Sh. Raghav Chaudhary, Ghaziabad V. ITO, New Delhi

ITA 3531/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6809 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 19-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 03-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR SHARMA SENIOR
• Keywords: Reopening of assessment
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3531/DEL./2013 (ASSESSMENT YEAR : 2009-10) SHRI RAGHAV CHAUDHARY, VS. ITO, WARD 2 (2), C/O M/S. MALIK & CO.(ADVOCATES), GHAZIABAD. 305/7, THAPAR NAGAR, MEERUT CITY. (PAN : AEDPC3131M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANJAY MALIK, ADVOCATE REVENUE BY : SHRI ANIL KUMAR SHARMA, SENIOR DR DATE OF HEARING : 19.07.2016 DATE OF ORDER : 26.07.2016 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI RAGHAV CHAUDHARY, BY FILING THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATE D 13.03.2013 PASSED BY LD. COMMISSIONER OF INCOME-TAX (APPEALS), GHAZIABAD QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTE R ALIA THAT :- 1. THAT THE APPELLANT TRANSFERRED THE PROPERTY FOR SALE CONSIDERATION OF RS.16,00,000/-. ON FACTS AND IN TH E CIRCUMSTANCES OF THE CASE, COMPUTED CAPITAL GAIN BA SED ON SUCH SALE CONSIDERATION, OF RS.16,00,000/- DESER VES TO BE ACCEPTED. ITA NO.3531/DEL./2013 2 2. THAT THE DETERMINATION OF THE SALE CONSIDERATION AT RS.34,80,000/- AS AGAINST ACTUAL SALE CONSIDERATION OF RS.16,00,000/- THEREBY RESULTING IN AN ADDITION OF RS.18,80,000/- UNDER THE HEAD 'SHORT TERM CAPITAL G AIN' WAS ILLEGAL, VOID AND WITHOUT JURISDICTION. 3. THAT THE IMPUGNED ADDITION OF RS.18,80,000/- DESERVES TO BE DELETED BEING VOID, ILLEGAL AND WITH OUT JURISDICTION. 4. THAT ON FACTS AND IN LAW INTEREST U/S 2348, 234C WAS NOT CHARGEABLE. LEVY OF INTEREST DESERVES TO BE QUASHED AND CANCELLED BEING VOID, ILLEGAL AND WITHO UT JURISDICTION. 2. BRIEFLY STATED THE FACTS OF THIS CASE ARE : DURI NG THE SCRUTINY PROCEEDINGS, ASSESSEE PUT IN APPEARANCE THROUGH SHR I B.K. KAPUR, CA WHO HAS FILED WRITTEN SUBMISSIONS, PAPERS, DOCUM ENTS ETC. ASSESSEE IS INTO THE BUSINESS OF PROVIDING / ARRANG ING TRANSPORTATION, AIR-TICKING & HOTEL BOOKINGS, DOMES TIC & INTERNATIONAL BOOKING ON COMMISSION BASIS AND IN AD DITION THERETO, ASSESSEE HAS ALSO EARNED INTEREST ON CAPITAL AND PR OFIT FROM THE PARTNERSHIP FIRM, M/S. MANGLAM BANQUETS AND ALSO EA RNED SHORT- TERM CAPITAL GAIN. FROM THE INFORMATION RECEIVED F ROM AIR, IT IS NOTICED THAT THE ASSESSEE HAS SOLD A PROPERTY MEASU RING 379.50 SQ.METERS OF BLOCK C BEING PART AND PARCEL OF PROPE RTY KNOWN AS GAYEALEM OR OLLEM BATH OR BALBIALEM SITUATED AT DABOLIM, DISTT. MORMUGAO, GOA FOR AN AMOUNT OF RS.34,80,000/- AT GOA WHICH HE HAS SHOWN TO HAVE SO LD FOR ITA NO.3531/DEL./2013 3 RS.16,00,000/- IN FEBRUARY, 2009. FINDING THE EXPL ANATION FURNISHED BY THE ASSESSEE NOT TENABLE, THE AO MADE AN ADDITION OF RS.16,80,000/- BEING THE DIFFERENCE IN THE SALE PRO CEEDS RECEIVED BY THE ASSESSEE THROUGH HIS GENERAL ATTORNEY. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY CHALLENGING THE ASSESSMENT ORDER WHO HAS DISMISSED THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. LD. AR FOR THE ASSESSEE CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT THE LOWER REVENUE AUTHORI TIES HAVE ERRED IN DETERMINING THE SALE CONSIDERATION OF RS.34,80,000/ - OF THE PROPERTY IN QUESTION AS AGAINST THE ACTUAL SALE CON SIDERATION OF RS.16,00,000/- RECEIVED BY THE ASSESSEE; THAT ASSES SEE AFTER EXECUTING THE IRREVOCABLE GENERAL POWER OF ATTORNEY DATED 30.01.2009 HAS GOT NO CONCERN WITH THE PROPERTY IN QUESTION BUT THE ATTORNEY SOLD THE SAME FOR RS.34,80,000/-; THAT THE AO HAS ILLEGALLY ADDED THE COMMISSION INCOME OF THE ATTORNEY AS THE ASSESSEES INCOME BY MAKING ADDITION OF RS.16,80,000/-. HOWEV ER, ON THE ITA NO.3531/DEL./2013 4 OTHER HAND, THE LD. DR RELIED UPON THE ORDER PASSED BY THE LD. CIT (A). 6. UNDISPUTEDLY, ASSESSEE BEING OWNER OF THE PROPER TY IN QUESTION HAS TRANSFERRED THE SAME IN FAVOUR OF TRAC K VISION AND PLANNERS PVT. LTD. THROUGH HIS ATTORNEY, NAMELY, SA MREEN SHAIKH, VIDE POWER OF ATTORNEY DATED 30.01.2009 FOR A SALE CONSIDERATION OF RS.34,80,000/- VIDE SALE DEED DATED 26.03.2009; THAT ASSESSEE CLAIMED TO HAVE SOLD PROPERTY IN QUESTION FOR A CON SIDERATION OF RS.16,00,000/- TO SHRI GAURISH PEREIRA AND HAS CALC ULATED THE CAPITAL GAIN ON THE AMOUNT OF RS.16,00,000/-. 7. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRCU MSTANCES OF THE CASE, THE SOLE QUESTION ARISES FOR DETERMINATIO N IN THIS CASE IS:- AS TO WHETHER THE ASSESSEE HAS ACTUALLY SOLD THE PROPERTY IN QUESTION FOR RS.16,00,000/- SO AS TO CO MPUTE THE CAPITAL GAIN FOR A SALE CONSIDERATION OF RS.16,00,000/- AS ALLEGED? 8. AO AS WELL AS LD. CIT (A) HAVE RETURNED THE CONC URRENT FINDINGS ON THE BASIS OF THE FACT THAT SALE DEED OF THE PROPERTY IN QUESTION EXECUTED BY THE ASSESSEE HAS NOT BEEN PROD UCED BEFORE THEM DURING ASSESSMENT PROCEEDINGS AS WELL AS APPEL LATE PROCEEDINGS; THAT THE PROPERTY IN QUESTION WAS ACTU ALLY SOLD BY THE ASSESSEE THROUGH ITS ATTORNEY FOR A CONSIDERATION O F RS.34,80,000/- ITA NO.3531/DEL./2013 5 AS AGAINST THE SALE PRICE OF RS.16,00,000/- CLAIMED BY THE ASSESSEE AND THEREBY MADE AN ADDITION OF RS.16,80,000/-. 9. IN VIEW OF THE UNDISPUTED FACTS AND THE TOTALITY OF CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT T HERE IS NO ILLEGALITY OR PERVERSITY IN THE FINDINGS RETURNED B Y THE LD. CIT (A) FOR THE FOLLOWING REASONS :- (I) THAT DURING THE COURSE OF ARGUMENTS, THE LD. AR VEHEMENTLY CONTENDED THAT THE ASSESSEE HAS SOLD THE PROPERTY IN QUESTION FOR A SALE CONSIDERATION OF RS.16,00,000/- IN FAVOUR OF SHRI GAURISH PEREIRA THROUGH HIS ATTORNEY, NAMELY, SAMREEN SHAIKH VIDE POWER OF ATTORNEY DATED 30.01.2009 AND ALSO BY ENTERING INTO AN AGREEMENT TO SELL, HOWEVER, THE SA ID AGREEMENT TO SELL HAS NOT SEEN THE LIGHT OF THE DAY TO PROVE THE CONTENTION OF THE ASSESSEE; (II) THAT NO DOUBT, ASSESSEE BEING OWNER OF THE PRO PERTY IN QUESTION CAN TRANSFER THE SAME BY WAY OF AGREEMENT TO SELL AND BY SIMULTANEOUSLY EXECUTING THE GENERAL POWER OF ATTORNEY IN FAVOUR BY THE VENDEE AFTER RECEIVING ENTIRE SALE CONSIDERATION BUT, IN SUCH A SITUATION, THE AGREEMENT IS REQUIRED TO BE REDUCED INTO WRITING, PARTICULARLY WHEN AR FOR THE ASSESSEE HAS ITA NO.3531/DEL./2013 6 CONTENDED THAT POSSESSION OF THE PROPERTY IN QUESTI ON WAS DELIVERED TO THE VENDEE AT THE TIME OF EXECUTIO N OF IRREVOCABLE POWER OF ATTORNEY; (III) THAT BARE PERUSAL OF THE SALE DEED OF THE PRO PERTY IN QUESTION APPARENTLY GOES TO PROVE THAT THE SAME WAS EXECUTED BY THE ASSESSEE THROUGH HIS ATTORNEY FOR A CONSIDERATION OF RS.34,80,000/- AND THE SALE DEED BEARS NO REFERENCE OF ALLEGED AGREEMENT TO SELL ORA L AS WELL AS WRITTEN ENTERED INTO BETWEEN THE PARTIES ; (IV) THAT THE ASSESSEE TO PROVE THE FACT THAT HE HA S SOLD THE PROPERTY FOR A SALE CONSIDERATION OF RS.16,00,000/- RELIED UPON STATEMENT OF ACCOUNT MAINTAINED WITH ICICI BANK SHOWING CREDIT OF RS.16,00,000/- ON 07.02.2009 WHEREAS POWER OF ATTORNEY IN QUESTION WAS EXECUTED / ATTESTED ON 02.02.2009 WHICH IS IRRECONCILABLE BECAUSE NOBODY CAN BE EXPECTED TO WA IT FOR A PERIOD OF ONE WEEK TO RECEIVE THE SALE CONSIDERATION AFTER TRANSFERRING THE PROPERTY IN QUESTION; (V) THAT WHEN THERE IS NOT AN IOTA OF EVIDENCE ON R ECORD TO PROVE THE FACT THAT AS ON DATE OF EXECUTION OF THE POWER OF ATTORNEY DATED 02.02.2009, THE ASSESSEE HA S ITA NO.3531/DEL./2013 7 RECEIVED THE ENTIRE SALE CONSIDERATION OF THE PROPE RTY IN QUESTION TO THE TUNE OF RS.16,00,000/-, THE PROP ERTY IN QUESTION IS PROVED TO HAVE BEEN TRANSFERRED BY T HE ASSESSEE ON 26.03.2009 FOR A CONSIDERATION OF RS.34,80,000/- THROUGH HIS ATTORNEY; (VI) THAT ASSESSEE DURING THE ASSESSMENT PROCEEDING S BEFORE AO, APPELLATE PROCEEDINGS BEFORE THE CIT (A) AS WELL AS DURING THE APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL HAS SUPPRESSED MATERIAL DOCUMENTS VIZ. AGREEMENT TO SELL, RECEIPT FOR RECEIVING THE SALE CONSIDERATION ON THE DATE OF EXECUTION OF THE SALE DEED AND HE HAS EVEN SUPPRESSED THE SALE DEED DURING THE ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS BEFORE AO/CIT(A) JUST TO EVADE THE TAX; (VII) THAT THE ASSESSEE HIMSELF BROUGHT ON RECORD T HE ASSESSMENT ORDER PASSED BY THE AO IN CASE OF SHRI GAURISH PEREIRA FOR THE AY 2009-10, AVAILABLE AT PAGES 50 TO 56 OF THE PAPER BOOK, WHEREIN SHRI GAURISH PEREIRA DESPITE GIVING CONFIRMATION IN FAVO UR OF THE ASSESSEE THAT HE HAS PAID THE TOTAL SALE CONSIDERATION OF RS.16,00,000/- TO THE ASSESSEE, HA S OPPOSED THE REOPENING OF ASSESSMENT U/S 143 (3) REA D ITA NO.3531/DEL./2013 8 WITH SECTION 147 ON THE GROUND THAT THE PROFIT OF RS.18,40,000/- HAS BEEN MADE BY SHRI RAGHAV CHAUDHARY, ASSESSEE, AS PER SALE DEED DATED 26.03.2009 AND THAT THE SAME CANNOT BE ILLEGALLY TA XED IN HIS HANDS. SO, IN THE GIVEN CIRCUMSTANCES, PROTECTIVE ADDITION OF RS.18,40,000/- HAS BEEN MADE IN THE HANDS OF THE ASSESSEE; (VIII) THAT ASSESSEE AS WELL AS SHRI GAURISH PEREIR A ARE IN HANDS IN GLOVE TO DUPE THE TAX AUTHORITIES BY EXECU TING CONFIRMATION IN EACH OTHERS FAVOUR ON THE ONE HAND AND THEN TO DENY THE SAME BEFORE THEIR RESPECTIVE ASSESSING AUTHORITIES JUST TO EVADE THEIR TAX LIABI LITY; (IX) THAT IT IS IMPROBABLE THAT THE ASSESSEE HAS AP POINTED SAMREEN SHAIKH AS ITS ATTORNEY VIDE POWER OF ATTORNEY DATED 02.02.2009 WITHOUT ENTERING INTO ANY AGREEMENT TO SELL AND WITHOUT RECEIVING SALE CONSIDERATION. IT IS ALSO IMPROBABLE THAT THE MARK ET VALUE OF THE PROPERTY IN QUESTION IS INCREASED MORE THAN 100% I.E. FROM RS.16,00,000/- TO RS.34,80,000/ - WITHIN A PERIOD OF ABOUT ONE AND HALF MONTH; (X) THAT SHRI GAURISH PEREIRA VIDE HIS CONFIRMATION LETTER DATED 21.12.2011 INTIMATED TO THE AO THAT RAGHAV ITA NO.3531/DEL./2013 9 CHAUDHARY, ASSESSEE, HAS FILED A CIVIL SUIT NO.2115/2012 BEFORE CIVIL JUDGE, SENIOR DIVISION, GHAZIABAD, UP FOR RECOVERY OF THE SALE CONSIDERATIO N AND FOR DECLARING THE SALE DEED IN QUESTION DATED 26.03.2012 AS NULLITY. THIS FACT FURTHER GOES TO P ROVE THAT THE ASSESSEE HAS ALSO SUPPRESSED HIS PLAINT FI LED IN THE AFORESAID CIVIL SUIT VIDE WHICH HE HAS CLAIMED THE RECOVERY OF THE SALE CONSIDERATION JUST TO EVADE HI S TAX LIABILITY; (XI) THAT THE ASSESSEE HAS ALSO RELIED UPON ONE AFF IDAVIT, AVAILABLE AT PAGES 42 TO 44 OF THE PAPER BOOK, WHER EIN HE HAS CATEGORICALLY MENTIONED THAT HE HAS SOLD THE PROPERTY IN QUESTION FOR A SALE CONSIDERATION OF RS.16,00,000/- BUT, FOR THE SAKE OF REPETITION, IT IS REITERATED THAT IN THE FACE OF REGISTERED DOCUMENT I.E. SALE DEED DATED 26.03.2009 EXECUTED BY ASSESSEE THROUGH HIS ATTORNEY FOR A CONSIDERATION OF RS.34,80,000/-, THE AFFIDAVIT DATED 05.02.2004 IS A N AFTER-THOUGHT AND HAS NO EVIDENTIARY VALUE AND AS S UCH CANNOT OVERWEIGH THE SALE DEED IN QUESTION. (XII) THAT WHEN THE ASSESSEE HIMSELF HAS FILED THE CIVIL SUIT FOR RECOVERY OF BALANCE SALE CONSIDERATION OF ITA NO.3531/DEL./2013 10 RS.18,40,000/- IN THE COURT OF CIVIL JUDGE, SENIOR DIVISION, GHAZIABAD VIDE CIVIL SUIT (SUPRA) AGAINST SHRI GAURISH PEREIRA, HE HAS ESTOPPED BY HIS OWN AC T AND CONDUCT FROM CLAIMING THAT HE HAS SOLD THE PROPERTY IN QUESTION FOR A CONSIDERATION OF RS.16,00,000/-; 10. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, PRESE NT APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 26 TH DAY OF JULY, 2016. SD/- SD/- (J.S. REDDY) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 26 TH DAY OF JULY, 2016 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.