DCIT CEN CIR 23, MUMBAI V. TARUNA KISHORE THAKURAL, MUMBAI

ITA 7500/MUM/2010

• Counselvise Citation: 750019914 RSA 2010
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 02-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRIJA DAYAL
• Assessee Lawyers: HIRO RAI

Judgement Text

` IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI . . , !' #'' ' , $ % BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER . : 7500 / / 2010 A.Y. 2007-08 ITA NO. : 7500/MUM/2010 (ASSESSMENT YEAR: 2007-08) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -23, ROOM NO. 464, AAYAKAR BHAVAN, M. K. MARG, MUMBAI -400 020 VS SMT. TARUNA KISHORE THAKURAL, 5, RATANDEEP, JUHU TARA ROAD, SANTACRUZ (WEST), MUMBAI -400 049 PAN: AACPT 3484 D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GIRIJA DAYAL RESPONDENT BY : SHRI HIRO RAI /DATE OF HEARING : 08-01-2014 / DATE OF PRONOUNCEMENT : 15-01-2014 ( O R D E R #'' ' , : PER VIVEK VARMA, JM: THE INSTANT APPEAL IS FILED BY THE DEPARTMENT AGAINST TH E ORDER OF CIT(A) 40, MUMBAI, DATED 23.08.2010, WHEREIN, THE FOLLOWING GROUNDS HAVE BEEN TAKEN: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN GRANTING EXEMPTION ON INCOME BEING CONSIDERED FOR RIGHT OF WAY OF AGRICULTURAL LAND AMOUNTING TO RS. 20,83,333/- WITHOUT A PPRECIATING THE FACT THAT NO TRANSFER OF AGRICULTURAL LAND WAS EFFECTED IN THE RECORDS OF THE DISTRICT REVENUE AUTHORITY. 2. THE APPELLANT CRAVES TO LEAVE, TO ADD, TO AMEND AN D / OR TO ALTER ANY OF THE GROUNDS OF APPEAL, IF NEED BE. 3. THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROUND STATED ABOVE, THE ORDER OF THE CIT(A) 40, MUMBAI MAY BE SET ASIDE AND THAT OF THE A SSESSING OFFICER RESTORED.. TARUNA KISHORE THAKURAL ITA NO. 7500/MUM/2010 2 2. THE SOLITARY ISSUE PERTAINS TO GRATING EXEMPTION ON INC OME FOR RIGHT OF WAY, AMOUNTING TO RS. 20,83,333/-. 3. AT THE TIME OF HEARING, THE AR SUBMITTED THAT THE C ASE PERTAINS TO ONE OF THE COOWNERS OF THE AGRICULTURAL LAND. HE FURTHER SUBMITTED THAT THE CASE OF ANOTHER COOWNER, SMT. HEMA THUKRAL, A LSO REACHED THE ITAT AND THE COORDINATE BENCH IN HER CASE IN ITA N O. 3374/MUM/2011, ALLOWED THE ASSESSEES CLAIM OF EXACTLY IDE NTICAL FACT AND IDENTICAL FIGURE OF RS. 20,83,333/- (ORDER PLACED ON RECOR D), WHEREIN THE COORDINATE BENCH HELD, WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVA L PARTIES AN PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS A RE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS RECEIVED PROP ORTIONATE SHARES OF RS. 20,83,333/- BEING RIGHT OF WAY GRANTED BY THE ASSESSEE ON HIS AGRICULTURAL LAND TO M/S ASHIWINI INFRASTRUCTURE, P. LTD AS PER AGREEMENT DATE D 14.2.2007. THE LD. CIT(A) AFTER CONSIDERING THE REMAND REPORT WHEREIN IT HAS BEEN CLEAR LY ADMITTED BY THE AO THAT THE AMOUNT RECEIVED BY THE ASSESSEE AND THE OTHER CO-OWNE RS WAS IN RESPECT OF SURRENDER OF CERTAIN RIGHTS HELD IN PARAGRAPHS 5.4 OF HIS ORDER AS UN DER: 5.4 I AM IN AGREEMENT WITH THE SUBMISSION MADE BY TH E LEARNED AR THAT OWNERSHIP IS A BUNDLE OF RIGHTS AND RIGHT OF WAY IS SUBS ET OF OWNERSHIP RIGHT. IN FACT, RIGHT OF WAY IS VERY SUBSTANTIAL PART OF OWNERSH IP RIGHT, AND TO THIS EXTENT GIVING RIGHT OF WAY IS ALMOST LIKE PARTING WITH THE LAND. COMPENSATION RECEIVED FOR RIGHT OF WAY OF AGRICULTURAL LAND IS CAPITAL AND AGRIC ULTURAL LAND BEING SPECIFICALLY EXCLUDED FROM THE DEFINITION OF CAPITAL ASSE T BY CLAUSE (III) OF SUBSECTION (14) OF SECTION 2 OF THE INCOME TAX ACT. FU RTHER, AS SUBMITTED BY THE LEARNED AR, AND IN VIEW OF THE COURT DECISIONS CITED, ME RELY BECAUSE RECEIPT IS NOT TAXABLE UNDER A PARTICULAR HEAD WHICH IT IS TAXABLE, IT CANNOT BE TAXED UNDER THE HEAD INCOME FROM OTHER SOURCES. IN VIEW OF THIS, THIS GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE APPELLANT AND THE ADDITION OF RS. 20,83,333/- AS INCOME FROM OTHER SOURCES IS DIRECTED TO BE DELETED. T HIS GROUND OF APPEAL IS, ACCORDINGLY, ALLOWED. IN ABSENCE OF ANY CONTRARY MATERIAL PLACED ON RECORD BY THE REVENUE AGAINST THE FINDINGS OF THE LD. CIT(A), WE ARE OF THE VIEW THAT T HE LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO AND HIS ORDER DOES NOT CALL FOR ANY INTERFERENCE. THE GROUNDS TAKEN BY THE REVENUE ARE, THEREFORE, RE JECTED. IN THE RESULT, THE REVENUES APPEAL STANDS DISMISSED. THE AR THEREFORE, SUBMITTED THAT THE IMPUGNED APPEAL DE SERVES TO BE DISMISSED. 4. THE DR PLACED RELIANCE ON THE ORDER OF THE AO. 5. WE HAVE PERUSED THE FACTS AND THE ORDERS OF THE RE VENUE AUTHORITIES AND OF THE COORDINATE BENCH IN THE CASE OF THE COOWNER. 6. SINCE THE ISSUE, FACTS AND FIGURE ARE IDENTICAL IN THE CAS E OF THE COOWNER, IT WOULD BE IMPROPER FOR US TO NOT TO FOLLOW THE ORDER. TARUNA KISHORE THAKURAL ITA NO. 7500/MUM/2010 3 7. RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE ITAT IN THE CASE OF THE COOWNER, WE REJECT THE GROUND TAKEN BY THE DEPARTMENT IN APPEAL BEFORE US. 8. WE, THEREFORE DISMISS THE APPEAL FILED BY THE DEPARTMENT. 9. IN THE RESULT, APPEAL OF THE DEPARTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2014. SD/- SD/- ( . . ) ( #'' ' ) (R. C. SHARMA) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 15 TH JANUARY, 2014 / COPY TO:- 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT (A)-40, MUMBAI. 4) THE CIT, CENTRAL -II, MUMBAI, 5) !'# $ , % $ , &'( / THE D.R. E BENCH, MUMBAI. 6) #) * COPY TO GUARD FILE. %+,- / BY ORDER / / TRUE COPY / / . / / '0 % $ , &'( DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *23/ . . * CHAVAN, SR. PS