Sri B.K.Karthikeyan, V. DCIT, Ernakulam

ITA 1007/COCH/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4395 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 19-12-2008
• Court: TRIBUNAL
• Department Lawyers: T J VINCENT
• Keywords: Document seized; Documents seized
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL COCHIN BENCH, COC HIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY ARORA , AM I.T.A. NO. 1007/COCH./2008 ASSESSMENT YEAR : 2004-05 SHRI B.K.KARTHIKEYAN, BLAVATH HOUSE, AYYAPPANKAVU, ERNAKULAM-682017. [PAN: AOSPK 6029M] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, ERNAKULAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI MATHEW JOSEPH, CA REVENUE BY SHRI T.J.VINCENT, DR O R D E R PER SANJAY ARORA, AM: THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, KOCHI (CIT(A) FOR SHORT ) DATED 12.11.2008, AND THE ASSESSMENT YEAR (A.Y.) UNDER REFERENCE IS 2004-05. 2.1 THE ONLY ISSUE IN APPEAL RELATES TO THE ASSESSM ENT OF CAPITAL GAINS IN THE HANDS OF THE ASSESSEE ON THE SALE OF FOUR PIECES OF LAND DUR ING THE RELEVANT PREVIOUS YEAR, WHICH STANDS ASSESSED AT RS.2,86,825/-, AS AGAINST RS. 65 ,920/- RETURNED BY THE ASSESSEE. THE FACTS IN BRIEF ARE THAT CONSEQUENT TO A SEARCH U/S 132 OF THE INCOME-TAX ACT, 1961 (`THE ACT HEREINAFTER) AT THE RESIDENCE OF THE ASSESSEE ON 5/10/2005, PAPERS CONTAINING NOTINGS IN RESPECT OF SALE OF FOUR PROPERTIES, SPECIFYING T HE NAME OF THE BUYER, AREA, RATE, TOTAL AMOUNT, ADVANCE RECEIVED, QUA FOUR PLOTS OF LAND, MEASURING IN AGGREGATE AT 22.0 25 CENTS, WERE FOUND, AND WHICH ALSO CONTAINED THE WORKING OF THE TOTAL NET CONSIDERATION, I.E., AFTER EXPENSES, AND ITS DIVISION, WITH THE ASSESSEES SHA RE (1/3 RD . ) AMOUNTING TO RS. 3,51,350/-. IT WAS EXPLAINED IN THE COURSE OF SEARCH, TO BE IN RESPECT OF THE SALE PROCEEDS OF LAND MEASURING ABOUT 22 CENTS, NEAR RICE RESEARCH CENTRE , VYTILLA, ERNAKULAM, WHICH STOOD ITA. NO.1007/COCH./2008 2 SOLD BY THE ASSESSEE, HIS BROTHER, SH. RAVINDRAN, A ND HIS SISTER, WITH EACH GETTING APPROXIMATELY RS. 3.50 LAKHS. 2.2 THE ASSESSEE DISCLOSED THE SALE OF THE LANDS VI DE HIS RETURN U/S. 153A FOR THE YEAR, EVEN AS THE SALE AMOUNTS, AS RETURNED, WERE MUCH LO WER, I.E., AT AN AGGREGATE OF RS. 4.32 LACS, AS AGAINST RS. 10.88 LACS PER THE SEIZED DOCU MENTS. THE ASSESSING OFFICER (A.O.) FOUND THE RETURNED SALE CONSIDERATION(S) TO BE IN A GREEMENT WITH THE SALE DEEDS EXECUTED IN RESPECT OF THE SAID SALES BY THE THREE TRANSFERORS, I.E., THE ASSESSEE AND HIS TWO SIBLINGS, DURING THE RELEVANT PREVIOUS YEAR, EXCEPT IN THE CA SE OF ONE SALE, I.E., FOR LAND MEASURING 5.98 CENTS, FOR WHICH THE ASSESSEE HAD TAKEN THE SA LE AMOUNT AT RS. 1 LAC, STATING IT TO BE SO IN THE ABSENCE OF THE SALE DOCUMENT. THE AO GOT THE SAME VERIFIED FROM THE OFFICE OF THE REGISTRAR, AND FOUND THE SAME TO HAVE BEEN SOLD TO ONE, KASHMIRA, ON 22/10/2003 FOR RS. 119600/-. THE ASSESSEE EVEN CONTENDED THAT THE DOC UMENTS FOUND IN SEARCH DID NOT PERTAIN TO THE FOUR PROPERTIES SOLD BY HIM DURING T HE YEAR, I.E., AS PER HIS RETURN OF INCOME, AND THAT, THE SAME WAS ONLY A DUMB DOCUMENT. THE A O, HOWEVER, REFUTED THE ASSESSEES CONTENTION ON THE BASIS OF THE COMPLETE IDENTITY OF THE AREA OF EACH OF THE PROPERTIES MENTIONED IN THE SEIZED PAPERS AND THE SALE DEEDS. THERE WAS A MATCHING OF THE NAMES OF TRANSFERORS AND THE TRANSFEREE-BUYERS FOR EACH OF T HE LANDS, EXCEPT IN THE CASE OF SALE OF THE AFORESAID LAND MEASURING 5.98 CENTS, FOR WHICH THE BUYERS NAME PER THE SEIZED DOCUMENTS WAS `POTTOKARAN, AS WELL. AS SUCH, THE ASSESSEES CONTENTION WAS CONSIDERED BY HIM AS OF NO MOMENT. IN VIEW THEREOF, THERE WAS NO DOUBT WHAT SOEVER THAT THE SEIZED DOCUMENTS REPRESENTED THE ACTUAL TRANSACTIONS, WITH EACH OF T HE VARIABLES REQUIRED FOR THE COMPUTATION OF THE CAPITAL GAINS, INCLUDING THE EXPENSES, BROKE RAGE, ETC. PAID, BEING MENTIONED THEREIN. HE, THEREFORE, ASSESSED THE CAPITAL GAINS, TAKING T HE ASSESSEES SHARE IN THE TOTAL CONSIDERATION AT RS. 3,54,808/-, I.E., AS PER THE S EIZED MATERIALS, MAKING MINOR CORRECTION IN THE WORKING. THE SAME STOOD CONFIRMED BY THE LD. CIT(A) IN APPEAL FOR THE SAME REASON, I.E., OF THERE BEING NO AMBIGUITY WHATSOEVE R IN RELATION TO THE SAME REPRESENTING THE SALE TRANSACTIONS OF THE PROPERTIES SOLD BY THE ASSESSEE DURING THE YEAR ALONG WITH HIS SIBLINGS, AND EVEN RETURNED FOR THE YEAR BY THEM, A LBEIT, AT THE AMOUNTS AS STATED IN THE REGISTERED SALE DEEDS, I.E., AS DOCUMENTED. AGGRIEV ED, THE ASSESSEE IS IN APPEAL. ITA. NO.1007/COCH./2008 3 3. BEFORE US, LIKE SUBMISSIONS STOOD RAISED, WITH THE LD. DR RELYING ON THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE FACTS OF THE CASE, WE OBSERVE, ADMIT OF NO DISPUTE, EVEN AS THE ASSESS EE HAS SOUGHT TO RAISE DOUBTS AS TO THE VALIDITY OF THE DOCUMENTS FOUND IN SEARCH, WHICH WE FIND AS WITHOUT MERIT. THE LAW IN THE MATTER IS CLEAR, AND FOR WHICH WE MAY ADVERT TO THE PROVISIONS OF SS. 132(4) AND 292C OF THE ACT. THE SEIZED MATERIAL, COUPLED WITH THE STAT EMENT RECORDED ON OATH DURING SEARCH, WHEREBY THE PROPERTY(S) SOLD AND THE BUYERS STAND IDENTIFIED, AS ALSO THE ASSESSEES SHARE SPECIFIED, LEAVES ONE IN NO MANNER OF ANY DOUBT AS TO THE VALIDITY AND THE AUTHENTICITY OF THE SAID DOCUMENTS FOUND IN SEARCH. THE MATTER IS E SSENTIALLY ONE OF FACT, AND ALL THE MATERIALS IN THE POSSESSION OF THE REVENUE CORROBOR ATE EACH OTHER TO LEAD TO THE UNMISTAKABLE INFERENCE OF THE SAID DOCUMENTS TO BE AS ONLY IN RESPECT OF THE SALE TRANSACTIONS ENTERED INTO BY THE ASSESSEE, ALONG WI TH HIS TWO SIBLINGS, DURING THE YEAR, AND REPRESENTING THE ACTUAL CONSIDERATION ENSUING THERE BY. IF THE SALE DEEDS AND THE NOTINGS RECORDED IN THE SEIZED DOCUMENTS ARE NOT IN RESPECT OF THE SAME TRANSACTIONS, THE QUESTION AS TO THE IDENTITY OF THE LANDS, ADMEASURING THE SA ME, SOLD BY THE SAME SELLERS, TO THE SAME BUYERS, WOULD ARISE. THIS IS AS EVEN IF CLAIMED TO BE NOT SOLD, THE SAID LANDS WOULD DEFINITELY EXIST, AND CONTINUE TO BE IN THE NAMES O F THE ASSESSEE AND HIS TWO SIBLINGS. THE PRESENT CASE, RATHER, OUGHT TO BE CONSIDERED AS ONE OF ADMISSION, WHICH IS THE BEST FORM OF EVIDENCE, AND THE ASSESSEES OBJECTIONS ARE, IN VIE W OF THE OVERWHELMING EVIDENCE, SUPERFLUOUS. THE REVENUES CASE IS ALSO COVERED BY THE DECISION IN THE CASE OF V. KUNHAMBU & SONS V. CIT , 219 ITR 235 (KER.). UNDER THE CIRCUMSTANCES, WE F IND NO MERIT IN THE ASSESSEES CASE AND, ACCORDINGLY, NO REASON TO DISTURB THE CONCURRENT FINDING OF THE AUTHORITIES BELOW, WHICH WE CONFIRM. WE DECIDE ACCO RDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISM ISSED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 30TH APRIL, 2010 GJ COPY TO: 1. SHRI B.K.KARTHIKEYAN, BLAVATH HOUSE, AYYAPANKAVU , ERNAKULAM 682 017. ITA. NO.1007/COCH./2008 4 2. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2 , ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, KO CHI. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R./I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR)