TMI Blog2020 (1) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. The affidavit is also filed contending that the entire sale transaction of sale of 25 cents of land to husband was sham transaction. These documents including additional evidences filed before tribunal including fresh contentions made by assessee before tribunal for the first time , need verification by authorities as these are fact finding exercise which requires investigation of facts to unravel truth Assessee deserves one more opportunity and the matter need to be remitted back to the file of the AO for fresh framing of assessment denovo after considering all the explanations/evidences filed by the assessee in its defense including customary law applicable to assessee and her husband which has attained force of law and is not in conflict with specific provisions of 1961 Act and investigation of facts. We clarify that it is the assessee who is contending that sale transaction executed by her through registered sale deed in favour of her husband is a sham transaction , and thus the onus is on the assessee to prove that it was a sham transaction and it is for the assessee to rebut the presumption that transfer was complete when registered sale deed was executed by as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the parties had jointly executed a document annulling the sale. 6. The Commissioner of Income Tax (Appeals) failed to appreciate that a document must be interpreted taking in to consideration the whole set of facts surrounding the transaction. 7. The Commissioner of Income Tax (Appeals) ought to have appreciated that the alternate contention that the transaction is not a sale but only a gift. 8. In any event the order of Commissioner of Income Tax (Appeals) is highly unjust and acts as a great hardship on the appellant. 9. The appellant craves leave for raising further grounds at the time of hearing. 3. The brief facts of the case are that assessee is in business of running cinema theatre. The only effective ground raised by assessee in this appeal with tribunal is with respect to chargeability to tax of long term capital gains earned by assessee on sale of land to her husband , which was not disclosed by assessee in return of income filed with Revenue. The assessee was owner of 1.445 acres of land which was purchased by assessee on 18.11.1998 from one Mr. A Irudayam Antony situated at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and thus the matter rested at peace there it self with the action of the AO in bringing to tax long term capital gains earned by assessee on the sale of this land while framing assessment u/s 143(3) of the 1961 Act. 3.3 The AO further observed that Government has compulsorily acquired 40.5 cents of land for ₹ 1,01,455/- and long term capital gains arising on this transaction was also not offered to tax by assessee which led AO to bring to tax long term capital gains earned by assessee to tax to the tune of ₹ 10,378/- . The AO however did not invoke provisions of Section 50C of the 1961 Act while bringing to tax long term capital gains on compulsory acquisition of land by Government . This matter also rested at peace as the assessee did not raise any dispute at higher appellate levels. The AO framed assessment vide assessment order dated 28.12.2010 passed by AO u/s 143(3) of the 1961 Act. 3.4 The assessee being aggrieved by an assessment framed by the AO filed first appeal with learned CIT(A) and the dispute raised by assessee before learned CIT(A) was only with respect to transaction of transfer of 25 cents of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee in favour of assessee. It was submitted that admittedly registered sale deed was executed by assessee(wife) in favour of her husband. It was submitted that Section 50C was invoked by AO which is not a subject matter of challenge. The only contention raised is that this sale deed executed by assessee in favour of her husband was merely a sham transaction and said balance consideration of ₹ 28 lacs which was to be discharged by husband by way of execution of pronote in favour of the assessee was never realized by assessee . Further, it is claimed that the said amount of part consideration of ₹ 5,43,000/- received at the time of said sale was also repaid by assessee to her husband through banking channel . The assessee has placed on record copy of affidavit dated 18th December 2010 to contend that this sale was a sham transaction . The copy of bank statement of Tamilnad Mercantile Bank Limited , Branch Tiruchirapalli bearing bank account number 09100050053204 in the name of assessee is also enclosed, to contend that an amount of ₹ 5,43,000/- so received on 03.04.2007 from husband of the assessee was refunded on 02.05.2007 to husband . The copy of Vardhama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. These documents are placed in file. Even for documents filed in paper book, no proper certification is made as to which of these documents were filed before AO and/or learned CIT(A). Some of the documents are even executed post appellate order passed by learned CIT(A) and are in the form of additional evidences filed for the first time before tribunal. The Ld.Counsel for the assessee has pleaded that sale was only entered into with an object to reflect market value of the property for claiming compensation from government as the said land was under acquisition by Trichy Corporation for setting up of integrated Bus Stand. It is prayed by learned counsel for the assessee itself that in view of peculiar factual matrix of the case and in order that evidences be verified by authorities below , the matter may be restored to the file of the AO for fresh denovo assessment on merit in accordance with law. The Ld.DR, on the other hand, submitted that registered sale deed was duly executed and property was absolutely conveyed in favour of the buyer and possession of property also handed over, the transfer is complete u/s.2(47) of the 1961 Act even if part consideration was received by asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, Branch Tiruchirapalli bearing bank account number 09100050053204 in the name of assessee, to contend that an amount of ₹ 5,43,000/- so received on 03.04.2007 from husband of the assessee was refunded on 02.05.2007 to husband is also enclosed by assessee which is placed in file. Thus, contentions are made that this entire sale transaction of 25 cents of land to her husband was a sham transaction and the objective being to bring on record market value of the said land in order to get compensation from Government against acquisition of her land by Trichy Corporation for setting up integrated bus stand. The evidences to the effect that her land was under acquisition by Government is placed on record. It is also brought on record that she participated in proceedings before authorities for determination of compensation against acquired land. The assessee s land to the tune of 40.5 cents of land was compulsorily acquired by Government at a compensation of ₹ 1,01,455/- awarded by Government. The AO had brought to tax the capital gains arising on such compulsory acquisition of land by Government. The newspaper clipping , judgment by District Collector, Tricchirappalli is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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