A, Ramireddy, Hindupur, Hindupur V. ITO, Ward-2, Hindupur, Hindupur

ITA 437/HYD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2670 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 20-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V SREEKAR
• Assessee Lawyers: S RAMA RAO
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER I.T.A. NO. 437/HYD/2015 ASSESSMENT YEAR: 2006-07 A. RAMI REDDY, HINDUPUR ANANTAPUR DIST., [PAN: AJJPR6815Q] VS THE INCOME TAX OFFICER, WARD-2, HINDUPUR (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SHRI V. SREEKAR, DR DATE OF HEARING : 30-08-2017 DATE OF PRONOUNCEMENT : 07-09-2017 O R D E R PER INTURI RAMA RAO, A.M. : THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-KUR NOOL, DATED 30-01-2015 FOR THE AY. 2006-07. THE APPELLANT RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE CIT (A) DATED 30-01-2015 IS PE RVERSE, ILLEGAL AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE LAW ON THE SUBJECT. 2. THERE SHOULD BE AN EXPLICIT DIRECTION IN THE ORD ER U/S 263 TO THE ITO TO MAKE A FRESH ASSESSMENT. THE IMPORTANT WORDS IN SEC TION 263 ARE 'CANCELLING THE ASSESSMENT ORDER AND DIRECTING A FR ESH ASSESSMENT. THE CIT IN HIS ORDER U/S 263 DATED 23- 05-2014 HAD ONLY SET ASIDE THE ASSESSMENT. HE HAD NOT DIRECTED THE I TO TO MAKE A FRESH I.T.A. NO. 437/HYD/2015 :- 2 - : ASSESSMENT. SUCH A DIRECTION IS SINE QUA NON TO EMP OWER THE ITO TO MAKE A FRESH ASSESSMENT. 3. THE CIT(A) SHOULD HAVE FOLLOWED THE JUDGEMENT OF HIGH COURT OF GAUHATI IN THE CASE OF CIT VS SHANKAR RAJKHOWA (93 TAXMAN 7 20) COPY OF WHICH HAS BEEN FILED BEFORE HER AND RELIED UPON. 4. THE CIT (A) MISDIRECTED HERSELF AND MISCONCEIVED DRAWING INSPIRATION FROM THE WORDS IN THE ORDER U/S 263 'AS TO THE TAXA BILITY OF THE TRANSACTIONS' AND EQUATED THEM TO A DIRECTION TO TH E ITO TO MAKE A FRESH ASSESSMENT. 5. THE CAPITAL GAIN ARISING FROM THE TRANSFER OF CA PITAL ASSET IS TO BE WORKED OUT IN ACCORDANCE WITH THE PROVISIONS OF SEC TION 48 OF THE INCOME TAX ACT, 1961. THEREFORE FOR THE PURPOSE OF COMPUTA TION OF CAPITAL GAINS, THE AMOUNT OF RS.8,33,000/- ONLY IS TO BE ADOPTED. 6. THE CIT (A) HAS TURNED BLIND EYE TO THE WRITTEN SUBMISSIONS INSPITE OF BEING EXTRACTED IN HER ORDER. THERE MUST BE SOMETHI NG MORE THAN BARE SUSPICION TO SUPPORT THE ASSESSMENT UNDER SECTION 1 43(3) [DHAKESWARI COTTON MILLS LTD VS. CIT, (1954) 26 ITR 775, 782 ( SC) ] NO MATERIAL WAS BROUGHT ON RECORD AND PUT TO THE ASSESSEE TO ESTABL ISH THAT SALE CONSIDERATION ACTUALLY RECEIVED WAS RS.28,12,500/-. THE ITO IS NOT JUSTIFIED IN LAW AND ON FACTS IN TREATING THE AMOUN T OF RS.28,12,500/- AS SALE CONSIDERATION. 7. THE WORDS TAKEN BY THE CIT (A) FROM THE ORDER OF THE ITAT DATED 23-05- 2014 AND QUOTED IN THE PAGE 6 OF HER ORDER ARE NOT RATIODECIDENDI. THEY REPRESENT THE LOUD THINKING OF THE ITAT. THEY ARE O NLY CASUAL OBSERVATIONS WHICH ARE NOT BINDING ON THE INCOME TAX AUTHORITIES . 8. ITAT HAS NOT GIVEN ANY ORDER AS TO THE QUANTUM O F CONSIDERATION RECEIVED BY THE ASSESSEE FOR COMPUTING THE ASSESSEE 'S LIABILITY FOR THE CAPITAL GAINS. THE C1T(A) HAS NOT AT ALL UNDERSTOOD THE ORDER OF THE ITAT. 9. FOR THESE AND OTHER GROUNDS AND WRITTEN SUBMISSI ONS TO BE FILED LATER OR AT THE TIME OF HEARING, THE ASSESSEE PRAYS THE HON' BLE ITAT TO ANNUL THE ORDER OF THE CIT(A) AND ITO IN RESPECT OF THE ADOPT ION OF THE SALE CONSIDERATION AT RS.28,12,500/-. 2. BRIEFLY, FACTS OF THE CASE ARE THAT THE APPELLANT IS AN INDIVIDUAL DERIVING INCOME UNDER THE HEAD INCOME F ROM OTHER SOURCES AND CAPITAL GAINS. THE RETURN OF INCOME FOR THE AY. 2006- 07 WAS FILED ON 31-08-2009 DETERMINING THE TOTAL INCO ME AT I.T.A. NO. 437/HYD/2015 :- 3 - : RS. 2,10,330/- AND AGRICULTURAL INCOME AT RS. 42,500/ -. OBVIOUSLY, THE RETURN WAS FILED BEYOND THE PRESCRIBED TIME. SUBSEQ UENTLY, A NOTICE U/S. 142 OF THE INCOME TAX ACT [ACT] WAS ISSUE D. ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S. 147 ON 3 1-03-2009 ACCEPTING RETURNED INCOME OF RS. 2,10,330/- AND AGRIC ULTURAL INCOME OF RS. 42,500/-. SUBSEQUENTLY, THE CIT-TIRUPA TI EXERCISING THE POWER OF REVISION VESTED WITH HIM U/S. 263 OF THE A CT HAD SET ASIDE THE ASSESSMENT VIDE ORDER DT. 27-03-2012 ON THE G ROUND THAT THE AO HAD FAILED TO EXAMINE CERTAIN ISSUES. 3. ACCORDING TO THE LD.CIT, THE AO HAD FAILED TO EXAM INE THE FOLLOWING ITEMS, WHICH ARE GIVEN BELOW: 2. DURING THE COURSE OF ASSESSMENT, CERTAIN DISCRE PANCIES HAVE NOT BEEN PROPERLY RECONCILED BY THE ASSESSING OFFICER, THE D ETAILS OF WHICH ARE GIVEN BELOW. (I) THE ASSESSEE HAS PURCHASED A PROPERTY IN BANGAL ORE ALONG WITH HIS CONTIGUOUS NEIGHBOURS SMT. GHATTAMANENI VENKATA SUB BAMMA, RESIDENT OF VISAKHAPATNAM & SRI I. VENUGOPAL REDDY OF BANGAL ORE. THEY HAVE JOINTLY SOLD THIS PROPERTY FOR A TOTAL SALE CONSIDE RATION OF RS.1.50 CRORES VIDE SALE DEED NO.6219/2008-2009 REGISTERED ON 18.0 7.2005 AT BANGALORE. THE SALE PROCEEDS ARE TO BE SHARED BY TH E THREE OWNERS OF THE LAND AS PER THEIR SHARE OF THE PROPERTY IN THE RATI O OF 12/34 : 15/34 : 7/34 RESPECTIVELY. THUS AS PER THIS RATIO THE SHARE OF T HE ASSESSEE I.E. 12/34 OUT OF