Amar Singh Saharan, Churu vs Ito, Ward-2, Churu on 17 January, 2023
4. We heard the rival contentions and perused the record. As stated earlier,
the Tribunal has adjudicated the appeal of the assessee on merits only and it was
decided against the assessee. However, in Ground No. 2, the assessee has raised
a legal ground. It is submitted that an identical legal ground raised by another
assessee named Ashok Kumar Banthia vs. DCIT (supra) has been adjudicated
by the Tribunal in his hands and same has been decided in favour of the
assessee, which resulted in allowing the appeal of the assessee. It is the
submission of the Ld. AR of the assessee that non-adjudication upon the legal
ground urged in Ground No. 2 constitutes mistake apparent from record, as it
goes to the root of the matter. We agree with the contentions of the Ld. AR.
Accordingly, we hold that non-adjudication of the legal ground no. 2 is a
mistake apparent from record as it goes to the root of the matter. Accordingly,
we are constrained to recall the impugned order dated 7th Sept. 2021 passed by
4 M A No.02/Jodh/2022 Shri Amar Singh Saharan
the Tribunal in the hands of the assessee in ITA No. 83/Jodh/2020. We direct
the registry to post the appeal for hearing in normal course under intimation to
the parties.