THE ITO, WARD - 2(1), Vijayawada V. Smt. Chanumolu Samba Suseela Devi, Vijayawada

ITA 27/VIZ/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1175 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P SRINIVASA MURTHYDR
• Assessee Lawyers: S RAMA RAO
• Keywords: Capital asset
• Section: 2(14); 147; 148

Judgement Text

ITA NO.27/VIZAG/2013 CH. SAMBA SUSEELA DEVI, VIJAYAWADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NO.27/VIZAG/2013 ( / ASSESSMENT YEAR: 2008-09) ITO , WARD - 2(1) , VIJAYAWADA VS. CH. SAMBA SUSEELA DEVI VIJAYAWADA [PAN: AAZPC 9872B ] ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI P. SRINIVASA MURTHY,DR / RESPONDENT BY : SHRI S. RAMA RAO, AR / DATE OF HEARING : 21.04.2016 / DATE OF PRONOUNCEMENT : 29.04.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A), VIJAYAWADA DATED 30.11.2012 AND IT PERT AINS TO THE ASSESSMENT YEAR 2008-09. ITA NO.27/VIZAG/2013 CH. SAMBA SUSEELA DEVI, VIJAYAWADA 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL DERIVING AGRICULTURAL INCOME, FILED A RETURN OF INC OME FOR THE ASSESSMENT YEAR 2008-09 ON 28.7.2008 DECLARING NIL TOTAL INCOM E, BESIDES AGRICULTURAL INCOME OF RS.30,000/-. FROM THE INFOR MATION AVAILABLE WITH THE DEPARTMENT, THE A.O. NOTICED THAT THE ASSESSEE HAS SOLD AGRICULTURAL LAND AND HAS NOT ADMITTED CAPITAL GAIN. SINCE, THE ASSESSEE HAS NOT ADMITTED CAPITAL GAIN FROM THE SALE OF AGRICULTURAL LAND, THE A.O. HAS REOPENED THE ASSESSMENT UNDER SEC. 147 BY ISSUING N OTICE U/S 148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED AS TH E ACT). SUBSEQUENTLY, THE CASE HAS BEEN CONVERTED INTO SCRU TINY ASSESSMENT AND ACCORDINGLY, NOTICE U/S 143(2) OF THE ACT DATED 15.7.2011 WAS ISSUED. IN RESPONSE TO THE NOTICES, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED T HE INFORMATION CALLED FOR. DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE A.O. NOTICED THAT THE ASSESSEE HAS SOLD AGRICULTURAL LAN D ADMEASURING 2 ACRES FOR A CONSIDERATION OF RS.1,20,30,000/-, THEREFORE ASKED TO EXPLAIN WHY CAPITAL GAIN TAX SHALL NOT BE CHARGED FOR TRANSFER OF LAND. IN RESPONSE TO SHOW CAUSE NOTICE, THE ASSESSEE CLAIMED THAT THE LA ND IS AN AGRICULTURAL LAND AND ALSO SITUATED BEYOND 8 KMS. FROM THE LOCAL LIMITS OF MUNICIPALITY, THEREFORE, THE SAME HAS BEEN TREATED AS AGRICULTURAL LAND AND CLAIMED EXEMPTION FROM INCOME TAX. THE A.O. AF TER CONSIDERING THE ITA NO.27/VIZAG/2013 CH. SAMBA SUSEELA DEVI, VIJAYAWADA 3 EXPLANATION FURNISHED BY THE ASSESSEE HELD THAT THE LAND SOLD BY THE ASSESSEE IS A CAPITAL ASSET WITHIN THE MEANING OF S ECTION 2(14) OF THE ACT. THE A.O. FURTHER OBSERVED THAT AS PER THE CLA RIFICATIONS OBTAINED FROM THE MUNICIPAL AUTHORITIES AS WELL AS TAHSILDAR , IBRAHIMPATNAM THE LAND WAS SITUATED WITHIN 8 KMS. FROM THE LIMITS OF MUNICIPAL CORPORATION. HENCE, THE LAND FALLS UNDER THE DEFINITION OF CAPIT AL ASSET AND ACCORDINGLY LIABLE FOR CAPITAL GAINS. WITH THESE OBSERVATIONS, THE A.O. HAS COMPUTED THE CAPITAL GAIN AND BROUGHT TO TAX. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE AS SESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE A.O. THE ASSESSEE FURT HER SUBMITTED THAT SHE HAD SOLD A AGRICULTURAL LAND, WHICH IS SITUATED BEYOND 8 KMS. FROM THE LOCAL LIMITS OF THE MUNICIPALITY. IT WAS FURTHE R SUBMITTED THAT THE LAND IS SITUATED IN GUNTUPALLY VILLAGE WHICH IS COMING W ITHIN THE JURISDICTION OF IBRAHIMPATNAM MANDAL. THE ASSESSEE FURTHER SUBMITT ED THAT AS PER THE DEFINITION OF CAPITAL ASSET, ANY LAND WHICH IS SITU ATED WITHIN THE JURISDICTION OF MUNICIPALITY HAVING A POPULATION OF 10,000 AND MORE IS A CAPITAL ASSET WHICH IS LIABLE FOR CAPITAL GAIN TAX. THE LAND SOLD BY ME IS AGRICULTURAL LAND WHICH IS CLASSIFIED AS AGRICULTUR AL LAND AS PER THE RECORDS OF REVENUE AND ALSO SITUATED BEYOND 8 KMS. FROM THE LIMITS OF ITA NO.27/VIZAG/2013 CH. SAMBA SUSEELA DEVI, VIJAYAWADA 4 LOCAL MUNICIPALITY. THEREFORE, THE A.O. WAS NOT CO RRECT IN LEVYING CAPITAL GAIN TAX ON AGRICULTURAL LAND. THE CIT(A) AFTER CON SIDERING THE EXPLANATION FURNISHED BY THE ASSESSEE HELD THAT THE LAND SOLD BY THE ASSESSEE IS SITUATED IN GUNTUPALLY VILLAGE WHICH IS IN THE JURISDICTION OF IBRAHIMPATNAM MANDAL AND NOT IN THE JURISDICTION OF THE VIJAYAWADA MUNICIPALITY. THE CIT(A) FURTHER HELD THAT THE DIST ANCE OF THE VILLAGE GUNTUPALLY FROM VIJAYAWADA HAS NO RELEVANCE FOR THE PURPOSE OF SECTION 2(14) OF THE ACT. THE CIT(A) FURTHER HELD THAT GUNT UPALLY VILLAGE HAS A POPULATION OF MORE THAN 10,000 AND AS PER THE PROVI SIONS OF SECTION 2(14)(III)(A) OF THE ACT, ANY LAND WHICH IS SITUATE D WITHIN THE TERRITORIAL JURISDICTION OF A MUNICIPALITY HAS TO BE CONSIDERED FOR THE PURPOSE OF DEFINITION OF CAPITAL ASSET. IN THE PRESENT CASE, THE A.O. HAS CONSIDERED THE DISTANCE FROM THE LOCAL LIMITS OF VIJAYAWADA MU NICIPALITY WHICH HAS NO RELEVANCE TO THE PRESENT CASE ON HAND. WITH THES E OBSERVATIONS, THE CIT(A) DIRECTED THE A.O. TO DELETE THE ADDITIONS MA DE TOWARDS CAPITAL GAINS. AGGRIEVED BY THE CIT(A) ORDER, THE REVENUE IS IN APPEAL BEFORE US. 4. DURING THE COURSE OF HEARING, THE LD. D.R. SUBMI TTED THAT BOTH THE AUTHORITIES I.E. THE ASSESSING OFFICER AND THE CIT( A) HAVE FAILED TO CONSIDER THE FACTS THAT THE LAND IS SITUATED IN A M UNICIPALITY OR VILLAGE ITA NO.27/VIZAG/2013 CH. SAMBA SUSEELA DEVI, VIJAYAWADA 5 MANDAL. THE A.O. STATED THAT THE LAND IS SITUATED WITHIN 8 KMS. FROM THE LOCAL LIMITS OF THE MUNICIPALITY, WHEREAS THE CIT(A ) STATED THAT THE LAND IS SITUATED BEYOND 8 KMS. FROM THE LOCAL LIMITS OF IBHRAHIMPATNAM MANDAL. HOWEVER, BOTH THE AUTHORITIES HAVE FAILED TO BRING ON RECORD ANY EVIDENCES IN SUPPORT OF THEIR CONTENTIONS. THER EFORE, THE ISSUE NEEDS TO BE RE-EXAMINED BY THE A.O., WHETHER THE PA RTICULAR LAND IS SITUATED WITHIN THE TERRITORIAL JURISDICTION OF IBR AHIMPATNAM MANDAL OR WITHIN 8 KMS. FROM THE LIMITS OF VIJAYAWADA MUNICIP ALITY. 5. ON THE OTHER HAND, THE LD. A.R. STRONGLY SUPPORT ED THE ORDER OF THE CIT(A). THE A.R. FURTHER SUBMITTED THAT THE IMP UGNED LAND IS COMING WITHIN THE ADMINISTRATIVE JURISDICTION OF IBRAHIMPA TNAM MANDAL. THE LAND IS SITUATED BEYOND 8 KM FROM THE LOCAL LIMITS OF VI JAYAWADA MUNICIPALITY. THE LAND IS SITUATED IN GUNTUPALLY VILLAGE, WHICH I S COMING UNDER IBRAHIMPATNAM MANDAL. THEREFORE, THE A.O. WAS NOT C ORRECT IN CONSIDERING THE DISTANCE FROM VIJAYAWADA MUNICIPALI TY. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIALS AVAILABLE ON RECORD. THE FACTUAL MATRIX OF THE CAS E IS THAT THE ASSESSEE HAS SOLD AN AGRICULTURAL LAND AND CLAIMED EXEMPT FR OM TAX. THE ASSESSEES CONTENTION IS THAT THE LAND IS AN AGRICU LTURAL LAND WHICH IS SITUATED BEYOND 8 KMS. FROM THE LIMITS OF THE MUNIC IPALITY, THEREFORE, NOT ITA NO.27/VIZAG/2013 CH. SAMBA SUSEELA DEVI, VIJAYAWADA 6 LIABLE FOR CAPITAL GAIN TAX. IT WAS THE CONTENTION OF THE A.O. THAT THE LAND IS SITUATED WITHIN 8 KMS. FROM THE LIMITS OF L OCAL MUNICIPALITY. THE A.O. OBSERVED THAT AS PER THE MUNICIPAL AUTHORITIES , THE LAND IS WITHIN 8 KMS. FROM THE LOCAL LIMITS OF VIJAYAWADA MUNICIPALI TY. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND ALS O CONSIDERED THE MATERIALS AVAILABLE ON RECORD. THOUGH, THE A.O. ST ATED THAT THE LAND IS SITUATED WITHIN 8 KMS. FROM THE LIMITS OF MUNICIPAL ITY, FAILED TO BROUGHT ON RECORD ANY EVIDENCES TO SHOW THAT THE LAND IS WI THIN 8 KM FROM THE LIMITS OF LOCAL MUNICIPALITY. AT THE SAME TIME, ASS ESSEE CLAIMED THAT THE LAND IS BEYOND 8 KMS. FROM THE LIMITS OF LOCAL MUNI CIPALITY, BUT FAILED TO FURNISH ANY EVIDENCES IN SUPPORT OF HER CONTENTION. THE ASSESSEE CLAIMED TO HAVE FURNISHED A CERTIFICATE FROM THE SE CRETARY, IBRAHIMPATNAM MANDAL, WHICH IS IN OUR OPINION IS NO T A VALID CERTIFICATE, AS THE SECRETARY, IBRAHIMPATNAM MANDAL IS NOT A COM PETENT AUTHORITY TO ISSUE SUCH CERTIFICATE. THERE ARE DIVERGENT FACTS E MERGED FROM THE ORDERS OF THE LOWER AUTHORITIES. THEREFORE, WE ARE OF THE VIEW THAT THE ISSUE NEEDS TO BE RE-EXAMINED BY THE A.O., TO ASCER TAIN CORRECT FACTS. THEREFORE, WE SET ASIDE THE ISSUE TO THE FILE OF TH E A.O. AND DIRECT THE A.O. TO EXAMINE THE ISSUE IN THE LIGHT OF THE ABOVE DISCUSSIONS AND PASS DE-NOVO ASSESSMENT IN ACCORDANCE WITH LAW. ITA NO.27/VIZAG/2013 CH. SAMBA SUSEELA DEVI, VIJAYAWADA 7 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 29 TH APR16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 29.04.2016 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT THE ITO WARD-2(1), VIJAYAWADA 2. / THE RESPONDENT SMT. CHANUMOLU SAMBA SUSEELA DE VI, D.NO.29-28-8, DASARIVARI STREET, SURYARAOPET, VIJAYAWADA-520 002. 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , # / ITAT, VISAKHAPATNAM