Mutthalifu Mohammed Gani, CHENNAI V. ITO, CHENNAI

CO 30/CHNY/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6752 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 02-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHA JI P JACOB SRDR
• Keywords: Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A. NO. 136/MDS/2011 (ASSESSMENT YEAR : 2006-07) THE INCOME TAX OFFICER, COMPANY WARD V(1), CHENNAI 600 034. (APPELLANT) V. SHRI MUTHALIFU MOHAMMED GANI, NO.85, EAST MADHA CHURCH STREET, ROYAPURAM, CHENNAI 600 013. PAN : AACPM7834N (RESPONDENT) C.O. NO. 30/MDS/2011 (IN I.T.A. NO. 136/MDS/2011) ASSESSMENT YEAR : 2006-07 SHRI MUTHALIFU MOHAMMED GANI, NO.85, EAST MADHA CHURCH STREET, ROYAPURAM, CHENNAI 600 013. (CROSS OBJECTOR) V. THE INCOME TAX OFFICER, COMPANY WARD V(1), CHENNAI 600 034. (RESPONDENT) REVENUE BY : SHRI SHAJI P. JACOB, S R-DR ASSESSEE BY : SHRI PH ILIP GEORGE, ADVOCATE DATE OF HEARING : 1.12.2011 DATE OF PRONOUNCEMENT : 1.12.2011 I.T.A. NO. 136/MDS/11 C.O. NO. 30/MDS/11 2 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AND CROSS OB JECTION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)- V CHENNAI DATED 1.12.2010 FOR ASSESSMENT YEAR 2006-07. 2. THE REVENUE HAS FILED THE FOLLOWING GROUNDS OF A PPEAL: 2 THE LEARNED CIT(A) HAS ERRED IN ALLOWING THE CLA IM OF THE ASSESSEE AGAINST THE ACTION OF THE A.O. IN ADDI TION OF RS.9,47,368/- MADE ON ACCOUNT OF NON PRODUCTION OF EVIDENCE FOR THE COST OF IMPROVEMENT AS THE SAME WA S THE PURCHASE COST OF THE PROPERTY AND MISTAKENLY TREATED AS COST OF IMPROVEMENT BY THE A.O. 2.1 THE LEARNED CIT(A) HAS FAILED TO NOTE THAT THE PURCH ASE PRICE MENTIONED IN THE DOCUMENTS, RELATING TO THE F. Y 1999-00, IS DIFFERED FROM THE FIGURE(S) CITED BY TH E CIT(A) IN HIS ORDER. 2.2 IT IS SUBMITTED THAT THE ASSESSEE HAS NOT PRODUCED TH E RELEVANT PURCHASE DOCUMENT RELATING TO THE FY 1993-94 (RS.3,58,000/-) BEFORE THE A.O. THUS THE CIT(A) HAS I.T.A. NO. 136/MDS/11 C.O. NO. 30/MDS/11 3 ERRED IN ALLOWING RELIEF BASED ON THE EVIDENCE FURN ISHED BEFORE HIM FOR THE FIRST TIME. IN THE CIRCUMSTANCES , THE CIT(A) OUGHT TO HAVE CALLED FOR A REMAND REPORT FRO M THE A.O. THUS, VIOLATED RULE 46A OF THE IT RULES. 3.1 THE LEARNED CIT(A) HAS ERRED IN GOING BEYOND THE RE TURN OF INCOME AND MADE THE FOLLOWING COMMENT: THE COMPUTATION OF CAPITAL GAINS GIVEN WITH THE RETURN OF INCOME MADE IT CLEAR THAT THERE IS NO LONG TERM CAP ITAL GAIN ON THE TRANSFER OF PROPERTY, SINCE THE APPELLA NT HAS INVESTED RS.44 LAKHS IN A NEW RESIDENTIAL PROPERTY AND CLAIMED EXEMPTIONS U/S 54. AGAINST THAT THE ASSESSEE, HIMSELF, IN HIS RETURN OF INCOME HAD DECLARED LONG T ERM CAPITAL GAIN OF RS.26,27,172/- AND PAID TAX THEREON . 3. AT THE OUTSET, THE LD. A.R. FOR THE ASSESSEE FIL ED PB CONTAINING 100 PAGES AND SUBMITTED THAT THE DOCUMENT AT SL. NO . 8 BEING COPY OF SALE DEED [DOC. NO. 870] DATED 26.4.1993 EXECUTE D BY MRS K.S SALHA BEEVI IN FAVOUR OF SHRI MUTTHALIFU AND SHRI A .R. SEENI ABDUL GANI AT PAGE 36 OF THE PB, WAS NOT FILED BEFORE THE ASSESSING OFFICER AND WAS FILED FOR THE FIRST TIME BEFORE THE LD. CIT (A). BY RELYING ON THIS DOCUMENT, THE LD. CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE I.T.A. NO. 136/MDS/11 C.O. NO. 30/MDS/11 4 ASSESSEE. HE, THEREFORE, CONCEDED THAT THERE WAS V IOLATION OF RULE 46A OF THE IT RULES, 1962 AS CLAIMED BY THE REVENUE IN ITS GROUND OF APPEAL BY THE LD. CIT(A) BY RELYING ON THIS DOCUMEN T AND IN DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. HE PRAYED THA T HE HAD NO OBJECTION IF THE MATTER IS RESTORED TO BACK TO THE FILE OF THE AO TO CONSIDER THIS DOCUMENT WHICH WAS NOT FILED BEFORE H IM DURING THE COURSE OF HEARING AND THEN TO DECIDE THE ISSUE AS P ER LAW. 4. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE , WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION OF THE ISSUE AFTER CONSIDERING THE DOCUMENT WHICH WAS FILED BEFO RE THE LD. CIT(A) AND NOT FILED BEFORE HIM AND ANY OTHER DOCUM ENT WHICH THE ASSESSEE MAY FILE BEFORE HIM IN SUPPORT OF HIS CASE . NEEDLESS TO MENTION THAT HE SHALL ALLOW REASONABLE AND SUFFICIE NT OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE ADJUDICATING THE ISS UE AFRESH. 5. THE ASSESSEE SOUGHT PERMISSION OF THE BENCH TO W ITHDRAW THE CROSS-OBJECTION FILED BY HIM. AN ENDORSEMENT TO TH IS EFFECT HAS I.T.A. NO. 136/MDS/11 C.O. NO. 30/MDS/11 5 BEEN RECORDED IN THE CROSS OBJECTION MEMO FILED BY HIM. IN VIEW OF THIS, THE CROSS OBJECTION IS DISMISSED AS WITHDRAWN . 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES WHEREAS THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSI ON OF HEARING ON 1 ST DECEMBER, 2011. SD/- SD/- (GEORGE MATHAN) (N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 1 ST DECEMBER, 2011. VL COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A), CHENNAI (4) CIT, CHENNAI (5) D.R. (6) GUARD FILE