ACIT, CHENNAI V. John baptist Lasrado, CHENNAI

ITA 1640/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7681 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 15-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 02-06-2016
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: K HEMALATHA
• Keywords: Salary income; Assessment record
• Section: 143(3); 147; 54

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI M. BALAGANESH , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, J UDICIAL MEMBER ./ I.T.A. NO. 1640 /MDS/201 6 / ASSESSMENT YEAR :20 08 - 09 THE ASSISTANT COMMISSIONER OF INCOME TAX , NON - CORPORATE CIRCLE 15(1) , C HENNAI 600 034 . VS. SHRI JOHN BAPTIST LASRADO, 26/23, 3 RD SEAWARD ROAD, VALMIKI NAGAR , THIRUVANMIYUR, CHENNAI 600 041. [PAN:AA DPJ7078G ] ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI A.V. SREEKANTH, JCIT / RESPONDENT BY : MS. K. HEMALATHA, C.A. / D ATE OF HEARING : 15 . 02 .201 7 / DATE OF P RONOUNCEMENT : 28 . 02 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) 15 , CHENNAI , DATED 2 3 .0 2 .2016 RELEVANT TO THE ASSESSMENT YEAR 20 08 - 09 . THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE REVENUE IS THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF .46,00,000/ - MADE BY THE ASSESSING OFFICER TREATING T HE SAME AS INCOME FROM OTHER SOURCES, IN VIOLATION OF THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES. I.T.A . NO . 1640 /M/ 1 6 2 2. T HE APPEAL OF THE REVENUE IS FOUND TO HAVE BEEN FILED LATE BY THREE DAYS BEFORE THE TRIBUNAL. THE ASSESSING OFFICER HAS FILED AN AFFIDAVIT FOR C ONDONATION OF DELAY BY STATING THAT THE RECORDS OF THE CASES WAS NOT TRACEABLE AND THEREFORE COULD NOT FILE THE APPEAL WITHIN TIME. THE LD. DR, CITING THE REASONS AS STATED BY THE ASSESSING OFFICER, REQUESTED FOR CONDONING THE DELAY AND TO ADMIT THE APPEAL FOR HEARING. THE LD. COUNSEL FOR THE ASSESSEE DID NOT OBJECT TO THE SUBMISSIONS OF THE LD. DR AND THUS, WE CONDONE THE DELAY OF THREE DAYS IN FILING THE APPEALS AND ADMIT THE APPEAL FOR HEARING. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN IND IVIDUAL AND HAVING INCOME FROM SALARY, HOUSE PROPERTY INCOME AND INTEREST INCOME. THE ASSESSEE HAS FILED HIS INCOME DECLARING TOTAL INCOME OF .10,44,920/ - AND THE SAME WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. THE ASSESSING OFFICER HAS OBSERVED FROM THE RECORDS THAT IN THE VERIFICATION REPORT OF ITO IV(I&CI), CHENNAI DATED 05.06.2013, IT WAS MENTIONED THAT DURING THE YEAR, THE ASSESSEE HAS SOLD AN IMMOVABLE PROPERTY ON 12.10.2007 BY WAY OF POWER OF ATTORNEY. FURTHER, THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 54 OF THE ACT BY INVESTING IN A NEW RESIDENTIAL PROPERTY AND HE IS NOT ELIGIBLE FOR THE CLAIM AS THE CONSTRUCTION OF NEW PROPER TY WAS COMPLETED ON 29.03.2011 ONLY, BEYOND 3 YEARS FROM THE DATE OF SALE AND THAT TOO THE CAPITAL GAINS WERE NOT INVESTED IN CAPITAL GAIN ACCOUNT SCHEME. IT WAS ALSO I.T.A . NO . 1640 /M/ 1 6 3 NOTICED THAT THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 09 WAS FILED BY THE ASSESS EE IN BUSINESS WARD III(3) AND LATER ON IT WAS FORWARDED TO BUSINESS CIRCLE III AND THE SAME WAS PROCESSED. IT WAS VERIFIED FROM THE RETURN OF INCOME THAT THE FULL VALUE OF CONSIDERATION RECEIVED BY THE ASSESSEE WAS .2.00 CRORES MORE THAN ADMITTED BEFORE THE ITO (I&CI), CHENNAI. FURTHER, THE PROPERTY SOLD WAS VACANT LAND AND THE ASSESSEE IS ELIGIBLE ONLY FOR DEDUCTION UNDER SECTION 54F. THE ASSESSEE ALREADY OWNS 3 PROPERTIES, ON WHICH 2 MAY BE RESIDENTIAL AND HENCE THE ASSESSEE MAY NOT BE ELIGIBLE FOR ANY DEDUCTION AT ALL. 3 .1 UNDER THE ABOVE FACTS AND CIRCUMSTANCES, THE ASSESSING OFFICER REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT AND COMPLETED THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT BY ASSESSING TOTAL INCOME OF THE ASSESSEE AT .1,37,17,722/ - . 4 . THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LD. CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND WHILE DOING SO, THE LD. CIT(A) HAS DELETED THE ADDITION OF .46,00,000/ - MADE BY THE ASSESSING OFFICER TREATING THE SAME AS INCOME FROM OTHER SOURCES . 5 . ON BEING AGGRIEVED AGAINST THE DELETION OF ADDITION, THE REVENUE IS IN APPEAL. THE LD. DR HAS VEHEMENTLY CONTENDED THAT WITHOUT VERIFYING THE ASSESSMENT RECOR DS, THE LD. CIT(A) HAS SIMPLY ACCEPTED THE PLEA OF THE ASSESSEE THAT COPIES OF THE MINOR S DOCUMENTS AND OTHER EVIDENCES WITH I.T.A . NO . 1640 /M/ 1 6 4 RESPECT TO SALE CONSIDERATION OF MINOR S PROPERTY WAS PLACED BEFORE THE ASSESSING OFFICER, WHICH WAS NOT FACTUALLY PLACED ON RECOR D BEFORE THE ASSESSING OFFICER AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDERS OF LD. CIT(A). 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THRO UGH THE ORDERS OF AUTHORITIES BELOW. THE FACTS LEADING TO THE GROUND RAISED BY THE REVENUE ARE THAT THE ASSESSEE HAS ENTERED INTO AN AGREEMENT FOR SALE ON 12.10.2007 WITH THE BUYERS MR. K.V. PRASAD AND MR. K. RAJASEKAR FOR THE SALE OF THE ABOVE MENTIONED P ROPERTY FOR A TOTAL SALE CONSIDERATION OF .1,54,00,000/ - AND THE CONSIDERATION WAS RECEIVED IN TWO INSTALMENTS (A) .85,50,000/ - PAID BY MR. K. RAJASEKAR ON 05.04.2007 AND (B) .68,50,000/ - ON 07.04.2007 PAID BY MR. K.V. PRASAD. FROM THE ABOVE IT IS CLEAR THAT THE FULL VALUE OF CONSIDERATION OF T HE SAID PROPERTY WAS ONLY .1,54,00,000/ - BUT THE ASSESSEE HAS CLAIMED THE FULL VALUE OF CONSIDERATION RECEIVED WAS .2.00 CRORES MORE THAN ADMITTED BEFORE THE ITO (I&CI), CHENNAI. THE ASSESSING OFFICER HAS FURTHER OBSERVED THAT THE FULL VALUE OF CONSIDERA TION OF THE SAID PROPERTY WAS ONLY .1,54,00,000/ - BUT THE ASSESSEE HAS CLAIMED THAT FULL VALUE OF CONSIDERATION RECEIVED WAS .2,00,00,000/ - . AS THE FULL VALUE OF CONSIDERATION FOR THE TRANSFER OF THE SAID PROPERTY WAS .1,54,00,000/ - AND IN THE EVENT OF RECEIPT OF .2,00,00,000/ - BY THE I.T.A . NO . 1640 /M/ 1 6 5 ASSESSEE AS CLAIMED IN HIS RETURN OF INCOME, THE DIFFERENCE AMOUNTING TO .46,00,000/ - HAS BEEN DETERMINED AS OTHER INCOME AND THE SAME WAS ADDED BACK TO THE INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURC ES . MOREOVER, THERE WAS NO MENTION IN THE ASSESSMENT ORDER AS CLAIMED BY THE ASSESSEE BEFORE THE LD. CIT(A) THAT THE AMOUNT OF .46,00,000/ - IS THE SALE CONSIDERATION OF MINOR S PROPERTY. W ITHOUT VERIFYING THE ASSESSMENT RECORDS, THE LD. CIT(A) HAS SIMPL Y ACCEPTED THE WRITTEN SUBMISSION RAISING THE PLEA OF THE ASSESSEE THAT THE AMOUNT OF .46,00,000/ - WAS THE SALE CONSIDERATION OF MINOR S PROPERTY, WHICH WAS DEPOSITED IN COURT ACCOUNT AS PER DIRECTION BY THE HON BLE MUNICIPAL COURT, CHENGALPUT. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND REMIT THE MATTER BACK TO THE ASSESSING OFFICER AS TO WHETHER THE ASSESSEE HAS FILED ANY SUCH DOCUMENT AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER ALLOWIN G OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THE 28 TH FEBRUARY , 201 7 AT CHENNAI. SD/ - SD/ - ( M. BALAGANESH ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEM BER CHENNAI, DATED, THE 28 . 02 .201 7 VM/ - I.T.A . NO . 1640 /M/ 1 6 6 / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.