D.Devadass, CHENNAI V. ITO, CHENNAI

ITA 2047/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9710 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 12-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 07-10-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B LAKSHMINARAYANAN IRS
• Assessee Lawyers: K MEENAKSHISUNDARAM ITP
• Keywords: Unexplained investment
• Section: 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . ! ' , #'$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO.2047/MDS/2015 # % &% / ASSESSMENT YEAR : 2011-2012 SHRI. D. DEVADASS, NO.55, BHARATHI STREET, SELLI AMMAN NAGAR, AMBATTUR, CHENNAI 600 058. [PAN AEFPD 4821D ] VS. INCOME TAX OFFICER, SALARY WARD III(1) CHENNAI. ( / APPELLANT) ( /RESPONDENT) '( ) * / APPELLANT BY : SHRI. K. MEENAKSHISUNDARAM, ITP +,'( ) * /RESPONDENT BY : SHRI. B. LAKSHMINARAYANAN, IRS, JCIT. ! ) - / DATE OF HEARING : 12-01-2016 ./& ) - / DATE OF PRONOUNCEMENT : 07-04-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-9, CHEN NAI IN ITA NO.12/2014-15/CIT(A)-9, DT 01.09.2015 FOR THE ASSES SMENT YEAR 2011- ITA NO.2047/MDS/2015 :- 2 -: 2012 PASSED U/S.143(3) AND 250 OF THE INCOME TAX A CT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). 2. THE ASSESSEE HAS RAISED THREE SUBSTANTIVE GROUNDS AGAINST (I) DENIAL OF EXEMPTION U/S.54F OF THE ACT (II) AD DITION BY THE ASSESSING OFFICER TWICE THE SALE CONSIDERATION AND (III) UNEXPLAINED INVESTMENT IN RESPECT OF LAND. 3. THE BRIEF FACTS OF THE CASE THAT THE ASSESSEE IS A RETIRED SALARY EMPLOYEE OF CHENNAI PORT TRUST AND FILED RE TURN OF INCOME ON 22.07.2011 WITH TOTAL INCOME OF ?8,76,140/- AND THE RETURN WAS PROCESSED U/S.143(1) OF THE ACT ON 01.09.2011. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S.143(2) OF TH E ACT WAS SERVED ON THE ASSESSEE. IN RESPONSE TO NOTICE, THE LD. AUT HORISED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME T O TIME AND FILED THE INFORMATION. THE LD. ASSESSING OFFICER ON PERU SAL OF AIR INFORMATION FOUND THE ASSESSEE HAS MADE CASH DEPOS ITS OF ?80,36,000/- IN TAMIL NADU MERCANTILE BANK LTD BETW EEN 06.12.2010 TO 19.03.2011 AND DEMAND DRAFT OF ?39,00,000/- WA S CREDITED IN BANK ACCOUNT AND AGGREGATE DEPOSITS WORKED OUT TO ?1,19,35,000/-. THE LD. AUTHORISED REPRESENTATIVE EXPLAINED THE SOU RCES FOR THE DEPOSITS ALONGWITH EVIDENCE ON VARIOUS DATES AND SU BMITTED THAT THE ITA NO.2047/MDS/2015 :- 3 -: ASSESSEE INHERITED FROM HIS LATE FATHER ALONGWITH H IS MOTHER, FOUR BROTHERS AND SISTER 8.6 ACRES OF AGRICULTURAL LAND S AT PARUTHIPATTU VILLAGE IN AVADI AND THE LAND WAS SOLD FOR CONSIDER ATION OF ?5,34,10,000/-. THE ASSESSEE PURCHASED RESIDENTIA L PLOT AT MANGADU AND CONSTRUCTED HOUSE IN THE NAME OF HIS UNMARRIED DAUGHTER OUT OF NET SALE CONSIDERATION AND CLAIMED EXEMPTION U/S.54 F OF THE ACT. IN CONTINUATION TO THE EXPLANATION, THE ASSESSEE CLARI FIED THAT ONE OF THE CO-OWNER BEING SISTER WAS GIVEN DOWRY AND OTHER FIN ANCIAL ASSISTANCE BY LATE FATHER DURING HER MARRIAGE AND SET APART 50 CENTS OF LAND FOR THE DAUGHTER AND WAS SOLD FOR ?35,00,000/- AND MOTH ER OF THE ASSESSEE IS ALSO A CO-OWNER WHO CO-OPERATED IN SA LE OF LAND WAS PROVIDED WITH FIXED DEPOSIT OF ?10,00,000/- AND AFT ER ADJUSTING THE SHARE OF SISTER AND MOTHER THE REMAINING AMOUNT WA S EQUALLY SHARED BY FIVE BROTHERS. OUT OF THE SALE CONSIDERATION, A SSESSEE AVAILED TAX EXEMPTION U/S.54F OF THE ACT. THE ASSESSEE PURCH ASED 2380 SQ.FT LAND ON 21.01.2011 IN THE NAME OF DAUGHTER AT SREE AMBAL GAJALAKSHMI NAGAR, PHASE II IN MANGADU AND CONSTRU CTED BUILDING WITH PLINTH AREA OF 4000 SQ.FT. OUT OF NET SALE CO NSIDERATION OF ?97,82,000/- ASSESSEE PURCHASED LAND FOR ?19,33,00 0/- INCLUDING DOCUMENT CHARGES 1,60,000/- AND SPENT AN AMOUNT OF ?79,49,000/- IN CONSTRUCTION OF HOUSE AND MEASURING 4000 SQ.FT AND TOTAL NET SALE CONSIDERATION WAS UTILIZED. THE ASSESSING OFFICER ON PERUSING THE DATA ITA NO.2047/MDS/2015 :- 4 -: CALLED FOR ADDITIONAL INFORMATION IN RESPECT OF INV ESTMENTS BY LETTER DATED 20.11.2013 FOR PRODUCTION OF RATION CARD, DET AILS OF FAMILY MEMBERS, PLAN APPROVAL COPY ALONGWITH CONSTRUCTION AGREEMENT, CONTRACT INVOICES AND BILLS FOR EXPENSES OF MATERIA L AND PROPERTY TAX PAYMENTS. IN COMPLIANCE TO LETTER ASSESSEE SUBMITT ED RATION CARD, DETAILS OF FAMILY MEMBERS, BUILDING CONSTRUCTION PL AN APPROVED BY THE MANAGU PANCHAYAT AND ASSESSEE UNDER SELF SUPERVISIO N WITH THE HELP OF M/S. ABASUS PROPERTIES (P) LTD CONSTRUCTED SIX FLATS. 3.1 IN RESPECT OF DEPOSITS IN TAMILNADU MERCANTILE B ANK LTD, THE ASSESSEE HAS FURNISHED BANKS ACCOUNT COPY EXPLA INING EACH CREDIT. ON PERUSAL OF THE BANK DEPOSITS AND CASH WITHDRAWAL S, THE ASSESSING OFFICER FOUND THAT THERE ARE WITHDRAWALS IN THE BAN K ACCOUNT, AND WAS NOT DISPUTED BY THE REVENUE. THE ASSESSING OFFICER HAVING SATISFIED WITH THE ASSESSEE SHARE OF SALE CONSIDERATION AND INVESTMENT IN RESIDENTIAL PROPERTY AND COMPLIANCE OF THE CONDITIO NS FOR CLAIMING EXEMPTION U/S. 54F FOUND THAT THE LAND WAS PURCHAS ED ON DAUGHTER NAME AND FLATS ARE CONSTRUCTED. THE LD. ASSESSING OFFICER RECORDED STATEMENT OF THE ASSESSEE REFERRED AT PAGE 8 TO 12 OF HIS ORDER WERE ASSESSEE HAS GAVE CLARIFICATION ON SALE CONSIDERAT ION, FAMILY DETAILS, SOURCE FOR INVESTMENT IN THE PROPERTY AND BUILDING COMPLETION PERIOD AND BANK ACCOUNT DETAILS. THE ASSESSING OFFICER R ECORDED STATEMENT ITA NO.2047/MDS/2015 :- 5 -: FROM UNMARRIED DAUGHTER OF THE ASSESSEE ON WHOSE NA ME THE LAND WAS PURCHASED AND CONSTRUCTED. THE ASSESSING OFFICER C ONSIDERING THE FACTS AND INVESTMENT IN THE NAME OF THE DAUGHTER HA S REJECTED THE CLAIM OF EXEMPTION U/S.54F OF THE ACT. THE LD. ASSE SSING OFFICER ON PERUSAL OF THE BANK ACCOUNT FOUND ASSESSEE HAS WIT HDRAWN THE AMOUNTS AND PAID FOR PURCHASE OF LAND DURING PER IOD FROM 08.12.2010 TO 4.01.2011. THE ASSESSING OFFICER ALL EGED THAT WITHIN A SPAN OF 28 DAYS, THE ASSESSEE HAS TOTALLY WITHDRAWN THE SALE CONSIDERATION FROM BANK ACCOUNT AND IS NOT DISPUTED . THE LAND WAS PURCHASED IN THE NAME OF DAUGHTER SELVI D. DEVAKRUB AI AND WITHDRAWALS WERE UTILIZED FOR CONSTRUCTION OF SEVEN FLATS AFTER OBTAINING PERMISSION FROM THE LOCAL AUTHORITIES. T HE LD. ASSESSING OFFICER VERIFIED DOCUMENTARY EVIDENCE, SALE DEED AND RELIED ON STATEMENT RECORDED IN RESPECT OF SALE CONSIDERATION AND PURCHASE OF THE PROPERTY ON SUSPICION AND SURMISES PRESUMED TH AT ENTIRE SALE CONSIDERATION WAS CREDITED TO THE BANK ACCOUNT AND WITHDRAWN AND UTILIZED FOR THE PURPOSE OTHER THAN ACQUIRING THE ASSET AND TREATED THE ENTIRE SALE CONSIDERATION SPENT FOR ACQUIRING NEW A SSET AS UNDISCLOSED INVESTMENT OF ?97,82,000/-. THE LD. ASSESSING OFFI CER MADE AN ADDITION FOR DIFFERENCE IN SALE CONSIDERATION AFTER RECORDING OF SWORN STATEMENT THAT AS PER THE BANK STATEMENT THERE IS A CASH DEPOSIT OF ?1,19,35,000/- WHEREAS SALE CONSIDERATION AS PER SW ORN STATEMENT TO ITA NO.2047/MDS/2015 :- 6 -: THE SHARE OF THE ASSESSEE IS ?97,82,000/-. THE ASSE SSING OFFICER TREATED THE DIFFERENCE AS UNEXPLAINED INCOME AND OV ERLOOKED SUBMISSIONS THAT ASSESSEE RECEIVED SALE CONSIDERATI ON ALONGWITH HIS BROTHERS, SISTER AND MOTHER AND SHARE OF SISTER I N THE SALE CONSIDERATION COULD NOT BE COLLECTED BY HER AND T HE SAME WAS DEPOSITED IN ASSESSEE BANK ACCOUNT. THE ASSESSING OFFICER ALLEGED THAT THERE IS NO SATISFACTORY PROOF FOR THE SOURCE AND HASTILY CONCLUDED ?21,53,000/- AS UNEXPLAINED INCOME. WITH ABOVE ADDI TIONS, THE ASSESSING OFFICER FINALIZED ASSESSMENT AND ASSESSED TOTAL INCOME ?2,26,60,104/-. AGGRIEVED BY THE ASSESSING OFFICER ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE REITERATED THE SUBMISSIONS MADE BEFO RE ASSESSING OFFICER ALONGWITH DOCUMENTARY EVIDENCES. THE LD. C OMMISSIONER OF INCOME TAX (APPEALS) FOUND THAT ASSESSING OFFICER H AS RECORDED SWORN STATEMENT U/S.131 FROM THE ASSESSEE AND DAUGHTER AN D ALSO ENQUIRY CONDUCTED BY THE INSPECTOR OF THE OFFICE. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE WRITTEN SUBMISS IONS OF THE ASSESSEE AND FINDINGS OF THE ASSESSING OFFICER BUT CONCURRED WITH THE ACTION OF THE ASSESSING OFFICER WERE THE ASSESSEE PURCHASED THE ITA NO.2047/MDS/2015 :- 7 -: PROPERTY IN THE NAME OF DAUGHTER AND RELIED ON THE DECISION OF CIT VS V.R. DESAI (KER) 197 TAXMANN.52 AND ALSO ASSET SHOULD BE PURCHASED IN THE NAME OF ASSESSEE AND RELIED ON THE FOLLOWING DECISIONS. 1. ITO VS. PRAKASH TIMAJI DHANJODE (ITAT, NAGPUR) 81 TTJ 694 - PURCHASE IN THE NAME OF ADOPTED SON. 2. RAM KISHAN VS. ITO 2007-TIOL -178-ITAT-DEL. 3. JAI NARAYAN VS. ITO (P & H) 306 ITR 335 - PURCHASE IN THE NAME OF SON AND GRANDSON. 