J.M.A Jamal Mohammed Ishak, Thanjavur V. ITO, Ward I(2), Thanjavur

ITA 414/CHNY/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5324 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 17-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Capital Gains

Judgement Text

आयकर अपीलीय अिधकरण, ‘ए’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं Įी मनोज क ु मार अĒवाल, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.: 414/CHNY/2019 िनधाᭅरण वषᭅ /Assessment Year:2011-12 Shri J.M.A.Jamal Mohamed Ishak, Pappa Farm, Vilar Post, Thanjavur – 613 006. PAN: AFBPJ 0194C v. The Income Tax Officer, Ward -I(2), Thanjavur (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri K. Meenakshi Sundaram, ITP ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri AR.V. Sreenivasan, Addl.CIT स ु नवाई कȧ तारȣख/Date of Hearing : 04.04.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 04.04.2022 आदेश /O R D E R PER MAHAVIR SINGH, VP: This appeal by the assessee is arising out of the order of the learned Commissioner of Income Tax (Appeals)-1, Trichy in ITA No.293/2014-15/CIT(A)-1/TRY dated 20.12.2018. The assessment was framed by the ITO, Ward I(2), Thanjavur for the assessment year 2011-12 u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (hereinafter ‘the Act’) vide order dated 30.03.2014. 2 ITA No.414/Chny/2019 2. The only issue in this appeal of assessee is as regards to the order of CIT(A) confirming the action of AO in treating the sale of agricultural land as capital asset under the definition of section 2(14) of the Act and levying capital gains tax on the same. For this, assessee has raised various grounds which are argumentative in nature and hence need not be reproduced. 3. At the outset, the ld.AR for the assessee stated that the assessee owned total approx. 17.25 acres of dry lands at Vilar Village and the same was sold at the rate of Rs.23 lakhs per acre for the front 10 acres of land and the remaining 7.25 acres of land at the rate of Rs.18 lakhs per acre and received sale consideration in October, 2010. This deed was registered vide sale deed on 28.10.2010 and actual sale consideration as noted by AO and CIT(A) is Rs.3.73 crores. According to AO, the assessee has not produced, filed any evidence to prove that he has carried out agricultural operation in the above land at Village Vilar. But, the Tahsildar, Thanjavur as well as Village Administrative Officer was requested to certify if any agricultural operation was carried out by the assessee in the above land. As per certificate, true copy of Adangal received, it is noted that the assessee did not carried out any agricultural operation in the above said dry lands for the period 3 ITA No.414/Chny/2019 from 01.07.2008 to till date of sale of land as on 28.10.2010. Accordingly, the AO computed this as non-agricultural lands and assessed long term capital gain to tax. Aggrieved assessee preferred appeal before CIT(A). The CIT(A) dismissed the assessee’s appeal. Aggrieved against the order of CIT(A), assessee is in appeal before the Tribunal. 4. The ld.AR for the assessee stated that neither the AO nor CIT(A) has adjudicated the issue properly. The ld.AR for the assessee took us through para 3.4 of the CIT(A)’s order, which reads as under:- “3.4 Contention of AR cannot be accepted a AO ha in elaborate order shown that assessee’s lands were well within municipality limits and assessee has on his own not disclosed the gains from sale of such lands. Further, even though assessee says that money was received from Cauvery Palm of mills, Thanjavur, there has not been evidence of assessee having worked on this land and hence claim of these being agricultural lands cannot be accepted, even though AR has attempted to show pictures from google maps etc. to buttress his claim.” The ld.AR for the assessee stated that the CIT(A) has not at all adjudicated the issue, as evident from the above para reproduced from the order of CIT(A) and even the AO has not confronted the material gathered at his back i.e., documents produced by Tahsildar, Thanjavur and Village Administrative Officer i.e., Chitta and Adangal in respect of the above sold lands. When these facts 4 ITA No.414/Chny/2019 were confronted to ld. Senior DR, he could not controvert that the authorities below have adjudicated the issue. Once this is the fact, we are of the view that let the issue be re-examined by the AO. Accordingly, we set aside the order of AO and that of the CIT(A) and remand the matter back to the file of the AO for fresh adjudication as per law. The appeal of the assessee is allowed for statistical purposes. 5. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the court on 4 th April, 2022 at Chennai. Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 4 th April, 2022 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.