E.Balasubramanian, CHENNAI V. ITO, CHENNAI

ITA 1506/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8417 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 26-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: N R SURESH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , ! .#$#%, ' !( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ./ ITA NO.1506/MDS/2016 % *% / ASSESSMENT YEAR : 2011-12 SHRI E. BALASUBRAMANIAN, 21/6, ABC AVENUE, THIRUVOTTIYUR, CHENNAI - 600 019. PAN : AAFPB 8688 L V. THE INCOME TAX OFFICER, BUSINESS WARD X(1), CHENNAI - 600 006. (,-/ APPELLANT) (./,-/ RESPONDENT) ,- 0 1 / APPELLANT BY : SHRI N.R. SURESH, CA ./,- 0 1 / RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT 2 0 3' / DATE OF HEARING : 02.08.2016 45* 0 3' / DATE OF PRONOUNCEMENT : 23.09.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 5, CHENN AI, DATED 22.03.2016 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2 I.T.A. NO.1506/MDS/16 2. SHRI N.R. SURESH, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE EXECUTED A UNREGISTERED SETTLEMENT DEED IN FAVOUR OF HIS WIFE MRS. UMA DEVI BALASUBRAM ANIAN ON 01.01.1998. IN ORDER TO CONFER A TITLE ON MRS. UMA DEVI BALASUBRAMANIAN MORE PARTICULARLY, THE ASSESSEE ALS O EXECUTED A REGISTERED SALE DEED ON 10.08.2010. IN THE SALE DE ED, THERE WAS REFERENCE ABOUT SALE CONSIDERATION AS IF THE ASSESS EE HAS RECEIVED ` 50 LAKHS FROM HIS WIFE. IN FACT, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE HAS NOT RECEIVED ANY SALE CONSIDERATIO N FROM HIS WIFE. THE SALE DEED ITSELF WAS EXECUTED ONLY TO CONFER TI TLE OF THE PROPERTY MORE PARTICULARLY. SINCE THE ASSESSEE HAS ALREADY EXECUTED SETTLEMENT DEED, ACCORDING TO THE LD. REPRESENTATIV E, THE SALE CONSIDERATION REFERRED IN THE SALE DEED CANNOT BE T AKEN AS SUCH. THE ASSESSEE HAS NOT RECEIVED ANY MONEY FROM HIS WI FE. THERE WAS NO ENTRY EITHER IN THE BOOKS OF ACCOUNT OR IN T HE PROFIT & LOSS ACCOUNT OR BALANCE SHEET. ON A QUERY FROM THE BENC H, THE LD. REPRESENTATIVE VERY FAIRLY SUBMITTED THAT THERE WAS NO REFERENCE IN THE REGISTERED SALE DEED ABOUT THE EARLIER UNREGIST ERED SETTLEMENT DEED. MOREOVER, ACCORDING TO THE LD. REPRESENTATIV E, THE REVENUE COULD NOT UNEARTH ANY INVESTMENT MADE BY THE ASSESS EE TO THE EXTENT OF ` 50 LAKHS. IT IS ALSO NOT THE CASE OF THE REVENUE T HAT THE 3 I.T.A. NO.1506/MDS/16 ASSESSEE HAD CASH TO THE EXTENT OF ` 50 LAKHS. IN THOSE CIRCUMSTANCES, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSMENT MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE S ALE DEED CANNOT BE JUSTIFIED. THE LD. REPRESENTATIVE FURTHER SUBMI TTED THAT AN AFFIDAVIT WAS ALSO FILED BY THE ASSESSEE DECLARING THAT HE HAS NOT RECEIVED ANY CONSIDERATION ON TRANSFER OF PROPERTY. A SIMILAR AFFIDAVIT WAS ALSO FILED BY THE ASSESSEES WIFE SMT . UMA DEVI BALASUBRAMANIAN THAT SHE HAS NOT PAID ANY CON SIDERATION FOR TRANSFER OF PROPERTY IN HER FAVOUR BY THE REGISTERE D SALE DEED. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THE ADDITION MADE BY THE ASSESSING OFFICER CANNOT STAND IN THE EYE OF LA W. 3. WE HAVE HEARD SHRI SHIVA SRINIVAS, THE LD. DEPAR TMENTAL REPRESENTATIVE ALSO. THE COPY OF UNREGISTERED SETT LEMENT DEED, AVAILABLE AT PAGE 47 OF THE PAPER-BOOK, SHOWS THAT THE ASSESSEE SETTLED THE PROPERTY IN FAVOUR OF HIS WIFE. UNFORT UNATELY, THIS IS AN UNREGISTERED SETTLEMENT DEED. THE MARKET RATE OF T HE SUBJECT LAND WAS TAKEN AS NIL IN THE SETTLEMENT DEED. MOREOVER, THE ASSESSEE HAS RETAINED THE LIFE INTEREST OVER THE PROPERTY. THEREFORE, IT IS OBVIOUS THAT THE PHYSICAL POSSESSION OF THE PROPERT Y WAS NOT HANDED OVER TO SMT. UMA DEVI BALASUBRAMANIAN. THE ASSESSEE 4 I.T.A. NO.1506/MDS/16 CONTINUED TO BE IN PHYSICAL POSSESSION OF THE PROPE RTY. THE REASON FOR DECLARING THE VALUE OF THE PROPERTY AS NIL APPE ARS TO BE THAT THERE WAS PROHIBITION FOR CONSTRUCTION OF BUILDING BY VIRTUE OF COASTAL REGULATION ACT. SUBSEQUENTLY, THE ASSESSEE EXECUTE D A REGISTERED SALE DEED ON 10.08.2010. THERE WAS NO REFERENCE AB OUT THE EARLIER SETTLEMENT DEED. THEREFORE, THERE WAS A DOUBT WHET HER THE SO- CALLED SETTLEMENT DEED EXECUTED BY THE ASSESSEE IS IN EXISTENCE OR IT IS A MADE BELIEF STORY. IF THERE WAS A REAL SET TLEMENT DEED AS CLAIMED BY THE ASSESSEE BY WAY OF UNREGISTERED SETT LEMENT DEED AND THE ASSESSEE EXECUTED THE SALE DEED IN ORDER TO CONFER THE TITLE MORE PARTICULARLY IN FAVOUR OF HIS WIFE, THERE SHOU LD BE A REFERENCE ABOUT THE SETTLEMENT DEED IN THE SALE DEED. UNFORT UNATELY, SUCH A REFERENCE WAS NOT MADE. THE SALE DEED SPECIFICALLY SAYS THAT THE ASSESSEE HAS RECEIVED SALE CONSIDERATION OF ` 50 LAKHS BY CASH. THE ASSESSEE ACKNOWLEDGED THE RECEIPT OF ` 50 LAKHS IN CASH. 4. THE QUESTION ARISES FOR CONSIDERATION IS WHEN TH E REGISTERED SALE DEED ACKNOWLEDGES THE RECEIPT OF ` 50 LAKHS BY CASH BY THE ASSESSEE, CAN THE ASSESSEE NOW LEAD EVIDENCE BY WAY OF AFFIDAVIT FOR DISPROVING THE CONTENTS OF THE REGISTERED SALE DEED? THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSE SSEE CANNOT LEAD 5 I.T.A. NO.1506/MDS/16 ANY EVIDENCE FOR DISPROVING THE CONTENTS IN THE SAL E DEED WHEN THE EXECUTION OF REGISTERED SALE DEED IS ADMITTED. IN THE CASE BEFORE US, THE ASSESSEE IS NOT DISPUTING ABOUT THE EXECUTI ON OF REGISTERED SALE DEED. THE ASSESSEE CONSCIOUSLY EXECUTED THE R EGISTERED SALE DEED BY ACKNOWLEDGING RECEIPT OF ` 50 LAKHS. THEREFORE, THIS TRIBUNAL CANNOT GO BEYOND THE ACKNOWLEDGEMENT OF TH E ASSESSEE IN THE REGISTERED SALE DEED. 5. DURING THE COURSE OF ARGUMENT, THE LD. REPRESENT ATIVE ALSO SUBMITTED THAT THE UNREGISTERED SETTLEMENT DEED / R EGISTERED SALE DEED WAS EXECUTED BY WAY OF FAMILY ARRANGEMENT. NO DOUBT, WHEN THERE WAS A FAMILY ARRANGEMENT, THERE CANNOT BE ANY TRANSFER OF PROPERTY. AT THE BEST, WE CAN SAY IN A FAMILY ARRA NGEMENT, THE PROPERTIES ARE DIVIDED AMONG THE COPARCENERS OR AMO NG THE PERSONS WHO HAVE ANTECEDENT IN THE TITLE OVER THE P ROPERTY. IN THE CASE BEFORE US, IT IS NOT THE CASE BEFORE THE LOWER AUTHORITIES THAT THE UNREGISTERED SETTLEMENT DEED / REGISTERED SALE DEED WAS EXECUTED IN THE FAMILY ARRANGEMENT. IN FACT, THE S O-CALLED UNREGISTERED SETTLEMENT DEED OR THE REGISTERED SALE DEED DOES NOT REFER ANY FAMILY SETTLEMENT. MOREOVER, IT IS NOT T HE CASE OF THE ASSESSEE THAT THE PROPERTY IN QUESTION BELONGS TO H INDU UNDIVIDED 6 I.T.A. NO.1506/MDS/16 FAMILY. THEREFORE, IT IS OBVIOUS THAT THE ASSESSEE IS THE ABSOLUTE OWNER OF THE LAND IN QUESTION AND NO ONE ELSE HAS A NY ANTECEDENT TITLE OVER THIS PROPERTY INCLUDING THE ASSESSEES W IFE SMT. UMA DEVI BALASUBRAMANIAN. WHEN THE ASSESSEES WIFE HAS NO A NTECEDENT TITLE OVER THE PROPERTY, THE TRANSFER OF PROPERTY C ANNOT BE CONSTRUED AS FAMILY SETTLEMENT. IT IS ALSO NOT THE CASE OF T HE ASSESSEE THAT THE PROPERTY IS SETTLED IN FAVOUR OF ASSESSEES WIFE FO R MAINTENANCE. THE MATTER WOULD STAND IN DIFFERENT FOOTING IN CASE THE PROPERTY WAS TRANSFERRED IN FAVOUR OF THE ASSESSEES WIFE FOR MA INTENANCE. IT IS AN OUTRIGHT SALE OF PROPERTY AS DISCLOSED IN THE SA LE DEED. THEREFORE, THE CLAIM OF THE ASSESSEE THAT THE PROPE RTY WAS TRANSFERRED BY WAY OF FAMILY SETTLEMENT HAS NO MERI T AT ALL. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS NO FAMILY SETTLEMENT AT ALL. IT IS AN OUTRIGHT SALE AS DISCL OSED IN THE SALE DEED. 6. IN VIEW OF ABOVE, THERE IS NO REASON TO INTERFER E WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SA ME IS CONFIRMED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. 7 I.T.A. NO.1506/MDS/16 ORDER PRONOUNCED ON 23 RD SEPTEMBER, 2016 AT CHENNAI. SD/- SD/- ( ! .#$#% ) ( . . . ) (ABRAHAM P. GEORGE) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 23 RD SEPTEMBER, 2016. KRI. 0 .389 :9*3 /COPY TO: 1. ,- /APPELLANT 2. ./,- /RESPONDENT 3. 2 ;3 () /CIT(A)-5, CHENNAI-34 4. PRINCIPAL CIT-9, CHENNAI 5. 9< .3 /DR 6. =% > /GF.