ITO, Trichur V. Sri.M.C.Mohammedkutty, Trichur

ITA 441/COCH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4732 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 11-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K KITTU
• Keywords: Onus to prove

Judgement Text

1 ITA NO.441/COCH/2013 ITA NO.463/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 441/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO, WD.2(2) VS SHRI M.C. MOHAMMEDKUTTY RANGE-2, TRICHUR MCP ENTERPRISES PUZHAKKAL, THRISSUR PAN : ASPPK6732L (APPELLANT) (RESPONDENT) I.T.A NO. 463/COCH/2013 (ASSESSMENT YEAR 2009-10) ITO, WD.2(1) VS SHRI C.P. ABDUL LATHEEF RANGE-2, TRICHUR VI/277, MCP ENTERPRISES PUZHAKKAL, THRISSUR PAN : ACVPL0319C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M ANIL KUMAR, C.I.T. SMT. LATHA V KUMAR RESPONDENT BY : SHRI K KITTU DATE OF HEARING : 10-10-2013 DATE OF PRONOUNCEMENT : 18-10-2013 2 ITA NO.441/COCH/2013 ITA NO.463/COCH/2013 O R D E R PER N.R.S. GANESAN (JM) THESE APPEALS OF THE REVENUE IN THE CASE OF TWO DI FFERENT ASSESSEES ARE DIRECTED AGAINST THE TWO SEPARATE ORDERS OF THE CIT(A)-V, KOCHI FOR THE ASSESSMENT YEAR 2009-10. 2. SMT. LATHA V KUMAR, THE LD.DR SUBMITTED THAT THE ASSESSEES ALONGWITH OTHER CO-OWNERS, C.P. KUNHAMU, SHRI CP AB DUL AZEEZ SOLD 18 CENTS OF LAND AT AYYANTHOLE, THRISSUR TO ONE SHRI N .A. RAJU FOR A SUM OF RS. 18,75,000 AS PER THE REGISTERED DOCUMENT. HOWEVER, THE ASSESSEE CLAIMED BEFORE THE LOWER AUTHORITIES THAT THE SALE CONSIDERATION WAS RS.1,46,50,000. ACCORDING TO THE LD.DR, THE SALE C ONSIDERATION WAS ONLY RS.18,75,000. THE CIT(A) DISCARDING THE DOCUMENT V ALUE ACCEPTED THE VALUATION OF THE CHARTERED ENGINEER WHO DETERMINED THE SALE PRICE AT RS.1,46,50,000. ON A QUERY FROM THE BENCH WHAT IS THE VALUE ADOPTED IN THE CASE OF C.P. KUNHAMU, SHRI CP ABDUL AZEEZ, THE OTHER CO-OWNERS, THE LD.DR SUBMITTED THAT C.P. KUNHAMU, SHRI CP ABDUL AZ EEZ FILED RETURNS BELATEDLY DECLARING THE SALE CONSIDERATION AT RS.1, 46,50,000. THE PURCHASER, SHRI N.A. RAJU DECLARED THE COST AT RS.1 8,75,000. ON A QUERY FROM THE BENCH, WHEN THE SALE CONSIDERATION WAS ACC EPTED IN THE HANDS OF THE PURCHASER AT RS.18,75,000, HOW COULD IT BE TAKE N AT RS.1,46,50,000 IN 3 ITA NO.441/COCH/2013 ITA NO.463/COCH/2013 THE HANDS OF THE SELLER / VENDOR, THE LD.DR SUBMITT ED THAT THE RETURN WAS NOT TAKEN UP FOR SCRUTINY. HOWEVER, THE DEPARTMENT IS TAKING REMEDIAL ACTION IN VIEW OF THE MATERIAL AVAILABLE ON RECORD. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE CIT(A) IS NOT JUSTIFIED IN TREATING THE SALE CONSIDERATION AT RS.1,46,50,000. 3. ON THE CONTRARY, SHRI K KITTU, THE LD.COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE ACTUAL SALE CONSIDERATION WAS.1, 46,50,000. HOWEVER, THE VALUE WAS UNDER STATED IN THE REGISTERED SALE D EED. THE ENTIRE AMOUNT RECEIVED BY THE ASSESSEE WAS DEPOSITED IN THE BANK ACCOUNT ON THE VERY SAME DAY. THE LD.COUNSEL HAS PRODUCED THE COPIES O F THE BANK STATEMENTS AND SUBMITTED THAT THE AMOUNT WAS DEPOSI TED OUT OF THE SALE CONSIDERATION. THE LD.REPRESENTATIVE HAS ALSO PROD UCED MATERIAL FROM THE REGISTRATION DEPARTMENT OF KERALA GOVERNMENT TO IND ICATE THAT THE GUIDELINE VALUE FIXED BY THE GOVERNMENT OF KERALA IS MORE THA N THE VALUE SHOWN IN THE SALE CONSIDERATION. THEREFORE, IT IS A CLEAR C ASE OF SUPPRESSION OF THE SALE VALUE IN THE REGISTERED SALE DEED AND UNDER TH E INCOME-TAX ACT, THE ACTUAL SALE CONSIDERATION HAS TO BE TAKEN INTO CONS IDERATION. THE CIT(A), AFTER CONSIDERING THE MATERIALS INCLUDING THE REPOR T OF THE CHARTERED ENGINEER FOUND THAT THE ACTUAL SALE CONSIDERATION W AS RS.1,46,50,000. ON A QUERY FROM THE BENCH, WHEN THE SALE CONSIDERATION WAS ACCEPTED IN THE 4 ITA NO.441/COCH/2013 ITA NO.463/COCH/2013 HANDS OF THE PURCHASER AT RS.18,75,000 HOW COULD IT BE ACCEPTED AT RS.1,46,50,000 IN THE HANDS OF THE VENDOR, THE LD.C OUNSEL SUBMITTED THAT HE HAS NO OBJECTION IN REMITTING THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR INVESTIGATING THE MATTER AFRESH. IF THE SALE CONSIDERATION IS RS.1,46,50,000, THEN THE ADDITION SHOULD BE MADE IN THE HANDS OF THE PURCHASER FOR SUPPRESSING THE ACTUAL PURCHASE CONSI DERATION. THEREFORE, THE LD.REPRESENTATIVE SUBMITTED THAT HE MAY NOT HAV E ANY OBJECTION TO REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R FOR PROPER INVESTIGATION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE DISP UTE IS WITH REGARD TO SALE CONSIDERATION OF THE PROPERTY AT AYYANTHOLE, T RICHUR. THOUGH THE ASSESSEE CLAIMS THAT THE SALE CONSIDERATION IS RS.1 ,46,50,000, THE REGISTERED DOCUMENT SHOWS THE SALE CONSIDERATION ON LY AT RS.18,75,000. THE BURDEN OF PROOF IS ON THE ASSESSEE TO SHOW THE SALE CONSIDERATION MENTIONED IN THE SALE DEED IS NOT THE REAL ONE. TH E ASSESSEE HAS SOME MATERIAL TO INDICATE THAT THE ENTIRE SALE CONSIDERA TION WAS DEPOSITED IN THE BANK ACCOUNT. THE GUIDELINE VALUE FIXED BY THE KER ALA GOVERNMENT IS ALSO MORE THAN THE VALUE SHOWN IN THE SALE DEED. THEREF ORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS SOMETHING FISH Y IN THE ENTIRE TRANSACTION WHICH NEEDS TO BE INVESTIGATED. THIS T RIBUNAL IS OF THE 5 ITA NO.441/COCH/2013 ITA NO.463/COCH/2013 CONSIDERED OPINION THAT THE SALE CONSIDERATION OF A PROPERTY SHALL BE ONE AND THE SAME IN THE HANDS OF THE VENDOR AND THE PUR CHASER. THERE CANNOT BE ANY TWO DIFFERENT FIGURES. SINCE THERE IS TWO D IFFERENT VALUE SHOWN IN THE HANDS OF THE PURCHASER AND THE VENDOR THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES ARE SE T ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RECONSIDER THE MATTER AFRESH IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD AND THEREAFTER DECIDE THE ACTUAL SALE CONSID ERATION FOR SALE OF 18 CENTS OF LAND AT AYYANTHOLE, TRICHUR AND THEREAFTER DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONAB LE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH OCTOBER, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 18 TH OCTOBER, 2013 PK/- 6 ITA NO.441/COCH/2013 ITA NO.463/COCH/2013 COPY TO: 1. THE ITO, WD.2(1) / 2(2), RANGE-2, TRICHUR 2. SHRI M.C. MOHAMMEDKUTTY & CP ABDUL LATHEEF, MCP ENTERPRISES, PUZHAKKAL, THRISSUR 3. THE COMMISSIONER OF INCOME-TAX, TCR 4. THE COMMISSIONER OF INCOME-TAX(A)-V, 2 ND FLOOR, SAN JUAN TOWERS, OLD RAILWAY STATION ROAD, ERNAKULAM NORTH, KOCHI 682 018 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH