ITO, CHENNAI V. Shri C.K. Theerthagiri, CHENNAI

ITA 1957/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73598 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 06-01-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 07-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: V BALASUBRAMANYAN
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL D BENCH, CHENNAI. BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 1957/MDS/2013 ASSESSMENT YEAR: 2005-06 THE INCOME TAX OFFICER, SALARY WARD II(4), 4 TH FLOOR, R.NO. 423 E, NO. 21, M.G. ROAD, CHENNAI 600 034. VS. SHRI C.K. THEERTHAGIRI, NO.70, LANDONS ROAD, KILPAUK, CHENNAI 600 010. [PAN : ADTPT00001E] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. DAS GUPTA , JCIT RESPONDENT BY : SHRI V. BALASUBRAMANYAN, C.A. DATE OF HEARING : 06 . 0 1 .201 4 DATE OF PRONOUNCEMENT : 06.01.2014 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) II, CHENNA I DATED 22.07.2013 RELEVANT TO THE ASSESSMENT YEAR 2005-06. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AS FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005-06 DECLARING TO TAL INCOME OF ` .1,52,933/-. THE ASSESSING OFFICER, AFTER FOLLOWING DUE PROCEDURE COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME T AX BY ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT ` .76,26,750/- BY MAKING ADDITIONS OF I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1957 1957 1957 1957/M/ /M/ /M/ /M/13 1313 13 2 ` .74,73,817/- TO THE TOTAL INCOME ON ACCOUNT OF LONG TERM CAPITAL GAINS FROM THE SALE OF LANDS. SUBSEQUENTLY, PENALTY PROCEEDING S UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED BY THE ASSESSIN G OFFICER ON ACCOUNT OF THE ABOVE ADDITIONS. 3. WHEN THE ASSESSEE REACHED THE TRIBUNAL IN APPEA L, THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER IN I.T.A. NO. 1683/MDS/2013 FOR THE ASSESSMENT YEAR 2005-06 VIDE ORDER DATED 18.11.2013 BY OBSERVING AS UNDER: 4. ....... WE FIND THAT THE CLAIM OF THE ASSESSEE HAS BEEN ALLOWED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE CASE OF THE ASSESSEES OWN BROTHER, SHRI C.K. RAMA CHANDRAN, WHO IS ONE OF THE CO-OWNERS OF THE SUBJECT LAND, WHOSE NATURE IS IN DISPUTE. ONCE IN THE HANDS OF ANOTHER CO-OWNER, THE COMMISSIONER OF INCOME TAX (A PPEALS) HAS HELD THAT THE LAND WAS AGRICULTURAL IN NATURE, THERE IS NO REASON FOR ANOTHER COMMISSIONER OF INCOME TAX (APPEALS) TO TAKE A DIFF ERENT VIEW ON THE SAME SET OF FACTS. THEREFORE, WE FIND THAT THE CLAI M OF THE ASSESSEE HAS TO BE ACCEPTED AND THIS APPEAL NEEDS TO BE ALLOWED. ACCORDINGLY, WE DELETE THE TAXABLE CAPITAL GAINS WORKED OUT BY THE ASSESSING OFFICER IN THE PRESENT CASE. 4. IN SO FAR AS PENALTY UNDER SECTION 271(1)(C) OF THE ACT INITIATED BY THE ASSESSING OFFICER IS CONCERNED, THE LD. CIT(APPEALS ) HAS DELETED AND THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ITAT HAS ALREADY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AND THEREFORE, THE PENALTY HAS NO LEGS TO S TAND AND HAS TO BE QUASHED. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1957 1957 1957 1957/M/ /M/ /M/ /M/13 1313 13 3 6. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER PASSED BY THE ASSESSING OFFICER. 7. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AS WELL AS COPY OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FILED BY THE LD. CO UNSEL FOR THE ASSESSEE. WE FIND THAT FROM THE VERY BASIS OF ADDITION ON WHI CH PENALTY WAS LEVIED HAS BEEN DELETED BY THE TRIBUNAL. THUS, THE PENALTY PRO CEEDING INITIATED BY THE ASSESSING OFFICER HAS NO LEGS TO STAND. THEREFORE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 6 TH JANUARY, 2014 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (V. DURGA RAO) J UDICIAL MEMBER CHENNAI, DATED, THE 06.01.2014 VM/- TO: THE ASSESSEE/A.O./CIT(A)/CIT/D.R.