ITO, Erode V. Shri K.Raja Sadasivam Chettiar, Dharapuram

ITA 840/CHNY/2011

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7843 (ITAT-CHENNAI)
• Duration Of Justice: 5 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 24-01-2017
• Assessment Year: 1996-1997
• Appeal Filed On: 05-05-2011
• Court: TRIBUNAL
• Department Lawyers: R DURAIPANDIAN
• Assessee Lawyers: K NAVANEETAN
• Keywords: Business income; Opportunity of being heard
• Section: 144

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER I . T.A. NO S . 721 & 722 /MDS/201 1 & C.O. NOS. 80 & 81/MDS/2011 ASSESSMENT YEAR S : 1996 - 97 AND 1997 - 98 SHRI RAJA K. SADASIVAM CHETTIAR, 89, BIG BAZAAR STREET, DHARAPURAM 638 656. [PAN: AIWPR 301 4M] VS. THE INCOME TAX OFFICER, WARD II(4 ), ERODE ( / APPELLANT ) ( / RESPONDENT ) I.T.A. NOS. 840 & 841/MDS/2011 ASSESSMENT YEARS: 1996 - 97 & 1997 - 98 THE INCOME TAX OFFICER, WARD II(4), ERODE VS. SHRI RAJA K. SADASIVAM CHETTIAR, 89, BIG BAZAAR STREET, DHARAPURAM 638 656. ( / APPELLANT ) ( / RESPONDENT ) DEPARTMENT BY : SHRI R. DURAI PANDIAN, JCIT ASSESSEE BY : SHRI K. NAVANEETAN , ADVOCATE / DATE OF HEARING : 24 . 0 1.201 7 /DATE OF PRONOUNCEMENT : 31 .01.2017 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BOTH THE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 1 , C OIMBATORE DATED 10 . 0 2 .201 1 RELEVANT TO THE ASSESSMENT YEAR S I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 2 199 6 - 9 7 AND 1997 - 98 . THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS FOR THE ABOVE ASSESSMENT YEARS. 2. BOTH THE APPEALS OF THE REVENUE ARE FOUND TO HAVE BEEN FILED LATE BY 57 DAYS IN FILING THE APPEAL. THE ASSESSING OFFICER HAS FILED AN AFFIDAVIT FOR CO NDONATION OF DELAY BY STATING THAT THE RECORDS OF THE CASE WERE UNABLE TO TRACE OUT IN TIME INADVERTENTLY GOT MIXED UP WITH OTHER FILES AND THEREBY THERE WAS DELAY IN FILING BOTH THE APPEALS BEFORE THE TRIBUNAL. BY REFERRING TO THE AFFIDAVIT, THE LD. DR HA S SUBMITTED THAT THE DELAY WAS NEITHER WILFUL NOR WANTON AND REQUESTED FOR CONDONING THE DELAY AND TO ADMIT THE APPEAL S FOR HEARING. THE LD. COUNSEL FOR THE ASSESSEE DID NOT SERIOUSLY OBJECT TO THE SUBMISSIONS OF THE LD. DR. ACCORDINGLY, WE CONDONE THE DEL AY IN FILING THE APPEAL S AND ADMIT THE APPEAL S FOR HEARING. 3. IN BOTH THE APPEALS, THE REVENUE HAS RAISED THE FOLLOWING COMMON GROUNDS: L. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IS AGAINST FACTS AND CIRCUMSTANCES OF THE CASE. 2A. THE LEARNED CIT(A) (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ADOPT THE VALUE AS MENTIONED IN THE DOCUMENTS I.E. RS.4.41 LAKHS FOR A.Y. 1996 - 97 AND RS.3 LAKHS FOR A.Y. 1997 - 98 FOR THE REASON THAT NO SEPARATE ENQUIRIES WERE CONDUCTED BY THE ASSESSING OFFICER, EXCEPT FOR RELYING ON THE ASSESSMENT ORDER PASSED IN THE CASE OF SHRI R. DHANDAPANI. 2B. THE LEARNED CIT(A) (APPEALS) OUGHT TO HAVE CONSIDERED THE STATEMENT OF THE ASSESSEE BEFORE THE ADIT (INV.) WHEREIN HE I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 3 ADMITTED THAT NO CONSIDERAT ION WHATSOEVER WAS PASSED ON EITHER ACCOUNTED OR UNACCOUNTED TO ANY OF THE CO - OWNERS. 3. THE LEARNED CIT(A) (APPEALS) OUGHT TO HAVE CONSIDERED THAT NO EVIDENCE WAS FURNISHED BY THE ASSESSEE THAT ANY CO - OWNERS HAVE EVER DEMANDED THEIR SHARE. 3A. THE L EARNED CIT(A) OUGHT TO HAVE CONSIDERED THAT THE ENTIRE CONSIDERATION RECEIVED ON BEHALF OF THE CO - OWNERS ALSO BECOMES THE INCOME OF THE ASSESSEE. 3B. THE LEARNED CIT(A) OUGHT TO HAVE CONSIDERED THAT THE ENTIRE CAPITAL GAINS OUGHT TO HAVE BEEN ASSESSED I N THE HANDS OF THE ASSESSEE ONLY. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, THE ORDER OF THE CIT(APPEALS) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER RESTORED. 3.1 IN BOTH THE APPEALS OF THE ASSESSEE, THOUGH VA RIOUS COMMON GROUNDS HAVE BEEN RAISED, THE ONLY COMMON GROUND RAISED DURING THE COURSE OF HEARING IS THAT THE CAPITAL GAINS ARISING ON THE SALE OF LAND SHOULD NOT BE ASSESSED IN THE HANDS OF THE ASSESSEE AND IT SHOULD BE ASSESSED IN THE STATUS OF HUF. 4. BRIEF FACTS OF THE CASE ARE THAT THE ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED UNDER SECTION 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] ON 28.03.2002. VIDE ORDER IN I.T.A. NOS. 44 & 45/MDS/2007 DATED 22.12.2008, THE TRIBUNAL REMITTED THE MATTER BACK TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE CASE AFRESH AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE ASSESSEE WAS REQUIRED TO APPEAR BEFORE THE ASSESSING OFFICER ON 21.08.2009 & I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 4 03.11.2009. VIDE LETTERS DATED 28.08.2009 & 24.11.2009, THE ASSESSEE HAS SUBMITTED THAT HE WAS ONLY A CO - OWNER OF THE PROPERTY AND HE HAS SOLD THE PROPERTY AS POWER AGENT. IT WAS ALSO SUBMITTED THAT THE PROPERTY WAS A FAMILY PROPERTY AND IT SHOULD BE ASSESSED IN THE HANDS OF THE HUF AND NOT IN THE HANDS OF THE INDIVIDUAL. 4.1 IN THIS CASE, THE ASSESSEE IS AN AGRICULTURIST. DURING THE FINANCIAL YEAR 1995 - 96, THE ASSESSEE SOLD 1.49 ACRES OF LAND TO SHRI R. DHANDAPANI, A FINANCIER FOR AN APPARENT CONSIDERATION OF 4,41,000/ - HOWEVER, AS PER THE SEIZED MATERIALS AT THE TIME OF SEARCH IN THE CASE OF SHRI R. DHANDAPANI AND AS PER THE ORDER UNDER SECTION 158BC R.W.S. 254 OF THE ACT DATED 23.12.2009 PASSED BY THE ACIT, CIRCLE II, ERODE IN THE CASE OF SHRI R. DHANDAPANI, THE PURCH ASE OF LAND, THE SALE VALUE FOR 1.49 ACRES WAS .55,80,000/ - . IN REPLY TO QUESTION NO. 7 GIVEN BEFORE THE ADIT (INV.), COIMBATORE, THE ASSESSEE HAS STATED THAT 3 ACRES OF LAND WAS SOLD FOR A CONSIDERATION OF .3 LAKHS TO SHRI CHIDAMBARASAMY AND OTHERS. THE ASSESSEE WAS ASKED TO PRODUCE DOCUMENTS FOR TH E SALE OF THIS 3 ACRES OF LAND ALONG WITH PRESENT ADDRESS OF THE PURCHASERS. THOUGH THE ASSESSEE HAS FILED CERTIFIED COPIES OF DOCUMENTS, THE PRESENT ADDRESS OF THE PURCHASERS WAS NOT MADE AVAILABLE. AS BOTH THE LANDS SOLD TO SHRI R. DHANDAPANI AND SHRI CH IDAMBARASAMY & OTHERS ARE SITUATED IN THE SAME LOCALITY, THE MARKET VALUE PER ACRE WAS TAKEN AT .37,20,000/ - [1.5 ACRES: .55,80,000/ - ] AND ACCORDINGLY, THE ASSESSING I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 5 OFFICER HAS COMPLETED THE ASSESSMENT FOR BOTH THE ASSESSMENT YEARS. 5. THE ASSESSEE CARRIED THE MATTERS IN APPEAL BEFORE THE LD. CIT(A) RAISING TWO SOLITARY GROUNDS THAT (I) THE PRO PERTY SOLD BELONGS TO THE HUF AND THE ASSESSEE IS THE KARTHA OF THE HUF AND THEREFORE THE CAPITAL GAINS ARISING ON THE SALE OF LAND CANNOT BE ASSESSED IN THE HANDS OF THE ASSESSEE . AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND FACTS OF THE CASE, TH E LD. CIT(A) DISMISSED THE GROUND RAISED BY THE ASSESSEE AND UPHELD THE ASSESSMENT DONE IN THE STATUS OF INDIVIDUAL AND DIRECTED THE ASSESSING OFFICER TO ASSESS THE INCOME ON SALE OF LANDS AS ASSESSEE S BUSINESS INCOME. AGAINST WHICH , THE ASSESSEE PREFER RED APPEALS BEFORE THE TRIBUNAL. 5.1 AGAINST THE SALE VALUE ADOPTED BY THE ASSESSING OFFICER, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND VERIFICATION OF REGISTERED DOCUMENTS, AND ALSO IN VIEW OF THE DECISION IN THE CASE OF CIT V. P.V. KALYANAS UNDARAM 294 ITR 49, THE LD. CIT(A) HAS HELD THAT THE VALUE OF SALE CONSIDERATION TO SHRI R. DHANDAPANI, VALUED AS PER THE DOCUMENT HAS TO BE TAKEN AT .4,41,000/ - AND .17,17,000/ - ONLY IN THE ABSENCE OF INDEPENDENT ENQUIRY MADE BY THE ASSESSING OFFICER EXCEPT RELYING ON THE ORDER OF THE ACIT, CIRCLE II, ERODE IN THE CASE OF SHRI R. DHANDAPANI. AGAINST WHICH, THE REVENUE IS IN APPEAL FOR BOTH THE ASSES SMENT YEARS. 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIALS AVAILABLE ON I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 6 RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY, THERE WAS NO SEARCH OR SURVEY IN THE CASE OF THE ASSESSEE. IN BOTH THE APPEALS, THE ASSESSEE CLAIMS THE STATUS OF THE ASSESSEE FOR THE PURPOSE OF ASSESSING CAPITAL GAINS TOWARDS SALE OF THE PROPERTY. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE WAS NOT THE SOLE OWNER OF THE PROPERTY SOLD. THE LD. CIT(A) HAS OBSERVED THAT THE PROPERTIES WERE SOLD DURI NG THE FINANCIAL YEAR FROM 01.04.1995 TO 31.03.1996. IN ORDER TO CLAIM THE STATUS OF THE HUF THE ASSESSEE FILED PARTITION DEEDS BEFORE THE LD CIT(A). AFTER EXAMINING THE RECORDS, THE LD. CIT(A) FOUND THAT 16 PERSONS HAVE GIVEN A GENERAL POWER OF ATTORNEY I N 1986 TO THE ASSESSEE SHRI RAJA K. SADASIVAM CHETTIAR FOR SOME PROPERTIES WITHOUT TAKING ANY FAVOUR OR CONSIDERATION IN KIND OR CASH FROM THE ASSESSEE . ON VERIFICATION OF DETAILS OF PROPERTIES SOLD DURING THE FINANCIAL YEAR 1995 - 96, T HE LD. CIT(A) HAS NOT ED THAT THE LANDS BELONG TO SURVEY NOS. 373/1A, 372/2A AND 373/1. THESE ABOVE PROPERTIES WERE SOLD IN HIS CAPACITY AS GENERAL POWER OF ATTORNEY HOLDER. HOWEVER, AS PER THE GENERAL POWER OF ATTORNEY, THE SURVEY NUMBERS MENTIONED ARE 372/2A, 372/2C, 373/1, 3 57/1, 358/2 AND 359/1 AND THE TOTAL EXTENT OF ACREAGE IS ABOUT 7.16 ACRES. THE LD. CIT(A) FOUND THAT THE PROPERTIES SOLD BY THE ASSESSEE AND THE CLAIM OF THE ASSESSEE THAT HE HAS SOLD THE HUF PROPERTIES DO NOT MATCH IN SURVEY NUMBERS AND ALSO IN ACREAGE. FURTHER, THE LD. CIT(A) HAS OBSERVED THAT THE SALES EFFECTED DURING THE ASSESSMENT YEARS 1996 - 97 AND 1997 - 98 MAY BE BELONGING TO THE FAMILY MEMBERS BUT THE ASSESSEE HAS NO INTEREST IN THESE I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 7 PROPERTIES AS PER THE PARTITION DEED. THE GENERAL POWER OF ATTORNE Y ON WHICH THE ASSESSEE WAS RELYING TO CLAIM THE STATUS AS HUF HAS NO RELEVANCE TO THE SALES EFFECTED DURING THE ASSESSMENT UNDER CONSIDERATION. THESE FACTS HAVE NOT BEEN DISCUSSED OR BROUGHT ON RECORD EARLIER. THERE IS NO CLARITY IN THE ORDER OF THE LD. C IT(A) IN LAST LIMB OF PARA 7 . 6.1 ON PERUSAL OF THE ABOVE FINDINGS OF THE LD. CIT(A) AS WELL AS ASSESSMENT ORDER , WE FIND THAT THE ASSESSMENT ORDER IN THE CASE OF THE ASSESSEE WAS TOTALLY BASED ON THE ASSESSMENT OF ANOTHER ASSESSEE SHRI R. DHANDAPANI AN D THE ASSESSING OFFICER HAS NOT MADE AN INDEPENDENT ENQUIRY WITH REGARD TO THE ACTUAL LAND SOLD BY THE ASSESSEE EITHER IN HIS INDIVIDUAL CAPACITY OR OTHERWISE, SURVEY NO. WISE AREA SOLD, ETC. WHEN THE ASSESSEE CLAIMS THAT HE WAS NOT THE ABSOLUTE OWNER OF T HE LAND SOLD, THEN, THE ONUS CAST UPON THE DEPARTMENT TO PROVE THAT THE LAND SOLD BY THE ASSESSEE PERTAINS TO HIM ONLY. ON VERIFICATION OF THE DETAILS OF LAND SOLD, THE LD. CIT(A) HAS NOT GIVEN THE ACTUAL EXTENT OF LAND OF EACH SURVEY NO. WHILE COMPARING WITH THE SURVEY NOS. APPEARED IN THE GENERAL POWER OF ATTORNEY. THE LAND SOLD IN SURVEY NO. 372/2A IS VERY MUCH AVAILABLE IN THE GENERAL POWER OF ATTORNEY, BUT THE EXTENT OF LAND WAS NOT MENTIONED BY THE AUTHORITIES BELOW. IN VIEW OF THE ABOVE, WE DIRECT T HE ASSESSING OFFICER TO VERIFY THE ACTUAL OWNER OF THE PROPERTY SOLD BY THE ASSESSEE AND IF THE ASSESSEE SOLD THE LAND IN THE CAPACITY OF KARTHA OF HUF, THEN THE CAPITAL I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 8 GAINS SHOULD NOT BE ASSESSED IN THE HANDS OF ASSESSEE AND THE INCOME SHOULD NOT BE TRE ATED AS BUSINESS INCOME OF THE ASSESSEE . FOR CLAIMING HUF STATUS FOR THE PROPERTY SOLD, THE ASSESSEE IS DIRECTED TO FURNISH ALL MATERIAL EVIDENCE TO SUBSTANTIATE HIS CLAIM OF HUF STATUS. THUS, THE GROUND RAISED BY THE ASSESSEE IN BOTH THE APPEALS IS ALLOWE D FOR STATISTICAL PURPOSES. 7. WITH REGARD TO THE VALUE OF SALE CONSIDERATION, THE LD. CIT(A) HAS OBSERVED AS UNDER: 11. AS SEEN FROM THE RECORDS, THE REPORT WAS SUBMITTED TO THE CIT(A)II BY THE ASSESSING OFFICER ON 31.1.2005 REGARDING SHRI. R. DHANDA PANI. AS SEEN FROM THIS LETTER, SHRI. R. DHANDAPANI AND HIS WIFE SMT. D SARASWATHI FAILED TO APPEAR IN RESPONSE TO SUMMON ISSUED FROM TIME TO TIME AND HENCE CROSS EXAMINATION COULD NOT BE GIVEN TO SHRI. RAJA K SADASIVAM CHETTIAR, ALTHOUGH MR. CHETTIAR APPE ARED FOR CROSS EXAMINATION. TO QUOTE 'OBTAINING ANY MORE DETAILS FROM BOTH THE SELLER (SRI. RAJA K SADASIVAM CHETTIAR) AND THE PURCHASERS (SRI R. DHANDAPANI AND SMT. D. SARASWATHI) AND MAKING ANY FURTHER ENQUIRY IS VERY DIFFICULT SINCE, THERE HAD BEEN A WA NTON NON CO - OPERATION FROM SHRI. R. DHANDAPANI AND SMT. D. SARASWATHI TO THE FULLEST EXTENT AND SINCE THE ASSESSEE CONTINUES NON - PRODUCTION OF REQUIRED DETAILS TO A LARGE EXTENT.' A STATEMENT WAS RECORDED AFRESH FROM SHRI. R. DHANDAPANI ON 11.06.1996 IN WH ICH HE STATED THAT HE PURCHASED 75 CENTS OF LAND IN HIS WIFE'S NAME AND PURCHASED 1.5 ACRES OF LAND IN HIS NAME FOR ABOUT RS .4 .5 LAKHS. ALL THESE TRANSACTIONS WERE RECORDED IN HIS BOOKS OF ACCOUNT. AGAIN WHILE ANSWERING QUESTION NO.3 OF THE STATEMENT RECOR DED ON 4.7.96, HE STATED THAT THE AMOUNT OF RS.6 LAKHS SPENT FOR THE PURCHASE OF THE PROPERTIES HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNTS. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER OBSERVED THAT AS BOTH THE LANDS SOLD TO SHRI. R. DHANDAPANI AND S HRI. CHIDAMBARASAMY ARE SITUATED IN THE SAME LOCALITY, THE MARKET VALUE PER ACRE IS TAKEN AT RS.37,20,000 AND FOR 1.5 ACRES, THE VALUE WAS TAKEN AT RS.55,80,000/ - . IN THE REMAND REPORT, THE ASSESSING OFFICER SUBMITTED THAT IN THE CASE OF SHRI.K CHIDAMBARAS AMY AND OTHERS, ON EXAMINATION IT WAS STATED THAT NO ON - MONEY WAS PAID BY THEM AND THE COPIES OF I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 9 PURCHASE DOCUMENTS WERE ALSO PRODUCED. IN VIEW OF THE ABOVE DISCUSSION, IN MY OPINION, THE VALUE OF SALE CONSIDERATION TO SHRI. R. DHANDAPANI, VALUED AS PER TH E DOCUMENT HAS TO BE TAKEN AT RS.4,41,000/ - ONLY. 12. FOR THE ASSESSMENT YEAR 97 - 98, THE ASSESSEE HAS SOLD 0.75 ACRES OF LAND TO SMT.D. SARASWATHY, WIFE OF SHRI. R. DHANDAPANI FOR AN APPARENT CONSIDERATION OF RS.3 LAKHS. HOWEVER, RELYING ON THE ORDER OF THE ACIT, CIRCLE II, ERODE IN THE CASE OF SHRI. R. DHANDAPANI, THE ASSESSING OFFICER HELD THE SALE VALUE AT RS.17,17,000/ - . AS DISCUSSED ABOVE, NO INDEPENDENT ENQUIRY HAS BEEN MADE BY THE ASSESSING OFFICER EXCEPT FOR RELYING ON THE ORDER OF THE ACIT, CIRC LE II, ERODE. THE VARIOUS ISSUES REGARDING THE SEARCH ASSESSMENT OF SHRI. R. DHANDAPANI HAVE BEEN DISCUSSED ABOVE AND IN VIEW OF THIS I DIRECT THE ASSESSING OFFICER TO ADOPT SALE CONSIDERATION AS PER THE DOCUMENT VALUE IN THE CASE OF SMT. D. SARASWATHI FOR THE ASSESSMENT YEAR 97 - 98. 7.1 WE HAVE ALSO PERUSED THE ORDER IN THE CASE OF SHRI R. DHANDAP ANI V. ACIT IN I.T.(SS) A. NO. 1/MDS/2010 DATED 30.11.2016, WHEREIN, WHILE DECIDING WHETHER SHRI R. DHANDAPANI PAID .55,80,000/ - FOR PURCHASE OF LAND FROM SHRI RAJA K. SADASIVAM CHETTIAR [ASSESSEE], THE COORDINATE BENCH OF THE TRIBUNAL HAS OBSERVED AND HELD AS UNDER: 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILAB LE ON RECORD. THE ASSESSEE CLAIMS THAT THE MONEY WAS PAID TO PRABHU ALIAS SADASIVAM, A CINE PRODUCER. EVEN THOUGH THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE PRABHU, THE ASSESSEE COULD NOT PRODUCE THE PERSON AND HE CLAIMED BEFORE THE ASSESSING OFFI CER THAT HIS WHEREABOUTS ARE NOT KNOWN. THE FACT REMAINS THAT THE ASSESSEE HAS FILED AN AFFIDAVIT FROM THE SAID PRABHU ALIAS SADASIVAM. AS PER THE DIRECTION OF THIS TRIBUNAL IN THE EARLIER ROUND OF LITIGATION, THE ASSESSING OFFICER EXAMINED SHRI RAJA K. SA DASIVAM CHETTIAR. SHRI RAJA K. SADASIVAM CHETTIAR ADMITTED THAT HE HAS SOLD 1.49 ACRES OF LAND IN SURVEY NO.372/2A TO THE ASSESSEE FOR .4,41,000/ - AND ANOTHER LAND IN SURVEY NO.373/1 TO THE WIFE OF THE ASSESSEE TO THE EXTENT OF 0.75ACRES FOR A CONSIDERATI ON OF .3,75,000/ - . FROM THE ABOVE STATEMENTS RECORDED FROM THE VENDORS IT IS OBVIOUS THAT THE COST OF THE LAND WAS ONLY .4,41,000/ - AND .3,75,000/ - RESPECTIVELY. THEREFORE, THE PAYMENT SAID TO BE MADE BY THE ASSESSEE TO SHRI RAJA K. I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 10 SADASIVAM CHETTIAR F OR PURCHASE OF LAND IS CONTRARY TO THE EVIDENCE AVAILABLE ON RECORD. THE ASSESSING OFFICER TRIED TO SHOW THAT THE AMOUNT OF .55,80,000/ - WAS SET OFF TOWARDS THE COST OF LAND PURCHASED BY THE ASSESSEE AND HIS WIFE. SINCE THE ASSESSING OFFICER CLAIMS THAT P RABHU ALIAS SADASIVAM IS A NON - EXISTING PERSON, THIS TRIBUNAL HAD OBSERVED EARLIER IN THE ORDER DATED 31.10.2002 IN THE FIRST ROUND OF LITIGATION, A COPY OF WHICH IS AVAILABLE AT PAGE 96, THAT THE STATEMENT RECORDED FROM THE VENDORS AND THE MATERIAL FOUND DURING SEARCH CANNOT BE IGNORED. IN THE ABSENCE OF ANY MATERIAL EVIDENCE THAT THE ASSESSEE HAS PAID MORE MONEY TO SHRI RAJA K. SADASIVAM CHETTIAR, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT MERELY BECAUSE THE ASSESSING OFFICER COULD NOT IDENTIFY PRABH U ALIAS SADASIVAM, IT CANNOT BE PRESUMED THAT THE ASSESSEE HAS PAID .55,80,000/ - FOR PURCHASE OF LAND FROM SHRI RAJA K. SADASIVAM CHETTIAR. THEREFORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ADDITION MADE BY THE ASSESSING OFFICER TOWARDS PURCHASE OF LAND FR OM SHRI RAJA K. SADASIVAM CHETTIAR. ACCORDINGLY, THE ORDER OF THE ASSESSING OFFICER IS SET ASIDE AND THE ADDITION MADE BY THE ASSESSING OFFICER IS DELETED. 7.2 FROM THE ABOVE FINDINGS OF THE TRIBUNAL IN THE CASE OF SHRI R. DHANDAPANI THAT IT CANNOT BE P RESUMED THAT THE ASSESSEE HAS PAID .55,80,000/ - FOR PURCHASE OF LAND FROM SHRI RAJA K. SADASIVAM CHETTIAR , WE ARE OF THE OPINION THAT THE LD. CIT(A) HAS RIGHTLY HELD THAT THE VALUE OF SALE CONSIDERATION TO SHRI R. DHANDAPANI, VALUED AS PER THE DOCUMENT HAS TO BE TAKEN AT .4,41,000/ - . T HE DEPARTMENT HAS NOT FILED ANY PIECE OF MATERIAL EVIDENCE AGAINST EITHER IN THE CASE OF SHRI R. DHANDAPANI OR IN THE CASE OF THE ASSESSEE AND OVER AND ABOVE, IN THE REMAND REPORT, ON VERIFICATION OF COPIES OF PURCHASE DOCUMENTS IN RESPECT OF SALE OF PROPERTY TO SHRI N. THANGAMUTHU, SHRI N. RAMASAMY GOUNDER, SHRI R. PALANISAMY, SHRI N. VELUSAMY, SHRI N. PALANISAMY, SHRI K. CHIDAMBARASAMY, SHRI KANDASAMY AND SHRI SUKUMAR THE ASSESSING OFFICER HAS SUBMITTED BEFORE THE LD. CIT(A) I.T.A. NO S . 721 & 722, 840 & 841 /M/ 11 & C.O. NOS. 80 & 81/M/11 11 THAT NO ON MONEY WAS PAID . UNDE R THE ABOVE FACTS AND CIRCUMSTANCES, THE GROUNDS RAISED BY THE REVENUE IN BOTH THE APPEALS ARE DISMISSED. 8. SO FAR AS CROSS OBJECTIONS FILED BY THE ASSESSEE ARE CONCERNED , DURING THE COURSE OF HEARING , THE ASSESSEE HAS NOT PRESSED THE GROUNDS RAISED IN THE CROSS OBJECTIONS. ACCORDINGLY, BOTH THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED AS NOT PRESSED. 9 . IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES, BOTH THE APPEALS OF THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED . ORDER PRONOUNCED ON THE 31 ST JANUARY, 2017 AT CHENNAI. SD/ - SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 31 . 0 1 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.