DCIT, CHENNAI V. K.N.Pannirselvam, CHENNAI

MA 83/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4776 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 01-07-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 13-05-2016
• Court: TRIBUNAL
• Department Lawyers: B NAVEEN KUMAR
• Assessee Lawyers: M P SENTHIL KUMAR
• Keywords: Audit objection; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , ! ' ! # . $% , & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.A.NO. 83/MDS/2016 ( IN ITA NO. 2108 TO 2111/MDS/2015) / ASSESSMENT YEARS : 2004-05 TO 2006-07 & 2008-09 THE DEPUTY COMMISSIONER OF INCOME-TAX, NON-CORPORATE CIRCLE-2, CHENNAI. (APPLICANT) V. SHRI K.N.PANNIRSELVAM, 3B, PARKLAND APARTMENT, KAMALABHAI STREET, T.NAGAR, CHENNAI 600 017. PAN AAOPP8632M ( / RESPONDENT) APPLICANT BY : SHRI B. NAVEEN KUMAR, JCIT RESPONDENT BY : SHRI M.P.SENTHIL KUMAR, ADVOCATE / DATE OF HEARING : 01.07.2016 / DATE OF PRONOUNCEMENT: 05.08.2016 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISC. APPLICATION, THE REVENUE SEEKS RECA LL OF THE ORDER OF THE TRIBUNAL DATED 29.1.2016 IN ITA NOS.21 08 TO - - MA 83/16 2 2111/MDS/2015. 2. THE LD. DR SUBMITTED THAT SINCE THE TAX EFFECT I NVOLVED IN THIS APPEAL IS BELOW 10 LAKHS, THE TRIBUNAL, DISMISSED THE APPEAL, BY PLACING RELIANCE ON THE CBDT CIRCULAR NO .21/2015 DATED 10.12.2015. ACCORDING TO THE LD. DR, THIS A PPEAL WAS FILED IN VIEW OF AG(AUDIT) OBJECTION AND SUBMITTED THAT U NDER 8(C) OF THE ABOVE CIRCULAR, IT IS HELD BY THE BOARD THAT WH ERE REVENUE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT , THE JUDGMENT SHOULD BE CONTESTED ON MERITS NOWITHSTANDI NG THAT THE TAX EFFECT ENTITLED IS LESS THAN THE MONETARY LIMIT S. 3. ON THE OTHER HAND, THE LD. AR, SUBMITTED THAT TH E TRIBUNAL DECIDED THE APPEAL NOT ONLY DUE TO TAX EFFECT INVOL VED BUT ALSO FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL IN ASSE SSEES OWN CASE. BEING SO, IT CANNOT BE RECALLED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. ADMITTEDLY, THE TRIBUNAL DECIDED THE ISSUE FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.667/MDS/2015 DATED 30.9.2015 FOR THE ASSESSMENT YEAR 2007-08 BY OBSERVING AS FOLLOWS : - - MA 83/16 3 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OPINION THAT SIMILAR ISSUE WAS CONSIDERED BY THE TRIBUNAL IN ASS ESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08. THE TRIB UNAL VIDE ITS ORDER DATED 30.9.2015 IN ITA NO. 667/MDS/2 015, HELD AS UNDER : 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN OUR OPINION, THE DECISI ON TAKEN BY THE CIT(APPEALS) TREATING THE INCOME FROM NURSERY AS AGRICULTURE INCOME IS JUSTIFIED AND AS I N SIMILAR CIRCUMSTANCES, IN THE CASE OF CIT V. SOUNDARYA NURSERY (241 ITR 530), THE JURISDICTIONAL HIGH COURT HAS HELD THAT THE INCOME FROM THE SALE O F PLANTS GROWN IN POTS AND THE SALE OF SEEDS DERIVED ON ACCOUNT OF CULTIVATION BY THE ASSESSEE WAS AGRICULTURAL INCOME. THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THAT OF THE JURISDICTIONAL HIGH COUR T, WE HAVE NO HESITATION IN FOLLOWING THE SAME. FURTHER, IT IS NOTICED THAT THE AHMEDABAD BENCH OF THE TRIBUNAL, IN THE CASE OF CIT V. BEST ROSES BIOTECH (P) LTD. [17 ITR (TRIB) 211], HELD THAT THE INCOME EARNED FROM FLORICULTURE ACTIVITY OF GROWING ROSE PLANTS ON LEASEHOLD AGRICULTURAL LAND FALLS WI THIN THE DEFINITION OF AGRICULTURAL INCOME AS PER SEC.2(1A) OF THE ACT. IN VIEW OF ALL THESE DECISIO NS, WE ARE INCLINED TO UPHOLD THE ORDER OF THE CIT(APPEALS) AND DISMISS THE APPEAL OF THE REVENUE. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TH E TRIBUNAL, IN ASSESSEES OWN CASE, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE. IN VIEW OF THE ABOVE, IT CANNOT BE SAID THAT THERE IS A MISTAKE APPARENT FROM THE ORDER OF THE TRIBUNAL. - - MA 83/16 4 ACCORDINGLY, THE MISC. APPLICATION IS DISMISSED. 5. IN THE RESULT, THE MISC. APPLICATION OF THE REVE NUE IS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 5 TH OF AUGUST, 2016 AT CHENNAI. SD/- SD/- ( . !'#$ ) ( %&' ( ) * ) ( DUVVURU RL REDDY ) (CHANDRA POOJARI) 6 78 /JUDICIAL MEMBER ! 78/ACCOUNTANT MEMBER %!6 /CHENNAI, A7& /DATED, THE 5 TH AUGUST, 2016. MPO* 7!B C D( EF!D /COPY TO: 1. E($ /APPELLANT 2. /RESPONDENT 3. G (E($ ) /CIT(A) 4. G /CIT 5. DHI$ J /DR 6. I# K /GF.