Mr. Anthony Fernandes., Cancona V. The Assistant Commissioner of Income Tax, Circle-1, Margao., Margao

CO 28/PAN/2015

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1058 (ITAT-PANAJI)
• Duration Of Justice: 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 13-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S NATARAJ LD
• Assessee Lawyers: D E ROBINSON
• Section: 54B; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 332/PNJ/2014 : (A.Y 2009 - 10) ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1, MARGAO, GOA (APPELLANT) VS. ANTHONY JOSE FERNANDES NO. 852, PATANEM, CANACONA, GOA (RESPONDENT) PAN : AAOPF1578J CO NO. 28/PNJ/2015 (IN ITA NO. 332/PNJ/2014 ) : (A.Y 2009 - 10) ANTHONY JOSE FERNANDES NO. 852, PATANEM, CANACONA, GOA (CROSS OBJECTOR) PAN : AAOPF1578J VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1, MARGAO, GOA (RESPONDENT) ASSESSEE BY : D.E. ROBINSON, ADV. REVENUE BY : S. NATARAJ, LD. DR DATE OF HEARING : 27/07/2015 DATE OF PRONOUNCEMENT : 27/07/2015 O R D E R PER GEORGE MATHAN : 1. ITA NO. 332/PNJ/2014 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), PANAJI IN ITA NO. 493/MRG/11 - 12 DT. 17.7.2014 FOR A.Y 2009 - 10 AND CO NO. 28/PNJ/2015 IS THE CROSS OBJECTION FILED BY THE ASSESSEE IN THE REV ENUES APPEAL BEING ITA NO. 332/PNJ/2014. SHRI S. NATARAJ, LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI D.E. ROBINSON, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 2 ITA NO. 332/PNJ/2014 & CO NO. 28/PNJ/2015 (A.Y : 2009 - 10) 2. AT THE TIME OF HEARING, THE LD. AR ON BEHALF OF THE ASSESSEE SUBMITTED THAT HE DID NOT WISH TO PRESS THE CROSS OBJECTION FILED BY THE ASSESSEE. CONSEQUENTLY, THE CROSS OBJECTION FILED BY THE ASSESSEE STANDS DISMISSED AS NOT PRESSED. 3. IN RESPECT OF THE REVENUES APPEAL, IT WAS SUBMITTED BY THE LD. DR THAT THE AP PEAL WAS AGAINST THE ACTION OF LD. CIT(A) IN ALLOWING THE CLAIM OF THE ASSESSEE U/S 54B OF THE ACT TO THE EXTENT OF RS. 1 CRORE AS AGAINST RS. 27 LACS DISALLOWED BY THE AO. IT WAS ALSO THE SUBMISSION THAT THE LD. CIT(A) HAD UPHELD THE CLAIM OF THE ASSESSE E THAT THE LAND SOLD BY THE ASSESSEE WAS AN AGRICULTURAL LAND. IT WAS THE SUBMISSION THAT IN THE COURSE OF THE ASSESSMENT IT WAS NOTICED BY THE AO THAT THE ASSESSEE HAD SOLD LAND WITHIN THE MUNICIPAL LIMITS TO MARIOTT HOTELS. IT WAS THE SUBMISSION THAT T HE ASSESSEE WAS UNABLE TO PROVE THAT THE LAND SOLD WAS AN AGRICULTURAL LAND. IT WAS THE FURTHER SUBMISSION THAT THE SAID LAND WAS SOLD FOR A CONSIDERATION OF NEARLY RS. 10 CRORES AND THE ASSESSEE HAD PURCHASED ANOTHER AGRICULTURAL LAND FOR A CONSIDERATION OF RS. 27.14 LACS THOUGH THE ASSESSEE HAD PAID RS. 1 CRORE FOR THE SAME. IT WAS THE SUBMISSION THAT AS THE ASSESSEE WAS UNABLE TO PROVE THAT THE LAND SOLD WAS AN AGRICULTURAL LAND, THE CLAIM OF DEDUCTION U/S 54B OF THE ACT IN RESPECT OF HIS INVESTMENT IN THE AGRICULTURAL LAND WAS ALSO DENIED. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD ACCEPTED THE ASSESSEES CLAIM THAT THE LAND SOLD WAS AN AGRICULTURAL LAND AND HAD ALSO ALLOWED THE ASSESSEES CLAIM OF DEDUCTION U/S 54B OF THE ACT TO THE EXTENT OF RS. 1 CRORE REPRESENTING THE AMOUNT PAID BY THE ASSESSEE TO THE SELLER OF THE AGRICULTURAL LAND WHICH WAS PURCHASED BY THE ASSESSEE THOUGH THE SAME WAS REGISTERED AT RS. 27 LACS ONLY. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AO. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3 ITA NO. 332/PNJ/2014 & CO NO. 28/PNJ/2015 (A.Y : 2009 - 10) 4. IN REPLY, THE LD. AR DREW OUR ATTENTION TO PG. 21 OF THE PAPER BOOK WHICH WAS THE LAND RECORD IN RESPECT OF THE LAND SOLD. IT WAS SUBMITTED THAT AS PER THE LAND RECORDS, THE LAND WAS CLASSIF IED AS AN AGRICULTURAL LAND. IT WAS THE SUBMISSION THAT THOUGH THIS EVIDENCE WAS PRODUCED BEFORE THE AO, HE REFUSED TO CONSIDER THE SAME AND THE LD. CIT(A) HAD CONSIDERED THE EVIDENCES ALONGWITH THE AFFIDAVITS FILED TO HOLD THAT THE LAND SOLD WAS AN AGR ICULTURAL LAND. IT WAS THE FURTHER SUBMISSION THAT AS PER THE PURCHASE DOCUMENTS IN RESPECT OF THE LAND PURCHASED BY THE ASSESSEE FROM SHRI METRI BY PAYING AN AMOUNT OF RS. 1 CRORE, THE PROPERTY WAS REGISTERED AT RS. 27 LACS AS THE GUIDELINE VALUE FIXED B Y THE GOVERNMENT IN RESPECT OF THE SAID LAND WAS ONLY RS. 27 LACS. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD RIGHTLY ALLOWED THE ASSESSEE THE CLAIM OF DEDUCTION U/S 54B OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE LAND RECORDS, MORE SPECIFICALLY FORM NO. II, IN NAGARCEM PALOLEM SHOWS THAT THE LAND SOLD BY THE ASSESSEE HAS BEEN RECORDED IN THE REVENUE RECORDS AS AN AGRICULTURAL LAND. IN THESE CIRCUMSTANCES, AS THE REVENUE RECORDS OF THE STATE CLEARLY HOLD THE LAND WHICH HAS BEEN SOLD AS AN AGRICULTURAL LAND, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(A) IN HOLDING THE LAND SOLD BY THE ASSESSEE AS AN AGRICULTURAL LAND DOES NOT CALL FOR ANY INTERFERENCE. 6. COMING TO THE ISSUE OF DEDUCTION U/S 54B, IT IS NOTICED THAT THE ASSESSEE HAS REGISTERED THE AGRICULTURAL LAND PURCHASED BY THE ASSESSEE IN VENGURLA FROM SHRI METRI AT RS. 27 LACS. THOUGH THE MEMORANDUM OF UNDERSTANDING DOES TALK OF PAYMENT OF CONSIDERATION OF RS. 1 CRORE, THE REGISTRATION HAS BEEN DONE ONLY FOR THE AMOUNT OF RS. 27 LACS. THE ASSESSEE HAS ADMITTED THAT THE SALE DEED, IN FACT, MENTIONS ONLY AN AMOUNT OF RS. 27,14,288/ - AND THE BALANCE CONSIDERATION HAS BEEN PAID FOR THE PLANTATION, MORE SPECIFICALLY, THE TREES AND CROPS ON THE 4 ITA NO. 332/PNJ/2014 & CO NO. 28/PNJ/2015 (A.Y : 2009 - 10) SAID LAND. A PE RUSAL OF THE PROVISIONS OF SEC. 54B SHOWS THAT THE WORDS USED IN THE SAID SECTION ARE COST OF THE LAND SO PURCHASED . CONSEQUENTLY, THE COST OF THE LAND IN THE ASSESSEES CASE BEING THE FIGURE AS DISCLOSED IN THE SALE DEED IS ONLY RS. 27,14,288/ - , THE AS SESSEE WOULD BE ENTITLED TO THE DEDUCTION U/S 54B ONLY TO THE EXTENT OF THIS AMOUNT AND NOT RS. 1 CRORE AS ALLOWED BY THE LD. CIT(A). THE ASSESSEE HAS RELIED UPON THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF JANARDAN DASS REPORTED IN 29 9 ITR 210. IN THE SAID DECISION OF THE HON'BLE ALLAHABAD HIGH COURT THE ASSESSEE THEREIN HAD PURCHASED A LAND ALONGWITH TUBEWELLS AND TREES WHICH WERE PART OF THE AGRICULTURAL LAND. THIS IS NOT A CASE WHERE THE ASSESSEE HAD PAID SEPARATELY FOR THE LAND A ND SEPARATELY FOR THE PLANTATION WHEREAS IN THE ASSESSEES CASE THE SALE DEED HAS BEEN REGISTERED ONLY FOR RS. 27,14,288/ - . CONSEQUENTLY, THIS DECISION OF THE HON'BLE ALLAHABAD HIGH COURT DOES NOT HELP THE ASSESSEES CASE. IN THE CIRCUMSTANCES, THE ORDER OF THE LD. CIT(A) ON THIS ISSUE STANDS MODIFIED AND THE AO IS DIRECTED TO GRANT THE ASSESSEE THE BENEFIT OF DEDUCTION U/S 54B TO THE AMOUNT AS DISCLOSED BY THE ASSESSEE IN THE SALE DEED BEING RS. 27,14,288/ - . IN THE RESULT, THE APPEAL OF THE REVENUE IS P ARTLY ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED AND THE CROSS OBJECTION OF THE ASSESSEE STANDS DISMISSED AS NOT PRESSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/07/2015. S D / - (N.S. SAINI) A CCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 27/07/ 201 5 *SSL* 5 ITA NO. 332/PNJ/2014 & CO NO. 28/PNJ/2015 (A.Y : 2009 - 10) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 6 ITA NO. 332/PNJ/2014 & CO NO. 28/PNJ/2015 (A.Y : 2009 - 10) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 27/07/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 27/07/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 2 8 /07/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 2 8 /07/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 2 8 /07/2015 SR.PS 6. DATE OF PRONOUNCEMENT 27/07/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 2 8 /07/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER