CK Theerthagiri, CHENNAI V. ITO, CHENNAI

ITA 1683/CHNY/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68857 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-11-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 02-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGERI IRS
• Assessee Lawyers: V BALASUB RAMANIAN
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI V.DURGA RAO, JUDICIAL MEMBER ITA NO. 1683/MDS/2013 ASSESSMENT YEAR : 2005-06 SHRI C.K.THEERTHAGIRI, NO.70, LANDONS ROAD, KILPAUK, CHENNAI 600 010. PAN ADTPT0001E VS. THE INCOME-TAX OFFICER, SALARY WARD-II(4), CHENNAI - 600 034. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V. BALASUB RAMANIAN, CA RESPONDENT BY : SHRI T.N.BETGERI, I RS, CIT DATE OF HEARING : 18 TH NOVEMBER, 2013 DATE OF PRONOUNCEMENT : 18 TH NOVEMBER, 2013 O R D E R PER DR.O.K.NARAYANAN, VICE PRESIDENT THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2005-06. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-IV AT CHENNAI, DATED 25.8.2011. THE APPEAL ARISES OUT OF THE ASSES SMENT COMPLETED UNDER SEC.143(3) OF THE INCOME-TAX ACT, 1 961. ITA 1683 /13 :- 2 -: 2. THE GROUNDS RAISED BY THE ASSESSEE IN THE PRESEN T APPEAL READ AS BELOW : 2. THE COMMISSIONER OF INCOME TAX OUGHT NOT TO HAVE RELIED ON THE COUNSEL OF THE APPELLANT TO DECI DE THE ISSUE AS NOT PRESSED, WHEN THERE WAS NO SPECIFI C AUTHORITY GIVEN TO HIM TO DO SO AND THUS HAS FAILED TO PASS A SPEAKING ORDER. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS GROSSLY ERRED IN APPRECIATING THE ASSESSING OFFICER S STAND THAT THE SUBJECT LAND IS URBAN LAND ESPECIALL Y WHEN THE ALLEGED VERIFICATION HAS BEEN DONE AFTER 4 YEARS OF SALE AND LACKS CREDENCE. 4. THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS GROSSLY ERRED IN LAW IN NOT APPRECIATING THE STAND THAT IT IS IMMATERIAL AS TO THE USAGE OF THE LAND SUBSEQ UENT TO THE SALE BY THE APPELLANT AND IS CONTRADICTORY I N VITAL PLACES. 5. THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS FAILED TO APPRECIATE THE FACTS THAT AGRICULTURE OPERATIONS WERE CARRIED OUT ON THE SUBJECT LAND TIL L ITS DISPOSAL AND IGNORED VITAL RECORDS SUCH AS LAND REGISTER EXTRACT AND KIST RECEIPTS. 6. BOTH THE LOWER AUTHORITIES HAVE GROSSLY ERRED IN LAW AND FAILED TO NOTICE THAT THE SUBJECT LANDS ARE LOCATED BEYOND 8 KMS. PERIPHERAL DISTANCE FROM THE TERRITORY OF ANY MUNICIPALITY OR CANTONMENT BOARD A ND AS SUCH OUTSIDE THE SCOPE OF THE DEFINITION FOR CA PITAL ASSET IN TERMS OF SECTION 2(14) OF THE I.T.ACT. 7. THE ASSESSING OFFICER MAINLY RELIED ON THE REPORTS OF THE CMDA, VAO AND THE TAHASILDAR AND ARRIVED THAT THE SUBJECT LANDS SOLD WAS A CAPITAL ASSET. HOWEVER THE SAID REPORTS ARE RELATING THE PERIODS SUBSEQUENT TO THE DATE OF SALE OF LAND (IE) AFTER 4 YEARS. ITA 1683 /13 :- 3 -: 8. THE APPELLANT SUBMITS THAT IF THE ORDER OF THE CIT(APPEALS) IS SUSTAINED IT WILL CAUSE GREAT INJUS TICE TO HIM AND SHALL FURTHER PREVENT THE ADVANCEMENT OF SUBSTA NTIAL JUSTICE, ESPECIALLY WHEN HIS BROTHER ALSO A CO-OWNE R OF THE SUBJECT LAND HAS BEEN GIVEN RELIEF BY THE CIT(APPEA LS) II IN ITA NO 158/12-13 DATED 18.07.2013 WHICH TREATED THE LAND AS AGRICULTURAL THE SALE OF WHICH IS NOT LIABLE TO BE TAXED. 3. THERE IS A DELAY OF 645 DAYS IN PRESENTING THIS APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED A PETI TION PRAYING FOR CONDONING THE DELAY ALONGWITH AN AFFIDAVIT STATING THE CIRCUMSTANCES IN WHICH THE FILING OF THE APPEAL BEF ORE THE TRIBUNAL WAS DELAYED. ON GOING THROUGH THE AVERMENTS MADE I N THE AFFIDAVIT, WE FIND THAT THE MAIN CAUSE FOR DELAY IS THE WRONG ADVICE GIVEN BY THE ERSTWHILE COUNSEL OF THE ASSESSEE. IT IS AN ESTABLISHED RULE OF LAW THAT AN ASSESSEE SHOULD NOT BE PENALIZED FOR MISTAKE COMMITTED BY HIS COUNSEL. TAKING INTO CONSIDERATION, ALL ASPECTS OF THE CASE, WE FIND THAT THE DELAY IN FILING THIS APPEAL WAS NOT CAUSED BECAUSE OF WILLFUL NEGLIGENCE ON THE PART OF THE ASSESSEE. WE FIND THAT THIS IS A FIT CASE, WHERE D ELAY HAS TO BE CONDONED. ACCORDINGLY, THE DELAY OCCURRED IN FILIN G THIS APPEAL BEFORE THE TRIBUNAL IS CONDONED AND THE APPEAL IS A DMITTED, ON THE ROLLS OF THE TRIBUNAL. 4. REGARDING MERIT OF THE CASE, WE FIND THAT THE CL AIM OF THE ASSESSEE HAS BEEN ALLOWED BY THE COMMISSIONER OF IN COME- ITA 1683 /13 :- 4 -: TAX(APPEALS) IN THE CASE OF THE ASSESSEES OWN BROT HER, SHRI C.K.RAMA CHANDRAN, WHO IS ONE OF THE CO-OWNERS OF T HE SUBJECT LAND, WHOSE NATURE IS IN DISPUTE. ONCE IN THE HAND S OF ANOTHER CO-OWNER, THE COMMISSIONER OF INCOME-TAX(APPEALS) H AS HELD THAT THE LAND WAS AGRICULTURAL IN NATURE, THERE IS NO REASON FOR ANOTHER COMMISSIONER OF INCOME-TAX(APPEALS) TO TAK E A DIFFERENT VIEW ON THE SAME SET OF FACTS. THEREFORE, WE FIND THAT THE CLAIM OF THE ASSESSEE HAS TO BE ACCEPTED AND THIS APPEAL NEE DS TO BE ALLOWED. ACCORDINGLY, WE DELETE THE TAXABLE CAPITA L GAINS WORKED OUT BY THE ASSESSING OFFICER IN THE PRESENT CASE. 5. IN RESULT, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 18 TH OF NOVEMBER, 2013 AT CHENNAI. SD/- SD/- (V.DURGA RAO) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 18 TH NOVEMBER, 2013. MPO* ITA 1683 /13 :- 5 -: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GF.