Commissioner Of Income Tax,Coimbatore v. Mr.john Ettimootil Samuel

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.08.2021 CORAM The Honourable Mr.Justice T.S.SIVAGNANAMandThe Honourable Mr.Justice SATHI KUMAR SUKUMARA KURUP T.C.A.No.497 of 2013 Commissioner of Income Tax,Coimbatore. ...Appellant -vs- Mr.John Ettimootil Samuel,202, Rathna Mount Enclave,Race Course Road,Coimbatore-641 018.PAN: ALMPS6292b ...Respondent Appeal under Section 260A of the Income Tax Act, 1961against the order dated 26.11.2012 made in I.T.A.No.1703(Mds)/2012 on the file of the Income Tax Appellate Tribunal 'D' Bench,Chennai for the assessment year 2005-06. This Appeal filed against order of The Income Tax AppellateTribunal Madras 'D' Bench in ITA No.1703/MDS/2012 dated26/11/2012 for the Assessment year 2005-2006 against TheCommissioner of Income Tax (Appeals)-1, Coimbatore, AppealNo.143/11-12, dated 01/06/2012 for the Assessment year 2005-2006. PAN No.ALMP6292B against Income Tax Office Ward-III(1),Coimbatore. PAN No. for the Assessment year 2005-2006. For Respondent :No appearance JUDGMENT (Delivered by T.S.Sivagnanam, J.) This appeal, by the appellant/Revenue, filed under Section260A of the Income Tax Act, 1961 (hereinafter referred to as https://hcservices.ecourts.gov.in/hcservices/ “the Act”), is directed against the order dated 26.11.2012 madein I.T.A.No.1703(Mds)/2012 on the file of the Income TaxAppellate Tribunal 'D' Bench, Chennai (for brevity “theTribunal”) for the assessment year 2005-06. 2.The appeal was admitted on 29.08.2013, on the followingsubstantial questions of law:- “1.Whether under the facts and circumstancesof the case, the Income Tax Appellate Tribunalwas right in setting aside the assessment madeunder Section 147? and 2.Whether under the facts and circumstancesof the case, the Income Tax Appellate Tribunalwas right in holding that there was no failure onthe part of the assessee to disclose fully andtruly the details and particulars necessary forcompleting the assessment under Section 143(3)?” 3.Heard Ms.K.G.Usha Rani, learned Standing Counsel for theappellant/Revenue. 4.Though the respondent/assessee has been served and hisname is printed in the cause list, none appears for the assessee. 5.The assessment for the year under consideration, viz.,2005-06 was completed by order dated 28.12.2007, under Section143(3) of the Act. The assessment was subsequently reopenedunder Section 147 and notice under Section 148 of the Act wasissued. The Assessing Officer stated that for the subjectassessment year, long term capital gain of Rs.1,62,74,689/- wascomputed by taking sale consideration of Rs.1,74,00,000/- andfrom the copy of the Sale Deed, it is seen that the RegisteringAuthority has charged compounding fee on the document ofRs.89,000/- under Section 70(2) of the Indian Stamp Act, whichis inclusive of 8% stamp duty and 1% registration fee.Therefore, the sale consideration to be adopted, as per Section50C of the Act for computation of capital gain, should beRs.1,83,89,000/- and the increase of capital gain ofRs.9,89,000/- should accordingly be brought to tax. 6.The assessee submitted their explanation dated 08.11.2011,explaining that the said amount is not a determination of themarket value under Section 47A of the Indian Stamp Act, but itis only compounding fee levied under Section 70(2) of the IndianStamp Act. This compounding fee has been levied for not 6.The assessee submitted their explanation dated 08.11.2011,explaining that the said amount is not a determination of themarket value under Section 47A of the Indian Stamp Act, but itis only compounding fee levied under Section 70(2) of the IndianStamp Act. This compounding fee has been levied for not mentioning the correct built-up area of the existing structurein the document, upon inspection of the property and not becauseof under-valuation of the property transferred even after takingthe correct built-up area. The Assessing Officer did not agreewith the assessee and held that the compounding fee is inclusiveof 8% stamp duty and 1% registration fee and therefore, it isclear that it pertains to the value of the property and theamount of Rs.1,83,84,367/- deemed to be the full value ofconsideration under Section 50C of the Act and accordingly,completed the assessment vide order dated 30.11.2011. 7.The assessee, being aggrieved, filed appeal before theCommissioner of Income Tax (Appeals)-I, Coimbatore (for brevity“the CIT(A)”), which was dismissed by order dated 01.06.2012.Before the CIT(A), the assessee questioned the reopening of theassessment, after a period of four years without any tangiblematerial to establish that the assessee failed to disclose fullyand truly all facts. The assessee contended that all thedocuments with regard to the payment of stamp duty andadditional stamp duty have been disclosed before the AssessingOfficer and the copy of the Sale Deed has been filed and thedispute with regard to the sale consideration is not open forrevision. Furthermore, the assessee contended that the orderpassed under Section 147 is bad in law, since the matter was notreferred for valuation in terms of Section 50C(2) of the Act.The CIT(A), did not agree with the assessee and dismissed theappeal by order dated 01.06.2012. Aggrieved by the same, theassessee preferred appeal before the Tribunal. 8.The Tribunal, in our view, rightly took note of the factthat the reopening of the assessment was after years and therewas no tangible material to establish that the assessee failedto disclose fully and truly all materials, which are requiredfor the assessment at the first instance. Furthermore, theTribunal took note of the fact that the assessee has furnishedall necessary details required for completing the assessmentincluding the photostat copies of the Sale Deed. Further, theTribunal observed that the original Sale Deed will always bewith the buyer of the property and the assessee will have only acertified copy and the Assessing Officer did not insist uponproduction of the original Sale Deed while completing theassessment under Section 143(3) of the Act. Therefore, it washeld that there was no case for reopening the assessment. 9.In our considered view, the Tribunal was fully justifiedin holding that the reopening of the assessment could not havebeen made in the facts and circumstances of the case and we find no question of law, much less substantial question of lawarising for consideration in this appeal. Accordingly, the appeal stands dismissed. No costs. Sd/- Assistant Registrar //True Copy// Sub Assistant RegistrarabrTo1. The Income Tax Appellate Tribunal 'D' Bench, Chennai.2. The Commissioner of Income Tax(Appeals)-1, Coimbatore.3. The Income Tax Officer Ward-III(3), Coimbatore.+1cc to M/s.T.R.Senthilkumar, Advocate, Sr.37919T.C.A.No.497 of 2013VSN-II[co]NSK 25/08/2021