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Income Tax Appellate Tribunal, DELHI BENCH ‘F’ : NEW DELHI
Before: SHRI J.S. REDDY & SHRI KULDIP SINGH
(PAN : AEDPC3131M) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Sanjay Malik, Advocate REVENUE BY : Shri Anil Kumar Sharma, Senior DR Date of Hearing : 19.07.2016 Date of Order : 26.07.2016 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER :
The appellant, Shri Raghav Chaudhary, by filing the present appeal, sought to set aside the impugned order dated 13.03.2013 passed by ld. Commissioner of Income-tax (Appeals), Ghaziabad qua the assessment year 2009-10 on the grounds inter alia that :- “1. That the appellant transferred the property for Sale consideration of Rs.16,00,000/-. On facts and in the circumstances of the case, computed Capital Gain based on such Sale consideration, of Rs.16,00,000/- deserves to be accepted.
2. That the determination of the Sale consideration at Rs.34,80,000/- as against actual Sale consideration of Rs.16,00,000/- thereby resulting in an addition of Rs.18,80,000/- under the head 'Short Term Capital Gain' was illegal, void and without jurisdiction.
3. That the impugned addition of Rs.18,80,000/- deserves to be deleted being void, illegal and without jurisdiction.
4. That on facts and in law interest U/s 2348, 234C was not chargeable. Levy of interest deserves to be quashed and cancelled being void, illegal and without jurisdiction.”
Briefly stated the facts of this case are : during the scrutiny proceedings, assessee put in appearance through Shri B.K. Kapur, CA who has filed written submissions, papers, documents etc.
Assessee is into the business of providing / arranging transportation, air-ticking & hotel bookings, domestic & international booking on commission basis and in addition thereto, assessee has also earned interest on capital and profit from the partnership firm, M/s. Manglam Banquets and also earned short- term capital gain. From the information received from AIR, it is noticed that the assessee has sold a property measuring 379.50 sq.meters of Block C being part and parcel of property known as “GAYEALEM” or “OLLEM BATH” or “BALBIALEM” situated at Dabolim, Distt. Mormugao, Goa for an amount of Rs.34,80,000/- at Goa which he has shown to have sold for Rs.16,00,000/- in February, 2009. Finding the explanation furnished by the assessee not tenable, the AO made an addition of Rs.16,80,000/- being the difference in the sale proceeds received by the assessee through his general attorney.
Assessee carried the matter before the ld. CIT (A) by challenging the assessment order who has dismissed the appeal.
Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Ld. AR for the assessee challenging the impugned order contended inter alia that the lower revenue authorities have erred in determining the sale consideration of Rs.34,80,000/- of the property in question as against the actual sale consideration of Rs.16,00,000/- received by the assessee; that assessee after executing the irrevocable General Power of Attorney dated 30.01.2009 has got no concern with the property in question but the attorney sold the same for Rs.34,80,000/-; that the AO has illegally added the commission income of the attorney as the assessee’s income by making addition of Rs.16,80,000/-. However, on the other hand, the ld. DR relied upon the order passed by the ld. CIT (A).
Undisputedly, assessee being owner of the property in question has transferred the same in favour of Track Vision and Planners Pvt. Ltd. through his attorney, namely, Samreen Shaikh, vide Power of Attorney dated 30.01.2009 for a sale consideration of Rs.34,80,000/- vide sale deed dated 26.03.2009; that assessee claimed to have sold property in question for a consideration of Rs.16,00,000/- to Shri Gaurish Pereira and has calculated the capital gain on the amount of Rs.16,00,000/-.
In the backdrop of the aforesaid facts and circumstances of the case, the sole question arises for determination in this case is:-
“as to whether the assessee has actually sold the property in question for Rs.16,00,000/- so as to compute the capital gain for a sale consideration of Rs.16,00,000/- as alleged?
AO as well as ld. CIT (A) have returned the concurrent findings on the basis of the fact that sale deed of the property in question executed by the assessee has not been produced before them during assessment proceedings as well as appellate proceedings; that the property in question was actually sold by the assessee through its attorney for a consideration of Rs.34,80,000/- as against the sale price of Rs.16,00,000/- claimed by the assessee and thereby made an addition of Rs.16,80,000/-.
In view of the undisputed facts and the totality of circumstances, we are of the considered view that there is no illegality or perversity in the findings returned by the ld. CIT (A) for the following reasons :-
(i) that during the course of arguments, the ld. AR vehemently contended that the assessee has sold the property in question for a sale consideration of Rs.16,00,000/- in favour of Shri Gaurish Pereira through his attorney, namely, Samreen Shaikh vide Power of Attorney dated 30.01.2009 and also by entering into an Agreement to Sell, however, the said Agreement to Sell has not seen the light of the day to prove the contention of the assessee; (ii) that no doubt, assessee being owner of the property in question can transfer the same by way of Agreement to Sell and by simultaneously executing the General Power of Attorney in favour by the vendee after receiving entire sale consideration but, in such a situation, the agreement is required to be reduced into writing, particularly when AR for the assessee has contended that possession of the property in question was delivered to the vendee at the time of execution of irrevocable Power of Attorney; (iii) that bare perusal of the sale deed of the property in question apparently goes to prove that the same was executed by the assessee through his attorney for a consideration of Rs.34,80,000/- and the sale deed bears no reference of alleged Agreement to Sell oral as well as written entered into between the parties; (iv) that the assessee to prove the fact that he has sold the property for a sale consideration of Rs.16,00,000/- relied upon statement of account maintained with ICICI Bank showing credit of Rs.16,00,000/- on 07.02.2009 whereas Power of Attorney in question was executed / attested on 02.02.2009 which is irreconcilable because nobody can be expected to wait for a period of one week to receive the sale consideration after transferring the property in question; (v) that when there is not an iota of evidence on record to prove the fact that as on date of execution of the Power of Attorney dated 02.02.2009, the assessee has received the entire sale consideration of the property in question to the tune of Rs.16,00,000/-, the property in question is proved to have been transferred by the assessee on 26.03.2009 for a consideration of Rs.34,80,000/- through his attorney; (vi) that assessee during the assessment proceedings before AO, appellate proceedings before the CIT (A) as well as during the appellate proceedings before the Tribunal has suppressed material documents viz.
Agreement to Sell, receipt for receiving the sale consideration on the date of execution of the sale deed and he has even suppressed the sale deed during the assessment as well as appellate proceedings before AO/CIT(A) just to evade the tax; (vii) that the assessee himself brought on record the assessment order passed by the AO in case of Shri Gaurish Pereira for the AY 2009-10, available at pages 50 to 56 of the paper book, wherein Shri Gaurish Pereira despite giving confirmation in favour of the assessee that he has paid the total sale consideration of Rs.16,00,000/- to the assessee, has opposed the reopening of assessment u/s 143 (3) read with section 147 on the ground that the profit of Rs.18,40,000/- has been made by Shri Raghav Chaudhary, assessee, as per sale deed dated 26.03.2009 and that the same cannot be illegally taxed in his hands. So, in the given circumstances, protective addition of Rs.18,40,000/- has been made in the hands of the assessee; (viii) that assessee as well as Shri Gaurish Pereira are in hands in glove to dupe the tax authorities by executing confirmation in each other’s favour on the one hand and then to deny the same before their respective assessing authorities just to evade their tax liability; (ix) that it is improbable that the assessee has appointed Samreen Shaikh as its attorney vide Power of Attorney dated 02.02.2009 without entering into any Agreement to Sell and without receiving sale consideration. It is also improbable that the market value of the property in question is increased more than 100% i.e. from Rs.16,00,000/- to Rs.34,80,000/- within a period of about one and half month; (x) that Shri Gaurish Pereira vide his confirmation letter dated 21.12.2011 intimated to the AO that Raghav Chaudhary, assessee, has filed a Civil Suit No.2115/2012 before Civil Judge, Senior Division, Ghaziabad, UP for recovery of the sale consideration and for declaring the sale deed in question dated 26.03.2012 as nullity. This fact further goes to prove that the assessee has also suppressed his plaint filed in the aforesaid civil suit vide which he has claimed the recovery of the sale consideration just to evade his tax liability; (xi) that the assessee has also relied upon one affidavit, available at pages 42 to 44 of the paper book, wherein he has categorically mentioned that he has sold the property in question for a sale consideration of Rs.16,00,000/- but, for the sake of repetition, it is reiterated that in the face of registered document i.e. sale deed dated 26.03.2009 executed by assessee through his attorney for a consideration of Rs.34,80,000/-, the affidavit dated 05.02.2004 is an after-thought and has no evidentiary value and as such cannot overweigh the sale deed in question.
(xii) that when the assessee himself has filed the civil suit for recovery of balance sale consideration of Rs.18,40,000/- in the Court of Civil Judge, Senior Division, Ghaziabad vide civil suit (supra) against Shri Gaurish Pereira, he has estopped by his own act and conduct from claiming that he has sold the property in question for a consideration of Rs.16,00,000/-;
In view of what has been discussed above, present appeal filed by the assessee is hereby dismissed.
Order pronounced in open court on this 26th day of July, 2016.