Sundaram Sanjay, CHENNAI V. DCIT, CHENNAI

ITA 834/CHNY/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8841 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V M MAHIDAR
• Assessee Lawyers: K S BALAKRISHNA
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH : CHENNAI . . . , . , [BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER] ./I.T.A. NO.834/CHNY/2017 / ASSESSMENT YEAR : 2012-13 SHRI SUNDARAM SANJAY 4A, SRIRAM APARTMENT, 3,VALMIKI STREET, T.NAGAR, CHENNAI-600 017. VS. DEPUTY COMMISSIONER OF INCOME TAX, NEW CORPORATE CIRCLE (18), CHENNAI-600 034. (PAN:AFJPS1935C ) ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI K.S.BALAKRISHNA, ADVOCATE /RESPONDENT BY : SHRI V.M.MAHIDAR, JCIT /DATE OF HEARING : 19 .12 . 2018 /DATE OF PRONOUNCEMENT : 19 .12 . 201 8 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER: IN THIS APPEAL FILED BY THE ASSESSEE IT IS AGGRIEV ED THAT ASSESSING OFFICER MADE ADDITION OF 1,63,54,432/- UNDER THE H EAD LONG TERM CAPITAL GAINS REJECTING HIS CONTENTION THAT THE LAND SOLD W AS AGRICULTURAL IN NATURE. 2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAD SOLD PUNJA LAND JOINTLY HELD BY HIM ALONG WITH HI S WIFE, ON 28.12.2011 TO ONE M/S.BGR BOILERS PVT. LTD. FOR A CONSIDERATI ON OF 2,00,00,000/-. AS PER LEARNED AR, ASSESSEE WAS ENTITLED TO 50% SH ARE THEREIN. ITA NO. 834/CHNY/2017 :- 2 -: CONTENTION OF THE LEARNED AR WAS THAT THE SAID SUM RECEIVED BY THE ASSESSEE WAS NOT EXIGIBLE TO CAPITAL GAINS SINCE TH E LAND SOLD WAS AGRICULTURAL IN NATURE. ACCORDING TO LEARNED AR, LA ND WAS LOCATED FAR AWAY FROM ANY NOTIFIED TOWNS. HOWEVER, ACCORDING TO HIM, ASSESSING OFFICER TOOK A VIEW THAT ASSESSEE COULD NOT FILE ANY EVIDE NCE FOR CROP CULTIVATION AND EXPENDITURE INCURRED IN RELATION TO AGRICULTURA L OPERATION. ACCORDING TO HIM, ASSESSING OFFICER TOOK A VIEW THAT LAND SOL D WAS NOT AGRICULTURAL. AS PER LEARNED AR, ADDITION MADE BY THE ASSESSING O FFICER WAS CONFIRMED BY LEARNED CIT(A) DESPITE ASSESSEES CONT ENTION THAT LAND WAS CLASSIFIED AS AGRICULTURAL IN REVENUE RECORDS. CON TENTION OF THE LEARNED AR WAS THAT PURCHASER M/S.BGR BOILERS PVT.LTD., N EVER MADE ANY ATTEMPT FOR CONVERTING THE LAND AND LAND STILL REMA INED AGRICULTURAL. ACCORDING TO HIM, LAND HAD COCONUT TREES, TEAKWOOD TREES AND MANGO TREES YIELDING CROP. FURTHER, AS PER LEARNED AR, LA ND WAS AT PERIVELIKKADU VILLAGE AND IT WAS NOT A CORPORATION OR MUNICIPALIT Y. THUS, AS PER LEARNED AR, LAND DID NOT FALL WITHIN THE DEFINITION OF CAPI TAL ASSET UNDER CLAUSE (III) OF SECTION 2(14) OF THE ACT. LEARNED AR ALSO PLACE D BEFORE US A COPY OF ADANGAL RECORD, WHICH ACCORDING TO HIM, CLEARLY PRO VED THE LAND SOLD TO BE AGRICULTURAL IN NATURE. TO A QUESTION FROM THE BENCH, LEARNED AR FAIRLY AGREED THAT ASSESSEE WAS UNABLE TO PRODUCE C OPY OF ADANGAL RECORD BEFORE THE LOWER AUTHORITIES. HOWEVER, ACCORDING TO HIM, ADANGAL RECORD ITA NO. 834/CHNY/2017 :- 3 -: IN THE NAME OF PURCHASER WAS PRODUCED AND THIS ALSO CLEARLY INDICATED THAT LAND SOLD WAS PUNJA LAND WITH CULTIVATION. 3. PER CONTRA, LEARNED DR SUBMITTED THAT THE LAND, WHETHER IT WAS SITUATED WITHIN LOCAL LIMITS OF A TOWN COMMITTEE WH ICH HAD POPULATION OF MORE THAN TEN THOUSAND REQUIRED TO BE VERIFIED. FUR THER ACCORDING TO HIM, ADANGAL RECORD WAS NOT PRODUCED BY THE ASSESSE E BEFORE THE LOWER AUTHORITIES. 4. WE HAVE PERUSED RECORDS AND HEARD THE RIVAL CON TENTIONS. COPY OF THE SALE DEED HAS BEEN PLACED BEFORE US BY THE ASSE SSEE AT PAPER BOOK PAGES 77 TO 87. SCHEDULE TO THE SALE DEED SHOW THAT LAND SOLD WAS PUNJA LAND PROPERTY LYING UNDER SURVEY NO. NO.202 IN PERI YAVELIKKADU VILLAGE, LATHUR PANCHAYAT UNION, CHEYYUR TALUK IN THE DISTRI CT OF KANCHEEPURAM. CLAIM OF THE ASSESSEE IS THAT LAND WAS AGRICULTURAL IN NATURE AND DID NOT FALL WITHIN THE DEFINITION OF CAPITAL ASSET UNDER CLAUSE (III) OF SECTION 2(14) OF THE ACT. ASSESSEE CLAIMS THAT ADANGAL RECO RD IN THE NAME OF PURCHASER WAS PRODUCED BEFORE THE LOWER AUTHORITIE S. HOWEVER, IT IS AN ADMITTED POSITION THAT ADANGAL RECORD IN THE NAME O F ASSESSEE HAS BEEN PRODUCED FOR THE FIRST TIME BEFORE US. NO DOUBT, TH IS ADANGAL RECORD CLEARLY INDICATE THAT THERE WAS SOME CULTIVATION IN THE LAND LOCATED AT SURVEY NO.202. HOWEVER, AS MENTIONED BY US, THIS A DANGAL RECORD WAS NOT PRODUCED BY THE ASSESSEE BEFORE THE LOWER AUTHO RITIES. WE ALSO FIND ITA NO. 834/CHNY/2017 :- 4 -: THAT WHETHER THE PROPERTY FALLS WITHIN THE LIMB (A) OF CLAUSE (III) TO SECTION 2(14) OF THE ACT HAS ALSO NOT BEEN VERIFIE D BY THE LOWER AUTHORITIES. IN THE CIRCUMSTANCES OF THE CASE, WE A RE OF THE OPINION THAT MATTER REQUIRES FRESH LOOK BY ASSESSING OFFICER. WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT THE QUESTION REG ARDING THE NATURE OF THE LAND SOLD BY THE ASSESSEE AND WHETHER IT SHOULD BE EXCLUDED FROM THE DEFINITION OF CAPITAL ASSET UNDER CLAUSE (III) OF SECTION 2(14) OF THE ACT, BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. 5. APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED ON WEDNESDAY, THE 19 TH OF DECEMBER, 2018, AT CHENNAI. SD/- ( . . . ) ( N.R.S. GANESAN ) / JUDICIAL MEMBER SD/- ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER / CHENNAI / DATED:- 19 TH DECEMBER, 2018. SOMU / COPY TO: 1 . / APPELLANT 3. ( ) / CIT(A) 5. / DR 2. / RESPONDENT 4. / CIT 6. / GF