ITO, CHENNAI V. S.Erajan L/H of (Late) Sri T.K.Somasundaram Pillai, CHENNAI

MA 54/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8577 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-07-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS
• Assessee Lawyers: K MEENAKSHISUNDARAM ITP
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI V.DURGA RAO, JUDICIAL MEMBER M.P. NO.54(MDS)/2012 IN ITA NO.1885(MDS)/2010 ASSESSMENT YEAR:2006-07 THE INCOME-TAX OFFICER, COMPANY WARD V(1), CHENNAI. VS. SHRI S.ERAJAN, L/H OF LATE T.K.SOMASUNDARAM PILLAI, 100, TRADE CENTRE, WALLAJAH ROAD, CHENNAI-600 002. PAN AHYPS1639. (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI SHAJ I P JACOB, IRS, CIT RESPONDENT BY : SHRI K.MEENAKS HISUNDARAM, ITP DATE OF HEARING : 13 TH JULY, 2012 DATE OF PRONOUNCEMENT : 13 TH JULY, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THIS IS A RECTIFICATION PETITION FILED BY THE REV ENUE. THE PETITION IS FILED IN THE CONTEXT OF THE ORDER OF TH E TRIBUNAL DATED 14-11-2011 PASSED IN ITA NO.1885(MDS)/2010. - - MP 54 OF 2012 2 2. WHILE DECIDING THE SAID APPEAL, THE TRIBUNAL HA S HELD THAT NO PORTION OF THE AGRICULTURAL LAND HELD AND POSSESSED BY THE ASSESSEE WAS USED FOR NON AGRICULTURAL PURPO SES. THIS FINDING WAS ARRIVED AT BY THE TRIBUNAL AFTER PERUSI NG THE CERTIFICATE ISSUED BY THE TAHSILDAR AND VILLAGE ADM INISTRATIVE OFFICER. 3. NOW IT IS THE CASE OF THE REVENUE THAT THE SAID FINDING OF THE TRIBUNAL IS NOT CORRECT. THE CONTEN TS OF THE PETITION ARE EXTRACTED BELOW:- 1. THE ABOVE APPEAL WAS DISPOSED OFF BY THE HONBLE TRIBUNAL VIDE ORDER DATED 14.11.2011. IN PARA 5 OF THE SAID ORDER, THE HONBLE TRIBUNAL RELI ED ON THE CERTIFICATE OF TAHSILDAR AND HELD THAT THE TRANSFER OF SUCH LAND DOES NOT RESULT IN CAPITAL GA INS TAXABLE UNDER THE I.T. ACT ON THE REASONING THAT TH E CERTIFICATE ISSUED BY TAHSILDAR SHOWS THAT EXTENT O F LAND USED FOR THE PURPOSE OF AMUSEMENT PARK AT NIL. - - MP 54 OF 2012 3 2. THE HONBLE TRIBUNAL FAILED TO NOTE THE DEFINITI ON OF CAPITAL ASSET PROVIDED IN SEC.2(14) OF THE I.T. ACT WHEREIN ONLY AGRICULTURAL LAND IS EXEMPTED. THER E IS NO REFERENCE TO THE LAND OCCUPIED BY AMUSEMENT PARK IN THE SAID SECTION. THE CERTIFICATE OF TAHS ILDAR CLEARLY SHOWS THAT TOTAL EXTENT OF LAND OWNED BY ASSESSEE IS 3.72.5 HECTARES OUT OF WHICH ONLY 0.90.0 HECTARES IS USED FOR AGRICULTURAL PURPOSES WHICH NEEDS TO BE EXCLUDED AS PER THE EXPRESS PROVISIONS CONTAINED IN SEC.2(14) OF THE ACT. 3. SINCE THE ORDER OF THE TRIBUNAL IS OVERLOOKI NG MANDATORY PROVISIONS OF THE I.T. ACT, IT IS A MISTA KE APPARENT FROM RECORD AS HELD IN ITO V. ASHOK TEXTILES LTD. (41 ITR 732) (SC) AND CIT V. PIERCE LESLIE & CO. LTD. (227 ITR 759)(MAD.). HENCE, IT I S PRAYED THAT THE ORDER DATED 14.11.2011 MAY BE RECTIFIED ACCORDINGLY U/S.254(2) OF THE I.T. ACT. 4. AFTER HEARING BOTH SIDES WE FIND THAT THE REVEN UE IS SEEKING FOR A REVIEW OF THE EARLIER ORDER PASSED BY THE TRIBUNAL. - - MP 54 OF 2012 4 REVIEW IS NOT PERMISSIBLE UNDER LAW. THEREFORE, TH IS PETITION OF THE REVENUE FAILS. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON FRIDAY, THE 13 TH OF JULY, 2012 AT CHENNAI. SD/- SD/- (V.DURGA RAO) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 13 TH JULY, 2012. V.A.P. COPY TO: (1) PETITIONE R (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F.