P.Kandasamy, Salem V. ITO, Salem

ITA 413/CHNY/2015

• Counselvise Citation: 41321714 RSA 2015
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 17-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 26-02-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: G BASKAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO.413/MDS/2015 / ASSESSMENT YEAR : 2009-10 SHRI P. KANDASAMY NO.6/59, NEW 4/118, SULAIMEDU UTHAMASOLAPURAM SALEM 636 010 VS. THE INCOME TAX OFFICER WARD I(3) SALEM [PAN BKEPK 1663 A] ( %& / APPELLANT) ( '(%& /RESPONDENT) / APPELLANT BY : SHRI G. BASKAR, ADVOCATE /RESPONDENT BY : SHRI P. RADHAKRISHNAN, JCIT / DATE OF HEARING : 17 - 0 6 - 2015 ! / DATE OF PRONOUNCEMENT : 03 - 07 - 2015 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), SALEM DA TED 30.12.204 AND PERTAINS TO ASSESSMENT YEAR 2. SHRI G. BASKAR, LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE GOVERNMENT OF TAMILNADU ACQUIRED A PIECE OF LAN D OWNED BY THE ITA NO.413/15 :- 2 -: ASSESSEE AND HIS TWO BROTHERS, SHRI P. VENKATACHALA M AND SHRI P. SHANMUGAM. THE COMPENSATION AWARDED BY THE GOVERNM ENT WAS PAID TO THE ASSESSEE AND HIS TWO BROTHERS. WHILE P AYING THE COMPENSATION, A SUM OF ` 1,63,368/- WAS DEDUCTED BY WAY OF TDS AND TDS CERTIFICATE IN FORM 16A WAS ISSUED IN THE NAME OF THE ASSESSEE AND HIS TWO BROTHERS. THE OTHER TWO BROTHERS HAVE A LSO GAVE A LETTER SAYING THAT THEY HAVE NO OBJECTION TO REFUND THE TD S IN THE NAME OF THE PRESENT ASSESSEE. HOWEVER, WHILE FILING THE R ETURN OF INCOME, THE ASSESSEE, BY MISTAKE, OFFERED THE ENTIRE COMPENSATI ON IN HIS HANDS. ACCORDING TO LD. REPRESENTATIVE, THIS IS A MISTAKE COMMITTED BY THE ASSESSEE WHILE FILING THE RETURN OF INCOME. WHEN THE PROPERTY BELONGS TO THE THREE PERSONS AND THE ASSESSEE IS E NTITLED FOR ONE-THIRD COMPENSATION. MERELY BECAUSE THE ASSESSEE OFFERED THE SAME IN HIS RETURN OF INCOME, ACCORDING TO THE LD. REPRESENTATI VE, IT CANNOT BE TREATED AS THE ASSESSEES INCOME. ONLY FOR THE PU RPOSE OF GETTING THE REFUND OF THE TDS, AN AUTHORIZATION LETTER WAS GIVE N TO THE ASSESSEE BY THE OTHER TWO BROTHERS. THEREFORE, THE CAPITAL GAIN HAS TO BE ASSESSED ONLY IN RESPECT OF ONE-THIRD OF THE AMOUNT FOR WHICH THE ASSESSEE IS ENTITLED TO. 3. ON THE CONTRARY, SHRI P. RADHAKRISHNAN, LD. DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HIMSELF VOLUNTARILY FILED ITA NO.413/15 :- 3 -: THE RETURN OF INCOME OFFERING THE ENTIRE AMOUNT AS HIS INCOME. THEREFORE, THE CIT(A) FOUND THAT THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTED AT THIS STAGE. EVEN THOUGH IT MAY BE A MI STAKE OF THE ASSESSEE, IT CANNOT BE ADMITTED AT THIS STAGE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT I S NOT IN DISPUTE THAT THE LAND ACQUIRED BY THE GOVERNMENT OF TAMILNADU BE LONGS TO THE ASSESSEE AND HIS TWO BROTHERS NAMELY, SHRI P. VENKA TACHALAM AND SHRI P. SHANMUGAM. IT IS ALSO NOT IN DISPUTE THAT THE C OMPENSATION AWARDED BY GOVERNMENT OF TAMILNADU BELONGS TO THE ASSESSEE AND HIS TWO BROTHERS SHRI P. VENKATACHALAM AND SHRI P. SHANMUGAM IN EQUAL PROPORTION. THEREFORE, THE ASSESSEE IS ELI GIBLE FOR ONE-THIRD OF THE COMPENSATION. WHILE FILING THE RETURN OF INCOM E, THE ASSESSEE CLAIMS THAT THE ENTIRE AMOUNT WAS SHOWN IN HIS HAND S. 5. UNDER THE SCHEME OF THE INCOME-TAX ACT, 1961, THE T AX HAS TO BE LEVIED ON THE INCOME EARNED/ACCRUED TO AN IND IVIDUAL ASSESSEE. WHEN THE ASSESSEE BY MISTAKE, INCLUDED AN AMOUNT W HICH WAS NOT OTHERWISE CHARGEABLE TO TAX, IT IS ALWAYS OPEN TO T HE ASSESSEE TO BRING IT TO THE NOTICE OF THE ASSESSING AUTHORITY THAT TH E INCOME WHICH WAS ALREADY INCLUDED IN THE RETURN OF INCOME WAS NOT CH ARGEABLE TO TAX. WHEN SUCH A PLEA WAS MADE BY THE ASSESSEE, IT IS T HE BOUNDEN DUTY ITA NO.413/15 :- 4 -: OF THE CONCERNED AUTHORITY TO CONSIDER THE SAME AND LEVY THE TAX ONLY IN RESPECT OF THE INCOME FOR WHICH THE ASSESSEE IS ENTITLED TO. THE IGNORANCE OF THE ASSESSEE OR THE MISTAKE COMMITTED BY THE ASSESSEE IN INCLUDING THE AMOUNT WHICH DOES NOT BELONG TO HI M OR WHICH IS NOT OTHERWISE CHARGEABLE TO INCOME-TAX CANNOT BE A REAS ON TO LEVY TAX. IN THIS CASE, THE MATERIALS AVAILABLE ON RECORD CLEARL Y INDICATE THAT THE ASSESSEE IS ENTITLED FOR ONLY ONE-THIRD OF THE COMP ENSATION, THEREFORE, EVEN IF THE ASSESSEE INCLUDED THE ENTIRE AMOUNT, T HE ASSESSING OFFICER CANNOT TAKE THE SAME AS INCOME OF THE ASSESSEE. U NDER THE SCHEME OF THE INCOME-TAX ACT, 1961, IT IS ALWAYS OPEN TO T HE ASSESSEE TO BRING IT TO THE NOTICE OF THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY THAT THE AMOUNT DOES NOT BELONG TO HIM. SINCE THE PROPERTY BELONGS TO THE ASSESSEE AND HIS TWO BROTHERS, THE COMPENSA TION AMOUNT IS ALSO EQUALLY BELONGS TO THE ASSESSEE AND HIS TWO B ROTHERS. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASS ESSEE IS ELIGIBLE TO RECEIVE ONLY ONE-THIRD OF THE COMPENSATION AWARDED BY THE GOVERNMENT OF TAMILNADU, THEREFORE, MERE INCLUSION OF THE ENTIRE COMPENSATION IN THE RETURN OF INCOME CANNOT BE REAS ON TO TAKE THE ENTIRE AMOUNT AS INCOME OF THE ASSESSEE. ACCORDIN GLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ASSESSI NG OFFICER IS DIRECTED TO TAKE ONLY ONE-THIRD OF THE COMPENSATION AMOUNT A WARDED BY THE GOVERNMENT OF TAMILNDU AS INCOME OF THE ASSESSEE F OR THE PURPOSE OF ITA NO.413/15 :- 5 -: CAPITAL GAINS AND COMPUTE THE CAPITAL GAINS FOR THE PURPOSE OF TAXATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD OF JULY, 2015, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 03 RD JULY, 2015 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF