P.K.Mohamed Muyeenuddin, CHENNAI V. DCIT Corporate Circle 6(2), CHENNAI

ITA 2624/CHNY/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6581 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 01-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HOMI RAJVANSH
• Assessee Lawyers: T BANUSEKAR

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.2624/CHNY/2017 ( )( / ASSESSMENT YEAR : 2011-12 SHRI P.K. MOHAMED MUYEENUDDIN, NP.10D, CASUARINA DRIVE, NEELANKARAI, CHENNAI - 600 115. PAN : AAIPM 4366 P V. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(2), CHENNAI. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SH. T. BANUSEKAR, CA -.+, / 0 / RESPONDENT BY : SHRI HOMI RAJVANSH, CIT 1 / 2% / DATE OF HEARING : 10.04.2019 3') / 2% / DATE OF PRONOUNCEMENT : 30.04.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -15, CHENN AI, DATED 28.08.2017 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. SH. T. BANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE AND HIS WIFE JOINTLY SO LD A LAND AT 2 I.T.A. NO.2624/CHNY/17 NEELANKARAI FOR A TOTAL CONSIDERATION OF 3.15 CRORES BY A REGISTERED SALE DEED DATED 18.04.2011. ACCORDING TO THE LD. R EPRESENTATIVE, THE ASSESSEE AND HIS WIFE ALSO ENTERED INTO AN AGRE EMENT FOR SALE ON 31.03.2011 AND RECEIVED AN ADVANCE OF 12.5 LAKHS AND THE BALANCE CONSIDERATION OF 1.45 CRORES WAS RECEIVED BY THE ASSESSEE ON 18.04.2011 AND THE POSSESSION OF THE PR OPERTY WAS HANDED OVER TO THE PURCHASER. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THERE WAS NO TRANSFER DURING THE YE AR UNDER CONSIDERATION. THE TRANSFER, ACCORDING TO THE LD. REPRESENTATIVE, TOOK PLACE IN THE ASSESSMENT YEAR 2012-13. THE ASS ESSEE ADMITTEDLY DISCLOSED THE TRANSACTION FOR THE ASSESS MENT YEAR 2012- 13. 3. REFERRING TO ORDER OF THE CIT(APPEALS), SH. T. B ANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE CIT(APPEALS) FOUND THAT THE TRANSACTION HAS TO BE ASSESSED ONLY FOR THE ASSESSMENT YEAR 2012-13 AND NOT FOR ASSESSMENT YEAR 2011-12. HOWEVER, THE CIT(APPEALS) PROCEEDED TO CONSIDER THE NATURE OF LAND AND RECORDED HIS FINDING THAT THE LAND IN QUES TION IS NOT AGRICULTURAL LAND. ACCORDING TO THE LD. REPRESENTA TIVE, WHEN THE CIT(APPEALS) FOUND THAT THE TRANSACTION OF SALE OF LAND TOOK PLACE 3 I.T.A. NO.2624/CHNY/17 FOR THE ASSESSMENT YEAR 2012-13, HE COULD NOT HAVE RECORDED ANY FINDING THAT THE LAND IN QUESTION IS NOT AGRICULTUR AL LAND. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSMENT YEAR 2012 -13 IS NOT BEFORE THE CIT(APPEALS), THEREFORE, HE HAS NO AUTHO RITY TO COMMENT UPON THE NATURE OF LAND FOR THE ASSESSMENT YEAR 201 2-13. HAVING HELD THAT IT IS NOT TAXABLE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, I.E. 2011-12, ACCORDING TO THE LD. R EPRESENTATIVE, THE CIT(APPEALS) OUGHT TO HAVE STOPPED THERE. THEREFOR E, THE FINDING RECORDED BY THE CIT(APPEALS) THAT THE LAND IN QUEST ION IS NOT AN AGRICULTURAL LAND CANNOT BE ADOPTED BY THE ASSESSIN G OFFICER WHILE CONCLUDING THE ASSESSMENT FOR ASSESSMENT YEAR 2012- 13. THE LD. REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER HAS TO INDEPENDENTLY APPLY HIS MIND TO FIND OUT WHETHER TH E LAND IN QUESTION IS AGRICULTURAL LAND OR NOT IN THE ASSESSM ENT PROCEEDING FOR TH ASSESSMENT YEAR 2012-13. THE LD. REPRESENTATIVE FURTHER CLARIFIED THAT THE DEPARTMENT HAS NOT FILED ANY APP EAL FOR THE ASSESSMENT YEAR 2011-12. THEREFORE, ACCORDING TO T HE LD. REPRESENTATIVE, THE FINDING RECORDED BY THE CIT(APP EALS) THAT THE SALE TRANSACTION IS NOT TAXABLE DURING THE YEAR UND ER CONSIDERATION ATTAINED FINALITY. 4 I.T.A. NO.2624/CHNY/17 4. WE HEARD SHRI HOMI RAJVANSH, THE LD. DEPARTMENTA L REPRESENTATIVE ALSO. ADMITTEDLY, THERE WAS AN AGRE EMENT ON 31.03.2011 AND THE ASSESSEE RECEIVED AN ADVANCE OF 12.5 LAKHS. THE ASSESSEE AND HIS WIFE EXECUTED A SALE DEED ON 1 8.04.2011 AND RECEIVED BALANCE SALE CONSIDERATION OF 1.45 CRORES. IT IS ALSO NOT IN DISPUTE THAT THE PHYSICAL POSSESSION OF THE PROP ERTY WAS ALSO HANDED OVER ONLY ON 18.04.2011. THE CIT(APPEALS) S PECIFICALLY FOUND THAT THE TRANSACTION IN QUESTION IS NOT TAXAB LE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, I.E. 2011-12. THE REVENUE HAS NOT CHALLENGED THIS FINDING OF THE CIT(APPEALS) . NOW THE ASSESSEE CAME ON APPEAL BEFORE THIS TRIBUNAL AND CO NTENDS THAT HAVING HELD THAT IT IS NOT TAXABLE FOR THE ASSESSME NT YEAR UNDER CONSIDERATION, THE CIT(APPEALS) OUGHT NOT HAVE RECO RDED THAT THE LAND IN QUESTION IS NOT AGRICULTURAL LAND. 5. PRIMA FACIE THE CONTENTION OF THE LD. REPRESENTATIVE HAS A MERIT. EACH ASSESSMENT YEAR IS SEPARATE, DIFFERENT AND DISTINCT. THEREFORE, WHEN THE CIT(APPEALS) CAME TO A CONCLUSI ON THAT THE TRANSACTION IN QUESTION IS NOT TAXABLE DURING THE Y EAR UNDER CONSIDERATION, HE OUGHT TO HAVE STOPPED THERE. REC ORDING A FINDING THAT THE LAND IN QUESTION IS NOT AGRICULTURAL LAND WOULD PREJUDICE THE 5 I.T.A. NO.2624/CHNY/17 MIND OF THE ASSESSING OFFICER WHEN HE ADJUDICATES T HE ISSUE FOR THE ASSESSMENT YEAR 2012-13. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE TRANSACTION IN QUESTION IS TAXABLE DURING THE ASSESSMENT YEAR 2012-13. AS FAR AS THE NATURE OF LAND WHETHER IT IS AGRICULTURAL LAND OR NOT HAS TO BE INDEPENDEN TLY EXAMINED BY THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDING FOR THE ASSESSMENT YEAR 2012-13 WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATION MADE BY THE CIT(APPEALS) OR THE ASSESSING OFFICER D URING THE YEAR UNDER CONSIDERATION, I.E. 2011-12. 6. WITH THE ABOVE OBSERVATION, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 30 TH APRIL, 2019 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESA N) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 30 TH APRIL, 2019. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-15, CHENNAI-34 4. PRINCIPAL CIT-6, CHENNAI 5. 7: -2 /DR 6. ;( < /GF. 6 I.T.A. NO.2624/CHNY/17