ITO, CHENNAI V. Shri Sujith Cherian, CHENNAI

ITA 2194/CHNY/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4894 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-06-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 02-12-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: V S JAYAKUMAR
• Keywords: Capital asset
• Section: 2(14); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D CHENNAI BEFORE SHRI HARI OM MARATHA, J.M. AND SHRI N.S. SAINI, AM .. I.T.A. NO. 2194/MDS/2008 ASSESSMENT YEARS 2002-03 THE INCOME-TAX OFFICER BUSINESS WARD II(4) CHENNAI VS. SHRI SUJITH CHERIAN PROP. KERALA FASHION JEWELLERY 67, LUZ CHURCH ROAD MYLAPORE, CHENNAI 600 004. (PAN NO. AADPC 7155 R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.S. JAYAKUMAR DEPARTMENT BY : SHRI ANIRUDH RAI O R D E R PER N.S. SAINI, A.M :- THIS IS AN APPEAL FILED BY THE REVENUE, DIRECTED A GAINST THE ORDER PASSED BY THE CIT(A)-VI, CHENNAI DATED 22.07. 2008 FOR ASSESSMENT YEAR 2002-03. PAGE 2 OF 14 I.T.A. NO. 2194/MDS/2008 2. THE REVENUE IN THIS APPEAL HAS TAKEN FIVE GROUND S OF APPEAL. HOWEVER, THE SOLE ISSUE INVOLVED IS THAT THE LD. CI T(A) ERRED IN HOLDING THAT THE LAND SOLD BY THE ASSESSEE WAS A RU RAL AGRICULTURAL LAND ON THE SALE OF WHICH ASSESSEE WAS NOT LIABLE T O CAPITAL GAINS TAX. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT DURING THE YE AR, ASSESSEE SOLD LAND OF MEASURING 2.99 ACRES LOCATED IN SHOLINGANAL LUR VILLAGE FOR RS. 1,55,77,836/- IN SURVEY NOS. 612/5, 7 TO 11 BY SALE DEED DATED 1.6.2001 TO M/S MASCOT SYSTEMS [PRESENTLY KNOW AS I GATE EPIP PHASE II, WHITEFIELD, BANGALORE. THE ASSESSEE CLAIMED EX EMPTION FROM CAPITAL GAINS TAX OF RS. 1,52,64,159/- ON THE SALE OF ABOVE LAND ON THE GROUND THAT THE LAND WAS SITUATED 8 KM AWAY FRO M CMDA LIMITS AS PER NOTIFICATION DATED 6.1.1994 AS THE POPULATIO N WAS LESS THAN 10,000 AS PER CENSUS FIGURE PUBLISHED BEFORE THE FI RST DAY OF THE PREVIOUS YEAR AND HENCE THE LAND WAS NOT AGRICULTUR AL LAND AND DOES NOT COME UNDER THE DEFINITION OF CAPITAL ASSET U/ S 2(14) OF THE INCOME-TAX ACT, 1961 [IN SHORT, THE ACT] AND AS PER ULT AND REVENUE PAGE 3 OF 14 I.T.A. NO. 2194/MDS/2008 RECORDS LANDS ARE AGRICULTURAL IN NATURE AND DESCRI BED AS PUNJA LAND. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE ASS ESSEE HAS GIVEN WORKING OF CAPITAL GAINS AT THE TIME OF APPLYING FO R CLEARANCE CERTIFICATE U/S 230A AS UNDER: INHERITED LAND RS. 12,39,362/- OWN LAND RS. 1,43,38,474/- TOTAL RS . 1,55,77,836/- LESS : INDEXED COST OF LAND INHERITED LAND [53000\6 415\116] RS. 31,602/- OWN LAND [90400\133 415 RS. 2,82,075/- CAPITAL GAINS RS. 1,52,64,159/- HE FURTHER OBSERVED THAT THE FOLLOWING PERSONS RELA TED TO SHRI SUJITH CHERIAN HAVE ALSO SOLD THE LANDS SITUATED IN SHOLIN GANALLUR VILLAGE: MRS VALAS CHERIAN [ALIAS] ANIAMMA CHERIAN RS. 21,09 ,037/- 44 CENTS S. NO. 612\12 [W/O LATE T.C. CHERIAN] SWAPNA REPRESENTED BY -DO- RS. 21,09,037/- 44 CENTS S. NO. 612\12 [W/O LATE T.C. CHERIAN] SINDU SOJ -DO- RS. 12,39,362/- 1755 ACRES [D/O LATE T.C. CHERIAN] S NO 612\7,8,10 & 1 1 SUNIL CHERIAN -DO- RS. 12,39,362/- -DO- [W/O LATE T.C. CHERIAN] PAGE 4 OF 14 I.T.A. NO. 2194/MDS/2008 4. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE POINT OF DISPUTE IS WHETHER THE SUBJECT LAND IS AGRICULTURAL LAND AND CAPITAL GAINS ARISING THEREOF ON SALE ARE EXEMPT FROM TAX. THE ASSESSING OFFICER FURTHER NOTED THAT THE CONDITIONS PRESCRIBE D FOR TREATING THE LAND AS AGRICULTURAL LAND AS PER SECTION 2(14)(III) ARE THAT THE LAND SHOULD NOT BE SITUATED IN ANY AREA COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY WHICH HAS POPULATION OF NOT LESS THAN 10,000 ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH REL EVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PRE VIOUS YEAR OR IN ANY AREA WITHIN SUCH DISTANCE NOT BEING MORE THAN 8 KMS FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOAR D. THE ASSESSING OFFICER THEREAFTER OBSERVED THAT IN THE DRAFT SALE DEED ENCLOSED TO THE 230A APPLICATION IT HAS BEEN STATED THAT THE LA ND HAS BEEN SPECIFIED AS PLAYGROUND/RECREATIONAL AREA FOR THE P URPOSE OF TAMIL NADU HOUSING BOARD AND THAT THE ENTIRE SHOLINGANALL UR VILLAGE WHERE THE SAID AGRICULTURAL LAND IS SITUATED HAS BEEN DEC LARED AS INDUSTRIAL AREA RESERVED FOR SOFTWARE INDUSTRIES BY GOVERNMENT OF TAMIL NADU. HE ALSO OBSERVED THAT THIS IS CONFIRMED BY THE CHEN NAI METROPOLITAN AUTHORITY IN THEIR LETTER DATED 7.2.2005 WHERE THEY HAVE STATED THAT SHOLINGANALLUR VILLAGE COMES WITHIN THE JURISDICTIO N OF SHOLINGANALLUR PAGE 5 OF 14 I.T.A. NO. 2194/MDS/2008 TOWN PANCHAYAT AND LIES IN CHENNAI METROPOLITAN ARE A LIMIT. THE LAND IN SURVEY NOS. 612\5 TO 612\12 ARE COVERED UND ER LAND ACQUISITION OF TAMIL NADU HOUSING BOARD AS PER THEI R LETTER DATED 31.5.2004. NO RECLASSIFICATION OF LAND USE WAS MAD E FOR IN THE ABOVE SURVEY NUMBERS AND NO FRESH APPLICATION WAS RECEIVE D. THE ASSESSEE HAS ALSO CONFIRMED THE ACQUISITION NOTICE IN RESPEC T OF THE SAID LAND BY THE GOVERNMENT. THE LAND WAS, HOWEVER, SOLD AND REGISTERED BY THE SRO. THE ASSESSING OFFICER ALSO NOTED THAT THE SUMMONS U/S 131 WAS ISSUED BY THE VILLAGE ADMINISTRATIVE OFFICER [V AO], SHOLINGANALLUR VILLAGE AND STATEMENT WAS TAKEN. HE HAS STATED THAT THE SAID LAND FALLS WITHIN THE TAMBARAM MUNICIPALIT Y AND IS SITUATED 17 KMS AWAY FROM THE TAMBARAM MUNICIPALITY LIMIT. AS PER CHITTA MAINTAINED BY THE VAO, IT IS PUNJA LAND AS PER HIS RECORDS AND THERE IS NO INFORMATION ABOUT ACQUISITION BY THE GOVERNME NT. THE LANDS ARE SUBJECT TO LAND REVENUE AND AS PER 2001 CENSUS, TOTAL POPULATION WAS 15,519/-. THE ASSESSING OFFICER ALSO NOTED THA T AS PER THE LETTER DATED 17.3.2005 RECEIVED FROM THE ACIT, URBAN LAND TAX, ALANDUR AT 169, SANNATHI STREET, ADAMBAKKAM, THE LANDS WERE C LASSIFIED AS PUNJAI LANDS AND TREATED AS AGRICULTURAL LANDS FROM THE FASLI YEAR 1401 I.E. 1.7.2001. THE PURCHASER OF THE LAND IGAT E, GLOBAL PAGE 6 OF 14 I.T.A. NO. 2194/MDS/2008 SOLUTION [MASCOT SYSTEMS] APPLIED TO THE OFFICE OF THE ACIT, ULT TO LEVY URBAN LAND TAX TO THE LANDS PURCHASED BY THE C OMPANY FROM 1.7.2001 ONWARDS. THE ABOVE LANDS WERE AGRICULTURA L IN NATURE FROM 1.7.1991 TO 30.6.2001. THE ASSESSING OFFICER ALSO OBSERVED THAT IN ORDER TO QUALIFY FOR EXEMPTION, IT IS NOT ENOUGH TH AT THE LAND WAS ONCE AGRICULTURAL LAND, IT MUST BE AGRICULTURAL LAN D AT THE TIME OF SALE. HE RELIED ON THE DECISION OF THE HON'BLE SUP REME COURT IN THE CASE OF SARIFA BIBI MOHD IBRAHIM VS. CIT 204 ITR 63 1 [SC] WHEREIN IT HAS BEEN HELD THAT THE AGRICULTURAL LAND SOLD FOR N ON-AGRICULTURAL PURPOSES IS ASSESSABLE TO CAPITAL GAINS TAX. HE AL SO NOTED THAT THE HON'BLE BOMBAY HIGH COURT HAS HELD THAT THE ACTUAL USER OF THE LAND FOR AGRICULTURAL PURPOSE OR ABSENCE THEREOF AT THE RELEVANT TIME IS UNDOUBTEDLY ONE OF THE CRUCIAL TESTS FOR DETERMINAT ION OF THE ISSUE AS TO WHETHER THE LAND IS QUESTION IS LIABLE TO BE CONSIDERED AS AGRICULTURAL LAND FOR THE PURPOSE OF INCOME-TAX. T HE FACT THAT THE LAND IS SOLD OR TRANSFERRED TO A NON AGRICULTURIST FOR A NON AGRICULTURAL PURPOSE OR THAT IS LIKELY TO BE USED F OR NON AGRICULTURAL PURPOSES SOON AFTER ITS TRANSFER IS ALSO A RELEVANT FACTOR GERMANE TO THE DETERMINATION OF THE ISSUE. PAGE 7 OF 14 I.T.A. NO. 2194/MDS/2008 5. THEREAFTER, THE ASSESSING OFFICER HELD THAT IF A LL RELEVANT FACTS, VIZ. THE LANDS HAVE BEEN CLASSIFIED AS INDUSTRIAL L AND RESERVED FOR SOFTWARE INDUSTRIES BY THE GOVERNMENT OF TAMIL NADU , LAND HAS BEEN CLASSIFIED AS PLAY GROUND/RECREATIONAL AREA FOR THE PURPOSE OF THE TAMIL NADU HOUSING BOARD, THE PURCHASER HAS PURCHAS ED THE LAND FOR SOFTWARE INDUSTRY AND APPLIED FOR LEVY OF URBAN LAN D, THE LAND LIES IN CMDA LIMIT AND OTHER FACTS AND CIRCUMSTANCES OF THE CASE ARE CUMULATIVELY CONSIDERED THE LAND SOLD IN QUESTION C ANNOT BE CONSIDERED AS AGRICULTURAL LAND AND HENCE THE SALE OF LAND ATTRACTS CAPITAL GAINS, AND THEREFORE, CLAIM OF ASSESSEE THA T IT IS EXEMPT FROM TAX IS REJECTED. ACCORDINGLY, HE ADDED RS. 1, 52,64,159/- TO THE INCOME OF THE ASSESSEE AS LONG TERM CAPITAL GAIN 6. IN APPEAL, THE LD. CIT(A) HELD AS UNDER: I HAVE GONE THROUGH THE FACTS OF THE CASE, SUBMISSI ONS OF THE APPELLANT AND THE CONTENTIONS RAISED BY THE ASSESSI NG OFFICER IN HIS ASSESSMENT ORDER. THE ONLY QUESTION IS WHETH ER THE LAND IS A RURAL AGRICULTURAL LAND OR NOT. THE ASSESSI NG OFFICER HAS ACCEPTED THE CONTENTION GIVEN BY THE APPELLANT ON THE FOLLOWING POINTS: PAGE 8 OF 14 I.T.A. NO. 2194/MDS/2008 I. THE LAND IN QUESTION WAS USED FOR AGRICULTURAL PURPO SES II. THE LAND IS SITUATED IN A PLACE WHICH IS AWAY FR OM THE MUNICIPALITY BY 8 KMS AND THE POPULATION OF THE VILLA GE ON THE DATE OF SALE AS PER LAST CENSUS AVAILABLE WAS BELOW 10000. THE POPULATION FIGURE SUBSEQUENTLY GIVEN BY THE VAO WAS RELATING TO LATER DATE AND THEREFORE IRRELEVANT. III. THE ASSESSEE WAS OFFERING AN AGRICULTURAL INCOME IN HIS RETURN. IV. THE URBAN LAND TAX WAS COLLECTED ONLY AFTER THE DATE OF SALE. V. THEREFORE, THE ONLY POINT ON WHICH THE ASSESSING OFFICER WAS RELYING UPON WAS WITH REGARD TO THE USAGE OF THE PURCHASER ON A LATER DATE. HE RELIED ON THE DECISION IN THE CASE OF SARIFABIBI VS. CIT [1993] 204 ITR 631 [SC]. 5.1 THE APPELLANT HAS QUOTED THE DECISION OF M.S. SR INIVASA NAICKER AND OTHERS VS. ITO [2008] 169 TAXMANN 255 [MAD] WHEREIN IT WAS HELD BY THE COURT THAT THE USAGE OF THE PURCHASER HAS NO RELEVANCE IN DECIDING THE NATURE OF PAGE 9 OF 14 I.T.A. NO. 2194/MDS/2008 THE AGRICULTURAL LAND. MOREOVER, AS PER THE APPELLAN TS STATEMENT TILL TODAY THE PURCHASER HAS NOT DONE ANYTHING. THE LAND IS HAVING MANGO TREES AND AGRICULTURAL OPERATIONS ARE STILL GOING ON. 5.2 IN VIEW OF THE DECISION QUOTED BY THE APPELLANT, I AM OF THE VIEW THAT THE AGRICULTURAL LAND IN QUESTION WAS A RURAL AGRICULTURAL LAND AT THE TIME OF SALE AND THEREF ORE, NO CAPITAL GAINS IN EXIGIBLE IN THAT CIRCUMSTANCE. THE APPELLANT SUCCEEDS ON THIS GROUND. 6. IN THE RESULT, THE APPEAL OF THE APPELLANT IS ALL OWED. 7. AFTER HEARING THE RIVAL SUBMISSIONS, WE FIND THA T IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE ASSESSEE SOLD A PLOT OF LAND SITUATED AT SHOLINGANALLUR VILLAGE ON 1.6.2001 FOR RS. 1,55,77,836/-. THE ISSUE IS WHETHER THE INCOME EARNED ON SALE OF T HE ABOVE PLOT OF LAND IS ASSESSABLE TO TAX U/S 45 OF THE ACT OR NOT? FOR BEING CHARGEABLE TO TAX U/S 45, THE CONDITION PRECEDENT I S THAT THERE MUST BE TRANSFER OF CAPITAL ASSET. CAPITAL ASSET HAS BEEN DEFINED IN SECTION 2(14) OF THE ACT WHICH IS EXTRACTED HEREINB ELOW: PAGE 10 OF 14 I.T.A. NO. 2194/MDS/2008 CAPITAL ASSET MEANS PROPERTY OF ANY KIND HELD BY A N ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION, BUT DOES NOT INCLUDE : I. .. II .. III. AGRICULTURAL LAND IN INDIA NOT BEING LAND SITUATE - (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY [WHETHER KNOW AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED ARE COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME] OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND ACCORDING TO THE ALST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR; OR (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MORE THAN EIGHT KILOMETERS FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD, REFERRED TO IN ITEM (A) AS THE CENTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF AND SCOPE FOR, URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFIC IAL GAZETTE] 8. THUS IT IS TO BE ASCERTAINED WHETHER THE LAND IN QUESTION WAS CAPITAL ASSET OR NOT ON THE DATE OF TRANSFER I.E. 1 .6.2001. WE FIND THAT THE ASSESSING OFFICER HAS STATED IN THE ORDER THAT THE FOLLOWING RELATIVES OF THE ASSESSEE HAVE ALSO SOLD SIMILARLY SITUATED LAND: PAGE 11 OF 14 I.T.A. NO. 2194/MDS/2008 MRS VALAS CHERIAN [ALIAS] ANIAMMA CHERIAN RS. 21,09 ,037/- 44 CENTS S. NO. 612\12 [W/O LATE T.C. CHERIAN] SWAPNA REPRESENTED BY -DO- RS. 21,09,037/- 44 CENTS S. NO. 612\12 [W/O LATE T.C. CHERIAN] SINDU SOJ -DO- RS. 12,39,362/- 1755 ACRES [D/O LATE T.C. CHERIAN] S NO 612\7,8,10 & 1 1 SUNIL CHERIAN -DO- RS. 12,39,362/- -DO- [W/O LATE T.C. CHERIAN] 9. HOWEVER, WE FIND THAT NEITHER THE ASSESSING OFFI CER NOR THE LD. CIT(A) HAVE BROUGHT ON RECORD THAT HOW THE PROFIT O N SALE OF LAND WAS TREATED IN THE ASSESSMENT OF THE SAID RELATED P ERSONS. IN OUR CONSIDERED OPINION, AS THE LANDS WERE SIMILARLY SIT UATED, DECISION IN ALL CASES SHOULD BE UNIFORM. 10. BEFORE US, BOTH THE PARTIES HAVE ALSO NOT BROUG HT ANY MATERIAL TO SHOW HOW THE PROFIT WAS TREATED IN THE ASSESSMEN T OF THESE RELATED PERSONS BY THE DEPARTMENT. FURTHER, WE FIN D THAT HE ASSESSING OFFICER HAS STATED IN THE ORDER OF ASSESS MENT THAT ACCORDING TO THE VAO, THE SAID SHOLINGANALLUR VILLA GE FALLS WITHIN THE TAMBARAM MUNICIPALITY AND ARE SITUATED 17 KMS AWAY FROM TAMBARAM MUNICIPALITY LIMIT. WE FIND THAT THERE IS A CONTRADICTION IN THE ABOVE STATEMENT. ON THE ONE HAND IT IS STAT ED THAT THE LAND PAGE 12 OF 14 I.T.A. NO. 2194/MDS/2008 IN QUESTION FALLS WITHIN THE TAMBARAM MUNICIPALITY LIMIT AND AT THE SAME TIME IT WAS ALSO MENTIONED THAT THE LAND IS 17 KMS AWAY FROM THE TAMBARAM MUNICIPALITY LIMIT. WE FIND THAT THE ASSESSING OFFICER HAS NOT CLARIFIED THIS STATEMENT IN HIS ORDER OF AS SESSMENT. THE LD. CIT(A) HAS STATED THAT THE LAND IN QUESTION IS SITU ATED IN A VILLAGE WHICH IS MORE THAN 8 KMS FROM MUNICIPALITY LIMIT. HOWEVER, THE LD. CIT(A) HAS NOT CLARIFIED AS TO WHICH MUNICIPALITY H E IS REFERRING TO. FURTHER, THE BASIS OF THE ABOVE CONCLUSION OF THE L D. CIT(A) IS ALSO NOT CLEAR FROM HIS ORDER. FURTHER, WE FIND THAT TH E LD. CIT(A) HAS ALSO STATED THAT THE ASSESSEE WAS OFFERING AGRICULT URAL INCOME IN HIS RETURN. BUT FROM HIS ORDER, IT IS NOT CLEAR THAT O N THE BASIS OF WHICH MATERIAL HE CAME TO THE ABOVE FINDING AND ALSO WHET HER THE AGRICULTURAL INCOME SHOWN WAS FROM THE LAND IN QUES TION OR NOT IS ALSO NOT CLEAR FROM THE ORDER OF THE LD. CIT(A). FURTHER, IT IS OBSERVED THAT THE ASSESSING OFFICER IN THE ASSESSME NT ORDER STATED THAT AS PER THE VAO, THE POPULATION AS PER 2001 CEN SUS WAS 15,519. HOWEVER, IT IS NOT CLEAR FROM THIS THAT THE POPULAT ION WAS STATED IN RESPECT OF WHICH AREA AND WHETHER THIS FIGURE OF 20 01 CENSUS WAS PUBLISHED BEFORE FIRST DAY OF APRIL 2001 OR NOT? A S PER THE PROVISION OF SECTION 2(14)(III)(A), THE FIGURE OF POPULATION WHICH IS TO BE TAKEN PAGE 13 OF 14 I.T.A. NO. 2194/MDS/2008 INTO CONSIDERATION IS POPULATION ACCORDING TO THE L AST CENSUS OF WHICH THE RELEVANT FIGURE HAVE BEEN PUBLISHED BEFOR E THE FIRST DAY OF THE PREVIOUS YEAR. IN THE INSTANT CASE, THE LAS T CENSUS OF WHICH FIGURE HAD BEEN PUBLISHED BEFORE THE FIRST DAY OF A PRIL 2001 IS ONLY TO BE TAKEN INTO CONSIDERATION. THE LD. CIT(A) IN THIS REGARD, HAS OBSERVED THAT THE POPULATION IS LESS THAN 10000 AS PER LAST CENSUS. AGAIN THE BASIS OF HIS ABOVE FINDING IS NOT CLEAR F ROM HIS ORDER. WE FIND THAT THE REVENUE HAS RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SARIFA BIBI MOHD. IBRA HIM VS. CIT [1993] 204 ITR 631 [SC] WHEREAS THE ASSESSEE HAS RE LIED UPON THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CA SE OF M.S SRINIVASA NAICKER VS. ITO [2008] 169 TAXMANN 255 [M AD]. WE FIND THAT IN THE DECISION IN THE CASE OF M.S. SRINIVASA NAICKER [SUPRA] THE HON'BLE JURISDICTIONAL HIGH COURT HAS DECIDED THE I SSUE AFTER DULY TAKING INTO CONSIDERATION THE DECISION OF HON'BLE S UPREME COURT RELIED UPON BY THE REVENUE IN THE INSTANT CASE. WE FIND THAT THE ASSESSING OFFICER HAS NOT TAKEN INTO CONSIDERATION THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE ABOVE CITE D CASE. IN THE ABOVE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, IT SHALL BE IN THE INTEREST OF JUSTICE TO SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING PAGE 14 OF 14 I.T.A. NO. 2194/MDS/2008 OFFICER FOR ADJUDICATION AFRESH AFTER TAKING INTO C ONSIDERATION THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT M ENTIONED ABOVE AND AFTER PROPER VERIFICATION IN THE LIGHT OF THE D ISCUSSIONS MADE HEREINABOVE, IT IS NEEDLESS TO MENTION THAT THE AS SESSING OFFICER SHALL ALLOW PROPER OPPORTUNITY OF HEARING TO THE AS SESSEE BEFORE ADJUDICATING THE ISSUE AS PER LAW. WE ORDER ACCORD INGLY. 11. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 13 TH JUNE 2011. SD/- SD/- ((HARI OM MARATHA ) (N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 13 TH JUNE, 2011. VL COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE