Shri.K.S.Ramesh, Bangalore V. Income-Tax officer, Bangalore

ITA 1496/BANG/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9392 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 17-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARESH SAKA
• Assessee Lawyers: S GANESH RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH SMC, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNANT MEMBER ITA NO. 1496(BANG) 2016 (ASSESSMENT YEAR : 2006 07) SRI K. S. RAMESH BABU, NO. 645, 18 TH MAIN, A BLOCK, SAHAKARNAGAR, BANGALORE 560092 PAN : AAJPR9302D APPELLANT VS ITO, WARD 6 (3) (2), BANGALORE RESPONDENT ASSESSEE BY :SHRI S. GANESH RAO, ADVOCATE REVENUE BY : SHRI NARESH SAKA JCIT DATE OF HEARING : 22-09-2016 DATE OF PRONOUNCEMENT : 23-09-2016 O R D E R PER A. K. GARODIA, A.M.: THIS APPEAL IS FILED BY THE ASSESSEE. THIS IS DIR ECTED AGAINST THE ORDER OF LEARNED CIT (A) 6, BANGALORE DATED 03.05.2016 FOR A. Y. 2 006 07. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS. THE GR IEVANCES ARE TWO. FIRST GRIEVANCE IS ABOUT DISALLOWANCE OF THE CLAIM OF BROKERAGE OF RS. 150,000/- PAID TO AGENTS OUT OF SALE CONSIDERATION OF RS. 70 LACS. THE SECOND GRIEVANCE IS ABOUT NOT REDUCING THE AMOUNT OF TAXABLE CAPITAL GAIN IN VIEW OF SECTION 112 (1) (A) . 3. LEARNED AR OF THE ASSESSEE MADE VARIOUS SUBMISSI ONS ABOUT THE FIRST ISSUE. A QUERY WAS RAISED BY THE BENCH THAT THE FINDING OF T HE A.O. IS THIS THAT THE ASSESSEE HAS NOT PRODUCED ANY PROOF OF PAYMENT OF BROKERAGE OF R S. 150,000/- AS CLAIMED THEN WHETHER ANY PROOF WAS FILED BEFORE HIM. IN REPLY, H E SUBMITTED THAT THE CONFIRMATION OF THE PAYEE IS AVAILABLE ON PAGE NO. 8. SECOND QUERY WAS RAISED BY THE BENCH THAT AS PER THIS CONFIRMATION, PAYMENT WAS MADE IN CASH AT THE TIME OF REGISTRATION OF THE SALE DEED ON 09.12.2005 AND AS PER THE GROUND NO. 2 RAISED BE FORE THE TRIBUNAL, SUCH PAYMENT WAS MADE OUT OF SALE CONSIDERATION THEN WHETHER THE SALE CONSIDERATION WAS RECEIVED IN CASH. IN REPLY, HE SUBMITTED THAT SALE CONSIDERATIO N WAS RECEIVED BY CHEQUE BUT THE PAYMENT OF BROKERAGE WAS MADE OUT OF SAVINGS OUT OF OTHER INCOMES WHICH WAS RS. 64,280/- IN THE PRESENT YEAR. LEARNED DR OF THE REV ENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL ON RECORD. I FIND THAT THE A.O. HAS GIVEN A CATEGORICAL FINDING IN TH E ASSESSMENT ORDER THAT THE ASSESSEE HAS NOT PRODUCED ANY PROOF REGARDING THE CLAIM OF P AYMENT OF BROKERAGE. AS PER THE CONFIRMATION AVAILABLE ON PAGE 8, IT IS STATED THAT THE PAYMENT WAS RECEIVED ON THE DATE OF EXECUTION OF SALE DEED IN CASH. THE LEARNED AR H AS ADMITTED THAT SALE CONSIDERATION WAS RECEIVED BY CHEQUE AND THEREFORE, THE SAME CANN OT BE USED FOR THIS PAYMENT ON THE DATE OF EXECUTION OF SALE DEED BECAUSE IT REQUIRES TIME TO DEPOSIT THE CHEQUE IN BANK, ITA NO. 1496(BANG) 2016 2 CLEARANCE OF CHEQUE AND THEN CASH WITHDRAWAL FROM B ANK. VERY SURPRISINGLY, AS PER GROUND NO. 2 RAISED BEFORE THE TRIBUNAL, IT IS STAT ED THAT THIS PAYMENT IS OUT OF SALE CONSIDERATION BUT WHEN CONFRONTED THAT HOW CHEQUE C AN BE USED TO MAKE PAYMENT IN CASH, A DIFFERENT CONTENTION WAS RAISED BY THE LEAR NED AR OF THE ASSESSEE THAT SUCH PAYMENT IS OUT OF SAVING FROM OTHER INCOMES. THIS C ONTENTION RAISED AS AFTERTHOUGHT HAS NO MERIT BECAUSE OTHER INCOME IS ONLY RS. 64,280/- AND THE ASSESSEE REQUIRES MONEY FOR DAY TO DAY EXPENSES ALSO. HENCE, ON THE FIRST ISSUE , I CONFIRM THE ORDERS OF THE LOWER AUTHORITIES. 5. ON THE SECOND ISSUE, I FEEL IT PROPER TO RESTORE THE MATTER BACK TO THE A.O. TO COMPUTE THE CAPITAL GAIN IN THE LIGHT OF THE PROVIS IONS OF SECTION 112 (1) (A) BECAUSE THE INCOME OTHER THAN CAPITAL GAIN IS BELOW THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME TAX. THE A.O. IS DIRECTED TO PASS NECESSA RY ORDER AS PER LAW ON THIS ASPECT AS PER SECTION 112 (1) (A) AFTER PROVIDING ADEQUATE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/ - (A.K. GARODIA) ACCOUNTANT MEMBER BANGALORE: D A T E D : 23.09.2016 AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE ITA NO. 1496(BANG) 2016 3 1. DATE OF DICTATION .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P. S. .. 4 DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER DOES FOR XEROX & ENDORSEMENT . 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 11 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. 12 THE DATE ON WHICH THE FILE GOES TO THE DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER 13 DATE OF DISPATCH OF ORDER