V.rammohan,New v. The Assistant Commissioner Of Income Tax, Non-Corporate Circle 6, Chennai – 600 006

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.12.2018 CORAM : THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMandTHE HONOURABLE MR.JUSTICE N.SATHISH KUMAR Tax Case Appeal No.628 of 2018 V.Rammohan,New No.25,Arathoon Road,Royapuram,Chennai – 600 013. PAN : . -vs- ...Appellant/Appellant The Assistant Commissioner of Income Tax, Non-Corporate Circle 6, Chennai – 600 006. ...Respondent/Respondent Tax Case Appeal filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax Appellate Tribunal'C/SMC'Bench,Chennai,dated09.01.2017,inITANo.288/Mds/2016, for the assessment year 2005-06 against theorder dated 19.01.2016 made in ITA No.76(IT (A)-5/14 - 15 on thefile of Commissioner of Income Tax(Appeals)5 Chennai against theorder dated 27/12/2010 made in PAN No. on the file ofAssistant Commissioner of Income Tax, Business Circle - XII,Chennai - 06 against the order dated 03/12/2009 made in PAN NCAAAPR 6060K on the file of Assistant Commissioner of Income Tax,Circle - XII, Chennai. For Appellant:M/s.Pusya Sitaraman, Senior Counsel,For M/s.J.Sree VidyaFor Respondent :Mrs.R.HemalathaSenior Standing Counsel JUDGMENT (Delivered by T.S.Sivagnanam, J.) This Tax Case Appeal, filed by the assessee under Section260A of the Income Tax Act, 1961, is directed against the orderof the Income Tax Appellate Tribunal 'C/SMC' Bench, Chennai,dated 09.01.2017, in ITA No.288/Mds/2016, for the assessmentyear 2005-06. 2.This appeal has been filed raising the followingsubstantial questions of law:"(i)Whethertherefundableadvancereceived by the appellant is liable to be taxedunder the Capital Gains?(ii)Whether a remand order of the Tribunalthat is incapable of performance can besustained?(iii)Whether the Tribunal can indirectlygive life to a time barred re-assessment bydirecting the assessing officer to take it upalong with the remanded matter?(iv)Whether the Amendment to Sec.45(5A) ofthe Finance Act 2018 is retrospective andclarificatory in nature and the appellant isright in offering the capital gains in the yearof completion of the project i.e., AY 2007-08?” 3.Heard M/s.Pushya Sitaraman, learned Senior Counselappearing for M/s.J.Sree Vidya, learned counsel for theappellant and Mrs.R.Hemalatha, learned Senior Standing Counselfor the respondent. 4.After hearing the learned counsels for the parties andcarefully perusing the order passed by the Tribunal, we findthat the Tribunal had set aside the order passed by theAssessing Officer to consider the assessee's case along with theassessment, which was re-opened, vide notice dated 28.08.2014. 5.The learned Senior Counsel for the assessee submits thatthe said proceedings have concluded much earlier and was notpending on the date when the Tribunal heard the matter and itappears that the Authorized Representative was not fully briefedand had not inadvertently stated that the reopening proceedings,pursuant to notice dated 28.08.2014, is still pending. In thelight of the above, we are of the considered view that theTribunal has to decide the appeal on merits, since the re- https://hcservices.ecourts.gov.in/hcservices/ opening proceedings, pursuant to notice dated 28.08.2014, hasalready attained finality and culminated in an order. 6.For the above reasons, this Tax Case Appeal is allowed,the order passed by the Tribunal is set aside and the matter isremanded to the Tribunal for fresh consideration to hear anddecide the appeal on merits and in accordance with law.Consequently, the substantial questions of law are leftunanswered. 7.In the result, the appeal is allowed to the extentindicated above. No costs. https://hcservices.ecourts.gov.in/hcservices/ opening proceedings, pursuant to notice dated 28.08.2014, hasalready attained finality and culminated in an order. 6.For the above reasons, this Tax Case Appeal is allowed,the order passed by the Tribunal is set aside and the matter isremanded to the Tribunal for fresh consideration to hear anddecide the appeal on merits and in accordance with law.Consequently, the substantial questions of law are leftunanswered. 7.In the result, the appeal is allowed to the extentindicated above. No costs. mrm/abr Sd/- Assistant Registrar(CS-VIII) //True Copy// Sub Assistant RegistrarTo1. The Income Tax Appellate Tribunal, 'C/SMC' Bench, Chennai.2. The Assistant Commissioner of Income Tax, Non Corporate Circle - 6, Chennai.3. The Commissioner of Income Tax, (Appeals) - 5, Chennai.4. The Commissioner of Income Tax, (Appeals) - IV, 121, Mahatma Gandhi Road, Chennai - 34.+1cc to M/s.J.Sreevidya, Advocate, S.R.No.84141T.C.A.No.628 of 2018 VGI(CO)KAK(23/01/2019)