ITO, Nagapattinam V. G.Rajalakshmi, Velankanni

ITA 2807/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95987 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 29-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 12-11-2014
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: D ANAND
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI . . . , ! , ' #$ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ] ./ I.T.A.NO.2807/MDS/2014 / ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER WARD I(2) NAGAPATTINAM VS. SMT. G. RAJALAKSHMI NO.30, EAST STREET VELANKANNI [PAN AUUPR 8019 G] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI A.V. SREEKANTH, JCIT /RESPONDENT BY : SHRI D. ANAND, ADVOCATE / DATE OF HEARING : 29-07-2015 / DATE OF PRONOUNCEMENT : 28-08-2015 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), TIRUCHIRA PALLI, DATED 13.8.2014 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ASSESSME NT OF CAPITAL GAINS ON TRANSFER OF LAND. ITA NO.2807/14 :- 2 -: 3. SHRI A.V. SREEKANTH, LD. DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE SOLD A PIECE OF LAND AND CLAIMED THAT THE SAID LAND WAS AN AGRICULTURAL LAND. IN SUPPORT OF THE CLAIM, THE ASSESSEE FILED A CERTI FICATE FROM THE VILLAGE ADMINISTRATIVE OFFICER, VELANKANNI. ACCORDING TO T HE LD. DR, AS PER THE CERTIFICATE, THE LAND WAS USED FOR CULTIVATION OF P ADDY. THE LD. DR FURTHER SUBMITTED THAT THE LAND, IN FACT, WAS CLASS IFIED AS DRY LAND AND NOT NANJAI LAND. ACCORDING TO THE LD. DR, THE ASS ESSEE COULD NOT PRODUCE ANY MATERIAL LIKE SALE BILL FOR SALE OF THE AGRICULTURAL PRODUCE. IN THE ABSENCE OF ANY MATERIAL, THE ASSESSING OFFIC ER FOUND THAT THE LAND WAS NOT USED FOR CULTIVATION. ACCORDINGLY, HE COMPUTED THE CAPITAL GAINS. HOWEVER, ON APPEAL BY THE ASSESSEE, THE CI T(A) FOUND THAT THE LAND WAS CLASSIFIED AS AGRICULTURAL LAND AND AG RICULTURAL ACTIVITIES WERE CARRIED ON. REFERRING TO VILLAGE CULTIVATION ACCOUNT(ADANGAL), THE CIT(A) CAME TO THE CONCLUSION THAT THE SUBJECT LAND WAS CULTIVATED. THE LD. DR FURTHER SUBMITTED THAT THE ADANGAL REGIS TER WAS NOT EXAMINED BY THE ASSESSING OFFICER, THEREFORE, THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RE-EXAMINATION. ON A QUERY FROM THE BENCH, WHETHER THE SAID LAND IS AGRICULTURAL LAND AND WHETHER IT IS BEYOND 8 KMS RADIUS OF NOTIFIED M UNICIPALITY, THE LD. DR CLARIFIED THAT THE ASSESSING OFFICER TREATED THE LAND AS NON- ITA NO.2807/14 :- 3 -: AGRICULTURAL LAND, HOWEVER, THE LAND WAS SITUATED B EYOND 8KMS RADIUS OF THE NOTIFIED MUNICIPALITY. 4. ON THE CONTRARY, SHRI D. ANANAD, LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT ADMITTEDLY, THE LAND WAS SITUATED BE YOND 8KMS RADIUS OF THE NOTIFIED MUNICIPALITY. THE ONLY DISPUTE IS WHETHER THE ASSESSEE CULTIVATED THE LAND OR NOT. THE LD. COUNSEL SUBMIT TED THAT CULTIVATION ACCOUNT MAINTAINED BY THE VILLAGE OFFICER CLEARLY D ISCLOSES THAT THE SUBJECT LAND WAS CULTIVATED WITH PADDY. THE COPY O F THE PATTA SHOWS THAT THE SUBJECT LAND IS WET LAND, THEREFORE, THE C LAIM OF THE REVENUE THAT THE LAND WAS CLASSIFIED AS DRY LAND IS NOT SUP PORTED BY ANY DOCUMENTARY EVIDENCE. THE VILLAGE ADMINISTRATIVE O FFICER HAS ALSO GIVEN A CERTIFICATE THAT THE LAND WAS SUBJECTED TO CULTIVATION. IN FACT, THE ASSESSEE HAS FILED THE COPIES OF PATTA, ADANGA L, KIST AND VILLAGE ADMINISTRATIVE OFFICERS CERTIFICATE BEFORE THE ASS ESSING OFFICER. THIS IS EVIDENT FROM THE GROUNDS OF APPEAL RAISED BEFORE TH E CIT(A) AS GROUND NO.3. THE ASSESSING OFFICER FAILED TO EXAMINE THE ADANGAL REGISTER FILED BY THE ASSESSEE, THEREFORE, THE CIT(A) EXAMI NED THE SAME AND ALLOWED THE CLAIM OF THE ASSESSEE. ACCORDING TO T HE LD. COUNSEL, THE ASSESSING OFFICER CANNOT BE GIVEN A SECOND INNINGS FOR EXAMINATION OF THE ADANGAL REGISTER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ONLY DISPUTE IS WITH ITA NO.2807/14 :- 4 -: REGARD TO WHETHER THE LAND IS AGRICULTURAL LAND OR NOT. THE COPY OF PATTA, WHICH IS OTHERWISE KNOWN AS VILLAGE ACCOUNT NO.10 SHOWS THAT THE LAND IN QUESTION IS A WET LAND, THEREFORE, THE STATE GOVERNMENT CLASSIFIED THE LAND AS WET LAND. WHEN THE PATTA AN D OTHER DOCUMENTS ARE AVAILABLE BEFORE THE ASSESSING OFFICER, IT IS N OT KNOWN HOW THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE S UBJECT LAND IS A DRY LAND. THIS TRIBUNAL IS OF THE CONSIDERED OPINION T HAT THE MATERIALS AVAILABLE ON RECORD CLEARLY SUGGEST THAT THE LAND W AS CLASSIFIED AS AGRICULTURAL LAND. 6. THE NEXT ISSUE ARISES FOR CONSIDERATION IS WHETHER THE LAND WAS CULTIVATED OR NOT. THE STATE REVENUE DEPARTMEN T IS TAKING THE CULTIVATION ACCOUNT IN EVERY SIX MONTHS. THE VILLA GE ADMINISTRATIVE OFFICER HAS TO TAKE THE CULTIVATION ACCOUNT AND REC ORD IN VILLAGE ACCOUNT NO.2. THIS VILLAGE ACCOUNT NO.2 IS OTHERWI SE KNOWN AS ADANGAL/CULTIVATION ACCOUNT. SUBSEQUENTLY, A GAZET TED OFFICER FROM THE TALUK OFFICE WILL RE-VERIFY THE ACCOUNTS TAKEN BY THE VILLAGE ADMINISTRATIVE OFFICER AND THIS ACCOUNT WOULD BE US ED FOR ESTIMATING THE FOOD PRODUCTION OF THE DISTRICT. THEREFORE, IT IS OBVIOUS THAT THE CULTIVATION ACCOUNT (ADANGAL) PREPARED BY THE VILLA GE ADMINISTRATIVE OFFICER IS THE BASIC DOCUMENT WHICH WAS MAINTAINED BY THE STATE REVENUE DEPARTMENT IN THE REGULAR COURSE OF OFFICIA L FUNCTIONING. IN THIS DOCUMENT, THE SUBJECT LAND WAS SHOWN AS IF IT WAS CULTIVATED WITH ITA NO.2807/14 :- 5 -: PADDY. ONCE THE VILLAGE ADMINISTRATIVE OFFICER, IN EXERCISE OF HIS OFFICIAL FUNCTIONING, FOUND THAT THE LAND WAS SUBJE CTED TO CULTIVATION WITH PADDY, THIS TRIBUNAL IS OF THE CONSIDERED OPI NION THAT THE SAME CANNOT BE DOUBTED BY THE INCOME TAX AUTHORITIES. E VEN DURING EXAMINATION, THE VILLAGE ADMINISTRATIVE OFFICER CLA RIFIED THAT THE SUBJECT LAND WAS UNDER CULTIVATION. IN THOSE CIRCUMSTANCES , THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LAND IN QUESTION IS AGRICULTURAL LAND AND IT WAS SUBJECTED TO CULTIVATION. THE ONLY CONTENTI ON OF THE REVENUE NOW BEFORE THIS TRIBUNAL IS THAT THE ADANGAL REGIST ER WAS NOT EXAMINED BY THE ASSESSING OFFICER. WHEN THE ASSES SEE FILED THE DOCUMENTS BEFORE THE ASSESSING OFFICER INCLUDING TH E ADANGAL REGISTER, IT IS FOR THE ASSESSING OFFICER TO EXAMIN E THE SAME. INSTEAD OF EXAMINING THE ADANGAL REGISTER, THE ASSESSING OF FICER PROCEEDED AS IF THE LAND WAS CLASSIFIED AS DRY LAND AND THE VILL AGE ADMINISTRATIVE OFFICER ADMITTED THAT THE LAND WAS NOT CULTIVATED A FTER TSUNAMI. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE STAT EMENT OF THE VILLAGE ADMINISTRATIVE OFFICER CANNOT GO BEYOND THE OFFICIA L DOCUMENT MAINTAINED WHILE PERFORMING THE OFFICIAL DUTY. SIN CE THE ADANGAL REGISTER WHICH IS ONE OF THE DOCUMENT MAINTAINED BY THE STATE GOVERNMENT SHOWS THAT THE SAID LAND WAS CULTIVATED WITH PADDY, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE SAID LAND IS AN AGRICULTURAL LAND, THEREFORE, IT CANNOT BE TREATED AS A CAPITAL ASSET U/S ITA NO.2807/14 :- 6 -: 2(14) OF THE INCOME-TAX ACT. THE CIT(A) HAS ALSO F OUND THAT THE SUBJECT LAND WAS SITUATED BEYOND 8KMS RADIUS OF THE MUNICIPAL LIMIT AND THE POPULATION WAS LESS THAN 10,000. IN THOSE CIRCUMSTANCE, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). MOREOVER, IT IS NOT THE CASE OF THE REVENUE THAT THE CIT(A) H AS ADMITTED ANY FRESH MATERIAL DURING THE COURSE OF APPELLATE PROCE EDINGS. IN SUCH CIRCUMSTANCES, THIS TRIBUNAL IS UNABLE TO ACCEPT TH E CONTENTION OF THE REVENUE THAT THE MATTER NEEDS TO BE REMITTED BACK T O THE FILE OF THE ASSESSING OFFICER FOR RE-EXAMINATION. IN VIEW OF T HE ABOVE DISCUSSION, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LO WER AUTHORITY. ACCORDINGLY, THE SAME IS CONFIRMED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OF AUGUST, 2015, AT CHENNAI. SD/- SD/- ( ! ) (CHANDRA POOJARI) ' / ACCOUNTANT MEMBER ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER '# / CHENNAI $% / DATED: 28 TH AUGUST, 2015 RD %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 4. ' + / CIT 2. / RESPONDENT 5. ),-' . / DR 3. ' +'/! / CIT(A) 6. -0'1 / GF