Joseph Mattam, Trichur V. The ITO, Trichur

ITA 508/COCH/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96763 (ITAT-COCHIN)
• Duration Of Justice: 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 12-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 02-12-2014
• Court: TRIBUNAL
• Department Lawyers: K P GOPAKUMAR
• Assessee Lawyers: MOHAN PULICKKAL
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH C OCHIN BEFORE S/SHRI B.P. JAIN, AM AND GEORGE GEOR GE K., JM I.T.A. NO.508/COCH/2014 ASSESSMENT YEAR : 2010-11 JOSEPH MATTAM, MATTATHIL GRANITE METALS, KODASSERY, CHETTIKULAM, THRISSUR-680 725. [PAN: ABIPJ 7590B] VS. THE INCOME TAX OFFICER, WARD-2(2), THRISSUR. (ASSESSEE -APPELLANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI MOHAN PULICKKAL, ADV. REVENUE BY SHRI K.P. GOPAKUMAR, SR. DR DATE OF HEARING 12/10/2015 DATE OF PRONOUNCEMENT 16/10/2015 O R D E R PER B.P.JAIN, ACCOUNTANT MEMBER: THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE LD. CIT(A)-V, KOCHI DATED 18/09/2014 FOR THE ASSESSMENT YEAR 201 0-11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROU NDS OF APPEAL: 1. THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APP EALS)-V, IN SO FAR AS IT IS PREJUDICIAL TO THE APPELLANT IS ERRONE OUS IN LAW, ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. THE COMMISSIONER OF INCOME-TAX(APPEALS) ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.38 ,00,000/- AS INCOME FROM OTHER SOURCES. THE CIT(APPEALS) OUGHT TO HAVE I.T.A. NO.508/COCH/2014 2 ACCEPTED THE EXPLANATION GIVEN BY THE APPELLANT REG ARDING THE SAID CREDIT IN THE APPELLANTS ACCOUNT INSTEAD OF TAKING THE VIEW THAT THERE WAS NO EVIDENCE TO CORROBORATE THE VERSION OF THE A PPELLANT. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO HAVE SEEN THAT THE SUM OF RS.38,00,000/- IS PART OF THE SALE CONSIDERATION RECEIVED BY THE APPELLANT FROM THE SALE OF HIS AGRI CULTURAL PROPERTY, WHICH WAS SOLD FOR RS.49,00,000/- AND THAT THE ENTI RE SALE CONSIDERATION WAS DEPOSITED IN THE APPELLANTS AND HIS WIFES ACCOUNTS MAINTAINED WITH THE SOUTH INDIAN BANK, CHA LAKUDY BRANCH, ON THE DATE OF RECEIPT ITSELF. THE CIT(APPEALS) ER RED IN IGNORING THIS VITAL EVIDENCE AND INSISTING ON FURTHER CORROBORATI VE EVIDENCE. IN THE ABSENCE OF ANY AGREEMENT FOR SALE, THE APPELLANT WA S NOT IN A POSITION TO PRODUCE ANY OTHER EVIDENCE BEFORE THE A PPELLATE AUTHORITY. 4. THE COMMISSIONER OF INCOME-TAX(APPEALS) FAILED TO APPRECIATE THAT THE AMOUNT SHOWN IN THE REGISTERED SALE DEED, OF RS.11,00,000/- WAS NOT THE REAL CONSIDERATION THAT HAS PASSED HAND S BETWEEN THE SELLER AND THE BUYER SINCE THE SALE CONSIDERATION F OR 5.47 ACRES COULD NOT HAVE BEEN LESS THAN RS.33,21,750/- AT THE RATE OF RS.15,000/- PER ARE AS FIXED BY THE GOVERNMENT AS PER NOTIFICAT ION NO.K- 13430/08 DATED 14.12.2009, PUBLISHED IN KERALA GAZE TTE DATED 06.03.2010. IT WAS AT THE INSTANCE OF THE BUYER TH AT THE AMOUNT OF CONSIDERATION WAS SHOWN MUCH LOWER THAN THE ACTUAL FIGURE. THE ACTUAL SALE CONSIDERATION RECEIVED IS PROPERLY RECO RDED IN THE BOOKS OF ACCOUNT AND IS SUPPORTED BY BANKS STATEMENTS. SI NCE THE PROPERTY SOLD WAS AGRICULTURAL PROPERTY, THE RECEIP T THEREFROM BEING EXEMPT FROM INCOME TAX, THERE IS NO REVENUE LOSS TO THE GOVERNMENT. 5. FOR THESE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING, IT IS RESPECTFULLY PRAYED THAT ALL THE GRO UNDS MAY BE ADJUDICATED AND JUSTICE RENDERED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASS ESSEE HAD INTRODUCED A SUM OF RS.85 LAKHS INTO THE CAPITAL OF HIS BUSINESS. T HE SOURCE OF THE SAME WAS SUBMITTED BY THE ASSESSEE TO BE SALE PROCEEDS OF AG RICULTURAL LAND. ACCORDINGLY, THE ASSESSEE FILED REVISED CASH FLOW S TATEMENT SHOWING THE I.T.A. NO.508/COCH/2014 3 SALE CONSIDERATION OF AGRICULTURAL LAND AT RS.49 LA KHS. AS PER THE SALE DEED OF THE SAID AGRICULTURAL LAND, THE SALE CONSIDERATI ON WAS ONLY RS.11 LAKHS THE RELEVANT OBSERVATION OF THE ASSESSING OFFICER F OR NOT ACCEPTING THE EXPLANATION OF THE ASSESSEE AND MAKING AN ADDITION OF RS. 38 LAKHS IS REPRODUCED HEREINBELOW: THE SUBMISSION OF THE ASSESSEE IS THAT THE PURCHAS ER HAD UNDERVALUED THE CONSIDERATION WHILE REGISTERING THE DOCUMENT. THE ASSESSEE ALSO FILED A PETITION U/S. 144A BEFORE THE ADDITIONAL CO MMISSIONER OF INCOME TAX THAT THE SALE CONSIDERATION MAY BE ADOPTED AT R S.49 LAKHS. THE ADDITIONAL COMMISSIONER OF INCOME TAX VIDE F.NO.13/ ADDL CIT/R- 2/TCR/12-13 DATED 19/03/2013 DIRECTED THAT THE CLAI M OF THE ASSESSEE MAY BE ALLOWED SUBJECT TO PRODUCTION OF EVIDENCE. THE ASSESSEE HAS TILL DATED NOT FURNISHED ANY EVIDENCE THAT THE SALE PRIC E IS INDEED RS.49 LAKHS. FURTHER THE DEPOSIT IN THE BANK ACCOUNT IS ALSO CASH. IN THE ABSENCE OF ANY CORROBORATING PROOF, I AM UNABLE TO ACCEPT THE CLAIM OF THE ASSESSEE AND THE DIFFERENCE AMOUNT OF RS.38 LAK HS IS ASSESSED AS INCOME FROM OTHER SOURCES. 4. BEFORE THE LD. CIT(A), THE LD. COUNSEL FOR THE ASSESSEE MADE A PLEA THAT THE ASSESSEE WAS NOT IN GOOD HEALTH AS HE HAD MET WITH AN ACCIDENT AND THE DATE OF CASH DEPOSITS IN THE ASSESSEES BA NK ACCOUNT IS NEARLY THE SAME AS THAT OF THE DATE OF SALE OF THE AGRICULTURA L PROPERTY. THE DECISIONS OF THE VARIOUS COURTS OF LAW RELIED UPON BY THE ASS ESSEE WERE FOUND TO BE ON A DIFFERENT SET OF FACTS BY THE LD. CIT(A). AS A MATTER OF FACT, THE LD. CIT(A) OBSERVED THAT IN THE INSTANT CASE, THE ISSUE DOES NOT RELATE AS TO WHETHER THE TAX LIABILITY IS UNDER THE HEAD CAPITAL GAIN ON SALE OF A CAPITAL ASSET BEING AGRICULTURAL LAND, BUT THE ISSUE INVOLV ED IS REGARDING THE SOURCE I.T.A. NO.508/COCH/2014 4 OF CASH DEPOSITS MADE INTO THE BANK ACCOUNT FOR WHI CH THE ASSESSEE HAS TO BRING FORWARD THE EXPLANATION WHICH HAS NOT BEEN BR OUGHT FORWARD BY THE ASSESSEE. 5. IT WAS FURTHER OBSERVED BY THE LD. CIT(A) THAT U NLESS THERE IS CONCRETE EVIDENCE FOR LINKING THE EVENTS, ANY EXPLA NATION WHICH IS BASED ONLY ON PROBABILITIES COULD NOT BE TREATED AS SUFFI CIENT EVIDENCE TO HAVE EXPLAINED THE SOURCE OF CASH DEPOSITED INTO THE ASS ESSEES BANK ACCOUNT AND THEREFORE, THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. 6. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORDER OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE LD. COUNSEL FOR THE ASSESSEE REPEATED TH E SAME ARGUMENT BEFORE US THAT THE DATE OF DEPOSITS OF CASH IN THE ASSESSEES BANK ACCOUNT AMOUNTING TO RS. 38 LAKHS AND THE DATE OF SALE OF A GRICULTURAL LAND IS NEARLY THE SAME. THE LD. COUNSEL FOR THE ASSESSEE DOES NO T DENY THE SALE DEED HAVING BEEN ENTERED AT RS.11 LAKHS AND CASH OF RS.3 8 LAKHS HAVING BEEN DEPOSITED INTO THE BANK ACCOUNT OF THE ASSESSEE. I.T.A. NO.508/COCH/2014 5 8. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. INTEZAR ALI (2015) 372 ITR 651 (ALL.) WHICH IS STATED TO BE IDENTICAL ON FACTS AS IN ASSESSEES OWN CASE. WE HAVE GONE CAREFULLY THROUGH THE SAID DECISION OF TH E HONBLE ALLAHABAD HIGH COURT IN THE CASE OF INTEZAR ALI (SUPRA) AND HAVE N OTED THAT THE SAID DECISION IS QUITE DIFFERENT ON FACTS OF THE PRESENT CASE. IN THE CASE OF INTEZAR ALI (SUPRA), THE ASSESSEE HAD VOLUNTARILY D ECLARED THE INCOME SO DEPOSITED IN THE BANK IN THE RETURN OF INCOME WHERE AS IN THE PRESENT CASE, IT HAS NOT BEEN DONE SO IN THE CASE OF INTEZAR ALI (SUPRA), THE ASSESSEE HAD MADE A COMPLAINT TO THE REGISTERING AUTHORITY THAT THE SALE DEED HAD BEEN REGISTERED AT A VALUE MUCH BELOW THE AMOUNT WHICH H E HAD ACTUALLY RECEIVED WHEREAS IN THE PRESENT CASE, IT HAS NOT BE EN DONE SO. IN THE CASE OF INTEZAR ALI (SUPRA), THE DEPOSITION OF THE WITNE SS OF THE SALE DEED, THE BANK MANAGER AND THE EVIDENCE FILED WITH REGARD TO THE VALUATION OF THE PROPERTY WAS MORE THAN SUFFICIENT TO DISCHARGE THE BURDEN OF THE ASSESSEE WHEREAS IN THE PRESENT CASE, IT IS NOT SO. IN THE CASE OF INTEZAR ALI (SUPRA), WHILE MAKING THE COMPLAINT BEFORE THE REGISTERING A UTHORITY, THE ASSESSEE HAS INFORMED THE REGISTERING AUTHORITY OF THE DEFIC IENCY OF THE STAMP IN THE SALE DEED WHEREAS IT HAS NOT BEEN DONE SO IN THE PR ESENT CASE. 9. IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT C ASE, THE DECISION RELIED UPON BY THE ASSESSEE IN THE CASE OF INTEZAR ALI (SUPRA) CANNOT BE I.T.A. NO.508/COCH/2014 6 MADE APPLICABLE TO THE CIRCUMSTANCES AND FACTS OF T HE PRESENT CASE. THE PETITION FILED BY THE ASSESSEE U/S. 144A BEFORE TH E ADDITIONAL COMMISSIONER OF INCOME-TAX THAT THE SALE CONSIDERATION MAY BE AD OPTED AT RS.49 LAKHS, WAS DISPOSED OF BY THE ADDITIONAL COMMISSIONER OF I NCOME-TAX SUBJECT TO THE PRODUCTION OF EVIDENCE WHICH WAS NOT PRODUCED E ITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT(A) OR EVEN BEFORE US. IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE, SINCE THERE IS NO CONCRETE EVIDENCE TO SUPPORT THE CASE OF THE ASSESSEE AND TH E ASSESSEE HAVING NOT EXPLAINED THE SOURCE OF CASH DEPOSITS OF RS.38 LAKH S IN HIS BANK ACCOUNT, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) . THUS, ALL THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IN I.T.A. NO. 508/COCH/2014 IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 16-10-2015. SD/- SD/- (GEORGE GEORGE K.) (B.P. JAIN) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED 16TH OCTOBER, 2015 GJ COPY TO: 1. JOSEPH MATTAM, MATTATHIL GRANITE METALS, KODASSE RY, CHETTIKULAM, THRISSUR-680 725. 2. THE INCOME TAX OFFICER, WARD-2(2), THRISSUR. I.T.A. NO.508/COCH/2014 7 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-V, KOCHI . 4. THE COMMISSIONER OF INCOME-TAX, THRISSUR. 5. D.R., I.T.A.T.,COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN