Dr.V.K.Sreelesh, Kannur V. The ITo, Kannur

ITA 324/COCH/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7730 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 02-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2013
• Court: TRIBUNAL
• Department Lawyers: A DHANRAJ
• Assessee Lawyers: T M SREEDHARAN
• Keywords: Depreciation; Search and seizure; Retraction
• Section: 92C; 143(3); 133A; 131

Judgement Text

ITA NO.324/COCH/2013 1 , IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN . . , ., ! ! ! ! BEFORE S/SHRI B. P. JAIN, AM & GEORGE GEORGE K., JM ' ' ' ' ./ I.TA NO.324/COCH/2013 ( #$ % /ASSESSMENT YEAR : 2009-10) DR. V.K. SREELESH, M/S. J.K. DENTAL CLINIC, CHAKKARAKKAL, KANNUR-670 612. VS THE INCOME TAX OFFICER, WARD-1, KANNUR. ( &' &' &' &' /ASSESSEE APPELLANT) ( ( (( ( ) ) ) ) &' &'&' &' /REVENUE -RESPONDENT) & . . ' ./PAN NO. AKJPS1021Q &' * + /ASSESSEE BY SHRI T.M. SREEDHARAN, SR. ADV. ( ) &' * + /REVENUE BY SHRI A. DHANRAJ, SR. DR ,- * ./ / DATE OF HEARING 02/08/2016 0 % * ./ /DATE OF PRONOUNCEMENT 22/08/2016 1 1 1 1 /ORDER PER B.P. JAIN, AM: THE ABOVE APPEAL IS FILED AGAINST THE ORDER OF T HE COMMISSIONER OF INCOME TAX(APPEALS), CALICUT IN ITA NO. 57/KNR/CIT(A)-II, WHICH WAS DISMISSED AS PER ORDER DATED 30/03/2013 BY CONFIRMING THE ADDITION M ADE IN THE ASSESSMENT TOWARDS LONG TERM CAPITAL GAIN. THE APPEAL IS FOR THE ASSESSMENT YEAR 2009-10 AND IS AGAINST THE ESTIMATED ADDITION FOR LONG TERM CAPITAL GAIN. THE ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 -10 ON 22/10/2009, ADMITTING A TOTAL INCOME OF RS.19,05,520/-. IN ADDITION, THE ASSESSEE ALSO ADMITTED INCOME ITA NO.324/COCH/2013 2 OF RS.20 LAKHS OFFERED AT THE TIME OF SURVEY TOWARD S INCOME FROM PROFESSION AND RS.42,680/- TOWARDS INCOME FROM CAPITAL GAIN. THE ASSESSMENT WAS COMPLETED AFTER SCRUTINY U/S. 143(3) BY DETERMINING TOTAL INC OME OF RS.57,26,083/-. 2. A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED AT THE ASSESSEES PREMISES ON 11.02.2009. DURING THE COURSE OF SURVEY, LAND TRAN SACTION DETAILS, DAY BOOK ACCOUNT, BANK ACCOUNT DETAILS, DAILY APPOINTMENT DI ARIES ETC., WERE FOUND AND IMPOUNDED U/S. 131 OF THE ACT. SWORN STATEMENT WAS ALSO RECORDED FROM THE ASSESSEE AT THE TIME OF SURVEY ON 11.02.2009 AND U/ S. 133A ON 12.02.2009. THE ASSESSEE OFFERED FOR ASSESSMENT THE FOLLOWING SUMS AS ADDITIONAL INCOME:- (I) FOR THE ASSESSMENT YEAR 2008-09 : RS.10 LAKHS (II) FOR THE ASSESSMENT YEAR 2009-10 : RS.20 LAKHS FOR THE ASSESSMENT YEAR 2009-10, THE ABOVE SUM OF RS.20 LAKHS HAS INCLUDED IN THE ASSESSMENT MADE U/S. 143(3). 3. THE DISPUTE IN THIS APPEAL RELATES TO THE DETE RMINATION OF LONG TERM AND SHORT TERM CAPITAL GAIN ARISING FROM SALE OF IMMOVA BLE PROPERTY CONSISTING OF LAND AND BUILDING OWNED BY THE ASSESSEE AND HIS BRO THER, WHICH WAS SOLD DURING THE PREVIOUS YEAR TO SHRI P. KUNHIMOHAMMED HAJEE AN D M. ABOOTY, AS PER DOCUMENT NO. 3043 DATED 28.10.2008 FOR A DOCUMENTED CONSIDERATION OF RS.35 ITA NO.324/COCH/2013 3 LAKHS. ACCORDING TO THE ASSESSING OFFICER, THE ASS ESSEE ADMITTED IN HIS STATEMENT MADE AT THE TIME OF SURVEY ON 11.02.2009 THAT THE S ALE CONSIDERATION WAS RS.1.25 CRORES. ON THE NEXT DAY, I.E., ON 12.02.2009, THE A SSESSEE RETRACTED THE ABOVE STATEMENT AND ASSERTED THAT THE SALE CONSIDERATION WAS RS.60 LAKHS AND NOT RS.1.25 CRORES, IN THE COMPUTATION OF ASSESSEES SH ARE OF CAPITAL GAIN, THE SALE CONSIDERATION OF THE ASSESSEES BROTHER SHRI V.K. S REEJITH. IN THE ASSESSMENT ORDER, THE ADMITTED VALUE OF RS.60 LAKHS FOR THE ENTIRE PR OPERTY WAS REJECTED AND THE SALE VALUE WAS ADOPTED AT RS.1.25 CRORES AS ADMITTE D IN THE SWORN STATEMENT RECORDED. THE ENHANCEMENT OF THE SALE VALUE FROM RS .60 LAKHS TO RS.1.25 CRORES WAS DISPUTED IN THE FIRST APPEAL BEFORE CIT(A). TH E APPORTIONMENT OF SALE VALUE IN THE RATIO OF 35:25 BETWEEN THE ASSESSEE AND HIS BROTHER WAS ACCEPTED BY THE ASSESSING OFFICER, RS. 35 LAKHS BEING THE SHARE OF THE ASSESSEE AND RS. 25 LAKHS BEING THE SHARE OF HIS BROTHER SHRI V.K. SREEJITH. THE ABOVE RATIO WAS ACCEPTED BY THE ASSESSING OFFICER. THE SALE CONSIDERATION A PPORTIONED TO THE ASSESSEES SHARE IS 35/60 X 1.25 CRORES = RS.72,91,660/- AND O N THE ABOVE SUM, THE LONG TERM & SHORT TERM CAPITAL GAIN WERE ESTIMATED AND A SSESSED AS PER THE ASSESSMENT ORDER. THE DISPUTE RAISED BEFORE THE CIT (A) IS AS REGARDS THE ENHANCEMENT OF SALE CONSIDERATION FROM RS.35 LAKHS TO RS.72,91,660/-. THIS WAS CONFIRMED BY THE 1 ST APPELLATE AUTHORITY. THE PRESENT APPEAL IS AGAINS T THE ENHANCEMENT OF SALE CONSIDERATION AS STATED ABOVE. ITA NO.324/COCH/2013 4 4. COMING TO THE FACTS OF THE CASE, THE ASSESSI NG OFFICER HAS COME TO HIS FINDING AS REGARDS THE SALE VALUE OF THE ENTIRE PRO PERTY AS RS.1.25 CRORES BASED ON THE REASONS GIVEN IN PARAGRAPH 5.3 OF THE ASSESS MENT ORDER, WHICH INCLUDED, THE ADMISSION MADE IN THE SWORN STATEMENT RECORDED U/S. 133A AND THE QUESTIONS ANSWERED BY THE ASSESSEE. THE ASSESSING O FFICER RELIED UPON THE ANSWER TO QUESTION NO. 21, WHERE THE ASSESSEE ANSWE RED THAT HE SOLD PROPERTY TO M/S. J.K. COMPLEX, CHAKKARAKKAL IN OCTOBER, 2008 TO SHRI ABOOTY, MATTANNUR AND SHRI KUNHIMOHAMMED, MOWENCHERRY FOR RS. 35 LAKH S DOCUMENTED PRICE. THE ACTUAL PRICE IS RS.1.40 CRORES. NET RECEIVED IS RS.1.25 CRORES AS THE PARTY REDUCED RS.15 LAKHS FROM THE AGREEMENT. 