Sulochana Bhimaraja, CHENNAI V. ACIT, CHENNAI

ITA 1306/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6398 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M N MAURYA
• Assessee Lawyers: T BANUSEKAR
• Keywords: Capital asset; Earning of tax free income; Tangible material; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , ! ' . #$ , % & BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A.NO.1306/MDS/2016 ( / ASSESSMENT YEAR: 2008-09) SMT. SULOCHANA BHIMARAJA, A-2, WHISPERING HEIGHTS, 138, ST. MARYS ROAD, ALWARPET, CHENNAI 600 018. VS THE ASST. COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE 3, CHENNAI -34. PAN: ACGPS4706H ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI T. BANUSEKAR, CA /RESPONDENT BY : SHRI M.N. MAURYA, JCIT /DATE OF HEARING : 14.07.2017 ! /DATE OF PRONOUNCEMENT : 17.08.2017 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-4, CHENNAI DATED 23.02.2016 IN ITA NO.103/2015-16/A.Y 2008- 09/CIT(A)-4 FOR THE ASSESSMENT YEAR 2008-09 PASSED U/S.250(6) R.W.S. 143(3) & 147 OF THE ACT. 2 ITA NO.1306/MDS/2016 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HER A PPEAL; HOWEVER THE CRUX OF THE ISSUE IS THAT (I) THE LD.CIT(A) HAS ERRED IN UPHOLDING THE REOPEN ING OF ASSESSMENT U/S.147 OF THE ACT. (II) THE LD.CIT(A) HAS ERRED IN SUSTAINING THE ORDE R OF THE LD. AO WHO HAD TREATED THE AGRICULTURAL LAND SOLD B Y THE ASSESSEE AS NON-AGRICULTURAL LAND AND THEREBY COMPU TED SHORT TERM CAPITAL GAIN OF RS.13,45,02,000/-. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL, FILED HER RETURN OF INCOME FOR THE RELE VANT ASSESSMENT YEAR ON 02.08.2008 ADMITTING TOTAL INCOME AS RS.2,6 2,850/- AND CLAIMED REFUND OF RS.51,48,020/-. THE CASE WAS SEL ECTED FOR SCRUTINY AND FINAL ORDER WAS PASSED U/S. 143(3) OF THE ACT ON 31.03.2015 WHEREIN THE LD.AO TREATED THE AGRICULTUR AL LAND SOLD BY THE ASSESSEE AS NON-AGRICULTURE AND THEREBY COMP UTED THE SHORT TERM CAPITAL GAIN. 4. GROUND NO.2(I) : REOPENING U/S.147 OF THE ACT:- 3 ITA NO.1306/MDS/2016 IN THE ASSESSMENT PROCEEDINGS OF SHRI S.A. BHIMAR AJA, IT WAS OBSERVED THAT HE HAD SOLD HIS LAND DURING THE R ELEVANT ASSESSMENT YEAR 2008-09 WHICH WAS PARTLY TRANSFERRE D FROM HIS SPOUSE (THE ASSESSEE BEFORE US) ALONG WITH THE BALA NCE LAND OWNED BY HIS SPOUSE AND CLAIMED THE LAND SOLD BY TH EM TO BE AGRICULTURE LAND WHICH WAS FOUND TO BE NON-AGRICULT URAL LAND. BASED ON THIS INFORMATION RECEIVED BY THE LD.AO IT WAS OPINED THAT THE INCOME HAD ESCAPED IN THE HANDS OF THE ASS ESSEE ALSO. THEREFORE THE LD.AO REOPENED THE ASSESSMENT OF THE ASSESSEE U/S.147 OF THE ACT BY ISSUANCE OF NOTICE U/S.148 OF THE ACT ON 27.03.2014 AFTER OBTAINING DUE SANCTIONS. THEREAFT ER THE LD.AO HAD FURNISHED THE REASONS FOR REO-OPENING TO THE AS SESSEE AGAINST WHICH THE ASSESSEE OBJECTED. HOWEVER THE LD .AO