K.Thanikachalam, CHENNAI V. ACIT, CHENNAI

MA 194/CHNY/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6555 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 30-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Capital asset

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , . !' , # $ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER %% / M.P. NO.194/CHNY/2017 (IN I.T.A. NO.2629/MDS/2014) & '& / ASSESSMENT YEAR : 2010-11 SHRI K. THANIKACHALAM, C/O SHRI S. SRIDHAR, SH. A.S. SRIRAMAN, ADVOCATES, NEW NO.14, OLD NO.82, FLAT NO.5, 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI - 600 020. PAN : AAEPT 1404 B V. THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE II, CHENNAI. ()*& /PETITIONER) ()+*,/ RESPONDENT) )*& . / /PETITIONER BY : SHRI S. SRIDHAR, ADVOCATE )+*, . / / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT 0 . 1# / DATE OF HEARING : 11.05.2018 2!' . 1# / DATE OF PRONOUNCEMENT : 17.05.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 22.02.2017. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ASSESSEE CHALLENGED THE DISALLOWANCE OF 1,45,00,000/- BEING THE AMOUNT PAID TO SHRI C.R. SRINIVAS CONSIDERING HIS ROLE IN SECUR ING THE CAPITAL ASSET. 2 M.P. NO.194/CHNY/17 ACCORDING TO THE LD. COUNSEL, THE ASSESSEE CONTENDE D BEFORE THIS TRIBUNAL THAT THE PAYMENT MADE TO SHRI C.R. SRINIVAS SHOULD BE CO NSTRUED AS EXPENDITURE IN CONNECTION WITH TRANSFER OF CAPITAL ASSET UNDER SEC TION 48 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). HOWEVER, THIS TRIB UNAL AT PARA 12.1 OF ITS ORDER HAS FOUND THAT THE ASSESSEE HAS NOT PRODUCED ANY EV IDENCE TO SHOW THAT THE VENDOR HAS PAID ANY MONEY OVER AND ABOVE THE SALE C ONSIDERATION. ACCORDING TO THE LD. COUNSEL, THIS TRIBUNAL HAS FOUND THAT TH E ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT THERE WAS ANY ENCUMBRANCE FOR MAKING THE PAYMENT BY OVERRIDING TITLE. THE LD.COUNSEL FURTHER SUBMIT TED THAT THE PAYMENT MADE TO SHRI C.R. SRINIVAS WAS NOT RECKONED IN THE CAPITAL GAINS COMPUTATION. THE SALE PROCEEDS NEVER REACHED THE ASSESSEE FOR COMPUTING T HE CAPITAL GAINS, THEREFORE, IT HAS TO BE CONSTRUED AS THE MONEY WAS DIVERTED AT SOURCE BY OVERRIDING TITLE. HENCE, ACCORDING TO THE LD. COUN SEL, THE DISALLOWANCE IS AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD. 3. WE HEARD SHRI AR.V. SREENIVASAN, THE LD. DEPARTM ENTAL REPRESENTATIVE ALSO. WITH REGARD TO DISALLOWANCE O F 1,45,00,000/-, THIS TRIBUNAL EXAMINED THE ISSUE AT PARA 12.1 OF ITS ORD ER. THE PAYMENT OF 35 LAKHS CLAIMED TO BE FINANCIAL SUPPORT FOR PURCHASE OF PROPERTY WHICH WAS IN THE FORM OF DEBT AND APPLICATION OF MONEY. THIS TRIBUN AL SPECIFICALLY FOUND THAT THE PAYMENT OF 35 LAKHS WAS NOT RELATED TO TRANSFER OF PROPERTY AN D THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT THE PAYM ENT WAS INCURRED FOR TRANSFER / SALE OF PROPERTY. THEREFORE, THE DISALL OWANCE OF 35 LAKHS WAS CONFIRMED. 3 M.P. NO.194/CHNY/17 4. COMING TO REMAINING 1,10,00,000/-, THIS TRIBUNAL SPECIFICALLY FOUND THAT THE ASSESSEE HAS NOT PLACED ANY EVIDENCE ON RE CORD TO SHOW THAT THE LAND IN QUESTION WAS ENCROACHED AND SHRI SRINIVAS MADE E FFORTS TO RELEASE THE LAND FROM ENCROACHERS. IN OTHER WORDS, THIS TRIBUNAL FO UND THAT THERE WAS NO EVIDENCE FOR THE SERVICES RENDERED BY SHRI C.R. SRI NIVAS IN SECURING THE CAPITAL ASSET. WHEN A SPECIFIC FINDING WAS RECORDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AT THE TIME OF HEARING, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE HA S NO MERIT AT ALL. THE PROVISIONS OF SECTION 254(2) OF THE ACT ENABLES THI S TRIBUNAL TO RECTIFY AN ERROR WHICH IS APPARENT ON THE FACE OF RECORD. THE JURIS DICTION CONFERRED ON THIS TRIBUNAL TO RECTIFY AN ERROR UNDER SECTION 254(2) O F THE ACT CANNOT BE EXTENDED FOR REVISING THE ORDER PASSED BY THIS TRIBUNAL. SU FFICE TO SAY THAT THERE IS NO PRIMA FACIE ERROR ON THE ORDER OF THIS TRIBUNAL, THEREFORE, TH E PETITION FILED BY THE ASSESSEE HAS NO MERIT. 5. WITH THE ABOVE OBSERVATION, THE MISCELLANEOUS PE TITION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED COURT ON 17 TH MAY, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 17 TH MAY, 2018. KRI. 4 M.P. NO.194/CHNY/17 . )15% 6%'1 /COPY TO: 1. )*& / PETITIONER 2. )+*, /RESPONDENT 3. 0 71 () /CIT(A) 4. 0 71 /CIT 5. %8 )1 /DR 6. 9& : /GF.