B.Kannabiran, CHENNAI V. ACIT NCW 22(1), Chennai

ITA 2630/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1584 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 12-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R CLEMENT RAMESH KUMAR
• Assessee Lawyers: R S BALAJI
• Keywords: Set aside
• Section: 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , . ! , # $ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ./ ITA NO.2630/CHNY/2018 & '& / ASSESSMENT YEAR : 2013-14 SHRI B. KANNABIRAN, C/O SHRI R.S. BALAJI, ADVOCATE, NO.95B, RAJAJI ROAD, TAMBARAM WEST, CHENNAI - 600 045. PAN : AMQPK 7035 F V. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE WARD 22(1), CHENNAI - 600 045. ()*/ APPELLANT) (+,)*/ RESPONDENT) )* - . / APPELLANT BY : SHRI R.S. BALAJI, ADVOCATE +,)* - . / RESPONDENT BY : SHRI R. CLEMENT RAMESH KUMAR, ADDL.CIT / - 0# / DATE OF HEARING : 03.06.2019 12' - 0# / DATE OF PRONOUNCEMENT : 07.06.2019 / 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) -10, CHENNAI, DATED 17.07.2018 AND PERTAINS TO ASSESSMENT YEAR 2013-14. 2. SHRI R.S. BALAJI, THE LD.COUNSEL FOR THE ASSESSE E, SUBMITTED THAT THE ASSESSEE DISPOSED OF AN AGRICULTURAL LAND, WHIC H IS BEYOND 8 KMS 2 I.T.A. NO.2630/CHNY/18 RADIUS FROM TAMBARAM MUNICIPAL LIMIT. IN SUPPORT O F HIS CONTENTION, THE ASSESSEE HAS FILED A LETTER ISSUED BY THE TAHSILDAR , COPY OF WHICH IS AVAILABLE AT PAGE 5 OF THE PAPER-BOOK. ACCORDING T O THE LD. COUNSEL, THE TAHSILDAR IN CATEGORICAL TERMS STATED THAT THE SUBJ ECT LAND WAS SITUATED BEYOND 9 KMS RADIUS FROM TAMBARAM MUNICIPALITY. TH IS CERTIFICATE WAS, ACCORDING TO THE LD. COUNSEL, REJECTED BY THE CIT(A PPEALS) WITHOUT ANY BASIS. ON A QUERY FROM THE BENCH WHETHER THE CERTI FICATE ISSUED BY THE TAHSILDAR WAS PRODUCED BEFORE THE ASSESSING OFFICER ? THE LD.COUNSEL VERY FAIRLY SUBMITTED THAT IT WAS PRODUCED ONLY BEF ORE THE CIT(APPEALS). WITHOUT ANY BASIS, ACCORDING TO THE LD. COUNSEL, TH E CIT(APPEALS) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R. 3. REFERRING TO THE PAPER-BOOK, MORE PARTICULARLY P AGE 1, WHICH IS A COPY OF PATTA, SHRI R.S. BALAJI, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE LAND IS CLASSIFIED AS WET LAND IN THE REVENUE RECORDS AND THE ASSESSEE, IN FACT, WAS CULTIVATING PADDY. THIS IS EVIDENT FROM THE ADANGAL EXTRACT ISSUED BY THE VILLAGE ADMINISTRATIV E OFFICER. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) IS N OT JUSTIFIED IN DISALLOWING THE CLAIM OF THE ASSESSEE. THE LD.COUN SEL FURTHER SUBMITTED THAT THE ASSESSEE HAS ALSO INVESTED THE SALE PROCEE DS OF THE AGRICULTURAL LAND IN ACQUIRING ANOTHER PROPERTY WHICH ALSO NEEDS TO BE EXAMINED. 4. ON THE CONTRARY, SHRI R. CLEMENT RAMESH KUMAR, T HE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE CIT (APPEALS) AFTER 3 I.T.A. NO.2630/CHNY/18 REFERRING TO VARIOUS INPUTS OBTAINED FROM INTERNET FOUND THAT THE SUBJECT LAND WAS SITUATED WITHIN 8 KMS RADIUS FROM THE MUNI CIPALITY LIMIT. THE PUBLIC TRANSPORT SYSTEM, NAMELY, ROUTE NO.M51G PLYI NG FROM VENGAIVASAL PRIMARY HEALTH CENTRE TO TAMBARAM, MENT IONS THAT THE DISTANCE IS ONLY 7 KMS. THEREFORE, ACCORDING TO TH E LD. D.R., IT IS OBVIOUS THAT THE LAND IS SITUATED WITHIN 8 KMS OF TAMBARAM MUNICIPALITY. HENCE, ACCORDING TO THE LD. D.R., THE CIT(APPEALS) HAS RIG HTLY REJECTED THE CERTIFICATE ISSUED BY THE TAHSILADAR. ON A QUERY F ROM THE BENCH, OTHER THAN THE INTERNET INPUTS OBTAINED BY THE CIT(APPEAL S), WHETHER ANY OTHER DOCUMENTARY EVIDENCE IS AVAILABLE? THE LD. D.R. SU BMITTED THAT OTHER THAN THE INTERNET INPUTS, NO OTHER MATERIAL IS AVAI LABLE ON RECORD. 5. HAVING HEARD THE LD.COUNSEL FOR THE ASSESSEE AND THE LD. D.R., THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE TAHSILDAR, BEING THE HEAD OF THE REVENUE UNIT OF THE TALUK, ISSUED CERTI FICATE SAYING THAT THE LAND IN QUESTION IS BEYOND 9 KMS RADIUS FROM TAMBAR AM MUNICIPALITY. THIS CERTIFICATE ISSUED BY THE TAHSILDAR WAS REJECT ED BY THE CIT(APPEALS) ON THE BASIS OF BUS ROUTE. THE DETAILS WITH REGARD TO DISTANCE BETWEEN TAMBARAM TO VENGAIVASAL PRIMARY HEALTH CENTRE, SAID TO BE OBTAINED FROM THE INTERNET WAS NOT PUT TO THE ASSESSEE. THE REFORE, THE ASSESSEE HAD NO OCCASION TO EXPLAIN THE DISTANCE BETWEEN THE SUBJECT LAND AND TAMBARAM MUNICIPALITY. 4 I.T.A. NO.2630/CHNY/18 6. THE CIT(APPEALS) HAS ALSO NOT CALLED FOR ANY EXP LANATION FROM THE TAHSILDAR ON WHAT BASIS HE ISSUED CERTIFICATE SAYIN G THAT THE DISTANCE WAS BEYOND 9 KMS RADIUS. IF THE BUS ROUTE IS WITHIN 7 KMS RADIUS, THEN NATURALLY THE CERTIFICATE ISSUED BY THE TAHSILDAR I S WRONG. THEREFORE, BEFORE REJECTING THE CERTIFICATE ISSUED BY THE TAHS ILDAR, WHO HAPPEN TO BE THE EXECUTIVE MAGISTRATE OF THAT AREA, HAS TO BE GI VEN OPPORTUNITY AND REPORT SHALL BE CALLED FOR AFTER INTIMATING THE BUS ROUTE DISTANCE. MOREOVER, IF NECESSARY, THE ASSESSING OFFICER HAS T O EXAMINE THE TAHSILDAR IN PERSON AFTER ISSUING SUMMON UNDER SECT ION 131 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') IN ORDER TO BRING ON RECORD THE REAL DISTANCE BETWEEN THE SUBJECT LAND AND TAMBARAM MUNICIPALITY. 7. IN VIEW OF THE ABOVE FACTS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, BOTH THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE, INCLUDING THE REINVESTM ENT OF SALE PROCEEDS, IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AND EXAMINE THE BASIS O N WHICH THE TAHSILDAR ISSUED THE CERTIFICATE CLAIMING THAT THE SUBJECT LAND IS BEYOND 9 KMS RADIUS FROM THE MUNICIPAL LIMIT. IF NECESSARY, IT IS OPEN TO THE ASSESSING OFFICER TO EXAMINE THE TAHSILDAR BY ISSUI NG SUMMON UNDER SECTION 131 OF THE ACT. THE ASSESSING OFFICER SHAL L BRING ON RECORD THE ENTIRE MATERIAL FACTS INCLUDING THE REPORT, STATEME NT IF ANY, OBTAINED FROM 5 I.T.A. NO.2630/CHNY/18 THE TAHSILDAR AND THEREAFTER DECIDE THE ISSUE AFRES H IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE A SSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 7 TH JUNE, 2019 AT CHENNAI. SD/- SD/- ( . ! ) ( ... ) (M. BALAGANESH) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 7 TH JUNE, 2019. KRI. - +056 76'0 /COPY TO: 1. )* /APPELLANT 2. +,)* /RESPONDENT 3. / 80 () /CIT(A)-10, CHENNAI-34 4. PRINCIPAL CIT-7, CHENNAI 5. 69 +0 /DR 6. :& ; /GF.