Althi Venkata Narendraraju, CHENNAI V. ITO Non Corporate Ward 22(3), CHENNAI

ITA 2840/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5065 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 05-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N V BALAJI
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2840/CHNY/2018 ' (' / ASSESSMENT YEAR : 2014-15 SHRI ALTHI VENKATA NARENDRARAJU, NO.1/355, KAMARAJAR SALAI, SIRUSERI, CHENNAI - 600 130. PAN : ACUPN 4840 M V. THE INCOME TAX OFFICER, NON CORPORATE WARD 22(3), CHENNAI 600 045. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI N.V. BALAJI, ADVOCATE ,-*+ . / / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT 0 . 1$ / DATE OF HEARING : 08.05.2019 2!( . 1$ / DATE OF PRONOUNCEMENT : 17.05.2019 / 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, CHENN AI, DATED 20.07.2018 AND PERTAINS TO ASSESSMENT YEAR 2014-15. 2. SHRI N.V. BALAJI, THE LD.COUNSEL FOR THE ASSESSE E, SUBMITTED THAT THE ASSESSEE ENTERED INTO AN AGREEMENT FOR SAL E OF AGRICULTURAL 2 I.T.A. NO.2840/CHNY/18 LAND SITUATED AT SIRUSERI VILLAGE, TO ONE SHRI V.R. ANBUVELRAJAN AND SHRI S. BALAMURUGAN IN THE YEAR 2012. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE RECEIVED ENTIRE SALE CONSIDER ATION FROM THE ABOVE SAID SHRI V.R. ANBUVELRAJAN AND SHRI S. BALAM URUGAN AND ALSO HANDED OVER THE PHYSICAL POSSESSION OF THE PRO PERTY. IN THE YEAR 2013, THE ASSESSEE EXECUTED GENERAL POWER OF A TTORNEY IN FAVOUR OF SHRI V.R. ANBUVELRAJAN AND SHRI S. BALAMU RUGAN. ACCORDING TO THE LD. COUNSEL, WHEN THE ASSESSEE ENT ERED INTO AN AGREEMENT FOR SALE AND HANDED OVER THE PHYSICAL POS SESSION AND RECEIVED THE SALE CONSIDERATION FROM SHRI V.R. ANBU VELRAJAN AND SHRI S. BALAMURUGAN, THERE WAS A TRANSFER OF PROPER TY AS FAR AS THE ASSESSEE IS CONCERNED. ACCORDING TO THE LD. COUNSE L, THE SAID SHRI V.R. ANBUVELRAJAN AND SHRI S. BALAMURUGAN SUBSEQUEN TLY SOLD THE PROPERTY TO M/S JACARANDA PROPERTIES PVT. LTD. FOR A HIGHER SALE CONSIDERATION. ACCORDING TO THE LD. COUNSEL, THE S ALE MADE BY SHRI V.R. ANBUVELRAJAN AND SHRI S. BALAMURUGAN TO M/S JA CARANDA PROPERTIES PVT. LTD. IS TOTALLY DIFFERENT ONE. THE REFORE, ACCORDING TO THE LD. COUNSEL, THE TRANSACTION TOOK PLACE WHEN TH E ASSESSEE ENTERED INTO AN AGREEMENT FOR SALE WITH SHRI V.R. A NBUVELRAJAN AND SHRI S. BALAMURUGAN ON 04.05.2012. THE LD.COUNSEL FURTHER SUBMITTED THAT THE LAND IS AGRICULTURAL LAND, THERE FORE, IT IS NOT LIABLE 3 I.T.A. NO.2840/CHNY/18 FOR TAXATION. THE LD.COUNSEL HAS ALSO FILED AFFIDA VIT NARRATING THE FACTS. 3. WE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE ALS O. ACCORDING TO THE LD. D.R., THE FACT IS THAT THE ASS ESSEE SOLD THE PROPERTY INITIALLY TO SHRI V.R. ANBUVELRAJAN AND SH RI S. BALAMURUGAN WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSING OFFI CER. IN FACT, THAT WAS NOT EXAMINED BY THE ASSESSING OFFICER. ON A QU ERY FROM THE BENCH WHETHER THE SALE OF PROPERTY BY SHRI V.R. ANB UVELRAJAN AND SHRI S. BALAMURUGAN TO M/S JACARANDA PROPERTIES PVT . LTD. WAS BROUGHT FOR TAXATION FOR CAPITAL GAIN? THE LD. D.R. SUBMITTED THAT IT HAS TO BE VERIFIED, THEREFORE, THE MATTER MAY BE RE MITTED BACK TO THE FILE OF THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN THE AFFIDAVIT FILED BEFORE THIS TRIBUNAL, THE ASSESSEE HAS STATED AS FOLLOWS:- AFFIDAVIT I, ALTHI VENKATA NARENDRARAJU, S/O SHRI SANYASI RAO , AN ASSESSEE ASSESSED TO INCOME TAX IN PAN ACUPN484ON HEREI N DO HEREBY SOLEMNLY AFFIRM AND SINCERELY STATE AS FO LLOWS; 1. I STATE THAT I HAD ENTERED INTO AN AGREEMENT FO R SALE OF MY AGRICULTURAL LANDS AT SIRUSERI VILLAGE, VIDE SALE 4 I.T.A. NO.2840/CHNY/18 AGREEMENTS DATED 04.05.2012 WITH SHRI V R ANBUVELRAJAN (PAN NO. AGZPA94O6B) AND SHRI S BALAMURUGAN. 2. I STATE THAT THE SAID AGREEMENT WAS ALSO EXECUTED ALONG WITH ME BY ONE MR. N. PARTHASARATHY SO AS TO HAVE A PERFECTION TO THE TITLE OF THE PROPERTY AS AND WHEN THE SALE DEED IS EXECUTED, UPON RECEIPT OF ADVANCE HIS ADVANC E. 3. I STATE THAT THE PROPERTIES AGREED TO BE SOLD WE RE AGRICULTURAL LANDS COMPRISED IN SURVEY NUMBERS 179/IB, 212/2, 212/2A AND 212/2B LOCATED IN SIRUSERI VILLAGE, THIRUPORUR TALUK, KANCHEEPURAM. I FURTHER STATE THAT UPON EXECU TION OF THE SALE AGREEMENTS, I HAD HANDED OVER THE POSSESSI ON OF THE AGRICULTURAL LANDS TO THE PROSPECTIVE PURCHASERS. 4. I FURTHER STATE THAT THERE WAS DELAY ON ACCOUNT OF THE BUYERS AND ALSO THAT DUE TO STRAINED RELATIONSH IP WITH MR N PARTHASARATHY, THE SALE DEED COULD NOT BE IMMEDIA TELY EXECUTED AS CONTEMPLATED IN THE AGREEMENT, ALTHOUGH THE POSSESSION OF THE LAND WAS HANDED OVER TO THE PURCH ASERS. 5. I STATE THAT PURSUANT TO THE AGREEMENT AND MY HANDING OVER OF POSSESSION OF THE AGRICULTURAL LAND S, I RECEIVED CONSIDERATION OF RS.2,33,20,000/- FROM THE PURCHASERS AS DETAILED BELOW, WHICH WERE DULY DEPOSITED AND CREDI TED TO MY SAVINGS BANK ACCOUNT WITH M/S TAMILNADU STATE APEX C O- OPERATIVE BANK LIMITED IN ACCOUNT NUMBER 706937768 ON THE FOLLOWING DATES: DATE AMOUNT 17.10.13 33,20,000 17.10.13 25,00,000 17.10.13 25,00,000 17.10.13 25,00,000 19.10.13 50,00,000 24.10.13 25,00,000 26.10.13 25,00,000 28.10.13 25,00,000 TOTAL 2,33,20,000 5 I.T.A. NO.2840/CHNY/18 6. I FURTHER STATE THAT AGRICULTURAL OPERATIONS WER E BEING CARRIED ON IN THE LANDS TILL THE YEAR 2011-12, B EFORE I HAD ENTERED INTO AGREEMENT FOR SALE AND HANDED OVER POSSESSION. THE SAID FACT IS ALSO DULY EVIDENCED B Y THE ENTRIES IN THE REVENUE RECORDS. 7. I FURTHER STATE THAT I HAD EXECUTED GENERAL POWER OF ATTORNEY DATED 14.10.2013 REGISTERED AS DOCUMENT NUMBER 14266 OF 2013, REGISTERED WITH THE SUB REGISTRAR OF THIRUPORUR AS REQUESTED BY THE BUYER, APPOINTING SH RI S BALAMURUGAN AS MY AGENT IN RESPECT OF 64 CENTS OF LAND AT SIRUSERI VILLAGE, IN RESPECT OF WHICH I HAD ENTERED INTO THE AGREEMENT OF SALE, THE POSSESSION OF WERE ALREADY H ANDED OVER. 8. I FURTHER STATE THAT I HAD EXECUTED GENERAL POWER OF ATTORNEY DATED 14.10.2013 REGISTERED AS DOCUMENT NUMBER 14247 OF 2013, REGISTERED WITH THE SUB REGISTRAR OF THIRUPORUR APPOINTING SHRI V R ANBUVELRAJAN (PAN NO . AGZPA94O6B) AS MY AGENT IN RESPECT OF 72 CENTS OF LAND A T SIRUSERI VILLAGE, IN RESPECT OF WHICH I HAD ENTERED INTO THE AGREEMENT OF SALE, THE POSSESSION OF WERE ALREADY H ANDED OVER. 9. I STATE THAT I HAD NOT RECEIVED ANY OTHER CONSIDERATION APART FROM THE ABOVE IN RESPECT OF TH E TRANSFER OF AGRICULTURAL LANDS STATED ABOVE. 10. I STATE THAT THE POWER AGENT MR ANBUVELRAJAN (PAN NO. AGZPA94O6B) VIDE SALE DEED IN DOCUMENTS NUMBER 14267 OF 2013 DATED 14.10.2013 SOLD THE ENTIRE 72 CENTS OF AGRICULTURAL LANDS FOR A CONSIDERATION OF RS.2,33,28,000/- IN FAVOUR OF M/S JACARANDRA PROPERTIES. 11. I FURTHER STATE THAT THE POWER AGENT MR. S. BALAMURUGAN VIDE DOCUMENT NUMBER 16627 OF 2013 DATED 28.11.2013 HAD SOLD 52 CENTS OF OUT OF 64 CENTS OF LAND FOR 6 I.T.A. NO.2840/CHNY/18 RS.52,00,000/- TO ONE MR. S. SIVAKUMAR, WHICH WAS TAKEN AS POSSESSION FROM ME, PURSUANT TO THE SALE AGREEMENT. 12. I STATE THAT MY TRANSFER OF AGRICULTURAL LAND TOOK PLACE ON THE VERY DATE OF EXECUTION OF THE AGRE EMENT TO SELL, I.E 04.05.2012, SINCE I HAD HANDED OVER THE POSSESSI ON OF LAND AND ONLY THE RIGHT TO RECEIVE A SUM OF RS.2,33,20, 000/- ACCRUED TO ME, WHICH I HAD RECEIVED IN THE SUBSEQUE NT YEAR. 13. I STATE THAT I HAVE DEPOSED THE ABOVE FACTS IN SUPPORT OF THE SUBMISSION BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN APPEAL NUMBER ITA 2840 OF 2018 THAT I HAD TRANSFERRED ONLY AGRICULTURAL LAND AS SUPPORTED BY REVENUE RECORDS AND THE SAID TRANSFER WAS ALSO MADE DURING THE PREVIOUS YEAR 2012-13 RELEVANT TO ASSESSMENT YEAR 2013-1 4 AND NOT ASSESSMENT YEAR 2014-15. SOLEMNLY AFFIRMED AT CHENNAI THIS SD/- THE 06TH DAY OF MAY 2019. ALTHI VENKATA NARENDRARAJU 5. IT IS OBVIOUS THAT THE ASSESSEE ENTERED INTO AN AGREEMENT FOR SALE ON 04.05.2012 WITH SHRI V.R. ANBUVELRAJAN AND SHRI S. BALAMURUGAN. THE ASSESSEE DID NOT EXECUTE ANY SALE DEED. SUBSEQUENTLY, IN THE YEAR 2013, THE ASSESSEE EXECUT ED POWER OF ATTORNEY IN FAVOUR OF THE SAID SHRI V.R. ANBUVELRAJ AN AND SHRI S. BALAMURUGAN. THE ASSESSEE CLAIMS THAT THE PHYSICAL POSSESSION OF THE PROPERTY WAS HANDED OVER TO SHRI V.R. ANBUVELRA JAN AND SHRI S. BALAMURUGAN AND ENTIRE SALE CONSIDERATION WAS ALSO RECEIVED FROM THEM. HOWEVER, IT APPEARS NO SALE DEED WAS EXECUTE D BY THE 7 I.T.A. NO.2840/CHNY/18 ASSESSEE IN FAVOUR OF THE SAID SHRI V.R. ANBUVELRAJ AN AND SHRI S. BALAMURUGAN. THE ASSESSEE CLAIMS THAT THE SALE WAS COMPLETED WHEN THE ASSESSEE ENTERED INTO AGREEMENT FOR SALE W ITH SHRI V.R. ANBUVELRAJAN AND SHRI S. BALAMURUGAN AND RECEIVED T HE ENTIRE CONSIDERATION AFTER HANDING OVER THE PHYSICAL POSSE SSION OF THE PROPERTY. 6. ON THE STRENGTH OF THE POWER OF ATTORNEY EXECUTE D BY THE ASSESSEE IN FAVOUR OF SHRI V.R. ANBUVELRAJAN AND SH RI S. BALAMURUGAN, THEY SOLD THE PROPERTY FOR HIGHER CONS IDERATION. THEREFORE, IT IS OBVIOUS THAT AS CLAIMED BY THE ASS ESSEE, THERE ARE TWO DIFFERENT TRANSACTIONS. ONE TRANSACTION IS BETW EEN THE ASSESSEE AND SHRI V.R. ANBUVELRAJAN & SHRI S. BALAMURUGAN. THE OTHER TRANSACTION IS BETWEEN SHRI V.R. ANBUVELRAJAN & SHR I S. BALAMURUGAN WITH M/S JACARANDA PROPERTIES PVT. LTD. THESE TWO TRANSACTIONS HAVE TO BE BROUGHT FOR TAXATION IN THE RESPECTIVE HANDS. THESE FACTS WERE NOT EXAMINED BY THE ASSESSING OFFI CER. THEREFORE, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF TH E ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER I N THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE AND THER EAFTER DECIDE THE 8 I.T.A. NO.2840/CHNY/18 ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSING OFFICER SHALL ALSO EXAMINE WHETHER THE LAND IN QUESTION IS AGRICULTURA L LAND OR NOT. 7. WITH THE ABOVE OBSERVATION, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17 TH MAY, 2019 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESA N) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 17 TH MAY, 2019. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-10, CHENNAI-34 4. PRINCIPAL CIT-7, CHENNAI 5. 69 ,1 /DR 6. :' ; /GF.