C.R.Rajkumar, CHENNAI V. ITO, CHENNAI

ITA 1332/CHNY/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3985 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 12-05-2016
• Court: TRIBUNAL
• Assessee Lawyers: T BANUSEKARC A
• Keywords: Reopening of assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , . !' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.1332/MDS./2016 / ASSESSMENT YEAR : 2007-08 MR. C.R.RAJKUMAR, NO.7, OLD NO.4, MEENAKSHI P.S.SIVASAMY ROAD, MYLAPORE CHENNAI 600004. VS. ITO NON CORPORATE WARD 2(3) CHENNAI. [PAN ACCPR4434 P ] ( #$ / APPELLANT) ( %&#$ /RESPONDENT) / APPELLANT BY : MR.T.BANUSEKAR,C.A /RESPONDENT BY : MR.N.GOPIKRISHNA, JCIT DEPARTMENTAL REPRESENTATIVE, / DATE OF HEARING : 05 - 1 0 - 201 6 !' / DATE OF PRONOUNCEMENT : 23 - 11 - 2016 ' / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, CHENNAI DATED 02.03.2016 PERTAINING TO ASSESSMENT YEAR 2007-08. 2. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS WITH REGARD TO ACTION OF THE LD.CIT(A) IN CONFIRMING THE ORDER OF THE AO IN CONSIDERING THE SALE OF AGRICULTURAL LAND AS INCOME FROM CAPITAL GAINS. ITA NO. 1332/MDS./2016 :- 2 -: 2.1 BEFORE US, THE ASSESSEE RAISED THE ADDITIONAL GROUNDS STATING THAT THE CIT(A) ERRED IN NOT ADJUDICATING THE GROU NDS RAISED ON THE VALIDITY OF REOPENING OF ASSESSMENT . THE ASSESSEE ALSO FILED PETITION FOR ADMISSION OF ADDITIONAL GROUNDS BY PLACING RELI ANCE IN THE DECISION SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT (229 ITR 283), WHEREIN IT WAS HELD THAT A LEGAL GRO UND CAN BE RAISED AT ANY STAGE OF APPEAL. THUS, HE PRAYED FOR ADMISS ION OF ADDITIONAL GROUND. HENCE, WE ARE INCLINED TO ADMIT THE ADDITI ONAL GROUND FOR ADJUDICATION. 3. THE FACTS OF THE ISSUE ARE THAT ASSESSEE SOLD A LAND MEASURING 41.7 ACRES OF LAND SITUATED AT THIRUVATGH OOR VILLAGE CHEYYUR TALUK AND THE CAPITAL GAINS ARISE OUT OF THIS TRANS ACTION WAS CLAIMED BY THE ASSESSEE AS EXEMPTED. FURTHER, THE AO IN REOPEN ING OF ASSESSMENT BY ISSUE OF NOTICE U/S.148 OF THE ACT DATED 24.08.2 012 AND THEREAFTER TREATED THE CAPITAL GAINS ARISING OUT OF SALE OF AG RICULTURAL LAND UNDER THE HEAD CAPITAL GAINS. THOUGH THE ASSESSEE CLAI MED AS EXEMPTED FROM TAX, AS BEING AN AGRICULTURAL LAND, THE ASSESS EE CHALLENGED BEFORE THE LD.CIT(A) REGARDING THE ADDITION MADE BY THE A O ON MERITS AND ALSO RAISED GROUND NO.4 BEFORE THE LD.CIT(A) REGAR DING REOPENING OF ASSESSMENT IS BAD IN LAW. HOWEVER, THE LD.CIT(A) DECIDED THE ISSUE AGAINST THE ASSESSEE ON MERITS AND NOT DEALT WITH T HE ISSUE REGARDING REOPENING OF ASSESSMENT . ITA NO. 1332/MDS./2016 :- 3 -: 4. NOW, THE ASSESSEE CONTENDED THAT THE ISSUE RELA TING TO REOPENING OF ASSESSMENT IS GOING TO ROOT OF THE MAT TER OF THE ASSESSMENT AND IT IS TO BE DECIDED FIRST BEFORE DE CIDING THE ISSUE RELATING TO THE TAXABILITY OF CAPITAL GAINS ON TRAN SFER OF AGRICULTURAL LAND. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN OUR OPINION, THERE IS A FORCE IN THE ARG UMENT OF LD.A.R. ACCORDINGLY, WE ARE INCLINED TO REMIT THE ISSUE REG ARDING REOPENING OF ASSESSMENT TO THE FILE OF LD.CIT(A) AND TO GIVE FIN DINGS OF IT AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. AT THIS STAGE, WE REFRAIN FROM GOING TO OTHER GROUNDS RAISED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23 RD NOVEMBER, 2016, AT CHENNAI. SD/ - SD/ - ( . ) ( G.PAVAN KUMAR ) / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 23 RD NOVEMBER, 2016 K S SUNDARAM &'(()*( +* / COPY TO: ( 1 . / APPELLANT 3. ( ,(- . / CIT(A) 5. */0 (1 / DR 2. / RESPONDENT 4. ( , / CIT 6. 02(3 / GF