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TMI Blog2008 (3) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... g long-term capital gains and the contest against quantum assessment, were not gone into by the first appellate authority, we set aside the order of the Tribunal and that of the first appellate authority and remand the matter to Commissioner of Income-tax (Appeals) for rehearing and for decision afresh on other issues in the appeal. We make it clear that the assessee will be entitled to apply for waiver of interest under sections 234B and 234C, etc. Appeal allowed. - I.T.A. No. 41 OF 2003 - - - Dated:- 28-3-2008 - C.N. RAMACHANDRAN NAIR AND T.R. RAMACHANDRAN NAIR, JJ. For the Appellant : P.K.R. Menon and George K. George. For the Respondent : N. Sukumaran, S. Shyam and Bobbymathew Koothattukulam. JUDGMENT:- C.N. Rama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Satyabalan gave statement to the department under section 132(4) of the Income-tax Act about the additional price paid by him for the land and building over the price declared in the document, and he even returned the income as income from other source and paid tax thereon, he still chose to retract from the statement given to the department and stated that sale price given for purchase of hospital complex with land from the respondent was only the value actually declared in the sale document. Even though the Assessing Officer rejected the denial made by the purchaser in the course of cross-examination and made assessment for capital gains based on the statement given by the purchaser under section 132(4) of the Act and subsequent paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this very important aspect, that is, returning of Rs. 41 lakhs and payment of tax thereon by the purchaser consistent with the statement given by him to the department under section 132(4) of the Act. We do not think the subsequent statement given by the purchaser, namely, Satyabalan in cross-examination, contrary to his earlier statement to the department under section 132(4) and follow up action by him, can save the respondent-assessee. In fact, the statement given under section 132(4) stands reconfirmed when the declarant offers very same income and pays tax thereon. In fact the incidence of tax on the undisclosed sale consideration is much higher on the purchaser than on the respondent-assessee because respondent is called upon to pay t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. Moreover in the valuation report obtained by the department later, the valuer has stated about five storied building with a lift constructed by the respondent during 1989. We are of the view that the first statement given by the purchaser under section 132(4) in the course of search gets strengthened and stands proved by the subsequent conduct in declaring additional income for assessment and in paying tax thereon. Even though senior counsel for the respondent-assessee argued that the amount declared by the purchaser may represent either investment or expenditure, we find from the records that he has clearly stated that Rs. 41 lakhs offered by him is additional consideration paid by him for the property purchased from respondent-ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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