Principal Commissioner Of Income Tax 2 v. V.k.subramaniam

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HON'BLE MR.JUSTICE HULUVADI G. RAMESHANDTHE HON'BLE MR.JUSTICE K.KALYANASUNDARAM Tax Case Appeal No.433 of 2018 Principal Commissioner of Income Tax 2No.63, Race Course RoadCoimbatore. ... Appellant/RespondentVs. V.K.Subramaniam ... Respondent/Appellant Tax Case Appeal filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax AppellateTribunal, Madras 'C' Bench, Chennai, dated 17.01.2018 in ITANo.1853/Mds/2017, preferred against the order dated 15/6/2017made in Appeal No.25/2016-17 in the Office of the Commissionerof Income Tax (Appeals)-3, Coimbatore preferred against theorder dated 31.3.2016 for the Assessment Year 2013-2014 in PANNO.DUSPS7433E on the office of Income Tax Officer(i/c) Ward 2(2)Erode. For Appellant : Mr.T.R.Senthil Kumar Standing Counsel J U D G M E N T (Delivered by Huluvadi G.Ramesh,J) This Tax Case Appeal has been filed by the Revenue callingin question the correctness of the order passed by the IncomeTax Appellate Tribunal, Madras Madras 'C' Bench, Chennai, dated17.01.2018 in ITA No.1853/Mds/2017, by raising the followingsubstantial questions of law: "(i) Whether the Appellate Tribunal was rightin holding that the land in question, which wasadmittedly non-agricultural land in the form ofpond, was an agricultural land within the meaning ofSection 2(14)(ii) of the Income Tax Act, 1961 andtherefore on sale thereof, tax on capital gains https://hcservices.ecourts.gov.in/hcservices/ resulting therefrom was not leviable, for the merereason that the land was registered as agriculturalland in the revenue records? (ii) Whether the Appellate Tribunal was rightin allowing the assessee's ground which was analternate claim made before the CIT(A) thusrendering that, the asset in question was anagricultural land, without appreciating that theassessee himself in his returned income had treatedthe asset as an asset not being an agriculturalland? (iii) Whether the ITAT was justified in holdingthat admittedly the land was an agricultural landwithout appreciating the decision of the Apex Courtin 204 ITR 631 Sarifabibi Mohammed Ibrahim and otherand that of the jurisdictional ITAT ChemmancherryEstates Co. wherein it was held that the land is notagricultural, even though it was entered in therevenue record as agricultural land? (iv) Whether the ITAT was correct in allowingthe alternative claim made by the assessee beforethe CIT(A) by holding that the Revenue had not beenable to dislodge the facts or evidence produced bythe assessee, when the same were not produced beforethe Assessing Officer? (v) Whether the ITAT was justified in renderinga perverse finding holding that the transferredasset is not subject to capital gain when theassessee himself has admitted the transfer tocapital gain as the land in question was in the formof pond and was not a plain agricultural land andthat the photographs relied upon by the ITAT showingthat the land was plain agricultural land incontrary to the material on record as the assesseehimself had admitted the land was in the form offond? And (vi) Whether on the facts and circumstances ofthe case, the ITAT could rely on the photo and holdthe land to be agricultural land thus rendering aperverse finding?" 2. When the matter is taken up for admission, the learnedStanding Counsel brought to our notice the Circular instructionissued by the Central Board of Direct Taxes vide Circular https://hcservices.ecourts.gov.in/hcservices/ No.3/2018 dated 11.7.2018 wherein it is stipulated that appealsshall not be filed/pursued by the Department before the HighCourt in cases where the tax effect does not exceed Rs.50 lakhs. (vi) Whether on the facts and circumstances ofthe case, the ITAT could rely on the photo and holdthe land to be agricultural land thus rendering aperverse finding?" 2. When the matter is taken up for admission, the learnedStanding Counsel brought to our notice the Circular instructionissued by the Central Board of Direct Taxes vide Circular https://hcservices.ecourts.gov.in/hcservices/ No.3/2018 dated 11.7.2018 wherein it is stipulated that appealsshall not be filed/pursued by the Department before the HighCourt in cases where the tax effect does not exceed Rs.50 lakhs. 3. In the instant case, the tax effect is less than themonetary limit imposed and therefore, the appeal is dismissed asnot pressed, preserving the substantial questions of law fordetermination in an appropriate case. Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrarkpl1.The Registrar, Income Tax Appellate Tribunal Madras 'C' Bench, Chennai.2.The Commissioner of Income Tax (Appeals)-3, Coimbatore.3.The Income Tax Officer, (i/c) Ward 2(2), Erode.+1cc to Mr.T.R.Senthilkumar, Advocate Sr.55930TCA No.433 of 2018. rsi[co]srg 18/09/2018