DCIT, CHENNAI V. Mamallapuram Development P Ltd., CHENNAI

MA 82/CHNY/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0500 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2013
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 14-06-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2013
• Court: TRIBUNAL
• Department Lawyers: T N BETGERI IRS
• Assessee Lawyers: REMA SMRITHI
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.P.NO.82/MDS/2013 (IN I.T.A.NO.1168/MDS/2011) ASSESSMENT YEAR : 2008-09 THE DEPUTY COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-IV(1), CHENNAI. VS. M/S. MAMALLAPURAM DEVELOPMENT PVT. LTD., 1/238, OLD MAHABALIPURAM ROAD, CHEMMENCHERRY, CHENNAI 600 119. PAN AAECM6703F (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI T.N.BETGERI, IRS, JC IT RESPONDENT BY : MS. REMA SMRITHI, ADVOCAT E DATE OF HEARING :14 TH JUNE, 2013 DATE OF PRONOUNCEMENT :14 TH JUNE, 2013 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS MISCELLANEOUS PETITION IS FILED BY THE REVENUE IN THE CONTEXT OF THE ORDER OF THIS BENCH PASSED ON 11 TH OCTOBER 2011, IN APPEAL FILED BY THE ASSESSEE IN ITA NO.1168/MDS /2011. THE MP 82/13 :- 2 -: APPEAL RELATED TO THE ASSESSMENT YEAR 2008-09. IN THE SAID ORDER, THE TRIBUNAL HAS ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE LAND WAS AGRICULTURAL IN NATURE AND THEREF ORE, THE LAND IN TRANSACTION COULD NOT BE TREATED AS CAPITAL ASSET L IABLE FOR CAPITAL GAINS TAXATION. THE APPEAL FILED BY THE ASSESSEE W AS ALLOWED. 2. NOW, THE REVENUE POINTS OUT A MISTAKE IN THE ORD ER OF THE TRIBUNAL STATING THAT THE TRIBUNAL HAS RELIED ON TH E CERTIFICATE OF THE VILLAGE ADMINISTRATIVE OFFICER THAT THE LAND WA S AGRICULTURAL IN NATURE WITHOUT LOOKING INTO THE OBSERVATION MADE BY THE ASSESSING OFFICER IN PARAGRAPH 12 OF THE ASSESSMENT ORDER WHICH READS AS BELOW : ..THE POONAMALLEE TOWN WAS UPGRADED FROM PANCHAYAT TO MUNICIPALITY ON 01.10.2004 UNDER GOMS 301 DATED 28.04.2004. AS PER CENSUS (2001), THE POPULATION OF POONAMALLEE IS 42,522. THE LAND IS CLOSE TO POONAMALLEE EVEN ACCORDING TO SHRI S. ALAGURAJAN, DIRECTOR OF THE COMPANY, IT IS 5 TO 6 K M FROM POONAMALLEE. 3. IT IS TO BE SEEN THAT IN SPITE OF THE FACTORS ST ATED BY THE ASSESSING OFFICER, THE GOVERNMENT HAS NOT ISSUED NO TIFICATION TREATING THE AREA AS PART OF CORPORATION OR MUNICIP ALITY AND AS MP 82/13 :- 3 -: SUCH, THE LAND BEING SITUATED BEYOND THE SPECIFIED LIMIT OF EVEN POONAMALLEE MUNICIPALITY, IT IS NOT POSSIBLE TO HOL D THAT THE LAND IS COVERED BY THE EXTENDED LIMIT OF MUNICIPALITY. FOR THAT EXTENDED LIMIT, IT IS NECESSARY THAT THE BOARD SHOU LD PROCLAIM ITS NOTIFICATION. 4. IN VIEW OF THE ABOVE, WE FIND THAT THE MISTAKE P OINTED OUT BY THE REVENUE DOES NOT EXIST. THE PETITION IS ACC ORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON FRIDAY, THE 14 TH OF JUNE, 2013 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR.O.K.NAR AYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 14 TH JUNE, 2013 MPO* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GF.