4. PRAKASH VS. ITO (MUM) 220 CTR 249; 312 ITR 40 - PURCHASE IN THE NAME OF ADOPTED SON. AND REJECTED THE CLAIM OF SEC.54F OF THE ACT AND AL SO CONFIRMED INVESTMENT IN PROPERTY AS UNDISCLOSED INVESTMENT OF ?97,82,000/- AND THE DIFFERENCE IN BANK DEPOSITS AND SALE CONSIDERAT ION ?21,53,000/-. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSID ERED THE FINDINGS OF THE ASSESSING OFFICER, OBSERVATIONS AND WRITTEN SUBMISSIONS IN THE HEARING PROCEEDINGS AND CONCLUDED AS NO FRESH EVIDE NCE OR SUBMISSIONS ARE FILED IN THE APPELLATE PROCEEDINGS AND CONFIRMED THE ADDITIONS. AGGRIEVED BY THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE ASSAILED AN APPEAL BEFORE T RIBUNAL. 5. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE REITE RATED THE SUBMISSIONS OF ASSESSMENT AND APPELLATE PROCEEDINGS AND ARGUED THAT THE ASSESSEE WAS DENIED EXEMPTION U/S.54F OF THE AC T AND HE BEING A RETIRED EMPLOYEE INHERITED AGRICULTURAL LAND AT PAR UTHIPATTU ADJOINING AVADI MUNICIPALITY AS PER THE WILL EXECUTED BY ASS ESSEE FATHER LATE ITA NO.2047/MDS/2015 :- 8 -: DHARMARAJ NADAR DATED 19.01.2001. THE AGRICULTURAL LAND INHERITED BY WIFE OF DECEASED (MOTHER OF THE ASSESSEE) FIVE SONS, SISTER AND MOTHER OF THE ASSESSEE WAS ENTITLED TO LIFE INTERES T TILL HER DEMISE. AS PER THE FAMILY ARRANGEMENT ?10,00,000/- WAS PAID FO R FIXED DEPOSIT IN THE NAME OF MOTHER AND ?35,00,000/- SHARE OF THE SI STER. THE PROPERTY WAS SOLD TO M/S. TEN WIN PROPERTIES (P) LI MITED FOR A CONSIDERATION OF ?5,34,10,000/- AND AFTER SETTING APART OF ?10,00,000/- TO MOTHER AND ?35,00,000/- FOR SISTER SHARE THE BALANCE ?4,89,10,000/- WAS DIVIDED EQUALLY BETWEEN FIVE BRO THERS AND ASSESSEE SHARE WORKED OUT TO ?97,82,000/-. THE ASS ESSEE DEPOSITED SALE CONSIDERATION IN TAMILNADU MERCANTILE BANK LTD INCLUDING INSTALLMENTS OF MOTHER AND SISTER AGGREGATING TO ?1 ,19,35,000/-. SUBSEQUENTLY, THE ASSESSEE UTILISED THE ENTIRE AMOU NTS AND PURCHASED LAND IN THE NAME OF DAUGHTER AND CONSTRUCTED THE FL ATS ON OBTAINING SANCTIONED PLAN AND CLAIMED EXEMPTION U/S.54F OF TH E ACT. THE ASSESSING OFFICER REJECTED THE CLAIM AS THE PROPER TY WAS NOT PURCHASED IN ASSESSEES NAME AND SALE PROCEEDS WERE NOT INVESTED IN CAPITAL GAINS ACCOUNTS SCHEME BEFORE DUE DATE U/SEC . 139(1) OF THE ACT PRIOR TO THE PURCHASE OF RESIDENTIAL PROPERTY. THE LD. AUTHORISED REPRESENTATIVE FURTHER SUBSTANTIATED HIS ARGUMENTS RELYING ON THE JUDICIAL DECISIONS AND BENAMI PROHIBITION ACT AND EXPLAINED THAT LAND WAS PURCHASED IN THE NAME OF UNMARRIED DAUGHTER A ND SHE WAS ITA NO.2047/MDS/2015 :- 9 -: MARRIED SUBSEQUENTLY. ON THE ISSUE OF CAPITAL GAIN S ACCOUNTS SCHEME THE ASSESSEE HAS PURCHASED LAND IMMEDIATELY AFTE R SALE OF PROPERTY AND WITHDREW THE MONEY FROM BANK ACCOUNT AND STARTE D CONSTRUCTION. IN THE PRESENT CASE, THE ASSESSEE ACQUIRED THE LAND BEFORE DUE DATE OF RETURN OF INCOME U/S.139(1) OF THE ACT AND FURTHER ARGUED THAT DUE TO DEPENDENCY OF UNMARRIED DAUGHTER AND TO SECURE HER FUTURE, HE HAS INVESTMENT IN HER NAME. THE ACTION OF THE ASSESSIN G OFFICER ON ADDITION OF ?97,82,000/- AS UNDISCLOSED INVESTMENT IN MANGADU PROPERTY IS NOT CORRECT AS THE ASSESSEE HAS WITHDRA WN THE SALE PROCEEDS OF AGRICULTURAL LAND FROM TAMILNADU MERCAN TILE BANK ACCOUNT WITHIN A PERIOD OF 28 DAYS FOR THE PURCHASE OF RES IDENTIAL LAND AT MANGADU AND WAS PURCHASED BY REGISTERED SALE DEED ON 21.01.2011 AND BALANCE AMOUNT WERE UTILIZED IN CONSTRUCTION OF RESIDENTIAL FLAT AND PAID ADVANCES FOR PURCHASE OF TILES, TIMBER, STEEL , SAND, BLUE METAL ETC., THE ASSESSING OFFICER CONDUCTED ENQUIRY AND I NSPECTOR REPORTED THAT PROPERTY WAS CONSTRUCTED BY THE ASSESSEE BUT THE ASSESSING OFFICER UNDER SUSPICION THE ENTIRE SALE CONSIDERATI ON WAS UTILIZED FOR SOME OTHER PURPOSE AND THE AMOUNT INVESTED IN CONS TRUCTION OF PROPERTY AT MANGADU IS DIFFERENT AND MADE ADDITION AS UNDISCLOSED INVESTMENT WITHOUT ANY EVIDENCE. ITA NO.2047/MDS/2015 :- 10 -: 6. THE LD. ASSESSING OFFICER FURTHER MADE AN ADDITION OF ?21,53,000/- AS UNEXPLAINED INCOME. THE ASSESSEE INHERITED PROPERTY AS THE LEGAL HEIR ALONGWITH BROTHERS, SISTER AND MOTHER. THE MOTHER AND SISTER CO-OPERATED IN SELLING THE PROPERTY AND AS PER INTERNAL FAMILY ARRANGEMENT THE SISTER IS PAID ?35,00,000/- AND ?1 0,00,000/- WAS PAID TO THE MOTHER AS CHARGE WAS CREATED AS PER TH E WILL OF LATE DHARMARAJ NADAR. AT THE TIME OF TRANSACTION OF SALE , INSTALLMENT OF THE SISTER WAS PAID AND WAS OUT STATION AND MOTHER WAS LIVING WITH THE ASSESSEE. THEREFORE, AMOUNT OF ?10,00,000/- PAID TO THE ASSESSEES MOTHER WAS DEPOSITED IN ASSESSEES ACCOUNT AND SIM ILARLY ?11,53,000/- INSTALLMENT OF SISTER SHARE WAS ALSO DEPOSITED IN BANK ACCOUNT. THE ASSESSING OFFICER RECORDED THE STATEM ENT AND HAS OVERLOOKED THE CHARGE CREATED BY THE DECEASED FATHE R ON THE PROPERTY IN FAVOUR OF MOTHER AND SISTER AND TREATED THE AM OUNT AS UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE WITHOUT CONSIDE RING THE WILL DEED. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED PAPER BOOK CONTAINING VARIOUS DOCUMENTS OF PROPERTY PERMIT, PURCHASE DEED OF LAND, COPY OF BANK ACCOUNT, COPY OF SALE DEED AND COPY OF WILL A ND ENGLISH TRANSLATION OF CHARGE CREATED IN FAVOUR OF SISTER A ND MOTHER AND PRAYED FOR ALLOWING THE APPEAL. ITA NO.2047/MDS/2015 :- 11 -: 7. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND OPPOSED TO THE GROUNDS OF THE ASSESSEE. 8. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD AND JUDICIAL DECISIONS CITED. ON THE ISSUE OF CLAIM OF EXEMPTION U/SEC. 54F OF THE ACT, THE LD. AUTHORISED REPRESENT ATIVE ARGUED GROUNDS AND FILED WRITTEN SUBMISSIONS EXPLAINING T HAT THE ASSESSEE HAS PURCHASED THE LAND IN THE NAME OF UNMARRIED DA UGHTER WHO WAS DEPENDENT AND BEFORE DUE DATE OF FILING OF RETURN O F INCOME U/S.139(1) OF THE ACT. THEREFORE, THE ASSESSEE HAS NOT MADE I NVESTMENT UNDER CAPITAL GAINS ACCOUNTS SCHEME. THE LD. COUNSEL DREW ATTENTION TO THE PAPER BOOK AND EXPLAINED THE CONSTRUCTION OF RESID ENTIAL PROPERTY. WE PERUSED THE PROVISIONS OF SEC. 54F OF THE ACT W HICH ARE BENEFICIAL PROVISIONS BUT EXEMPTION U/S.54F HAS TO BE CLAIMED ONLY BY PURCHASING CONSTRUCTING NEW RESIDENTIAL PROPERTY IN ASSESSEE O WN NAME AND NOT ON HIS UNMARRIED DAUGHTER. THIS EXEMPTION IS EXCLU SIVE TO BE CLAIMED BY THE ASSESSEE WHICH CANNOT BE CLUBBED OR APPLIED TO THE BLOOD RELATION OR FAMILY MEMBERS AND ALSO RELY ON THE DEC ISION OF PRAKASH VS. ITO 173 TAXMANN 311 (BOM) 2008 WERE THE LORDSHIP HAVE CONSIDERED THAT THE EXEMPTION SHOULD BE ALLOWED ONL Y IN THE NAME OF ITA NO.2047/MDS/2015 :- 12 -: THE ASSESSEE CONFIRM OF THE ORDER OF THE COMMISSIO NER OF INCOME TAX (APPEALS) ON THIS GROUND AND DISMISS THE GROUND OF THE ASSESSEE. 9. THE LD. ASSESSING OFFICER HAS MADE AN ADDITION OF ?97,82,000/- TO THE RETURNED INCOME WITHOUT CONSIDE RING THE FACTS THAT THE ASSESSEE HAS RECEIVED NET CONSIDERATION FOR HIS SHARE ?97,82,000/- AND THE DEPARTMENT HAS NOT DISBELIEVED AND ACCEPTED . THE ASSESSEE WITHDRAW THE AMOUNT FROM TAMILNADU MERCANTILE BANK LTD AND USED FOR REGISTRATION OF LAND AND THE CONSTRUCTION OF RESIDENTIAL PROPERTY UNDER SELF SUPERVISION AND WITH THE SUPPORT OF FAMILY MEMBERS. THE LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTIO N TO TAMILNADU MERCANTILE BANK ACCOUNT AT PAGE 55 OF PAPER BOOK EXPLAINING THE CREDITS OF SALE PROCEEDS DEPOSITED FROM 6 TH DECEMBER, 2010 TO 15 TH DECEMBER, 2010 AND THE ASSESSEE HAS WITHDRAWN THE TOTAL CONSIDERATION DURING THE P ERIOD FROM 21 ST DECEMBER 2010 TO 4 TH JANUARY, 2011. IT IS CLEARLY EVIDENT FROM ACTION OF THE ASSESSEE THAT MONEY WAS WITHD RAWN AND UTILIZED FOR PURCHASE OF LAND IN THE NAME OF DAUG HTER ON 21.01.2011 BEFORE THE END OF THE PREVIOUS YEAR AND COMMENCED CONSTRUCTION OF RESIDENTIAL FLATS. THE FINDINGS OF THE ASSESSING OFFICER BASED ON SUSPICION WITHOUT CONSIDERING THE CONSTR UCTION EXPENDITURE INCURRED TOWARDS LABOUR, MATERIALS ON DAY TO D AY BASIS BEING HIGHLY ITA NO.2047/MDS/2015 :- 13 -: UNORGANIZED SECTOR. THE OBSERVATIONS OF THE ASSES SING OFFICER THAT THE MONEY HAS BEEN USED FOR SOME OTHER PURPOSE AND INVESTMENT ARE MADE IN THE CONSTRUCTION OF THE RESIDENTIAL PROPERT Y IS FROM UNDISCLOSED SOURCE WHICH ARE DIFFERENT FROM TAMILNADU MERCANTIL E BANK LTD ARE WITHOUT ANY BASIS OR EVIDENCE. BUT ON PERUSAL OF BA NK ACCOUNT PRODUCED IN HEARING PROCEEDINGS, WE FOUND THAT CHEQ UES WERE ALSO ISSUED IN THE NAME OF THE PERSONS, AND THERE IS NO CLARITY ON ISSUE WHETHER THE SAID SUM WAS UTILIZED FOR THE CONSTRUCT ION OF RESIDENTIAL BUILDING. THEREFORE, WE ARE OF THE OPINION THAT T HE MATTER HAS TO BE RE-EXAMINED BY THE ASSESSING OFFICER IN THE ABOVE C ONTEXT. CONSIDERING THE APPARENT FACTS AND CIRCUMSTANCES, W E SET ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND R EMIT THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR VERIFICATION. 10. ON THE LAST GROUND, THE LD. ASSESSING OFFICER MADE AN ADDITION OF ?21,53,000/- BEING NOT SATISFIED WITH T HE SUBMISSIONS ON THE INTERNAL FAMILY ARRANGEMENT BETWEEN THE FAMILY MEMBERS OF THE ASSESSEE. THE MOTHER AND SISTER CO-OPERATED IN THE EXECUTION OF SALE DEED OF LAND AND ?35,00,000/- WAS ALLOTTED TOWARDS SISTER SHARE AND ?10,00,000/- TO THE MOTHER. SINCE THE SISTER WAS N OT AVAILABLE AT THE ITA NO.2047/MDS/2015 :- 14 -: TIME OF TRANSACTION, INSTALLMENT AMOUNT OF SHARE O F SISTER AND MOTHER SHARE ?10,00,000/- AS MOTHER WAS LIVING WITH THE AS SESSEE WAS DEPOSITED IN ASSESSEES BANK ACCOUNT. THE LD. AUT HORISED REPRESENTATIVE EMPHASIZED WITHOUT THE HELP AND CO -OPERATION OF THE MOTHER AND SISTER THE LAND DEAL COULD NOT HAVE BEEN COMPLETED. THE ASSESSING OFFICER ON SUSPICION TREATED DIFFERENCE O F ?21,53,000/- AS UNEXPLAINED INCOME WITHOUT ANY EVIDENCE OR STATEMEN T RECORDED FROM ASSESSEES MOTHER OR SISTER. THE LD. ASSESSING OFFI CER HAS RELIED ON THE SWORN STATEMENT OF ASSESSEE AND DAUGHTER AND MADE ELABORATE FINDINGS IN HIS ORDER ON ADDITION. THE ASSESSING O FFICERS OBSERVATION OF UNEXPLAINED INCOME IS ON IMAGINATION OVERLOOKING THE FACT THAT THE LIFE INTEREST IS CREATED FOR ASSESSEES MOTHER AND SISTER BY WILL OF LATE DHARMARAJ NADAR (FATHER) IN THE YEAR 2001. THE LD. ASSESSING OFFICER HASTILY BASED ON ASSUMPTION MADE AN ADDITION WITHO UT CONSIDERING THE BASIC REALITIES OF BLOOD RELATIONS AND THEIR INFLUE NCE IN COMPLETING THE SALE TRANSACTION. THEREFORE , CONSIDERING THE APPAR ENT FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT MATTER NE ED TO BE RE- EXAMINED AS LD. ASSESSING OFFICER HAS NOT RECORDED ANY STATEMENT OR MADE INQUIRY ON THIS ASPECTS. WE SET ASIDE THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE AND REMIT THE ENTIRE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR LIMITED PURPO SE ONLY TO VERIFY THE ITA NO.2047/MDS/2015 :- 15 -: EXCESS AMOUNT IN BANK AMOUNT PERTAINS TO MOTHER AN D SISTER OF THE ASSESSEE. THE ASSESSEE SHOULD BE PROVIDED ADEQUA TE OPPORTUNITY OF HEARING HEARD BEFORE PASSING AN ORDER. THIS GROUND OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.2047/MDS/2015 IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. . ORDER PRONOUNCED ON THURSDAY, THE 7TH DAY OF APRIL, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ' ) (G. PAVAN KUMAR) /JUDICIAL MEMBER / CHENNAI 2 / DATED:07.04.2016 KV 3 ) +#-45 65&- / COPY TO: 1 . '( / APPELLANT 3. ! 7- () / CIT(A) 5. 5 9: +#-# / DR 2. +,'( / RESPONDENT 4. ! 7- / CIT 6. :;% < / GF