K. Neelakantan Pushkaran, Visakhapatnam V. ITO, Ward-2(2), Visakhapatnam

ITA 393/VIZ/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0283 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V APPALA RAJU
• Assessee Lawyers: S V SATYANARAYANA
• Section: 54F; 131; 54; 92

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 393 /VIZ/ 201 7 ( / ASSESSMENT YEAR: 20 09 - 1 0 ) SRI NEELAKANTA N PUSHKARAN MIG - 2A - 36, VUDA COLONY PEDAGANTYADA VISAKHAPATNAM [PAN : A PBPK8772K ] VS. THE INCOME TAX OFFICER WARD - 2(2) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI S.V.SATYANARAYANA , A R / RESPONDENT BY : SHRI V.APPALA RAJU , D R / DATE OF HEARING : 10 . 0 9 . 2018 / DATE OF PRONOUNCEMENT : 19 .0 9 .2018 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] - 1, VISAKHAPATNAM VIDE ITA.NO.472/2011 - 12 DATED 28.04.2017 FOR THE ASSESSMENT YEAR 20 09 - 10 . 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ADDITION OF RS.13,03,000/ - CONFIRMED BY THE LD.CIT(A) RELATING TO THE CASH DEPOSITS IN AXIS BANK 2 I.T.A. NO . 393 /VIZ/201 7 SRI NEELAKANTAN PUSHKARAN, VISAKHAPATNAM ACCOUNT. THE ASSESSEE IS AN INDIVIDUAL WORKING AS EMPLOYEE IN NAVAL DOCKYARD, VISAKHAPATNAM, FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 10 ADMITTING TOTAL INCOME OF RS.3,09,600/ - . THE ASSESSING OFFICER (AO) DURING THE ASSESSMENT PROCEEDINGS FOUND THAT THERE WAS HUGE CASH DEPOSITS OF RS.28,00,000/ - IN THE AXIS BANK ACCOUNT, VISAKHAPATNAM. THE AO ISSUED SHOW CAUSE NOTICE AND CALLED FOR THE EXPLANATION OF THE ASSESSEE FOR THE SOURCE OF THE DEPOSIT. THE ASSESSEE EXPLAINED THAT THE SOURCES OF THE CASH DEPOSITS OF RS.28,00,000/ - ON 05 . 07 . 2008 IN AXIS BANK ACCOUNT WAS OUT OF SALE OF THE PROPERTY ON 04.07.2008 TO ONE DR.KAKI BALE SWAMY. THE AO VERIFIED THE SALE DEED OF THE PROPERTY REGISTERED ON 04.07.200 8 BEARING DOCUMENT NO.1120/2008 AND FOUND THAT THE SALE CONSIDERATION RECORDED WAS ONLY RS.14,97,000/ - , AGAINST THE DEPOSIT OF RS.28,00,000/ - , HENCE, THE AO REQUESTED THE ASSESSEE TO EXPLAIN THE SOURCE OF RS.13,03,000/ - AND THE ASSESSEE SUBMITTED THAT IN THE SALE DEED, FOR THE PURPOSE OF STAMP DUTY, THE SUB REGISTRAR OFFICE (SRO) GUIDELINES VALUE OF RS.14,97,000/ - WAS ADOPTED AGAINST THE ACTUAL RECEIPT OF SAL E CONSIDERATION WAS RS.28 LAKHS, HENCE REQUESTED TO ACCEPT THE SALE CONSIDERATION AT RS.28 LAKHS AND NOT TO MAKE ANY ADDITION. NOT BEING CONVINCED WITH THE EXPLANATION OF THE ASSESSEE, THE AO MADE THE ADDITION OF RS.13,03,000/ - 3 I.T.A. NO . 393 /VIZ/201 7 SRI NEELAKANTAN PUSHKARAN, VISAKHAPATNAM REPRESENTING THE DIFFERENCE BETWEEN THE DEPOSIT AND THE SALE CONSIDERATION MENTIONED IN THE REGISTRATION DEED. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) CONFIRMED THE ADDITION MADE BY THE AO. THE LD.CIT(A) CALLED FOR THE RE MAND REPORT AND DURING THE REMAND PROCEEDINGS, THE AO RECORDED THE STATEMENT U/S 131 FROM ONE OF THE WITNESSES, SHRI GOPALA SASIDHARAN PILLAI WHO HAS STATED THAT HE WAS WITNESS FOR ACTUAL CONSIDERATION OF RS.14,97,000/ - , BUT NOT RS. 28,00,000/ - . THEREFORE, THE LD.CIT(A) HELD THAT THE ACTUAL CONSIDERATION WAS RS.14,97,000/ - , BUT NOT RS.28,00,000/ - AS CLAIMED BY THE ASSESSEE AND THUS CONFIRMED THE ADDITION OF RS.13,03,000/ - MADE BY THE AO. 4. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL AND RAISED FOUR GROUNDS IN THIS APPEAL AS FOLLOWS : 1. THE ORDER OF LEARNED CIT(A) IS ERRED BOTH IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT(A) OUGHT TO HAVE CONSIDERED THE APPELLANT S EXPLANATION THAT THE AMOUNT OF RS.13,03,000/ - REPRESENT THE SALE CONSIDERATION OF OTHER ARTICLES AND UPGRADES SOLD ALONG WITH THE HOUSE PROPERTY, ELIGIBLE FOR EXEMPTION OF CAPITAL GAIN U/S 54 AND 54F, SINCE THE ENTIRE SALE AMOUNT IS INVESTED IN HOUSE CO NSTRUCTION IN KERALA. 3. THE LD.CIT(A) OUGHT TO HAVE DELETED THE ADDITION OF RS.13,03,000/ - MADE B THE ASSESSING OFFICER UNDER THE HEAD OTHER SOURCES U/S 69A AS AN EXPLAINED MONEY. 4 I.T.A. NO . 393 /VIZ/201 7 SRI NEELAKANTAN PUSHKARAN, VISAKHAPATNAM 4. ANY OTHER GROUND / GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING BY THE APP ELLANT FOR REDRESSAL OF HIS GRIEVANCE. 5. GROUND NO.1 AND 4 ARE GENERAL IN NATURE WHICH DOES NOT REQUIRE SPECIFIC ADJUDICATION. 6. GROUND NO.2 IS RELATED TO THE SALE CONSIDERATION OF OTHER ARTICLES AND UPGRADES STATED TO HAVE SOLD ALONG WITH HOUSE PROPE RTY. THE LD.AR DURING THE APPEAL HEARING, DID NOT FURNISH ANY DETAILS OR EVIDENCE S TO SHOW THAT THE ASSESSEE HA D SOLD THE ARTICLES AND UPGRADES SEPARATELY ALONG WITH HOUSE PROPERTY. THE SALE DEED ALSO DOES NOT INDICATE THE SALE OF ANY OTHER ARTICLES/THIN GS ALONG WITH HOUSE PROPERTY. NO ARGUMENT WAS MADE BY THE LD.AR DURING THE APPEAL HEARING. THEREFORE, THIS GROUND IS DISMISSED NOT PRESSED. 7. GROUND NO.3 IS RELATED TO THE ADDITION OF RS.13,03,000/ - MADE BY THE AO PERTAINING TO CASH DEPOSIT MADE BY THE ASSESSEE IN THE AXIS BANK. DURING THE APPEAL HEARING, THE LD.AR SUBMITTED THAT THE ASSESSEE HAS SOLD THE HOUSE PROPERTY FOR A CONSIDERATION OF RS.28,00,000/ - AND RECEIVED THE SAID SUM FROM THE BUYER WHICH WAS DEPOSITED IN THE BANK ACCOUNT. THE SALE CONSI DERATION OF RS.14,97,000/ - WAS RECORDED IN THE SALE DEED AS PER THE SRO VALUE. THE LD.AR FURTHER ARGUED THAT THE ASSESSEE IS EMPLOYED IN 5 I.T.A. NO . 393 /VIZ/201 7 SRI NEELAKANTAN PUSHKARAN, VISAKHAPATNAM NAVAL DOCKYARD AND HAS NO OTHER SOURCE OF INCOME , HENCE , REQUESTED TO ACCEPT THE SALE CONSIDERATION AT RS.28,00,000/ - AND DELETE THE ADDITION MADE BY THE AO. 8. ON THE OTHER HAND, THE LD.DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE ASSESSEE HAS MADE THE CASH DEPOSIT OF RS.28,00,000/ - IN AXIS BANK ACCOUNT ON 05.07.2008 AND THE SOURCE WAS EXPLAINED TO BE CONSIDERATION RECEIVED ON SALE OF PROPERTY VIDE DOCUMENT NO.1120/2008 . V ERIFICATION OF THE IMPUGNED DOCUMENT REVEALED THAT THE SALE CONSIDERATION RECORDED IN THE SALE DEED WAS RS.14,97,000/ - BUT NOT RS.28,00,000/ - AS STATED BY THE ASSESSEE . THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE TO SHOW THAT THE SALE CONSIDERATION WAS RS.28,00,000/ - FOR THE SALE OF PROPERTY. THE STATEMENT RECORDED FROM ONE OF THE WITNESSES SHRI SHRI GO PALA SASIDHARAN PILLAI ALSO CONFIRMS THE FACT THAT THE SUM RECEIVED BY THE ASSESSEE TOWARDS THE SALE OF THE PROPERTY WAS AT RS.14,97,000/ - BUT NOT RS.28,00,000/ - . THE ASSESSEES SUBMISSION THAT FOR THE PURPOSE OF STAMPS AND REGISTRATIONS, THE SALE CONSIDERATION WAS ADOPTED AT RS.14,97,000/ - A S PER SRO GUIDELINES VALUE AGAINST THE ACTUAL CONSIDERATION 6 I.T.A. NO . 393 /VIZ/201 7 SRI NEELAKANTAN PUSHKARAN, VISAKHAPATNAM OF RS.28,00,000/ - IS UNACCEPTABLE SINCE THE ASSESSEE CANNOT MAKE EVASION OF TAX TO STATE GOVERNMENT FOR PAYMENT OF REGISTRATION CHARGES AND AT THE SAME TIME CLAIM EXEMPTION FROM INCOME TAX ACT. TH E SIMILAR ISSUE WAS CONSIDERED BY THE ITAT, HYDERABAD IN THE CASE OF SHRI SUDARSHAN ALUVALA VS THE INCOME TAX OFFICER, WARD - 12(2) HYDERABAD.ITA NO. 1472/HYD/2016 FOR THE ASSESSMENT YEAR: 2010 - 11 DATED 13/07/2017 AND HELD AS UNDER: .IT IS A SETTLED P RINCIPLE THAT ASSESSEE CANNOT EVADE STAMP DUTY OTHER TAXES FOR TRANSFER OF PROPERTY AND CLAIM EXEMPTION FROM INCOME TAX ACT BY CLAIMING EXCESS CONSIDERATION AND SUCH DOUBLE STANDARDS ARE NOT ACCEPTABLE AS HELD BY HONBLE SUPREME COURT IN THE CASE OF COIMBA TORE SPINNING & WEAVING CO. LTD. IN 95 ITR 375(SC). FURTHER HONBLE HIGH COURT OF PUNJAB AND HARYANA IN [2010] 195 TAXMAN 273 (PUNJ. & HAR.). PARMIJIT SINGH. V. INCOME - TAX OFFICER ON SIMILAR FACTS HELD THAT: IT IS A WELL - KNOWN PRINCIPLE THAT NO ORAL EVID ENCE IS ADMISSIBLE ONCE THE DOCUMENT CONTAINS ALL THE TERMS