Income Tax Officer, Ward -1(1), Panaji V. Shri Joaquim D' Souza., Panaji

ITA 104/PAN/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93625 (ITAT-PANAJI)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 20-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S NATARAJ LD
• Assessee Lawyers: VITHAL Y PAWAR
• Section: 2

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. 104/PNJ/2015 : (A.Y 2008 - 09) INCOME TAX OFFICER WARD 1(1), PANAJI (APPELLANT) VS. SHRI JOAQUIM DSOUZA F - 1, PANORAMA APARTMENT, ALTINHO, PANAJI, GOA. (RESPONDENT) PAN : ABWPD4941N ITA NO. 105/PNJ/2015 : (A.Y 2008 - 09) INCOME TAX OFFICER WARD 1(1), PANAJI (APPELLANT) VS. SMT. THELMA JOAQUIM DSOUZA F - 1, PANORAMA APARTMENT, ALTINHO, PANAJI, GOA. (RESPONDENT) PAN : ABWPD4940P ASSESSEE BY : VITHAL Y. PAWAR, ADV. REVENUE BY : S. NATARAJ, LD. DR DATE OF HEARING : 30/07/2015 DATE OF PRONOUNCEMENT : 30/07/2015 O R D E R PER GEORGE MATHAN : 1. ITA NO. 104/PNJ/2015 IS AN APPEAL FILED BY REVENUE AGAINST THE ORDER OF THE LD. CIT(A), PANAJI - 1 IN ITA NO. 253/PNJ/2010 - 11 DT. 31.12.2014 FOR THE A.Y 2008 - 09 IN THE CASE OF SHRI JOAQUIM DSOUZA AND ITA NO. 105/PNJ/2015 IS AN APPEAL FILED BY REVENUE AG AINST THE ORDER OF THE LD. CIT(A), PANAJI - 1 IN ITA NO. 252/PNJ/2010 - 11 DT. 31.12.2014 FOR THE A.Y 2008 - 09 IN THE CASE OF SMT. THELMA DSOUZA. AS IN THE ABOVE CASES PROVISIONS OF SEC. 5A ARE 2 ITA NOS. 104 & 105/PNJ/2015 (A.Y : 2008 - 09) APPLICABLE AND THE ISSUES ARE IDENTICAL RELATING TO HUSBAND AND W IFE, WHO ARE THE ASSESSEES, BOTH THE APPEALS ARE DIS POSED OFF BY THIS COMMON ORDER. SHRI VITHAL Y. PAWAR, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI S. NATARAJ, LD. DR REPRESENTED ON BEHALF OF THE REVENUE. 2. IT WAS SUBMITTED BY THE LD. DR THAT THE ISSUES IN THE REVENUES APPEALS WAS AGAINST THE ACTION OF THE LD. CIT(A) IN HOLDING THAT THE LAND SOLD BY THE ASSESSEES WAS AN AGRICULTURAL LAND ON WHICH AGRICULTURAL OPERATIONS HAD BEEN CARRIED ON. IT WAS THE SUBMI SSION THAT IN THE COURSE OF THE ASSESSMENT THE AO HAD NOTICED THAT THE LAND WAS SOLD BY THE ASSESSEES TO M/S. RDMK REAL ESTATE PVT. LTD., MUMBAI. IT WAS THE FURTHER SUBMISSION THAT THE AO WAS OF THE VIEW THAT THE SALE DEED DID NOT MENTION THE PROPERTY SOL D AS AN AGRICULTURAL LAND AND IN THE EXTRACTS OF FORM - I & XIV FURNISHED BY THE SUB - REGISTRAR, THE DETAILS OF THE CROP AREA WAS NIL AND THERE WAS NO MENTION OF AGRICULTURAL ACTIVITY CARRIED ON AND AS THE ASSESSEES HAVE NOT SHOWN NOR PRODUCED ANY EVIDENCE OF AGRICULTURAL OPERATIONS, THE AO HELD THE PROPERTY SOLD AS NON - AGRICULTURAL LAND AND CONSEQUENTLY, HELD THE SAME TO BE LIABLE TO CAPITAL GAINS TAX. IT WAS ALSO THE SUBMISSION THAT A TEAM OF INSPECTORS DEPUTED FROM THE AOS OFFICE HAD ALSO INSPECTED THE SAID PROPERTY AND SUBMITTED THAT STANDING TREES THEREIN HAD GROWN SPONTANEOUSLY OVER A PERIOD OF YEARS. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD ACCEPTED THE CONTENTION OF THE ASSESSEES THAT THE LAND SOLD WAS AN AGRICULTURAL LAND. IT WAS THE SUBMISS ION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, THE LD. AR SUBMITTED THAT THE ASSESSEES HAD SOLD 90,000 SQ. MTRS. OF AGRICULTURAL LAND TO M/S. RDMK REAL ESTATE PVT. LTD., MUMBAI FOR A TOTAL CONSIDERATION OF RS . 8,12,92,500/ - AND THE ASSESSEES SHARE IN THE SAID SALE CONSIDERATION WAS RS. 1,62,58,500/ - . THE TEAM OF INSPECTORS SENT BY THE AO 3 ITA NOS. 104 & 105/PNJ/2015 (A.Y : 2008 - 09) HAD INSPECTED SOME PORTION OF THE LAND AND HAD COME TO A CONCLUSION THAT THE SAID PROPERTY WAS A JUNGLE BASED LAND AND AFT ER ENQUIRY WITH SOME LOCAL FAMILIES HAD WRITTEN A REPORT STATING THAT WILD ANIMALS LIKE LION EXISTED IN THE SAID PROPERTY. AT THIS POINT, THE LD. AR DREW OUR ATTENTION TO PG. 18 OF THE PAPER BOOK, WHICH IS COPY OF THE CERTIFICATE ISSUED BY THE GOA FOREST DEVELOPMENT CORPORATION LTD., A GOVERNMENT OF GOA UNDERTAKING, WHICH HAS GIVEN A SPECIFIC CERTIFICATE THAT THERE ARE NO WILD LIONS IN THE FOREST AREA OF THE STATE OF GOA. IT WAS THE FURTHER SUBMISSION THAT AFTER MENTIONING REGARDING THE WILD ANIMALS AND L IONS, THE TEAM OF INSPECTORS DID NOT VENTURE INTO THE PROPERTY. THE LD. AR FURTHER DREW OUR ATTENTION TO PAGES 3 TO 6 OF THE PAPER BOOK WHICH WERE PHOTOGRAPHS OF THE PROPERTY SHOWING NUMEROUS COCONUT TREES, CASHEW TREES ETC. THE LD. AR FURTHER DREW OUR A TTENTION TO FORM III BEING THE INDEX OF LANDS IN RESPECT OF THE VARIOUS SURVEY NUMBERS BEING SURVEY NOS. 346/1, 347/1, 348/1 AND 352/2. AS PER THE INDEX OF LANDS, SURVEY NO. 346/1 SHOWS LAND TO BE CULTIVABLE LAND HAVING DRY CROP AND BHARAD, SURVEY NO. 3 47/1 SHOWS LAND TO BE CULTIVABLE LAND HAVING COCONUT AND BHARAD AND SURVEY NO. 348/1 AGAIN SHOWS THE LAND TO BE CULTIVABLE LAND HAVING MIXED GARDEN AND SURVEY NO. 352/2 IS ALSO SHOWN AS CULTIVABLE LAND HAVING MIXED GARDEN. HE DREW OUR ATTENTION TO FORM - I & XIV AT PAGES 10 TO 10 OF THE PAPER BOOK. THE CULTIVABLE AREA UNDER THE HEADING GARDEN FOR SURVEY NO. 352/2 IS SHOWN AT 1.62.00 REPRESENTING 1.62 HECTARES. SURVEY NO. 348/1 IS SHOWING GARDEN AREA OF 1.48 HECTARES. SURVEY NO. 347/1 IS SHOWING 1.01 H ECTARES OF DRY CROP AND 0.59 HECTARES OF GARDEN. SURVEY NO. 346/1 IS SHOWING 4.3 HECTARES OF DRY CROP. THE LD. AR FURTHER DREW OUR ATTENTION TO PAGE 17 OF THE PAPER BOOK WHICH WAS CERTIFICATE ISSUED BY THE MAMLATDAR OF CANACONA TALUKA WHEREIN IT IS MENTI ONED THAT THERE IS DRY CROP AND GARDEN LAND AND CULTIVATION IS GOING ON. THE LD. AR FURTHER DREW OUR ATTENTION TO PAGES 23 TO 25 WHICH ARE COPIES OF THE BILLS FOR SALE OF COCONUT AND COPRA. FURTHER, HE DREW OUR ATTENTION TO PAGE 25A OF THE PAPER BOOK WHI CH WAS 4 ITA NOS. 104 & 105/PNJ/2015 (A.Y : 2008 - 09) THE CERTIFICATE ISSUED BY THE ZONAL AGRICULTURAL OFFICER, CANACONA, GOA WHICH CERTIFIES THAT THE ASSESSEES HAVE AVAILED SUBSIDY FROM ZONAL AGRICULTURAL OFFICE, CANACONA FOR PLANT PROTECTION EQUIPMENT, CASHEW MAINTENANCE AND COCONUT GROWING UNDER S.S .C PROGRAMME OF COCONUTS. PAGES 26 TO 28 OF THE PAPER BOOK ARE COPIES OF THE RECEIPT FOR THE SUBSIDY RECEIVED BY THE ASSESSEES. IT WAS THE SUBMISSION BY THE LD. AR THAT THE ASSESSEES WERE ALSO SELLING COCONUT SAPLINGS AND CASHEW GRAFTS. ON A SPECIFIC QU ERY FROM THE BENCH AS TO WHAT IS THE STATUS OF THE LAND AS ON TODAY, IT WAS SUBMITTED BY THE LD. AR THAT AS THE LAND FELL WITHIN THE COASTAL REGULATION ZONE, CONSEQUENTLY THE SAID LAND WAS WITHIN GREEN BELT AND THEREFORE NO INFRASTRUCTURE DEVELOPMENT COULD BE DONE ON THE SAID LAND AND THE LAND REMAINS PLANTATION LAND EVEN TODAY. IT WAS THE FURTHER SUBMISSION THAT THE ASSESSEES HAD ALSO BEEN FILING RETURN OF INCOME FOR VARIOUS YEARS DECLARING AGRICULTURAL INCOME WHICH HAS ALSO BEEN ACCEPTED BY THE REVENUE. IT WAS THE SUBMISSION THAT THE ASSESSEES DID NOT HAVE ANY OTHER SOURCE OF INCOME OTHER THAN AGRICULTURAL INCOME AND INCOME FROM OTHER SOURCES REPRESENTING INTEREST ON FIXED DEPOSITS. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE UPHELD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITTEDLY, A PERUSAL OF THE VARIOUS EVIDENCES PRODUCED BY THE ASSESSEES IN THE FORM OF FORM III AND FORM I & XIV, WHICH ARE GOVERNMENT RECORDS AND LAND REVENUE RECORDS CLEARLY SHOW THAT THE LAND HAS BEEN RECORDED AS CULTIVABLE AGRICULTURAL LAND. THE SUBSIDY RECEIVED BY THE ASSESSEES FROM THE GOVERNMENT OF GOA THROUGH THE ZONAL AGRICULTURAL OFFICER ALSO CLEARLY ADMITS TO THE FACT OF AGRICULTURAL OPERATIONS DONE BY THE ASSESSEES. THE SALE BILLS OF THE AGRICULTURAL PRODUCE ALSO SUPPORTS THE CLAIM OF THE ASSESSEES. AS AGAINST THESE SUBSTANTIAL EVIDENCES PRODUCED BY THE ASSESSEES, THE ONLY EVIDENCE AVAILABLE ON THE SIDE OF THE REVENUE IS THE REPORT OF A TEAM OF INSPECTORS. IT MAY BE MENTIONED HERE T HAT THE 5 ITA NOS. 104 & 105/PNJ/2015 (A.Y : 2008 - 09) SAID REPORT HAS ALSO NOT BEEN PRODUCED BEFORE US TILL DATE. THIS REPORT ALSO STANDS COUNTERED BY THE PHOTOGRAPHS, AS ALSO THE CERTIFICATE ISSUED BY THE MANAGING DIRECTOR, GOA FOREST DEVELOPMENT CORPORATION LTD. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THERE IS NO ERROR IN THE ORDER OF THE LD. CIT(A) WHICH CALLS FOR ANY INTERFERENCE. CONSEQUENTLY, THE FINDINGS OF THE LD. CIT(A) THAT THE LAND SOLD BY THE ASSESSEES IS AGRICULTURAL LAND ON WHICH AGRICULTURAL OPERATIONS ARE CARRIED ON STANDS CONF IRMED. 5. IN THE RESULT, THE APPEALS FILED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/07/2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 30/07/ 201 5 *SSL* 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 NOS. 104 & 105/PNJ/2015 (A.Y : 2008 - 09) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 30/07/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 30/07/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 3 1 /07/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 3 1 /07/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 3 1 /07/2015 SR.PS 6. DATE OF PRONOUNCEMENT 30/07/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 3 1 /07/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER