K Janardhanam, Hyderabad, Hyderabad V. ACIT, Circle-13(1), Hyderabad, Hyderabad

MA 118/HYD/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4046 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 29-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B KURMI NAIDU
• Keywords: Capital asset; Search and seizure
• Section: 2(14)

Judgement Text

1 MA.NO.118/H/2015 IN ITA.NO.1385/H/2014 MR. K. JANARDHANAM, HYDERABAD. IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A.NO.118/HYD/2015 ARISING OUT OF ITA.NO.1385/HYD/2014 - ASSESSMENT YEAR 2007-2008 MR. K. JANARDHANAM, HYDERABAD. PAN AHHPK6507G VS. ACIT, CIRCLE - 13(1) HYDERABAD. (APPL IC ANT) (RESPONDENT) FOR ASSESSEE : MR. V. SRIDHAR FOR REVENUE : MR. B. KURMI NAIDU DATE OF HEARING : 2 9 .0 1 .2016 DATE OF PRONOUNCEMENT : 2 3 .0 2 .2016 ORDER PER SMT. P. MADHAVI DEVI, J.M. THIS M.A. IS FILED UNDER SECTION 254(2) OF THE I.T. ACT BY THE ASSESSEE SEEKING RECALL OF THE ORDE R OF THE TRIBUNAL DATED 27.03.2015 IN ITA.NO.1385/HYD/2014 F OR THE A.Y. 2007-08. 2. IT WAS SUBMITTED THAT ASSESSEES APPEAL WAS FILED AGAINST THE ORDER OF THE CIT(A) AND THE ISSUE INVOLVED WAS WHETHER THE PROCEEDS FROM SALE OF AGRICULTURAL LAND AND THE CONSEQUENT CAPITAL GAINS ARISING THEREFROM WAS LIABLE TO BE TAXED UNDER THE HEAD CAPITAL GAINS A ND WHETHER THE IMPUGNED LAND WAS TO BE HELD AS A CAPIT AL 2 MA.NO.118/H/2015 IN ITA.NO.1385/H/2014 MR. K. JANARDHANAM, HYDERABAD. ASSET WITHIN THE MEANING OF PROVISIONS OF SECTION 2 (14) OF THE I.T. ACT. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS DISPOSED OF THE FIRST APPEA L HOLDING THAT THE LAND IN QUESTION WAS NOT A CAPITAL ASSET W ITHIN THE MEANING OF SECTION 2(14) OF THE ACT AND THE SAM E BEING AGRICULTURAL LAND, GAINS ARISING THEREFROM CA NNOT BE BROUGHT TO TAX. HE HAS SUBMITTED THAT THE TRIBUNAL HAD SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMITTED THE MATTER BACK TO THE FILE OF THE A.O. WITH AN OBSERVA TION THAT THE LAND SEEMS TO BE NOT PLOUGHED AS WAS EVIDENT FR OM THE PHOTOGRAPHS TAKEN BY THE DEPARTMENT AND THEREFO RE, DOES NOT APPEAR TO BE AGRICULTURAL LAND. IT IS SUB MITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESS EE IS ONE AMONGST SEVERAL ASSESSEES WHO HAVE SOLD THEIR L AND IN THE SAME VILLAGE I.E., DUNDIGAL (V) TO THE SAME PERSON/ PURCHASER AND THE ASSESSMENTS OF ALL THE OTHER ASSE SSEES WERE CONSEQUENT TO SEARCH AND SEIZURE OPERATION CONDUCTED IN THE CASE OF ONE MR. VENEGELLA ANAND PR ASAD M/S. BHAVYA CONSTRUCTIONS P. LTD. HE SUBMITTED THA T THE CASES OF OTHER ASSESSEES ALSO HAVE COME UP BEFORE T HIS TRIBUNAL AND THE COORDINATE BENCH OF THIS TRIBUNAL HAS HELD THAT THE IMPUGNED AMOUNTS RESULTING TO THE ASSESSEES THEREIN ON THE SALE OF THE SAID LANDS ARE NOT LIABLE TO TAX. THUS, ACCORDING TO THE LD. COUNSEL F OR THE ASSESSEE, THE TRIBUNAL HAS TAKEN TWO DIFFERENT VIEW S, ONE IN FAVOUR OF THE ASSESSEE AND ANOTHER AGAINST AND T HE CASES WHERE THE DECISION IS AGAINST THE ASSESSEE IS ONLY 3 MA.NO.118/H/2015 IN ITA.NO.1385/H/2014 MR. K. JANARDHANAM, HYDERABAD. THAT OF THE APPLICANT HEREIN. IT WAS SUBMITTED THAT SUCH A SITUATION HAS RESULTED IN A MISTAKE APPARENT FROM R ECORD IN THE CASE OF THE ASSESSEE AND FURTHER THAT THE PHOTOGRAPHS OF THE LAND THAT ARE CONSIDERED AS THE BASIS FOR DECIDING THE NATURE OF THE LAND DO NOT BELONG T O THE ASSESSEE AND THIS FACT ALSO IS ON RECORD. IT WAS TH EREFORE, PRAYED THAT THE TRIBUNAL MAY BE PLEASED TO RECALL I TS ORDER DATED 27.03.2015 IN ITA.NO.1385/HYD/2014. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTIONS RAISED IN THE M.A. AND HAS ALSO FILED COPIES OF THE ORDERS OF THE COORDINATE BENCH OF THIS TRIBUNAL REFERRED TO IN TH E MISCELLANEOUS APPLICATION. 4. THE LD. D.R, HOWEVER, SUBMITTED THAT THE DECISIONS ON WHICH THE ASSESSEE IS NOW PLACING RELI ANCE UPON WERE ALL PASSED AFTER THE DECISION IN THE CASE OF THE ASSESSEE AND THEREFORE, THERE IS NO MISTAKE APPAREN T FROM THE RECORD. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE ORDER WHICH IS BEING SOUGHT TO BE RECALLED IS DATED 27.03.2015 WHEREAS T HE DECISIONS ON WHICH THE ASSESSEE IS PLACING RELIANCE UPON ARE DATED 13.05.2015 AND 19.06.2015. THUS, IT IS CL EAR THAT ASSESSEES CASE WAS DECIDED BEFORE THE DECISIO N WAS TAKEN IN THE CASE OF OTHER ASSESSEES. THUS, AT THE TIME OF TAKING A DECISION IN ASSESSEES APPEAL, THERE WERE NO OTHER DECISIONS OF THIS TRIBUNAL BASING ON WHICH THE TRIB UNAL OUGHT TO HAVE ALLOWED THE ASSESSEES APPEAL. THE PO WERS 4 MA.NO.118/H/2015 IN ITA.NO.1385/H/2014 MR. K. JANARDHANAM, HYDERABAD. OF THE TRIBUNAL UNDER SECTION 254(2) ARE LIMITED AN D THE TRIBUNAL CAN ONLY TAKE INTO CONSIDERATION THE FACTS , CIRCUMSTANCES AND THE PRECEDENTS AVAILABLE ON SIMIL AR SET OF FACTS ON THE DATE OF PASSING OF THE ORDER BY THE TRIBUNAL AND CANNOT GO INTO THE SUBSEQUENT ORDERS OF THIS TRIBUNAL, THOUGH ON SIMILAR SET OF FACTS. IF THESE SUBSEQUENT ORDERS ARE TAKEN INTO ACCOUNT, IT WOULD RESULT IN A REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMITTED. THOUGH, WE AGREE THAT THE DECISION OF TH E TRIBUNAL IN THE CASE OF SIMILAR ASSESSEES ARE AT VA RIANCE WITH THE DECISION OF THE TRIBUNAL IN ASSESSEES CAS E, WE ARE UNABLE TO GRANT ANY RELIEF TO THE ASSESSEE UNDE R SECTION 254(2) OF THE I.T. ACT. 6. THEREFORE, IT CANNOT BE SAID THAT THERE IS A MISTAKE APPARENT FROM THE RECORD IN TAKING A DECISI ON IN ASSESSEES CASE. IN VIEW OF THE SAME, THE M.A. FILE D BY THE ASSESSEE IS DISMISSED. 7. IN THE RESULT, M.A. OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.02.2016 SD/- SD/- (B. RAMAKOTAIAH) (SMT. P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 23 RD FEBRUARY, 2016 VBP/- 5 MA.NO.118/H/2015 IN ITA.NO.1385/H/2014 MR. K. JANARDHANAM, HYDERABAD. COPY TO 1. MR. K. JANARDHANAM, FLAT NO.102, PRATAP SHIV SADAN APARTMENTS, NEW NALLAKUNTA, HYDERABAD. 2. THE ACIT, CIRCLE - 1 3(1), 2 ND FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 3. CIT(A) - II , HYDERABAD. 4. CIT - I , HYDERABAD. 4. D.R. ITAT B BENCH, HYDERABAD 5. GUARD FILE