D.Gnanapoo Sugirtham, Tuticorin V. DCIT Central Circle 1, Madurai

ITA 1523/CHNY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7998 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 12-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S BHARATH
• Assessee Lawyers: PRANAY J SHAH
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A BENCH, CHENNAI . . . , , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ I.T.A.NO.1523/CHNY/2017 ( [ [ / ASSESSMENT YEAR: 2014-15) SMT. D. GNANAPOO SUGRITHAM NO.13A/5D, 1 ST STREET, INNASIYARPURAM, TUITCORIN VS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, MADURAI. PAN: ADQPG8897A ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI PRANAY J SHAH, CA / RESPONDENT BY : SHRI S. BHARATH, CIT /DATE OF HEARING : 27.06.2019 /DATE OF PRONOUNCEMENT : 18.07.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE WAS DISPOSED OFF EARLIER ALONG WITH OTHER CO-OWNERS OF THE APPEAL BY AN ORDER DATED 14.09.2017. THE REVENUE FILED A MISCELLANEOUS PETITION ON THE GROUND THAT THE PRESENT APPEAL RELATES TO THE ASSESSMENT YEAR 2014-15. HOWEVER IN THE ORDER OF THIS TRIBUNAL IT WAS REFERRED AS ASSESSMENT YEAR 2013- 14. BY MISTAKE THIS TRIBUNAL INSTEAD OF RECTIFYING THE ERROR NAMELY THE ASSESSMENT YEAR AS 2014-15, HAS RECALLED THE ENTIRE ORDER WHICH RELATES TO THE PRESENT ASSESSEE. THEREFORE THE APPEAL IS POSTED 2 I.T.A. NO. 1523/CHNY/2017 TODAY. WHEN THE APPEAL IS TAKEN UP FOR HEARING, BOTH THE LD. REPRESENTATIVE FOR THE ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE VERY FAIRLY SUBMITTED THAT THE ONLY ERROR IN THE EARLIER ORDER OF THE TRIBUNAL DATED 14.09.2017 IS REFERENCE TO THE ASSESSMENT YEAR AS 2013-14, THE CORRECT ASSESSMENT YEAR IS 2014- 15. HOWEVER THE ORDER PASSED BY THIS TRIBUNAL ON MERIT WOULD STAND. THEREFORE BOTH THE LD.AR AND LD.DR PRAYED THAT THE VERY SAME ORDER MAY BE PASSED AFTER CORRECTING THE ASSESSMENT YEAR. 2. IN VIEW OF THE ABOVE SUBMISSION, WE HAVE ALSO CAREFULLY GONE THROUGH THE ORDER OF THIS TRIBUNAL DATED 14.09.2017. THE ASSESSEE ADMITTEDLY IS ONE OF THE PARTNER / DIRECTOR IN A GROUP CONCERN KNOWN AS DIAMOND SEA FOODS ENGAGED IN THE BUSINESS OF PROCURING, PROCESSING AND EXPORTING SEA FOOD. THERE WAS A SEARCH OPERATION IN THE PREMISES OF THE GROUP CONCERN AS WELL AS THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 17.12.2013. DURING THE COURSE OF SEARCH OPERATION, A SALE AGREEMENT DATED 02.08.2012 ENTERED INTO BETWEEN THE ASSESSEE AND FIVE OTHERS WITH ONE SHRI N.RATHINAVEL, THE MANAGING DIRECTOR OF M/S. SAHAYAMATHA SALTERS PVT. LTD., WAS FOUND. THE CONSIDERATION AGREED AS PER THE SAID AGREEMENT WAS RS.10,92,74,700/- AT THE RATE OF RS.2,85,000/- PER ACRE. THE SHARE OF THE PRESENT ASSESSEE WAS 25.835 ACRES. CONSEQUENT TO THE NOTICE 3 I.T.A. NO. 1523/CHNY/2017 U/S.153C OF THE ACT, THE ASSESSEE DISCLOSED HER SHARE TO THE EXTENT OF RS.19,96,440/-. THE ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER THAT THE LAND WHICH WAS SOLD WAS AGRICULTURAL LAND, THEREFORE NOT LIABLE FOR CAPITAL GAIN TAXATION. THIS TRIBUNAL IN THE CASE OF THE CO-OWNERS FOUND THAT THE LAND WHICH WAS SOLD BY THEM WAS NOT AGRICULTURAL IN NATURE. THE TRIBUNAL HAS ALSO FOUND THAT THE FIVE CO-OWNERS HAD MOVED THE SETTLEMENT COMMISSION AND AGREED TO OFFER THE CAPITAL GAIN FOR TAXATION. AFTER REPRODUCING THE OBSERVATION MADE BY THE SETTLEMENT COMMISSION, THIS TRIBUNAL FOUND THAT THERE WAS NO EVIDENCE TO SAY THAT ANY ADVANCE OF RS.3.06 CRORE WAS RECEIVED OR TO SHOW THAT THE AGREEMENT DATED 02.08.2012 WAS ACTED UPON. ACCORDINGLY THIS TRIBUNAL DIRECTED THE ASSESSING OFFICER TO RE- COMPUTE THE CAPITAL GAIN IN THE HANDS OF EACH ASSESSEE, CONSIDERING THE VALUE SHOWN IN THE RESPECTIVE DEED OF CONVEYANCE AS THE FULL VALUE OF CONSIDERATION. IN VIEW OF THE ORDER OF THIS TRIBUNAL DATED 14.09.2017, HOLDING THAT THE LAND IN QUESTION IS NOT AN AGRICULTURAL LAND, THE SAME FINDING HAS TO BE FOLLOWED IN THE CASE OF THE ASSESSEE ALSO. ACCORDINGLY WE HOLD THAT THE LAND SOLD BY THE ASSESSEE ALONG WITH OTHER CO-OWNERS IS NOT AGRICULTURAL LAND. IN VIEW OF THE FURTHER FINDING OF THIS TRIBUNAL THAT THERE WAS NO EVIDENCE FOR THE ADVANCE OF RS.3.06 CRORES AND THE AGREEMENT DATED 02.08.2012 WAS ACTED UPON, AS DIRECTED BY THIS TRIBUNAL IN THE ORDER DATED 14.09.2017 THE 4 I.T.A. NO. 1523/CHNY/2017 ASSESSING OFFICER HAS TO RE-COMPUTE THE CAPITAL GAIN. ACCORDINGLY, THE ORDER OF THE LOWER AUTHORITIES IN THE CASE OF THE PRESENT ASSESSEE ALSO SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO RE-COMPUTE THE CAPITAL GAIN IN THE HANDS OF THE PRESENT ASSESSEE CONSIDERING THE FULL VALUE DISCLOSED IN THE DEED OF CONVEYANCE. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 18 TH JULY, 2019 AT CHENNAI. SD/- SD/- ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, /DATED, THE 18 TH JULY, 2019. RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. [ /GF