THE ITO, Rajahmundry V. Bonagiri Narasimha Murthy,

ITA 159/VIZ/2015

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9958 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 05-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SATYANADHAMDR
• Section: 133A

Judgement Text

ITA NO.158&159/VIZAG/2015 SRI BONAGIRI SATYANARAYANA, RAJANAGARAM MANDAL, E.G . DIST. 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM SMC BENCH, VISAKHAPATNAM . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER ./I.T.A.NO.158/VIZAG/2015 ( / ASSESSMENT YEAR: 2007-08) ITO, WARD - 2(1), RAJAHMUNDRY VS. SRI BONAGIRI SATYANARAYANA, RAJANAGARAM MANDAL, E.G. DIST. [PAN: ATEPB6016G ] ( / APPELLANT) ( ! / RESPONDENT) ./I.T.A.NO.159/VIZAG/2015 ( / ASSESSMENT YEAR: 2007-08) ITO, WARD - 2(1), RAJAHMUNDRY VS. SRI BONAGIRI NARASIMHA MURTHY, RAJANAGARAM MANDAL, E.G. DIST. [PAN: APHPB5966J ] ( / APPELLANT) ( ! / RESPONDENT) / APPELLANT BY : SHRI T. SATYANADHAM,DR / RESPONDENT BY : SHRI G.V.N. HARI, AR / DATE OF HEARING : 09.08.2016 / DATE OF PRONOUNCEMENT : 12.08.2016 ITA NO.158&159/VIZAG/2015 SRI BONAGIRI SATYANARAYANA, RAJANAGARAM MANDAL, E.G . DIST. 2 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AG AINST THE ORDER OF CIT(A), RAJAHMUNDRY DATED 25.2.2015 FOR THE ASSE SSMENT YEAR 2007-08. 2. FACTS ARE IN BRIEF THAT THE ASSESSEE ALONG WITH OTHERS HAS SOLD A LAND TO M/S. GODAVARI TOWNSHIP PRIVATE LIMITED, VIS AKHAPATNAM. IN THE CASE OF M/S. GODAVARI TOWNSHIP PRIVATE LIMITED, A S URVEY OPERATION U/S 133A OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLE D AS 'THE ACT') WAS CONDUCTED. ON VERIFICATION OF THE DETAILS, A.O. CA ME TO KNOW THAT THE ASSESSEE HAS SOLD LAND ALONG WITH OTHERS AND ACCORD INGLY THE LAND SOLD BY THE ASSESSEE ALONG WITH OTHERS IS WITHIN 8 KMS. FROM THE MUNICIPALITY AND CAPITAL GAIN TAX HAS TO BE PAID, ACCORDINGLY AS SESSMENT WAS COMPLETED. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE ITAT, VISAKHAPATNAM. MEANWHILE, THE A.O. HAS INITIATED T HE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. BEFORE THE A .O., THE ASSESSEE HAS SUBMITTED THAT HE NEITHER CONCEALED THE INCOME NOR FILED INACCURATE PARTICULARS OF INCOME. HE HAS CLAIMED THAT THE LAN D SITUATED IS BEYOND 8 KMS. FROM MUNICIPAL LIMITS AND PRAYED THAT PENALTY PROCEEDINGS MAY BE ITA NO.158&159/VIZAG/2015 SRI BONAGIRI SATYANARAYANA, RAJANAGARAM MANDAL, E.G . DIST. 3 DROPPED. HOWEVER, THE A.O. WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND IMPOSED PENALTY U/S 271(1 )(C) OF THE ACT. ON APPEAL, THE LD. CIT(A) DELETED THE PENALTY IMPOSED BY THE A.O. 4. REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNA L IN ITA NO.579/VIZAG/2014 DATED 27.5.2016 IN THE CASE OF TH E OTHER ASSESSEES WHO SOLD THE LAND ALONG WITH ASSESSEE. 6. ON THE OTHER HAND, THE LD. D.R. SIMPLY RELIED ON THE ORDER PASSED BY THE A.O. 7. I HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. ONLY ISSUE INVOLVED IN THIS APPEAL IS THAT THE PENALTY U/S 271 (1)(C) OF THE ACT CAN BE LEVIED. THE ASSESSEE HAS SOLD LAND ALONG WITH OTHE RS. ACCORDING TO THE ASSESSEE, THE LAND SOLD BY HIM IS AN AGRICULTURAL L AND AND ALSO BEYOND 8 KMS. FROM RAJAHMUNDRY MUNICIPALITY. THE AMOUNT REC EIVED BY ASSESSEE IS AN EXEMPT FROM TAXATION. THE A.O. HAS HELD THAT THE LAND SOLD BY THE ASSESSEE IS WITHIN 8 KMS. FROM RAJAHMUNDRY MUNICIPA LITY AND ASSESSEE ITA NO.158&159/VIZAG/2015 SRI BONAGIRI SATYANARAYANA, RAJANAGARAM MANDAL, E.G . DIST. 4 HAS TO PAY CAPITAL GAINS TAX. ULTIMATELY, IN THE Q UANTUM APPEAL, THE ITAT HAS ALREADY CONSIDERED THE ISSUE IN ITA NOS.28 0, 281 & 284/VIZAG/2012 DATED 2.3.2006 AND HELD THAT THE LAN D IS SITUATED BEYOND 8 KMS. OF RAJAHMUNDRY MUNICIPAL LIMITS AND T HEREFORE, THE PROVISIONS OF CAPITAL GAINS TAX NO APPLICATION. TH AT APART, THE COORDINATE BENCH OF THE TRIBUNAL HAS CONSIDERED THE ISSUE IN T HE CASE OF OTHER ASSESSEES WHO SOLD THE LAND ALONG WITH ASSESSEE AND DELETED THE PENALTY BY ORDER IN ITA NO.579/VIZAG/2014 DATED 27. 