Ita/732/2009 Of The Commissioner Of Income Tax v. M/S.domicile Developers

IN THER HIGH COURT OF KARNATAKA AT BENGALURUDated this the 6[th]day ofMarch, 2015 | Present THE HON’BLE MR JUSTICE VINEET SARAN| aa THE HON’BLE MRSJUSTICE S SUJATHA | Income Tax Appeal 732 /2009 Between 1Commissioner of _Income Tax Central Circle, C R Building Queens Road, Bangalore o)Deputy Commr. Of Income Tax Central Circle — 2(2) C R Building, Queens Road Bangalore Appellants| (By Sri KV Aravind, Adv.) And| M/s Domicile Developers# 965, LA Main, I CrossKoramangala, Bangalore Respondent (By Sri Shankar, Adv.) Appeal is filed under S.2600A of the Income Tax Act, 1961praying to set aside the order dated 26.6.2009 by the [TAT, Bangalore|in Appeal 66/Bangalore/2008 confirming the order of the Appellate 2 Commissioner and confirm the order of the Deputy Commr. Of.Income Tax, Bangalore. Appeal coming on for hearing this day,|Vineet Saran ]>)deltvered the following: JUDGMENT This appeal has been filed by the Revenue against thejudement of the Income Tax Appellate Tribunal whereby an amount|of Rs.2,83,01,868/- though accepted by the Tribunal as well as theCommissioner of Income Tax (Appeals) as the amount which was.received by Mr Chotu Sab and his family members for purchase of 3.actes 7 guntas land, but the whole of it has not been accepted to havebeen paid by the assessee. | The dispute in the present appeal is with regard to an amount|of Rs.1,56,01,868/- which according to the Revenue, has not beenpaid by the assessee to the sellers, Mr Chotu Sab and his family)members. According to the appellants, only an amount of Rs.1.27)crores has been paid to the sellers and not the whole amount of.Rs.2.83 crores and odd which is claimed to have been paid by the) assessee - respondent. 3 The appeal was admitted by order dated 15.6.2010 on the following two questions of law:: Whether the appellate authorities were correct in holding|that the sum ofRs.2,83,01,868/- reflected in theprofit and|loss account and the books of accounts of the assessee aspayment made to Mr Chotu Sab and his relatives forpurchase of land should be accepted in its entirety eventhough the finding are based on mere conjuncture andsurmises when proof of Rs.1,27,00,000/- only was shown|and the balance Rs.1,56,01,868/- had not been proved bythe assessee by adducing any cogent evidence and consequentlyrecorded aperversefinaing. Whether the appellate authorities were correct in holding|that the burden of demonstrating that a sum ofRs.7,56,01,8568/- and not been paid had to be establishedby the revenue by adducing cogent evidence, We have heard Sri K V Aravind, learned counsel for the)appellants as well as sri A Shankar, learned counsel for the)respondent and perused the record. 4 The submission of the learned counsel for the appellants is.that, only an amount of Rs.1.27 crores was paid by the assessee -|respondent to the sellers and putting the burden on the Departmentto show that further amount of Rs.1.56 crores and odd had not beenpaid by the assessee would be against the established principles as it is.for the assessee to prove that the amount had been paid and it is not.for the Department to do so. Stt Shankar, learned counsel for the respondent has, on the|other hand, submitted that 1n the account books of the assessee the|payment of Rs.2.83 crores and odd is reflected for which evidencewas adduced before the authorities below. It has also been submitted|that the Department has assessed the sellers Mr Chotu Sab and his.family members on the amount of Rs.2.83 crores and odd and the)matter relating to the liability of payment of tax on the said amount.by the sellers, as to whether the same had been paid to thepartnership firm said to have been constituted by the sellers or to theindividual family members of Mr Chotu Sab, was considered by this)Court in ITA 82-83/2011 and other connected matters in which byjudgment and order dated 20.7.2011, this Court has accepted that the Stt Shankar, learned counsel for the respondent has, on the|other hand, submitted that 1n the account books of the assessee the|payment of Rs.2.83 crores and odd is reflected for which evidencewas adduced before the authorities below. It has also been submitted|that the Department has assessed the sellers Mr Chotu Sab and his.family members on the amount of Rs.2.83 crores and odd and the)matter relating to the liability of payment of tax on the said amount.by the sellers, as to whether the same had been paid to thepartnership firm said to have been constituted by the sellers or to theindividual family members of Mr Chotu Sab, was considered by this)Court in ITA 82-83/2011 and other connected matters in which byjudgment and order dated 20.7.2011, this Court has accepted that the sellers Mr Chotu Sab and his family members recetved the said)amount of Rs.2.83 crores and odd on which the tax liability was to beassessed as capital gains. It has also been submitted that the specialleave petition challenging the judgment of this Court in the aforesaidcase of Mr Chotu Sab and his family members has already been)dismissed by the Apex Court on 9.7.2013. The said position thatprotective assessment against Mr Chotu Sab and his family members|for an amount of Rs.2.83 crores and odd was made is not disputed bythe learned counsel for the appellants. In view of the fact that the Department itself has accepted thepayment of Rs.2.83 crores and odd to the sellers Mr Chotu Sab and}his family members and assessed them on the said amount for)payment of capital gains, the contention of the learned counsel forthe appellants that the burden of proof of payment by the respondent- assessee should not be shifted on the Revenue, is not worthy ofacceptance. Ihe respondent has claimed that he made the paymentof the said amount to Mr Chotu Sab and his family members which|has also been accepted by the Revenue in the returns filed by Mr)Chotu Sab and his family members. Once the same has been done,| the Department cannot turn around and claim that the respondent assessee should prove to have made such payment of Rs.2.83 crores| and odd for purchase of the said land. In view of the aforesaid, we do not find there arises any|substantial question of law to be decided by this Court. Accordingly, appeal is dismissed. Sd/-JudgeSd/- |JudgeAn