Sri B.K.Karthikeyan, v. DCIT, Ernakulam

ITA 1007/COCH/2008 | 2004-2005
Pronouncement Date: 30-04-2010

Appeal Details

RSA Number 100721914 RSA 2008
Assessee PAN AOSPK6029M
Bench Cochin
Appeal Number ITA 1007/COCH/2008
Duration Of Justice 1 year(s) 4 month(s) 11 day(s)
Appellant Sri B.K.Karthikeyan,
Respondent DCIT, Ernakulam
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 30-04-2010
Assessment Year 2004-2005
Appeal Filed On 19-12-2008
Judgment Text
IN THE INCOME TAX APPELLATE T RIBUNAL COCHIN BENCH COC HIN BEFORE S/SHRI N.VIJAYAKUMARAN JM AND SANJAY ARORA AM I.T.A. NO. 1007/COCH./2008 ASSESSMENT YEAR : 2004-05 SHRI B.K.KARTHIKEYAN BLAVATH HOUSE AYYAPPANKAVU ERNAKULAM-682017. [PAN: AOSPK 6029M] VS. THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2 ERNAKULAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI MATHEW JOSEPH CA REVENUE BY SHRI T.J.VINCENT DR O R D E R PER SANJAY ARORA AM: THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-III KOCHI (CIT(A) FOR SHORT ) DATED 12.11.2008 AND THE ASSESSMENT YEAR (A.Y.) UNDER REFERENCE IS 2004-05. 2.1 THE ONLY ISSUE IN APPEAL RELATES TO THE ASSESSM ENT OF CAPITAL GAINS IN THE HANDS OF THE ASSESSEE ON THE SALE OF FOUR PIECES OF LAND DUR ING THE RELEVANT PREVIOUS YEAR WHICH STANDS ASSESSED AT RS.2 86 825/- AS AGAINST RS. 65 920/- RETURNED BY THE ASSESSEE. THE FACTS IN BRIEF ARE THAT CONSEQUENT TO A SEARCH U/S 132 OF THE INCOME-TAX ACT 1961 (`THE ACT HEREINAFTER) AT THE RESIDENCE OF THE ASSESSEE ON 5/10/2005 PAPERS CONTAINING NOTINGS IN RESPECT OF SALE OF FOUR PROPERTIES SPECIFYING T HE NAME OF THE BUYER AREA RATE TOTAL AMOUNT ADVANCE RECEIVED QUA FOUR PLOTS OF LAND MEASURING IN AGGREGATE AT 22.0 25 CENTS WERE FOUND AND WHICH ALSO CONTAINED THE WORKING OF THE TOTAL NET CONSIDERATION I.E. AFTER EXPENSES AND ITS DIVISION WITH THE ASSESSEES SHA RE (1/3 RD . ) AMOUNTING TO RS. 3 51 350/-. IT WAS EXPLAINED IN THE COURSE OF SEARCH TO BE IN RESPECT OF THE SALE PROCEEDS OF LAND MEASURING ABOUT 22 CENTS NEAR RICE RESEARCH CENTRE VYTILLA ERNAKULAM WHICH STOOD ITA. NO.1007/COCH./2008 2 SOLD BY THE ASSESSEE HIS BROTHER SH. RAVINDRAN A ND HIS SISTER WITH EACH GETTING APPROXIMATELY RS. 3.50 LAKHS. 2.2 THE ASSESSEE DISCLOSED THE SALE OF THE LANDS VI DE HIS RETURN U/S. 153A FOR THE YEAR EVEN AS THE SALE AMOUNTS AS RETURNED WERE MUCH LO WER I.E. AT AN AGGREGATE OF RS. 4.32 LACS AS AGAINST RS. 10.88 LACS PER THE SEIZED DOCU MENTS. THE ASSESSING OFFICER (A.O.) FOUND THE RETURNED SALE CONSIDERATION(S) TO BE IN A GREEMENT WITH THE SALE DEEDS EXECUTED IN RESPECT OF THE SAID SALES BY THE THREE TRANSFERORS I.E. THE ASSESSEE AND HIS TWO SIBLINGS DURING THE RELEVANT PREVIOUS YEAR EXCEPT IN THE CA SE OF ONE SALE I.E. FOR LAND MEASURING 5.98 CENTS FOR WHICH THE ASSESSEE HAD TAKEN THE SA LE AMOUNT AT RS. 1 LAC STATING IT TO BE SO IN THE ABSENCE OF THE SALE DOCUMENT. THE AO GOT THE SAME VERIFIED FROM THE OFFICE OF THE REGISTRAR AND FOUND THE SAME TO HAVE BEEN SOLD TO ONE KASHMIRA ON 22/10/2003 FOR RS. 119600/-. THE ASSESSEE EVEN CONTENDED THAT THE DOC UMENTS FOUND IN SEARCH DID NOT PERTAIN TO THE FOUR PROPERTIES SOLD BY HIM DURING T HE YEAR I.E. AS PER HIS RETURN OF INCOME AND THAT THE SAME WAS ONLY A DUMB DOCUMENT. THE A O HOWEVER REFUTED THE ASSESSEES CONTENTION ON THE BASIS OF THE COMPLETE IDENTITY OF THE AREA OF EACH OF THE PROPERTIES MENTIONED IN THE SEIZED PAPERS AND THE SALE DEEDS. THERE WAS A MATCHING OF THE NAMES OF TRANSFERORS AND THE TRANSFEREE-BUYERS FOR EACH OF T HE LANDS EXCEPT IN THE CASE OF SALE OF THE AFORESAID LAND MEASURING 5.98 CENTS FOR WHICH THE BUYERS NAME PER THE SEIZED DOCUMENTS WAS `POTTOKARAN AS WELL. AS SUCH THE ASSESSEES CONTENTION WAS CONSIDERED BY HIM AS OF NO MOMENT. IN VIEW THEREOF THERE WAS NO DOUBT WHAT SOEVER THAT THE SEIZED DOCUMENTS REPRESENTED THE ACTUAL TRANSACTIONS WITH EACH OF T HE VARIABLES REQUIRED FOR THE COMPUTATION OF THE CAPITAL GAINS INCLUDING THE EXPENSES BROKE RAGE ETC. PAID BEING MENTIONED THEREIN. HE THEREFORE ASSESSED THE CAPITAL GAINS TAKING T HE ASSESSEES SHARE IN THE TOTAL CONSIDERATION AT RS. 3 54 808/- I.E. AS PER THE S EIZED MATERIALS MAKING MINOR CORRECTION IN THE WORKING. THE SAME STOOD CONFIRMED BY THE LD. CIT(A) IN APPEAL FOR THE SAME REASON I.E. OF THERE BEING NO AMBIGUITY WHATSOEVE R IN RELATION TO THE SAME REPRESENTING THE SALE TRANSACTIONS OF THE PROPERTIES SOLD BY THE ASSESSEE DURING THE YEAR ALONG WITH HIS SIBLINGS AND EVEN RETURNED FOR THE YEAR BY THEM A LBEIT AT THE AMOUNTS AS STATED IN THE REGISTERED SALE DEEDS I.E. AS DOCUMENTED. AGGRIEV ED THE ASSESSEE IS IN APPEAL. ITA. NO.1007/COCH./2008 3 3. BEFORE US LIKE SUBMISSIONS STOOD RAISED WITH THE LD. DR RELYING ON THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE FACTS OF THE CASE WE OBSERVE ADMIT OF NO DISPUTE EVEN AS THE ASSESS EE HAS SOUGHT TO RAISE DOUBTS AS TO THE VALIDITY OF THE DOCUMENTS FOUND IN SEARCH WHICH WE FIND AS WITHOUT MERIT. THE LAW IN THE MATTER IS CLEAR AND FOR WHICH WE MAY ADVERT TO THE PROVISIONS OF SS. 132(4) AND 292C OF THE ACT. THE SEIZED MATERIAL COUPLED WITH THE STAT EMENT RECORDED ON OATH DURING SEARCH WHEREBY THE PROPERTY(S) SOLD AND THE BUYERS STAND IDENTIFIED AS ALSO THE ASSESSEES SHARE SPECIFIED LEAVES ONE IN NO MANNER OF ANY DOUBT AS TO THE VALIDITY AND THE AUTHENTICITY OF THE SAID DOCUMENTS FOUND IN SEARCH. THE MATTER IS E SSENTIALLY ONE OF FACT AND ALL THE MATERIALS IN THE POSSESSION OF THE REVENUE CORROBOR ATE EACH OTHER TO LEAD TO THE UNMISTAKABLE INFERENCE OF THE SAID DOCUMENTS TO BE AS ONLY IN RESPECT OF THE SALE TRANSACTIONS ENTERED INTO BY THE ASSESSEE ALONG WI TH HIS TWO SIBLINGS DURING THE YEAR AND REPRESENTING THE ACTUAL CONSIDERATION ENSUING THERE BY. IF THE SALE DEEDS AND THE NOTINGS RECORDED IN THE SEIZED DOCUMENTS ARE NOT IN RESPECT OF THE SAME TRANSACTIONS THE QUESTION AS TO THE IDENTITY OF THE LANDS ADMEASURING THE SA ME SOLD BY THE SAME SELLERS TO THE SAME BUYERS WOULD ARISE. THIS IS AS EVEN IF CLAIMED TO BE NOT SOLD THE SAID LANDS WOULD DEFINITELY EXIST AND CONTINUE TO BE IN THE NAMES O F THE ASSESSEE AND HIS TWO SIBLINGS. THE PRESENT CASE RATHER OUGHT TO BE CONSIDERED AS ONE OF ADMISSION WHICH IS THE BEST FORM OF EVIDENCE AND THE ASSESSEES OBJECTIONS ARE IN VIE W OF THE OVERWHELMING EVIDENCE SUPERFLUOUS. THE REVENUES CASE IS ALSO COVERED BY THE DECISION IN THE CASE OF V. KUNHAMBU & SONS V. CIT 219 ITR 235 (KER.). UNDER THE CIRCUMSTANCES WE F IND NO MERIT IN THE ASSESSEES CASE AND ACCORDINGLY NO REASON TO DISTURB THE CONCURRENT FINDING OF THE AUTHORITIES BELOW WHICH WE CONFIRM. WE DECIDE ACCO RDINGLY. 5. IN THE RESULT THE ASSESSEES APPEAL IS DISM ISSED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 30TH APRIL 2010 GJ COPY TO: 1. SHRI B.K.KARTHIKEYAN BLAVATH HOUSE AYYAPANKAVU ERNAKULAM 682 017. ITA. NO.1007/COCH./2008 4 2. DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-III KO CHI. 4. THE COMMISSIONER OF INCOME-TAX CENTRAL KOCHI. 5. D.R./I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR)