S.Pavan Kumar, CHENNAI V. ITO, CHENNAI

ITA 2278/CHNY/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8634 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 06-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Reopening of assessment; Capital asset; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . , ! . ' , # $ BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBE R AND SHRI. G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO.2278/MDS/2015 # % &% / ASSESSMENT YEAR : 2009-2010. S. PAVAN KUMAR, PLOT NO. 1838, I BLOCK, 20 TH STREET, ANNA NAGAR, CHENNAI 600 040. VS. THE INCOME TAX OFFICER, BUSINESS WARD XIV(3), CHENNAI. [PAN AAGPP 9533P] ( / APPELLANT) ( /RESPONDENT) DEPARTMENT BY : SHRI. T. BANUSEKAR, C.A. '()* + , /RESPONDENT BY : SHRI. SUPRIYO PAL, JCIT. ' + - /DATE OF HEARING : 06-07-2016 .& + - /DATE OF PRONOUNCEMENT : 18-08-2016 / 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)-7, CHENNAI IN ITA NO.20/CIT(A)-7/2014-15, DATED 28.10.2015 FOR THE AS SESSMENT YEAR 2009- 2010 PASSED U/S.143(3) R.W.S. 147 AND 250 OF THE I NCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). ITA NO.2278/MDS/2015. :- 2 -: 2. THE ASSESSEE HAS RAISED TWO SUBSTANTIVE GROUNDS (I) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE REOPENING OF ASSESSMENT BY LD. ASSESSING OFFICER AS VALID AND IRRESPECTIVE OF FACT OF CHANGE OF OPINION AND THE MATERIAL WAS ALREADY CONS IDERED IN ORIGINAL ASSESSMENT U/S.143(3) OF THE ACT (II) THE LD. COMM ISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF =91,8 0,000/- ON SALE OF RURAL AGRICULTURAL LAND AS THE SAME IS IN THE NATURE OF A GRICULTURAL LAND BUT THE LD. ASSESSING OFFICER HAS ASSESSED IT UNDER THE I NCOME FROM OTHER SOURCES. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND FILED RETURN OF INCOME ON 30.09.2009 DISCLOSING TOTAL INCOME OF =2,52,549/- AND AGRICULTURAL INCOME OF =1,69,280/- AND THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT ORDER U/ S.143(3) OF THE ACT WAS PASSED ON 19.12.2011. SUBSEQUENTLY, THE LD. ASSESSI NG OFFICER HAD REASONS TO BELIEVE THAT INCOME HAS ESCAPED ASSESS MENT HAS ISSUED NOTICE U/S.148 OF THE ACT. IN COMPLIANCE THE LD. A UTHORISED REPRESENTATIVE OF ASSESSEE APPEARED AND FILED SUBMISSIONS AND ALS O FILED A LETTER DATED 09.04.2014 TO TREAT ORIGINAL RETURN FILED IN RES PONSE TO NOTICE U/S.148 OF THE ACT AND REQUESTED REASONS FOR REOPENING OF ASSESSMENT AND THE SAME WAS COMMUNICATED TO THE ASSESSEE ON 03.09.2014 AS UNDER:- AS PER OFFICE RECORDS THE ASSESSEE RECEIVED AN AM OUNT OF =91,80,000/- RECEIVED TOWARDS SETTLEMENT THROUGH ITA NO.2278/MDS/2015. :- 3 -: CHEQUE DATED 27.06.2008 (AXIS BANK LTD) VIDE A REHABILITATION AND SETTLEMENT AGREEMENT. THIS HAS NOT BEEN INCLUDED AS INCOME BY THE ASSESSEE. HENCE, I HAVE REASON TO BELIEVED THAT INCOME CHARGEABLE TO TAX HA S ESCAPED ASSESSMENT FOR THE ASSESSMENT YEAR 2009- 2010. THE LD. AUTHORISED REPRESENTATIVE FILED LETTER DATE D 22.09.2014 QUESTIONING THE LEGALITY OF THE NOTICE AND OBJECTIN G TO THE RE-ASSESSMENT PROCEEDINGS AND REOPENING IS BAD IN LAW AS NO FRESH TANGIBLE MATERIAL IS AVAILABLE AND THE ISSUE OF NOTICE BY THE LD. ASSES SING OFFICER IS BASED ON CHANGE OF OPINION. THE ASSESSEE HAS ADMITTED A SUM OF =91.80 LAKHS IN THE INCOME TAX RETURN AS PER REHABILITATION AND SE TTLEMENT AGREEMENT IN CONNECTION WITH TRANSFER OF AGRICULTURAL LAND. THE LD. ASSESSING OFFICER DISPOSED OFF THE OBJECTIONS RAISED BY THE ASSESSEE THROUGH A SEPARATE ORDER AND RELIED ON THE JUDICIAL DECISIONS REFERRE D AT PAGE 3 OF HIS ORDER AND DISMISSED THE OBJECTIONS RAISED BY THE ASSESSEE AND EXPLAINING THAT THE REOPENING OF ASSESSMENT IS NOT BASED ON CHANGE OF OPINION BUT ON MATERIAL FACTS. THE REOPENING IS SOLELY BASED ON THE FACTS THAT THE ASSESSEE HAS SOLD AGRICULTURAL LAND AS PER REGISTE RED SALE DEED FOR A CONSIDERATION OF =48.60 LAKHS AND THE PURCHASER HAS PAID STAMP DUTY BASED ON PURCHASE CONSIDERATION. THE LD. AUTHORISED REPRESENTATIVE FILED A LETTER DATED 21.10.2014 EXPLAINING THAT THE ASSESSE E HAS RECEIVED =91.80 LAKHS IN CONNECTION WITH SALE OF AGRICULTURAL LAND ONLY AND THE SCHEDULE OF PROPERTY IS SAME AS CONVEYED BY WAY OF SALE DEED REFERRED IN ITA NO.2278/MDS/2015. :- 4 -: REHABILITATION AND SETTLEMENT AGREEMENT. THE LD. AS SESSING OFFICER VERIFIED THE CLAUSES OF REHABILITATION AND SETTLEMENT AGREEM ENT AND ALSO JUDICIAL DECISIONS RELIED BY THE ASSESSEE ON TREATMENT OF SA LE OF AGRICULTURAL LAND WERE THE SALE DEED WAS EXECUTED FOR TRANSFER OF PRO PERTY FOR A CONSIDERATION OF =48.60 LAKHS. THE LD. ASSESSING OF FICER PRESUMED THAT THE AMOUNT PAID BY THE DEVELOPER THROUGH REHABILITATION AND SETTLEMENT AGREEMENT IS NOT IN CONNECTION WITH TRANSFER OF PRO PERTY AND CONCLUDED AS INDEPENDENT RECEIPT AND CHARGED TO INCOME TAX UNDER INCOME FROM OTHER SOURCES AND PASSED ORDER U/S.143(3) R.W.S. 147 DATE D 27.10.2014. AGGRIEVED BY THE ORDER, THE ASSESSEE FILED AN APPEA L BEFORE COMMISSIONER OF INCOME TAX (APPEALS). 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED RE PRESENTATIVE ARGUED THE GROUNDS. THE FIRST GROUND BEING VALIDIT Y OF RE-ASSESSMENT IS BAD IN LAW BASED ON MERE CHANGE OF OPINION. THE LD . AUTHORISED REPRESENTATIVE CHALLENGED THE RE-ASSESSMENT PROCEED INGS AND FILED WRITTEN SUBMISSIONS AND JUDICIAL DECISIONS ON 26.10 .2015 REFERRED AT PARA 5.1 AT PAGE 3 & 4 OF HIS ORDER AS UNDER:- A) THAT THE ASSESSING OFFICER HAS MERELY STATED THAT THE REASON FOR REOPENING DUE TO AMOUNT OF RS.91,80,000/- RECEIVED TOWARDS SETTLEMENT VIDE REHABILITATION AND SETTLEMENT AGREE MENT WHICH HAS NOT BEEN INCLUDED IN 'INCOME' AND HAS NOT IDENTIFIE D ANY 'SPECIFIC REASON' TO BELIEVE THAT INCOME HAS ESCAPED ASSESSME NT. B) THAT THE REOPENING IS BAD IN LAW AS ACCORDING TO TH E APPELLANT, THE AO WAS FULLY AWARE THAT AN AMOUNT OF =91,80,OOO /- WAS RECEIVED BY THE APPELLANT AS REHABILITATION AND SET TLEMENT ITA NO.2278/MDS/2015. :- 5 -: COMPENSATION. HENCE THE AO HAD BASED HIS REASONS ON THE VERY MATERIAL WHICH WAS AVAILABLE AT THE TIME OF OR IGINAL ASSESSMENT. C) THAT THE REASSESSMENT, IN THE ABSENCE OF FRESH TANG IBLE MATERIAL, IS MERELY A CHANGE OF OPINION, AND ANY REASSESSMENT ON SUCH CHANGE OF OPINION IS BAD IN LA W. D) THAT THE ASSESSMENT ORDER WAS PASSED IN HASTE. IT H AS BEEN SUBMITTED THAT THE ORDER DISPOSING OFF THE OBJECTIO NS OF THE APPELLANT IN RE- OPENING THE CASE WAS PASSED BY THE AO ON 13.10.2014, AND THE REASSESSMENT ORDER WAS PASSED O N 27.10.2014, WHICH IS LESS THAN A PERIOD OF FOUR WEEK. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSI DERED THE GROUNDS AND SUBMISSIONS AND DISTINGUISHED JUDICIAL DECISI ONS AND RELIED ON THE VARIOUS ORDERS OF THE COURT AND CONFIRMED THAT RE-A SSESSMENT PROCEEDINGS ARE VALID AND DISMISSED THE GROUND OF THE ASSESSE E. 4.1 ON THE NEXT GROUND, THE LD. AUTHORISED REPRESEN TATIVE EXPLAINED THAT THE ASSESSEE HAS EXECUTED SALE DEED IN RESPEC T OF AGRICULTURAL LAND OF 1 ACRE 9 CENTS AT OONAMANCHERY VILLAGE, CHENGALPAT TU TALUK, KANCHEEPURAM DIST FOR =48,60,000/- AND ALSO REHABIL ITATION AND SETTLEMENT AGREEMENT WAS ENTERED ON 30.06.2008 AND THE LD. COM MISSIONER OF INCOME TAX (APPEALS) REFERRED TO THE CLAUSE AT PAGE 2 OF THE AGREEMENT IN HIS ORDER AT PAGE 10 AS UNDER:- A) THE VENDOR HAS CONVEYED THE SCHEDULE MENTIONED PROP ERTY TO THE PURCHASER BY A SEPARATE SALE DEED FOR SEPARATE CONS IDERATION. B) THE VENDOR HAS REQU ESTED THE PURCHASER TO MAKE PAYMENT OF RESETTLEMENT AND REHABILITATION COMPENSATION AND TA KING INTO ITA NO.2278/MDS/2015. :- 6 -: CONSIDERATION THE FACTS AND CIRCUMSTANCES, THE PURC HASER HAS AGREED TO THE SAME. NOW THIS AGREEMENT WITNESS THAT 1) THE PURCHASER HAS THIS DAY PAID A SUM OF RS.91,8 0,OOO/- TO THE VENDOR BY WAY OF CHEQUE BEARING NO.129709 DATED 27. 06.2008 DRAWN ON AXIS BANK LTD., VELACHERY BRANCH, CHENNAI AS RES ETTLEMENT COMPENSATION THE RECEIPT OF WHICH BY TRANSFER OF FU NDS INTO THE ACCOUNT OF THE VENDOR TO BE WITHDRAWN BY THE VENDOR , THE VENDOR HEREBY ADMITS AND ACKNOWLEDGES AND FURTHER CONFIRMS THE FULL AND FINAL SETTLEMENT OF ALL TYPES OF COMPENSATION AND PAYMENTS, HOWSOEVER, DUE TO THE VENDOR FROM THE PURCHASER TOWARDS RESETTLEMENT AND REHABILITATION. 