Hajira Begum, CHENNAI V. ITO, CHENNAI

ITA 959/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4209 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 19-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V SREENIVASAN JICIT D R
• Assessee Lawyers: R VISWANATHAN
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C; 148

Judgement Text

, D/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL D/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A.NO.959 /MDS./2017 ( ASSESSMENT YEAR : 2010-11) SMT.HAJIRA BEGUM , D-7,2ND FLOOR, KRISHNA APTS, GOVARDHAN STREET, ROYAPETTAH, CHENNAI. VS. INCOME TAX OFFICER, NCR (11)4, CHENNAI-34. PAN AEDPH 0334 P ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MR.R.VISWANATHAN, FCA / RESPONDENT BY : MR.V.SREENIVASAN, JICIT, D.R ! ' / DATE OF HEARING : 20.06.2017 #$%& ! ' /DATE OF PRONOUNCEMENT : 20.06.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-13, CHENN AI DATED 23.03.2017 PERTAINING TO ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS F OR ADJUDICATION. ITA NO.959/MDS/2017 2 1. THE ORDER IN ITA NO.63/CIT(A)-13 /2010-11 DT 23. 03.2017 OF THE LEARNED CIT(A)- APPEALS -13, CHENNAI THE ASSESSMENT YEAR AY 2010-2011 IS CONTRARY TO FACTS, OPPOSED TO LAW AND UNTENABLE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSLY ERRED IN NOT CONSIDERING THE LONG TERM CAPITAL GAINS HAD ACCRUED ON 12.01 .2007 AS THE APPELLANT HAD ALREADY GIVEN THE POSSESSION OF T HE PROPERTY RESULTING IN TRANSFER OF THE PROPERTY BY THAT DATE AND CONSID ERATION IN FULL HAS BEEN RECEIVED BY THAT DATE. 2.1 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) GROSSLY ERRED IN NOT CONSIDERING THE DATEL2.01.2007 AS THE DATE OF TRANS FER ULS.2(47) OF INCOME TAX ACT AND THE DATE OF EXECUTION OF SALE DEED SUBS EQUENTLY WAS MERELY A RITUAL A PROCEDURAL FORMALITY TO BE COMPLIED WI TH UNDER TRANSFER OF PROPERTY ACT. 2.2 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN NOT CONSIDERING THE CONFIRMATION FROM THE POWER AGENT. 2.3 THE LEARNED COMMISSIONER WITHOUT GIVING FINDING OF FACT ERRED IN OBSERVING THAT THE CONFIRMATION FROM THE POWER AGEN T WAS AFTER THOUGHT AND BACKDATED. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS NOT FILED RETURN OF INCOME FOR AY 2010-11, IT WAS ONLY WHEN INFORMAT ION WERE RECEIVED TO THE DEPARTMENT THROUGH SRO AND FROM THE COPY OF THE SALE DEED DOCUMENT NO.729/2010 DATED 16,11.2009, TH E AO COME TO KNOW ABOUT THE SALE OF PROPERTY BY THE ASSESSEE THR OUGH THE POWER AGENT. AGAIN THE SALE CONSIDERATION SHOWN THEREIN T HE SALE DEED AND THE STAMP DUTY VALUE LEVIED BY THE SRO I.E. STAMP D UTY VALUATION ITA NO.959/MDS/2017 3 AUTHORITY WAS DIFFERENT. THEREFORE, THE AO HAS REAS ON TO BELIEVE THAT IN VIEW OF SEE.50C OF THE INCOME TAX ACT THE INCOME HAD ESCAPED ASSESSMENT THEREFORE THE AO ISSUED NOTICE U/S 148 A ND IN FINALISING RE-ASSESSMENT PROCEEDINGS, THE AO SOUGHT CLARIFICAT ION FROM THE ASSESSEE. IT WAS CONTENDED BY THE ASSESSEE BEFORE THE AO THAT SHE HAD EXECUTED POWER OF ATTORNEY ON 12.01.2007 IN FAV OUR OF SHRI G.SRIDHAR REDDY IN F.Y 2007-07 AND CONSIDERATION OF RS.3.30,000/- WAS RECEIVED. IN SUPPORT OF HER CLAIM, SHE HAS RE LIED ON SHRI G.SRIDHAR REDDYS CONFIRMATION LETTER DATED 02.06.2 016. ACCORDING TO THE ASSESSEE, THE SALE DEED DATED 16.11.2009 WAS WH OLLY EXECUTED BY SHRI G.SRIDHAR REDDY AND THEREFORE SHE IS NOT IN ANY MANNER CONNECTED TO THE SALE TRANSACTION, RELYING ON THIS, THE APPELLANT CLAIMS THAT CAPITAL GAINS HAS ARISEN IN A.Y 2007-08 AND ACCORDINGLY, LONG TERM CAPITAL GAINS ARRIVED AT WAS WITHIN THE T AXABLE LIMIT OF ` 1,35,000/- FOR ASSESSMENT YEAR 2007-08. HENCE, RETU RN FOR THE SAME YEAR WAS ALSO AS SUCH NOT FILED. MR.G.SRIDHAR REDDY HAD PRODUCED THE CONFIRMATION LETTER DATED 02.06.2016 WRITTEN B Y THE POWER AGENT, WHO HAD CONFIRMED THAT HE HAD PAID ` 3,30,000/- BY CASH TO ASSESSEE AS CONSIDERATION AMOUNT FROM MR.HARISH BEF ORE THE GPS ITA NO.959/MDS/2017 4 REGISTRATION. SUBSEQUENTLY, THE PROPERTY WAS SOLD TO SUGANTHI KUMARESAN AND THE SALE CONSIDERATION WAS RECEIVED B Y HARISH. THE AO CAME TO A CONCLUSION THAT THE POA HOLDER HAS ACT ED ON BEHALF OF THE ASSESSEE AND HENCE THE ASSESSEE IS LIABLE FOR L ONG TERM CAPITAL GAINS AND COMPLETED THE ASSESSMENT BY BRINGING THE LONG TERM CAPITAL GAINS OF ` 11,94,327/-. AGGRIEVED BY THE ORDER OF LD. ASSESSING OFFICER, THE ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). 3.1 ON APPEAL, THE LD.CIT(A) ENDORSED THE VIEW OF THE LD. ASSESSING OFFICER ON THE REASON THAT THE SALE OF P ROPERTY BY THE POWER OF ATTORNEY ATTRACTS CAPITAL GAINS ON THE DA TE OF SALE OF PROPERTY ON WHICH THE POSSESSION OF THE PROPERTY WA S GIVEN BY SALE DEED WHICH WAS REGISTERED ON 16.11.2009 IN THE ASSE SSEES CASE. FURTHER, LD.CIT(A) OBSERVED THAT THE PROVISIONS OF THE SECTION 50C OF THE ACT IS APPLICABLE ON DATE OF SALE OF THE PROPER TY AND PARTING THE POSSESSION ON 16.11.2009 AND NOT THE DATE OF POWER OF ATTORNEY. AGAINST THE ORDER OF LD.CIT(A), NOW THE REVENUE IS IN APPEAL BEFORE US. ITA NO.959/MDS/2017 5 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. THE MAIN PLEAS OF ASSESSEE IS THAT THE ASS ET WAS TRANSFERRED TO THE ASSESSEE BY WAY OF POWER OF ATTORNEY AND TRA NSFER TOOK PLACED THROUGH THE POWER OF ATTORNEY ON THE DATE 12.01.200 7, SO THE PROVISIONS OF THE SECTION 50C CANNOT BE INVOKED IN THE ASSESSMENT YEAR UNDER CONSIDERATION. WE HAVE CAREFULLY GONE T HROUGH THE POWER OF ATTORNEY CITED SUPRA. AS PER POWER OF ATTORNEY MRS.AJIRA BEGUM ONLY GIVEN POWER OF ATTORNEY WHO CAN ACT ON BEHALF OF HER AND SHE HAS CONFIRMED IN THE CLAUSE-18 OF THE POWER OF ATTO RNEY THAT UNDER THIS POWER OF ATTORNEY SHE HAS NOT RECEIVED ANY CON SIDERATION FROM THE LAWFUL ATTORNEY RELATING TO THE SCHEDULE MENTIO NED PROPERTY. BEING SO, WHEN THERE IS NO CONSIDERATION PASSED FRO M THE POWER OF AGENT TO THE PRESENT ASSESSEE, MRS.AJIRA BEGUM, IT CANNOT BE SAID THAT THERE WAS A TRANSFER VIDE POWER OF ATTORNEY DA TED 12.01.2007. 5. IN MY OPINION, THE TRANSFER TOOK PLACE THROUGH SALE DEED DATED 16.11.2009, WHICH IS A VALID LEGAL DOCUMENT WHEREIN IT WAS MENTIONED THAT SALE CONSIDERATION WAS ACTUALLY PASS ED BETWEEN THE PARTIES THEREIN. WHEN THE CIRCUMSTANCES LIKE THIS, THE ASSESSEE HAS PRODUCED ONE CONFIRMATION LETTER FROM MR.G.SRIDHAR REDDY STATING ITA NO.959/MDS/2017 6 THAT HE HAS PAID ` 3,30,000/- VIDE POWER OF ATTORNEY DATED 12.01.2007. HENCE, IN MY OPINION, THIS IS A SELF SE RVING DOCUMENT FOR WHICH I CANNOT GIVE ANY CREDIT, AS IT IS CONTRARY T O THE LEGAL DOCUMENTS, WHICH WERE DULY REGISTERED. ACCORDINGLY, I AM OF THE OPINION THAT LOWER AUTHORITIES ARE JUSTIFIED IN IN VOKING THE PROVISIONS OF THE SECTION 50C OF THE ACT. THUS, THIS GROUND RA ISED BY THE ASSESSEE STANDS DISMISSED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JUNE, 2017. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 20 TH JUNE, 2017 . K S SUNDARAM. ' ( )!*+ ,+%! / COPY TO: 1 . / APPELLANT 3. ' ' -! () / CIT(A) 5. +0 1 )!)23 / DR 2. / RESPONDENT 4. ' ' -! / CIT 6. 1 45 6 / GF