5. IN PARAGRAPH 5.3(II), IT IS RECORDED THAT THE AGREEMENT MENTIONED IN THE ANSWER IS A HANDWRITTEN AGREEMENT FOUND AT THE BUSI NESS PREMISES WHICH WAS IMPOUNDED. THE AGREEMENT REFERS TO SHRI C.P. ABOOT Y, S/O AHAMMED AND SHRI P.M. KUNHIMOHAMMED, S/O IBRAHIM, JOINTLY AS THE PUR CHASER. THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT IT IS CLEAR FRO M THE HANDWRITTEN AGREEMENT THAT THE SALE CONSIDERATION FIXED BETWEEN THE ASSES SEE AND THE PURCHASERS WAS RS.1.40 CRORES. THE NET AMOUNT RECEIVED WAS RS. 1. 25 CRORES, AFTER SUBSEQUENT REDUCTION OF RS. 15 LAKHS AS MENTIONED IN THE ASSES SEES STATEMENT. LATER ON, IT TURNED OUT THAT THE ABOVE HANDWRITTEN AGREEMENT WAS AN UNSIGNED DOCUMENT AND THE ASSESSEE DENIED HAVING RECEIVED SALE PRICE OF RS.1.25 CRORES. THE ITA NO.324/COCH/2013 5 EVIDENTIARY VALUE OF SUCH UNSIGNED STATEMENT WAS SE RIOUSLY DISPUTED BY THE ASSESSEE IN THE COURSE OF ASSESSMENT, AS WELL AS BE FORE THE CIT(A). 6. IN PARAGRAPH 6 OF THE ASSESSMENT ORDER, THE A SSESSING OFFICER HAS REFERRED TO THE STATEMENT RECORDED U/S. 133A ON THE DATE OF SUR VEY AND THE ADMISSION OF RS.1.25 CRORES AS THE SALE VALUE. IN THE SUBSEQUEN T RETRACTION, THE ASSESSEE DENIED THE ALLEGED ADMISSION. IT WAS STATED THAT H IS STATEMENT WAS RECORDED AT 10.45 P.M. TOWARDS THE END OF THE SURVEY OPERATION AND AT THAT POINT OF TIME, HE WAS TOTALLY EXHAUSTED AND IN A CONFUSED STATE OF MI ND. THE ASSESSEE ALSO DENIED THE SUM OF RS. 1.25 CRORES IN THE UNSIGNED DOCUMENT . THE EVIDENTIARY VALUE OF THE STATEMENT RECORDED U/S. 133A IS ALSO DISPUTED. IT WAS NOT A VOLUNTARILY STATEMENT AND NO RELIANCE CAN BE MADE ON THE STATEM ENT RECORDED U/S. 133A. 7. IN PARAGRAPH 6.3 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS REFERRED TO THE OBSERVATION MADE BY ONE OF THE OFFICERS OF T HE SURVEY TEAM, WHO INFORMED THE ASSESSEE THAT HE GOT INFORMATION FROM THE SHOP OWNERS IN THE GROUND FLOOR THAT THE CONSIDERATION IS RS.1.25 CROR ES AND THE ASSESSEE WAS FORCED TO AGREE TO THAT. THIS IS WHAT IS STATED IN THE RE TRACTION STATEMENT. 8. IN PARAGRAPH 6.4 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS REFERRED TO YET ANOTHER SALE AGREEMENT DATED 11.09.2007 EXEC UTED ONE YEAR BEFORE, BETWEEN THE ASSESSEE AND FOUR OTHERS AND THE VALUE OF THE PROPERTY WAS SHOWN ITA NO.324/COCH/2013 6 AS RS.1.45 CRORES BY WAY OF EXCHANGE OF ANOTHER PRO PERTY. THE PROPERTY WAS AGREED TO BE EXCHANGED WITH ANOTHER PROPERTY OF 61. 5 CENTS OF LAND NEAR THE RAILWAY LINE AT CHOVVA, OWNED BY OTHER PARTY. THE A BOVE AGREEMENT WAS CANCELLED ON 10/06/2008 AND THEREAFTER THE LATER SA LE AGREEMENT WAS ENTERED INTO BY THE ASSESSEE WITH SHRI KUNHIMOHAMMED AND SH RI ABOOTY FOR SALE VALUE OF RS.60 LAKHS. ACCORDING TO THE ASSESSEE, THE AGREEM ENT WHICH MATERIALIZED IS THE AGREEMENT FOR RS.60 LAKHS, OF WHICH RS.35 LAKHS IS DECLARED IN THE DOCUMENT. THEREFORE, ACCORDING TO THE ASSESSEE, THE SALE VALU E OF THE PROPERTY DECLARED BY HIM AT RS.60 LAKHS AS AGAINST RS.35 LAKHS, BEING TH E DOCUMENTED VALUE SHOULD BE ACCEPTED AND ON THAT BASIS, THE ENHANCEMENT OF SALE CONSIDERATION OF THE PROPERTY FROM RS.60 LAKHS TO RS.1.25 CRORES, CANNOT BE SUSTAINED. 9. IN THIS CONNECTION, A COPY OF THE WRITTEN SUBMI SSION DATED 30/06/2010 FURNISHED BY THE APPELLANT BEFORE THE ASSESSING OFF ICER IS RELIED ON. THE RELEVANT PARAGRAPHS ARE RE-PRODUCED BELOW: MYSELF AND MY BROTHER SOLD THE PROPERTY J.K. COMPL EX, CHAKKARAKKAL WITH A REGISTERED PRICE OF RS.35 LAKHS. WE HAVE ACTUALL Y RECEIVED RS.60 LAKHS AS THE SALE PRICE. AS THE BUYER WAS NOT READY TO PAY THE STAMP DUTY ON THE ENTIRE AMOUNT ONLY RS.35 LAKHS WAS SHOWN IN THE REG ISTERED SALE DOCUMENT (PLS. REFER Q NO. 20 IN PAGE 12 OF STATEMENT U/S. 1 31 DT. 12/02/2009). OUT OF THIS TOTAL SALE VALUE OF R.60 LAKHS MY SHARE IS FIX ED AS RS.35 LAKHS ON THE BASIS OF PROPORTION OF THE AREA (7000:5000) OF J.K. BUILDING. THE VALUE THAT YOU HAVE MENTIONED AS RS.1.25 CRORE WAS AN EXAGGERA TED VALUE AND IT IS VERY EVIDENT FROM THE FACT THAT THE LATEST FAIR VAL UE OF LAND FIXED BY THE STATE GOVERNMENT IN RESPECT OF THE SAID PROPERTY IS RS.3,00,000/- PER ARE (THE COPY OF THE KERALA GAZETTE IS ATTACHED). HENC E THE LATEST FAIR VALUE OF MY SHARE OF LAND FIXED BY THE STATE GOVERNMENT I S RS.14,70,000/- (RS.1,20,000*12.25). AS PER THE RETURN OF INCOME F ILED FOR THE A.Y. 2009-10, OUT OF MY SHARE OF RS.35 LAKHS I HAVE APPORTIONED R S.18,37,500/- (BASED ON ITA NO.324/COCH/2013 7 1,50,000/- PER CENT) AS CONSIDERATION FOR LAND AND BALANCE RS.16,62,500/- IS APPORTIONED AS CONSIDERATION FOR BUILDING. IT I S VERY EVIDENT THAT THE ABOVE CONSIDERATION OF RS.16,62,500/- IS APPORTION ED AS CONSIDERATION FOR BUILDING. IT IS VERY EVIDENT THAT THE ABOVE CONSID ERATION OF RS.16,62,500/- IS THE MAXIMUM MARKET VALUE FOR THE BUILDING, SINCE TH E TOTAL COST INCURRED FOR ME FOR THE CONSTRUCTION OF MY PORTION OF BUILDI NG IS RS.28,46,640/- (AS PER THE BALANCE SHEET AS AT 31/03/2003). AFTER CON SIDERING THE DEPRECIATION AT LEAST 10% PER ANNUM FOR THE LAST 7 YEARS, THE VALUE OF THE BUILDING WILL BE LESS THAN WHAT I HAVE APPORTIONED AS THE SALE CONSIDERATION FOR THE BUILDING. MORE OVER INITIALL Y AN AGREEMENT WAS MADE FOR THE SALE OF ABOVE REFERRED PROPERTY BETWEE N MYSELF, MY BROTHER AND HARIS AND OTHERS VIDE AGREEMENT DT. 11TH DAY OF SEPTEMBER, 2007 IN EXCHANGE OF ANOTHER PROPERTY AT CHOVVA. THE ABOVE SALE AGREEMENT DT. 11 TH SEPTEMBER, 2007 WAS SUBSEQUENTLY CANCELLED AS THE CONSIDERATION WAS EXAGGERATED (PLS. REFER Q NO. 13 & 15 STATEMENT ON OATH ON 12/02/2010). THE FACT WAS CONVINCED AND AGREED BY THE SEARCH PERSONS AND ALSO BY THE ASSESSING OFFICER BY MAKING THE ASS ESSMENT ORDER FOR A.Y. 2008-09. HENCE FROM THE ABOVE FACT AND EVIDENT, IT IS VERY C LEAR THAT THE VALUE THAT YOU HAVE MENTIONED IS ONLY A FIGURE WHICH I HAVE FO RCED TO ADMIT AT THE FAG END OF SURVEY AT 10.30 P.M. ON 11/02/2009. BUT ON THE NEXT DAY ON 12/02/2009 I HAVE RETRACTED FROM THE INITIAL STATEM ENT AND DISCLOSED THE ACTUAL CONSIDERATION. NONE OF THE SEARCH OFFICIALS HAS MADE ANY DISAGREEMENT OR FURTHER ENQUIRY IN RESPECT OF THE T OTAL CONSIDERATION OF RS.60 LAKHS THAT I HAVE DISCLOSED AND NO UNEXPLAINE D INVESTMENT/ASSET WERE NOTICED BY THE DEPARTMENT. HAD THE AMOUNT MENT IONED BY YOU IS TRUE, CASH OR EQUIVALENT ASSET SHOULD HAVE BEEN DET ECTED BY THE DEPARTMENT. ALSO AT THE TIME OF SURVEY, I HAVE OFF ERED AND PROMISED TO RETURN HIGHER INCOME THAN BY THE ACTUAL INCOME WITH INTENTION TO PURCHASE PEACE. ACCORDINGLY AS AGREED BY THE ADDIT IONAL COMMISSIONER OF INCOME TAX I HAVE OFFERED AN AMOUNT OF RS.20,00, 000/- AS MY PROFESSIONAL INCOME FOR THE A.Y. 2009-10 WITHOUT CL AIMING ANY EXPENDITURE. (PLS. REFER Q.NO.20 IN PAGE 12 OF STAT EMENT U/S. 131 OF THE IT ACT ON 12/02/2009). IN THIS REGARD I ALSO CITE THE FOLLOWING DECISIONS IN CONNECTION WITH THE QUESTIONS AS TO WHAT IS ACTUAL SALE PRICE OF THE PR OPERTY, IMPLICATION OF THE CONTRADICTORY STATEMENTS MADE, WHETHER RELIANCE COU LD NOT BE PLACED ON THE LOOSE SHEETS, OR ON THE UNSIGNED AGREEMENTS AND THE EVIDENTIARY VALUE OF THE STATEMENT ELICITED DURING THE SURVEY O PERATIONS. 1) CIT VS. P.V. KALYANASUNDARAM (2007) 212 CTR (S C) 97. 2) M.M. FINANCIERS (P) LTD. VS. DCIT (2007)107 TTJ 0200 (CHENNAI) ITA NO.324/COCH/2013 8 3) PAUL MATHEWS & SONS VS. CIT (2003) 181 CTR (KER. ) 207 4) MANOHAR LAL RATAN LAL VS. DEPUTY CIT (2004) 91 T TJ (ASR) 737. IN THIS REGARD I ALSO INVITE YOUR ATTENTION IN RESP ECT OF THE LETTER F. NO. 286/2/2003/I.T. (INV.) DATED MARCH, 11 2003 ISSUED BY THE BOARD INSTRUCTING CHIEF COMMISSIONERS AND DIRECTOR GENERAL OF INCOME TAX THAT WHILE RECORDING STATEMENT DURING THE SEARCH AND SEIZURE A ND SURVEY OPERATIONS NO ATTEMPT SHOULD BE MADE TO OBTAIN CONFESSION AS T O THE UNDISCLOSED INCOME. IN THE RETURN FILED FOR THE A..Y. 2009-10, I HAVE D ISCLOSED MY ACTUAL SHARE OF SALE CONSIDERATION WHILE CALCULATING THE CAPITAL GA IN, OFFERED ADDITIONAL INCOME AS AGREED WITH ADDITIONAL COMMISSIONER TO PU RCHASE PEACE AND CO-OPERATED WITH THE DEPARTMENT IN ALL PROCEEDINGS. HENCE I REQUEST TO DROP FURTHER PROCEEDINGS AGAINST THE ABOVE MATTER. 10. AT THE TIME OF HEARING OF THE APPEAL, THE LEA RNED SR. COUNSEL APPEARING FOR THE ASSESSEE RAISED THE FOLLOWING CONTENTIONS: I) THE FINDINGS AND CONCLUSIONS DRAWN BY THE ASSESS ING OFFICER BASED ON THE STATEMENT RECORDED AT THE TIME OF SURVEY HAVE NO EV IDENTIARY VALUE BASED ON THE FOLLOWING JUDGMENTS OF THE JURISDICTIONAL HIGH COURT AND THE APEX COURT. 1. M/S. PAUL MATHEWS & SONS VS. CIT (2003) 263 ITR 101 (KER.) 2. CIT VS. KHADIRKHAN SON (2012) 254 CTR 228 (SC) 3. CIT VS. P. BALASUBRAMANIAN (2013) 354 ITR 116 (M AD.) II) THE AGREEMENT DATED 11/09/ 2007 WAS AN AGREEMEN T FOR EXCHANGE OF PROPERTY. THIS AGREEMENT DATED 07.06.2008 BETWEEN T HE ASSESSEE AND HIS BROTHER ON ONE PART AND SHRI C.P. ABOOTY AND SHRI P. KUNHIMOHAMMED ON THE OTHER PART WAS CANCELLED AND THE SAME DID NOT MATER IALIZE. SUCH AGREEMENT ITA NO.324/COCH/2013 9 HAD NO EVIDENTIARY VALUE AS REGARDS THE PRICE FINAL LY AGREED BETWEEN THE PARTIES. THE ASSESSEE CLARIFIED THE APPARENT DISCRE PANCIES WITH REGARD TO THE CONSIDERATION FOR SALE, IN THE RETRACTION STATEMENT RECORDED DATED 12/02/2009, I.E., ON THE VERY NEXT DAY OF THE DATE OF SURVEY. THE ASSESSING OFFICER IN PARAGRAPH 5.3 OF THE ASSESSMENT ORDER HAS CONCLUDED THAT THOUGH THE DEED FAILED TO BECOME FINAL, IT GIVES THE STRONG EVIDENC E REGARDING THE VALUE OF THE ASSESSEES PROPERTY. THESE OBSERVATIONS WERE MADE WITH REFERENCE TO AN AGREEMENT WHICH WAS NOT ACTED UPON . WOULD NOT THROW ANY LIGHT AS REGARDS THE ACTUAL CONSIDERATION PAID FOR THE PROPE RTY. THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD THE EVIDENCE FROM THE ASS ESSEES BROTHER SHRI V.K. SREEJITH WHOSE SHARE IN THE VALUE OF THE PROPERTY I S ADMITTED BY THE ASSESSEE AS RS. 25 LAKHS. III) THE ASSESSEES COUNSEL ALSO RELIED UPON THE DE CISION OF THE HONBLE APEX COURT IN CIT VS. SHRI P. KALYANASUNDARAM (2007) 21 2 CTR (SC) 97 AND CIT VS. P. BALASUBRAMANIAN (2013) 354 ITR 116 (MAD.) IN SUPPOR T OF THIS CASE. IV) THE LEARNED SR. COUNSEL ALSO ARGUED THAT SEC. 2 92C HAS BEEN WRONGLY INVOKED AND THE SAME HAD NO APPLICATION. V) THE PRESUMPTION IN SECTION 292C IS REBUTTABLE AN D IS NOT ABSOLUTE. THIS IS CLARIFIED BY DEPARTMENT CIRCULAR NO. 1/2009 DATED 2 7/03/2009. IN THE ITA NO.324/COCH/2013 