commissioner of Income Tax. ...Appellant. ...Respondent. WITH INCOME TAX APPEAL LODG. NO.1851 OF 2012 Hussein Abdul Karim Balwa....Appellant.v. The Dy. Commissioner of Income Tax....Respondent. Mr.R. Murlidhar with Mr. B.G.Yewale i/by Rajesh Shah & Co. for the Appellant.Mr.Arvind Pinto for the Respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 29TH JANUARY, 2013 PC: In these appeals by the assessee various questions have been formulated. However, the basic controversy is brought out in question (1) as formulated which reads as under : Whether on the facts and in the circumstances of the case and in law the Tribunal was right in taking the view in the order dated 6/7/2012 passed to give effect to the order of the Third Member that the rental income from the building was assessable as “Profits & Gains of Business” and not as “Income from house property” even though the Judicial Member and Accountant Member had dissented from each other on the point and the Third member had omitted to decide the point in the gross misconception that the appellant had not raised any ground on the issue? 2) In view of difference of opinion between two Members of the Tribunal on whether the rental income is taxable under the head “Profit and Gains of Business” or as “Income from House property” the matter was referred to a third Member of the Tribunal. The third Member of the Tribunal proceeded on the basis that no ground with regard to assessing rent income under the head “Income From House Property” was taken by the assessee before the Tribunal. This is factually incorrect. In its appeal memo before the Tribunal at Ground 2 thereof the assessee specifically urges the aforesaid ground. In view of the above, by consent, the order of the Tribunal dated 6/7/2012 including the third Member's order dated 11/6/2012 are set aside and the matter is remanded to the Tribunal for fresh consideration. 3)All the contentions of the parties are left open to be urged before the Tribunal. 4)Both the appeals are disposed of in the above terms with no order as to costs. (M.S.SANKLECHA, J.) (J.P. DEVADHAR, J.)