AND CONDITIONS. SECTIONS 91 AND 92 OF THE INDIAN EVIDENCE ACT, 1872 INCORPORATE THE AFORESAID PRINCIPLE. ACCORDING TO SECTION 91, WHEN TERMS OF A CONTRACT, GRANTS OR OTHER DISPOSITIONS OF PROPERTY HAVE BEEN REDUCED TO THE FORM OF DOCUMENTS, THEN NO EVIDENCE IS PERMISSIBLE TO BE GIVEN IN PROOF OF ANY SUCH TERMS OF SUCH GRANT OR DISPOSITION OF THE PROPERTY EXCEPT THE DOCUMENT ITSELF OR THE SECONDARY EVIDENCE THEREOF. ACCORDING TO SECTION 92, ONCE THE DOCUMENT IS TENDERED IN EVIDENCE AND PROVED AS PER THE REQUIREMENTS OF SECTION 91, THEN NO EVIDENCE OF ANY ORAL AGREEMENT OR STATEMENT WOULD BE ADMISSIBLE AS BETWEEN THE PARTIES TO ANY SUCH INSTRUMENT FOR THE PURPOSES OF CONTRADICTING, VARYING, ADDING TO OR SUBTRACTING FROM ITS TERMS. THEREFORE, IT FOLLOWS THAT NO ORAL AGREEMENT CONTRADICTING/VARYING THE TERMS OF A DOCUMENT CAN BE OFFERED. ONCE THE AFORESAID PRINCIPAL IS CLEAR, THEN IN THE INSTANT CASE, OSTENSIBLE SALE CONSIDERATION DISCLOSED IN THE SALE D EED HAD TO 7 I.T.A. NO . 393 /VIZ/201 7 SRI NEELAKANTAN PUSHKARAN, VISAKHAPATNAM BE ACCEPTED AND IT COULD NOT BE CONTRADICTED BY ADDUCING ANY ORAL EVIDENCE. THEREFORE, THE ORDER OF THE TRIBUNAL DID NOT SUFFER FROM ANY LEGAL INFIRMITY IN REACHING TO THE CONCLUSION THAT THE AMOUNT SHOWN IN THE REGISTERED SALE DEED WAS RECEIVED BY THE VENDORS AND DESERVED TO BE ADDED TO THE GROSS INCOME OF THE ASSESSEE. [PARA 4]. IN THE INSTANT CASE THE SALE CONSIDERATION AS PER THE SALE DEED WAS RS.14,97,000/ - THEREFORE, WE HOLD THAT THE ACTUAL CONSIDERATION RECEIVED BY THE ASSESSEE WAS RS.14,97,000/ - AND THE ASSESSEE FAILED TO EXPLAIN THE SOURCES FOR REMAINING AMOUNT OF RS.13,03 ,000/,THUS, THE AO RIGHTLY ASSESSED THE INCOME UNDER 69A OF THE ACT AND REJECTED THE CLAIM OF THE ASSESSEE U/S 54 AND 54F OF THE ACT. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AND THE SAME IS UPHELD. ACCORDINGLY, THE APPEAL FILED BY THE A SSESSEE IS DISMISSED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19 TH SEPTEMBER, 201 8 . S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 19 . 0 9 .2018 L.RAMA, SPS 8 I.T.A. NO . 393 /VIZ/201 7 SRI NEELAKANTAN PUSHKARAN, VISAKHAPATNAM / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - SRI NEELAKANTA N PUSHKARAN, MIG - 2A - 36, VUDA COLONY, PEDAGANTYADA, VISAKHAPATNAM 2. / THE REVENUE THE INCOME TAX OFFICER, WARD - 2(2),VISAKHAPATNAM 3. THE PR. COMMISSIONER OF INCOME TAX - 1 , VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME - TAX(APPEALS) - 2, GUNTUR 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM