Lalitha Swamy, CHENNAI V. ACIT, CHENNAI

ITA 1074/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61290 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS
• Keywords: Assessment record
• Section: 54; 263; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI V.DURGA RAO, JUDICIAL MEMBER ITA NO.1074(MDS)/2012 ASSESSMENT YEAR: 2008-09 SMT. LALITHA SWAMY, 105/1, III FLOOR, MANASA APARTMENTS, ST.MARYS ROAD, ALWARPET, CHENNAI-18. PAN AAXPL5972B. VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, BUSINESS CIRCLE XV, CHENNAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI Y.SRI DHAR, C.A. RESPONDENT BY : SHRI SHAJI P JACOB, IRS, ADDL.CIT DATE OF HEARING : 19 TH JULY, 2012 DATE OF PRONOUNCEMENT : 19 TH JULY, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2008-09. THE APPEAL IS FILED AG AINST THE REVISION ORDER PASSED BY THE COMMISSIONER OF INCOME -TAX, CHENNAI-X AT CHENNAI. THE REVISION ORDER HAS BEEN PASSED - - ITA 1074 OF 2012 2 UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961 THROU GH THE PROCEEDINGS DATED 26-3-2012. 2. ON A PERUSAL OF THE ASSESSMENT RECORDS, THE ASSESSING OFFICER FOUND THAT THERE IS DIFFERENCE BE TWEEN THE SALE CONSIDERATION STATED BY THE ASSESSEE IN HER COMPUTA TION OF LONG- TERM CAPITAL GAINS AND IN THE DEED OF SALE EXECUTED BY HER. IN THE COMPUTATION STATEMENT, THE ASSESSEE HAS DISCLOS ED A SALE CONSIDERATION OF ` 57,50,000/-. A DEDUCTION OF INDEXED COST OF PURCHASE OF ` 16,53,000/- WAS MADE. LONG-TERM CAPITAL GAIN WAS WORKED OUT AT ` 40,97,000/-. THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54. THE LONG-TERM CAPITAL GAIN ZEROED DOWN TO NIL. IN THE COURSE OF THE ASSESSMENT PROCE EDINGS, THE ASSESSEE FILED A REVISED MEMO OF COMPUTATION. IN T HE REVISED MEMO THE SALE CONSIDERATION WAS THE SAME AS ` 57,50,000/-. BUT THE INDEXED COST OF PURCHASE WAS REVISED AT ` 9,63,939/-. LONG-TERM CAPITAL GAIN WAS THUS WORKED OUT TO ` 47,86,061/-. EXEMPTION UNDER SECTION 54 WAS CLAIMED AGAINST A PR OPERTY PURCHASED IN BANGALORE AT ` 99,30,000/-. AT THE SAME TIME, AS PER THE SALE DEED THE CONSIDERATION RECEIVED BY THE ASSESSEE WAS ONLY ` 47,50,000/-. THERE IS A DIFFERENCE OF ` 10 LAKHS IN THE - - ITA 1074 OF 2012 3 SALE CONSIDERATION STATED BY THE ASSESSEE AT TWO DI FFERENT PLACES. THE COMMISSIONER OF INCOME-TAX FOUND THAT THESE DISCREPANCIES HAVE NOT BEEN CONSIDERED BY THE ASSES SING OFFICER WHILE COMPUTING THE LONG-TERM CAPITAL GAINS IN THE HANDS OF THE ASSESSEE. HE ACCORDINGLY FOUND THAT THE ASS ESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. HE AC CORDINGLY PASSED THE REVISION ORDER SETTING ASIDE THE ASSESSM ENT ORDER WITH A DIRECTION TO THE ASSESSING OFFICER TO MAKE N ECESSARY ENQUIRIES ON THE ASPECTS RELATING TO LONG-TERM CAPI TAL GAINS IN THE HANDS OF THE ASSESSEE. IT IS AGAINST THE ABOVE ORDE R THAT THE ASSESSEE HAS COME IN APPEAL BEFORE US. 3. WE HEARD BOTH SIDES IN DETAIL. THE CASE OF THE ASSESSEE IS THAT THE ASSESSEE HAD ACTUALLY RECEIVED ` 57,50,000/-, BUT THE REGISTRATION WAS DOCUMENTED F OR ` 47,50,000/- AT THE GUIDELINE VALUE. THE DOCUMENTA TION OF REGISTRATION DOES NOT SUPPORT THE ACTUAL CONSIDERAT ION STATED TO HAVE BEEN RECEIVED BY THE ASSESSEE. THE ASSESSEE H AS NOT PRODUCED ANY EVIDENCE TO SUPPORT THE DIFFERENTIAL A MOUNT OF ` 10 LAKHS. SHE MAY HAVE HER OWN ARGUMENTS AND EVIDE NCES. - - ITA 1074 OF 2012 4 BUT THESE WERE NOT EXAMINED BY THE ASSESSING OFFICE R. IF THE MATTER GOES UNEXAMINED, THE RESULT WOULD BE THAT SO METIMES THE ASSESSEE MAY BE CLAIMING AN EXCESS CLAIM OF DEDUCTI ON UNDER SECTION 54 TO THE EXTENT OF ` 10 LAKHS. SO ALSO, THE ASSESSEE MAY BE SOMETIMES OVERSTATING HER SOURCE TO THE EXTE NT OF ` 10 LAKHS TO INVEST IN HER BANGALORE PROPERTY. THE REFORE, IT IS NECESSARY THAT THESE MATTERS SHOULD HAVE BEEN GONE INTO IN A DETAILED MANNER. LIKEWISE, THE INDEXED COST OF THE PROPERTY ALSO HAS TO BE PROPERLY EXAMINED. ALL THESE THINGS HAVE A REAL BEARING NOT ONLY ON THE AMOUNT OF LONG-TERM CAPITAL GAINS ACCOUNTABLE IN THE HANDS OF THE ASSESSEE AND ALSO T HE QUANTUM OF EXEMPTION AVAILABLE UNDER SECTION 54, BUT ALSO O N THE LEGITIMATE SOURCE AVAILABLE IN THE HANDS OF THE ASS ESSEE TO INVEST IN THE PROPERTY PURCHASED IN BANGALORE. 4. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT TH ESE ASPECTS HAVE NOT BEEN EXAMINED BY THE ASSESSING AUT HORITY. THEREFORE, WE AGREE WITH THE COMMISSIONER OF INCOME -TAX THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL T O THE INTERESTS OF THE REVENUE AS FAR AS THIS ISSUE IS CO NCERNED. - - ITA 1074 OF 2012 5 THEREFORE, HE HAS RIGHTLY SET ASIDE THE ISSUE FOR R ECONSIDERATION OF THE ASSESSING OFFICER. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE COMMIS SIONER OF INCOME-TAX. IT IS UPHELD. 6. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY, THE 19 TH OF JULY, 2012 AT CHENNAI. SD/- SD/- (V.DURGA RAO) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 19 TH JULY, 2012. V.A.P. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F.