Sri P. Balasubramanian, CHENNAI V. ITO, Chidambaram

ITA 2296/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6422 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-07-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 05-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Revised return
• Section: 139(5)

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC C BENCH, CHENNAI , ! '# $ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER . / ITA NO. 2296/MDS/2016 / ASSESSMENT YEAR : 2012-13 SHRI P. BALASUBRAMANIAN , THE INCOME-TAX OFFICER, F1, OM MURUGAN HOMES, V. NON CORPORATE WARD 21(1), NO.7, 9 TH STREET, CHENNAI. PARTHASARATHY NAGAR, ADAMBAKKAM, CHENNAI 600 088. PAN AADPB8709L ( /APPELLANT) RESPONDENT) / APPELLANT BY : SHRI A.S. SRIRAMAN, ADVOCATE / RESPONDENT BY : SHRI B. SAGADEVAN, JCIT ! / DATE OF HEARING : 12.07.2017 '# ! / DATE OF PRONOUNCEMENT : .08.2017 '% / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-14 DATED 20.06.2016 FOR ASSESSMENT YEAR 2012-13. 2. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS WITH REGARD TO CONFIRMING THE ASSESSMENT OF 40 LAKHS ON THE - - ITA 2296/MDS/16 2 APPLICATION OF SEC.68 OF THE ACT IN THE COMPUTATION OF TAXABLE TOTAL INCOME WITHOUT ASSIGNING PROPER REASONS AND J USTIFICATION. 3. THE FACTS OF THE CASE ARE THAT FOR THE ASSESSMEN T YEAR 2012-13, THE ASSESSEE FILED RETURN OF INCOME BELATE DLY ON 29.8.2012. IN THE SAID RETURN OF INCOME THE ASSESS EE DISCLOSED THE FOLLOWING PARTICULARS OF CAPITAL GAINS ON ACCOU NT OF SALE OF A PROPERTY IN THANJAVUR AS UNDER : SALE PRICE : 19,23,800 INDEXED PURCHASE PRICE : 11,05,634 CAPITAL GAIN : 8,19,166 SUBSEQUENTLY, A REVISED RETURN OF INCOME WAS FILED ON 26.10.2012, WHEREIN THE ABOVE PARTICULARS WERE SHOW N AS UNDER: SALE PRICE : 60,00,000 INDEXED PURCHASE PRICE : 8,48,322 CAPITAL GAIN : 51,51,678 3.1 THE ASSESSING OFFICER DURING THE COURSE OF ASSE SSMENT PROCEEDINGS CALLED FOR AND VERIFIED THE COPIES OF B ANK STATEMENT, PURCHASE DEED AND OTHER RELEVANT DOCUMENTS AND FOUN D THAT AN AMOUNT OF 40 LAKHS IN CASH WAS CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE ON 2.2.2012. WHEN THE AO CALLED FO R THE SOURCE OF THE CASH DEPOSIT, THE ASSESSEE SUBMITTED THAT 40 LAKHS WAS - - ITA 2296/MDS/16 3 RECEIVED IN CASH AS SALE PROCEEDS OF THE PROPERTY S ITUATED AT 6 TH CROSS, NATARAJAPURAM SOUTH, THANJAVUR. THE AO OBSE RVED THAT AS PER THE COPY OF THE SALE DEED DATED 02.02.2012 I N RESPECT OF THE SAID PROPERTY, THE PLOT WAS SOLD FOR 19,24,800/- ONLY. THE AO ISSUED SUMMONS U/S.131 TO THE PURCHASER OF THE P LOT, SHRI SAKTHIVEL AND RECORDED A SWORN STATEMENT FROM SHRI SAKTHIVEL ON 8.1.2015. IN THE SWORN STATEMENT, SHRI SAKTHIVEL S TATED THAT HE HAS PAID 20,00,000/- ONLY TOWARDS THE PURCHASE OF THE PLOT. THEREFORE, ACCORDING TO THE AO, THE ASSESSEE FAILED TO SUBMIT ANY EVIDENCE IN RESPECT OF HIS CLAIM THAT EXCESS OF SALE PROCEEDS RECEIVED WERE DEPOSITED IN HIS BANK ACCOUNT. THE U NEXPLAINED CASH DEPOSIT OF 40 LAKHS WAS TREATED AS UNEXPLAINED INCOME U/S.68 OF THE ACT UNDER THE HEAD INCOME FROM OTHER SOURCES AND THE AO ADDED AN AMOUNT OF 40 LAKHS U/S.68 AS UNEXPLAINED CASH DEPOSIT TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE C IT(APPEALS). 4. ON APPEAL, THE CIT(APPEALS) OBSERVED THAT THE AS SESSEE FILED THE ORIGINAL RETURN OF INCOME FOR THE A.Y. 20 12-13 ON 29.8.2012, BEYOND THE DUE DATE FOR FILING OF THE RE TURN I.E. - - ITA 2296/MDS/16 4 31.7.2012. A REVISED RETURN OF INCOME WAS FILED ON 26.10.2012. THE CIT(APPEALS) RELIED ON THE JUDGMENT OF THE SUPR EME COURT IN THE CASE OF KUMAR JAGDISH CHANDRA SINHA V. CIT ( 86 TAXMAN 122)(SC), WHEREIN IT WAS HELD AS UNDER : SECTION 139(5) OF THE INCOME TAX ACT, 1961 RETURN OF INCOME REVISED RETURN ASSESSMENT YEARS 1964-65 TO 1965-66 WHETHER, IN CASE OF A RETURN FILED UNDER SECTION 139(4), A REVISED RETURN CONTEMPLATED BY SECTION 139(5) CAN BE FILED HELD, NO. THE CIT(APPEALS) FOLLOWED THE DECISION OF THE SUPRE ME COURT CITED SUPRA AND OBSERVED THAT THE REVISED RETURN FI LED BY THE ASSESSEE ON 26.10.2012 IS HELD TO BE AN INVALID RET URN. 4.1 THE CIT(APPEALS) OBSERVED THAT THE AO HAS RIGHT LY HELD THAT THE ASSESSEE FAILED TO PROVE WITH EVIDENCE HIS CONTENTION THAT AN AMOUNT OF 40 LAKHS CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE ON 2.2.2012 WAS, IN FACT, DEPOSITED BY THE PURCHASER OF THE PROPERTY, SHRI SAKTHIVEL. EVEN BEFORE THE CIT( APPEALS), THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE IN SUPPORT OF HIS CONTENTION. - - ITA 2296/MDS/16 5 4.2 FURTHER, THE CIT(APPEALS) OBSERVED THAT THE PUR CHASER OF THE PROPERTY, SHRI SAKTHIVEL IN HIS SWORN STATEMENT RECORDED ON 18.1.2015 STATED THAT HE PURCHASED THE ABOVE MENTIO NED PROPERTY SITUATED AT NO.85B, NATARAJAPURAM SOUTH CO LONY, THANJAVUR, MEASURING TWO GROUNDS FROM SHRI P. BALASUBRAMANIAN AND HE CONFIRMED THAT HE HAS PURCHA SED THE AFORESAID PLOT FOR 20 LAKHS AND NOT PAID ANY AMOUNT IN EXCESS OF 20 LAKHS. THEREFORE, ACCORDING TO THE CIT(APPEALS ), THERE IS NO EVIDENCE TO PROVE THAT THE CASH DEPOSIT WAS SOUR CED FROM THE PURCHASER OF THE PROPERTY. FURTHER, THE CIT(APPE ALS) OBSERVED THAT THE ASSESSEE DID NOT MAKE ANY PLEA TO CROSS EX AMINE THE PURCHASER BEFORE THE AO AND THE ASSESSEE ATTEMPTED TO MISLEAD THE AO BY FILING AN INVALID REVISED RETURN STATING THAT THE CASH WAS RECEIVED FROM SHRI SAKTHIVEL. THEREFORE, THE C IT(APPEALS) AGREED WITH THE ACTION OF THE AO IN TREATING THE AM OUNT OF 40 LAKHS AS UNEXPLAINED INCOME U/S.68 OF THE ACT AND C ONFIRMED THE ADDITION. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE CONTENTION OF THE LD. AR IS THAT THE ASSESSE E HAS RECEIVED A SUM OF 60 LAKHS FOR SALE OF A PLOT AND 40 LAKHS IS - - ITA 2296/MDS/16 6 CREDITED IN THE BANK ACCOUNT, WHICH TO BE CONSIDER ED AS SALE CONSIDERATION IN VIEW OF PREVAILING GUIDELINE VALUE OF THE PROPERTY. FURTHER, HE CONTENDED THAT AN OPPORTUNITY OF HEARIN G WAS NOT GIVEN TO THE ASSESSEE, TO EXPLAIN THE SAME. 6. ON THE OTHER HAND, LD.D.R SUBMITTED THAT THE PUR CHASER OF THE PROPERTY CONFIRMED THAT THE ASSESSEE HAS PURCHA SED THE PROPERTY ONLY FOR ` 20 LAKHS AND HE HAS NOT PAID ANY AMOUNT IN EXESS OF ` 20 LAKHS. FURHTER, LD.D.R SUBMITTED THAT THE ASSES SEE DID NOT MAKE ANY PLEA TO CROSS-EXAMINE THE PURCHASE R BEFORE THE AO AND ADMITTED TO MISLEAD THE AO WHILE FILING THE REVISED RETURN STATING THAT THE CASH WAS RECEIVED FROM PURCHASER, VIZ., SHRI SAKTHIVEL. THE LD. DR RELIED ON THE ORDER OF THE C IT(APPEALS). 7. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD. IN THIS CASE, THE MAIN PLEA OF ASSESSEE IS THAT THE ASSESSEE HAS RECEIVED MONEY FROM THE SALE OF PROPER TY AT ` 16 LAKHS, WHICH IS EQUIVALENT TO GUIDELINE VALUE OF TH E SAID PROPERTY, THOUGH IT WAS NOT DISCLOSED IN THE ORIGINAL RETURN OF INCOME, IT WAS DISCLOSED IN REVISED RETURN DATED 26.12.2012, WHICH IS WITHIN THE DUE DATE FOR FILING THE REVISED RETURN I.E. 31.03.2 013, IT IS TO BE - - ITA 2296/MDS/16 7 CONSIDERED AS A VALID RETURN AND ON THE BASIS OF IT , THE ASSESSMENT ORDER TO BE FRAMED. CONTRARY TO THIS, T HE AO BROUGHT ON RECORD THAT THE PURCHASER HAS DENIED PAYING MONE Y IN EXCESS OF ` 20 LAKHS IN A SWORN STATEMENT RECORDED FROM SHRI SA KTHIVEL ON 08.01.2015. FURTHER, THE ARGUMENT OF THE LD.A.R IS THAT THE AO HAD NOT COMMENTED ANYTHING ABOUT HIS REVISED RET URN AND IF IT IS NOT EXPLAINED PROPERLY IN THE REVISED RETURN, TH EN ONLY THE AO CAN TREAT IT AS UNEXPLAINED INCOME IN THE HANDS OF ASSESSEE. BUT AS SEEN FROM THE FINDING S OF THE LD.CIT(A), THE AS SESSEE FILED AN ORIGINAL RETURN OF INCOME FOR ASSESSMENT YEAR 2012- 13 ON 29.08.2012, WHICH IS A BELATED RETURN AS DUE DATE F OR FILING THE SAME IS ON OR BEFORE 31.07.2012 AND THE REVISED RET URN WAS FILED ON 26.10.2012. IN VIEW OF THE JUDGEMENT OF SUPREME COURT IN THE CASE OF KUMAR JAGDISH CHANDRA SINHA VS. CIT ( 86 TA XMAN 122 SC), THE REVISED RETURN FILED BY THE ASSESSEE IS I NVALID RETURN. ACCORDINGLY, THIS ARGUMENT OF THE LD.A.R IS REJECTE D. 7.1 COMING TO THE ADDITION OF ` 40 LAKHS, THE ASSESSEE IS NOT ABLE TO PROVE THIS IS EMANATED FROM THE SALE OF PRO PERTY AS THE PURCHASER DENIED OF PAYMENT OF SAID MONEY TO THE AS SESSEE AND - - ITA 2296/MDS/16 8 THE ASSESSEE HAS NOT BEEN ABLE TO SHOW THE SOURCE O F THAT AMOUNT OF ` 40 LAKHS. HENCE, THE ADDITION IS SUSTAINED. 8. IN THE RESULT, THE APPEAL IS ASSESSEE IS DISMIS SED. ORDER PRONOUNCED ON 21 ST AUGUST,, 2017 AT CHENNAI. SD/- ( $ % & ' ) ()*+,-*.//0*-12 ! 34566/7+8*+89:;<:- $= /CHENNAI, >3 /DATED, THE 21 ST AUGUST, 2017. K S SUNDARAM 3? @ABA / COPY TO: 1 . / APPELLANT 3. C2 / CIT(A) 5. ADE F / DR 2. / RESPONDENT 4. C / CIT 6. EGH / GF