PROCEEDED TO REFRAME THE ASSESSMENT BY REJECTING TH E ARGUMENTS ADVANCED BY THE ASSESSEE. THE LD.CIT(A) A LSO CONFIRMED THE ORDER OF THE LD.AO BY RELYING ON THE REBUTTAL OF THE LD.AO VIDE HIS LETTER DATED 23.03.2015 ADDRESSED TO THE ASSESSEE. THE CONCISE GIST OF THE REBUTTAL OF THE LD.AO IS STATED HEREIN BELOW FOR REFERENCE:- (I) ON VERIFICATION OF THE ORDER SHEET ENTRIES AND THE COVERING LETTER ADDRESSED TO THE ASSESSEE AT THE TI ME OF 4 ITA NO.1306/MDS/2016 SCRUTINY ASSESSMENT PROCEEDINGS, IT WAS FOUND THAT THE ISSUE REGARDING THE CORRECTNESS OF EXEMPTION CLAIME D TOWARDS THE SALE OF LAND WAS NEVER DELIBERATED. (II) FROM THE ASSESSMENT ORDER, IT IS SELF-EXPLANAT ORY THAT THE LD.AO HAD NOT COME TO ANY CONCLUSION ON THE NATURE OF LAND SOLD. (III) IN THE COMPUTATION STATEMENT THE FIGURES SHOW N REPRESENTING INCOME EXEMPT U/S.10, THE LAST TWO DIGITS JUMPED TO THE NEXT LINE JUST BELOW, DUE TO W HICH THE RELEVANCE WITH REGARD TO ITS QUANTUM WAS LOST. (IV) FROM THE ORDER SHEET ENTRIES AND ASSESSMENT RE CORDS, IT IS EVIDENT THAT THE LD.AO HAD NOT MADE ANY ENQUI RIES TO ASCERTAIN THE NATURE OF LAND SOLD WHILE ALLOWING THE CLAIM OF EXEMPT INCOME AT THE TIME OF ORIGINAL ASSESSMENT. (V) THE LD.AO HAS FAILED TO APPLY HIS MIND AT THE T IME OF ORIGINAL ASSESSMENT EVEN WITH REGARD TO THE ADDITIO N MADE FOR RS.1,50,00,000/- TOWARDS THE SOURCE OF INVESTMENT IN AGRICULTURAL LAND, AS THERE IS NO DIS CUSSION IN THE ASSESSMENT ORDER ON THE DETERMINATION OF THE VALUE OF THE INVESTMENT MADE BY THE ASSESSEE. 5 ITA NO.1306/MDS/2016 (VI) RELIANCE WAS PLACED IN THE DECISIONS OF HONBL E HIGH COURT OF DELHI IN THE CASE CONSOLIDATED PHOTO AND FINVEST LTD VS. ACIT REPORTED IN 281 ITR 394 VIDE O RDER 17.01.2006 AND IN THE CASE DELHI GLASS WORKS PVT. L TD. VS. CIT REPORTED IN 81 ITR 95 ETC., 4.1 THEREAFTER THE LD.CIT(A) UPHELD THE RE-OPENING BY OBSERVING AS UNDER:- 13. FROM THE PERUSAL OF THE ABOVE OBSERVATIONS AND THE FINDINGS OF THE ASSESSING OFFICER, IT BECOMES QUITE EVIDENT THAT THE AO HAD THOROUGHLY AND PROPERLY DEALT WITH THE RELEVANT ISSUES RAISED BY THE ASSESSEE. I DO NOT FI ND ANY INFIRMITY IN THE ABOVE FINDINGS OF THE AO WHICH COU LD CALL FOR ANY ADVERSE INFERENCE. THE AO WAS WITHIN HER JURISDICTION AND HAD RIGHTLY INVOKED THE PROVISIONS OF SECTION 147. REGARDING THE CONTENTION OF THE ASSES SEE THAT THERE WAS A CHANGE OF OPINION IN INVOKING SECT ION 147, THE AO HAS RIGHTLY OBSERVED THAT THERE WAS NO OPINION FORMED BY THE EARLIER AO WHICH COULD HAVE B EEN CHANGED BY THE AO AT A LATER STAGE. THEREFORE, IN VIEW OF THE ABOVE, IT IS NOTICED THAT THE CONTENTIONS RAISE D BY THE ASSESSEE ARE NOT ON A STRONG AND LEGAL FOOTING WHIC H COULD OVERRULE THE ACTION OF THE AO. HENCE, THE PLE A OF THE ASSESSEE IN THIS REGARD IS REJECTED. 4.2 BEFORE US THE LD.AR MADE THE FOLLOWING SUBMISSI ONS TO ESTABLISH THAT THE REOPENING IS BAD:- 6 ITA NO.1306/MDS/2016 (I) IN THE CASE OF THE ASSESSEE THE REOPENING WAS M ADE BEYOND FOUR YEARS FROM THE RELEVANT ASSESSMENT YEAR . (II) THE REASONS FOR RE-OPENING INTIMATED BY THE RE VENUE TO THE ASSESSEE STATES AS FOLLOWS: THE ASSESSEE SMT. SULOCHANA BHIMARJA HAD SOLD SOME AGRICULTURAL LANDS DURING THE FINANCIAL YEAR RELEVA NT TO THE ASSESSMENT YEAR 2008-09. THE ASSESSEE HAD PURCHASED THE AGRICULTURAL LANDS BY WAY OF POWER OF ATTORNEY AND SHE SUBSEQUENTLY SOLD THEM WITHIN A SP AN OF 1 YEAR. THE ASSESSEE CLAIMED THE SALE PROCEEDS AS EXEMPT SINCE THE PROPERTIES SOLD ARE NOT CAPITAL AS SETS SPECIFIED U/S.2(14). ON EXAMINING THE RECORDS, THE ASSESSEE IS BUYING AND SELLING THE PROPERTY FREQUEN TLY WHICH CAN BE CONFIRMED FROM THE TABLE AS BELOW: PURCHASE DEED DATE OF PURCHASE SALE DEED DATE OF SALE 473/2007 14.03.2007 8829/2007 10.08.2007 473/2007 14.03.2007 8830/2007 10.08.2007 8321/2006 18.09.2006 9446/2007 21.09.2007 1333/2006 28.06.2006 9445/2007 21.09.2007 ALONG WITH THE ABOVE MENTIONED PROPERTIES, THE ASSESSEE HAS PURCHASED AND SOLD AROUND 28 PROPERTIE S DURING THE SAME FINANCIAL YEAR RELEVANT TO ASSESSME NT YEAR 2008-09. SO, IT M ASSESSMENT YEAR BE INFERRED THAT THE ASSESSEE IS DOING BUSINESS OF REAL ESTATE AND THAT AGRICULTURE IS NOT HER ACTUAL PROFESSION. THE ASSESSEE HAS FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HER ASSESSME NT, FOR THAT ASSESSMENT YEAR. ALSO, AS PER EXPLANATION 1 OF SECTION 147 OF THE INCOME TAX ACT, 1961 PRODUCTION BEFORE THE ASSESSING OFFICER OF ACCOUNT BOOKS OR OTHER EVIDENC E 7 ITA NO.1306/MDS/2016 FROM WHICH MATERIAL EVIDENCE COULD WITH DUE DILIGEN CE HAVE BEEN DISCOVERED BY THE ASSESSING OFFICER WILL NOT NECESSARILY AMOUNT TO DISCLOSURE WITHIN THE MEANING OF THE FOREGOING PROVISO. (III) THOUGH THE REVENUE HAD STATED SUCH REASONS AS MENTIONED HEREIN ABOVE, ALL THE RELEVANT MATERIALS WITH RESPECT TO THE ISSUE OF AGRICULTURAL LAND WAS PLACE D ON RECORD BEFORE THE LD.AO AT THE TIME OF ORIGINAL ASSESSMENT AND THE SAME WAS CONSIDERED BY HIM. THEREFORE THERE IS NO OMISSION OR FAILURE ON THE PA RT OF THE ASSESSEE TO DISCLOSE ANY MATERIAL FACTS. (IV) THE LD.AO HAD NOT MENTIONED CATEGORICALLY AS T O WHAT WAS THE FAILURE ON THE PART OF THE ASSESSEE TO FULL Y AND TRULY DISCLOSE THE MATERIAL FACTS AT THE TIME OF OR IGINAL ASSESSMENT PROCEEDINGS. (V) THERE IS NO NEW TANGIBLE EVIDENCE IN THE POSSES SION OF THE LD.AO TO JUSTIFY THE RE-OPENING OF THE ASSESSME NT. THEREFORE THE RE-OPENING IS BASED ON MERE CHANGE OF OPINION. WITH THE ABOVE SUBMISSION THE LD.AR ARGUED BEFORE U S BY STATING THAT, THE RE-OPENING IS BAD IN THE CASE OF THE ASSESSEE, 8 ITA NO.1306/MDS/2016 BECAUSE THE REOPENING WAS BEYOND FOUR YEARS, WITHOU T ANY NEW TANGIBLE EVIDENCE, ON AN ISSUE ALREADY CONSIDERED A ND DECIDED BY THE LD.AO AT THE TIME OF ORIGINAL ASSESSMENT AND FURTHER THERE WAS NO FAULT ON THE PART OF THE ASSESSEE TO DISCLOS E ANY MATERIAL FACTS FULLY AND TRULY. IT WAS THEREFORE PLEADED THA T THE ASSESSMENT MADE BASED ON RE-OPENING IS BAD IN LAW AND HENCE RE QUIRES TO BE QUASHED. THE LD.DR ON THE OTHER HAND ARGUED IN S UPPORT OF THE ORDERS OF THE LD.REVENUE AUTHORITIES, HOWEVER C OULD NOT SUCCESSFULLY CONTROVERT TO ANY OF THE ABOVE SUBMISS IONS MADE BY THE LD.AR. 4.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM PERUSING T HE MATERIALS ON RECORD, THE FOLLOWING FACTS ARE APPARENT:- I. THE NOTICE OF RE-OPENING IN THE CASE OF THE ASSE SSEE IS DATED 23.07.2014, WHICH ESTABLISHES THE FACT THAT T HE CASE OF THE ASSESSEE WAS RE-OPENED BEYOND THE PERIOD OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. II. ON PERUSING THE ORIGINAL ORDER PASSED U/S.143(3 ) OF THE ACT DATED 29.12.2010 FOR THE RELEVANT ASSESSMENT YE AR 2008-09, IT IS EVIDENT THAT THE ISSUE WITH RESPECT TO 9 ITA NO.1306/MDS/2016 PURCHASE AND SALE OF AGRICULTURAL LAND WAS CONSIDER ED BY THE LD.AO. THE RELEVANT PARA IS EXTRACTED HEREIN B ELOW FOR REFERENCE:- THE ASSESSEES REPRESENTATIVE STATED THAT THE ASSESSEE HAD SOLD SOME AGRICULTURAL LANDS DURING TH E YEAR UNDER CONSIDERATION. THE ASSESSEE HAD PURCHASED THE ABOVE AGRICULTURAL LANDS BY WAY OF POWER OF ATTORNEY. IT IS ALSO STATED THAT SHE BELO NGS TO AN AGRICULTURAL FAMILY AND PURCHASED THE PROPERTIES DURING THE YEAR WITH AN INTENTION TO HOL D IT AND GO IN FOR HORTICULTURE IN A BIG WAY MEANT FO R EXPORTS. SHE HAD ALSO INTENDED TO GROW A VARIETY O F PLANTS AND TO RUN THE SAME IN FUTURE. SHE HAD TAKE N POSSESSION OF THE LANDS DURING THE BEGINNING OF THE FY 2007-08 AND CONTINUED THE AGRICULTURAL ACTIVITIES. SHE HAD STATED THAT SUBSEQUENTLY SHE S OLD THEM AS HER PLANS WENT AWRY ON SOME EXTRANEOUS REASONS GIVEN IN HER LETTER FILED ON 27.12.2010 EXPLAINING THE CIRCUMSTANCES THAT FORCED HER TO SEL L THE SAID AGRICULTURAL LANDS. THE ASSESSEE CLAIMED THE SALE PROCEEDS AS EXEMPT SINCE THE PROPERTIES OL D ARE NOT CAPITAL ASSETS SPECIFIED UNDER SECTION 2(14 ). THE ASSESSEES REPRESENTATIVE PRODUCED ALL THE NECESSARY DOCUMENTS AND EXPLANATIONS IN SUPPORT OF HIS CLAIM MADE FOR THE EXEMPTION. THE DETAILS FILED WERE EXAMINED. III. THE NOTICE ISSUED U/S.142(1) DATED 15.09.2010 AND 20.10.2010 (PAPER BOOK PAGE NO.2 & 3) AT THE TIME O F ORIGINAL ASSESSMENT MENTIONS ABOUT THE DOCUMENTS CA LL FORWARD BY THE LD.AO WHICH INCLUDES THE SALE DEED F OR THE 10 ITA NO.1306/MDS/201 6 SALE OF AGRICULTURAL LAND AGAINST WHICH THE ASSESSE HAD CLAIMED EXEMPTION WITH RESPECT TO CAPITAL GAIN TAX. IV. FROM THE IMPUGNED ASSESSMENT ORDER DATED 31.03. 2015, IT IS EVIDENT THAT RE-OPENING WAS MADE BASED ON THE DECISION OF THE LD.AO IN THE CASE OF THE ASSESSEES SPOUSE SHRI S.A. BHIMARAJA, WHEREIN THE LD.AO OPINE D THAT THE LAND SOLD BY THE ASSESSEE ALONG WITH SHRI S.A. BHIMARAJA IS NOT AGRICULTURE LAND. THEREFORE IT IS APPARENT THAT NO FRESH TANGIBLE MATERIALS HAVE BEEN RELIED O N BY THE LD.AO IN THE CASE OF THE ASSESSEE, BECAUSE HE HAD R ELIED ONLY ON THE VIEW OF THE LD.AO IN THE CASE OF THE ASSESSEES SPOUSE. MOREOVER, THE ISSUE WITH RESPECT TO THE NATURE OF LAND HAD BEEN ALREADY CONSIDERED IN T HE CASE OF THE ASSESSEE AT THE TIME OF ORIGINAL ASSESS MENT. V. AT THE TIME OF ORIGINAL ASSESSMENT, THE ISSUE W ITH RESPECT TO UNEXPLAINED SOURCE FOR THE INVESTMENT IN AGRICUL TURE LAND WAS CONSIDERED BY THE LD.AO AND ADDITIONS WERE MADE TO THE EXTENT OF RS.1,50,00,000/- IN ORDER DAT ED 29.12.2010. THEREFORE, THE FINDINGS MENTIONED IN T HE REBUTTAL LETTER DATED 23.03.2015 (MENTIONED HEREIN ABOVE 11 ITA NO.1306/MDS/201 6 AT PAGE NO.4, PARA NO.4(V)) STATING THAT THE LD.AO HAS FAILED TO APPLY HIS MIND ON THAT REGARD IS ERRONEOU S. VI. FROM THE ORDER OF THE LD.AO AND THE LD.CIT(A), IT IS ALSO EVIDENT THAT THE LD.AO HAD NOT POINTED OUT ANY FAIL URE ON THE PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOS E MATERIAL FACTS AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDING S. VII. THE ASSESSEE HAS ALSO RELIED ON THE FOLLOWING CASE LAWS WHICH IS QUITE SIGNIFICANT WITH RESPECT TO THE PLEA OF THE LD.AR:- A) CIT VS. ARVIND REMEDIES LTD REPORTED IN 378 ITR 547, WHEREIN THE HONBLE JURISDICTIONAL MADRAS HIGH COURT HELD WHERE COMPLETE DETAILS OF CLAIM HAVE BEEN PROVIDED BEFORE THE ASSESSING OFFICER DURING THE RE GULAR COURSE OF ASSESSMENT, THE DEPARTMENT CANNOT SEEK RE LIEF UNDER EXPLANATION (1) TO SECTION 147 OF THE INCOME TAX ACT, 1961. B) CIT VS. SCHWING STETTER INDIA P. LTD. REPORTED IN 3 78 ITR 380 WHEREIN THE HONBLE JURISDICTIONAL MADRAS HIGH COURT HELD WHEN ASSESSING OFFICER FAILS TO RECORD ANYWHERE HIS SATISFACTION OR BELIEF THAT INCOME CHARGEABLE TO TAX ESCAPED ASSESSMENT ON ACCOUNT OF 12 ITA NO.1306/MDS/201 6 FAILURE OF ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT, NOTICE ISSUE U/S 14 7 BEYOND PERIOD OF FOUR YEARS IS WHOLLY WITHOUT JURIS DICTION AND CANNOT BE SUSTAINED. C) CIT V KELVINATOR OF INDIA LTD., REPORTED IN 320 ITR 561, WHEREIN THE HONBLE APEX COURT HELD AFTER 1 ST APRIL 1989, AO HAS POWER TO REOPEN THE ASSESSMENT UNDER S.147 PROVIDED AO HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT AND THERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME; MERE CHANGE OF OPINION CANN OT PER SE BE REASON TO REOPEN. D) ACIT V ICICI SECURITIES PRIMARY DEALERSHIP LTD., REPORTED IN 348 ITR 299, WHEREIN THE HONBLE APEX COURT HELD ASSESSMENT CANNOT BE REOPENED ON THE MERE CHANGE OF OPINION OF THE ASSESSING OFFICER. E) DONALDSON INDIA FILTERS SYSTEMS PVT. LTD. V. DEPUTY COMMISSIONER OF INCOME TAX REPORTED IN 371 ITR 87, WHEREIN THE HONBLE JURISDICTIONAL DELHI HIGH COURT HELD WHEN THE ASSESSMENT HAD EARLIER BEEN CONCLUDED U/S 143(3), THE RESTRICTIONS ON THE EXERC ISE OF 13 ITA NO.1306/MDS/201 6 THE POWER OF RE-ASSESSMENT AS CONTAINED IN THE FIRS T PROVISO TO SECTION 147 WOULD INHIBIT FURTHER ACTION IN ABSENCE OF MATERIAL SHOWING DEFAULT BY THE ASSESSEE TO FULLY OR TRULY DISCLOSE. F) TECHNICO AGRI SCIENCES LTD. V DCIT & ANR REPORTED IN 97 CCH 163, WHEREIN THE HONBLE JURISDICTIONAL DELHI HIGH COURT HELD NOTICE FOR RE-OPENING THE ASSESSMENT IS PERMISSIBLE ONLY WHEN IT DOES NOT AMO UNT TO CHANGE OF OPINION; IS BASED ON TANGIBLE MATERIAL/EVIDENCE BUT IS NOT OPPOSED TO THE EXISTIN G RECORD AND POINTS TO SUPPRESSION OF MATERIAL FACTS BY THE ASSESSEE IN THE ORIGINAL RETURN. FROM THE ABOVE FACTS OF THE CASE AND THE RATIO LAID DOWN BY THE HIGHER JUDICIARY IT IS APPARENT THAT THE REOPEN ING IN THE CASE OF THE ASSESSEE IS BAD IN LAW BECAUSE THE REOPENING WAS BEYOND FOUR YEARS, WITHOUT ANY NEW TANGIBLE EVIDENC E, ON THE ISSUE ALREADY CONSIDERED AND DECIDED BY THE LD.AO A T THE TIME OF ORIGINAL ASSESSMENT AND FURTHER THERE WAS NO FAU LT ON THE PART OF THE ASSESSEE TO DISCLOSE ANY MATERIAL FACTS FULL Y AND TRULY AT THE TIME OF ORIGINAL ASSESSMENT. HENCE RESPECTIVELY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGHER JUDICIARY WE HEREBY QUASH 14 ITA NO.1306/MDS/201 6 THE ASSESSMENT MADE BY THE LD.AO BASED ON REOPENING U/S147 OF THE ACT. 5. GROUND NO.2(II) :NATURE OF LAND SOLD BY THE ASSESSE E:- ON MERITS THE ISSUE IS WITH RESPECT TO THE NATUR E OF LAND SOLD BY THE ASSESSEE I.E., WHETHER THE LAND SO LD BY THE ASSESSEE IS AGRICULTURE LAND OR NON-AGRICULTURE LAN D. IN THE CASE OF THE ASSESSEE THIS ISSUE IS DEBATABLE. MOREOVER IT APPEARS THAT THAT THE LAND SOLD BY THE ASSESSEE IS AGRICULTURE L AND, WHICH WAS PARTLY KEPT VACANT WITHOUT PERFORMING AGRICULTURAL ACTIVITIES. FURTHER THERE IS NO FINDING BY THE REVENUE THAT THE LAND IS SITUATED WITHIN THE MUNICIPALITY LIMIT OR ATTRACTIN G ANY OF THE CLAUSE MENTIONED IN SECTION 2(14)(III) OF THE ACT B Y WHICH THE LAND SOLD BY THE ASSESSEE HAS TO BE TREATED AS NON- AGRICULTURE LAND. HOWEVER, WE RESTRAIN OURSELVES FROM FURTHER EXAMINING THE ISSUES WITH RESPECT TO THE MERITS OF THE CASE BECAU SE WE HAVE ALREADY DECIDED THAT THE REOPENING IS BAD IN LAW IN THE CASE OF THE ASSESSEE AND THEREFORE THE ASSESSMENT BASED ON SUCH REOPENING REQUIRES TO BE QUASHED. 15 ITA NO.1306/MDS/201 6 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED ON THE 17 TH AUGUST, 2017 AT CHENNAI. SD/- SD/- ( ! ' . #$ ) ( . ) ( DUVVURU RL REDDY ) ( A. MOHAN ALANKAMONY ) ' #$ /JUDICIAL MEMBER #$ / ACCOUNTANT MEMBER %' /CHENNAI, &# /DATED 17 TH AUGUST, 2017 JR # () *) /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. - ( )/CIT(A) 4. - /CIT 5. )./ 0 /DR 6. /1 /GF