10 ASSESSEES CASE, TWO ARGUMENTS ARE RELIED ON, OF WH ICH, THE AGREEMENT DATED 11/09/2007 WAS CANCELLED BY MUTUAL CONSENT. THIS W AS NOT ACTED UPON BY THE PARTIES. THIS FACT SITUATION IS NOT DENIED. T HE SECOND AGREEMENT DATED 07/06/2008 IS HANDWRITTEN AND IS AN UNSIGNED DOCUME NT. THE CONTENT OF THE DOCUMENTS IS DENIED BY THE ASSESSEE IN THE STATEMEN T GIVEN ON 12/02/2009. THUS THE PRESUMPTION IS DENIED BY THE ASSESSEE IN T HE STATEMENT GIVEN ON 12/02/2009. THUS THE PRESUMPTION U/S. 292C IS NOT AVAILABLE TO THE ASSESSING OFFICER. FOR THAT REASON, THE CONCLUSION DRAWN BY THE CIT(A) WOULD ALSO BE UNSUSTAINABLE IN LAW. 10. WE HAVE BESTOWED OUR SERIOUS THOUGHTS AND CON SIDERED THE ISSUES ARISING IN THIS APPEAL IN DETAIL. WE HAVE ALSO PERUSED THE AS SESSMENT AND APPELLATE ORDERS AND THE DOCUMENTS PRODUCED IN THE PAPER BOOK FURNISHED BY THE ASSESSEE AND THE ARGUMENT ADVANCED BY THE LD. COUNS EL FOR THE ASSESSEE. WE HAVE ALSO CONSIDERED THE CASE LAW RELIED ON BY THE LD. COUNSEL AS REGARDS THE EVIDENTIARY VALUE OF THE STATEMENT RECORDED AT THE TIME OF SURVEY AND PRINCIPLES GOVERNING THE ENHANCEMENT OF SALE PRICE FOR THE PUR POSE OF COMPUTATION OF CAPITAL GAIN. FIRST OF ALL, WE SHALL DEAL WITH THE PRICE DECLARED FOR SALE OF THE IMMOVABLE PROPERTY JOINTLY OWNED BY THE ASSESSEE AL ONG WITH HIS BROTHER SHRI V.K. SREEJITH. THE RECORDED SALE PRICE IN THE REGI STERED SALE DEED IS RS.35 LAKHS, WHEREAS, THE ASSESSEE ADMITTED THAT THE ACTUAL SALE PRICE RECEIVED IS RS.60 LAKHS. EVEN THOUGH THE ASSESSING OFFICER HAS REFER RED TO TWO AGREEMENTS DATED ITA NO.324/COCH/2013 11 11/09/2007 AND THE UNSIGNED HANDWRITTEN AGREEMENT D ATED 07/06/2008, THESE TWO AGREEMENTS DID NOT MATERIALIZE, NOR WERE ACTED UPON. THE UNSIGNED DOCUMENT RELIED ON IS A HAND WRITTEN AGREEMENT, WHI CH WAS ABANDONED BY THE PARTIES. THIS AGREEMENT HAS NOT BEEN PROVED UNDER ANY PROCEDURE KNOWN TO LAW. THE DOCUMENT NO. 3043 DATED 28/10/2008 IS THE ONLY DOCUMENT ADMITTED BY THE PARTIES THERETO WHICH SHOWED A SALE PRICE OF RS.35 LAKHS. THE ASSESSING OFFICER HAS RELIED ON THE STATEMENT RECORDED U/S. 1 33A AT THE TIME OF SURVEY FOR ADOPTING THE SALE PRICE OF RS.1.25 CRORES. THE ASS ESSEE HAS EXPLAINED IN THE WRITTEN EXPLANATION DATED 30/06/2010 THAT THE STATE MENT WAS RECORDED ON 11/02/2009 AT THE FAG END OF THE SURVEY AT 10.30P.M ., AND HE WAS FORCED TO ADMIT. THE ASSESSEE EXPLAINED THAT AT THAT POINT O F TIME, HE WAS EXHAUSTED AND IN A CONFUSED STATE OF MIND AND WAS ANXIOUS TO WIND UP THE SURVEY AND SIGN THE STATEMENT. HOWEVER, ON THE VERY NEXT DAY, I.E., ON 12/02/2009, THE ASSESSEE RETRACTED FROM THE INITIAL STATEMENT. HE ALSO AGRE ED TO DECLARE ADDITIONAL INCOME OF RS.20 LAKHS AS PROFESSIONAL INCOME FOR 20 09-10, OVER AND ABOVE THE DECLARED INCOME AND RS.10 LAKHS FOR THE ASSESSMENT YEAR 2008-09, AND SUCH ADDITIONAL INCOME IS DECLARED FOR BOTH THE ASSESSME NT YEARS. THESE FACTS ARE ADMITTED IN THE ASSESSMENT ORDER DATED 30/06/2010. THE ASSESSMENT WAS COMPLETED AFTER A PERIOD OF ONE YEAR AND FOUR MONTH S AFTER THE DATE OF SURVEY. NO EVIDENCE IS BROUGHT ON RECORD BY THE ASSESSING O FFICER TO CONTROVERT THE STATEMENT OF THE ASSESSEE. THERE IS NO EVIDENCE BR OUGHT ON RECORD FROM THE ITA NO.324/COCH/2013 12 PURCHASER OF THE PROPERTY, NOR FROM THE ASSESSEES BROTHER SHRI V.K. SREEJITH TO REBUT THE EXPLANATION GIVEN BY THE ASSESSEE. 11. NO MATERIAL OR EVIDENCE WAS ALSO FOUND DURI NG THE SURVEY TO SHOW THAT THE ASSESSEE RECEIVED A SALE PRICE OF MORE THAN WHAT IS DECLARED. NO ADDITION COULD BE MADE BASED ON THE RETRACTED STATEMENT OF T HE ASSESSEE DURING THE SURVEY. THE FOLLOWING JUDGMENTS OF THE JURISDICTIO NAL HIGH COURT AND THE APEX COURT SUPPORT THE ASSESSEES ARGUMENT THAT NO EVIDE NTIARY VALUE CAN BE ATTACHED TO A STATEMENT RECORDED AT THE TIME OF SUR VEY U/S. 133A:- 1. M/S. PAUL MATHEWS & SONS VS. CIT (2003) 263 ITR 101 (KER.) 2. CIT VS. KHADIRKHAN SON (2012) 254 CTR 228 (SC) 3. CIT VS. P. BALASUBRAMANIAN (2013) 354 ITR 116 (M AD.) 12. WE ARE THEREFORE, INCLINED TO ACCEPT THE SALE VALUE OF THE PROPERTY THAT WAS SOLD BY THE ASSESSEE AND HIS BROTHER DURING THE PREVIOUS YEAR AS RS.60 LAKHS AS ADMITTED BY THE ASSESSEE AND TO VACATE THE ESTIM ATE OF RS.1.25 CRORES MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A ). THE LONG TERM AND SHORT TERM CAPITAL GAINS WORKED OUT BY THE ASSESSING OFFI CER IN THE ASSESSMENT ORDER IS DIRECTED TO BE MODIFIED BY ADOPTING THE SALE VAL UE OF THE PROPERTY AT RS.60 LAKHS. NO OTHER POINT ARISE FOR CONSIDERATION. THE APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLOWED. ITA NO.324/COCH/2013 13 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 22-0 8-2016. SD/- SD/- ( . ) (GEORGE GEORGE K.) ( . . ) (B. P. JAIN) /JUDICIAL MEMBER /ACCOUNTANT MEMBER & /PLACE: /COCHIN 3 /DATED: 22 ND AUGUST, 2016 GJ/ 1 * (.4 54%. /COPY TO: 1. &' /DR. V.K. SREELESH, M/S. J.K. DENTAL CLINIC,CHAKKAR AKKAL, KANNUR-670612. 2. () &' /THE INCOME TAX OFFICER, WARD-1,KANNUR. 3. ,6 . ( )/THE COMMISSIONER OF INCOME-TAX(APPEALS), KOZHIKOD E, 4. ,6 . /THE COMMISSIONER OF INCOME-TAX, CALICUT 5. 478 (. , /THE DR/ITAT, COCHIN BENCH. 6. 8: ;- /GUARD FILE. 1, /BY ORDER < /ASSISTANT REGISTRAR - . =/ . > . =/ ., /I.T.A.T., COCHIN