Sri.Aju Abdurahiman, Calicut V. The ITO, Calicut

ITA 401/COCH/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7414 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Keywords: Unexplained investment; Capital asset; Reasonable cause; Corroborative evidences
• Section: 148; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI CHANDRA POOJARI , AM & GEORGE GEORGE K., JM I.T.A. NO.400 & 401/COCH/2015 ASSESSMENT YEAR S : 2007 - 08 & 2008 - 09 SHRI AJU ABDURRAHIMAN, GREENS FEROKE PETTA, KOZHIKODE. [PAN:AFDPA 2400E] VS. THE INCOME TAX OFFICER, WARD-1(1), KOZHIKODE (ASSESSEE - APPELLANT) (REVENUE - RESPONDEN T) A SSESSEE BY SHRI SHAMEEM AHAMED, ADV. REVENUE BY SHRI A. DHANARAJ, SR. DR D ATE OF HEARING 29/05/2018 DATE OF PRONOUNCEMENT 05 / 0 7 /2018 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE SEPARATE ORDERS OF THE CIT(A), KOZHIKODE DATED 05/02/2014 AN D PERTAINS TO THE ASSESSMENT YEARS 2007-08 AND 2008-09. 2. THERE WAS A DELAY OF 423 DAYS OF DELAY IN FILI NG THESE TWO APPEALS BEFORE THIS TRIBUNAL. THE ASSESSEE HAS FILED A CONDONATION PETI TION ACCOMPANIED BY AN AFFIDAVIT STATING THAT THE CHARTERED ACCOUNTANT OF THE ASSESSEE WAS FREQUENTLY HOSPITALIZED DUE TO ILLNESS AND HE FINALLY EXPIRED IN APRIL, 2015. THEREAFTER HIS I.T.A. NOS.400&401/C/2015 2 SON TOOK OVER THE MANAGEMENT OF THE FIRM AND ON REA LIZING THAT NO APPEAL WAS FILED AGAINST THE IMPUGNED ORDER, HAD IMMEDIATELY T AKEN STEPS AND FILED THE CURRENT APPEALS ON 20/05/2015 WITH A DELAY OF 423 D AYS. THE ASSESSEE SUBMITTED THAT THE DELAY IN FILING THE APPEALS WAS DUE TO A GENUINE INABILITY AND DUE TO SUFFICIENT AND REASONABLE CAUSE AND HENCE, I T WAS PRAYED THAT THE DELAY OF 423 DAYS MAY BE CONDONED, FAILING WHICH IRREPARA BLE LOSS AND INJURY MAY BE CAUSED TO THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE RECORD. ON GOING THROUGH THE CONDONATION PETITION FILED BY THE ASSES SEE, WE FIND THAT THERE IS GOOD AND SUFFICIENT CAUSE FOR CONDONING THE DELAY I N FILING THE APPEALS AND THE DELAY IN FILING THE APPEALS IS FOUND TO BE BONAFIDE . ACCORDINGLY, WE CONDONE THE DELAY OF 423 DAYS AND ADMIT THE APPEALS FOR ADJUDIC ATION. 4. THE ONLY GROUND RAISED BY THE ASSESSEE IN IT A NO. 400/COCH/2015 IS WITH REGARD TO THE SUSTENANCE OF ADDITION OF RS.23,42,60 0/- UNEXPLAINED INVESTMENT IN THE BANK ACCOUNTS. 5. THE FACTS OF THE CASE ARE THAT THE THERE WAS INFORMATION WITH THE ASSESSING OFFICER THAT THE ASSESSEE HAD ENTERED INTO AN AGREE MENT WITH SHRI ANIL KUMAR SHARMA OF ERNAKULAM FOR PROCURING ABOUT 13 ACRES OF LAND IN OLAVANNA VILLAGE IN KOZHIKODE DISTRICT ON 05/07/2007. AS PER THE AGRE EMENT, THE ASSESSEE HAD TO I.T.A. NOS.400&401/C/2015 3 RECEIVE RS.1,05,000/- PER CENT FOR PROCURING LAND O N BEHALF OF SHRI ANIL KUMAR SHARMA IRRESPECTIVE OF THE COST ACTUALLY PAID BY TH E ASSESSEE TO THE SELLER. ACCORDINGLY, THE ASSESSEE HAD PROCURED ABOUT 544 CE NTS OF LAND DURING THE PERIOD FROM 01/04/2007 TO 25/09/2008 AND SHRI ANIL KUMAR SHARMA HAD PAID ABOUT RS.5.71 CORES TO THE ASSESSEE THROUGH BANKING CHANNELS. SINCE THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME FOR AY 2007-08, NOTICE U/S. 148 OF THE ACT WAS ISSUED TO THE ASSESSEE. HOWEVER, THE A SSESSEE DID NOT RESPOND TO THE NOTICE AND THE ASSESSING OFFICER ISSUED NOTICE U/S. 144 OF THE ACT. IN RESPONSE TO THE 144 NOTICE, THE ASSESSEE FILED RETU RN OF INCOME ON 20/12/2010 SHOWING REMUNERATION OF RS.40,000/- FROM GAZAZ GLOB AL AD VISION PVT. LTD. ON VERIFICATION OF THE DETAILS OF LAND DEAL WITH SHRI ANIL KUMAR SHARMA, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD ONLY RECEIVED ADVANCE OF RS.1,50,00,000/- FROM SHRI ANIL KUMAR SHARMA DURING THE FY 2006-07 R ELATING TO AY 2007-08 AND NO PROPERTY TRANSACTION WAS DONE DURING THE YEAR. HOWEVER, FROM THE CASH FLOW STATEMENT AND BANK STATEMENTS, IT WAS NOTICED BY TH E ASSESSING OFFICER THAT THERE WERE HUGE CASH DEPOSITS IN THE SB ACCOUNT OF THE ASSESSEE WITH FEDERAL BANK AND ICICI BANK. IT WAS EXPLAINED BY THE ASSES SEE THAT THESE WERE AMOUNTS RECEIVED FROM SHRI MUHAMMED AND HAMEED TOWA RDS REFUND OF ADVANCE PAID FOR PURCHASE OF PROPERTIES ON BEHALF OF BROTHE R OF ASSESSEES FATHER-IN-LAW. THE SOURCE OF THE MONEY WAS EXPLAINED TO BE WITHDRA WALS MADE FROM THE BANK ACCOUNT OF SHRI SULAIMAN, BROTHER OF SHRI MOOSAKUTT Y, FATHER-IN LAW OF THE ASSESSEE, AND PAID TO SHRI MUHAMMED AND HAMEED. FUR THER, IT WAS SUBMITTED I.T.A. NOS.400&401/C/2015 4 THAT BOTH SHRI SULAIMAN AND MOOSAKUTTY WERE NRIS DO ING BUSINESS IN THE GULF AND PRODUCED COPIES OF THEIR BANK ACCOUNTS. ON VER IFICATION OF THE BANK ACCOUNTS, IT WAS NOTICED BY THE ASSESSING OFFICER T HAT THE PAYMENTS TO SHRI MUHAMMED AND HAMEED WERE MADE WAY BACK IN MARCH, 20 06 AND THE ASSESSEE COULD NOT GIVEN ANY PLAUSIBLE EXPLANATION WITH REGA RD TO THE ADVANCE MADE AND THE POSSIBLE CHANNEL OF ITS REFUND TO THE ASSESSEE, AND THEREFORE, THE EXPLANATION OF THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFIC ER AND TREATED THE BANK DEPOSITS AMOUNTING TO RS.23,42,600/- AS UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE . 6. ON APPEAL, THE CIT(A) OBSERVED THAT THE ASSESS EE COULD NOT PROVE WITH CLINCHING EVIDENCE THAT THE MONEY HAD COME FROM REF UND OF ADVANCE GIVEN FOR PURCHASE OF A PROPERTY. ACCORDING TO THE CIT(A), T HERE WAS NO PROOF THAT THE AMOUNTS DEPOSITED IN THE BANK ACCOUNTS WERE THE REF UNDS OF THE SAME AMOUNTS WHICH HAD BEEN ADVANCED FOR PURCHASE OF THE PROPERT Y. IN VIEW OF THIS, THE CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 7. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR SUBMITTED THAT DEPOSITS IN BANK ACCOUNTS REPRESENTED THE AMOUNTS R ECEIVED FROM RELATIVES OUT OF THEIR WITHDRAWALS FROM NRE ACCOUNTS AND REFUND OF VARIOUS LAND ADVANCES ON CANCELLATION OF DEALS EXECUTED BY THE ASSESSEE ON B EHALF OF HIS RELATIVES. ACCORDING TO THE LD. AR, THE DECLARATION AND STATEM ENT FILED BY THE ASSESSEE I.T.A. NOS.400&401/C/2015 5 CLEARLY ESTABLISHED THAT THE CASH DEPOSITS IN BANKS WERE MADE OUT OF THE SURPLUS FUNDS AVAILABLE WITH THE ASSESSEE AS AN AGENT ON BE HALF OF THE RELATIVES. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD NOT BEEN GIVEN A N OPPORTUNITY TO PROVE HIS CASE. 8. ON THE OTHER HAND, THE LD. DR RELIED ON THE O RDERS OF THE LOWER AUTHORITIES. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE RECORD. THE MAIN PLEA OF THE ASSESSEES COUNSEL IS THAT ORIGINALLY THE AM OUNT WAS ADVANCED FOR PURCHASE OF LANDED PROPERTIES BY THE ASSESSEES REL ATIVES OUT OF THEIR NRE BANK ACCOUNTS, THE SAME WAS RECEIVED BACK BY THE PRESENT ASSESSEE. HOWEVER, THIS FACT HAS NOT BEEN VERIFIED BY THE LOWER AUTHORITIES . IN OUR OPINION, THE ASSESSEE HAS TO PLACE THE COPIES OF NRE BANK ACCOUNTS OF HIS RELATIVES ALONG WITH THE DETAILS OF REFUND RECEIVED ON CANCELLATION OF THE A GREEMENTS WITH VARIOUS PARTIES FOR PURCHASE OF LANDED PROPERTIES. ACCORDINGLY, WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO EXAMINATION OF TH E DOCUMENTS MENTIONED ABOVE AFTER AFFORDING OPPORTUNITY OF HEARING TO THE ASSESSEE. IF THERE IS NO AGREEMENT ENTERED WITH THE VARIOUS PARTIES, THE PAY MENTS MADE BY THE ASSESSEES RELATIVES TO THE VENDOR AND REFUND FROM THEM IS TO BE SUBSTANTIATED BY THE ASSESSEE. THUS, THIS GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NOS.400&401/C/2015 6 10. THE ONLY GROUND RAISED BY THE ASSESSEE IN IT A NO. 401/COCH/2015 IS WITH REGARD TO SUSTENANCE OF ADDITION OF RS. 1,50,42,950 /- TOWARDS RECEIPT OF COMMISSION ON REAL ESTATE BUSINESS. 11. THE FACTS OF THE CASE ARE THAT THERE WAS IN FORMATION WITH THE ASSESSING OFFICER THAT THE ASSESSEE HAD ENTERED INTO AN AGREE MENT WITH SHRI ANIL KUMAR SHARMA OF ERNAKULAM FOR PROCURING ABOUT 13 ACRES OF LAND IN OLAVANNA VILLAGE IN KOZHIKODE DISTRICT ON 05/07/2007. AS PER THE AGRE EMENT, THE ASSESSEE HAD TO RECEIVE RS.1,05,000/- PER CENT FOR PROCURING LAND O N BEHALF OF SHRI ANIL KUMAR SHARMA IRRESPECTIVE OF THE COST ACTUALLY PAID BY TH E ASSESSEE TO THE SELLER. ACCORDINGLY, THE ASSESSEE HAD PROCURED ABOUT 544 CE NTS OF LAND DURING THE PERIOD FROM 01/04/2007 TO 25/09/2008 AND SHRI ANIL KUMAR SHARMA HAD PAID ABOUT RS.5.71 CORES TO THE ASSESSEE THROUGH BANKING CHANNELS. SINCE THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME FOR AY 2008-09, NOTICE U/S. 148 OF THE ACT WAS ISSUED TO THE ASSESSEE. HOWEVER, THE A SSESSEE DID NOT RESPOND TO THE NOTICE AND THE ASSESSING OFFICER ISSUED NOTICE U/S. 144 OF THE ACT. IN RESPONSE TO THE 144 NOTICE, THE ASSESSEE FILED RETU RN OF INCOME DECLARING A TOTAL INCOME OF RS.6,85,205/-, WHICH INCLUDED REMUNERATIO N OF RS.40,000/- FROM GAZAZ GLOBAL AD VISION PVT. LTD. AND COMMISSION AMOUNTING TO RS.4,45,205/- FROM THE PROPERTY DEAL WITH SHRI ANIL KUMAR SHARMA. ON VERI FICATION OF THE LAND DEALS MADE BY THE ASSESSEE DURING THE YEAR, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD PROCURED 4.53 ACRES OF LAND DURING FY 2007-08 RELATING TO AY 2008- I.T.A. NOS.400&401/C/2015 7 09. THE ASSESSEE CLAIMED THAT HE HAD PAID AN AMOUN T OF RS.4,57,18,050/- @ RS.1,05,000/- PER CENT FOR PROCUREMENT OF LAND TO V ARIOUS SELLERS. IT WAS FURTHER CLAIMED THAT THE ENTIRE MONEY AMOUNTING TO RS. 4,57 ,18,050/- RECEIVED FROM SHRI ANIL KUMAR SHARMA WAS PAID TO THE SELLERS. HOWEVER , IT WAS NOTICED BY THE ASSESSING OFFICER FROM THE DEED OF DOCUMENTS IN RES PECT OF THESE PROPERTY DEALS THAT ONLY AN AMOUNT OF RS.1,86,66,400/- WAS ACTUALL Y PAID BY THE ASSESSEE TO THE SELLERS. IT WAS CLAIMED BY THE ASSESSEE THAT HE HA D PAID SALE CONSIDERATION OVER AND ABOVE THE VALUE SHOWN IN THE DOCUMENTS. SINCE THE ASSESSEE COULD NOT SUBSTANTIATE THE CLAIM WITH SUPPORTING EVIDENCES, T HE ASSESSING OFFICER BROUGHT TO ASSESSMENT THE AMOUNT OF RS.2,70,51,650/- AS BUS INESS PROFIT OF ASSESSEE FROM THE PROPERTY TRANSACTIONS WITH SHRI ANIL KUMAR SHARMA. 12. ON APPEAL, THE CIT(A) OBSERVED THAT EXCEPT ON E PROPERTY, ALL THE PROPERTIES PURCHASED WERE REGISTERED IN THE NAME OF SHRI ANIL KUMAR SHARMA AND THE ONE PROPERTY WHICH WAS PURCHASED IN THE NAME OF THE ASS ESSEE WAS ALSO SUBSEQUENTLY TRANSFERRED TO SHRI ANIL KUMAR SHARMA. ACCORDING TO THE CIT(A), IF THE ASSESSEE WAS A TRADER, THE LAND WOULD HAVE BEEN PURCHASED IN HIS NAME OR IN THE NAME OF HIS NEAR AND DEAR OR SOME PERSON CLO SE TO HIM. IN THIS CASE, THE CIT(A) FOUND THAT THE PROPERTIES HAVE BEEN PURCHASE D IN THE NAME OF SHRI ANIL KUMAR SHARMA FROM WHOM THE MONEY WAS RECEIVED BY TH E ASSESSEE. ACCORDING TO THE CIT(A), THE PERSON FROM WHOM MONEY HAD COME AND THE PERSON IN WHOSE NAME THESE PROPERTIES HAD BEEN REGISTERED IS ONE AN D THE SAME, NAMELY SHRI I.T.A. NOS.400&401/C/2015 8 ANIL KUMAR SHARMA, AND THEREFORE IT GOES TO PROVE T HAT THE ASSESSEE WAS ONLY WORKING AS AN AGENT AND NOT AS A TRADER AS ASSUMED BY THE ASSESSING OFFICER . THE CIT(A) RELIED ON THE JUDGMENT OF THE HONBLE AP EX COURT IN THE CASE OF DURGA PRASAD MORE (82 ITR 540) WHEREIN IT WAS OBSER VED THAT HIGH COURT SHOULD NOT IGNORE FACTS OF LIFENEED NOT PUT ON B LINKERS AND SWALLOW THE STORY GIVEN WITHOUT APPLYING TEST OF HUMAN PROBABIL ITIES. ACCORDING TO THE CIT(A) IT IS NOT POSSIBLE FOR AN AGENT TO MAKE SUPE R NORMAL PROFITS LIKE A TRADER. ACCORDING TO THE CIT(A), IN KERALA LAND TITLES ARE NOT REGISTERED AT 100% OF THEIR VALUE AND PART OF IT WAS PAID IN CASH TO THE SELLER S. THE CIT(A) OBSERVED THAT 40 TO 80% OF ACTUAL SALE CONSIDERATION WAS GIVEN IN CA SH TO THE SELLERS. THEREFORE, CONSIDERING THAT THE MONEY COMING INTO THE BANK ACC OUNT OF THE ASSESSEE HAD GONE OUT COMPLETELY BEFORE COMING TO THE NOTICE OF THE DEPARTMENT, THE CIT(A) ESTIMATED 50% OF THE MONEY IN THE BANK ACCOUNT AS U TILIZED FOR PURCHASE OF LAND AS ON MONEY AND REDUCED THE ADDITION OF RS.3,00, 85,900/- (RS.2,70,51,650 + RS.30,34,250) TO RS. 1,50,42,950/-. 14. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFO RE US. THE LD. AR SUBMITTED THAT THE CIT(A) HAD ACCEPTED THE FACT THAT THE ASSE SSEE IS WORKING AS AN AGENT IN BUYING AND SELLING OF PROPERTIES. EVEN AFTER ACCEPT ING THAT THE ASSESSEE IS AN AGENT, IN THE REAL ESTATE BUSINESS, THE CIT(A) SUST AINED THE ADDITION AT 50% OF THE MONEY IN THE BANK ACCOUNT WHICH HAS BEEN UTILIZ ED FOR PURCHASE OF LAND AS ON-MONEY. ACCORDING TO HIM, BY ANY STRETCH OF IMAG INATION, THE ASSESSEE CANNOT I.T.A. NOS.400&401/C/2015 9 GET COMMISSION AT 50% OF THE TRANSACTION VALUE OF T HE LAND AND WOULD GET ONLY A MEAGER AMOUNT OF COMMISSION AT 2% OF ITS TRANSACTIO N VALUE. 15. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE CIT(A) MUST HAVE SUSTAINED THE ENTIRE ADDITION. HOWEVER, HE WAS VER Y LIBERAL IN SUSTAINING THE ADDITION AT ONLY 50% OF THE MONEY IN THE BANK ACCOU NT. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE RECORD. THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.4,57,18,050/- FROM VAR IOUS PARTIES. OUT OF THIS, THE ASSESSEE HAD UTILIZED AN AMOUNT OF RS.,1,86,66, 400/- . THE ASSESSING OFFICER BROUGHT TO ASSESSMENT THE BALANCE AMOUNT OF RS.2,70 ,51,650/- AS BUSINESS PROFIT OF THE ASSESSEE FROM THE PROPERTY TRANSACTIO NS WITH THE PARTIES. FURTHER, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE EA RNED SHORT TERM CAPITAL GAIN OF RS.30,34,250/- ON THE SALE OF THE LANDED PROPERT Y OF 54.75 CENTS. THE ASSESSING OFFICER CONSIDERED THE AMOUNT OF RS.3,00, 85,900/- AS INCOME OF THE ASSESSEE. THE CIT(A) CONSIDERED THE ASSESSEE AS AN AGENT IN REAL ESTATE BUSINESS AND ESTIMATED THE INCOME OF THE ASSESSEE A T 50% OF THE TOTAL MONEY IN THE BANK ACCOUNT WHICH IS NOT CORRECT. ONCE THE CI T(A) HAS CONSIDERED THE ASSESSEE AS AN AGENT IN REAL ESTATE BUSINESS, THE I NCOME OF THE ASSESSEE CANNOT BE ESTIMATED AT 50% OF THE TOTAL TRANSACTION VALUE. IN OUR OPINION, THE INCOME OF THE ASSESSEE IS TO BE CONSIDERED AT 2% OF THE TO TAL TRANSACTION VALUE OF RS.2,70,51,650/- AT RS. 45,41,033/- (I.E. AFTER EX CLUDING SHORT TERM CAPITAL GAIN). I.T.A. NOS.400&401/C/2015 10 16.1 FURTHER, THE CIT(A) HAS CONSIDERED THE SHORT TERM CAPITAL GAIN ON SALE OF 54.75 CENTS OF LAND AT 50% OF RS.30,34,250/-. THE LD. AR SUBMITTED THAT THE ASSESSEES ROLE WAS AS AN INTERMEDIARY WHICH WAS ES TABLISHED BY AN AGREEMENT ENTERED BY THE ASSESSEE WITH SHRI ANIL KUMAR SHARMA . THE ASSESSING OFFICER HAS OVERLOOKED THE EXPLANATION FILED FOR ESTABLISHING T HE CIRCUMSTANCES UNDER WHICH THE LAND WAS ACQUIRED BY THE ASSESSEE. LATER IT WA S TRANSFERRED TO SHRI ANIL KUMAR SHARMA. HOWEVER, THERE WAS NO DISCUSSION WHA TSOEVER ON THIS ISSUE BY THE LOWER AUTHORITIES. HENCE, TO COMPUTE THE SHORT TERM CAPITAL GAIN, ONE HAS TO GO THROUGH ALL THE RELEVANT DOCUMENTS FOR ACQUIRING AND TRANSFERRING OF THE IMPUGNED CAPITAL ASSET AND THEREAFTER, IT HAS TO BE DECIDED. IF THE ASSESSEE HAS ACTUALLY ACQUIRED THE PROPERTY FOR HIMSELF, THEN ON LY THE QUESTION OF COMPUTATION OF CAPITAL GAIN ARISES IN THE HANDS OF THE ASSESSEE . ACCORDINGLY, WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO RE-EX AMINE THE ISSUE AFRESH AND BRING TO TAX ONLY SHORT TERM CAPITAL GAIN, IF SO, AFTER G IVING DEDUCTION OF COST TOWARDS ACQUISITION AND TRANSFER OF THE SAID PROPERTY. IN O THER WORDS, IF THE SAID PROPERTY WAS ACQUIRED ON BEHALF OF SHRI ANIL KUMAR SHARMA AN D THEREAFTER TRANSFERRED TO SHRI ANIL KUMAR SHARMA, THEN THERE CANNOT BE ANY CA PITAL GAIN IN THE HANDS OF THE ASSESSEE AND INCOME ON THIS TRANSACTION IS TO B E ESTIMATED AT 2% ON THIS ALSO. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO COMPUTE THE INCOME OF THE ASSESSEE AS ABOVE. THUS, THIS GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. I.T.A. NOS.400&401/C/2015 11 17. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 400/COCH/2015 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE APP EAL FILED BY THE ASSESSEE IN ITA NO. 401/COCH/2015 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THI S 05 JULY, 2018. SD/- SD/- ( GEORGE GEORGE K.) (CHAN DRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: DATED:05 JULY, 2018 GJ COPY TO: 1. SHRI AJU ABDURRAHIMAN, GREENS, FEROKE, PETTA, KOZHIKODE. 2. THE INCOME TAX OFFICER, WARD-1(1), KOZHIKODE. 3. THE PR. COMMISSIONER OF INCOME-TAX(APPEALS), KOZ HIKODE. 4. THE PR. COMMISSIONER OF INCOME-TAX, KOZHIKODE. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRA R) I.T.A.T. , COCHIN