DCIT CIRCLE-1, Nagpur V. SHRI JAIDEEP RAM SATHE, Nagpur

ITA 245/NAG/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1805 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE SHRI A C BAWANE
• Assessee Lawyers: PSP
• Section: 54

Judgement Text

1 ITA NO. 245/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 245/NAG/2013 ASSESSMENT YEAR : 2009 - 10.. DY. COMMISSIONER OF INCOME - TAX, SHRI JAIDEEP RAM SATHE, CIRCLE - 1, NAGPUR. V/S. 161, VIVEKANAND NAGAR, WARDHA ROAD, N AGPUR. PAN ABYPS6903P APPELLANT. RESPONDENT. APPELLANT BY : SHRI NARENDRA KANE. RESPONDENT BY : SHRI A. C. BAWANE. DATE OF HEARING : 29 - 07 - 2015 DATE OF PRONOUNCEMENT : 14 TH AUGUST, 2015 O R D E R PER SHAMIM YAHYA, A.M. . THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 18 - 03 - 2013 AND PERTAINS TO ASSESSMENT YEAR 20 9 - 10. 2. IN THIS CASE IN THE ASSESSMENT ORDER IT IS NOTED THAT AIR INFORMATION WAS RECEIVED REGARDING SALE OF IMMOVABLE PROPERTY WORTH ` .1 CRORE BY THE ASSESSEE. THE ASSESSEE WAS ASKED FOR EXPLANATION IN THIS REGARD. THE FACTS OF TH E CASE WERE THAT SALE DEED WAS BETWEEN SHRI CHANDRA SHEKHAR KULKARNI (VENDOR) AND SMT. 2 ITA NO. 245/NAG/2013 SHYAMA DAYAM AND TWO OTHER PURCHASERS. IN THE SAID SALE DEED THE ASSESSEE HAS SIGNED AS A CONSENTING PARTY AND HE HAS RECEIVED A SUM OF ` .1 CRORE B EING THE SALE CONSIDERATION . THE EXPLANATION BY THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS THAT SHRI CHANDRASHEKHAN KULKARNI WAS A OLD MAN AND IN ANTICIPATION OF MISUSE OF THE SALE CONSIDERATION BY HIS SONS THE ASSESSEE WAS REQUESTED TO ACT ON BEHALF OF S HRI KULKARNI AND MANAGE THE TRANSACTION AND THAT THE ASSESSEE HAS NOT RECEIVED ANY BENEFIT/PROFITS THROUGH THE SAID TRANSACTION. IT WAS FURTHER SUBMITTED THAT SHRI CHANDRASHEKHAR KULKARNI DISCLOSED THE FULL SALE CONSIDERATION IN HIS INCOME TAX RETURN FOR T HE ASSESSMENT YEAR 2009 - 10 AND THAT A DEDUCTION U/S 54 WAS CLAIMED BY HIM IN RESPECT OF REINVESTMENT IN HOUSE PROPERTY AND U/S 54EC IN REINVESTMENT IN BONDS AS PER THE COMPUTATION FILED BY HIM. IT WAS FURTHER SUBMITTED THAT SINCE THE FULL CONSIDERATION H AS BEEN OFFERED BY SHRI KULKARNI, THE ADDITION OF THE SAME IN THE HANDS OF THE ASSESSEE WAS NOT CORRECT. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED AND HE MADE THE IMPUGNED ADDITION. HOWEVER, LEARNED CIT(APPEALS) ACCEPTED THE VERSION OF THE ASSESSEE. HE OBSERVED THAT THERE IS NO DOCUMENTARY EVIDENCE INDICATING OR ANY INDEPENDENT ENQUIRY CAUSED BY ASSESSING OFFICER TO EXAMINE WHETHER THE AMOUNT OF ` .1 CRORE ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSEE ON BEHALF OF THIRD PARTY, HAS IN FACT REACHED/TRA NSFERRED TO ITS T RUE BENEFICIARY OR NOT. LEARNED CIT(APPEALS) ALSO TOOK INTO ACCOUNT THE AVERMENT THAT THE ASSESSEE WAS ONLY A MIDDLEMAN AND SHRI KULKARNI, THE ORIGINAL OWNER, HAD OFFERED THE ENTIRE AMOUNT IN HIS HANDS AS CAPITAL GAIN AND ALSO CLAIMED DEDU CTION UNDER SECTION 54 OF THE I.T. ACT. ACCORDINGLY LEARNED CIT(APPEALS) DIRECTED THAT AN ADDITION IN THE HANDS OF THE ASSESSEE BE DELETED. 3. AGAINST THE ABOVE ORDER, REVENUE IS IN APPEAL BEFORE US. 3 ITA NO. 245/NAG/2013 4. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECOR DS. IT IS TRUE THAT THE ASSESSEE WAS NOT THE V END O R OF THE PROPERTY BUT IT IS ALSO UNDISPUTED THAT HE HAS RECEIVED ` .1 CRORE BEING THE SALE PROCEED OF THE SAID SALE TRANSACTION. HE HAS ALSO SIGNED AS A CONSENTING PARTY IN THE SALE DEED. IT HAS BEEN CLAIMED THAT THE ASSESSEE HAD NOT GOT ANY BENEFIT OUT OF THE SAID TRANSACTION AND THAT HE HAS DONE IT ONLY TO SAVE THE VENDOR FROM APPREHENSION OF MISUSE OF THE MONEY BY THE SONS OF THE VENDOR. HOWEVER, WE FIND THAT THERE IS NO CORROBORATING EVIDENCE WHATSOEVER O N RECORD FOR THIS SUBMISSION . BEFORE US LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT IN FACT EARLIER THE VENDOR SHRI CHANDRASHEKHAR D. KULKARNI HAD MADE EARLIER A N AGREEMENT TO SELL THE PROPERTY WITH THE ASSESSEE. HOWEVER, SUBSEQUENTLY WITH THE CONSENT OF THE ASSESSEE THE PROPERTY WAS SOLD TO A THIRD PARTY. LEARNED COUNSEL REITERATED THAT ASSESSEE HAS NOT GOT ANY BENEFIT AND HE HAS PAID OVER THE ENTIRE AMOUNT TO SHRI KULKARNI . REFERRING TO PAPER BOOK PAGE NO. 9 THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT A SUM OF ` .83 LAKHS WAS PAID BY THE ASSESSEE BY CHEQUE TO SHRI C.D. KULKARNI AND A SUM OF ` . 17 LAKHS WAS PAID IN CASH BY THE ASSESSEE TO SHRI KULKARNI. IT IS ALSO MEN TIONED IN THE SAID PAPER BOOK THAT SOME OF THE RECEIPTS FOR THE CASH PAYMENTS ARE NOT TRACEABLE. 5. IN THE LIGHT OF THE ABOVE FACTS IT IS CLEAR THAT THE ASSESSEES SUBMISSION BEFORE THE ASSESSING OFFICER THAT HE HAD AGREED TO RECEIVE THE SUM OF ` .1 CROR E TO SAVE THE VENDOR FROM MISUSE OF MONEY BY VENDORS SON IS NOT COGENT. IN THE LIGHT OF THE ADDITIONAL FACTS AS MENTIONED ABOVE, WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE VERACITY OF PAYMEN TS AS CLAIMED BY THE ASSESSEE TO SHRI C.D. KULKARNI. THIS WILL ALSO TAKE INTO ACCOUNT THE LEARNED CIT(APPEALS) OBSERVATION THAT THE ASSESSING OFFICER HAS NOT MADE ANY 4 ITA NO. 245/NAG/2013 ENQUIRY AS TO WHETHER THE TRUE BENEFICIARY HAS RECEIVED THE AMOUNT OR NOT. WE FIND THAT IN FACT THE LEARNED CIT(APPEALS) SHOULD HAVE HIMSELF EXAMINED THIS ASPECT. THE HONBLE APEX COURT IN THE CASE OF KAPURCHAND SHRIMAL 131 ITR 451 HAD OBSERVED THAT IT IS THE DUTY OF THE APPELLATE AUTHORITY TO CORRECT THE ERRORS IN THE PROCEEDINGS BEFORE T HE AUTHORITIES BELOW AND REMIT THE MATTER WITH THE DIRECTIONS IF REQUIRED UNLESS PROHIBITED BY A STATUTE. ACCORDINGLY WE REMIT THIS ISSUE OF PAYMENT OF ` .1 CRORE BY THE ASSESSEE TO SHRI C.D. KULKARNI TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE VERA CITY OF ASSESSEES CLAIM THAT HE HAS NOT OBTAINED ANY BENEFIT OUT OF THE SAID TRANSACTION. THE ASSESSING OFFICER SHALL ALSO EXAMINE THE AGREEMENT OF SALE BETWEEN THE ASSESSEE AND SHRI KULKARNI AS CLAIMED BY THE LEARNED COUNSEL OF THE ASSESSEE IN THE ARGUME NT BEFORE US. ACCORDINGLY THE ISSUE IS REMITTED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTIONS AS ABOVE. 6 . IN THE RESULT THIS APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF AUGUST, 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 14 TH AUGUST, 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., I TAT, NAGPUR. 5 ITA NO. 245/NAG/2013 6. GUARD FILE. TRUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR .