Shri Viswanatha Guptha Chittaranjan, CHENNAI V. ITO, CHENNAI

ITA 3049/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7612 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-12-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 31-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , .. ' #$, & '( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.3049/MDS/2016 * +* / ASSESSMENT YEAR : 2012-13 SHRI VISWANATHA GUPTHA CHITTARANJAN, C/O SHRI S. SRIDHAR, SH. A.S. SRIRAMAN, ADVOCATES, NEW NO.14, OLD NO.82, FLAT NO.5, 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI - 600 020. PAN : AAEPC 2473 P V. THE INCOME TAX OFFICER, NON CORPORATE WARD 11(5), CHENNAI. (-./ APPELLANT) (/0-./ RESPONDENT) -. 1 2 / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE /0-. 1 2 / RESPONDENT BY : DR. MILIND MADHUKAR BHUSARI, C IT ' 1 3& / DATE OF HEARING : 29.12.2016 45+ 1 3& / DATE OF PRONOUNCEMENT : 09.03.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 13, CHEN NAI, DATED 19.09.2016 AND PERTAINS TO ASSESSMENT YEAR 2012-13. 2 I.T.A. NO.3049/MDS/16 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ASSES SMENT OF CAPITAL GAIN. 3. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ASSESSEE PURCHASED AN AGRICULTURAL LAND ON 15.07.2010 AND SOLD THE SAME IN SEPTEMBER, 2011. THE ASSESSEE CLA IMED THAT THE GAIN ARISING OUT OF THE SALE OF LAND IS EXEMPTED FR OM TAXATION. THE ASSESSING OFFICER, HOWEVER, ASSESSED THE GAIN AS SH ORT TERM CAPITAL GAIN. ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER HAS NOT CONSIDERED THE ISSUE RAISED BY THE ASSESSEE WITH RE GARD TO EXEMPTION AS AGRICULTURAL LAND. EVEN THOUGH THE TA HSILDAR, TIRUTTANI TALUK CERTIFIED THAT THE LAND IN QUESTION WAS CULTI VATED WITH COCONUT AND GINGELLY, THE ASSESSING OFFICER REJECTED THE CL AIM OF THE ASSESSEE ONLY ON THE GROUND THAT THE ASSESSEE HAS P AID ADVANCE TAX OF ` 10,50,000/-. ACCORDING TO THE LD. COUNSEL, A MERE PAYMENT OF ADVANCE TAX MADE BY THE ASSESSEE WRONGLY CANNOT BE A REASON FOR DISALLOWING THE CLAIM OF THE ASSESSEE. IF THE LAND IN QUESTION IS AGRICULTURAL LAND AND THE GAIN IS NOT TAXABLE, EITH ER THE OMISSION MADE BY THE ASSESSEE OR THE PAYMENT OF ADVANCE TAX MADE BY THE ASSESSEE CANNOT BE CONSTRUED THAT THE ASSESSEE IS L IABLE FOR TAXATION. THE PROVISIONS OF INCOME-TAX ACT HAVE TO BE STRICTLY 3 I.T.A. NO.3049/MDS/16 VIEWED AND CONSTRUED IN RESPECT OF LEVYING TAX. UN LESS THE ASSESSEE IS ASSESSABLE UNDER THE PROVISIONS OF INCO ME-TAX ACT, ACCORDING TO THE LD. COUNSEL, MERELY BECAUSE THE AD VANCE TAX WAS PAID, IT CANNOT BE A REASON FOR LEVYING OF TAX. TH EREFORE, THE CIT(APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ORD ER OF THE ASSESSING OFFICER. 4. DR. MILIND MADHUKAR BHUSARI, THE LD. DEPARTMENTA L REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE CLAIMED THE LAND IN QUESTION AS AGRICULTURAL LAND. IT APPEARS THAT THE ASSESSEE HAS ALSO PRODUCED A LETTER FROM TAHSILDAR, TIRUTANNI TALUK. THE TAHSILDAR, TIRUTANNI, IN FACT, CLARIFIED THAT THE LAND IN QUES TION WAS CULTIVATED WITH COCONUT AND GINGELLY IN THE YEAR 2011-12 CORRE SPONDING TO FASAL YEAR 1419 AND 1420. ACCORDING TO THE LD. D.R ., THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSE E ON THE GROUND THAT THE ASSESSEE HIMSELF PAID THE ADVANCE TAX OF ` 10,50,000/-. SINCE THE LAND WAS PURCHASED IN JULY, 2010 AND SOLD IN SEPTEMBER 2011, THE ASSESSING OFFICER LEVIED SHORT TERM CAPIT AL GAIN. AS PER REVENUE RECORDS, THE SOLE AUTHORITY TO DETERMINE TH E MUNICIPALITY LIMIT IS STATE GOVERNMENT AND THE LANDS ARE WITHIN 8 KMS OF TIRUTANNI MUNICIPALITY. THEREFORE, ACCORDING TO TH E LD. D.R., THE 4 I.T.A. NO.3049/MDS/16 CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMS THAT THE LAND IN QUESTION IS AGRICULTURAL LA ND. FOR THE PURPOSE OF CONSIDERING WHETHER THE LAND IN QUESTION IS AGRI CULTURAL LAND OR NOT, THE CLASSIFICATION OF THE LAND BY THE STATE RE VENUE DEPARTMENT HAS TO BE ASCERTAINED. BOTH THE AUTHORITIES BELOW HAD NO OCCASION TO EXAMINE THE CLASSIFICATION OF LAND BY STATE REVE NUE DEPARTMENT. THE TAHSILDAR, TIRUTANNI TALUK, IN A LETTER DATED 0 4.02.2015, WHICH WAS EXTRACTED IN THE ASSESSMENT ORDER HAS CLARIFIED THAT THE ASSESSEE WAS CULTIVATING COCONUT AND GINGELLY IN TH E SAID LAND DURING THE YEAR 2011-12. IT IS NOT KNOWN WHETHER A NY SOURCE OF IRRIGATION IS AVAILABLE OR THE ASSESSEE HIMSELF CRE ATED A SOURCE FOR IRRIGATION EITHER BY DIGGING WELL OR PUTTING UP A B OREWELL. THESE FACTS ARE NOT BROUGHT ON RECORD. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT FOR THE PURPOSE OF EXAMINING THE CLAIM OF THE ASSESSEE WHETHER THE LAND IN QUESTION IS AGRICULTURAL LAND O R NOT, THE CLASSIFICATION OF LAND BY THE STATE REVENUE DEPARTM ENT HAS TO BE EXAMINED. THE RELEVANT ADANGAL EXTRACT, WHICH WOUL D THROW SOME 5 I.T.A. NO.3049/MDS/16 LIGHT REGARDING CULTIVATION, HAS ALSO TO BE EXAMINE D. SINCE SUCH DOCUMENT IS NOT AVAILABLE ON RECORD, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECO NSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE ISSUE AFRESH AND BRING ON RECORD THE CLASSIFICATION OF LAND BY THE STATE REVENUE DEPARTMENT AND CULTIVATION MADE BY TH E ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 9 TH MARCH, 2017 AT CHENNAI. SD/- SD/- ( . . ' #$ ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) & / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 9 TH MARCH, 2017. KRI. 6 I.T.A. NO.3049/MDS/16 1 /3#8 98+3 /COPY TO: 1. -. /APPELLANT 2. /0-. /RESPONDENT 3. ' :3 () /CIT(A)-13, CHENNAI-34 4. PRINCIPAL CIT-8, CHENNAI-34 5. 8; /3 /DR 6. * < /GF.