M.Balasaravanan, Coimbatore V. ITO, Coimbatore

ITA 292/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5905 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 16-08-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 12-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Keywords: Retraction
• Section: 147

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC C BENCH, CHENNAI , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ./ ITA NO.:292/MDS/2016 / ASSESSMENT YEAR : 2006-07 SHRI M. BALASARAVANAN , NO.1/46, THIRUVALLUVAR STREET, KALAMPALAYAM, COIMBATORE 641 010. PAN: ABLPB0708G V. THE INCOME TAX OFFICER, WARD-II(5) COIMBATORE. ( /APPELLANT) ( /RESPONDENT) /APPELLANT BY : NONE /RESPONDENT BY : SHRI B. SAGADEVAN /DATE OF HEARING : 31.10.2017 /DATE OF PRONOUNCEMENT : 31.10.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, COIMBA TORE, DATED 27.11.2015 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS F OR CONSIDERATION. 2 I.T.A. NO. 292/MDS/2016 (1) THE LEARNED CIT(A), HAS ERRED IN UPHOLDING THE VALIDITY OF THE PROCEEDINGS U/S 147 OF THE L.T.ACT, 1961, IN THE FA CTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW. (2) THE LEARNED CIT(A), MERELY BASED ON AN IMAGINAR Y ENTRY MADE BY THE APPELLANT IN A SHEET OF PAPER THAT WAS IMPOUNDED, H AS ERRED IN CONFIRMING THE ADDITION OF RS.31 ,20,000/-, BY THE AC, IN THE FACTS AND THE CI RCUMSTANCES OF THE CASE AND IN LAW. (3) THE LEARNED CIT(A) OUGHT TO HAVE DELETED THE AD DITION OF RS.31,20,000/-, AS IT COULD NOT BE CORROBORATED WITH ANY EVIDENCE B ROUGHT ON RECORD BY THE AC, FOR SUCH AN INVESTMENT, IF ANY, HAD BEEN MADE, BY THE APPELLANT, IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW. (4) THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION, MERELY ON THE BASIS OF SUSPICION THAT SUCH TRANSACTION WOULD HAVE TAKEN PLACE, AS STATED IN ALLEGED SELF DECLARATION OF THE APPELLANT, THAT WAS IMPOUNDED AT THE APPELLANTS PREMISES DURING THE SURVEY, WITHOUT MOR E, IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW. (5) FOR THESE AND OTHER ADDITIONAL GROUNDS OF APPEA L THAT MAY BE ADDUCED AT THE TIME OF HEARING, THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), IN SO FAR IT GOES TO THE EXTENT TO CONFI RM THE ACTION OF THE AO, IS OPPOSED TO LAW AND UNSUSTAINABLE IN THE FACTS AND T HE CIRCUMSTANCES OF THE CASE. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVE R, THE LD.A.R FILED A LETTER DATED 14.10.2017 SEEKING ADJO URNMENT ON THE REASON OF PROFESSIONAL PRE-OCCUPATION. IN MY OPINIO N, THE REASONS ADVANCED BY THE AUTHORISED REPRESENTATIVE OF ASSESS EE IN THE ABOVE CITED LETTER CANNOT BE CONSIDERED AS REASON ABLE CAUSE SO AS TO ADJOURN THE CASE. ACCORDINGLY, SEEKING OF ADJ OURNMENT IS REJECTED. 3 I.T.A. NO. 292/MDS/2016 4. AFTER HEARING THE LD.D.R AND PERUSING THE MATER IALS ON RECORD, THE ONLY ISSUE RAISED BEFORE ME IS WITH REG ARD TO ADDITION OF ` 31.20 LAKHS ON THE BASIS OF IMPOUNDED DOCUMENT IN T HE FORM OF LOOSE SHEET DURING THE SURVEY AT ASSESSEES PREMISE S. 5. THE FACTS OF THE ISSUE ARE THAT AN ADDITION OF ` 31.20 LAKHS WAS MADE FOR PURCHASE CONSIDERATION OF PROPERTY AT CHINNAVEDAMPATTI VILLAGE. THE ASSESSEE HAD PURCHASE D THIS LAND ALONG WITH A CO-OWNER SHRI SIVAKUMAR FOR A REGISTER ED VALUE OF ` 5,94,000/-. AS PER SIGNED STATEMENT FOUND AND IMPO UNDED DURING THE COURSE OF SURVEY U/S.133A, THE ASSESSEE MENTIO NED THAT THE PURCHASE CONSIDERATION IS ` 62,40,000/-; AN AMOUNT OF ` 50,00,000/- WAS PAID ON 27.02.2006 AND BALANCE AMOUNT OF ` 12,40,000/- PAID DURING THE YEAR 2006. THE AUTHORISED REPRESENTATIVE OF ASSESSEE CONTENDED THAT THE OTHER PURCHASER HAS NOT ADMITTED ANY PRICE OVER THE REGISTERED VALUE. IT WAS ALSO ARGUED THAT IN THE IMPOUNDED SHEET, ONLY THE ASSESSEE HAD SIGNED. NORMALLY, IN A N AGREEMENT BOTH THE PARTIES SIGN. THE STATEMENT GIVEN DURING T HE SURVEY HAS BEEN RETRACTED. THE LD.A.R ARGUED BEFORE LD.CIT(A) THAT THERE WAS NO CORROBORATIVE EVIDENCE TO ESTABLISH PAYMENT OF EXTRA CONSIDERATION FOR PURCHASE OF LAND. 4.1 THE LD.CIT(A) OBSERVED THAT IT IS UNDISPUT ED FACT THAT THE SIGNED STATEMENT IS MAINTAINED BY THE ASSESSEE AS A PART OF HIS 4 I.T.A. NO. 292/MDS/2016 PERSONAL INFORMATION AND HIS HAS BEEN IMPOUNDED DUR ING SURVEY. ACCORDING TO LD.CIT(A), THE ASSESSEES A.R CONTENDE D THAT THE STATEMENT IS WRITTEN TO ENHANCE THE ASSESSEES CRED IBILITY FOR HAVING DONE BIG TRANSACTION, WHICH IS NOT SUSTAINAB LE. THE AUTHENTICITY OF A DOCUMENT FOUND IN ASSESSEES PREM ISES AND IMPOUNDED DURING THE SURVEY IS NOT DISPUTED. THIS I S PRIMARY EVIDENCE AND HAS MORE VALUE THAN THE STATEMENT GIVE N DURING THE SURVEY AND ITS SUBSEQUENT RETRACTION. THE IMPOUNDE D STATEMENT FOUND IS TITLED AS OATH TAKING IN VERNACULAR LANGUA GE AND CONTAIN DETAILS OF THE TRANSACTIONS. ACCORDING TO LD.CIT(A) , THIS BEING FOUND IN APPELLANTS PREMISES AND THE ADDITION MADE BY THE AO FOR ` 31.20 LAKHS FOR ACTUAL CONSIDERATION PAID FOR PURCH ASE OF LAND IS SUSTAINED. AGAINST THE ORDER OF LD.CIT(A), NOW THE ASSESSEE IS IN APPEAL BEFORE US. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THIS CASE, THE ADDITION WAS BASED ON TH E LOOSE SHEET MARKED AS XL-243 AND THE STATEMENT GIVEN BY THE AS SESSEE U/S.131(1A) ON 29.07.2011 BEFORE THE DDIT(INVESTIG ATION), COIMBATORE THAT HE HAD PAID ` 50/- LAKHS TOWARDS PURCHASE OF LAND ON 27.02.2006 AND BALANCE AMOUNT OF ` 12.04 LAKHS DURING THE YEAR 2006. ACCORDING TO ME, THE LD. ASSESSING OFFIC ER INFERRED THAT THE ASSESSEE PURCHASED THE PROPERTY AT CHINNAVEDAMP ATTI VILLAGE 5 I.T.A. NO. 292/MDS/2016 FOR A CONSIDERATION OF ` 62,40,000/- AND THE ASSESSEE SHARE IS AT ` 31.20 LAKHS. IN MY OPINION, THERE IS NO CORROBORATI VE MATERIAL REGARDING THIS PAYMENT AND THE PAYMENT IS NOT SUPPO RTED BY ANY STATEMENT OF SELLERS. IN VIEW OF THIS, I AM NOT AT THIS STAGE IN A POSITION TO CONFIRM THE ADDITION AS THE EVIDENCES B ROUGHT ON RECORD IS NOT SUFFICIENT TO FASTEN THE TAX LIABILITY ON TH E ASSESSEE. HENCE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ORDER OF L OWER AUTHORITIES AND REMIT THE ISSUE TO THE FILE OF LD. ASSESSING OFFICE R FOR FRESH CONSIDERATION. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSI ON OF HEARING ON 31 ST OCTOBER, 2017. SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER /CHENNAI, /DATED, THE OCTOBER, 2017. KSS / COPY TO: 1 . / APPELLANT 3. () / CIT(A) 5. ! '#$ / DR 2. % / RESPONDENT 4. / CIT 6. !&' () / GF