Chandra Sahasranamam, W/o. Late M G Sahasranamam, CHENNAI V. ITO, CHENNAI

CO 56/CHNY/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8658 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-06-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 02-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B GOPALAKRISHNAN
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI. BEFORE DR.O.K. NARAYANAN, VICE-PRESIDENT & SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 373/MDS/2013 ASSESSMENT YEAR : 2005-06 & C.O. NO. 56MDS/2013 [IN ITA NO. 373/MDS/2013] THE INCOME TAX OFFICER, SALARY WARD II(4), 4 TH FLOOR, R.NO. 423 E, NO. 21, M.G. ROAD, CHENNAI 600 034. VS. SMT. CHANDRA SAHASRANAMAM, L/H OF LATE MG SAHASRANAMAM, NO. 9, II CROSS STREET, RV NAGAR, ANNA NAGAR, CHENNAI 600 102. [PAN: ABCPS3691L] (APPELLANT) (RESPONDENT/ CROSS OBJECTOR) APPELLANT BY : SHRI GURU BASHYAM, JCIT RESPONDENT BY : SHRI B. GOPALAKRISHNAN, C.A. DATE OF HEARING : 24.06.2013 DATE OF PRONOUNCEMENT : 24.06.2013 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE AND CROSS OBJECTION FILE D BY THE ASSESSEE, EMANATE FROM THE ORDER OF THE COMMISSIONE R OF INCOME TAX (APPEALS) IV, CHENNAI DATED 30.10.2012 RELEVANT TO THE ASSESSMENT YEAR 2005-06. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL, FILED RETURN DECLARING INCOME OF ` .1,36,508/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER NOTICED I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.373 373373 373/M/ /M/ /M/ /M/1 11 13 33 3 & && & C.O. NO. C.O. NO. C.O. NO. C.O. NO. 56 5656 56/MDS/13 /MDS/13 /MDS/13 /MDS/13 2 THAT THE ASSESSEE HAS SOLD HIS IMMOVABLE PROPERTY F OR ` .45.00 LAKHS BUT COMPUTED THE CAPITAL GAINS BY ADOPTING THE SALE CON SIDERATION AT ` .22,50,000/- ONLY. THEREAFTER, THE ASSESSING OFFICE R HAS COMPLETED ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE A CT, ASSESSED THE INCOME OF ASSESSEE AT ` .23,58,588/- AND ALSO ASSESSED TAXABLE LONG TERM CA PITAL GAINS AT ` .22,10,000/-. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFOR E THE LD. CIT(APPEALS) AND IT WAS SUBMITTED BEFORE THE LD. CIT(APPEALS) TH AT THE PROPERTY SOLD WAS A JOINT PROPERTY AND THE SALE CONSIDERATION AMOUNTING TO ` .45.00 LAKHS WAS SHARED BY THE ASSESSEE AND HIS BROTHER SHRI MG JAYA RAMAN AS PER ORALLY PARTITIONED ON 12.08.1994. AFTER CONSIDERING THE SU BMISSIONS OF ASSESSEE AND ALSO BY CONSIDERING THE SALE DEED DATED 15.01.2 005, THE LD. CIT(APPEALS) HAS OBSERVED THAT THE SALE DEED CLEARL Y SHOWS THAT THE PROPERTY WAS A JOINT PROPERTY OF THE ASSESSEE AND H IS BROTHER. IT WAS PARTITIONED IN THE YEAR 1994 ORALLY. THE PROPERTY W AS JOINTLY SOLD BY THE ASSESSEE AND HIS BROTHER AND ALSO RECEIVED THE CONS IDERATION BY THE ASSESSEE AND HIS BROTHER EQUALLY FROM THE BUYER OF THE PROPERTY AS SPECIFIED IN THE SALE DEED. ALL THESE FACTS CLEARLY INDICATE THAT THE PROPERTY WAS A JOINT PROPERTY AND ORALLY PARTITIONED BY THE ASSESSEE AND HIS BROTHER. THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REJECTING TH E CLAIM OF ASSESSEE ON THE GROUND THAT THE PARTITION WAS NOT REGISTERED. ACCOR DING TO THE LD. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.373 373373 373/M/ /M/ /M/ /M/1 11 13 33 3 & && & C.O. NO. C.O. NO. C.O. NO. C.O. NO. 56 5656 56/MDS/13 /MDS/13 /MDS/13 /MDS/13 3 CIT(APPEALS), THE PARTITION OF THE JOINT PROPERTIES ARE NOT REQUIRED TO BE REGISTERED. IT IS FOR THE MEMBERS OF THE JOINT FAMI LY TO DECIDE WHETHER TO GO FOR REGISTRATION OF THE PARTITION OF THE PROPERTIES OR NOT. THE BUYER OF THE PROPERTY HAS PAID 50% OF SALE CONSIDERATION TO THE ASSESSEE AND THE BALANCE OF 50% PAYMENT TO ASSESSEES BROTHER SEPARA TELY. THEREFORE, THE LD. CIT(APPEALS) WAS OF THE OPINION THAT THE ENTIRE SAL E CONSIDERATION OF ` .45.00 LAKHS, OUT OF WHICH, 50% OF THE SALE CONSIDERATION I.E. ` .22.50 LAKHS IS THE SHARE OF THE ASSESSEE. WITH THE ABOVE OBSERVATION, THE LD. CIT(APPEALS) ALLOWED THE APPEAL FILED BY THE ASSESSEE. 4. ON BEING AGGRIEVED, THE REVENUE CARRIED THE MAT TER BEFORE THE TRIBUNAL. 5. THE LD. DR SUPPORTED THE ORDER PASSED BY THE AS SESSING OFFICER. 6. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(APPEALS). 7. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND ALSO HAVE GONE THROUGH THE ORDERS OF AUTHORITIE S BELOW. THE ASSESSEE LATE MG SAHASRANAMAN REPRESENTED BY L/H SMT. CHANDR A SAHASRANAMAM WAS PURCHASED THE PROPERTY WAY BACK IN 1973. SUBSEQ UENTLY, THE ASSESSEE LATE MG SAHASRANAMAM AND HIS BROTHER SHRI MG JAYARA MAN CONSTRUCTED A HOUSE BY ENTERED INTO AN ORAL PARTITION. SUBSEQUENT LY, ON 05.01.2005, THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.373 373373 373/M/ /M/ /M/ /M/1 11 13 33 3 & && & C.O. NO. C.O. NO. C.O. NO. C.O. NO. 56 5656 56/MDS/13 /MDS/13 /MDS/13 /MDS/13 4 ASSESSEE AND HIS BROTHER HAVE SOLD THE PROPERTY TO ONE SHRI DORAISAMY REDDY FOR A SALE CONSIDERATION OF ` .45.00 LAKHS. IT IS EVIDENT FROM THE SALE DEED AS EXTRACTED BY THE LD. CIT(APPEALS) THAT THE ASSESSEE LATE MG SAHASANAMAM AND HIS BROTHER SHRI MG JAYARAMAN JOINT LY EXECUTED THE SALE DEED. ACCORDING TO THE ASSESSEE, THE PROPERTY IS A JOINT PROPERTY AND THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE AND HIS BROTHER WAS EQUALLY SHARED AND ACCORDINGLY THE ASSESSEE HAS CALCULATED THE CAPITAL GAINS. THE ONLY OBJECTION RAISED BY THE ASSESSING OFFICER WAS THAT THE PROPERTY WAS AN IMMOVABLE PROPERTY AND THEREFORE, ORAL PARTITION IS NOT ACCEPTABLE. THE LD. CIT(APPEALS) HAS OBSERVED THAT IT IS NOT NECESSARY THAT PARTITION SHOULD BE A REGISTERED ONE. THE ASSESSEE HIS BROTHER JOINTLY CO NSTRUCTED THE HOUSE AND THEY JOINTLY EXECUTED THE SALE DEED AND BOTH OF THE M SUBMITTED THAT THEY HAVE ENTERED INTO AN ORAL PARTITION AND ACCORDINGLY , THE SALE CONSIDERATION WAS EQUALLY SHARED BY THE ASSESSEE AND HIS BROTHER. ONCE THERE IS AN ORAL AGREEMENT BETWEEN THE PARTIES, IT CANNOT BE DISBELI EVED WITHOUT ANY EVIDENCE. IN THE PRESENT CASE, WHEN THE JOINT SELLE RS OF THE PROPERTY ARE BROTHERS, WITHOUT ANY DISPUTE, THE SALE CONSIDERATI ON HAS BEEN EQUALLY DIVIDED BETWEEN THEM, WE FIND NO JUSTIFICATION FOR THE OBJECTION RAISED BY THE ASSESSING OFFICER THAT THE ORAL PARTITION WAS NOT R EGISTERED, WHICH IS NOT ESSENTIALLY REQUIRED. UNDER THE ABOVE FACTS AND CIR CUMSTANCES, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A PPEALS) AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.373 373373 373/M/ /M/ /M/ /M/1 11 13 33 3 & && & C.O. NO. C.O. NO. C.O. NO. C.O. NO. 56 5656 56/MDS/13 /MDS/13 /MDS/13 /MDS/13 5 8. THE CROSS OBJECTION FILED BY THE ASSESSEE IS ON LY TO SUPPORT THE ORDER PASSED BY THE LEARNED CIT(APPEALS). IN VIEW OF OUR DECISION IN THE APPEAL FILED BY THE REVENUE IN I.T.A. NO. 373/MDS/2013 ABO VE, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND TH E SAME IS DISMISSED AS INFRUCTUOUS. 9. IN THE RESULT, BOTH THE APPEAL FILED BY THE REVE NUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 24 TH OF JUNE, 2013 AT CHENNAI. SD/ - SD/ - (DR. O.K. NARAYANAN) VICE-PRESIDENT (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 24.06.2013 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.