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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Chandra Poojari, AM & Shri George George K, JM
These appeals are at the instance of the assessee. is directed against order dated 18.03.2015 of the CIT, passed u/s 263 of the I.T.Act, whereas CIT(A)’s order dated 10.10.2018. The relevant assessment year is 2010- 2011.
2. Common issue is raised in these appeals, hence they were heard together and are being disposed of by this consolidate order. First we shall take up for adjudication ITA No.116/Coch/2019. & 464/Coch/2019 2 Sri.Sahadevan K. ITA No.116/Coch/2019
3. There is a delay of 1351 days in filing this appeal. The assessee has filed petition for condonation of delay and also an affidavit stating therein the reasons for not filing the appeal on time. The relevant portion of the affidavit filed by the assessee reads as follow:-
“Shri. Sahadevan. K. Son of G. Krishnan aged 77 residing at Rohini, Aksharaveedhi lane, Pettah, Trivandrum do hereby solemnly affirm that;
I am assessed to tax by the Income tax Officer, Ward-1 (3) Trivandrum. For the A.Y.2010-11 I have filed my return of income disclosing an income of Rs.2,35,177/-and the assessment was completed on 4/03/2013 u/s143(3) read with section 147 without making any adjustments to the returned total income.
The Commissioner of Income tax vide notice dated 5/03/2015 proposed revision u/s 263 and passed the order dated 18/03/2015 setting aside the assessment order for fresh verification on the issue of allowing the exemption u/s 10(37).
The assessing officer assessed the long term capital gain vide order dated 18.01.2016.
4. My income tax representation in connection with the 263 proceedings was handled by CA V.Sunodkumar, a Practicing Chartered Accountant at Trivandrum and I was under the impression that the appeal has been filed against the order under section 263. The fact of the non filing was noticed only when I approached CA Mathew Joseph of Cochin to file the Appeal before the Honorable ITAT against the CIT(A) order confirming the order of & 464/Coch/2019 3 Sri.Sahadevan K. the assessing officer dated 18/01/2016. 5. The appeal against this before the Honorable Tribunal ought to have been filed on or before 17th May, 2015. The non filing was noticed only during the first week of February,2019.
6. There is a delay of three years and 277 days which was caused due to the above fact and there was no willful negligence on my part.
7. The above appeal is filed on valid grounds decided in our favour by various High Courts. In case the delay of three Years and 277 days is not condoned and the appeal taken to records, it will cause irreparable harm, loss and injury to me.
Hence it is humbly submitted in the interest of justice that the delay of three years and 277 days caused in filing the appeal may please be condoned.”
3.1 The assessee has also enclosed an affidavit of the earlier Chartered Accountant, Sri.Sunod Kumar. The relevant portion of the affidavit filed by the earlier CA reads as follow:-
“I, CA Sunid kumar, aged 46, S/o Velayudhan Pillai residing at TC 41/2067(1), Indraprastham, Kalippankulam Road, Manacaud P.O. Thiruvananthapuram-695 009 states as follows:
I am a Practicing Chartered Accountant and I have been handling the Income Tax cases pertaining to K.Sahadevan, Rohini, Akshraveedhi Lane, Pettah, Trivandrum for the past five years.
I had represented Sri.K.Sahadevan in the Income Tax revision proceedings relating to the A.Y.2010-11. The revision order under section 263 was handed over to me by the assessee. I was under the impression that & 464/Coch/2019 4 Sri.Sahadevan K. the appeal has to be filed only against the assessment order giving effect to the revision order. The assessee was under the impression that I had already filed the appeal. The non filing of the appeal was noticed only when the assessee enquired about the status of the case.
The non filing was due to an inadvertent omission on my part in properly understanding the provisions of the Act.”
3.2 The learned AR relied on the affidavit filed by the assessee and the earlier Chartered Accountant and prayed that the delay in filing the appeal may be condoned and the matter may be decided on merits.
3.3 The learned Departmental Representative present was duly heard.
3.4 We have heard the rival submissions and perused the material on record. The assessee has filed an affidavit stating therein that his earlier Chartered Accountant who was handling the proceedings u/s 263 of the I.T.Act, had advised him to file an appeal only against the assessment order passed pursuant to the order of revision u/s 263 of the I.T.Act. It was submitted that the delay in filing the appeal had occurred out of above bonafides mistake and same be condoned. In support of the assessee’s affidavit, the Chartered Accountant who had dealt with the 263 proceedings has also filed an affidavit stating therein that he was under the bonafides impression that the appeal had to be filed only against the assessment order giving effect to the revision
ITA No.116 & 464/Coch/2019 5 Sri.Sahadevan K. order. We noticed that on identical facts, the Hon’ble High Court of Kerala in the case of Dr.Damodar Rout v. CIT in (judgment dated 20th March, 2019) had reversed the Tribunal’s order. In the case of Dr.Damodar Rout (supra) the ITAT had dismissed the appeal in limine on the ground of delay. The Hon’ble High Court condoned the delay in filing the appeal and directed the ITAT to consider the issue on merits. In the case considered by the Hon’ble High Court, the reason stated for condonation of delay was identical to the reasons stated in this case for condonation of delay, namely, assessee was under the bonafides impression that he needs to file an appeal only against the assessment order giving effect to the 263 order and later realising that an appeal needs to be filed as against 263 order, an appeal was filed belatedly and hence prayed for the condonation of delay. In the instant case, the assessee was given legal advice that he needs to file an appeal only against the assessment order giving effect to the 263 order and on receipt of the correct legal advice this appeal was filed belatedly, against 263 order. Therefore, in the light of affidavit of the assessee and his earlier Chartered Accountant and the judgment of the Hon’ble High Court, we condone the delay of filing this appeal before the Tribunal and proceed to dispose of the appeal on merits.
Brief facts of the case are as follows: The assessee is an individual. For the assessment year 2010-2011, the assessee had filed return of income declaring total income of Rs.2,35,130 comprising of income under the & 464/Coch/2019 6 Sri.Sahadevan K. head salary. The assessee’s land was compulsorily acquired in the assessment year 2008-2009 by the Government of Kerala for Trivandrum Airport Authority. The assessee had filed petition before the Sub Court for enhancement of compensation. A sum of Rs.34,57,320 was awarded as enhanced compensation. The enhanced compensation was paid after withholding tax of Rs.4,41,767 in the relevant assessment year, viz., 2010-2011. The assessee claimed that the land acquired is an agricultural land and the same being compulsorily acquired, was exempt u/s 10(37) of the I.T.Act. Therefore, no capital gains was computed and declared in the return of income in respect of compensation awarded in first instance or in respect of enhanced compensation received in the concerned assessment year 2010-2011. The return filed was processed u/s 143(1) of the I.T.Act and refund was granted for the TDS.
The assessment was reopened for the purpose of non- production of proof for the claim of agricultural nature of the property acquired in assessment year 2008-2009 for which enhanced compensation was received in the concerned assessment year. During the course of the assessment proceedings, the assessee produced a certificate from the Agricultural Officer, who is having jurisdiction over the area to certify that the land acquired was agricultural in nature. The reassessment was completed u/s 143(3) r.w.s. 148 of the I.T.Act vide order dated 04.03.2013 by accepting the claim of exemption u/s 10(37) of the I.T.Act. & 464/Coch/2019 7 Sri.Sahadevan K.
Subsequently, notice u/s 263 of the I.T.Act was issued to the assessee on 05.03.2015 stating that the Assessing Officer while granting exemption u/s 10(37) of the I.T.Act, failed to notice that the land acquired compulsorily was not situated in an area referred to in Item (a) or item (b) of sub clause (iii) of clause (14) of section 2 of theI.T.Act, but situated within the limits of Trivandrum Municipal Corporation, and hence, capital gain could not be exempted u/s 10(37) of the I.T.Act. However, during the course of revisionary proceedings u/s 263 of the I.T.Act, the CIT was of the view that the impugned land which was acquired in assessment year 2008-2009, the assessee had failed to prove that it has been utilized for agricultural purposes immediately preceding the date of compulsorily acquisition. The CIT referred to the survey number in the official website of Registration Department of the State of Kerala and concluded that the impugned land was a residential property and hence no exemption can be granted on the basis of a certificate issued by the Agricultural Officer. Accordingly, the objections raised by the assessee during the course of revisionary proceedings were rejected and order was passed u/s 263 of the I.T.Act directing the Assessing Officer to re-examine the issue of allowing exemption u/s 10(37) of the I.T.Act.
Aggrieved by the order of the CIT passed u/s 263 of the I.T.Act, the assessee has filed this appeal before the Tribunal. & 464/Coch/2019 8 Sri.Sahadevan K. The learned Counsel submitted that the show cause notice u/s 263 of the I.T.Act was issued for the following reasons:-
“(i) While allowing the exemption the AO had failed to notice that the acquired property was not situated in an area referred to item (a) or item (b) of sub clause (iii) of clause (14) of section 2 of the Act.
(ii) The AO had failed to notice that since the acquired property was situated within the limits of Trivandrum Municipal Corporation, the capital gains could not be exempted u/s 10(37).”
7.1 The learned Counsel submitted that the provisions of section 10(37) of the I.T.Act applies only in the case of a property situated in an area referred to item (a) or item (b) of sub-clause (iii) of clause (14) of section 2 of the I.T.Act. The aforesaid item (a) refers to a property situated in a Municipal Corporation. The property acquired in this case is in Municipal Corporation and, therefore, the AO did not fail to notice this fact while granting exemption. It was submitted that if the property is not situated in an area referred to item (a) or item (b) of sub-clause (iii) of clause (14) of section 2 of the Act as alleged in the notice dated 05.03.2015 it will not come under “Capital Asset” for which the compensation received on acquisition is totally exempt without the benefit of section 10(37) of the I.T.Act. On merits it was submitted that the property acquired is agricultural land on which the assessee had carried on agricultural operation till the date of acquisition, and therefore, the order of assessment set aside by the CIT is not an erroneous order nor prejudicial to the & 464/Coch/2019 9 Sri.Sahadevan K. interest of the revenue. In this regard the learned AR had placed on record the original FIR in Malayalam and the free English translation of the FIR during the time of acquisition of the impugned property.
7.2 The learned Departmental Representative present strongly supported the order of the CIT.
We have heard the rival submissions and perused the material on record. The assessee is a pensioner, now aged about 77 years. The assessee owned 15.35 Ares of land in survey No.186/7 at Patton Village, which is situated within the limit of Trivandrum Municipal Corporation. Out of this land owned by the assessee, 2.2 Ares (5.5 cent) was compulsorily acquired in assessment year 2008-2009 by the Government of Kerala for development of Trivandrum Airport. The assessee filed petition before the Sub Court Trivandrum for enhancement of compensation. The enhanced compensation of Rs.34,57,320 was awarded and the same was paid to the assessee after withholding tax during the relevant assessment year. According to the assessee, the land acquired is an agricultural land and the same being compulsorily acquired, was exempted from long term capital gain u/s 10(37) of the I.T.Act. In the revisionary order passed u/s 263 of the I.T.Act, the CIT set aside the reassessment order directing the A.O. to consider the claim of exemption u/s 10(37) of the I.T.Act, afresh. According to the CIT, it cannot be said that the impugned land is an agricultural land & 464/Coch/2019 10 Sri.Sahadevan K. and agricultural operation was carried on prior to its acquisition. Therefore, the only matter to be examined is whether the impugned land is an agricultural land or not or any agricultural operation was carried on the land prior to the date of its acquisition. In the assessment order passed by the AO u/s 143(3) r.w.s. 148 of the I.T.Act it has been held that the property acquired is agricultural land in which the assessee had carried out agricultural operation till the date of acquisition in 2007-08. This assessment order was set aside by the CIT. The CIT was of the view that the following mistakes in the aforesaid finding of the AO.
(i) The land situated in the survey number was described as residential plots without vehicular access in the official website of Registration Department of the state of Kerala. ii) The AO had relied on the certificate of Agriculture Officer, Krishi Bhavan without any proper investigation. More over it is in contradiction to the classification of land in the Official Website. iii) The certificate of the Agriculture officer did not testify anything about the agriculture operation or the nature of land. iv) Merely because trees were present would not render the plot agricultural.
& 464/Coch/2019 11 Sri.Sahadevan K. v) Report of the Special Tahsildar relied on by the Agriculture Officer was not furnished by the assessee. vi) No proper enquiry was conducted by the AO with regard to the claim of the assessee before reaching the conclusion that the acquired land is agriculture and the capital gain arisen from the transfer is exempt u/s 10(37) of the Act.
8.1 We are of the view that the certificate of the Agriculture Officer cannot be ignored as he is an officer working under the Agricultural Ministry of the State of Kerala in the area in which the land in question situate. He is, therefore, competent to certify utilisation of land under his area of jurisdiction for agriculture purposes. The information in the official website of Registration department is only a general information relating to the whole land situated in a particular survey number and therefore only an indication and not conclusive evidence for utilisation of land for agriculture purpose. It doesn't mean that agriculture operation is not carried out or cannot be carried out in any of the plot of land situated in that survey number.