RS.1.50 CRORES COMES TO RS.66,17,647/-. AS A GAINST THIS, THE ASSESSEE HAS OFFERED A RECEIPT OF RS.8,33,000/- ONL Y. THIS IS EXPLAINED AS THE ASSESSEE ALONG WITH SMT. G.V. SUBBAMMA HAVE AGR EED TO PAY PART SALE CONSIDERATION OF RS.1.25 CRORES. TO I. VENUGOP AL REDDY (VENDOR '2'), BUT NOT OFFERED ANY EVIDENCE OR REASONS FOR SUCH AN ILLOGICAL ARRANGEMENT. IT IS NOT EXAMINED BY THE ASSESSING OFFICER AS TO H OW THIS ARRANGEMENT OF PAYING RS.1.25 CRORES TO SRI I. VENUGOPAL REDDY AND AS TO HOW THE SALE CONSIDERATION RECEIVABLE HAS BEEN TRUNCATED FROM RS .52,94,117/- TO RS.8,33,000/-. THE AO HAS FAILED TO EXAMINE HOW THI S RS.44,61,117/CANNOT BE TAXED IN THE HANDS OF THE AS SESSEE FOR ASSESSEE BEING OWNER OF THAT PORTION OF THE LAND. (II) ON THE REVERSE SIDE OF THE PAGE '1' OF THE SAL E DEED, IT IS NOTICED THAT THE VENDOR HAS PAID AN AMOUNT OF RS.13,56,000/- TOW ARDS STAMP DUTY I.T.A. NO. 437/HYD/2015 :- 4 - : AND REGISTRATION ON A SALE CONSIDERATION OF RS.1.50 CRORES. THE SRO VALUE OF THE SALE PROPERTY IS NOT CLEARLY SEEN FROM THE S ALE DEED TO BE EXAMINED U/S.50C OF THE ACT. THE AO IN THE ABSENCE OF CLARIF YING ON THE SRO'S VALUE AND THE SALE CONSIDERATION SHOULD HAVE MADE ENQUIRI ES WITH THE CONCERNED SRO FOR EXAMINING THE SAME U/S.50C. 3. THE ASSESSEE HAS ALSO DEBITED RS.33,320/- TOWARD S BROKERAGE AND COMMISSION PAID WITH RS.75,630/- TOWARDS THE COST O F IMPROVEMENT, LEVELING OF LAND ETC. THE GENUINENESS OF EXPENDITUR E HAS ALSO NOT BEEN ENQUIRED INTO BY THE ASSESSING OFFICER DURING THE C OURSE OF SCRUTINY PROCEEDINGS. 4. AS AGAINST RS.15,192/- OF INTEREST INCOME FROM C ANARA BANK, THE ASSESSEE HAS DEBITED AN AMOUNT OF RS.16,500/- TOWAR DS OTHER EXPENSES RESTRICTED TO RS.15,192/- THEREBY AND ARRIVED AT A TAXABLE INTEREST OF RS. NIL. IT IS NOT CLEARAS TO HOW RS.16,500/- EXPENDITU RE IS TO BE INCURRED FOR REALIZING THIS BANK INTEREST. THIS IS CLEARLY A LAP SE ON THE PART OF THE ASSESSING OFFICER RESULTING AN ERRONEOUS AND PREJUD ICIAL ORDERS. 5. THE ASSESSEE HAS PURCHASED 10 GUNTAS OF LAND AT KODIGEHALLI, YELAHANKA HOBLI, BANGALORE NORTH ON 14.12.2005. THE SOURCES ARE INTER ALIA EXPLAINED AS RS.5 LAKHS FROM REALIZATION FROM SUNDRY DEBTORS AND RS.10 LAKHS AS RECEIVED FROM MR. RAYAPPA REDDY, USA . NO ENQUIRIES WERE CAUSED BY THE ASSESSING OFFICER ABOUT THE GENUINENE SS OF THESE RECEIPTS USED FOR PURCHASING THE PROPERTY AT KODIGEHALLI. 6. THE TRANSACTIONS IN THE ACCOUNT OF THE ASSESSEE WITH CANARA BANK, BANGALORE HEBBAL BRANCH SUCH AS CASH DEPOSITS OF RS .5 LAKHS ON 13.12.2005 AND RS.8 LAKHS ON 14.12.2005 AND WITH DR AWAL OF RS.20 LAKHS IN FAVOUR OF ONE MR. ASHOK WERE NOT VERIFIED . 4. THE EXPLANATION OFFERED BY THE ASSESSEE DURING TH E COURSE OF PROCEEDINGS U/S. 263 OF THE ACT WAS NOT ACCE PTED BY THE LEARNED COMMISSIONER AND THEREFORE, THE ASSESSMENT HAD BEEN SET ASIDE WITH A DIRECTION TO MAKE ENQUIRIES AS TO THE TAXABI LITY OF THE ABOVE TRANSACTION. PURSUANT TO THIS ORDER, AO PASSED A SSESSMENT ORDER U/S. 143(3) OF THE ACT R.W.S. 263 OF THE ACT DT. 2 8-03-2013 AT A TOTAL INCOME OF RS. 22,80,750/-. WHILE DOING SO, TH E LD.AO HAD ADOPTED THE SALE CONSIDERATION OF RS. 28,12,500/- AND DISALLOWED I.T.A. NO. 437/HYD/2015 :- 5 - : 50% OF THE BROKERAGE AND IMPROVEMENT COST CLAIMED. TH E FACTS SET OUT BY THE LD.AO LEADING TO THIS ADDITION ARE AS UNDER: THE ASSESSEE ALONG WITH SMT. G. VENKATA SUBBAMMA A ND I. VENU GOPAL REDDY SOLD LAND SITUATED AT HEBBAL AMANIKERE VIDE SALE DEED NO.6219/2008-09 REGISTERED ON 18.07.2005 AT BANGALO RE. THE SALE PROCEEDS RECEIVED BY THEM AS PER DOCUMENT WERE RS.1 .5 CRORES. THE EXTENT OF LAND SOLD BY THEM WAS 64 GUNTAS. (A.RAMI REDDY 1 2 GUNTAS. SMT.G.VENKTA SUBBAMMA 45 GUNTAS AND I.VENU GOPAL RE DDY 7 GUNTAS.) WHILE COMPUTING THE SHORT TERM CAPITAL GAINS THE AS SESSEE STATED THAT HE RECEIVED A SUM OF RS.8,33,000/- ONLY TOWARDS HIS SH ARE OF SALE CONSIDERATION. ACCORDING TO THE SALE DOCUMENT THE A SSESSEE SHOULD HAVE RECEIVED A SUM OF RS.28,12,500/- TOWARDS HIS SHARE. (1,50,00,000X12/64) WHEN IT IS PUT TO THE ASSESSEE WHY HE ADMITTED LESSER CONSIDERATION, HE STATED THAT, ACCORDING TO THE ORAL AGREEMENT BETWEEN HIMSELF AND SMT.VENKTA SUBBAMMA AGREED TO P AY MAJOR SUM TO SRI. I.VENU GOPALA REDDY AND HE ALSO STATED THAT HE CANNOT RECEIVE SO MUCH OF AMOUNT, IF HE SELLS THE PROPERTY SEPARATELY AND INDEPENDENTLY. THEREFORE THEY PAID MAJOR SUM 10 SRI. I.VENU GOPAL REDDY. THE ASSESSEE DID NOT PRODUCE OR FILE ANY EVIDENCE IN SUPPORT OF THEIR ORAL AGREEMENT. IT IS ALSO NOT BELIEVABLE THAT A MAJOR SUM WAS PAID TO SR I. I.VENU GOPAL REDDY WHOSE EXTENT OF LAND SOLD WAS ONLY SEVEN GUNTAS WHE REAS THE EXTENT OF LAND SOLD BY SRI.A.RAMI REDDY WAS 12 GUNTAS AND SMT .VENKATA SUBBAMMA WAS 45 GUNTAS WHICH IS MORE THAN SRI.I.VEN U GOPAL REDDY. THEREFORE IT CANNOT BE BELIEVED THAT MAJOR AMOUNT W AS PAID TO SRI I.VENU GOPAL REDDY. HENCE PROPORTIONATE SALE CONSIDERATION ACCORDING TO THE SHARE OF SRI.A.RAMI REDDY WAS TAKEN AS ACTUAL CONSI DERATION RECEIVED BY A.RAMI REDDY. THE MARKET VALUE OF THE PROPERTY SOLD BY SRI.A.RAMI REDDY ACCORDING TO SUB-REGISTRAR'S OFFICE RECORDS ARE RS. 19,62,000/-. SINCE THE ACTUAL CONSIDERATION RECEIVED IS MORE THAN THE MARK ET VALUE, THE ACTUAL CONSIDERATION RECEIVED IS TAKEN FOR THE PURPOSE OF COMPUTATION OF SHORT TERM CAPITAL GAINS. THE ASSESSEE CLAIMED EXPENDITUR E TOWARDS BROKERAGE AT RS.33,320/- AND IMPROVEMENTS FOR THE LAND AT RS. 75,6301/-. THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE FOR THE SAME. HOWEVER, CONSIDERING THE NATURE OF TRANSACTION, THE ASSESSEE COULD HAVE INCLINED SOME EXPENDITURE TOWARDS BROKERAGE AND IMPROVEMENTS . THEREFORE 50% OF THE EXPENDITURE CLAIMED IS DISALLOWED WHICH WORKS O UT TO RS.54,475/-. 4.1. IN SHORT, AO ADOPTED PROPORTIONATE SALE CONSIDE RATION OF RS. 1,50,00,000/- RECEIVED ON ACCOUNT OF SALE OF PROPERTY SITUATED AT HEBBAL SOLD VIDE SALE DEED NO. 6219/2008-2009 IN THE PROPORTION OF EXTENT OF LAND HELD AND SOLD BY HIM WI THOUT ACCEPTING THE CONTENTION OF THE APPELLANT THAT PURSUANT TO THE OLD AGR EEMENT I.T.A. NO. 437/HYD/2015 :- 6 - : BETWEEN APPELLANT AND SMT. GHATTAMANENI VENKATA SUBBAMMA AND SHRI I. VENU GOPAL REDDY. THE TOTAL CONSIDERATION RECEIVED OF RS. 1,50,00,000/- WAS APPORTIONED AMONG THEMSELVES I N TERMS OF MOU ENTERED BY THEM. BEING AGGRIEVED BY THE ABOVE, AP PELLANT FILED AN APPEAL BEFORE THE LD.CIT(A) AND THE SAME WAS DISM ISSED BY THE CIT(A) BY STATING AS UNDER: AS STATED IN THE EARLIER PARAS, THE DUE SHARE OF T HE ASSESSEE WHICH IS IN PROPORTION TO HIS SHARE OF LAND HOLDING OF 12 GUNTAS WAS CORRECTLY COMPUTED BY THE ASSESSING OFFICER AT RS.28,12,500/- . THE APPELLANT AT THE TIME OF ASSESSMENT HAD STATED THAT THERE WAS ORAL A GREEMENT AMONGST ALL THE THREE SELLERS TO MAKE PAYMENT OF RS.1,33,34,000 /- TO SRI I.VENU GOPAL REDDY SEEMS TO BE ILLOGICAL AS THERE IS NO CONVINCI NG EXPLANATION SUBMITTED BY THE APPELLANT AS TO WHY SUCH DISPROPOR TIONATELY HIGH AMOUNT HAS TO BE PAID TO SRI I.VENU GOPAL REDDY, ESPECIALL Y WHEN SRI I.VENU GOPAL REDDY OWNS THE LEAST SHARE OF LAND OF 7 GUNTA S. FURTHER, THE HON'BLE ITAT WHILE DEALING WITH APPEALS AGAINST 263 ORDER HELD AS UNDER: 'THE CONTENTION OF THE ASSESSEE'S COUNSEL IS THAT T HE CONSIDERATION IS PAID AS PER THE CONTRACT TO EACH PARTY INVOLVED IN THE SALE DEED AND THE SALE DEED IS THE BASIS FOR PAYMENT. HOWEVER, WE ARE UNAB LE TO APPRECIATE ON WHAT BASIS THE CONSIDERATION IS DETERMINED TO EACH PERSO N. WHEN THESE PARTIES JOINED TOGETHER TO SELL THE PROPERTIES MENTIONED HE REIN ABOVE, THE CONSIDERATION SHALL BE IN PROPORTIONATE TO THE VALU E OF THE RESPECTIVE PROPERTY WHAT THEY SOLD. IT CANNOT BE ON ANY UNILATERAL BASI S OF THESE THREE VENDORS. THE VALUE OF CONSIDERATION IS ATTRIBUTABLE TO EACH OF THE PROPERTY IS TO BE PAYABLE TO THE CORRESPONDING VENDOR. IT IS NOTED BY THE CIT THAT THE BASIS OF CONSIDERATION OF EACH PROPERTY IS NOT IN ACCORDANCE WITH THE SHARE OF THEIR PROPERTY. BEING SO, THERE IS ERROR IN OFFERING CAPI TAL GAIN BY THE ASSESSEE IN RESPECT OF HIS SHARE IN THE PROPERTY. ' THEREFORE, ALL THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ON THE ISSUE OF CAPITAL GAIN ARE DISMISSED AS THERE IS NO MERIT IN THE CONTENTION OF THE APPELLANT. THEREFORE, THE ADDITION MADE BY THE ASS ESSING OFFICER OF RS. 22,44,305/- AS SHORT TERM CAPITAL GAIN ON SALE OF L AND IS CONFIRMED. BEING AGGRIEVED, APPELLANT IS BEFORE US IN THE PRESEN T APPEAL. 5. LD. COUNSEL FOR ASSESSEE VEHEMENTLY ARGUED THAT THE SALE CONSIDERATION MENTIONED IN THE CONVEYANCE DEED IS A I.T.A. NO. 437/HYD/2015 :- 7 - : CONCLUSIVE PROOF OF THE SALE CONSIDERATION RECEIVED B Y THE ASSESSEE ON ACCOUNT OF SALE OF THE PROPERTY. HE FURTHER SUBMI TTED THAT THERE CAN BE SEVERAL REASONS FOR UN-EQUAL APPORTIONMENT OF THE CONSIDERATION RECEIVED IN RESPECT OF THE PROPERTY WHIC H IS JOINTLY SOLD. THE FACT THAT THE MOU AMONGST THE CO-OWNERS NOT PRO DUCED HAD NO RELEVANCE SINCE THE TERMS OF MOU ARE ALREADY INCORPORATED IN THE REGISTERED SALE DEED. HE PLACED RELIANCE ON THE DECISION OF THE CIT VS. SHIVAKAMI CO. (P) LTD., [159 ITR 71] (SC) IN SUPPORT OF THE PROPOSITION THAT UNLESS THERE IS EVIDENCE THAT MORE TH AN THE CONSIDERATION STATED IN THE EXECUTED DEED WAS RECEIVED, NO HIGHER CONSIDERATION CAN BE ADOPTED FOR THE PURPOSE OF COMP UTATION OF CAPITAL GAINS. HE ALSO DRAWN OUR ATTENTION TO THE PROVI SIONS OF SECTION 48, WHEREIN IT WAS MENTIONED THAT THE ONLY FULL VALUE OF THE CONSIDERATION OF THE PROPERTY SHOULD BE ADOPTED FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS. HE ALSO PLACED RELIANCE ON THE ORDER OF AMITABH BACHCHAN VS. DCIT [3 SOT 428] (MUM). ON THE OTHER HAND, THE LD.DR PLACED RELIANCE ON THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, THE DISPUTE IS ONLY WITH REGARD TO ADOPTION OF VALUE OF SALE CONSIDERATION FOR THE PURPOSE OF COMPUTING THE CAPITAL GAINS IN RESPECT OF PROPERTY SOLD JOINTLY ALONG WITH SMT. GHATTAMANENI VENKATA SUBBAMMA AND SHRI I. VENU GOPAL REDDY SITUATED AT HEBBAL FOR A TOTAL CONSIDERATIO N OF RS. 1,50,00,000/-. THERE IS NO DISPUTE AS REGARDS THE TOTAL CONSIDERATION RECEIVED. THE DISPUTE IS ONLY WITH REG ARD TO APPORTIONMENT OF THE SALE CONSIDERATION AMONG THE OWNERS ON PROPERTY, WHICH WAS JOINTLY SOLD. NO DOUBT THE SALE CONSIDERATION I.T.A. NO. 437/HYD/2015 :- 8 - : WAS NOT APPORTIONED IN THE PROPORTION OF THE LAND HOLDIN GS HELD BY OWNERS. IT WAS STATED TO BE APPORTIONED IN TERMS OF UNDE RSTANDING REACHED VIDE MOU. THIS MOU WAS NEVER PRODUCED EITHE R BEFORE THE LOWER AUTHORITIES NOR BEFORE US. BUT IN OUR CONSIDER ED OPINION, IN THE LIGHT OF THE FACT THAT SALE CONSIDERATION APPORTIONED AND RECEIVED AMONG THE OWNERS IS MENTIONED IN THE REGISTERE D SALE DEED IS A CONCLUSIVE PROOF AS TO THE AMOUNT OF CONSIDERATIO N RECEIVED BY EACH OWNER. THERE CAN BE SEVERAL REASONS AS TO WHY SOME OF THE OWNERS HAD AGREED FOR THE LESSER AMOUNT OF CONSIDERATI ON DEPENDING UPON LOCATION OF PHYSICAL SHAPE OF THE LAN D HELD BY THEM OR THE PROXIMITY TO THE MAIN ROAD ETC. BUT, IN OUR CONSIDERED OPINION, THIS FACT HAS NO RELEVANCE. THEREFORE, ONC E THE SALE CONSIDERATION STATED IN THE REGISTERED CONVEYANCE DEED, IT IS HELD TO BE CONCLUSIVE PROOF OF THE AMOUNT OF THE CONSIDERATI ON RECEIVED IN THE ABSENCE OF CONTRARY EVIDENCE ON THE RECORD SUG GESTING HIGHER CONSIDERATION WAS RECEIVED BY THE ASSESSEE. IN THE LI GHT OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SHIVAKAMI CO. (P) LTD., (SUPRA), WHEREIN IT WAS HELD THAT IN THE ABSENCE OF EVIDENCE SUGGESTING THAT MORE CONSIDERATION THAT WHAT WAS STATED IN DEED WAS RECEIVED, NO HIGHER CONSIDERATI ON CAN BE ADOPTED FOR THE PURPOSE OF CAPITAL GAINS. FURTHER ONUS ALWAYS LIES ON THE REVENUE TO PROVE THE EXISTENCE OF THE MATERIAL F ROM WHICH INFERENCE CAN BE DRAWN THAT HIGHER CONSIDERATION WAS IN FACT RECEIVED. IN THE PRESENT CASE, THERE WAS NO MATERIAL TO DRAW INTERFERENCE THAT HIGHER CONSIDERATION WAS RECEIVED THA N WHAT WAS STATED IN THE SALE DEED. IT IS NOT EVEN THE CASE OF AO TH AT THE PROVISIONS OF SECTION 50C ARE APPLICABLE TO THE FACTS O F THE PRESENT CASE. THEREFORE, THE AO WAS NOT JUSTIFIED IN ADOPTING CONSIDERATION I.T.A. NO. 437/HYD/2015 :- 9 - : OF RS. 28,12,500/- AS AGAINST RS. 8,33,000/- DECLARE D BY ASSESSEE. THEREFORE, THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE ALLOWED. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH SEPTEMBER, 2017 SD/- SD/- (D. MANMOHAN) (INTURI RAMA RAO) VICE PRESIDENT ACCOUNTANT MEMB ER HYDERABAD, DATED 7 TH SEPTEMBER, 2017 TNMM COPY TO : 1. A. RAMI REDDY, HINDUPUR. C/O. SRI S. RAMA RAO, ADVOCATE, FLAT NO. 102, SHRIYAS ELEGANCE, 3-6-643, STREET NO. 9, HIMAYAT NAGAR, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-2, HINDUPUR. 3. CIT (APPEALS)-KURNOOL. 4. CIT-KURNOOL. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.