TMI Blog2014 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... roved otherwise by giving some evidence to show the market value of the land in the locality. No such evidence is adduced by the assessee - the revenue has to prove the existence of a fact that undervaluation was made by the assessee and that the assessee has paid more amounts for purchase of property amounting to ₹ 54,20,000 - When that fact is proved, the burden shifts to the assessee to prove otherwise - even in the absence of any other material produced by the revenue, the uncontroverted evidence of Mr. Noushad was in favour of coming to a finding that the assessee has not declared the actual investment made for acquiring the building – thus, the order of the CIT(A) set aside – Decided in favour of Revenue. - ITA. No. 201 of 2011 - - - Dated:- 20-3-2014 - CJ Dr. Manjula Chellur And A. M. Shaffique,JJ. For the Petitioner : Sri. P. Balakrishnan JUDGMENT Shaffique, J. This appeal is filed by the Revenue against the order passed by the Income-tax Appellate Tribunal, Cochin Bench in ITA No. 267/Coch/2009 with reference to the assessment year 2006-2007. 2. The facts involved in the above case would disclose that the assessee, owner of a shopping comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and considering the distinguishing features, i. the Tribunal is right in law and fact in relying on the decisions of the Hon'ble Supreme Court in Varghese (131 ITR 597) and Kalyanasundaram (204 ITR 49)? ii. should not the Tribunal have relied on the decision of the Hon'ble Kerala High Court reported in 220 CTR 166. 4. Heard learned standing counsel appearing for the Department and the learned counsel appearing for the assessee. 5. It is the main argument of the appellant that the judgment of the Supreme Court in K.P. Varghese's case (supra) has no application to the facts and circumstances involved in the case. 6. In K.P. Varghese's case, the issue involved was whether understatement of consideration in transfer of property is a necessary condition for attracting the applicability of sub-section (2) of Section 52 of the Income- tax Act, 1961. Sub -section (2) indicated that if in the opinion of the Income-tax Officer, fair and market value of a capital asset transferred by an assessee as on the date of transfer exceeds the full value of the consideration declared by the assessee in respect of transfer of such capital asset by an amount of not le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce mentioned by him in the statement. The first appellate authority observed that the Assessing Officer had made the assessment only on the deposition of Mr. Noushad and other circumstantial evidence gathered by him. The statement of payments annexed to the deposition made by Mr. Noushad shows only cash withdrawals from his bank account and in no way it has been correlated to Mrs. Mariamma. There is no acknowledgement by Mrs. Mariamma in regard to the fact that she had received Rs.66,20,000/-. In the absence of any evidence linking the payments stated to be paid by the appellant, merely based on the statement of Mr. Noushad, it cannot be stated that the assessee has received additional consideration. It is found that when it is the duty of the revenue to prove beyond doubt that additional consideration has exchanged hands, in the absence of any material and evidence, such a decision cannot be taken on mere assumption or probabilities. Hence, it was found that the assessing officer has failed to establish that additional consideration has been paid by the assessee. 9. The Tribunal confirmed the opinion that the decision of the Supreme Court squarely applies to the facts of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,82,00,000/- . (2) This is further confirmed by an affidavit dated 6.11.2008 of Mr. Noushad, indicating that he had purchased the property for Rs. 66,20,000/- and sold the property for Rs. 78,20,000/-. (3) When the assessee requested for cross examination and Mr. Noushad was summoned and sworn statement was recorded on 10.2.2008, he stated the details about the purchase of property from Smt. Mariamma Kurian for Rs. 66.20,000/- and sold the property in favour of the assessee for Rs. 78,20,000/- and the fact that a lesser amount was shown in the sale deed. (4) During cross examination, he denied the suggestions made by the assessee and there is nothing to indicate that Mr. Noushad has given a false statement. (5) Mr. Noushad has declared the income from sale of property and has paid tax. When these materials are available, can it be said that the revenue has not proved their case? We are of the view that the oral evidence, which is supported by Section 132(4) statement and the affidavit of Mr. Noushad, which is uncontroverted even during cross examination, can be treated as sufficient evidence to show that the property has been sold for Rs. 78,20,000/-. The first appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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