THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
I.T.T.A. Nos.633 & 634 of 2014
DATED:29.10.2014
I.T.T.A. No. 633 of 2014
Between: Nikhil Surana, Secunderabad.
… Appellant And The Deputy Commissioner of Income Tax, Hyderabad.
….Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
I.T.T.A. Nos.633 & 634 of 2014
Common Judgment : (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)
These appeals are sought to be preferred against the common judgment and order of the learned Tribunal dated 21.2.2014 in relation to assessment order 2009-10 on the following suggested questions of law:
1. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal was correct in sustaining the inclusion of Rs.7,09,750/- allegedly paid to the appellant as sale consideration by the purchaser viz. Sainath Estates Pvt. Ltd., over and above the sale consideration declared by the appellant for the sale of his immovable property comprising of land with industrial sheds when the said payment is not supported by any receipts signed by the appellant or documentary evidence in support of payment and the payment was denied by the appellant.
2. Whether on the facts and in the circumstances of the case the finding of the learned Income Tax Appellate Tribunal that the said amount of Rs.7,09,750/- forming part of sum of Rs.1,60,00,000/- was received by the appellant towards sale consideration is arbitrary, unreasonable supported by no evidence and/or perverse ?
3. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal is correct in remitting the matter relating to the valuation of the property as on 1.4.81 to the file of assessing officer when the said valuation is covered by the registered valuer’s certificate dated 1.12.2010 and there is no material on record to doubt or to reject the above valuation made by the Registered Valuer.
4. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal was correct in sustaining the inclusion of Rs.1,52,90,250/- allegedly paid to the appellant as sale consideration by the purchaser viz., Sainath Estates Pvt. Ltd., over and above the sale consideration declared by the appellant for the sale of his immovable property comprising of land with industrial sheds when the said payment is not supported by any receipts signed by the appellant or documentary evidence in support of payment and the payment was denied by the appellant ?
5. Whether on the facts and in the circumstances of the case, the finding of the learned Income Tax Appellate Tribunal that the said amount of Rs.1,52,90,250/- forming part of sum of Rs.1,60,00,000/- was received by the appellant towards sale consideration is arbitrary, unreasonable supported by no evidence and/or perverse ?
6. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal is correct in remitting the matter relating to the valuation of the property as on 1.4.81 to the file of assessing officer when the said valuation is covered by the registered valuer’s certificate dated 1.12.2010 and there is no material on record to doubt or to reject the above valuation made by the Registered Valuer ?
7. Whether on the facts and in the circumstances of the case, the appellant is entitled to claim deduction under Section 54-F in respect of all the nine residential flats which were acquired by him while computing the capital gain on the sale of the above property ?
8. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal is justified in restricting the deduction under Section 54-F to only residential flat out of the 9 flats acquired, ignoring several decisions of the High Court including the jurisdictional High court which held that the deduction should be given for all residential flats acquired and not restricted to merely one residential flat alone ?
9. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal is justified in not admitting the additional grounds relating to deduction under Section 54F in respect of all the nine residential flats acquired by the appellant when the relevant facts are all available notwithstanding the decisions of the Hon’ble Supreme Court in Jute Corporation of India Ltd., vs. CIT(reported in 187 ITR 688) and in NTPC vs. CIT (reported in 229 ITR 383) permitting the assessee to raise a new ground before the learned Income Tax Appellate Tribunal not raised earlier ?
It appears from the aforesaid suggested questions of law that the specific grievance is in relation to the inclusion of more amount with consideration for sale of the immovable property comprising of land and industrial sheds and valuation of the property, secondly not having given any deduction fully under Section 54-F of the Income Tax Act, 1961 (for short ‘the Act’) out of the said consideration.
We have heard Mr. Y. Ratnakar, learned Senior Counsel and have gone through the impugned judgment and order of the learned Tribunal.
As far as the first issue relating to inclusion of sale consideration is concerned, we notice from the findings in the judgment of the learned Tribunal that initially the assesee denied having received any cash payment on account of consideration of sale of the aforesaid immovable property. However, when some signed and unsigned vouchers regarding receipt of payment were confronted and the entries recorded in the books of accounts of the payee were produced and confronted, the assessee was compelled to admit that some cash payment was received on account of consideration. The Assessing Officer also summoned the payee and pursuant thereto books of accounts were also produced. After analyzing the material on record and disbelieving the statement of the assessee, the Tribunal came to the conclusion factually that a sum of Rs. 16.20 crores was received. It is absolutely appreciation of fact and based on certain materials, this Court cannot re-appreciate in the absence of the element of perversity, the evidence and factual issue.
On the question of benefit under Section 54-F is concerned, the learned Tribunal found that for the first time, this ground was sought to be agitated before the Tribunal and this Court. It is primarily relatable to fact. When it is not question of law based on fact on record at the appellate stage in Tribunal, it cannot be entertained. Following the decision of the Supreme Court in National Thermal Power Company vs. Commissioner of Income Tax, the learned Tribunal held that in such situation, additional grounds which were not raised before the authority below should not be allowed to be raised in the appeal. We, therefore, do not find any error or infirmity in the judgment and order of the learned Tribunal.
With reference to the judgment of the Supreme Court relied on by the learned Tribunal in the case of National Thermal Power Company, wherein it is observed by the Apex Court as follows:
“Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee.”
It appears, the learned Tribunal found that this factual aspect was never raised before the Tribunal. Our reading of the Supreme Court judgment is that the learned Tribunal can allow to raise question before the Tribunal for the first time provided it is backed by factual materials, which have been brought before the authorities below, not otherwise. So, we think the learned Tribunal has taken correct course of action in allowing to raise this question. We therefore, find no element of law involved in the appeals.
The appeals are accordingly dismissed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 29th October, 2014 Pnb