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TMI Blog2018 (11) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, the seized documents (SJ-I and SJ-III) point out that the property sold by the assessee to M/s. St. Antony's Timber Depot was for a total consideration of Rs. 99,90,000 instead of Rs. 18. 30 lakh disclosed in the sale deed. The A. O. sent proposal for calculating long term capital gains by adopting the sale consideration at Rs. 99,90,000 and allowing the benefit of indexed cost of acquisition and indexed cost of improvements if any. The assessee's director late Shri Jacob John denied having received any consideration more than Rs. 18. 30 lakh disclosed in the sale deed. According to the Assessing Officer, the seized documents, viz. , SJ-III and the statement of Shri Babu John recorded during the course of search u/s 132(4) clearly show the said property has been purchased by M/s. St. Antony's Timber Depot from the assessee for a total consideration of Rs. 99. 90 lakh, and therefore, long term capital gains was calculated by taking the sale value at Rs. 99. 90 lakh instead of 18. 30 lakh disclosed in the sale deed. 3. On further appeal, the CIT(A) confirmed the addition made by the Assessing Officer. The assessee preferred appeal to the ITAT. The ITAT delete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining SJ-III is question No. 15 and 17. In answer to question No. 15 and 17, there is no mention of Assessee's name anywhere. Even the extent of the land does not tally with the description in the sale deed. The burden of proving the actual consideration is not the documented value, but it is something above the documented value is on the Assessing Officer. The Assessing Officer ought to have conducted independent inquiry as regards value of the properly by referring same to the DVO. In the instant case, as mentioned earlier, heavy reliance has been placed by the Assessing Officer on the so called agreement for sale, viz; SJ-III. The seized material namely SJ-III is not an agreement for sale, but certain nothing of the purchaser without any signature and does not mention anywhere the name of the assesseecompany or its Directors. Even the noting of purchaser about property details he purchased does not tally with the description of the properly sold by the assessee. Nor the statement Under Section 132(4) of the Act recorded from the purchaser indicate that assessee was paid above sum of Rs. 99. 90 lakh. 6. 3 The Assessing Officer had framed the assessment mainly stating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) 269 ITR 371. 8. This proposition also finds support from proviso to rule 34A(3) of ITAT Rules, 1963 which prohibits even posting of miscellaneous application for hearing if it prima facie appears to be a petition for review. This proviso is as under: "Provided it shall not be necessary to post miscellaneous application for hearing if it prima facie appears to be petition for review. " 9. It has to be pointed out that a power which has not been specifically granted under a statute cannot be implied. Reference in this regard may also be made to section 114 of Civil Procedure Code which specifically empowers the Civil Courts to review their orders. This provision is as under: "114. Review - Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or; (c) by a decision on a reference from a court of Small Causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. " 10. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order in this regard reads as follows:- "10. Sale consideration of the land as per the document No. SJ-III, which is agreement for the sale of the property entered into by the assessee company and Shri Babu John on behalf of M/s. St. Antony's Timber Depot Chevoor, and seized from the residence of Sri. Babu John, Managing Partner of M/s. St. Antony's Timber Depot Chevoor, is @ Rs. 3,70,000/- per cent. Shri Babu John who purchased the property for the firm M/s. St. Antony's Timber Depot Chevoor, admitted the fact that the total payment made to the assessee company was Rs. 99,90,000/- for w27 cents of land. The above sale agreement was signed by Shri C. C. Jacob, Managing Director of the assessee company (seller) and Shri Babu John, Managing Partner of M/s. St. Antony's Timber Depot Chevoor (purchaser) and this being the facts of the case, as evidenced from the documents seized, the averments of the assessee company's Managing Director and Director that they had not received any amount other than what was shown in the sale deed i. e. Rs. 18,30,000/- cannot be accepted as genuine. Considering the proximity and market value of the location and the deposition of the purchaser, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh. In the statement recorded there is no mention about the details of property, namely survey number, nature of property and from whom the property has been purchased. The copy of the English translation of the statement recorded u/s 132(4) from Shri Babu John, who is the Managing Partner of M/s. St. Antony's Timber Depot, is placed on record. The question posed concerning SJ-I is question No. 11 and question posed pertaining SJ-III is question No. 15 and 17. In answer to question No. 15 and 17, there is no mention of assessee's name anywhere. Even the extent of the land does not tally with the description in the sale deed. The burden of proving the actual consideration is not the documented value, but it is something above the documented value is on the Assessing Officer. The Assessing Officer ought to have conducted independent inquiry as regards value of the property by referring same to the DVO. In the instant case, as mentioned earlier, heavy reliance has been placed by the Assessing Officer on the so called agreement for sale, viz. , SJ-III. The seized material namely SJ-III is not an agreement for sale, but certain noting of the purchaser without any signature and does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corroborative evidences / materials. Hence, we direct the Assessing Officer to adopt the sale consideration as disclosed in document No. 3424/07 dated 24. 04. 2008 viz. , Rs. 18. 30 lakh instead of Rs. 99. 90 lakh for the purpose of calculating long term capital gains. It is ordered accordingly. " 7. Now the Department states in the MA that in the hands of the purchaser, value of the impugned property adopted by the Department at Rs. 99. 90 lakh was upheld by the ITAT in its order dated 05. 04. 2013 in ITA No. 216/Coch/2012. At this point, we would like to clarify that one of us was party to the order of the Tribunal in ITA No. 192/Coch/2017 - order dated 19. 12. 2007. During the hearing of ITA No. 196/Coch/2016 it was specifically asked what was the fate of the assessment if any in the hands of the purchaser. To this question posed by the Bench, the learned Departmental Representative nor the AR was able to throw any light. Now coming to the order of the ITAT dated 05. 04. 2013 in ITA No. 216/Coch/2012 (order dated 05. 04. 2013), we find that the Tribunal had taken the purchase cost at Rs. 99. 90 lakh on admission made by the Managing Partner of the assessee in that case that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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