ITO, Ward-1, Anakapalle V. Dasari Sujatha, Anakapalli

MA 81/VIZ/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6358 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 13-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEBA KUMAR SONAWAL
• Keywords: Capital asset

Judgement Text

M.A. NO. 81 /VIZ/2017 ( SMT. DASARI SUJATHA ) 1 IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M.A.NO. 81 /VIZ/2017 ( ARISING OUT OF I . T .A.NO S . 187 /VIZ / 201 4 , 26/VIZ/2012, 135/VIZ/2015, 27/VI Z/2012 & S.P.NO. 18/VIZ/2014 ) ( ASSESSMENT YEAR : 200 8 - 0 9 ) ITO, WARD - 1, ANAKAPALLE. VS. SMT. DASARI SUJATHA, PUDIMADAKA ROAD, ANAKAPALLE. [ PAN: AKYPD 0955 D ] ( APPLICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI SAMUEL NAGADESI - CA DEPARTMENT BY : DEBA KUMAR SONAWAL CIT DR DATE OF HEARING : 0 9 / 02 /201 8 DATE OF P RONOUNCEMENT : 21 / 02 / 201 8 O R D E R PER V. DURGA RAO , JUDICIAL MEMBER : T HIS MISC. APPLICATION FILED BY THE D EPARTMENT AGAINST THE ORDER OF THIS TRIBUNAL PASSED IN ITA NOS. 187/VIZ/2014, 26/VIZ/2012, 135/VIZ/2015, 27/VIZ/2012 & S.P.NO. 18/VIZ/2014 , DATED 05/05/2017 BY RA I SI NG THE FOLLOWING GROUNDS: - 1. FOR THE FIRST TIME, THE ASSESSEE FILED REVENUE RECORD BEFORE ITAT TO SHOW THAT LAND IS DRY AND CULTIVABLE LAND AND SAME WAS NEVER PRODUCED FOR EXAMINATION EITHER BEFORE ASSESSING OFFICER/ COMMISSIONER OF INCOME TAX(APPEALS) AND HENCE THE HON'BLE ITAT MAY SET ASIDE THE ASSESSMENT TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE SAME. 2. IT IS PRAYED THAT THE HON'BLE ITAT MAY CONSIDER THE FACT THAT THE SAID LAND WAS TREATED AS CAPITAL ASSET BY THE ASSESSEE HIMSELF AND VOLUNT ARILY OFFERED INCOME AS SHORT TERM CAPITAL GAIN ON THE SALE OF IMPUGNED LAND WHILE FILING THE RETURN OF INCOME AND PAID SELF M.A. NO. 81 /VIZ/2017 ( SMT. DASARI SUJATHA ) 2 ASSESSMENT TAX. 3. THE HON'BLE ITAT HAS NOT CONSIDERED THE ISSUE THAT IN GIVING RELIEF BY TREATING THE IMPUGNED LAND AS AGRICULTU RAL LAND, THE INCOME OF THE ASSESSEE AFTER GIVING EFFECT TO APPELLATE ORDER, COMES BELOW THE RETURNED INCOME AND THE ENTIRE SELF ASSESSMENT TAX PAID BY ASSESSEE HAS TO BE REFUNDED AND THIS REFUND OF SELF ASSESSMENT TAX IS AGAINST THE LAW AS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF THE CIT VS M/S. SHELLEY PRODUCTS AND ANOTHER 261 ITR 367(SC) AND CHANDRA MOHAN VS. C I T 241 ITR 484(MP) 4. ANY OTHER GROUNDS THAT MAYBE URGED AT THE TIME OF HEARING. 2. WHEN THIS MISC. APPLICATION IS TAKEN UP FOR HEARI NG, LD.DEPARTMENTAL REPRESENTATIVE HAS RELIED ON THE GROUNDS RAISED THEREIN. 3. ON THE OTHER HAND, LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT THE TRIBUNAL HAS PASSED A DETAILED ORDER AND THE LD. DEPARTMENTAL REPRESENTATIVE IS NOT ABL E TO POINT OUT ANY MISTAKE APPARENT ON THE RECORD , THEREFORE, SAME MAY BE DISMISSED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES. 5. FROM THE GROUNDS OF APPLICATION RAISED BY THE DEPARTMENT, THE LD. DEPARTMENTAL REPRESENTATIVE IS NOT ABLE TO POINT OUT THAT THERE IS A MISTAKE APPARENT ON RECORD. WE HAVE ALSO GONE THROUGH THE GROUNDS AND FIND THAT THE GROUNDS RAISED IS NOT SUGGESTING ANY MISTAKE APPARENT ON THE FACE OF THE RECORD. THE TRIBUNAL VIDE ORDER DATED 05/05/2017, HAS CONSIDERED ALL T HE DE TAILS RELEVANT TO THE CASE AND ALSO BY CONSIDERING THE VARIOUS CASE - LAWS, GAVE A CATEGORICAL FINDING THAT THE LAND IN DISPUTE IS AN AGRICULTURAL LAND. M.A. NO. 81 /VIZ/2017 ( SMT. DASARI SUJATHA ) 3 THEREFORE, W E FIND NO MISTAKE APPARENT ON THE FACE OF THE RECORD, HENCE, THIS MISC. APPLICATION FIL ED BY THE DEPARTMENT IS DISMISSED. 6. IN THE RESULT, MISC. APPLICATION FILED BY THE DEPARTMENT IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 201 8 S D/ - SD/ - ( D.S. SUNDER SINGH) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 21 / 0 2 /201 8 VR /SPS COPY OF THE ORDER FORWARDED TO : - 1. THE APPELLANT SMT. DASARI SUJATHA, PUDIMADAKA ROAD, ANAKAPALLE. 2. THE RESPONDENT IT O , WARD - 1, ANAKAPALLE . 3. THE CIT - 1 , VISAKHAPATNAM . 4. THE CIT(A), VISAKHAPATNAM . 5 . DR, ITAT, VISAKHAPATNAM 6 . GUARD FILE BY ORDER // TRUE COPY // SR.PRIVATE SECRETARY ITAT, VISAKHAPATNAM