Patakamuiri Cecil, Guntur V. The Income Tax Officer, Ward-1, , Narasaraopet

ITA 9/VIZ/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6802 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 07-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Set aside
• Section: 69B; 201; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ I.T. A.NO. 9 /VIZ/201 9 ( / A SSESSMENT Y EAR : 201 3 - 1 4 ) PATHAKAMURI CECIL D.NO.7 - 159/79, RAVIPADU ROAD NAR A SARAOPET GUNTUR [PAN :AJXPP2406R] ( / APPELLANT) VS. INCOME TAX OFFICER WARD - 1 NAR A SARAOPET ( / RESPONDENT) / APPELLANT BY : SHRI I KAMA SASTRY , AR / RESPONDENT BY : SMT. SUMAN MALIK, DR / DATE OF HEARING : 30 .01.2020 / DATE OF PRONOUNCEMENT : 07 .0 2 . 20 20 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : DELAY : TH IS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX ( APPEAL ) [CIT(A)] - 2 , GUNTUR IN APPEAL NO. 101 57 / 201 6 - 1 7 DATED 14 . 0 8 .201 8 FOR THE ASSESSMENT YEAR ( A.Y. ) 201 3 - 14 WITH A DELAY OF 78 DAYS. THE ASSESSEE FILED CONDONATION PETITION CITING 2 I.T.A. NO. 09 /VIZ/201 9, A.Y.201 3 - 1 4 SRI PATHAKAMURI CECIL , GUNTUR MEDICAL REASONS AND REQUESTED TO CONDONE THE DELAY. AFTER HEARING BOTH THE PARTIES, WE CONDONE THE DELAY AND ADMIT THE APPEAL OF THE ASSESSEE. 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ADDITION OF RS.24,77,367/ - U/S 69B OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) . DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSIN G OFFICER (AO) FOUND THAT THE ASSESSEE HAS PURCHASED THE PROPERTY IN N ARSARAOPET TOWN OLD SURVEY NO.464, T.S.NO.743, GUNT UR DISTRICT ADMEASURING AC.2.45 CTS OR 11,858 SQ.YDS OF LAND FOR A CONSIDERATION OF RS.45,50,000/ - ALONG WITH SRI VELAGAPUDI VASUDEVA RAO ON 15.06.2012 VIDE DOCUMENT NO.9571/2012 ON 15 TH JUNE 2012 . DURING THE ASSESSMENT PROCEEDINGS, THE AO CALLED FOR THE DETAILS, BUT THE ASSESSEE FAILED TO FURNISH THE DETAILS. THEREFORE, THE AO TREATED THE ASSESSEE AS CO - OWNER FOR 50% SHARE OF THE PROP ERTY AND ACCORDINGLY TAXED 50% OF THE SALE CONSIDERATION ALONG WITH STAMP DUTY OF RS.24,77,367/ - AS UNEXPLAINED SOURCES U/S 69B OF THE A CT. 3. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) AND ARGUED THAT HE HAD ONLY THE INTEREST OF 10% IN T HE SAID PROPERTY, THUS REQUESTED TO CONSIDER HIS SHARE A T 10% INSTEAD OF 50% ASSESSED BY THE AO. HOWEVER, NO EVIDEN CE WAS BROUGHT ON RECORD TO ESTABLISH THAT THE ASSESSEE WAS ONLY 10% SHARE HOLDER IN THE PROPERTY. THE REGISTERED DOCUMENT ALSO DID NOT 3 I.T.A. NO. 09 /VIZ/201 9, A.Y.201 3 - 1 4 SRI PATHAKAMURI CECIL , GUNTUR THR OW ANY LIGHT IN THE SHARE HOLDING OF THE PROPERTY. THEREFORE, THE LD.CIT(A) REJECTED THE ASSESSEES CONTENTION AND HELD THAT THE AO HAS RIGHTLY TAXED THE PROPERTY TREATING THE ASSESSEE AS CO - OWNER FOR 50% SHARE IN THE PROPERTY. FURTHER, THE LD.CIT(A) OBS ERVED THAT TH E AO HAS TAKEN THE STAMP DUTY OF RS.4,04,734/ - INSTEAD OF RS.10,54,800/ - BEING THE 50% OF TOTAL STAMP DUTY OF RS.21,09,600/ - , HENCE DIRECTED THE AO TO ADOPT 50% OF THE SHARE IN THE STAMP DUTY ALONG WITH CONSIDERATION PAID FOR ACQUIRING THE LAN D FOR MAKING ADDITION U/S 69B OF THE A CT. 4. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE US. THE FIRST CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE IS ONLY HAVING 10% IN THE TOTAL INVESTMENT, THUS REQUESTED TO DELETE THE ADDITION MADE BY THE AO OVER AND ABOVE THE 10% OF SHARE . IN SUPPORT OF HIS CONTENTION THE ASSESSEE FILED COPY OF AGREEMENT DATED 31.12.2010 BETWEEN THE ASSESSEE AND THE OTHER CO - OWNERS. THE AGREEMENT WAS UNREGISTERED AND THE STAMP PAPER WAS PURCHASED ON 24.03.2005. SINCE THE PR OPERTY WAS REGISTERED ON 15.06.2012 AND THE REGISTERED SALE DEED DO NOT SUPPORT THE PURPORTED AGREEMENT DATED 31 . 12 . 2010, THE AGREEMENT DATED 31.12.2010 APPEARS TO BE AN AFTERTHOUGHT HENCE, REJECTED. ON PERUSAL OF THE SALE DEED, THERE WAS NO MENTION WIT H REGARD TO SHARES OF THE PARTIES. THEREFORE, WE HOLD THAT 4 I.T.A. NO. 09 /VIZ/201 9, A.Y.201 3 - 1 4 SRI PATHAKAMURI CECIL , GUNTUR THE LOWER AUTHORITIES RIGHTLY ASSESSED 50% OF THE SHARE OF THE PROPERTY IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, APPEAL OF THE ASSESSEE ON THIS GROUND IS DISMISSED. 5. THE NEXT GROUND IS RELAT ED TO THE TAXING SHARE OF 50% U/S 69B OF THE ACT. DURING THE APPEAL PROCEEDINGS, THE LD.AR SUBMITTED THAT AS PER THE SALE DEED DATED 15.06.2012, THE PAYMENTS WERE MADE FOR ACQUIRING THE LAND AS UNDER : 31.12.2010 15,00,000 08.04.2011 10,00,000 24.09.2012 5,00,000 18.02.2012 10,00,000 15.06.2012 5,5 0,000 TOTAL RS.45,5 0,000 5.1. THE LD.AR ARGUED THAT OUT OF THE SUM OF RS.4 5 .50 LAKHS , A SUM OF RS.15 LAKHS WAS PAID IN THE F .Y.2010 - 11, RELEVANT TO THE A.Y.2011 - 12, RS.25 LAKHS WAS PAID IN THE F.Y.2011 - 12, RELEVANT TO THE A.Y.2012 - 13 AND RS.5 .50 LAKHS WAS PAID IN THE F.Y.2012 - 13 RELEVANT TO THE A.Y.2013 - 14. THEREFORE, SUBMITTED THAT ONLY RS.5 .50 LAKHS OUT OF THE TOTAL AMOUNT PAID AND THE STAMP DUTY AMOUNTING TO RS.21.09 LAKHS , AGGREGATING TO R S.26.09 LAKHS WAS THE INVESTMENT MADE IN THE YEAR UNDER CONSIDERATION WHICH REQUIRED TO BE BROUGHT TO TAX , BUT NOT THE EN TIRE AMOUNT OF RS.45.50 LAKHS PLUS STAMP 5 I.T.A. NO. 09 /VIZ/201 9, A.Y.201 3 - 1 4 SRI PATHAKAMURI CECIL , GUNTUR DUTY. THUS ARGUED THAT 50% OF THE AGGREGATE AMOUNT OF RS. 26.59 LA KH S CONSIDERATION PAID DURI NG THE YEAR REQUIRED TO BE BROUGHT TO TAX IN THE A.Y.2013 - 14 IN THE HANDS OF THE CO - OWNERS . THEREFORE, REQUESTED TO SET ASIDE THE ORDER OF THE LD.CIT(A) AND CONFIRM THE ADDITION TO THE EXTENT OF RS. 13,29 , 500/ - ONLY. 6. ON THE OTHER HAND, THE LD.DR VEHEMENTLY OPPOSED AND ARGUED THAT SINCE THE IMPUGNED PROPERTY WAS ACQUIRED IN THE YEAR UNDER CONSIDERATION, THE ENTIRE CONSIDERATION PAID BY THE ASSESSEE AS WELL AS THE STAMP DUTY REQUIRED TO BE BROUGHT TO TAX IN THE ASSESSMENT YEAR. 7. WE HAVE HEARD BOT H THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. AS PER SALE DEED DATED 15.06.2012, CO OWNERS HAVE PAID THE CONSIDERATION AS PER THE SCHEDULE GIVEN ABOVE AND OUT OF WHICH ONLY SUM OF RS.5 .50 LAKHS WAS PAID IN THE IMPUGNED ASSESSMENT YEAR . APART FR OM SUM OF RS.5,50,000/ - STAMP DUTY OF RS.21.09 LAKHS WAS ALSO INCURRED IN THE RELEVANT A.Y.2013 - 14. THEREFORE, 50% OF THE CONSIDERATION PAID DURING THE IMPUGNED ASSES SMENT YEAR AMOUNTING TO RS.13.295 LAKHS REQUIRED TO BE BROUGHT TO TAX IN THE A.Y.2013 - 14 AS PER SECTION 69B OF THE ACT. AS PER SECTION 69B , WHERE IN ANY FINANCIAL YEAR, THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THE 6 I.T.A. NO. 09 /VIZ/201 9, A.Y.201 3 - 1 4 SRI PATHAKAMURI CECIL , GUNTUR INVESTMENT MADE RECORDED IN THE BOOKS OF ACCOUNTS BUT OFFERS NO EXPLAN ATION, REQUIRED TO BE TAXED. FROM THE PERUSAL OF THE SALE DEED, THE ASSESSEE HAS MADE THE INV E STMENT TO THE EXTENT OF RS.26.5 9 LAKHS JOINTLY ALONG WITH OTHER CO - OWNERS IN THE F.Y.2013 - 14 FOR WHICH THE ASSESSEE COULD NOT EXPLAIN THE SOURCE. THEREFORE, WE HOLD THAT THE SUM OF RS.13,29,500/ - (BEING 50% OF 26.59 LAKHS) REQUIRED TO BE BROUGHT TO TAX AND THE REMAINING AMOUNT SHOULD BE DELETED. HENCE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND DIRECT THE AO TO VERIFY THE ACTUAL PAYMENTS MADE DURING THE YEAR AN D DECIDE THE ISSUE. THE APPEAL IS REMITTED TO THE FILE OF THE AO FOR A LIMITED PURPOSE OF VERIFYING THE ACTUAL DATES AND THE ACTUAL PAYMENT MADE IN THE IMPUGNED ASSESSMENT YEAR AND TO MAKE THE ADDITION REPRESENTING THE INVESTMENT MADE IN THE IMPUGNED ASSE SSMENT YEAR . ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE . 7 I.T.A. NO. 09 /VIZ/201 9, A.Y.201 3 - 1 4 SRI PATHAKAMURI CECIL , GUNTUR ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH FEBRUARY , 2020. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 07 . 0 2 .20 20 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE PATHAKAMURI CECIL , D.NO.7 - 159/79, RAVIPADU ROAD, NAR A SARAOPET, GUNTUR 2 . / THE REVENUE INCOME TAX OFFICER , WARD - 1, NAR A SARAOPET 3. THE PR.COMMISSIONER OF INCOME TAX, GUNTUR 4. THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 , GUNTUR 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM