ACIT, Mysore V. Smt Vidya Nagendra, Mysore

ITA 1580/BANG/2005

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5421 (ITAT-BANGALORE)
• Duration Of Justice: 4 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-03-2010
• Assessment Year: 1997-1998
• Appeal Filed On: 21-11-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Assessee Lawyers: D DEVARAJ
• Section: 131; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE A BENCH, BANGALORE BEFORE DR. O.K.NARAYANAN, VICE PRESIDENT AND SHRI SHAILENDRA KUMAR YADAV, JM ITA NO.1580(BNG.)/2005 (ASSESSMENT YEAR : 1997-98) THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2(1, MYSORE. APPELLANT VS SHRI H.P.NAGENDRA, NO.1161, 2 ND CROSS, ASHOKNAGAR, MYSORE RESPONDENT REVENUE BY : SMT. JACINTA ZIMIK VASHAI, CIT-DR ASSESSEE BY : SHRI D.DEVARAJ, CA O R D E R PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) ON THE FOLLOWING GROUNDS; 1. THAT THE CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE SELLER HAD CONFESSED HAVING RECEIVED THE O N MONEY. 2. THE CIT(A) OUGHT TO HAVE NOTED THAT THE LANDS PURCHASED BY THE ASSESSEE IN DECEMBER, 1996 FOR AN ADMITTED CONSIDERATION OF RS.28 LAKHS WERE ACQUIRED BY THE KIADB IN NOVEMBER, 1997 FOR A CONSIDERATION OF RS.1.46 CRORES I.E. WITHIN ONE YEAR FROM THE DAT E OF ITA NO.1580(B)/05 2 PURCHASE BY THE ASSESSEE. THIS LEADS ONE TO INFER THAT ON MONEY MUST HAVE PASSED THROUGH THE ABOVE TRANSACTION. 3. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF CIT(A) BE CANCELLED AND THAT THE ORDER OF THE AO BE RESTORED. 2. DURING THE YEAR, THE ASSESSEE PURCHASED AGRICU LTURAL LAND FOR A TOTAL CONSIDERATION OF RS.24,50,000/- FROM THREE FA MILIES IN THE FOLLOWING MANNER. NAME OF THE SELLER SURVEY EXTENT OF AGRI .LAND SALE CONSIDERATION NO MENTIONED IN THE LAND REGISTRATION DOCUMENT BALASUNDAR & FAMILY 76/1 5 ACRES 4.9 LACS CHIKKALINGAIAH & FLAMIY 81 14.4 ACRES 14.7 LACS LAXMAN SHETTY & FAMILY 76/1 5 ACRES 4.9 LACS 3. THE ASSESSING OFFICER SENT A PROPOSAL TO ASSESS EE FOR COMPLETING THE ASSESSMENT U/S 144 VIDE PROPOSITION NOTICE DATE D -02-02-2005. IN THE PROPOSITION, HE PROPOSED TO MAKE AN ADDITION OF AN AMOUNT OF RS.30.00 LACS AS ON MONEY PAYMENT. TO THIS PROPOSIT ION, THE ASSESSEE OPPOSED THE ACTION OF ASSESSING OFFICER WHICH WAS B ASED ONLY ON ACCOUNT OF SWORN STATEMENT OF SHRI CHIKKALINGAIAH. THE ASSESSEE REQUESTED FOR A COPY OF THE STATEMENT TO BE GIVEN F OR PROPERLY DEFENDING HIS CASE. HOWEVER, ON 30-03-205 U/S 144 R.W.S.147 M ADE ADDITION OF ITA NO.1580(B)/05 3 RS.30.00 LACS ON ACCOUNT OF PURCHASE OF AGRICULTURA L LAND. THE SAME WAS AGITATED BEFORE THE CIT(A). 4. THE CIT(A) AFTER CONSIDERING THE CONTENTION RAIS ED ON BEHALF OF THE ASSESSEE DIRECTED THE ASSESSING OFFICER TO DELE TE THE ADDITION OF RS.23.8 LACS AND RS.6.20 LACS. THE CIT(A FOUND BASI C DEFECT IN THE ORDER OF ASSESSING OFFICER THE TOTAL LAND ACQUIRED BY AS SESSEE (AS PER LAND RECORD IS 25.18 ACRES) WHEREAS THE ASSESSING OFFICE R ADOPTED LAND AREA AT 34.12 ACRES. THE REASON FOR DISCREPANCY IS ON KA RAB LAND WHICH WAS NOT TAKEN INTO CONSIDERATION BY THE ASSESSING OFFIC ER. THE ASSESSING OFFICER CITED THE TRANSACTION OF ACQUISITION BY KIA DB, WHEREIN IT WAS INDICATED THAT MUCH HIGHER COMPENSATION WAS GIVE AN D ALSO SUGGESTED THAT ENTIRE LAND OF 34.12 ACRES OF LAD WAS TAKEN B Y KIADB. THE ASSESSING OFFICER FAILED TO EXAMINE SHRI BALASUNDAR AND SHRI LAKSHMAN SHETTY FAMILIES INSPITE OF ISSUING SUMMONS U/S 131 AND INSPITE OF THAT HE INSERTED THE PURPORTED ON MONEY AMOUNT BY INTERP OLATION OF THE METHOD FOUND IN SHRI CHIKKALINGAIAH. THE ASSESSING OFFICER HAD NO ANY OTHER MATERIALS WHATSOEVER TO SUPPORT THE INTERPOLA TED FIGURES. THIRDLY, A SWORN STATEMENT OF SHRI CHIKKALINGAIAH WHICH WAS HEAVILY RELIED UPON BY THE ASSESSING OFFICER WAS NOT PROVIDED BY THE AS SESSING OFFICER. BESIDES, THIS THE SWORN STATEMENT OF SHRI CHIKKALIN GAIAH WAS NOT BROUGHT OUT IN ITS ENTIRETY. THE SAID TRANSACTION ALSO INVOLVES TWO OTHER PERSONS NAMELY SHRI D.C.THAMANNA AND BASAVARAJ. TH ERE WAS NO ITA NO.1580(B)/05 4 INDICATION AS TO WHETHER THESE TWO PERSONS WERE ALS O EXAMINED THE OPPORTUNITY WAS NOT OFFERED OR GIVEN TO THE ASSESSE E FOR CROSS EXAMINATION OF SHRI CHIKKALINGAIAH, WHICH IS NOT JU STIFIED. THUS, THE ASSESSING OFFICER USED THE INCRIMINATING INFORMATIO N BEHIND THE BACK OF THE ASSESSEE. THE ASSESSING OFFICER HAS RUSHED TO T HE CONCLUSION WITHOUT GOING TO THE ROOT OF THE MATTER. THE ASSES SEE WAS NOT PROVIDED WITH AN OPPORTUNITY TO MAKE OUT HIS CASE. IN VIEW OF THE ABOVE, ADDITION OF ON-MONEY PAYMENTS WERE MADE IN ABSENCE OF ADEQUA TE MATERIAL AND EVIDENCE WHICH IS NOT JUSTIFIED. ACCORDINGLY, THE A SSESSING OFFICER WAS RIGHTLY DIRECTED TO DELETE THE SAME. THIS REASONED FINDING NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THE 01-04-2010 (DR. O.K.NARAYANAN) (SHAILENDRA KUMAR YADAV) VICE PRESIDENT JUDICIAL MEMBER PLACE: BANGALORE DATED: AM* COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) 7. GF(DELHI) BY ORDER AR, ITAT, BANGALORE