The ITO Ward-1 Eluru, Eluru v. Sri Jasti Mallkarjunudu HUF, Eluru

ITA 260/VIZ/2011 | 2008-2009
Pronouncement Date: 09-09-2011 | Result: Dismissed

Appeal Details

RSA Number 26025314 RSA 2011
Assessee PAN AACHJ3368Q
Bench Visakhapatnam
Appeal Number ITA 260/VIZ/2011
Duration Of Justice 1 month(s) 3 day(s)
Appellant The ITO Ward-1 Eluru, Eluru
Respondent Sri Jasti Mallkarjunudu HUF, Eluru
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 09-09-2011
Assessment Year 2008-2009
Appeal Filed On 05-08-2011
Judgment Text
ITA NOS 260 AND 261 OF 2011 JASTI MALLIKARJUNUDU HU F ELURU & OTHERS PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO.260/VIZAG/2011 ASSESSMENT YEAR: 2008-09 ITO WARD-1 ELURU VS. JASTI MALLIKARJUNUDU HUF ELURU (APPELLANT) (RESPONDENT) PAN NO AACHJ 3368 Q ITA NO.261/VIZAG/2011 ASSESSMENT YEAR: 2008-09 ITO WARD-1 ELURU VS. JASTI VEERA SAMPURNAMMA C/O JASTI MALLIKARJUNUDU SONS ELURU (APPELLANT) (RESPONDENT) PAN NO AAQPJ 9684 D DEPARTMENT BY: SHRI TH. LUCAS PETER CIT (DR) ASSESSEE BY: SHRI K. SOMA SUNDERA SAI CA DATE OF HEARING: 09/09/2011 DATE OF PRONOUNCEMENT: 09/09/2011 ORDER PER BENCH: BOTH THE APPEALS OF THE REVENUE ARE DIRECTED AGAINS T THE ORDERS PASSED BY LEARNED CIT (A) RAJAHMUNDRY IN THE RESPEC TIVE HANDS OF THE ASSESSEES HEREIN AND THEY RELATE TO THE ASSESSMENT YEAR 2008-09. SINCE ISSUE URGED IN THESE TWO APPEALS ARE IDENTICAL IN N ATURE THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER. 2. ALL THE GROUNDS RAISED BY THE REVENUE GIVE RISE TO A SOLITARY ISSUE VIZ. WHETHER THE LEARNED CIT (A) IS JUSTIFIED IN HOLDING THAT THE AGRICULTURAL LANDS SOLD BY THE ASSESSEES HEREIN ARE NOT CAPITAL ASSET IN TERMS OF SECTION 2(14)(III) OF THE ACT. ITA NOS 260 AND 261 OF 2011 JASTI MALLIKARJUNUDU HU F ELURU & OTHERS PAGE 2 OF 4 3. THE FACTS RELATING TO THE ISSUE ARE STATED IN BR IEF. BOTH THE ASSESSEES HEREIN HAVE SOLD THEIR RESPECTIVE AGRICULTURAL LAND SITUATED AT KAPULUPPADA VILLAGE BHEEMUNIPATNAM MANDAL DURING THE YEAR UNDE R CONSIDERATION. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH E SAID LANDS ARE SITUATED BEYOND 8 KMS FROM THE LIMITS OF ERSTWHILE VISAKHAPA TNAM MUNICIPAL CORPORATION. THE ASSESSEES HEREIN CLAIMED THAT THE IMPUGNED AGRICULTURAL LANDS DO NOT FALL IN THE CATEGORY OF CAPITAL ASSET AS THEY WERE LOCATED BEYOND 8 KMS FROM THE LIMITS OF THE VISAKHAPATNAM M UNICIPAL CORPORATION SPECIFIED IN THE NOTIFICATION ISSUED BY THE CENTRAL GOVERNMENT FOR THE PURPOSES OF SEC. 2(14)(III) OF THE ACT. HOWEVER T HE ASSESSING OFFICER HELD THAT THE IMPUGNED LANDS ARE TO BE CATEGORIZED AS CA PITAL ASSET SINCE THEY ARE LOCATED WITHIN 8 KMS FROM THE LIMITS OF ENLARGE D GREATER VISAKHAPATNAM MUNICIPAL CORPORATION. ACCORDINGLY HE ASSESSED THE CAPITAL GAINS ARISING ON SALE OF IMPUGNED LANDS IN THE HANDS OF THE ASSESSEE S HEREIN. IN THE APPEALS FILED BY THEM BEFORE THE LEARNED CIT (A) THE FIRST APPELLATE AUTHORITY ALLOWED THE APPEALS BY FOLLOWING THE DECISION OF HO N'BLE ITAT VISAKHAPATNAM PASSED ON 29-10-2010 IN THE HANDS OF JASTI VAYUNANDANA RAO AND OTHERS ON IDENTICAL ISSUE. AGGRIEVED THE R EVENUE IS IN APPEALS BEFORE US CHALLENGING THE SAID DECISION OF LEARNED CIT(A). 4. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . WE NOTICE THAT THE LEARNED CIT (A) HAS FOLLOWED THE ORDER PASSED B Y THIS BENCH ON THE IDENTICAL ISSUE IN THE CASE REFERRED SUPRA. FOR THE SAKE OF CONVENIENCE WE EXTRACT BELOW THE RELEVANT OBSERVATIONS MADE BY THE LEARNED CIT (A): 3. AGGRIEVED BY THE ABOVE ORDER THE DEPARTMENT WE NT IN APPEAL BEFORE THE HON'BLE ITAT VISAKHAPATNAM. THE H ON'BLE ITAT VISAKHAPATNAM VIDE CONSOLIDATED ORDER DT. 29.1 0.2010 IN THE CASE OF JASTI VAYUNANDANA RAO AND OTHERS HEL D AS FOLLOWS: HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREF UL PERUSAL OF THE RECORD WE FIND THAT UNDISPUTEDLY TH E IMPUGNED ITA NOS 260 AND 261 OF 2011 JASTI MALLIKARJUNUDU HU F ELURU & OTHERS PAGE 3 OF 4 LAND WAS INITIALLY SITUATED BEYOND THE 8 KMS FROM T HE MUNICIPALITY LIMIT OF VISAKHAPATNAM MUNICIPAL CORPO RATION. BUT LATER ON ON INCORPORATION OF GREATER VISAKHAPA TNAM MUNICIPAL CORPORATION IT FALLS WITHIN THE 8 KMS FR OM THE MUNICIPAL LIMIT. BUT NO NOTIFICATION AS REQUESTED U NDER SECTION 2(14)(III)(B) OF THE I.T. ACT WAS ISSUED IN THE OFFI CIAL GAZETTE BY THE CENTRAL GOVT. THIS ISSUE WAS EXAMINED BY US IN THE CASE OF SMT. C. GIRIJA VS. ACIT (SUPRA) IN WHICH WE HAVE GIVEN CATEGORICAL FINDING THAT TO BRING A LAND WITH IN THE PURVIEW OF CLAUSE (B) OF SECTION 2(14)(III) THE CE NTRAL GOVT. IS REQUIRED TO ISSUE A NOTIFICATION IN THE OFFICIAL GA ZETTE AND WITHOUT A NOTIFICATION A LAND FALLS WITHIN 8 KMS F ROM THE LOCAL LIMIT OF ANY MUNICIPALITY WOULD NOT CEASE TO BE AN AGRICULTURAL LAND. 4. WITH THE ABOVE COMMENTS THE HON'BLE ITAT CONFIR MED THE ORDER OF CIT (A). THE FACTS OF THE PRESENT CASE ARE SIMILAR AND THE LAND IS THE CONTINUOUS LAND TO THE ONE IN QUEST ION IN THE ABOVE APPEALS. THUS RESPECTFULLY FOLLOWING THE HON 'BLE ITATS ORDER I HOLD THAT THE LAND IN QUESTION IS A RURAL A GRICULTURAL LAND AND DOESNT COME WITHIN THE PURVIEW OF CAPITAL ASSET AS ENVISAGED IN SECTION 2(14)(III) OF I.T. ACT. HENCE THE SALE PROCEEDS OF THE ABOVE LAND DO NOT COME UNDER THE PU RVIEW OF CAPITAL GAINS. WITH THESE COMMENTS I DIRECT THE AS SESSING OFFICER TO DELETE THE ADDITION MADE TREATING THE LA ND AS CAPITAL ASSET. 5. SINCE THE LEARNED CIT (A) HAS RENDERED HIS DECIS ION BY FOLLOWING THE ORDERS PASSED BY THIS BENCH OF TRIBUNAL WE DO NOT FIND ANY REASON TO INTERFERE WITH HIS ORDERS. 6. ACCORDINGLY WE DISMISS THE APPEALS OF THE REVENU E. PRONOUNCED IN THE OPEN COURT ON 9 TH SEPTEMBER 2011. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE:09-09-2011 ITA NOS 260 AND 261 OF 2011 JASTI MALLIKARJUNUDU HU F ELURU & OTHERS PAGE 4 OF 4 COPY TO 1 SHRI JASTI MALLIKARJUNUDU (HUF) D.NO. 5 - 22 CANAL ROAD ELURU 2 SMT.JASTI VEERA SAMPURNAMMA C/O JASTI MALLIKARJU NUJDU SONS D.NO.5-22 CANAL ROAD ELURU 3 4. 5. THE ITO WARD-1 ELURU THE CIT RAJAHMUNDRY THE CIT(A) RAJAHMUNDRY 6 THE DR ITAT VISAKHAPATNAM. 7 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM