Dr.A.Thirumagal, Ph.D, Tirunelveli V. ACIT Circle 1, Tirunelveli

MA 22/CHNY/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3338 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 5 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 28-07-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 05-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 263; 143(3); 54B

Judgement Text

आयकर अपीलीय अिधकरण, ’सी’ Ɋायपीठ, चेɄई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘C’ BENCH, CHENNAI ŵी वी दुगाŊ राव Ɋाियक सद˟ एवं ŵी जी. मंजुनाथा, लेखा सद˟ के समƗ Before Shri V. Durga Rao, Judicial Member & Shri G. Manjunatha, Accountant Member M.P. No. 22/Chny/2019 [In I.T.A. No.1221/Chny/2018] Assessment Year: 2013-14 Smt. Dr. A. Thirumagal, Ph.D., Old No. 84, New No. 488, Main Road, Gandhi Nagar, Tirunelveli 627 008. [PAN: ADEPT0523C] Vs. The Assistant Commissioner of Income Tax, Circle 1, Tirunelveli. (Petitioner) (ŮȑथŎ/Respondent) Petitioner by : Shri D. Anand, Advocate ŮȑथŎ की ओर से/Respondent by : Shri AR V Sreenivasan, Addl. CIT सुनवाई की तारीख/ Date of hearing : 29.07.2022 घोषणा की तारीख /Date of Pronouncement : 03.08.2022 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: By means of present Miscellaneous Petition, the assessee seeks to recall the order passed by the Tribunal in I.T.A. No. 1221/Chny/2018 dated 11.10.2018 for the assessment year 2013-14. By referring to the miscellaneous petition, the ld. Counsel for the assessee has submitted that no tax liability exists in assessee’s case since the receipt was agricultural income and by accepting the same the Department granted relief under section 54B of the Income Tax Act, 1961 [“Act” in short], which was also not disputed by the ld. PCIT in his revision order under M.P. No.22/Chny/19 2 263 of the Act and confirming the revision order is a mistake apparent in the order passed by the Tribunal and prayed for recalling and fresh adjudication. 3. The ld. DR has supported the order passed by the Tribunal. 4. We have heard both the sides, perused the order passed by the Tribunal including orders of authorities below. As has been explained in the miscellaneous petition, the Assessing Officer has arrived at the total capital gains at ₹.2,41,45,150/-, which includes, land cost, stamp duty, registration cost and legal expenses. The registering authority, viz., Sub-Registrar, Thirupporur referred for valuation of the sale of land to DRO (Stamps), Chennai under section 47A(1) of Indian Stamp Act and accordingly, the value of the property was enhanced and an additional stamp duty of ₹.1,90,680/- and registration fee of ₹.27,240/- were collected, thereby there is deficit value of ₹.27,24,000/- for the property sold by the assessee. Hence, there is under assessment of income to the tune of ₹.9,80,000/- (₹.27,24,000/3) in the case of the petitioner, which was not considered by the Assessing Officer before concluding the assessment under section 143(3) of the Act dated M.P. No.22/Chny/19 3 15.09.2015. Therefore, by invoking the provisions of section 263 of the Act, the ld. PCIT show-caused the assessee as to why the assessment order should not be subject to proceedings under section 263 of the Act since the Assessing Officer omitted to consider for computing the enhanced value of the property by increasing the value of the stamp duty and registration fee, which was erroneous and prejudicial to the interest of the Revenue. After considering the submissions of the assessee, the ld. PCIT has directed the Assessing Officer to redo the assessment in accordance with law. However, in the appeal order, the Tribunal has observed that “.........Therefore, the Tribunal is of the considered opinion that the Assessing Officer shall examine all the relevant material and find out whether the land in question is agricultural land or not and thereafter decide the issue afresh independently without being influenced by the observation made by the Principal Commissioner of Income Tax in the impugned order or by this Tribunal in this order. Accordingly, we confirm the order of the Principal Commissioner of Income Tax with the above observation”. 5. On perusal of the revision order under section 263 of the Act or show-cause notice issued by the PCIT, we find that the land in question is agricultural land or not were not subject matter before the ld. PCIT or in the show-notice issued to the assessee under section 263 of the Act. Thus, to the above extent, there is an apparent mistake crept in the appeal order of the Tribunal. Accordingly, we recall the M.P. No.22/Chny/19 4 order of the Tribunal dated 11.10.2018 and appeal of the assessee is restored for limited purposes. The Registry is directed to post the appeal for hearing on regular course. Thus, the miscellaneous petition is allowed to the extent stated hereinabove. 6. In the result, the MP filed by the petitioner is allowed. Order pronounced on 03 rd August, 2022 at Chennai. Sd/- Sd/- (G. MANJUNATHA) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER Chennai, Dated, 03.08.2022 Vm/- आदेश की Ůितिलिप अŤेिषत/Copy to: 1. अपीलाथŎ/Appellant, 2.ŮȑथŎ/ Respondent, 3. आयकर आयुƅ (अपील)/CIT(A), 4. आयकर आयुƅ/CIT, 5. िवभागीय Ůितिनिध/DR & 6. गाडŊ फाईल/GF.