DCIT, Coimbatore V. Shri Soundaram Raghuraman, Coimbatore

ITA 2567/CHNY/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7358 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-07-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 01-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MATHIVANAN
• Assessee Lawyers: P S PRABHAKAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2567/CHNY/2016 ( )( / ASSESSMENT YEAR : 2012-13 THE DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 5, COIMBATORE 641 018. V. SHRI SOUNDARAM RAGHURAMAN, 141, TEA ESTATE COMPOUND, RACE COURSE, COIMBATORE 641 018. PAN : AARPR 1796 H (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI M. MATHIVANAN, ADDL. CIT -.+, / 0 / RESPONDENT BY : SHRI P.S. PRABHAKAR, CA 1 / 2% / DATE OF HEARING : 27.06.2018 3') / 2% / DATE OF PRONOUNCEMENT : 17.07.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -3, COIMBA TORE, DATED 27.05.2016 AND PERTAINS TO ASSESSMENT YEAR 2012-13. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS COMPU TATION OF CAPITAL GAIN. 2 I.T.A. NO.2567/CHNY/16 3. SHRI M. MATHIVANAN, THE LD. DEPARTMENTAL REPRESE NTATIVE, SUBMITTED THAT THE ASSESSEE ALONG WITH HIS UNCLE SH RI C. THYAGARAJAN, WHO IS THE CO-OWNER OF THE PROPERTY, E NTERED INTO A JOINT VENTURE AGREEMENT WITH M/S PRICOL PROPERTIES LTD. FOR PROMOTING RESIDENTIAL APARTMENTS AND COMMERCIAL AREA AT RAMAN ATHAPURAM VILLAGE, COIMBATORE. AS PER THE AGREEMENT, ACCORDI NG TO THE LD. D.R., THE DEVELOPER HAS TO TAKE 70% OF UNDIVIDED PO RTION OF LAND IN LIEU OF COST OF CONSTRUCTION OF 30% OF CONSTRUCTED AREA. ACCORDING TO THE LD. D.R., WHEN THE ASSESSEE HANDED OVER 70% OF UNDIVIDED PORTION OF LAND TO THE DEVELOPER, NAMELY, M/S PRICO L PROPERTIES LTD. FOR THE COST OF CONSTRUCTION OF 30% OF THE BUILDING WHICH IS TO BE ALLOTTED TO THE ASSESSEE, THERE WAS A CAPITAL GAIN IN RESPECT OF 70% OF THE UNDIVIDED SHARE OF THE LAND. AGAIN, THE ASS ESSEE HAS SOLD THE CONSTRUCTED AREA. HENCE, ACCORDING TO THE LD. D.R., THERE WAS ANOTHER CAPITAL GAIN IN RESPECT OF THE BUILDING. T HE CIT(APPEALS), HOWEVER, ALLOWED THE CLAIM OF THE ASSESSEE ON THE G ROUND THAT THE DEMARCATION OF CONSTRUCTED AREA WAS NOT DONE. ACCO RDING TO THE LD. D.R., SINCE THE BUILDING WAS HELD BY THE ASSESS EE FOR LESS THAN THREE YEARS, SHORT TERM CAPITAL GAIN HAS TO BE ASSE SSED. ON A QUERY FROM THE BENCH WHETHER THERE WAS SCRUTINY ASSESSMEN T OF CO-OWNER 3 I.T.A. NO.2567/CHNY/16 SHRI THIAGARAJAN, THE LD. D.R. SUBMITTED THAT SHRI THIAGARAJANS RETURN WAS NOT TAKEN FOR SCRUTINY AND IT WAS PROCES SED UNDER SECTION 143(1) OF THE INCOME-TAX ACT, 1961 (IN SHOR T 'THE ACT') ON 26.12.2013 ACCEPTING THE RETURNED INCOME. 4. WE HEARD SHRI P.S. PRABHAKAR, THE LD. REPRESENTA TIVE FOR THE ASSESSEE ALSO. ADMITTEDLY, THERE ARE TWO CO-OWNERS OF THE PROPERTY, WHICH IS THE SUBJECT MATTER OF DISCUSSION. THE ASS ESSEE IS ONE OF THE CO-OWNERS AND HIS UNCLE IS ANOTHER CO-OWNER. IN RESPECT OF SHRI C. THYAGARAJAN, ONE OF THE CO-OWNERS, THE DEPARTMEN T ACCEPTED HIS CASE WHILE PROCESSING THE RETURN UNDER SECTION 143( 1) AND IT WAS NOT TAKEN UP FOR SCRUTINY. IT IS NOT KNOWN WHY THE RETURN OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT CONSISTENCY IS HALLMARK OF JUDICIAL DECISIONS. THE PROCEEDING BEFORE THE ASSESSING OFFICER IS A JU DICIAL PROCEEDING AS PROVIDED IN SECTION 136 OF THE ACT. THEREFORE, CONSISTENT VIEW SHALL BE TAKEN IN RESPECT OF BOTH THE CO-OWNERS. T HIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE POWER TO DETERMINE OR ADJUDICATE THE LITIGATION, EVEN THOUGH TECHNICALLY FLOWS FROM THE PROVISIONS OF INCOME-TAX ACT, IN FACT, IT FLOWS FROM THE CONFIDEN CE REPOSED BY THE PEOPLE OF THIS COUNTRY ON THE AUTHORITIES WHO ARE E MPOWERED TO 4 I.T.A. NO.2567/CHNY/16 ADJUDICATE THE MATTER. THEREFORE, THE CONFIDENCE O F CITIZENS OF THIS COUNTRY IS MORE IMPORTANT AND IT HAS TO BE PRESERVE D AT ALL COST. IF THE CASE OF THE CO-OWNER IS NOT TAKEN UP FOR SCRUTI NY AND THE ASSESSEES CASE IS TAKEN UP FOR SCRUTINY, FOR WHATE VER MAY THE REASON, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE PEOPLE WOULD LOSE CONFIDENCE ON THE JUDICIAL SYSTEM OF THI S COUNTRY WHICH CANNOT BE ALLOWED TO HAPPEN. TO PRESERVE THE INTEG RITY AND THE CONFIDENCE OF THE PEOPLE ON THE JUDICIAL SYSTEM, WE UPHOLD THE ORDER OF THE CIT(APPEALS). ACCORDINGLY, THE APPEAL OF TH E REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. ORDER PRONOUNCED ON 17 TH JULY, 2018 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 17 TH JULY, 2018. KRI. 5 I.T.A. NO.2567/CHNY/16 / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-3, COIMBATORE 4. PRINCIPAL CIT-3, COIMBATORE 5. 7: -2 /DR 6. ;( < /GF.