M. BASHEER AHAMED Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) Being aggrieved by dismissal of his appeal in I.T.A.No.101 of 2009 (30.10.2009), assessee has preferred this appeal. The Tax Case (Appeal) was admitted on the following substantial question of law:-

(2.) The assessee was the owner of a vacant plot measuring 4800 sq. ft. in Old R.S.No.466, New R.S.No.396/1A at Letchathoppu village, Thanjavur Taluk, Thanjavur District. The assessee sold the said property under sale deed dated 21.08.2000 for a sum of Rs.2,33,760/- to A.Helan and M.Meena, who were both partners of M/s.Marble World, a partnership firm at Thanjavur.

(3.) There was a survey in the premises of M/s.Marble Word. During the course of survey, a copy of sale agreement executed on 09.09.1999 between Asiya Basheer, wife of the assessee and the above said two purchasers (A.Helan and M.Meena) were seized. In the said agreement, Asiya Basheer, wife of assessee had agreed to sell her husband's vacant plot to the said purchasers for a sale consideration of Rs.6,48,000/- at the rate of Rs.135/- per sq. ft. As per the said agreement, the purchasers were paid an advance of Rs.1,50,000/- to Asiya Basheer on the date of agreement. On the other hand, the registered sale deed dated 21.08.2000 showed the consideration as Rs.2,33,760/-. Notice under Section 148 of Income Tax Act was issued to the assessee on 09.09.2004. In response to which, assessee had returned a total income of Rs.40,393/- comprising of property income, business income and income from other sources. Agricultural income of Rs.6,000/- was also disclosed. The capital gains on sale of property was not disclosed. Therefore, assessee was asked to produce Books of Account, Bank Accounts etc. In response to the same, the assessee filed a revised return showing capital gains at Rs.59,193/-. Assessee was asked to explain the difference in the sale consideration in the two documents viz., sale agreement and sale deed. The assessee submitted an application under Section 144A of the Act to the Additional Commissioner of Income Tax. The Additional Commissioner of Income Tax noted that the assessment in the case of purchaser had been completed as per the income returned by her which represented her share by purchase of property at Rs.6,48,000/- and hence, the objection of the assessee was rejected. The Assessing Officer completed the assessment under Section 143(3) on 28.03.2006 adopting the sale consideration at Rs.6,48,000/- as per the sale agreement dated 09.09.1999 and thereby adopting the long term capital gains at Rs.5,13,826/-. The Assessing Officer found that the said sale consideration was adopted as considered in the case of purchaser.