Naveen Kumar Kochar, CHENNAI V. ACIT, CHENNAI

ITA 602/CHNY/2015

• Counselvise Citation: 60221714 RSA 2015
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 26-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL S M C BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ./ ITA NO.602/MDS/2015 ' #$' / ASSESSMENT YEAR : 2007-08 SHRI NAVEEN KUMAR KOCHAR, NO.60, MONTIETH LANE, EGMORE, CHENNAI - 600 008. PAN : AALPK 3398 L V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(2), CHENNAI - 600 034. (&'/ APPELLANT) (()&'/ RESPONDENT) &' * + / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE ()&' * + / RESPONDENT BY : SH. P. RADHAKRISHNAN, JCIT , # * -. / DATE OF HEARING : 10.07.2015 /0$ * -. / DATE OF PRONOUNCEMENT : 07.08.2015 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-19, CHENNA I, DATED 28.11.2014 AND PERTAINS TO ASSESSMENT YEAR 2007-08. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ASSESSEE AND HIS WIFE JOINTLY PURCHASED A PROPERTY FOR A TOTAL CONSIDERATION OF ` 42,45,000/-. THE ASSESSEE HAS ALSO PAID STAMP DUTY. THE ASSESSEES WIFE, AN INDEPENDENT AS SESSEE, FILED 2 I.T.A. NO.602/MDS/15 RETURN OF INCOME IN THE REGULAR COURSE DISCLOSING T HE INVESTMENT MADE BY HER IN THE PROPERTY TO THE EXTENT OF ` 7,35,000/-. HOWEVER, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE A SSESSEE AND MADE AN ADDITION OF ` 7,35,000/- IN THE HANDS OF THE ASSESSEE. ACCORDING TO THE LD. COUNSEL, IF AT ALL ANY ADDITIO N CAN BE MADE, IT SHOULD BE MADE IN THE HANDS OF THE ASSESSEES WIFE AND NOT IN THE HANDS OF THE ASSESSEE. ON A QUERY FROM THE BENCH, WHAT WAS THE SOURCE FOR THE ASSESSEES WIFE TO MAKE INVESTMENT O F ` 7,35,000/-, THE LD.COUNSEL SUBMITTED THAT THE ASSESSEE BELONGED TO MARWARI COMMUNITY AND THE SOURCE WAS SAVINGS FROM CHILDHOOD . THE BANK ACCOUNT WOULD DISCLOSE THE SAVINGS MADE IN REGULAR COURSE. THEREFORE, ACCORDING TO THE LD. COUNSEL, THERE CANN OT BE ANY ADDITION. 3. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEES WIFE FILED RETURN FOR ASSESSMENT YEAR 2008-09 DISCLOSING A SUM OF ` 7,35,000/-. THE ASSESSEE HAS DISCLOSED AS IF A LOAN WAS TAKEN FROM SEVERAL FAMILY MEMBERS. HOWEVER, THE PROPERTY WAS PURCHASED IN TH E ASSESSMENT YEAR 2007-08. THE RETURN WAS FILED ONLY IN ASSESSME NT YEAR 2008- 09. ACCORDING TO THE LD. COUNSEL, IN THE EARLIER A SSESSMENT YEAR DURING WHICH THE RETURN WAS NOT FILED, THE PROPERTY WAS PURCHASED 3 I.T.A. NO.602/MDS/15 BY THE ASSESSEE ALONG WITH HIS WIFE. THE LOAN WHIC H WAS SAID TO BE BORROWED FROM FAMILY MEMBERS BY THE ASSESSEES WIFE IS IN THE ASSESSMENT YEAR 2008-09 AND NOT IN THE YEAR UNDER C ONSIDERATION. THEREFORE, THE ASSESSING OFFICER FOUND THAT THE CLA IM OF INVESTMENT BY THE ASSESSEES WIFE TO THE EXTENT OF ` 7,35,000/- WAS AN AFTERTHOUGHT. THEREFORE, THE ASSESSING OFFICER FOU ND THAT THE ENTIRE SALE CONSIDERATION WAS DEEMED TO BE PAID BY THE ASS ESSEE. ACCORDINGLY, A SUM OF ` 7,35,000/- WAS ADDED AS UNDISCLOSED INCOME. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. FROM THE MATERIAL AVAILABLE ON RECORD IT APPEARS THAT THE ASSESSEE PU RCHASED A PROPERTY WITH HIS WIFE AS A JOINT OWNER, FOR A SALE CONSIDERATION OF ` 47,35,000/-, INCLUDING THE STAMP DUTY AND REGISTRAT ION CHARGES PAID TO THE STATE REVENUE DEPARTMENT. IN THE RETURN OF INCOME, THE ASSESSEE HAS ADMITTED ONLY ` 40 LAKHS AS HIS INVESTMENT IN THE PROPERTY. THE ASSESSEE EXPLAINED BEFORE THE ASSESS ING OFFICER THAT THE PROPERTY WAS PURCHASED JOINTLY ALONG WITH HIS W IFE SMT. NETHAL. THE ASSESSEE FILED A PROOF OF SMT. NETHALS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09. IN FACT, THE DOCUMENT WAS REGISTERED ON 17.08.2006 WHICH FALLS IN THE ASSESSMENT YEAR 2007- 08. NO RETURN 4 I.T.A. NO.602/MDS/15 WAS FILED BY THE ASSESSEES WIFE FOR ASSESSMENT YEA R 2007-08 AND THE RETURN SAID TO BE FILED BY THE ASSESSEES WIFE RELATES TO ASSESSMENT YEAR 2008-09. THEREFORE, WHATEVER DISCLO SED BY THE ASSESSEES WIFE FOR ASSESSMENT YEAR 2008-09 MAY NOT BE AVAILABLE FOR MAKING INVESTMENT IN THE SAID PROPERTY IN ASSES SMENT YEAR 2007-08 WHICH IS UNDER CONSIDERATION. NOW THE ASSE SSEE CLAIMS THAT SINCE THEY BELONGED TO MARWARI COMMUNITY, HIS WIFE COULD SAVE MONEY IN THE REGULAR COURSE, WHICH WAS DEPOSITED IN THE BANK AND SAME WAS USED IN PURCHASING THE PROPERTY. THIS TRI BUNAL IS OF THE CONSIDERED OPINION THAT SAVING HABIT HAS INCREASED IN THE SOCIETY IN THE RECENT PAST. THEREFORE, SAVING OF MONEY IN ROU TINE COURSE CANNOT BE RULED AT THE OUTRIGHT. SINCE THE ASSESSE E CLAIMS THAT THE MONEY WAS DEPOSITED IN THE BANK ACCOUNT IN A REGULA R COURSE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE BANK ACCOUNT MAINTAINED BY THE ASSESSEES WIFE IN WHICH ALL THE SAVINGS WERE DEPOSITED HAS TO BE EXAMINED AND THE AVAILABILITY O F FUNDS ON THE DATE OF PAYMENT MADE FOR PURCHASING THE PROPERTY HA S TO BE EXAMINED. ON PERUSAL OF THE REGISTERED SALE DEED, IT SHOWS THAT THE PROPERTY WAS PURCHASED JOINTLY WITHOUT ANY REFERENC E TO THE SHARE OF THE ASSESSEE. THEREFORE, FOR ALL PRACTICAL PURPOSE S, THE ASSESSEE AND HIS WIFE HAVE EQUAL SHARING IN THE PROPERTY. I T IS ALSO TO BE EXAMINED WHEN THE ASSESSEE HAS EQUAL SHARE IN THE P ROPERTY AND 5 I.T.A. NO.602/MDS/15 THE ASSESSEE HIMSELF CLAIMS THAT A SUM OF ` 40 LAKHS WAS INVESTED BY HIM OUT OF ` 47,35,000/-, IT IS NOT KNOWN HOW THE ASSESSEES WIF E COULD CLAIM 50% OF THE SHARE IN THE PROPERTY ON THE BASIS OF THE SALE DEED. THESE ASPECTS NEED TO BE EXAMINED BY THE ASS ESSING OFFICER AND FIND OUT WHETHER THE ASSESSEES WIFE HA S ACTUALLY INVESTED THE MONEY OR THE ENTIRE MONEY WAS INVESTED BY THE ASSESSEE. ACCORDINGLY, THE ORDERS OF THE LOWER AUT HORITIES ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE MATTER IN THE LIGHT OF THE BANK ACCOUNT THAT WAS SA ID TO BE MAINTAINED BY THE ASSESSEES WIFE AND THEREAFTER DE CIDE THE MATTER IN ACCORDANCE WITH LAW, AFTER GIVING REASONABLE OPP ORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 7 TH AUGUST, 2015 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 2 /DATED, THE 7 TH AUGUST, 2015. KRI. 6 I.T.A. NO.602/MDS/15 * (-34 54$- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 6- () /CIT(A)-19, CHENNAI 4. , 6- /CIT, CENTRAL-2, CHENNAI 5. 4#7 (- /DR 6. 8' 9 /GF.