Rajesh Bindal, J. - (1.) THIS appeal has been preferred under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as "the Act") proposing the following substantial questions of law, arising out of order dated 3 -8 -2007 passed by the Income Tax Appellate Tribunal, Chandigarh Bench 'B', Chandigarh (hereinafter referred to as "the Tribunal") in ITA No. 142/Chd/2003, in respect of the assessment year 1994 -95: (i) Whether on the facts and in the circumstances of the case, the Tribunal has acted perversely and illegally by not reversing the action of assessing officer and Commissioner (Appeals) in treating the advance rent as the cost of acquisition of tenancy rights and by remanding the matter back to the file of the assessing officer, when the issue arising for its determination was squarely covered by the decision rendered by the Hon'ble Supreme Court in the case of CIT v. : [2005]273ITR1(SC) ? (ii) Whether on the facts and in the circumstances of the case, the Tribunal misdirected itself in law as well on facts in remanding the case to the assessing officer in the case of the appellant for the assessment year 1994 -95 for the recalculation of capital gains tax when the cost of acquisition of tenancy rights was not ascertainable ? (iii) Whether the impugned order passed by the Tribunal remanding back the case to the assessing officer for de novo adjudication fulfills the requirements of a speaking order ?
(2.) DURING the course of assessment proceedings, it was noticed that the assessee had received an amount of Rs. 3,96,66,451 on account of transfer of tenancy rights to State Bank of Patiala in respect of its property at Bombay. However, the same was claimed to be exempted from taxation. The assessee had acquired tenancy rights for a show room measuring 2,547 sq. fts. for a term of 50 years vide agreement dated 5 -7 -1977. The basic rent for the show room was fixed @ of Rs. 4.111211 per sq. mtr. per month in respect of 1st floor and Rs. 1.943481 per sq. mtr. per month for the mezzanine floor. The assessee was required to pay the entire basic rent and the parking space rent for 60 years in advance, which was accordingly paid. According to the assessee the amount of rent paid by the assessee in advance was adjustable towards monthly payment of rent as per agreement. Vide agreement dated 30 -3 -1997 the assessee agreed to transfer the tenancy rights for the remaining period to State Bank of Patiala and received a sum of Rs. 3,96,66,451 on account thereof. The revenue sought to levy capital gains tax on this receipt, which was disputed by the assessee. The assessing officer noticed that besides the lump sum payment of basic rent made by the assessee to the lessor for the entire period of 60 years of lease, the outgoing rent had been fixed at Rs. 9,571 per month, which was paid by the assessee. While relying upon the judgment of Hon'ble the Supreme Court, the assessing officer opined that lump sum payment made at the time of acquisition of the tenancy rights would be a consideration for acquisition of asset and accordingly, the consideration later earned by the assessee for transfer of those rights would be assessable to capital gains tax. In appeal before the Commissioner (Appeals) ((hereinafter referred to as 'the CIT(A)), the assessee failed on this ground. Still further in appeal before the Tribunal, the matter was referred back to the assessing officer for fresh adjudication after affording opportunity to the assessee to produce any further evidence to substantiate its claim.
(3.) THE submission of the learned senior counsel appearing for the assessee is that inspite of the fact that the Tribunal had recorded findings in the order that the cost of acquisition of asset in the present case is not determinable, keeping in view the judgment of Hon'ble the Supreme Court in CIT v. : [2005]273ITR1(SC) the appeal filed by the assessee deserved to be accepted in toto and there was no need for remanding the case. The apprehension expressed by him is that even though judgment in CIT v. D.P. Sandu Bros. Chembur (P) Ltd. case (supra) was cited but the Tribunal without opining anything remitted the matter to the assessing officer, who may not look into the judgment in absence of any findings on that issue by the Tribunal. Learned Counsel for the revenue , however, submitted that these findings are perverse in case the record of the assessing officer is considered, where it has specifically been recorded that besides lump sum payment of basic rent, additional rent per month was being paid by the assessee. However, the submission was made that as the matter was only remanded back, the revenue did not choose to file appeal before this Court.;