ITO, Tumkur V. Sri. H. Nagarajappa, Sira

ITA 18/BANG/2011

• Counselvise Citation: 1821114 RSA 2011
• Duration Of Justice: 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 12-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUMAR AJEET
• Keywords: Capital asset
• Section: 142(1); 148

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL BANGALORE BENCH A, BANGALORE BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND SMT. P MADHAVI DEVI, JUDICIAL MEMBER I.T.A. NO.18(BANG.)/2011 (ASSESSMENT YEAR : 2005-06) THE INCOME-TAX OFFICER, WARD-2, TUMKUR APPELLANT VS SRI H. NAGARAJAPPA, S/O SRI HONAPPA, SHEEBI AGRAHARA VILLAGE, SIRA TALUK. PAN NO.AEPPN1830C R ESPONDENT REVENUE BY : SHRI KUMAR AJEET, JCIT ASSESSEE BY : NONE DATE OF HEARING : 12-10-2011 DATE OF PRONOUNCEMENT : O R D E R PER SMT P. MADHAVI DEVI, JM ; THIS APPEAL BY THE REVENUE RELATES TO ASSESSMENT YE AR 2005- 06. 2. IN THIS APPEAL, THE REVENUE IS AGGRIEVED BY THE ORDER OF THE CIT(A) IN DELETING THE ADDITION OF RS.31,58,870/- M ADE BY THE AO UNDER THE HEAD SHORT TERM CAPITAL GAINS BY HOLDING THAT THE LAND IN QUESTION IS AGRICULTURE IN NATURE AND NOT A CAPITAL ASSET LIABLE FOR ITA.NO.18(B)/11 2 CAPITAL GAINS TAX. THE REVENUE ALSO RAISED GROUND ON THE ISSUE OF THE CIT(A)S FINDING THAT THE LAND IN QUESTION IS 8 KMS FROM THE MUNICIPAL LIMITS OF ANEKAL TALUK, WHICH WAS NOTIFIE D U/S 2(14)(III) OF THE ACT, VIDE BOARD NOTIFICATION DATED 27-04-200 6 AND THAT THE ANEKAL TALUK IS HAVING POPULATION OF MORE THAN 10, 000/- PERSONS AT THE RELEVANT POINT OF TIME. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND AN AGRICULTURIST. BASED ON THE AIR INFORMATION THAT THE ASSESSEE SOLD PROPERTY SITUATED AT GOTTAMARANAH ALLI VILLAGE, SARJAPUR HOBLI, ANEKAL TALUK, BANGALORE DISTRICT, M EASURING 3 ACRES 30 GUNTAS ON 14-02-2005 FOR A CONSIDERATION O F RS.50.00 LAKHS, A NOTICE U/S 142(1) WAS ISSUED BY THE AO ASK ING THE ASSESSEE TO FILE A RETURN OF INCOME FOR THE ASSESSM ENT YEAR 2005- 06. SINCE THERE WAS NO RESPONSE FROM THE ASSESSEE, A NOTICE U/S 148 OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSE E AND IN COMPLIANCE THEREOF, THE ASSESSEE FILED HIS RETURN O F INCOME ON 27- 11-2009 DECLARING NIL INCOME. DURING THE ASSESSMENT PROCEEDINGS U/S 143(2), THE AO HAD COLLECTED COPIES OF THE REGI STERED SALE DEED, AND THE BANK STATEMENT AND AFTER VERIFICATION OF TH E SAME, HE NOTED THAT THE PURCHASE AND SALE OF THE AFORESAID P ROPERTY WAS MADE DURING THE PREVIOUS YEAR RELEVANT TO THE ASSES SMENT YEAR UNDER CONSIDERATION. IN VIEW OF THE SAME, THE AO CO NSIDERED THE ITA.NO.18(B)/11 3 TRANSACTION TO BE SHORT TERM CAPITAL GAINS AND BROU GHT THE SAME TO TAX. 3.1 AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT(A) STATING THAT THAT THE LAND IN QUESTION WAS A GRICULTURAL LAND AND NOT A CAPITAL ASSET U/S 2(14)(II) OF THE IT ACT AND ALSO AT THE TIME OF ASSESSMENT, THE ASSESSEE HAD FILED DOCUMENT S TO PROVE THAT THE LAND IS NOT WITHIN 8 KMS RADIUS OF THE MUNICIPA L CORPORATION AND THE POPULATION OF THE VILLAGE IS LESS THAN 10,0 00/-. 4. AFTER CONSIDERING THE EVIDENCES FILED BY THE AS SESSEE, THE CIT(A) DELETED THE ADDITION. FOR COMING TO THIS CO NCLUSION, THE LEARNED CIT(A) RELIED ON THE FOLLOWING DECISIONS; 1 . SRINIVAS PANDIT (HUF) VS ITO (2010) 39 SOT 350(H YD.) 2 . DCIT VS CAPITAL LOCAL AREA BANK LTD., (2009) 29 S OT 394(ASR.) 4.1 AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 4.2 NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF SERVICE OF NOTICE OF HEARING ON 25-02-2011. THEREFORE AFTE R, HEARING THE LEARNED DR EX-PARTE QUA THE ASSESSEE, WE PROCEED TO DISPOSED OF THE APPEAL. 5. THE LEARNED DR EXCEPT REITERATING THE FINDINGS O F THE AO IN THE ASSESSMENT ORDER THAT THE LAND TRANSFERRED IS N OT AGRICULTURAL LAND, HAS NOT BEEN ABLE TO BRING ANY EVIDENCE ON RE CORD TO REBUT ITA.NO.18(B)/11 4 THE FINDINGS OF THE CIT(A) THAT THE LAND IN QUESTIO N IS AGRICULTURAL LAND AND NOT A CAPITAL ASSET WITH IN THE MEANING OF SEC.2(14)(III) OF THE ACT AND THAT THE SALE CONSIDERATION ARISING ON THE SALE OF THE SAID LAND IS NOT EXIGIBLE TO CAPITAL GAINS TAX. IN VIEW OF THE SAME, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDE R OF CIT(A) WHICH IS A WELL CONSIDERED ONE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 12 TH OCTOBER, 2011. SD/- SD/- ( N.K.SAINI) (SMT . P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDIC IAL MEMBER PLACE: BANGALORE DATED: 12-10-2011 AM* COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) BY ORDER AR, ITAT, BANGALORE