Sri. Madala Venkateswarlu, Bangalore V. ITO, Bangalore

ITA 399/BANG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0154 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 18-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS
• Assessee Lawyers: H GURUSWAMY ITP
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Fair market value

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH A, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER (SMC) ITA NO.399(BANG) 2015 (ASSESSMENT YEAR : 2007-08) SHRI MADALA VENKATESWARLU, H.NO.4, 3 RD CROSS, 3 RD BLOCK, DASAPPA LAYOUT, RAMAMURTHY NAGAR, BANGALORE-560 016 PAN NO..ABBPV6201A APPELLANT VS THE INCOME TAX OFFICER, WARD-14(2), BANGALORE RE SPONDENT ASSESSEE BY : SHRI H. GURUSWAMY, ITP REVENUE BY : SMT SWAPNA DAS, JCIT DATE OF HEARING : 04-07-2016 DATE OF PRONOUNCEMENT : 2 2-07-2016 O R D E R PER A.K.GARODIA, AM: THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF THE LD. CIT(A)-V, BANGALORE DATED 24-02-2014 FOR THE ASSESS MENT YEAR : 2007- 08. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER; 1. THE APPELLATE ORDER DATED 24-02-2014 PASSED BY THE LD. CIT(A)-V BANGALORE, IS OPPOSED TO LAW, F ACTS OF THE CASE IN SO FAR AS IT IS AGAINST TO THE APPELLAN T. 2. THE LD CIT*(A) HAS ERRED IN CONFIRMING THE ADDITIONS MADE BY THE AO OF RS.9.00 LAKHS BEING THE CASH DEPOSITS MADE INTO THE BANK WITHOUT APPRECIATI NG THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LD. CIT(A) V, BANGALORE HAS ERRED IN DIRECTING THE AO TO ADOPT THE COST OF ACQUISITION O F THE ITA NO.399(B)/15 2 SITE AT RS.1,13,464/- AS AGAINST RS.7,94,000/- WITH OUT APPRECIATING THE CONFIRMATION LETTER ISSUED BY THE VENDOR M/S AISHWARYA HOME FROM WHOM THE APPELLANT HAD PURCHASED THE SITE. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND DELETE ANY OF THE GROUNDS AT THE TIME OF HEARING. 5. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, IT IS RESPECTFULLY PRAYED THAT YOU R HONBLE AUTHORITY BE PLEASED TO PASS ORDERS DELETI NG THE ADDITIONS OF RS.9.00 LAKHS MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(A)-V, BANGALORE AND FURTHER BE PASS TO ORDERS DIRECTING THE AO TO CONSI DER THE COST OF ACQUISITION AT RS.7,94,000/- AS AGAINST OF RS.1,13,464/- AND FURTHER BE PLEASED TO PASS SUCH OTHER ORDERS GRANTING SUCH OTHER RELIEF THAT YOUR H ONBLE AUTHORITY MAY DEEM FIT IN THE INTEREST OF EQUITY AN D JUSTICE. 3. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT THE GROUND NO.1 IS GENERAL IN NATURE AND HENCE, I HOLD THAT TH IS GROUND NEEDS NO SPECIFIC ADJUDICATION. 4. FOR GROUND NO.2, THE LD. AR OF THE ASSESSEE SUB MITTED THAT THE LOAN CONFIRMATION LETTERS OF THE CREDITORS ARE AVAILABLE ON PAGES 18 TO 108 OF THE PAPER BOOK. AT THIS JUNCTURE, THE BEN CH WANTED TO KNOW AS TO WHETHER THE ASSESSEE HAS FURNISHED EVIDENCE R EGARDING THE CREDIT WORTHINESS OF THE CREDITORS BEFORE THE AUTHORITIES BELOW OR BEFORE THE ITA NO.399(B)/15 3 TRIBUNAL IN THE PAPER BOOK AND IN REPLY, IT WAS SUB MITTED BY THE LD. AR OF THE ASSESSEE THAT NO SUCH EVIDENCE IS AVAILABLE BUT IT IS A FACT THAT LOAN WAS REPAID AND THEREFORE, THE ADDITION MADE BY THE AO IS NOT JUSTIFIED. 5. THE LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIN D THAT IN PARA- 7.1 OF HIS ORDER, IT IS STATED BY THE LD.CIT(A) THA T THE GENUINENESS OF THE TRANSACTIONS, IDENTITY AND CREDIT WORTHINESS OF THE CREDITORS HAS NOT BEEN ESTABLISHED BY THE ASSESSEE. BEFORE ME ALSO, THE CREDIT WORTHINESS OF THE CREDITORS HAS NOT BEEN ESTABLISHE D. IT IS SETTLED LEGAL POSITION BY NOW THAT IN RESPECT OF CASH CREDIT, THE REQUIREMENT OF SEC.68 IS THIS THAT THE ASSESSEE HAS TO ESTABLISH T HE GENUINENESS OF THE TRANSACTION AND IDENTITY AND CREDIT WORTHINESS OF T HE CREDITORS. THEREFORE, IN THE ABSENCE OF CREDIT WORTHINESS OF T HE CREDITORS HAVING BEEN ESTABLISHED, I DO NOT FIND ANY REASON TO INTER FERE WITH THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. ACCORDINGLY, GROUND N O.2 OF THE ASSESSEE IS DISMISSED. 7. REGARDING GROUND NO.3, IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT COPY OF THE SALE DEED DATED 23-03-200 6 IS AVAILABLE ON PAGE 190-195 OF THE PAPER BOOK, AS PER WHICH, THE PROPERTY WAS PURCHASED FOR A CONSIDERATION OF RS.102784/- BUT HE SUBMITTED THAT THIS PRICE MENTIONED IN THE SALE DEED IS THE STAMP DUTY VALUE BUT THE ACTUAL PRICE PAID WAS RS.794240/- AS PER THE CONFIR MATION OF THE SELLER ITA NO.399(B)/15 4 M/S AISHWARYA HOMES DATED 17-12-2009 AVAILABLE ON P AGE 109 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT IN THE CONFIRMA TION OF THE SAME PARTY DATED 04-06-2015 AVAILABLE ON PAGE 139 OF THE PAPER BOOK, THE DETAILS REGARDING DATE AND MODE OF PAYMENT OF RS.7, 94,240/- IS ALSO MENTIONED. THEREFORE, THE ACTUAL CONSIDERATION PAID BY THE ASSESSEE AND RECEIVED BY THE SELLER SHOULD BE ACCEPTED INSTE AD OF STAMP DUTY VALUE MENTIONED IN THE SALE DEED. 8. THE LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 9. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIN D THAT AS PER THE SALE DEED AVAILABLE ON PAGE-190 TO 195 OF THE PAPER BOOK, THE PROPERTY IN QUESTION WAS PURCHASED BY THE ASSESSEE FOR AN AM OUNT OF RS.102784/-ON 23-03-2006. THE CONFIRMATION OF THE S ELLER M/S AISHWARYA HOMES DEVELOPERS AND BUILDERS, AVAILABLE ON PAGES 109 & 139 OF THE PAPER BOOK STATING THEREIN THAT THIS PRO PERTY WAS SOLD BY THEM TO THE ASSESSEE FOR A SUM OF RS.794240/- CANNO T BE ACCEPTED AS COST OF PROPERTY IN DISPUTE BECAUSE THE SALE DEED I S THE FINAL DOCUMENT REGARDING THE PURCHASE PRICE AND THIS IS BEYOND HUM AN PROBABILITY THAT A PERSON PAYING RS.794240/- FOR PURCHASE OF A PROPERTY WILL ACCEPT THE SALE DEED FOR A CONSIDERATION OF RS.1027 84/-. IT MAY BE THAT THIS AMOUNT OF RS.794240/- WAS PAID BY THE ASSESSEE TO THAT PARTY I.E. M/S AISHWARYA HOMES DEVELOPERS AND BUILDERS ON VARI OUS DATES DURING MAY 9 TH 2005 TO FEB. 2005. BUT THE QUESTION IS AS TO WHET HER SUCH PAYMENT IS FOR THIS PROPERTY BECAUSE IF THESE PAYMENTS ARE IN ITA NO.399(B)/15 5 RESPECT OF THIS VERY PROPERTY, THEN WHY IN THE SALE DEED, THE PRICE MENTIONED WOULD BE RS.102784/-. IN FACT, IN CLAU SE NO.10 OF THE SALE DEED AS AVAILABLE ON PAGE -194 OF THE PAPER BOOK, I T IS SPECIFIED THAT THE FAIR MARKET VALUE (FMV) OF THE PROPERTY IS RS.1 02784/-. SUCH PAYMENT OF RS.794240/- MAY BE A LOAN BY THE ASSESSE E TO THAT PARTY OR MAY BE PAYMENT FOR VARIOUS OTHER REASONS BUT THI S IS NOT ACCEPTABLE IN THE FACTS OF THE PRESENT CASE THAT THE AMOUNT OF RS.794240/- WAS PAID IN RESPECT OF THE PROPERTY IN DISPUTE PARTICUL ARLY IN VIEW OF THE SALE DEED OF THE PROPERTY IN DISPUTE STATING THAT T HE PROPERTY WAS HAVING FAIR MARKET VALUE OF RS.102784/- ONLY AND TH E SAME WAS PURCHASED FOR THE SAME PRICE AS PER THE SALE DEED. HENCE ON THIS ISSUE ALSO, I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A). ACCORDINGLY, GROUND NO.3 OF THE APPEAL IS ALSO DISM ISSED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. (A.K.GARODIA) ACCOUNTANT MEMBER PLACE: BANGALORE: D A T E D : 22.07.2016 AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE ITA NO.399(B)/15 6 1. DATE OF DICTATION .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE AP PROVED DRAFT COMES TO THE SR. P. S. .. 4 DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER DOES FOR XEROX & ENDORSEMENT . 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 11 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. 12 THE DATE ON WHICH THE FILE GOES TO THE DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER 13 DATE OF DISPATCH OF ORDER