5.2016 (SUPRA). RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER : 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MAT ERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN THIS CASE, THE ASSESSEE ALONG WITH OTHER FAMILY MEMBERS SOLD T HE AGRICULTURAL LAND AND NO RETURN WAS FILED. SUBSEQUENTLY, THERE IS A SURVEY CONDUCTED IN THE CASE OF M/S. GODAVARI TOWNSHIPS PVT. LTD., RAJAHMUN DRY TO WHOM THE ASSESSEE SOLD THE LANDS. BASED ON THE SURVEY, A NO TICE WAS ISSUED TO THE ASSESSEE AND ASSESSEE FILED A RETURN OF INCOME, WHE REIN HE HAS SUBMITTED THAT THE LAND SOLD BY THE ASSESSEE IS NOT A CAPITAL GAIN AND IT IS AN AGRICULTURAL LAND AND NO INCOME WAS OFFERED FOR TAX ATION ON THE GROUND THAT IT IS BEYOND 8 KMS. OF THE RAJAHMUNDRY MUNICIP AL LIMITS. ACCORDING TO THE A.O., IT IS WITHIN THE 8 KMS. OF RAJAHMUNDRY MUNICIPALITY AND A.O. HAS CONCLUDED THAT ASSESSEE IS ASSESSABLE UNDER THE HEAD LONG TERM CAPITAL GAINS. ACCORDINGLY, ASSESSMENT WAS COMPLE TED. ON APPEAL, CIT(A) CONFIRMED THE SAME. WHEN MATTER CARRIED TO THE ITAT, VISAKHAPATNAM BENCH, THE TRIBUNAL HAS CONSIDERED AL L THE DETAILS IN ITA NOS.279 TO 281, 283 & 284/VIZAG/2012 DATED 2.3.2016 HAS HELD THAT THE LAND SOLD BY THE ASSESSEE IS BEYOND 8 KMS. OF THE R AJAHMUNDRY MUNICIPAL LIMITS. IN VIEW OF THE ABOVE, WE FIND THAT THE ASS ESSEE NEITHER CONCEALED THE INCOME NOR FILED INACCURATE PARTICULARS. IT HA S ONLY MADE CLAIM BEFORE THE A.O. THAT THE LAND SOLD BY THE ASSESSEE IS AN A GRICULTURAL LAND. THE CLAIM MADE BY THE ASSESSEE IS ACCEPTED BY THE TRIBU NAL. IN VIEW OF THE ABOVE, BY TAKING INTO FACTS AND CIRCUMSTANCES OF TH E CASE, WE ARE OF THE OPINION THAT IT IS NOT A FIT CASE TO IMPOSE PENALTY U/S 271(1)(C) OF THE ACT. THUS, WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE CIT(A) AND APPEALS FILED BY THE REVENUE ARE DISMISSED. ITA NO.158&159/VIZAG/2015 SRI BONAGIRI SATYANARAYANA, RAJANAGARAM MANDAL, E.G . DIST. 5 8. IN THIS APPEAL, I FIND THAT ASSESSEE NEITHER CON CEALED THE INCOME NOR FILED INACCURATE PARTICULARS. THE LD. CIT(A) A FTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, HE HAS CANCELL ED THE PENALTY. I FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD. CIT(A). THUS, THIS APPEAL FILED BY THE REVENUE IS DISMISSED. 9. AS FAR AS APPEAL NO.159/VIZAG/2015 IS CONCERNED, FACTS AND CIRCUMSTANCES ARE SIMILAR TO THAT OF THE ABOVE ORDE R. THEREFORE, FOLLOWING THE ABOVE ORDER, THE PENALTY IMPOSED IN T HIS CASE IS ALSO DELETED. 10. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12 TH AUG16. SD/- ( . ) (V. DURGA RAO) /JUDICIAL MEMBER ! /VISAKHAPATNAM: % /DATED : 12.08.2016 VG/SPS ITA NO.158&159/VIZAG/2015 SRI BONAGIRI SATYANARAYANA, RAJANAGARAM MANDAL, E.G . DIST. 6 '! (! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT THE ITO, WARD-2(1), RAJAHMUNDRY 2. / THE RESPONDENT SRI BONAGIRI SATYANARAYANA, S/O VEERA VENKATA SATYANARAYANA, D.NO.2-112, PALACHARLA VILLAGE, RAJA NAGARAM MANDAL, E.G. DIST. 3. ) / THE CIT, RAJAHMUNDRY 4. ) ( ) / THE CIT(A), RAJAHMUNDRY 5. ! , , , , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // /0 , (SR.PRIVATE SECRETARY) , , ! / ITAT, VISAKHAPATNAM