ACIT, Trichy V. Dr.R.Palani, Trichy

ITA 1672/CHNY/2012

• Counselvise Citation: 167221714 RSA 2012
• Duration Of Justice: 2 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 08-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2012
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: G BASKAR
• Section: 54B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . !' , # $% BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ./ ITA NO. 1672/MDS/2012 AND C.O.NO.167/MDS/2012 (IN ITA NO.1672/MDS/2012) / ASSESSMENT YEAR : 2009-10 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-IV, NO.44, WILLIAMS ROAD, CANTONMENT, TRICHY 620 001. APPELLANT) V. DR. R. PALANI, 11-13, ALPHA CAMPUS, SECOND MAIN ROAD, RENGA NAGAR, K.K.NAGAR, TRICHY 620 021. PAN AHIPP3281F RESPONDENT/CROSS-OBJECTOR) / APPELLANT BY : SHRI A.V.SREEKANTH, JCIT / RESPONDENT BY : SHRI G. BASKAR, ADVOCATE ! / DATE OF HEARING : 08.06.2015 '# ! / DATE OF PRONOUNCEMENT: 07.08.2015 & / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THE APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) DATED 20 .6.2012 FOR - - ITA 1672 & CO 167/12 2 THE ASSESSMENT YEAR 2009-10 AND THE CROSS OBJECTIO N IS FILED BY THE ASSESSEE IN SUPPORT OF THE ORDER OF THE COMMI SSIONER OF INCOME-TAX(APPEALS). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 2. THE LEARNED CIT(APPEALS) ERRED IN DELETING THE ADDITION OF `1,96,55,003/- MADE TOWARDS SHORT TERM CAPITAL GAIN. 2.1 THE LEARNED CIT(APPEALS) FAILED TO NOTICE THAT THE ASSESSEE HAD PRODUCED COPY OF CHITTA, PATTA BOOK AN D CERTIFICATE DATED 19.05.2006 FROM THE DEPUTY TAHSIL DAR, PADALUR VILLAGE FOR THE FIRST TIME BEFORE LD. CIT(A PPEALS) AND THE LEARNED CIT(APPEALS) ERRED IN NOT FOLLOWING RULE 46A OF THE IT RULES WITHOUT GIVING OPPORTUNITY FOR THE ASSESSING OFFICER TO EXAMINE THE FRESH EVIDENCE. 2.2. LEARNED CIT(APPEALS) FAILED TO NOTICE THAT SECTION 54B OF THE INCOME-TAX ACT, 1961 MANDATES TH AT THE ASSESSEE OR A PARENT OF HIS SHOULD HAVE USED T HE LAND FOR AGRICULTURAL PURPOSES IN THE TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER OF SUCH LAND. 23. LEARNED CIT(APPEALS) HAD FAILED TO NOTICE THAT THE ASSESSEE HAD NOT DISCHARGED THE ONUS TO THE EFFECT THAT THE LAND SOLD WAS AGRICULTURAL LAND WHICH IS CLEAR FROM THE FACT THAT THE ASSESSEE HAS NOT DONE ANY AGRICULTUR AL OPERATIONS IN THE LAND IN QUESTION. 2.4 LEARNED CIT(APPEALS) FAILED TO NOTICE THAT MER E PLOUGHING WILL NOT AMOUNT TO AGRICULTURAL ACTIVITIE S AND THAT TOO ON THE BASIS OF A MERE STATEMENT AS HELD B Y HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SRI KRI SHNA VS. CIT(ALL) REPORTED IN 142 ITR 618. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS THE FOUNDER TRUSTEE OF ALPHA FOUNDATION FOR EDUCATION A ND RESEARCH - - ITA 1672 & CO 167/12 3 SINCE 1993 AND PRESENTLY, ITS CHAIRMAN. THE ASSESS EE HAD PURCHASED AGRICULTURAL LANDS DURING THE F.Y. 2006-0 7 AND 2007- 08 WITH THE INTENTION OF SETTING UP OF AGRICULTURAL ENGINEERING COLLEGE. THEREFORE, THE ASSESSEE HAD GROWN JETROPH A, A BIO- DIESEL PLANT IN THE SAID LAND. OWING TO THE ASSESS EES POOR HEALTH AND HIS PREOCCUPATION WITH THE TRUST ACTIVIT IES, THE ASSESSEE DID NOT GO AHEAD WITH THE PROPOSAL OF SETT ING UP OF AGRICULTURAL ENGINEERING COLLEGE AND SOLD THE AGRIC ULTURAL LANDS DURING THE FINANCIAL YEAR 2008-09. THE ASSESSING O FFICER ASSESSED SHORT TERM CAPITAL GAIN ON SUCH SALE AT ` 1,96,55,003/-. AGAINST THIS, THE ASSESSEE WENT IN APPEAL BEFORE TH E COMMISSIONER OF INCOME-TAX(APPEALS). ON APPEAL, TH E COMMISSIONER OF INCOME-TAX(APPEALS) OBSERVED THAT THE SALE OF LAND IS EXEMPT FROM SHORT TERM CAPITAL GAINS TAX. AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. THE MAIN CONTENTION OF THE DEPARTMENT I S THAT IN THE COURSE OF APPELLATE PROCEEDINGS THE ASSESSEE HAS PR ODUCED COPY OF CHITTA, PATTA BOOK AND CERTIFICATE DATED 19 .5.2006 FROM THE DEPUTY TAHSILDAR, PADALUR VILLAGE FOR THE FIRST TIME, BEFORE THE - - ITA 1672 & CO 167/12 4 COMMISSIONER OF INCOME-TAX(APPEALS). THE LD. DR SU BMITTED THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) ERRED IN NOT FOLLOWING RULE 46A OF THE I.T. RULES WITHOUT GIVING OPPORTUNITY FOR THE ASSESSING OFFICER TO EXAMINE THE FRESH EVIDENCE . CONTRARY TO THIS, THE LD. AR SUBMITTED THAT ALL THE DOCUMENT S, WHICH ARE PRODUCED BEFORE THE COMMISSIONER OF INCOME-TAX(APPE ALS), WERE MADE AVAILABLE TO THE ASSESSING OFFICER AND TH ERE IS NO VIOLATION OF RULE 46A. HOWEVER, THERE IS NOTHING O N RECORD TO SUGGEST THAT THE DOCUMENTS, WHICH ARE STATED TO BE PRODUCED BY THE ASSESSEE, WERE BEFORE THE ASSESSING OFFICER. T HERE IS NO IOTA OF DISCUSSION BY THE ASSESSING OFFICER AND THE RE IS ALSO NO FINDING TO SUGGEST THAT THE PRODUCTION OF THESE DOC UMENTS WERE BEFORE THE ASSESSING OFFICER. IN THESE CIRCUMSTANC ES, IT IS APPROPRIATE TO REMIT THE ISSUE TO THE FILE OF THE A SSESSING OFFICER FOR FRESH CONSIDERATION. ACCORDINGLY, WE REMIT ENT IRE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDE RATION, DE NOVO AND THE ASSESSEE IS DIRECTED TO PRODUCE ALL THE DOC UMENTS, WHICH WERE PRODUCED BEFORE THE COMMISSIONER OF INCO ME- TAX(APPEALS), BEFORE THE ASSESSING OFFICER ALSO. - - ITA 1672 & CO 167/12 5 5. AS WE HAVE SET ASIDE THE ORDER OF THE CIT(A) AND THE ISSUE IS REMITTED TO THE FILE OF THE ASSESSING OFFI CER FOR FRESH CONSIDERATION, THE CROSS OBJECTION FILED BY THE ASS ESSEE HAS BECOME INFRUCTUOUS. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED ON FRIDAY, THE 07 TH OF AUGUST, 2015 AT CHENNAI. SD/- SD/- ( . $ % ) ( & ' ( ) ) *+,-./01023 45067.082290.:3 ; $< /JUDICIAL MEMBER ! $<=>>2-6?06?@ABCA. &; /CHENNAI, D$ /DATED, THE 07 TH AUGUST, 2015. MPO* $E FGHG /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. I3 /CIT(A) 4. I /CIT 5. GJ% K /DR 6. %LM /GF.