VARUNA SURESH HARCHANDRAI, MUMBAI V. ASST CIT CIR 14(1), MUMBAI

ITA 366/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7882 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: F
• Next Hearing Date: 31-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 15-01-2014
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: VIPUL MODY
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER I.T.A. NO. 366/M/2014 (ASSESSMENT YEAR: 2010 - 2011 ) MRS. VARUNA SURESH HARCHANDRAI, HARCHANDRAI HOUSE, 81, QUEENS ROAD, MARINE DRIVE, MUMBAI 400 021. / VS. ACIT, CIRCLE 14(1), MUMBAI. ./ PAN : AAAPH8516N ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI NITESH JOSHI & VIPUL MODY / RESPONDENT BY : SHRI SAURABH KUMAR , DR / DATE OF HEARING : 14 .03.2017 / DATE OF PRONOUNCEMENT : 31 .03.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 15.1.2014 IS AGAINST THE ORDER OF THE CIT (A) - 25, MUMBAI DATED 23.12.2013 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. IN THIS APPEAL, ASSESSEE RAISED TWO GROUNDS IN TOTO AND THEY REVOLVE AROUND THE SOLITARY ISSUE RELATING TO THE AGRICULTURAL NATURE OF THE ASSET SOLD BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. BRIEF FACTS INCLUDE THE A SSESSEE IS A 1/4 TH SHAREHOLDER OF THE SAID AGRICULTURAL LAND AND THE SAME WAS HELD BY THE AO AS NON - AGRICULTURAL LAND AND INVOKED THE PROVISI ONS RELATING TO THE CAPITAL GAINS. ON THESE FACTS, LD COUNSEL FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL, DATED 20.1.2017, IN THE CASES OF MR. MOHIT SURESH HARCHANDRAI VS. ACIT (ITA NO.364/M/2014); MR. NIHAL SURESH HARCHANDRAI VS. ACIT (IT A NO.365/M/2014) AND MR. NIRANJAN SURESH HARCHANDRAI VS. ACIT (ITA NO.367/M/2014), WHO ARE THE SHAREHOLDERS OF REST OF THE AGRICULTURAL LAND. BRINGING OUR ATTENTION TO PARA 10 OF THE SAID ORDER OF THE TRIBUNAL, LD COUNSEL FOR THE ASSESSEE READ OUT THE FO LLOWING: - 2 10........MOREOVER, IN THE PRESENT CASE NEITHER THERE IS ANY COGENT EVIDENCE TO REBUT THE PRESUMPTION OF TRUTH ATTACHED WITH THE REVENUE RECORD MAINTAINED BY THE DEPARTMENT NOR ANY VERIFICATION WAS CONDUCTED BY AO DURING ASSESSMENT TO REBUT THE DOCUMENTARY EVIDENCE PLACED ON RECORD BY THE ASSESSEE TO FALSIFY CONTENTION OF THE ASSESSEE. THE AUTHORITIES BELOW HAVE NOT GIVEN ANY COGENT AND CONVINCING REASON FOR DISBELIEVING THE DOCUMENTARY AND CONSIDERED OPINION, PRIMA FACIE ESTABLISH THAT THE LAND IN QUESTION WAS AN AGRICULTURAL LAND WITHIN THE PROVISIONS OF THE ACT AT THE TIME OF SALE TO THE PURCHASER. SINCE, IN OUR CONSIDERED OPINION THE ASSESSEE HAS BEEN ABLE TO ESTABLISH THAT THE LAND IN QUESTION AT THE TIME OF ITS SALE WAS AN AGRICULTURAL LAN D AND NOT A CAPITAL ASSET WITHIN THE DEFINITION OF SECTION 2(14) OF THE ACT, THE LD CIT (A) HAS WRONGLY AFFIRMED THE FINDINGS OF THE AO. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. 3. FROM THE ABOV E, IT IS THE FINDING OF THE TRIBUNAL THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND AND NOT A CAPITAL ASSET WITHIN THE MEANING OF DEFINITION OF SECTION 2(14) OF THE ACT. WHILE DELIVERING ITS DECISION, ITAT APPLIED THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF SMT. SARIFABIBI MOHMED IBRAHIM VS. CIT (1993) 204 ITR 631 (SC). 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE TRIBUNAL (SUPRA), WE ARE OF THE OPINION, THE LAND IN QUESTION IS THE SAME AND THE SAID LAND THEREFORE CONSTITUTES AN AGRICULTURAL LAND AS PER THE FINDING OF THE TRIBUNAL IN THE CASE OF CO - OWNERS OF THE LAND (SUPRA). THUS, IN OUR CONSIDERED OPINION, THE CLAIM OF THE ASSESSEE IS PROPER. ACCORDINGLY, THE ORDERS OF THE AO / CIT (A) STAND TO BE REVERSED AND IN FAVOUR OF THE ASSESSEE . ACCORDINGLY WE ORDER. THUS, THE GROUNDS RAISED BY THE ASSESSEE STAND ALLOWED IN FAVOUR OF THE ASSESSEE SINCE, THEY ARE COVERED BY THE ABOVE CITED DECISION OF THE TRIBUNAL. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUN CED IN THE OPEN COURT ON 31 ST MARCH, 201 7 . SD/ - SD/ - (SANDEEP GOSAIN) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 31.03 .201 7 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 3 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI