Income Tax Officer, Ward -1(4). Belgavi., Belagavi V. Krishna Co-op. Credit Society Ltd., Belagavi

ITA 97/PAN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1422 (ITAT-PANAJI)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-07-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 13-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P DINESH ADV SHRI K M MAHESH D
• Section: 6; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO S . 96 TO 99 /PNJ/201 4 (ASST. YEAR S : 200 6 - 0 7 TO 2009 - 10 ) LATE SRI KOCHU KOSHY, BY L/H SRI ABEESH KOSHY, PROP. M/S. KOSHY ESTATE, OPP. MENEZES HOSPITAL, ALTINHO, PANAJI GOA. VS. D CIT, CENTRAL CIRCLE, PANAJI GOA. PAN NO. AMMPK 4071 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. DINESH ADV. DEPARTMENT BY : SHRI K.M. MAHESH - D R DATE OF HEARING : 10 / 0 8 /2015 . DATE OF PRONOUNCEMENT : 1 0 / 0 8 /201 5 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER TH E S E ARE THE APPEAL S FILED BY THE ASSESSEE AGAINST THE CONSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - VI , BANGALORE , DATED 31 / 12 /201 3 . 2. THE ASSESSEE HAS RAISED T HE FOLLOWING COMMON GROUNDS OF APPEAL: - 1. THE ORDER OF THE CIT (APPEALS) IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE APPELLANT, IS BAD IN LAW AND THEREFORE NOT SUSTAINABLE IN THE EYE OF LAW. 2. THE CIT (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE ASSESSING OFFICER LACKED IN JURISDICTION WHILE CONCLUDING THE ASSESSMENT UNDER SECTION 153C OF THE IT ACT FOR THE REASON 2 ITA NO S . 96 - 99 /PNJ/201 4 THAT IT IS A MATTER OF RECORD THAT A SEARCH TOOK PLACE IN THE AP PELLANTS PREMISES ON 09.10.2009 WHERE A NUMBER OF DOCUMENTS AS WELL AS VALUABLES WERE SEIZED. 3. THE CIT (APPEALS) GROSSLY ERRED IN SUSTAINING SUM OF THE ADDITIONS WITHOUT APPRECIATING THAT EVERY RECEIPT CANNOT BE INCOME IN THE HANDS OF THE APPELLANT. 4. THE CIT (APPEALS) ERRED IN SUSTAINING THE ADDITION TO THE EXTENT OF RS.38,50,000/ - WITHOUT APPRECIATING THAT THE APPELLANT HAD INCURRED EXPENDITURE WHICH WAS ALSO TO BE TELESCOPED. 5. WITHOUT PREJUDICE, THE CIT (APPEALS) OUGHT TO HAVE APPRECIATED THA T THE APPELLANT HAD EXPLAINED THROUGH CASH BOOK SUMMARY EACH AND EVERY TRANSACTION AND THE CIT (APPEALS) FURTHER ERRED IN UPHOLDING THE ASSESSMENT ORDER WHERE THE ASSESSING OFFICER WAS CHOOSY ABOUT THE SEIZED MATERIALS AND THAT ALL THE DOCUMENTARY EVIDENCE S WEE IN FACT PART OF THE SEIZED MATERIALS WHICH WAS IGNORED BY THE ASSESSING OFFICER. 6. THE ADDITIONS AS SUSTAINED BY THE CIT (APPEALS) ARE ARBITRARY, EXCESSIVE AND OUGHT TO BE DELETED IN FULL. 7. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER DURING THE COURSE OF SEARCH UNDER SEC. 132 OF THE ACT , ON 09/10/2009 IN CONNECTION WITH SEARCH IN THE CASE OF SHRI N. SURYANARAYANA, FOUND THAT THE ASSESSEE ENTERED INTO AN AGREEMENT WITH THE OWNERS OF LAND AT VERNA MEASURING ABOUT 3 LAC . SQ.MTS. AND SOLD THE SAME TO MR. MANOJ MITULAL AND MRS. N. SUNITHA. ASSESSEE SUBMITTED THAT HE HAD ENTERED INTO MOU WITH THE OWNERS OF THE PROPERTY SHRI NAVILLEL QUADROS & OTHERS FOR 3 LAC. SQ.MTS., FOR WHICH HE PAID AT 10 LAC . HE , THEN SOLD THE PROPERTY APPROXIMATELY 84% OF LAND TO MR. MITU L AL AND REMAINING LAND TO MRS. N. SUNIT H A . THE PROPERTY WAS REGISTERED IN THE FINANCIAL YEAR 2005 - 06 AND HE RECEIVED 1.80 CRORES FROM MITULAL AND SUNIT H A . H OWEVER, THE ASSESSING OFFICER NOTED THAT AS PER ANNEXURE - A/KK/1 DATED 09/10/2009 , ASSESSEE HAD PAID 38.50 LAC. IN RESPECT OF THE 3 ITA NO S . 96 - 99 /PNJ/201 4 PROPERTY. THE ASSESSING OFFICER FURTHER OBSERVED THAT ACCORDING TO PAGE NOS. 70 TO 119 OF A/NS/16 DATED 09/10/2009 , WHICH IS A SALE DEED DATED 13/10/2005 BETWEEN MR. ANTONIO TEODOSIO DE COSTA, MR. BAYLON QUADROS & OTHERS AND THE ASSESSEE HAS CONFIRMING PARTY IN FAVOUR OF MR. MANOJ MITULAL AND MRS. N. SUNIT H A REGARDING SY NO. 35/0, 36/2, 46/1, 46/2 AND 47 AT VERNA OF 3 LAC. SQ.MTS. , OUT OF 3,81,425 SQ.MTS. , FOR A CONSIDERATION OF 1.80 CRORE S . PAYMENT OF 1.40 CRORES WAS MADE VIDE CHEQUE NO . 754805 DATED 13/10/2005 AND 40 LAC. WAS PAID VIDE CHEQUE NO. 476518 DATED 13/10/2005 . OUT OF THE TOTAL CONSIDERATION OF 1.80 CRORES, AN AMOUNT OF 1.05 CRORES WAS PAID TO VENDORS AND 75 LAC WAS STATED TO BE PAID TO THE ASSESSEE. ACCORDING TO ASSESSING OFFICER, NO EVIDENCE WITH REGARD TO PAYMENT BY THE BUYER OF THIS AMOUNT TO THE LAND OWNERS WAS PRODUCED, THEREFORE, ADDITION OF 1.05 CRORES WAS MADE IN THE HANDS OF THE ASSESSEE. 4 . A C C O R D I N G T O T H E COMMISSIONER OF INCOME TAX (APPEALS) , A SSESSEE HAD DRAWN H I S ATTENTION TO THE COPY OF SALE DEED DATED 13/10/2005 , WHEREIN IT WAS STATED AS UNDER: - RS. 1,05,00,000/ - ( RUPEES ONE CRORE FIVE LAKHS ONLY) STAND PAID TO THE VENDORS AND THE REMAINING AMOUNT OF PS. 75,00,000/ - (RUPEES SE VENTY FIVE LAKHS ONLY) APPROPRIATED BY THE CONFINING PARTY, THE RECEIPT AND PAYMENT OF WHICH SUM THE VENDORS AND EACH ONE OF THEM AND THE CONFIRMIMG PARTY DO HEREBY ADMIT AND ACKNOWLEDGE AND DO HEREBY GRANT, CONVEY SELL TRANSFER AND ASSURE UNTO THE PURC HASER ALL THAT RIGHT TITLE AND INTEREST TO THE SAID PLOT ADMEASURING AN AREA OF 3,00,000/ - (THREE LAKH S ) SQUARE METRES THE SAME BEING A PORTION OF THE PROPERTY KNOWN AS AFORAMENTO MARGALE OR QUENSORACHI - GALLY BEARING SURVEY N OS. 46/1 AND 47 PART OF THE VILLAGE OF VERNA IN THE TALUKA OF SA L CETE. 5. COMMISSIONER OF INCOME TAX (APPEALS) HAS REFERRED TO THE ABOVE AND STATED AS UNDER: - I HAVE GONE THROUGH THE FACTS OF THE CASE IN DETAIL AND FIND THAT THERE IS A LOT OF CONFUSION WITH REGARD TO THE CLAIMS MADE BY THE APPELLANT AND ALSO THE CONCLUSIONS DRAWN BY THE ASSESSING OFFICER. 4 ITA NO S . 96 - 99 /PNJ/201 4 6 . BEFORE US, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD SOLD THE LAND PURCHASED FROM THE LAND OWNERS NAMELY SHRI NAVILLEL QUADROS & OTHER S AND PAYMENT TO THE LAND OWNERS WAS MADE FROM THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE FROM THE BUYERS OF THE PROPERTY. HE SUBMITTED THAT HE HAD FILED ALL THE COP IES OF AGREEMENTS MADE WITH THE PURCHASERS OF THE LAND BEFORE THE ASSESSING OFFICER AND ALSO THE DETAILS OF THE PAYMENTS. HE SUBMITTED THAT WITHOUT PROPER EXAMINING THE DETAILS, EXPLANATION OF THE ASSESSEE WAS BRUSHED ASIDE AND ADDITION HAS BEEN MADE IN THE HAND S OF THE ASSESSEE OF 1.05 CRORES. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, MATTER SHOULD BE REFERRED TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO EXAMINE ALL THE DOCUMENTS AND AFTER THAT TO PASS A SPEAKING ORDER DECIDING THE ISSUE AFRESH. 7 . DEPARTMENTAL REPRESENTATIVE ALSO AGREED WITH THE SUBMISSIONS MADE BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE . 8 . WE FIND WITH THE CONTENTION OF THE ASSESSEE IS THAT HE HAD MADE THE PAYMENTS TO THE VENDORS OF 1.05 CRORES FROM THE PAYMENTS RECEIVED FROM THE ULTIMATE PURCHASERS OF THE PROPERTY. WE ALSO OBSERVED FROM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , WHICH READS AS UNDER: - RS. 1,05,00,000/ - ( RUPEES ONE CRORE FIVE LAKHS ONLY) STAND PAID TO THE VENDORS AND THE REMAINING AMOUNT OF PS. 75,00,000/ - (RUPEES SEVENTY FIVE LAKHS ONLY) APPROPRIATED BY THE CONFINING PARTY, THE RECEIPT AND PAYMENT OF WHICH SUM THE VENDORS AND EACH ONE OF THEM AND THE CONFIRMIMG PARTY DO HEREBY ADMIT AND ACKNOWLEDGE AND DO HEREBY GRANT, CONVEY SELL TRANSFER AND ASSURE UNTO THE PURCHASER ALL THAT RIGHT TITLE AND INTEREST TO THE SAID PLOT ADMEASURING AN AREA OF 3,00,000/ - (THREE LAKH S ) SQUARE METRES THE SAME BEING A PORTION OF THE PROPERTY KNOWN AS AFORAMENTO MARGA LE OR QUENSORACHI - GALLY BEARING SURVEY N OS. 46/1 AND 47 PART OF THE VILLAGE OF VERNA IN THE TALUKA OF SA LCETE. I HAVE GONE THROUGH THE FACTS OF THE CASE IN DETAIL AND FIND THAT THERE IS A LOT OF CONFUSION WITH REGARD TO THE CLAIMS MADE BY THE 5 ITA NO S . 96 - 99 /PNJ/201 4 APPELLANT AND ALSO THE CONCLUSIONS DRAWN BY THE ASSESSING OFFICER . 9. THEREFORE, IN OUR CONSIDERED VIEW IT WILL JUST AND FAIR TO REMAND THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO RE - ADJUD I CATE THE ISSUE AFRESH BY PASSING SPEAKING ORDER A F T E R C O N S I D E R I N G A L L T H E D O C U M E N T S A N D S U B M I S S I O N S O F T H E ASSESSEE AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. WE ORDER ACCORDINGLY. THUS, THE GROUND S OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE . 10 . IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON MONDAY , THE 1 0 TH DAY OF AUGUST , 201 5 AT GOA . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 0 T H AUGUST , 201 5 . VR/ - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI 6 ITA NO S . 96 - 99 /PNJ/201 4 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 1 0 .0 8 .2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11 .08 .2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 11 /08 /2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 11 /0 8 /2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 11 /08 /2015 SR.PS 6. DATE OF PRONOUNCEMENT 10 /0 8 /2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 11 /08 /2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER