Sri P. Gunasekaran, CHENNAI V. ITO, CHENNAI

ITA 2203/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7903 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 21-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAHADEVAN
• Assessee Lawyers: P RAJASEKARAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO. 2203/MDS/2016 / ASSESSMENT YEAR : 2010-11 SHRI P. GUNASEKARAN, C/O SHRI P. RAJASEKARAN, CA, POST BOX NO.3, NO.4, NATIONAL THEATRE BUILDINGS, WEST TAMBARAM, CHENNAI 45. PAN : AFDPG9543A V. THE INCOME TAX OFFICER, SALARY WARD III (1), CHENNAI. ( /APPELLANT) ( !' /RESPONDENT) # /APPELLANT BY : SHRI P. RAJASEKARAN, CA !' # /RESPONDENT BY : SHRI B. SAHADEVAN, JCIT # /DATE OF HEARING : 05.01.2017 # /DATE OF PRONOUNCEMENT : 31.01.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 9, CHENN AI DATED 18.03.2016 AND PERTAINS TO THE ASSESSMENT YEAR 2010 -11. 2 I.T.A. NO. 2203/MDS/2016 2. SHRI P. RAJASEKARAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERAT ION IS CASH DEPOSIT OF 16,13,000/- WITH THE CORPORATION BANK, MOUNT ROAD B RANCH. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE S OLD A FLAT AT CHEPAUK FOR 18,55,000/- ON 26.08.2009. HOWEVER, THE SALE CONSIDERATION DISCLOSED IN THE SALE DEED WAS 5,50,000/-. THE ASSESSEE HAS DEPOSITED THE BALANCE AMOUNT OF 16,13,000/- IN THE BANK ACCOUNT. REFERRING TO THE ORDER OF THIS TRIBU NAL IN THE CASE OF SHRI R.ANANTHA PADMANABAN V INCOME TAX OFFICER IN I TA NO.10/MDS/2013, THE LD. REPRESENTATIVE SUBMITTED TH AT THE CONSIDERATION RECEIVED BY THE ASSESSEE WHEN COMPARE D TO THE MARKET VALUE IS VERY FAIR. THE PROXIMITY BETWEEN T HE DATE OF SALE AND THE DATE ON WHICH THE DEPOSIT WAS MADE IN THE B ANK ALL PUT TOGETHER, SHOWS THAT THE ASSESSEE HAS RECEIVED IN F ACT 16,13,000/. IN VIEW OF THIS DECISION OF THE CO-ORDINATE BENCH O F THIS TRIBUNAL, ACCORDING TO THE LD. REPRESENTATIVE, THE ADDITION M ADE BY THE ASSESSING OFFICER ON THE DEPOSIT MADE IN THE BANK A CCOUNT CANNOT BE TREATED AS UNEXPLAINED INCOME OF THE ASSESSEE. 3. ON THE CONTRARY, SHRI B. SAHADEVAN, THE LD. DEPA RTMENTAL REPRESENTATIVE SUBMITTED THAT THE PURCHASER OF THE PROPERTY FROM 3 I.T.A. NO. 2203/MDS/2016 THE ASSESSEE, CLAIMS THAT HE PAID ONLY 5,50,000/-. IN FACT, THE PURCHASER WAS EXAMINED BY THE ASSESSING OFFICER AND THE PURCHASER HAS DENIED THE CLAIM OF THE ASSESSEE THAT HE PAID 16,13,000/- OVER AND ABOVE THE SALE CONSIDERATION D ISCLOSED IN THE SALE DEED. 4. ON A QUERY FROM THE BENCH, WHETHER THE COPIES OF THE SAID STATEMENT RECORDED FROM THE PURCHASER WAS GIVEN TO THE ASSESSEE AND THE OPPORTUNITY WAS GIVEN TO THE ASSESSEE FOR C ROSS EXAMINATION, THE LD. REPRESENTATIVE SUBMITTED THAT THERE WAS NO REFERENCE ABOUT FURNISHING THE COPIES OF THE STATEM ENT RECORDED FROM THE PURCHASER AND HAVING GIVEN AN OPPORTUNITY TO THE ASSESSEE FOR CROSS EXAMINATION OF THE PURCHASER IN THE ASSES SMENT ORDER. THE LD. REPRESENTATIVE SUBMITTED THAT THEREFORE AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE FOR CROSS EXAMINATION OF T HE PURCHASER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSE SSEE CLAIMS THAT THE SALE CONSIDERATION DISCLOSED IN THE SALE DEED W AS 5,50,000/- AND OVER AND ABOVE HE RECEIVED A SUM OF 16,13,000/-. THEREFORE, THE TOTAL CONSIDERATION COMES TO 21,63,000/-. PLACING RELIANCE ON 4 I.T.A. NO. 2203/MDS/2016 THE ORDER OF THIS TRIBUNAL IN THE CASE OF SHRI R. A NANDA PADMANABAN (SUPRA), THE ASSESSEE CLAIMS THAT THE DEPOSIT WAS MADE ON THE DATE CLOSE TO THE DATE OF EXECUTION OF SALE DEED AND THE ASSESSEE HAS NO OTHER SOURCE OF INCOME OTHER TH AN SALARY FROM LIC. IF THAT IS SO, WHAT WAS THE ACTUAL SALE CONSI DERATION PAID BY THE PURCHASER HAS TO BE EXAMINED. IT IS ALSO TO BE EXA MINED THE SOURCE FOR PAYING 18,55,000/- TO THE ASSESSEE. WHEN THE ASSESSING OFFICER ACCEPTED THE STATEMENT OF THE PURCHASER THA T HE PAID ONLY 5,50,000/- TO THE ASSESSEE, SHE HAS TAKEN NO STEPS TO COUNTER VERIFY THE STATEMENT MADE BY THE ASSESSEE THAT HE R ECEIVED 18,55,000/- FROM THE PURCHASER. THEREFORE, THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER OUGHT TO HAVE FURNISHED THE COPY OF THE STATEMENT RECORDED FROM T HE PURCHASER APART FROM EXAMINING THE SOURCE OF THE ASSESSEE FOR MAKING DEPOSIT IN THE BANK ESPECIALLY WHEN THE ASSESSEE CLAIMS THA T HE HAS NO OTHER SOURCE OTHER THAN SALARY FROM LIC. 6. IN VIEW OF THE ABOVE, THE ORDERS OF THE LOWER AU THORITIES ARE SET ASIDE AND THE ENTIRE ISSUE OF CAPITAL GAIN IS R EMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AFRESH AFTER FURNISHING THE C OPY OF THE 5 I.T.A. NO. 2203/MDS/2016 STATEMENT RECORDED FROM THE PURCHASER AND ALSO PROV IDING AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE PU RCHASER. THE ASSESSING OFFICER ALSO BRING ON RECORD, THE SOURCE OF THE ASSESSEE AND THE PURCHASER. THEREAFTER THE ASSESSING OFFICE R SHALL DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW AFTER GIVI NG REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 31 ST JANUARY, 2017 AT CHENNAI. SD/- SD/- ( . . ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) /ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, /DATED, THE 31 ST JANUARY, 2017. JR. # ! $ % $ /COPY TO: 1. /APPELLANT 2. !' /RESPONDENT 3. &' ( )/CIT(A)-9, CHENNAI 4. &' /CIT 5. ! $ /DR 6. () /GF.