C.A.VIBIN, L/H OF LATE SWAMINATHAN ARUMUGAM, COIMBATORE V. DCIT, CC-2, COIMBATORE

MA 12/CHNY/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7878 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G JOHNSON
• Assessee Lawyers: SIDDHARTH NAGARAJAN
• Keywords: Capital asset; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI , . , % BEFORE SHRI MAHAVIR SINGH, VICE-PRESIDENT AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER MISC. PETITION NO.12/CHNY/2021 (IN ITA NO. 2989/CHNY/2019) ( / ASSESSMENT YEAR: 2012-13) MR. C.A.VIBIN, L/H OF LATE SWAMINATHAN ARGUMUGAM 77, LINGAPPA CHETTY STREET COIMBATORE-641 001. VS THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-2 COIMBATORE. PAN: ABRPA 8967E ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. SIDDHARTH NAGARAJAN, ADVOCATE /RESPONDENT BY : MR.G. JOHNSON, ADDL.CIT $ /DATE OF HEARING : 27.08.2021 $ /DATE OF PRONOUNCEMENT : 27.08.2021 / O R D E R PER G.MANJUNATHA, AM: THE ASSESSEE HAS FILED PRESENT MISCELLANEOUS APPLICATION AGAINST ORDER OF THE TRIBUNAL IN ITA NO . 2989/CHNY/2019 DATED 10.03.2021 FOR ASSESSMENT YEAR 2012- 13. 2. THE ASSESSEE HAS NARRATED FACTS OF THE CASE AND MISTAKES STATED TO BE APPARENT ON RECORD, AS PER W HICH, THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL, INSOFAR AS FACTS OF THE PRESENT CASE IS CONCERNED AND ALSO ARGUMENTS OF TH E LEARNED A.R FOR THE ASSESSEE IN RESPECT OF DISTANCE OF LAN D FROM THE 2 MISC.PETITION NO.12/CHNY/2021 NEAREST MUNICIPALITY WHICH CONSTITUTES MISTAKE APP ARENT ON RECORD WHICH CAN BE RECTIFIED U/S.254(2) OF THE INC OME TAX ACT, 1961. 3. THE LEARNED D.R, ON THE OTHER HAND, SUBMITTED THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL INASMUCH A S THE APPEAL OF THE ASSESSEE IS SET ASIDE TO RECONSIDER THE ISSU E DENOVO AND IN ACCORDANCE WITH VARIOUS EVIDENCES FILED BY T HE ASSESSEE AND HENCE, THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND SAME NEEDS TO BE DISMISSE D. 4. WE HAVE HEARD BOTH THE SIDES, CONSIDERED MISCELL ANEOUS APPLICATION FILED BY THE ASSESSEE ALONG WITH ORDER OF THE TRIBUNAL DATED 10.03.2021 IN ITA NO.2989/CHNY/2019 AND FIND THAT THE ASSESSEE HAS FAILED TO MAKE OUT A CASE OF MISTAKE APPARENT ON RECORD WHICH CAN BE RECTIFIED U/S.254 (2) OF THE INCOME TAX ACT, 1961, BECAUSE THE TRIBUNAL, AFTER H EARING BOTH SIDES SET ASIDE APPEAL TO THE FILE OF THE ASSESSIN G OFFICER TO ASCERTAIN FACT WITH REGARD TO NATURE OF LAND WHEN I T WAS SOLD. THIS MEANS, WHILE DECIDING THE ISSUE THE ASSESSING OFFICER HAS TO CONSIDER DISTANCE OF LAND FROM NEAREST MUNICIP ALITY, WHICH IS CRUCIAL TO DECIDE WHETHER PARTICULAR LAND IS AGR ICULTURAL LAND 3 MISC.PETITION NO.12/CHNY/2021 OR URBAN LAND WHICH COMES WITHIN THE DEFINITION O F CAPITAL ASSET AS DEFINED U/S.2(14) OF THE INCOME TAX ACT, 1 961. FURTHER, TO ASCERTAIN NATURE OF LAND WHETHER AGRIC ULTURAL LAND OR NOT PRIMARY DOCUMENT IS TO BE CHITTA OR ADDANGAL. T HEREFORE, WE ARE OF THE CONSIDERED VIEW THAT ONCE THERE IS A CL EAR DIRECTION FROM THE TRIBUNAL TO THE ASSESSING OFFICER TO ASC ERTAIN NATURE OF LAND WHICH COVERS ALL THE ASPECTS INCLUDING VE RIFICATION OF CHITTA /ADDANGAL AND TO ASCERTAIN DISTANCE FROM NEA REST MUNICIPALITY. SINCE BOTH THE ASPECTS ARE COVERED IN THE DIRECTION OF THE TRIBUNAL, WE ARE OF THE CONSIDERED VIEW THA T THERE IS NO ERROR IN THE FINDINGS RECORDED BY THE TRIBUNAL WHIC H CAN BE RECTIFIED U/S.254(2) OF THE ACT. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2021 SD/- SD/- ( ) ( . ) (MAHAVIR SINGH) (G. MANJUNATHA ) / VICE-PRESIDENT * / ACCOUNTANT MEMBER , /CHENNAI, - / DATED 27 TH AUGUST, 2021 DS 12 32 /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 4 () /CIT(A) 4. 4 /CIT 5. 2 8 /DR 6. /GF .