Adattil Mohammed, Kottakkal V. DCIT, Calicut

ITA 135/COCH/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52264 (ITAT-COCHIN)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 08-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 21-02-2011
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Assessee Lawyers: ANIL D NAIR ADV
• Keywords: Capital asset; Document seized; Cost of acquisition; Onus to prove; Documents seized

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A NO. 135/COCH/2011 ASSESSMENT YEAR:2007-08 ADATTIL MOHAMMED, HILL VIEW, CHANKUVETTI, MAIN ROAD, KOTTAKKAL. [PAN: ADQPM 9819E] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2, KOZHIKODE. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI ANIL D.NAIR, ADV.-AR REVENUE BY SHRI S.R.SENAPATI, SR. DR DATE OF HEARING 08/08/2011 DATE OF PRONOUNCEMENT 21/10/2011 O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE ARISING OUT OF T HE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCHI (CIT(A) FOR SHORT) DATED 30.11.2011, AND THE ASSESSMENT YEAR (A.Y.) UNDER REFERENCE IS 2007-08. 2. THE APPEAL RAISES A SINGLE ISSUE, I.E., QUA THE CAPITAL GAINS ASSESSABLE ON THE SALE OF A COMMERCIAL BUILDING BY THE NAME ADATTIL TOWERS, A CAPITAL ASSET, BY THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR TO ONE SMT. PVC M YMOONA W/O SHRI K.P.MOIDEEN. THE CASE 3.1 THE BACKGROUND FACTS OF THE CASE ARE THAT THE A SSESSEE IS A PARTNER IN TWO PARTNERSHIP FIRMS, M/S. KOTTAKKAL WOOD COMPLEX AND M/S. CLASSY, THE ANTIQUE DESIGNED FURNITURE, DERIVING INCOME THERE-FROM. THERE WAS A SEARCH AT THE BUSINESS PREMISES OF I.T.A. NO.135/COCH/2011 (ASSTT. YEAR: 2007-08) 2 THE FIRMS AS WELL AS THE ASSESSEES RESIDENTIAL PRE MISES ON 12.9.2007, WHICH LED TO THE DISCOVERY AND CONSEQUENT SEIZURE OF VARIOUS DOCUMEN TS AND BOOKS OF ACCOUNTS. ONE SUCH FOUND FROM THE PREMISES OF M/S. CLASSY, THE ANTIQUE DESIGNED FURNITURE, IS AN AGREEMENT FOR SALE DATED 05.12.2005 EXECUTED BETWEE N THE ASSESSEE AND SHRI K.P. MOIDEEN FOR THE SALE OF THE RELEVANT CAPITAL ASSET. 3.2 THE PRINCIPAL BONE OF CONTENTION WHICH ARISES IN THE PRESENT APPEAL IS THE SALE CONSIDERATION ARISING ON SUCH SALE (EFFECTED SUBSEQ UENTLY PER TWO SALE AGREEMENTS DATED 01/8/2006 & 11/8/2006). THOUGH BOTH THE PARTIES ARE IN AGREEMENT WITH THE VALUE THAT NEEDS TO BE ADOPTED FOR THE PURPOSE, I.E., AS STATE D IN THE AGREEMENT TO SELL DATED 05/12/2005, AS AGAINST THE DISCLOSED SALE CONSIDERA TION OF ` 64.32 LAKHS PER THE REGISTERED SALE DEED, THE CONTROVERSY ARISES ON ACCOUNT OF APP ARENTLY `TWO SUCH AGREEMENTS, WITH ONE STATING THE SAME AT ` 2 CRORES AND THE OTHER AT ` 3 CRORES. OF COURSE, APART FROM THE SAME, THE ASSESSEE WAS ALSO TO ACQUIRE, I.E., IN LI EU OF THE CAPITAL ASSET, AN AGRICULTURAL LAND MEASURING 75.5 CENTS. HOWEVER, THE SAID FACT OR OF ITS VALUE, ADOPTED AT ` 1.51 LAKHS, IS NOT IN DISPUTE. AS SUCH, THE SOLE ASPECT OF THE TRANSAC TION WHICH IS UNDER DISPUTE IS THE CORRECT SALE CONSIDERATION, I.E., WHETHER ` 301.51 LAKHS, AS CLAIMED BY THE REVENUE, OR ` 201.51 LAKHS, AS CONTENDED BY THE ASSESSEE. THE BASIS OF T HE REVENUES CLAIM IS THE COPY OF THE AGREEMENT FOUND DURING SEARCH (COPY ON RECORD/ANNEX URE J), WHILE THE ASSESSEE RELIES ON ANOTHER AGREEMENT, IDENTICAL IN ALL RESPECTS, I. E., TO THAT BEING RELIED UPON BY THE REVENUE AND CLAIMED TO BE FOUND IN SEARCH, EXCEPT F OR THE AMOUNT OF SALE CONSIDERATION SETTLED TO BE PAID BY (OR ON BEHALF OF SHRI MOIDEEN ), THE SECOND PARTY, BEING AT ` 2 CRORES INSTEAD OF ` 3 CRORES. THE BASIS OF THE ASSESSEES CLAIM IS THAT IT WAS NEVER IN POSSESSION OF SUCH AN AGREEMENT, WHICH IS RETAINED ONLY BY THE VE NDEE, SHRI MOIDEEN, SO THAT THE AGREEMENT IN THE POSSESSION OF THE REVENUE COULD NO T POSSIBLY HAVE BEEN FOUND FROM HIS RESIDENCE OR BUSINESS PREMISES. SECONDLY, AS THE PA NCHANAMA DATED 12/9/2007 DRAWN IN THE CASE OF M/S. CLASSY, THE ANTIQUE DESIGNED FURNI TURE, THE PARTNERSHIP FIRM, WOULD SHOW, THERE IS NO MENTION OF ANY SUCH AGREEMENT THE REIN. IT WAS POINTED OUT BY THE LD. AR THAT THE ASSESSING OFFICER (AO), ON BEING INFORM ED OF THE SAME, REFERRED TO THE ITEM LISTED AT SR. NO.15 OF THE PANCHANAMA, ENTRY AT WHI CH NUMBER READS AS A BUNCH OF I.T.A. NO.135/COCH/2011 (ASSTT. YEAR: 2007-08) 3 DOCUMENTS, ADVERTING TO THE COPY OF THE PANCHANAMA PLACED AT PG. 11 OF THE ASSESSEES PAPER-BOOK (PB) IN THE CASE OF M/S. CLASSY THE ANTI QUE DESIGNED FURNITURE (IN I.T.A. NO. 125 & 126/COCH/2011), ALSO LISTED FOR HEARING ON TH E SAME DAY. CLEARLY, THEREFORE, THE DOCUMENT BEING RELIED UPON BY THE REVENUE IS NOT AU THENTICATED, WHILE THE ONE ADDUCED BY THE ASSESSEE IS SO, HAVING ONLY BEEN OBTAINED FR OM THE PURCHASER. THE STATEMENT OF SHRI MOIDEEN HAD BEEN TAKEN BY THE ASSESSING OFFICE R, WHO HAD CONFIRMED THE SALE CONSIDERATION AT ` 2 CRORES. THE DOCUMENT BEING RELIED UPON BY THE REV ENUE IS A FABRICATED ONE; THE SALE FIGURE IN THE AGREEMENTS I S USUALLY INFLATED BY THE BROKERS TO DEPICT A HIGHER VALUE OF THE PROPERTY TO THE INTEND ING PURCHASERS. THE REVENUES CASE, ON THE OTHER HAND, IS THAT THE DOCUMENT BEING RELIED U PON BY IT IS THAT FOUND DURING THE SEARCH, AND NO CREDENCE COULD BE PLACED TO THE ONE BEING ADDUCED BY THE ASSESSEE, WITH THE STATEMENT OF THE PURCHASER BEING ALSO A SELF-SE RVING STATEMENT. THE FINDINGS 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, AS WELL AS THE PANCHNAMA DATED 12/9/2007 IN THE CASE OF M/S. CLASS Y THE ANTIQUE DESIGNED FURNITURE. 4.1 THE CONTROVERSY, THUS, LIES IN A VERY NARROW SCOPE, I.E., WHICH OF THE `TWO AGREEMENTS IS THE TRUE COPY OF THE AGREEMENT EXECUT ED BY THE PARTIES ON 05.12.2005. CLEARLY, ONLY ONE OF THEM IS THE TRUE COPY OF THE A GREEMENT, AND THE OTHER FALSE OR AND FABRICATED; THE PARTIES HAVING ADMITTEDLY ENTERED I NTO ONLY ONE AGREEMENT. SURELY, THE AGREEMENT ITSELF, I.E., IN ORIGINAL, WHICH IS WITH THE PURCHASER, WOULD EXHIBIT THE SAME. ON THIS BEING EXPRESSED BY THE BENCH DURING THE HEA RING, THE LD. AR WAS QUICK TO REPLY THAT THE ASSESSEE WAS NOT HAVING EITHER THE ORIGINA L AGREEMENT NOR ITS COPY, SO THAT THE SAME (ORIGINAL) OUGHT TO HAVE BEEN CALLED FOR BY TH E REVENUE FROM THE VENDEE, WHILE IT DID NOT EVEN EXAMINE HIM, BUT HIS WIFE, AND THAT TH E ASSESSEE IS CONFIDENT OF BEING ABLE TO PROVE ITS CASE AS IT HAS STATED THE TRUTH. 4.2 IN THIS REGARD, WE MAY CLARIFY THAT THE ONUS TO PROVE HIS RETURN, OR THE CLAIMS PREFERRED THEREBY, IS ON THE ASSESSEE. AGAIN, THE ONUS TO PROVE THAT THE APPARENT IS NOT I.T.A. NO.135/COCH/2011 (ASSTT. YEAR: 2007-08) 4 REAL IS ONLY ON THE PERSON WHO SO ALLEGES. FURTHER, EVEN AS THE OBSERVED BY THE BENCH DURING HEARING, THOUGH NOT THE ORIGINAL, BUT A COPY OF THE AGREEMENT IS DEFINITELY EXPECTED TO BE WITH THE ASSESSEE, THE SELLER-TRANSF EROR. IN FACT, WE FIND THAT THE AGREEMENT ITSELF STATES THAT ITS ORIGINAL SHALL BE RETAINED B Y THE TRANSFEREE, WHILE THE SELLER (ASSESSEE) SHALL RETAIN THE COPY THEREOF. THIS BY ITSELF IS A STRONG INDICATION AND SUPPORTIVE OF THE REVENUES CLAIM THAT THE AGREEMENT WITH IT, AND CON SEQUENTLY BEING RELIED UPON BY IT, IS THE ONE SEIZED DURING SEARCH AND, THUS, THE COPY OF THE ACTUAL AGREEMENT. FURTHER ON, ON WHAT BASIS, THEN, DOES THE ASSESSEE STATE THAT HE D ID NOT HAVE THE COPY, AND THAT PRODUCED BY HIM STANDS PROCURED FROM THE PURCHASER ? (REFER PARA 3.2 ABOVE). THE ASSESSEE HAS NOT CLARIFIED THE BASIS OF HIS STATEMENT, LEADING TO TH E INFERENCE OF HIM NOT STATING THE TRUTH. WHY? EVEN OTHERWISE, THERE IS A DISTINCT POSSIBILI TY THAT THE `BUNCH OF DOCUMENTS, AS LISTED AT SR. NO. 15 OF THE PANCHANAMA (IN THE CASE OF M/S. CLASSY THE ANTIQUE DESIGNED FURNITURE), CONTAINED A COPY OF THE SAID AGREEMENT. HOW ELSE DID THE SAID DOCUMENT COME IN THE POSSESSION OF THE REVENUE , ONE MAY ASK, IF NOT PER THE SEIZED DOCUMENTS ? THE ASSESSEE NOWHERE ATTEMPTS TO ANSWER THIS QUESTION, A SATISFACTORY EXPLANATION TO WHICH IS VITAL TO, AND NECESSARY IF ANY MEASURE OF CREDIBILI TY IS TO BE ASSOCIATED WITH, ITS CLAIM. IN FACT, WHAT, AGAIN, ONE MAY ASK, IS THERE TO DOUBT T HE AUTHENTICITY OF THE DOCUMENT WITH THE REVENUE ? THE LAW, PER SECTION 114 (E) OF THE THE INDIAN EV IDENCE ACT, 1872 PLACES A PRESUMPTION OF REGULARITY ON BOTH THE MANNER IN WHI CH THE SEARCH WAS CONDUCTED AS WELL AS THE DOCUMENT IN THE POSSESSION OF THE REVENUE. T HIS IS PERHAPS WHAT GUIDED THE OBSERVATION BY THE LD. CIT (A) THAT THE AGREEMENT I N THE POSSESSION OF THE REVENUE HAS A HIGHER EVIDENTIARY VALUE, I.E., VIS--VIS THAT PROD UCED BY THE ASSESSEE. IN OUR VIEW, THE SAME ONLY HAS EVIDENTIARY VALUE, UNLESS, THAT IS, T HE ASSESSEE ADDUCES SOME MATERIAL WHICH COULD RAISE SOME GENUINE DOUBT AS TO ITS AUTH ENTICITY OR CREDIBILITY. IN FACT, SEC. 132(4A) COUPLED WITH SEC. 292C OF THE ACT STATUTORI LY PROVIDE AUTHENTICITY TO THE AGREEMENT FOUND DURING SEARCH, WHICH WE FIND TO BEA R, EVEN AS OBSERVED BY THE BENCH DURING THE HEARING, SIGNATURES OF BOTH THE PARTIES THERE-TO AND, FURTHER, WHICH ARE IDENTICAL IN BOTH THE AGREEMENTS. IN FACT, ACCORDING PRIMACY TO THE DOCUMENT WITH THE REVENUE, HAVING BEEN OSTENSIBLY FOUND IN SEARCH, IT IS AN OP EN AND SHUT CASE AGAINST THE ASSESSEE, AND IT IS ONLY ON GIVING SOME LEEWAY TO ITS ASSERTI ON, IN VIEW OF THE ABSENCE OF A SPECIFIC I.T.A. NO.135/COCH/2011 (ASSTT. YEAR: 2007-08) 5 ENTRY QUA THIS DOCUMENT IN THE PANCHANAMA, THAT THE SCOPE OF THE CONTROVERSY IS BEING EXPANDED AND THE ASSESSEES CASE EXAMINED FURTHER. THE ONUS, HOWEVER, IS ALWAYS ON THE ONE WHO CLAIMS THAT THE APPARENT IS NOT REAL. AS SU CH, THE ONUS TO ESTABLISH ITS CLAIM OF THE DOCUMENT IN THE REVENUES POSSESSION AS BEING A FOR GED AND MANIPULATED ONE, OR OF THE ASSESSEE HAVING BEEN THUS SUBJECT TO A LEGAL FRAUD BY THE REVENUE, IS NEVERTHELESS SQUARELY ON THE ASSESSEE, WHICH WILL HAVE TO BE PRO VED WITH SOME CREDIBLE EVIDENCE/S, AND CANNOT BE SHIFTED TO THE REVENUE. WHY, THE CLAI MS ARE HIGHLY INSINUATING AND SERIOUS IN NATURE, WITH GRAVE IMPLICATIONS. THE SAME, IT WO ULD BE APPRECIATED, IN FACT GIVE RISE TO A SERIES OF QUESTIONS, WHICH SHALL ALSO NEED TO BE ADDRESSED, AS, FOR EXAMPLE: WHAT IS THE SOURCE OF THE DOCUMENT IN THE POSSESSION OF THE REV ENUE ? WHO IS IT IN THE DEPARTMENT WHO IS TRYING TO PLAY A LEGAL FRAUD ON THE ASSESSEE , AND WHY ? WHAT IS THE EARLIEST POINT OF TIME WHEN THE DOCUMENT (COPY OF THE AGREEMENT) WAS CONFRONTED TO THE ASSESSEE, WHICH APPEARS TO BE BY ADIT (INV.), CALICUT, AND IN WHOSE CUSTODY (IN THE DEPARTMENT) WAS THE SAID DOCUMENT UP TO THEN ? WHAT WAS THE ASSESSEES FIRST EXPLANATION ? WERE THE SEIZED DOCUMENTS SUBJECT TO THE USUAL DOCUMENTATION AND AU THENTICATION BY THE AUTHORIZED OFFICER, I.E., SUBJECT TO THE REGULAR PROCEDURE IN RESPECT THEREOF ? WHO IS THIS NON- SPECIFIED BROKER/S ALLUDED TO BY THE ASSESSEE; WHO SUPPLIED HIM THE COPY OF THE AGREEMENT AND FOR WHAT PURPOSE AND, FINALLY, WHY DI D HE SUPPLY THE SAME TO THE REVENUE, WHICH WOULD ONLY BE WITH THE KNOWLEDGE OF OR ON BEI NG INFORMED ABOUT THE CONTENT OF THE ENTRY AT SR. NO. 15 IN THE PANCHANAMA ? BESIDES, THE ASSESSEES CLAIM/S, IF FOUND UNTRUE, WOULD EXPOSE HIM TO THE RISK OF BEING CHARGED WITH PERJURY. HOWEVER, THE QUESTION OF EXAMINING S UCH INCIDENTAL AND PERTINENT ISSUES, SOME OF WHICH ARE VERY BASIC AND WOULD STAND TO BE ANSWE RED OR LOOKED INTO AT THE THRESHOLD, ARISES ONLY WHEN THE ASSESSEE HAS DISCHARGED THE PR IMARY ONUS ON IT TO SHOW THAT THE DOCUMENT WITH THE DEPARTMENT IS NOT THE COPY OF THE ACTUAL AGREEMENT, BUT A FORGED ONE, WHILE WE FIND THAT FAR FROM DOING SO, HE HAS STATED UNTRUTH BY STATING THAT HE DID NOT HAVE A COPY OF THE AGREEMENT. HE HAS NOT EVEN BROUGHT TH E PANCHNAMA DATED 12/9/2007 ON RECORD IN HIS CASE, WHICH CONTINUES TO BE ON THE FI LE OF THE FIRM, CLASSY THE ANTIQUE DESIGNED FURNITURE, A DIFFERENT ASSESSEE. IN FACT, WE WONDER; THE SAME BEING CRUCIAL TO ITS CASE, WHY DID HE NOT CAUSE TO PRODUCE THE ORIGINAL AGREEMENT BEFORE THE REVENUE I.T.A. NO.135/COCH/2011 (ASSTT. YEAR: 2007-08) 6 AUTHORITIES. SURELY, IF THE PURCHASER COULD COOPERA TE TO GIVE IT A COPY OF THE SAME, THE ORIGINAL COULD ALSO BE PRODUCED BY HER, PARTICULARL Y WHEN SHE DEPOSES IN FAVOUR OF THE DOCUMENT BEING RELIED UPON BY THE ASSESSEE, OSTENSI BLY ARISING ONLY FROM HERSELF. RATHER, THE PRODUCTION OF THE ORIGINAL AGREEMENT WOULD ESTA BLISH THE TRUTH OF THE PURCHASERS STATEMENT AS WELL. IN FACT, THAT IS THE FIRST THING THAT OUGHT TO HAVE BEEN (CAUSED TO BE) DONE BY THE ASSESSEE. ON THE CONTRARY, AS WE SHALL PRESENTLY SEE, BOTH OF THEM HAVE NOT STATED THE TRUTH. ALSO, AS AFORE-NOTED, THE ASSESSE ES CHARGE/S HAVE SERIOUS RAMIFICATIONS AND IMPLICATIONS, AND WERE HE TO MAKE OUT A CASE BY PRODUCING THE ORIGINAL COPY, WHICH PERHAPS WOULD REQUIRE BEING EXAMINED AND AUTHENTICA TED BY AN EXPERT, THIS WOULD BE A FIT CASE FOR BEING SUBJECT TO FURTHER INVESTIGATION, IN VOLVE AS IT DOES CHARGES OF CRIMINAL CONSPIRACY. 4.3 AS REGARDS THE ARGUMENT OF THE PURCHASER, I.E., THE WIFE OF THE SECOND PARTY TO THE IMPUGNED AGREEMENT HAVING DEPOSED IN FAVOUR OF THE ASSESSEE, WE FIND THE SAME TO BE OF LITTLE MOMENT. THE COPY OF THE DEPOSITION IS NOT ON RECORD. IN FACT, THERE IS NO REFERENCE TO THE SAME IN THE ORDERS BY THE AUTHORITIES BELOW. THE DOCUMENTED SALE CONSIDERATION, I.E., OTHER THAN IN KIND, IS MUCH LESS, I.E., ABOUT ` 60+ LAKHS, WHILE THE ACTUAL CONSIDERATION IS ADMITTEDLY NOT LESS THAN ` 2.0 CRORES, IF NOT MORE. ALSO, THERE IS NO REFERENC E IN THE REGISTERED SALE DOCUMENT TO THE AGREEMENT FOR SALE, AND THE PRICE FIXED THEREBY BETWEEN THE PARTIES. EVEN THE ASSESSEE, PER HIS DEPOSITION U/S. 132(4) DATED 07.11.2007 (PB PG. 1 TO 10), IN ANSWER TO QUESTION NO. 3, STATES OF HAVI NG SOLD THE PROPERTY UNDER REFERENCE FOR ` 60 LAKHS. THE TWO, I.E., THE PURCHASER AND THE SELL ER, ARE THUS ONLY ACTING IN UNISON AND COLLUSION. 4.4 FINALLY, WE FIND THAT THE ASSESSEE HAS QUA THIS ISSUE RAISED A GROUND (GD. `D), WHICH READS AS UNDER:- D. THE CONFIRMATION OF THE ASSESSMENT BY THE ASS ESSING AUTHORITY IS CONTRARY TO THE RATIO OF THE JUDGMENT OF THE CASE REPORTED IN (2003) (1) KLT (SN) 109 IN THE CASE OF CIT VS. AGNES. I.T.A. NO.135/COCH/2011 (ASSTT. YEAR: 2007-08) 7 THE SAME WAS NOT ARGUED DURING HEARING, NOR CONSEQU ENTLY THE DECISION CITED THEREIN REFERRED TO AND, ACCORDINGLY, NOT RESPONDED TO BY THE REVENUE. THOUGH THE SAME WOULD BE SUFFICIENT FOR US TO DISMISS THE SAID GROU ND AS NOT PRESSED, THE DECISION BEING BY THE HONBLE JURISDICTIONAL HIGH COURT, WE CONSIDER IT INCUMBENT ON US TO NEVERTHELESS CONSIDER THE SAME, EVEN AT THE COST OF LABOUR TO AC CESS THE SAID DECISION [REPORTED AS CIT VS. SMT. K.C.AGNES AND OTHERS AT (2003) 262 ITR 354 (KER.)]; THE CITED JOURNAL B EING NOT IN THE TRIBUNALS LIBRARY. WE HAVE CAREFULLY PERUSED THE SAID DECISION. THE S AME, IN FACT, SUPPORTS THE REVENUES CASE IN-AS-MUCH AS THE HONBLE COURT HAS THEREBY UPHELD THE DECISION BY THE TRIBUNAL, BEING BASED ON A CONSIDERATION OF ALL THE RELEVANT FACTS AND CIRCUMSTANCES IN THE MATTER. IN FACT, THAT THE SALE DEED/S DOES NOT REF LECT THE CORRECT SALE CONSIDERATION, AND THE PARTIES HAVE ACTED UPON THE AGREEMENT FOR SALE DATE D 5.12.2005, IS NOT DISPUTED AND, RATHER, THE ADMITTED POSITION, AND BY BOTH THE PART IES TO THE AGREEMENT. THE ONLY ISSUE OR QUESTION FOR CONSIDERATION IS WHICH OF THE TWO COPI ES IS A TRUE COPY OF THE SAID AGREEMENT; THE PARTIES HAVING AGAIN ADMITTEDLY ENTERED INTO AN D ACTED UPON ONLY ONE AGREEMENT QUA ONE SALE TRANSACTION. THE SAID GROUND IS THUS WITHO UT MERIT. CONCLUSION 5. IN VIEW OF THE FOREGOING, THE ASSESSEE HAS CLEAR LY BEEN UNABLE TO PROVE ITS CLAIMS. AND APART FROM TRYING TO RAISE A BOGEY, IN VIEW OF THE ABSENCE OF A SPECIFIC ENTRY IN THE PANCHANAMA IN RELATION TO THE SAID DOCUMENT, IT HAS NOT CARRIED THE MATTER FURTHER IN ANY MANNER. WE DECIDE ACCORDINGLY, DISMISSING ITS RELE VANT GROUNDS. 6. THE OTHER ISSUE RAISED BY THE ASSESSEE IS W ITH REGARD TO THE COST OF ACQUISITION OF THE CAPITAL ASSET (GROUND E). THE SAME HAS BEEN ASSUMED BY THE REVENUE AT ` 11.25 LAKHS, I.E., EXCLUDING THE REGISTRATION CHARGES, SEPARATEL Y ADDED, ADOPTING THE FIGURE AS PER THE AGREEMENT DATED 22.11.2001. THE ASSESSEE CLAIMS FO R BENEFIT OF ANOTHER ` 30,000/-, CONTENDING IT TO BE THE AMOUNT PAID OVER AND ABOVE THE DOCUMENTED CONSIDERATION. THE SAME HAS NOT BEEN ACCEPTED BY THE AO ON THE BASIS O F THE SAME BEING NOT EVIDENCED IN ANY MANNER. WE FIND THAT THE LD. CIT(A), BEFORE WHO M THE SAID ISSUE WAS RAISED BY THE I.T.A. NO.135/COCH/2011 (ASSTT. YEAR: 2007-08) 8 ASSESSEE PER ITS GROUND NO. 6, HAS HOWEVER NOT ADJU DICATED THE SAME. AS SUCH, TECHNICALLY NO APPEAL WOULD ARISE BEFORE US IN THE MATTER, PARTICULARLY WITH REGARD TO THE MERITS, AND THE ASSESSEE OUGHT TO HAVE, AND WOULD B E REQUIRED TO, PURSUE THE MATTER WITH THE FIRST APPELLATE AUTHORITY. SO, HOWEVER, IT HAV ING RAISED A GROUND IN THE MATTER BOTH BEFORE US AS WELL AS THE FIRST APPELLATE AUTHORITY, WE ONLY CONSIDER IT FIT, IN THE INTEREST OF JUSTICE AND FAIRNESS OF PROCEDURE, TO RESTORE THIS MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR AN ADJUDICATION ON MERITS IN ACCORDANCE WITH TH E LAW AND AFTER HEARING BOTH THE SIDES. WE DECIDE ACCORDINGLY. 7. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 21ST OCTOBER, 2011 GJ COPY TO: 1. ADATTIL MOHAMMED, HILL VIEW, CHANKUVETTI, MAIN R OAD, KOTTAKKAL. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL C IRCLE-2, KOZHIKODE. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE .