DCIT, Ernakulam V. K.A.Abdul salam, Aluva

ITA 60/COCH/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2566 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-06-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Assessee Lawyers: K P PAULSON
• Keywords: Capital asset

Judgement Text

1 ITA NO.57 TO 65/COCH/2011 CO NOS 06 TO 10/COCH/2011 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 57 & 58/COCH/2011 (ASSESSMENT YEARS 2005-06 & 2008-09) THE DY.CIT, CENT.CIR.1 VS SHRI K.K. ABDUL KHALEE L ERNAKULAM KOTTIYALIKKARA HOUSE EDATHALA NORTH PO ERNAKULAM PAN : ACFPA1967K (APPELLANT) (RESPONDENT) C.O. NOS 06 & 07/COCH/2011 (ARISING OUT OF I.T.A NO. 57 & 58/COCH/2011 ) (ASSESSMENT YEARS 2005-06 & 2008-09) SHRI K.K. ABDUL KHALEEL VS THE DY.CIT, CENT.CIR .1 KOTTIYALIKKARA HOUSE ERNAKULAM EDATHALA NORTH PO, ERNAKULAM PAN : ACFPA1967K (CROSS OBJECTOR) (RESPONDENT) I.T.A NO. 59 TO 61/COCH/2011 (ASSESSMENT YEARS 2005-06, 2007-08 & 2008-09) THE DY.CIT, CENT.CIR.1 VS SHRI K.A. ABDUL SALAM ERNAKULAM KONDAPILLYL HOUE HOUSE EDATHALA NORTH PO, ERNAKULAM PAN : ACCPA3741J 2 ITA NO.57 TO 65/COCH/2011 CO NOS 06 TO 10/COCH/2011 (APPELLANT) (RESPONDENT) CO NOS.08 TO 10/COCH/2011 (ARISING OUT OF I.T.A NO. 59 TO 61/COCH/2011) (ASSESSMENT YEARS 2005-06, 2007-08 & 2008-09) SHRI K.A. ABDUL SALAM VS THE DY.CIT, CENT.CIR.1 KONDAPILLYL HOUE HOUSE ERNAKULAM EDATHALA NORTH PO, ERNAKULAM PAN : ACCPA3741J (CROSS OBJECTOR) (RESPONDENT) I.T.A NO. 62 TO 65/COCH/2011 (ASSESSMENT YEARS 2008-09, 2006-07, 2007-08 & 2008- 09) THE DY.CIT, CENT.CIR.1 VS SHRI M.K. ABU ERNAKULAM MULAKKAMPILLIL HOUSE PADAMUGAL, ERNAKULAM PAN : ATZPK3346F (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. SUSAN GEORGE VARGHESE RESPONDENTS BY : SHRI KP PAULSON DATE OF HEARING : 04-06-2013 DATE OF PRONOUNCEMENT : 07-06-2013 3 ITA NO.57 TO 65/COCH/2011 CO NOS 06 TO 10/COCH/2011 O R D E R PER N.R.S. GANESAN (JM) ALL THE APPEALS OF THE REVENUE PERTAIN TO THREE IN DEPENDENT ASSESSEES AND ARE DIRECTED AGAINST INDEPENDENT ORDE RS OF THE CIT(A). TWO ASSESSEES HAVE FILED CROSS OBJECTIONS. SINCE COMMO N ISSUES ARISE FOR CONSIDERATION IN ALL THE APPEALS, WE HEARD THEM TOG ETHER AND DISPOSE OF THE SAME BY THIS COMMON ORDER. 2. SHRI K.P. PAULSON, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE MAIN CONTENTION OF THE DEPARTMENT IS THAT THE SUBJECT MATTER OF LAND IS IN THE VICINITY OF SMART CITY PROJECT, THER EFORE, THE PROFIT ON SALE OF LAND HAS TO BE CONSIDERED EITHER AS BUSINESS OR CAP ITAL GAIN. ACCORDING TO THE LD.REPRESENTATIVE, THE SUBJECT MATTER OF LAND I S SITUATED ABOUT 29 KMS AWAY FROM KAKKANAD WHICH CAN ALSO BE DISCERNIBLE FR OM THE MAP PRINT OUT TAKEN FROM GOOGLE MAP AVAILABLE IN THE WEBSITE. TH E LD.REPRESENTATIVE HAS ALSO SUBMITTED THAT THE VILLAGE OFFICER HAS ALSO GI VEN CERTIFICATE ON 07-03- 2013 SAYING THAT THE LAND IS SITUATED BEYOND 20 KMS AWAY FROM COCHIN CITY. ACCORDING TO THE LD.REPRESENTATIVE, THIS CERTIFICAT E COULD NOT BE PRODUCED BEFORE THE LOWER AUTHORITIES. THE LD.REPRESENTATIV E FURTHER SUBMITTED THAT 4 ITA NO.57 TO 65/COCH/2011 CO NOS 06 TO 10/COCH/2011 THESE EVIDENCES ESTABLISH THE EXACT LOCATION OF THE PROPERTY WHERE IT WAS SITUATED. ON A QUERY FROM THE BENCH WHETHER THE AS SESSING OFFICER CAN BE ASKED TO EXAMINE THESE DOCUMENTS SINCE THEY WERE NO T AVAILABLE BEFORE THE LOWER AUTHORITIES, THE LD.REPRESENTATIVE FAIRLY SUBMITTED THAT HE HAS NO OBJECTION FOR RECONSIDERATION OF THE MATERIAL FACTS SO THAT THE ACTUAL FACTS COULD BE BROUGHT ON RECORD. 3. WE HEARD SMT. SUSAN GEORGE VARGHESE, THE LD.DR A LSO. THE LD.DR SUBMITTED THAT IT MAY NOT BE MATERIAL WHETHER THE L AND IS A CAPITAL ASSET OR NOT SINCE FOR SOME OF THE ASSESSMENT YEARS THE ASSE SSING OFFICER HIMSELF HAS TAKEN THE STAND THAT IT IS A BUSINESS TRANSACTION. WHEN IT WAS POINTED OUT TO THE LD.DR THAT THE ASSESSING OFFICER HIMSELF HAS TAKEN THE TRANSACTION AS A BUSINESS TRANSACTION FOR SOME OF THE YEARS; HOWEVER , FOR SOME OF THE YEARS, THE ASSESSING OFFICER HAS TAKEN THE SAME AS TRANSFE R OF CAPITAL ASSET, THE LD.DR FAIRLY SUBMITTED THAT IN SUCH A CASE, THE ASS ESSING OFFICER MAY BE ASKED TO RE-EXAMINE THE ISSUE IN THE LIGHT OF THE M ATERIALS FILED BY THE ASSESSEE. 5 ITA NO.57 TO 65/COCH/2011 CO NOS 06 TO 10/COCH/2011 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE EXAC T LOCATION OF THE PROPERTY IS DISPUTED BOTH BY THE ASSESSEE AND THE D EPARTMENT. THOUGH THE DEPARTMENT CLAIMS THAT THE PROPERTY WAS SITUATED IN THE VICINITY OF SMART CITY, THE ASSESSEE CLAIMS THAT IT WAS ABOUT 20 TO 2 9 KMS AWAY FROM THE SMART CITY PROJECT. THE ASSESSEE NOW FILED CERTIFI CATE FROM THE VILLAGE OFFICER AND A PRINT OUT TAKEN FROM GOOGLE MAP AVAIL ABLE ON THE WEBSITE TO SHOW THE EXACT LOCATION. THESE DOCUMENTS ADMITTEDL Y WERE NOT AVAILABLE BEFORE THE LOWER AUTHORITIES. THEREFORE, THIS TRIB UNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER IN THE LIGHT OF THE ABOVE MATERIALS AND BRING THE ENTI RE FACTS ON RECORD. THE ASSESSING OFFICER SHALL HAVE TO EXAMINE WHETHER THE TRANSACTION WAS A BUSINESS TRANSACTION OR IT WAS A MERE TRANSFER OF C APITAL ASSET. ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES IN ALL THE CASES AR E SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AFRESH IN THE LIGHT OF MATERI ALS AVAILABLE ON RECORD INCLUDING THE CERTIFICATE ISSUED BY THE VILLAGE OFF ICER AND THE GOOGLE MAP PRINT OUT TAKEN FROM THE WEBSITE AND THEREAFTER DEC IDE THE MATTER AFRESH IN 6 ITA NO.57 TO 65/COCH/2011 CO NOS 06 TO 10/COCH/2011 ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEES. 5. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AN D THE CROSS OBJECTIONS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOS E. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 TH JUNE, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 07 TH JUNE, 2013 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENTS / CROSS OBJECTORS 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH