M. Mahavir Chand Taleda, CHENNAI V. ITO, CHENNAI

ITA 2527/CHNY/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3999 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: A SUSHMA HARINI
• Section: 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2527/MDS/2016 ' (' / ASSESSMENT YEAR : 2009-10 SHRI M. MAHAVIR CHAND TALEDA, NO.56, AMMAYAPPA MUDALI STREET, ROYAPETTAH, CHENNAI - 600 014. PAN : AGJPM 9675 Q V. THE INCOME TAX OFFICER, NON-CORPORATE WARD 11(2), CHENNAI - 600 0006. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : MS. A. SUSHMA HARINI, ADVOCATE ,-*+ . / / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT 0 . 1$ / DATE OF HEARING : 03.10.2016 2!( . 1$ / DATE OF PRONOUNCEMENT : 23.11.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -13, CHENN AI, DATED 03.08.2016 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2. MS. SUSHMA HARINI, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERAT ION IS WHETHER THE 2 I.T.A. NO.2527/MDS/16 PROPERTY IN QUESTION IS AGRICULTURAL LAND OR NOT. ACCORDING TO THE LD. COUNSEL, THIS TRIBUNAL HAD AN OCCASION TO CONSIDER THE VERY SAME PROPERTY IN THE CASE OF CO-OWNER SHRI ASHOK JAIN IN I.T.A. NO.896/MDS/2014 AND 232/MDS/2016. THIS TRIBUNAL, AF TER CONSIDERING MATERIAL AVAILABLE ON RECORD, FOUND THA T THE STATE GOVERNMENT WAS MAINTAINING THE CULTIVATING ACCOUNT, THEREFORE, THE ADANGAL EXTRACT NEEDS TO BE VERIFIED BY THE ASSESSI NG OFFICER BEFORE TAKING DECISION WHETHER THE SUBJECT LAND IS AGRICUL TURAL LAND OR NOT. THEREFORE, ACCORDING TO THE LD. COUNSEL, THIS ISSUE MAY ALSO BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. 3. WE HAVE HEARD SHRI A.V. SREEKANTH, THE LD. DEPAR TMENTAL REPRESENTATIVE, ALSO. IT IS NOT IN DISPUTE THAT TH E SUBJECT LAND IN QUESTION IS THE SAME LAND AS IT WAS CONSIDERED BY T HIS TRIBUNAL IN SHRI ASHOK JAINS CASE (SUPRA). THE ASSESSEE IS TH E CO-OWNER ALONG WITH SHRI ASHOK JAIN IN RESPECT OF THE VERY S AME LAND. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE ORDER OF THIS TRIBUNAL IN I.T.A. NO. 896/MDS/2014 AND 232/MD S/2016 DATED 19.05.2016 IS SQUARELY APPLICABLE. IN THE CASE OF SHRI ASHOK JAIN, THIS TRIBUNAL HAS OBSERVED AS FOLLOWS AT PARA 7:- 3 I.T.A. NO.2527/MDS/16 7. THE ASSESSEE CLAIMS THAT THE ASSESSEE WAS CULTIVATING THE LAND AND THERE ARE MORE THAN 100 COCO NUT TREES, MANGO TREES AND CASHEW NUT TREES. THIS FACT IS NOT REFLECTED IN THE CITS ORDER AS WELL AS THE ASSESSM ENT ORDER. THE CONSEQUENTIAL ORDER WAS PASSED BY THE ASSESSING OFFICER SIMPLY FOLLOWING THE DIRECTION OF THE CIT U/S 263 OF THE ACT WITHOUT MAKING ANY FURTHER INVESTIGATION. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE CLAIMS THAT THE LAND WAS SUBJECTED TO CULTIVATION, IT NEEDS TO BE VERIFIED B Y REFERRING TO THE REVENUE RECORDS OF THE STATE GOVERNMENT. THE STATE GOVERNMENT IS MAINTAINING CULTIVATION ACCOUNT. IN FACT, THE VILLAGE ADMINIST RATIVE OFFICER OF THE CONCERNED VILLAGE TAKES CULTIVATION ACCOUNT IN EVERY SIX MONTHS AND RECORDS THE SAME IN THE VILL AGE ACCOUNT NO.2 OR THE ADANGAL. THEREFORE, THE ADANGA L EXTRACT NEEDS TO BE VERIFIED BY THE ASSESSING OFFICE R BEFORE TAKING A DECISION WHETHER THE ASSESSEE WAS CULTIVATING THE LAND OR NOT. SINCE THE AUTHORITIES BELOW HAVE NOT EXAMINED THE RECORDS MAINTAINED BY THE STAT E GOVERNMENT FOR CULTIVATION OF THE SAID LAND, THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY , THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND T HE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE AS SESSING OFFICER. THE ASSESSING OFFICER SHALL REEXAMINE THE ISSUE AFRESH AFTER CALLING FOR THE NECESSARY MATERIAL FRO M THE RESPECTIVE TAHSILDAR AND VILLAGE ADMINISTRATIVE OFF ICER AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH L AW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESS EE. 4. IN VIEW OF THE FINDING OF THIS TRIBUNAL IN THE C O-OWNERS CASE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS TO RE-EXAMINE AFRESH AS INDICATED IN THE CO-OWN ERS CASE. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW AR E SET ASIDE AND THE ISSUE OF CAPITAL GAIN IS REMITTED BACK TO THE F ILE OF THE ASSESSING 4 I.T.A. NO.2527/MDS/16 OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE TH E ISSUE AFRESH AS INDICATED IN THE CASE OF SHRI ASHOK JAIN AND THEREA FTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW, AFTER GIVING A REASON ABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23 RD NOVEMBER, 2016 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 23 RD NOVEMBER, 2016. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A) -13, CHENNAI-34 4. PRINCIPAL CIT-8, CHENNAI-34 5. 69 ,1 /DR 6. :' ; /GF.