D Baskar, Chennai V. ITO, Non Corporate Ward 22(1), Chennai

ITA 77/CHNY/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1986 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 05-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARUVUURU SRIDHARJCITD R
• Assessee Lawyers: Y SRIDHARC A
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.75/MDS/2018 / ASSESSMENT YEAR :2009-10 SHRI DURAIRAJ BABU , NO.105, OLD TRUNK ROAD, PALLAVARAM, CHENNAI-600 043. VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD-22(1), CHENNAI [PAN: ABAPB 0700 F] ( / APPELLANT) ( /RESPONDENT) ITA NO.76/MDS/2018 / ASSESSMENT YEAR :2009-10 SHRI D.NANDAKUMAR , NO.105, OLD TRUNK ROAD, PALLAVARAM, CHENNAI-600 043. VS. THE INCOME TAX OFFICER, WARD-1(3), CHENNAI [PAN: ADDPN 6050 B] ( / APPELLANT) ( /RESPONDENT) ITA NOS.75 TO 78/CHNY/2018 :- 2 -: ITA NO.77/MDS/2018 / ASSESSMENT YEAR :2009-10 SHRI D.BASKAR , NO.105, OLD TRUNK ROAD, PALLAVARAM, CHENNAI-600 043. VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD-22(1), CHENNAI [PAN: AAGPB 7538 N] ( / APPELLANT) ( /RESPONDENT) ITA NO.78/MDS/2018 / ASSESSMENT YEAR :2009-10 SHRI D.DHANAMMAL , NO.105, OLD TRUNK ROAD, PALLAVARAM, CHENNAI-600 043. VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD-22(1), CHENNAI [PAN: ARIPD 4162 B] ( / APPELLANT) ( /RESPONDENT) ! ' / APPELLANT BY : MR.Y.SRIDHAR,C.A #$ ! ' /RESPONDENT BY : MR.VARUVUURU SRIDHAR,JCIT,D.R % & ! '( / DATE OF HEARING : 15 - 11 - 201 8 ) ! '( / DATE OF PRONOUNCEMENT : 15 - 11 - 201 8 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER FOUR APPEALS ARE FILED BY THE DIFFERENT ASSESSEE S AGAINST THE CONSOLIDATED ORDER OF THE COMMISSIONER OF INCO ME-TAX (APPEALS)- ITA NOS.75 TO 78/CHNY/2018 :- 3 -: 10, CHENNAI IN APPEAL NO.16/12-13 & 39,127 & 129/2 016-17/CIT(A)- 10 DATED 29.09.2017 FOR THE ASSESSMENT YEAR 200 9-10. 2. SHRI Y.SRIDHAR REPRESENTED ON BEHALF OF THE ASS ESSEE AND SHRI VARUVUURU SRIDHAR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS A SUBMISSION BY LD.A.R THAT ASSESSEE HAD OWNED CERTAIN AGRICULTURAL LANDS AT KOLAPPAKKAM VILLAGE BLOCK NO. 1, SRIPERUMBUDUR TALUK. IT WAS A SUBMISSION THAT THE SAID LANDS WER E ACQUIRED BY THE GOVERNMENT OF TAMILNADU FOR THE PURPOSE OF SECOND R UNWAY OF CHENNAI AIRPORT EXTENSION. IT WAS A SUBMISSION THA T WHEN FILING THE RETURNS, THE ASSESSEE HAD ERRONEOUSLY MADE A CLAIM OF EXEMPTION FROM CAPITAL GAINS U/S.10(37) OF THE INCOME TAX ACT. IT WAS A SUBMISSION THAT THE CLAIM OF EXEMPTION U/S.2(14) HAD ALREADY B EEN MADE BEFORE THE LD. ASSESSING OFFICER. IT WAS A SUBMISSION THAT THE LD. ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESS EE AND PROCEEDED TO DETERMINE THE LONG TERM CAPITAL GAINS. IT WAS A SU BMISSION THAT THE ISSUE WAS NOW SQUARELY COVERED BY THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF I.T.O VS. SMT.GEETH A VENUGOPAL IN ITA NO.636/MDS./2013 FOR ASSESSMENT YEAR 2009-10 VIDE O RDER DATED 19.06.2015. IT WAS A SUBMISSION THAT SMT.GEETHA VEN UGOPAL WAS ONE OF THE CO-OWNERS IN RESPECT OF THE SAME SURVYE NO. 272, 271/1 SITUATED AT NO.75, KOLAPAKKAM VILLAGE, BLOCK NO.1, SRIPERUMBUDUR ITA NOS.75 TO 78/CHNY/2018 :- 4 -: TALUK, AND ALSO THE SISTER OF THE THREE OF THE ASSE SSEES HERE AND DAUGHTER OF ASSESSEE, SMT.D.DHANAMMAL. IT WAS SUBM ITTED THAT THE TRIBUNAL HAD ACCEPTED THE CONTENTION OF THE ASSESSE E AND HAD ALLOWED THE CLAIM OF ASSESSEE. IT WAS A SUBMISSION THAT TH E ASSESSEES LAND DOES NOT COME WITHIN THE PURVIEW OF SECTION 2(14) O F THE ACT AND CONSEQUENTLY CANNOT BE CONSIDERED AS CAPITAL ASSET WITHIN A MEANING OF SEC.2(14) OF THE ACT AND NO CAPITAL GAINS WAS LI ABLE TO BE LEVIED IN RESPECT OF THE COMPULSORY ACQUISITION OF THE SAID L AND BY GOVERNMENT OF TAMILNADU. 3. IN REPLY, THE LD.D.R VEHEMENTLY SUPPORTED THE O RDER OF THE LD.CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PE RUSAL OF THE FACTS IN THE PRESENT CASE CLEARLY SHOWS THAT THE IS SUE IS SQUARELY COVERED BY THE DECISION OF CO-ORDINATE BENCH OF THI S TRIBUNAL IN THE CASE OF I.T.O VS. SMT.GEETHA VENUGOPAL REFERRED TO SUPRA WHEREIN IT HAS BEEN HELD IN PARA NO.3 OF THE SAID ORDER OF TRI BUNAL AS FOLLOWS:- 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED T HE MATERIAL ON RECORD. IN THIS CASE, THE LAND WITH SURVEY NOS. 272, 271/1 ARE SITUATED AT NO.75, KOLAPAKKAM VILLAGE, BLOCK NO.1,S RIPERUMBUDUR TALUK. THE NEAREST MUNICIPALITY IS PALLAVARAM AND T HE KOLAPAKAM IS 14.4 KMS AND FROM MENNAMBAKKAM/CHENNAI IT IS 1 4.6 KMS. THE ASSESSEE RECEIVED A CONSIDERATION OF F2,14,25,603/ - ON ITA NOS.75 TO 78/CHNY/2018 :- 5 -: ACQUISITION BY GOVERNMENT OF TAMIL NADU. ACCORDING TO THE ASSESSEE, IT IS NON CAPITAL ASSET SO AS TO BRING IT TO CAPITAL GAIN TAX AS THE PROPERTY FALLS BEYOND AN AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY OR A CANT ONMENT BOARD WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAN D ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF PREVIOUS YEA R. IN OTHER WORDS, LAND DOES NOT FALL UNDER SUCH-CLAUSE (A) TO SEC 2(14) (III) OF THE ACT AS LAND IS OUTSIDE THE NOTIFIED MUNICIPA LITY. NOW, WE HAVE TO SEE WHETHER THE LAND FALL IN CLAUSE (B) TO SEC 2(14)(III) OF THE ACT, AS CENTRAL GOVERNMENT MAY, HAVING REGARD T O THE EXTEND TO THE SCOPE OF URBANIZATION THAT AREA AND OTHER RE LEVANT CONSIDERATION SPECIFIED IN THIS BEHALF BY NOTIFICAT ION IN THE OFFICIAL GAZETTE. THE NOTIFICATION ISSUED BY THE CENTRAL GO VERNMENT U/S.2(1A) (C) PROVISO (II)(B) AND 2(14) (3B) VIDE NO.9447, (F.NO.164/(3)/87/ITA-I, DATED 06.01.1994, AS AMENDE D BY NOTIFICATION NO.11186 DATED 28 TH DECEMBER, 1999 PROVIDED THAT AGRICULTURAL LAND SITUATED IN AREA LYING WITHIN THE DISTANCE NOT EXCEEDING 8 KM FROM THE LOCAL LIMITS OF MUNICIPALIT Y, IT COVERED BY AMENDED DEFINITION CAPITAL ASSETS. THE CENTRAL GOVERNMENT IN EXERCISE OF SUCH POWERS AS ISSUED BEFORE NOTIFIC ATION AS AMENDED BY NOTIFICATION 11186, DATED 28.12.1999, CL EARLY CLARIFYING THAT AGRICULTURE LAND SITUATED IN LOCAL AREA, OUTSIDE MUNICIPALITY OR CONTENTMENT BOARD ETC. HAVING POPUL ATION OF LESS ITA NOS.75 TO 78/CHNY/2018 :- 6 -: THAN TEN THOUSAND AND ALSO BEYOND DISTANCE NOTIFIED BY CENTRAL GOVERNMENT FROM LOCAL LIMITS I.E. OUTSIDE LIMITS OF OTHER SUCH MUNICIPALITY OR CONTENTMENT BOARD ETC. STILL CONTI NUES TO BE EXCLUDED FROM THE DEFINITION CAPITAL ASSET. A CCORDINGLY, LAND SITUATED IN LOCAL AREAS CONTINUES TO BE EXCLUDED FR OM THE DEFINITION. IN THE PRESENT CASE, ADMITTEDLY THE IM PUGNED LAND IS OUTSIDE MUNICIPAL LIMIT OF CHENNAI AND ALSO 8KMS AW AY FROM OUTER LIMIT OF THIS MUNICIPALITY AND ALSO ANY OTHER MUNIC IPALITY. THE ASSESSEE LAND DOES NOT COME WITHIN THE PREVIEW OF S ECTION 2(14)(III) OF THE ACT EITHER UNDER SUB-CLAUSE U/S.( A) OR (B) OF THE ACT. HENCE, IT CANNOT BE CONSIDERED AS CAPITAL ASSE T WITHIN THE MEANING OF THE SECTION AND NO CAPITAL GAIN CAN BE C HARGED ON THE TRANSFER OF THIS LAND BY THE ASSESSEE. MERE INCLUS ION OF LAND WITHIN JURISDICTION OF AIRPORT DEVELOPMENT AUTHORIT Y BY STATE GOVERNMENT NOTIFICATION DOES NOT CHANGE THE CHARACT ER OF LAND IF THE LAND STILL CONTINUES TO BE AGRICULTURAL LAND AT THE POINT OF ACQUISITION OF LAND BY GOVERNMENT. ACCORDINGLY, WE INCLINED TO CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN THIS ISSUE. AS IT IS NOTICED THAT THE LANDS ARE THE SAME LANDS IN RESPECT OF WHICH THE ASSESSEES HAVE ALSO BEEN CHARGED WITH LONG TERM CAPITAL GAINS, RESPECTFULLY FOLLOWING THE DECISION OF DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF I.T.O VS. SMT.GEETHA V ENUGOPAL REFERRED TO ITA NOS.75 TO 78/CHNY/2018 :- 7 -: SUPRA, THE LD. ASSESSING OFFICER IS DIRECTED TO DEL ETE THE CAPITAL GAINS LEVIED IN RESPECT OF THE SAID LAND IN SO FAR AS THE SAID LAND DOES NOT FALL WITHIN THE PURVIEW OF SECTION 2(14) OF THE ACT AND CANNOT BE CONSIDERED AS A CAPITAL ASSET. 5. IN THE RESULT, ALL THE APPEALS FOR ASSESSMENT Y EAR 2008-09, IN THE CASE OF SHRI DURAIRAJ BABU, SHRI D.NANDAKUMA R, SHRI D.BASKAR AND SMT. D.DHANAMMAL, ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 15 TH NOVEMBER, 2018, AT CHENNAI. SD/ - SD/ - ( . ) (A.MOHAN ALANKAMONY) ! '# / ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) $ '# / JUDICIAL MEMBER , & / CHENNAI - / DATED: 15 TH NOVEMBER, 2018. K S SUNDARAM . / ! #'01 2 1' / COPY TO: 1 . / APPELLANT 4. . . % 3' / CIT 2. #$ / RESPONDENT 5. 145 #'6 / DR 3. . . % 3' () / CIT(A) 6. 57 8& / GF