2) THE VENDOR CONFIRMS AND DECLARES THAT ANY PERSON MAY ACT ON THE BASIS OF THIS AGREEMENT. AND CONSIDERED THE FINDINGS OF THE LD. ASSESSING OF FICER AND REHABILITATION AND SETTLEMENT AGREEMENT AND THERE IS NO BINDING CL AUSE OF SALE DOCUMENT TO ENTER INTO SEPARATE AGREEMENTS FOR PAYM ENT OF ADDITIONAL AMOUNT =91,80,000/-. THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) FOUND FROM THE SUBMISSIONS OF THE ASSESSEE THAT THE REHABILITATION AND SETTLEMENT AGREEMENT IN RESPECT OF SALE DEED CLEARL Y MENTION THE LAND TO BE TRANSFERRED AND ALSO THE REFERENCE OF SALE DEED WAS MADE IN FOR TRANSFER OF LAND. THE POINT OF DISPUTE ARISES WER E THE ASSESSEE CLAIMS AMOUNT OF =91,80,000/- ON THE SAME FOOTING AS SALE OF AGRICULTURAL LAND AND THE AGRICULTURAL LAND IS NOT BE TREATED AS CAP ITAL ASSET. THE LD. ASSESSING OFFICER CONSIDERED THE SALE DEED IN RESPE CT OF AGRICULTURAL LAND EXECUTED ON 09.07.2008 AND ACCEPTS THAT THERE IS SA LE OF LAND WHICH IS NOT ITA NO.2278/MDS/2015. :- 7 -: DISPUTED BUT THE CONTENTION OF THE LD. ASSESSING OF FICER WAS THAT THERE IS NO MENTION OF PAYMENT OF =91,80,000/- WHEREAS THE R EHABILITATION AND SETTLEMENT AGREEMENT WAS EXECUTED ON 30.06.2008 AND SALE DEED WAS EXECUTED AFTER NINE DAYS ON 09.07.2008. THE FACT TH AT THE ASSESSEE HAS NOT DISCLOSED THIS AMOUNT IN THE SALE DEED. THE LD . COMMISSIONER OF INCOME TAX (APPEALS) ANALYZED THE REHABILITATION AN D SETTLEMENT AGREEMENT EXECUTED ON 30.06.2008 AND CAME TO A CO NCLUSION THAT THE AGREEMENT DOES NOT SPECIFY ABOUT THE PAYMENT OF =91 .80 LAKHS IS PART OF THE TOTAL CONSIDERATION OF IMPUGNED AGRICULTURAL LA ND AND THESE PAYMENTS ARE NOT DISCLOSED IN REGISTERED SALE DEED FOR THE R EASONS KNOWN TO THE ASSESSEE. THEREFORE, THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) IS OF THE OPINION THAT THE AGRICULTURAL LAND SOLD AS PER SALE DEED FOR =48,60,000/- AS PER THE SUB-REGISTRAR OFFICE AND AD DITIONAL =91,80,000/- AS PER THE REHABILITATION AND SETTLEMENT AGREEMENT CANNOT FIT INTO THE TRANSACTION OF SALE OF AGRICULTURAL LAND AND CONCUR RED WITH THE FINDINGS OF THE LD. ASSESSING OFFICER AND DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE COMMISSIONER OF INCOME TAX (APPEAL S) ORDER, THE ASSESSEE ASSAILED AN APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE OF ASS ESSEE REITERATED THE SUBMISSIONS MADE IN THE APPELLATE PR OCEEDINGS ALONGWITH DOCUMENTARY EVIDENCE IN SUPPORT OF THE GROUNDS. TH E LD. AUTHORISED ITA NO.2278/MDS/2015. :- 8 -: REPRESENTATIVE ARGUED ON THE VALIDITY OF RE-ASSESSM ENT PROCEEDINGS THAT IN THE ORIGINAL PROCEEDINGS, THE LD. ASSESSING OFFI CER HAS VERIFIED THE TRANSACTIONS AND NO NEW MATERIAL WERE FOUND, TO ISS UE NOTICE U/S.148 OF THE ACT WAS ONLY A MERE CHANGE OF OPINION AS THERE IS NO INCOME ESCAPING ASSESSMENT. THE ADDITIONAL PAYMENT OF =91. 80 LAKHS IS IN RESPECT OF AGRICULTURAL LAND AS PER REHABILITATION AND SETT LEMENT AGREEMENT WHICH IS NOT DISPUTED BUT ONLY THE CHARACTER AND NATURE O F PAYMENTS AND ALSO FILED JUDICIAL CASES TO SUPPORT HIS GROUNDS THAT T HE ASSESSMENT IS ONLY ON CHANGE OF OPINION BASED ON THE INFORMATION ON RECOR D. 5.1 ON THE ASPECT OF SECOND GROUND, THE LD. AUTHORI SED REPRESENTATIVE ARGUED THAT THE TRANSACTION WAS FOR THE SAME PROPERTY THOUGH REHABILITATION AND SETTLEMENT AGREEMENT AND ASSESSEE HAS DISCLOSED THE FACT IN HIS COMPUTATION OF INCOME FIL ED WITH INCOME TAX DEPARTMENT AND ALSO FILED PAPER BOOK IN SUPPORT OF AGRICULTURAL LAND AND PRAYED FOR ALLOWING THE APPEAL. 6. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND VEHEMEN TLY OPPOSED TO THE GROUNDS. ITA NO.2278/MDS/2015. :- 9 -: 7. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIA L ON RECORD AND JUDICIAL DECISIONS CITED. THE LD. AUTHORISED RE PRESENTATIVE ARGUED ON THE VALIDITY AND LEGAL IMPLICATION OF REASSESSMENT PROCEEDINGS AS BAD AND THERE IS NO VALID REASONS AND NO INTANGIBLE MATERIA L WAS AVAILABLE ON RECORD FOR ISSUING NOTICE U/S.148 OF THE ACT AS IT IS ONLY A MERE CHANGE OF OPINION ON THE SAME SET OF FACTS WHICH WAS CONSIDER ED IN THE ORIGINAL ASSESSMENT. WE PERUSED THE PAPER BOOK AT PAGE 15 & 16 WERE THE ORDER U/S.143(3) OF THE ACT WAS PASSED DATED 19.12.2011, THE THEN LD. ASSESSING OFFICER HAS PASSED TWO PAGE ORDER AND THE RE IS NO SPECIFIC MENTION IN THE ORDER BUT THE LD. ASSESSING OFFICER HAS MADE A FINDING THAT DOCUMENTARY EVIDENCE PRODUCED WERE PERUSED AND RET URNED, FURTHER THE AIR INFORMATION AVAILABLE IN THE SYSTEM WAS VERIFIE D. THE FACT THAT THE LD. ASSESSING OFFICER HAS NOT MADE ANY SATISFACTORY NOT E IN HIS ORDER WITH RESPECT OF SALE OF AGRICULTURAL LAND EVEN THOUGH AG RICULTURAL INCOME IS ACCEPTED. SO, PRIME FACIE ON PERUSAL OF THE ASSESS MENT ORDER THERE IS NO IOTA OF DISCUSSION ON THE FACTS ON SALE OF AGRICULT URAL LAND AND REHABILITATION AND SETTLEMENT AGREEMENT. THE LD. A SSESSING OFFICER HAS ISSUED NOTICE U/S.148 OF THE ACT WITHIN A PERIOD O F FOUR YEARS. AS PER THE INFORMATION THE ASSESSEE HAS NOT DISCLOSED =91,80,0 00/- RECEIVED BY CHEQUE AS PER REHABILITATION AND SETTLEMENT AGREEME NT. THE LD. ASSESSING OFFICER PROVIDED THE REASONS ON THE REQUEST OF THE ASSESSEE AND CONSIDERED THE OBJECTIONS CHALLENGING THE REOPENING AND THE LD. ASSESSING ITA NO.2278/MDS/2015. :- 10 -: OFFICER PASSED A SEPARATE ORDER ON REOPENING OF AS SESSMENT PROCEEDINGS CONSIDERING THE INFORMATION AND REASONS FOR REOPENI NG OF ASSESSMENT, OBJECTIONS OF THE ASSESSEE TREATED THAT THE REOPENI NG OF ASSESSMENT AS VALID. THE LD. AUTHORISED REPRESENTATIVE DREW OUR A TTENTION TO THE COMPUTATION STATEMENT WERE THE SALE OF RURAL AGRICU LTURAL LAND IS MENTIONED. PRIME FACIE, THE PRESENT LD. ASSESSING OFFICER HAS RELIED ON THE RECORDS THAT THE PREDECESSOR HAS NOT VERIFIED T HE DETAILS AND BELIEVE THAT THERE IS INCOME ESCAPED ASSESSMENT. WE ARE OF THE OPINION THAT THE ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT AND THE NOTICE U/SEC. 148 OF THE ACT AND THE OBJECTIONS AND ORDER PASSED BY THE ASSESSING AUTHORITY ON REOPENING, THE LD. ASSESSING OFFICER IN ORIGINAL ASSESSMENT HAS NOT SEEN OR VERIFIED THIS ASPECT AND PASSED THE ORDER ON 19.02.2011 U/S.143(3) OF THE ACT, THEREFORE WE ARE INCLINED T O UPHOLD THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) ON THE VALIDAL ITY OF RE-ASSESSMENT PROCEEDINGS AND DISMISS THE ASSESSEES GROUND. 7.1 ON THE NEXT GROUND WERE THE LD. ASSESSING OFFIC ER TREATED THE AMOUNT OF =91,80,000/- RECEIVED TOWARDS SALE OF AGR ICULTURAL LAND AS INCOME FROM OTHER SOURCES. THE LD. AUTHORISED REPR ESENTATIVE REITERATED THE CONTENTIONS MADE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT THE ASSESSEE HAS ENTERED INTO A AGRE EMENT WITH BUILDER ON 30.06.2008 REFERRED AT PAGE 13 & 14 OF PAPER BOOK. AS PER THE ITA NO.2278/MDS/2015. :- 11 -: AGREEMENT, THE PURCHASER HAS MADE PAYMENT OF =91,80 ,000/- BY CHEQUE AS RESETTLEMENT COMPENSATION AND ALSO TO DEAL WITH SPECIFIC ACTION THAT THE VENDOR SHALL CONVEY THE PROPERTY BY SEPARATE SALE D EED. THE LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO PAG E 6 OF PAPER BOOK WERE THE SALE DEED IS EXECUTED IN RESPECT OF THE SA ME PROPERTY REFERRED IN REHABILITATION SETTLEMENT DEED AND THE MARKET VALUE OF PROPERTY IS =48,60,000/- IN RESPECT OF AGRICULTURAL LAND. IN T HE ASSESSMENT PROCEEDINGS, THE LD. ASSESSING OFFICER ACCEPTS THE AMOUNT OF =48,60,000/- PAID TO THE ASSESSEE BY THE PURCHASER IS TOWARDS AG RICULTURAL LAND CONVEYED THE POSITION BY REGISTERED SALE DEED DATED 09.07.2008. BUT THE AMOUNT CREDITED TO THE ASSESSEES BANK ACCOUNT =91, 80,000/- WAS RECEIVED BY UNREGISTERED REHABILITATION SETTLEMENT AGREEMENT WERE THE SCHEDULE OF LAND MENTIONED IN SALE DEED AND THE REH ABILITATION AGREEMENT ARE SAME BUT LD. ASSESSING OFFICER TOOK DIFFERENT VIEW THAT IT IS NOT PART AND PARCEL OF AGRICULTURAL LAND BUT A SEPARATE IN DEPENDENT RECEIPT AND TREATED AS INCOME FROM OTHER SOURCES. THE LD. AUT HORISED REPRESENTATIVE DREW OUR ATTENTION TO THE ACKNOWLEDGMENT OF RETURN OF INCOME, COMPUTATION OF INCOME AND STATEMENT OF SALE OF RURA L AGRICULTURAL LAND AT PAGE 2 TO 5 AND ARGUES THAT THIS INFORMATION WAS FI LED WITH THE DEPARTMENT AND LD. ASSESSING OFFICER HAS COMPLETE K NOWLEDGE AND THESE FACTS ARE CHALLENGED IN RE-ASSESSMENT PROCEEDINGS. WE FIND THE RETURN OF INCOME FILED ELECTRONICALLY BY THE ASSESSEE AS PER PAGE 2 OF PAPER BOOK ON ITA NO.2278/MDS/2015. :- 12 -: 30.09.2009. BUT THE COMPUTATION OF STATEMENT OF TOT AL INCOME AND STATEMENT OF SALE OF RURAL AGRICULTURAL LAND ARE NO T PRINT OUT OF INCOME TAX DEPARTMENT WEBSITE WHICH IS RELIED BY THE ASSE SSEE EXCEPT ON THE DISPUTE OF DISCLOSURES BUT THERE IS NO AMBIGUITY ON SALE OF AGRICULTURAL LAND BY THE REVENUE. THE ACTION OF THE ASSESSEE IS NOT DISCLOSING THE SAID DISPUTED AMOUNT AS PER REHABILITATION AGREEMENT IN SALE DEED MAY BE TO AVOID STAMP DUTY WERE AS THE SALE DEED WAS REGISTE RED ON A MARKET VALUE OF =48,60,000/-. THIS PAYMENT WAS IN ADDITIO N TO THE SALE CONSIDERATION RECEIVED AS PER SALE DEED. PRIME FACI E THERE IS NO DISPUTE WITH RESPECT OF CHARACTER OF AGRICULTURAL LAND THOU GH IT HAS RECEIVED IN TWO SEGMENTS. WE TAKE SUPPORT FROM THE DECISION OF CIT VS. INTEZAR ALI 372 ITR 0651 (ALL) IT WAS HELD AS UNDER:- ASSESSEE AS HONEST CITIZEN NOT ONLY MADE COMPLAIN T TO REGISTERING AUTHORITY THAT SALE DEED HAD BEEN REGIS TERED AT VALUE MUCH BELOW AMOUNT, WHICH HE HAD ACTUALLY RECEIVED, HE DEPOSITED ENTIRE AMOUNT IN BANK AND VOLUNTARILY FILED RETURN. THERE WAS NO MATERIAL WHA TSOEVER OR ANY CIRCUMSTANCE, WHICH COULD HAVE SUGGESTED THAT SUCH AMOUNT WAS RECEIVED BY HIM FROM ANY OTHER SOUR CE. DEPOSITION OF WITNESS OF SALE DEED, BANK MANAGER AN D EVIDENCE FILED WITH REGARD TO VALUATION OF PROPERTY WAS MORE THAN SUFFICIENT TO DISCHARGE BURDEN, WHICH AO HAD UNREASONABLY PLACED ON ASSESSEE. AO IN DISBELIEVING EVIDENCE HAD NOT GIVEN ANY REASONS WHATSOEVER TO DISCARD STATEMENT OF WITNESSES, DEPOSIT OF ENTIRE S ALE CONSIDERATION IN BANK AND DEPOSITION OF BANK MANAGE R. ASSESSEE HAD NOT ONLY DEPOSITED ENTIRE AMOUNT IN BA NK BUT ALSO INFORMED REGISTERING AUTHORITY OF DEFICIEN CY OF STAMP IN SALE DEED. IN CASE OF ONE OF PURCHASER, ASSESSING OFFICER HAD ACCEPTED THAT HE WAS OWNER OF THE MONEY I.E. 97,80,000/- AND ACCORDINGLY ADDITION OF 77,80,000/- WAS ITA NO.2278/MDS/2015. :- 13 -: MADE IN HIS HAND ON SUBSTANTIAL BASIS AS HIS INCOME . REVENUES APPEAL DISMISSED. SO, CONSIDERING THE APPARENT FACTS, MATERIAL EVIDEN CE, JUDICIAL DECISIONS WHETHER THESE FACT ARE DISCLOSED BEFORE LD. ASSESSI NG OFFICER IN THE ORIGINAL RETURN FILED ELECTRONICALLY. WE DIRECT TH E LD. ASSESSING OFFICER TO VERIFY FROM THE INCOME TAX WEBSITE WHETHER THIS AM OUNT WAS DISCLOSED IN ELECTRONIC RETURN ITR III FILED ON 30.09.2009 AND A FTER SATISFYING THE LD. ASSESSING OFFICER SHALL EXAMINE THE CHARACTERISTIC OF AGRICULTURAL LAND FROM THE PURCHASER AND ALLOW THE CLAIM OF THE ASSESSEE B Y TREATING THE TRANSACTION AS SALE OF AGRICULTURAL LAND AND THE ASSESSEE SHALL BE PROVIDED WITH ADEQUATE OPPORTUNITY OF HEARING BEFORE PASSING THE ORDER ON MERITS. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 18 TH DAY OF AUGUST, 2016 AT CHENNAI. SD/- SD/- ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER ( . ) (G. PAVAN KUMAR) ! ' / JUDICIAL MEMBER / CHENNAI / / DATED: 18 TH AUGUST, 2016. KV 0 + '#-12 32&- / COPY TO: 1 . )* / APPELLANT 2. '()* / RESPONDENT 3. ' 4- () / CIT(A) 4. ' 4- / CIT 5. 2 78 '#-# / DR 6. 89% : / GF