Ito, Wardf-2 (3), Me... v. Shri Subash Chand, C...

A.K Garodia, A.M:— This misc. application is filed by the revenue pointing out some mistake in the Tribunal order dated 5.3.2010 It has been submitted by the revenue in the Misc. application that the Ld. AR of the assessee misrepresented the facts of this case regarding land holding by the assessee, it has been pointed out in the misc. application that in the course of hearing before the Tribunal, Ld. AR of the assessee has mentioned that the land holding was merely 20 puckka bigha while actual land holding is 1.525 hectare only which comes to 19.06 kachha bigha. It is submitted that the Tribunal has accepted agricultural income @ Rs. 2500/- per kacha bigha and hence the agricultural income for land holding of 19.06 kachha bigha comes to Rs. 47,650/- only and the Assessing Officer has taken the same at higher side at Rs. 55,000/- which deserves to be accepted. It is a request of the revenue in the misc. application that the facts misrepresented by the Ld. AR of the assessee should be rectified.

2. In the course of hearing before us, Ld. DR of the revenue reiterated the same facts which are stated by the revenue in the misc. application. As against this, it was submitted by the Ld. AR of the assessee that there is no misrepresentation before the Tribunal by the Ld. AR of the assessee and hence there is no mistake in the impugned Tribunal order.

3. We have considered the rival submissions and have gone through the records including the, Assessment order, order of Ld. CIT(A) and the impugned Tribunal order. We find that as per the impugned Tribunal order, it has been recorded by the Tribunal in para No. 2 of the Tribunal order that it was the submission of the assessee that he owns 70.20 kachha bighas of land and the assessee did not have any other source of income. On the basis of this submission of the Ld. AR of the assessee, the Tribunal has decided this appeal. Regarding this aspect that the assessee owns 70.20 kachha bighas of land, we find that such claim was made by the assessee before the Assessing Officer also but the same was not accepted by the Assessing Officer on this basis that as per kshara khatauni of agricultural holdings of the assessee, it has been found that the assessee holds 1.9040 hectare agricultural hooding and out of which, 0.379 hectare land has been sold by the assessee on 18.8.2003 and therefore in the present year, the assessee was holding agricultural land of 1.525 hectare only. It is also noted by the Assessing Officer that after converting the same into bighas, the total agricultural holding comes to 19.06 kachha bighas as one hectare is equal to 12.5 kachha bighas. There is no finding given by the Ld. CIT(A) regarding the area of land holding by the assessee although Ld. CIT(A) has confirmed the, Assessment order on this basis that the assessee had no basis for showing agricultural income at Rs. 1.79 lakhs. In the impugned Tribunal order, the issue has been decided on this basis that the land holding of the assessee was 70.20 kachha bighas which is on the basis of submission of Ld. AR of the assessee before the Tribunal as noted by the Tribunal in para No. 2 of the Tribunal order but there is no basis regarding this claim of the assessee that the land holding of the assessee is 70.20 kachha bighas. The, Assessment order is on the basis of khasra khatauni of agricultural holding showing land holding of 1.9040 hectare out of which, there is subsequent sale of 0.379 hectare of land and therefore, the balance land holding of the assessee remains of 1.525 hectares only. No mistake has been pointed out in this finding of the Assessing Officer by bringing the evidence on record that actual land holding of the assessee was more than 1.525 hectares. As per the Assessing Officer, one hectrare is equal to 12.5 kachha bigha and on this basis, the Assessing Officer has worked out the land holding of the assessee at 19.06 kachha bigha. No mistake has been pointed out in this working of the Assessing Officer that one hectare of land is equal to 12.5 kachha bigha of land. Under this factual position, we are in agreement with Ld. DR of the revenue that a mistake has crept in the Tribunal order regarding actual land holding of the assessee and hence we feel that this Tribunal order should be recalled for a fresh decision after verifying the factual position regarding actual land holding of the assessee. We, therefore, recall this Tribunal order and direct the Registry to fix this appeal for hearing in due course. Notice of hearing is to be issued to both sides.

4. In the result, the misc. application filed by the revenue stands allowed.