8.2 The certificate of the Agriculture Officer was based on the report of the Spl. Tahsildar (L.A) in LAC No 15/05 dated 03/04/2007 in which it had been reported that there are eight coconut trees of different age and other trees like areca nut, amla etc. were present at the time of acquiring the land. Coconut, areca nut, amla and mango are agriculture produce. & 464/Coch/2019 12 Sri.Sahadevan K. Hence the land in which those trees are cultivated is agricultural land. Once eight coconut trees are planted in the small piece of land there is no scope for further plantation in every year on account of the long life time of already planted trees, period of availability of its crops and lack of space for further cultivation. The activities carried out in such situations are cleaning the area, removal of grass and shrubs, apply manure, water etc and plucking and colleting the crops. All these activities amount to agricultural activities and are being carried out by the assessee for so many years immediately preceding the date of transfer. A copy of the Report of the Spl. Tahsildar (L.A) in LAC No 15/05 dated 03/04/2007 is placed on record.
8.3 The assessing officer had made local enquiries during the course of assessment proceedings to know whether the land was used for agricultural purpose before the date of transfer and satisfied himself about its utilisation of agriculture purpose and this fact was mentioned in the order. The assessment was reopened in 2012 where as the transfer took place in 2007. The only possible method which can be adopted at the time of assessment other than the certificate of the Agriculture Officer to see whether the land was used for agricultural purpose, is to conduct local enquiries. Such enquiry was conducted by the AO as evident from the assessment order. & 464/Coch/2019 13 Sri.Sahadevan K. 8.4 The land in question is classified as "Purayidam" in "Thandeperu Register" of the Revenue records. It doesn't mean that agricultural operation could not be carried out in the said land. The Agriculture Officer and the Spl. Tahsildar (L.A) had certified the presence of agricultural plantation in the land. The AO, in the course of assessment proceedings, had conducted enquiries which is possible at that point of time in order to find out the utilisation of the land for agriculture purpose for two years immediately preceding the date of transfer and found that the land was used for agriculture purpose till it was acquired in 2007. Moreover the land acquired was a small piece of land. It formed part of 15.35 ares (about42 cents) of land owned by the assessee in sy.no. 186/7.
8.5 Jurisdiction for setting aside the order of the AO by invoking revisionary power u/s 263 of the Act could not be assumed by the Commissioner of Income-tax (CIT) in this case. This is because the issues considered by the CIT for directing to conduct further inquiries in this respect were subject matter of inquiry by the AO and the AO had accepted the assessee’s contentions and formed a possible view in light of the facts of the case.
8.6 The Tribunal in the case of K Rajendran Vs ITO Ward 1(2) TVM [ITA 82/COCH /2017, order dated 04/07/2017] had held on the basis of certificate of Agriculture Officer that 4.4 ares of land acquired for Trivandrum air port was agriculture
ITA No.116 & 464/Coch/2019 14 Sri.Sahadevan K. land in which agriculture operation was carried out till the date of acquisition and, therefore, the capital gains arising from the transfer was exempt u/s 10(37) of the Act. Further, in the case of ITO, Ward 2(1) Tvm v. G.S.Lekha in the Third Member of Cochin Bench of the Tribunal (order dated 29.03.2019), on identical facts, held that assessee was entitled to deduction u/s 10(37) of the I.T.Act.
8.7 In the light of the above reasoning and the judicial pronouncements, cited supra, the order of the CIT passed u/s 263 of the I.T.Act is set aside. It is ordered accordingly.
In the result, the appeal filed by the assessee in is allowed.
There is a delay of 215 days in filing this appeal. The assessee has filed a petition and also an affidavit stating therein the reasons for delay in filing the appeal. We have perused the reasons stated for filing the appeal belatedly. We find that there is sufficient cause for the delayed filing of the appeal and no latches can be attributed to the assessee. Hence, we condone the delay in filing this appeal and proceed to dispose of the same on merits.
This appeal arises out of consequential assessment order passed pursuant to order u/s 263 of the I.T.Act. Since we have already set aside the revisionary order passed u/s & 464/Coch/2019 15 Sri.Sahadevan K. 263 of the I.T.Act, this appeal arising out of assessment order pursuant to order u/s 263 of the I.T.Act has lost its substratum and same is dismissed as infructuous. It is ordered accordingly.
In the result, the appeal filed by the assessee in is dismissed.
Order pronounced on this 04th day of November, 2019.