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2009 (3) TMI 614 - AT - Income TaxBest judgment assessment - Survey - Addition - unaccounted income/unexplained investment - It was pointed out that the past assessment has been completed without scrutiny, therefore, the assessee had no occasion in the past - there is no estoppel in law - the purchase of land was an individual affair of the members and therefore the issue of investment in the subjected land was considered in their respective hands, pointed out the learned Authorised Representative - there was no written agreement amongst the purchasers to form an AOP to purchase the lottery ticket for winning a prize - they made their intentions clear immediately after the result and demanded payment of their individual shares which was accepted and payments were made by deducting the income-tax at source from their respective shares of prize money - The purchasers of the lottery ticket did not form an AOP and the income from lottery was not liable to be assessed in the hands of such an association all the four persons, never intended to carry out a regular business of real estate, i.e. the purchase, sales and construction of apartments etc - It was only a spontaneous later development that keeping in view of the need of liquidity, they proceeded to construct some shops and offices - It was at the best a case of co-ownership and not more than that - In the case of Saroj Kumar Mazumdar vs. CIT, the Hon'ble Supreme Court held that in the absence of any evidence to support the inference that the isolated transaction constituted an adventure in the nature of trade, it should be regarded as on capital account - Appeal is allowed Regarding unaccounted income - the difference between declared consideration and stamp valuation of Rs. 4,82,355 - assessee in the present case is purchaser and not the seller in which case provisions of s. 50C are applicable for the purpose of computation of capital gain under s. 48 of the Act - it appears that the AO and the learned CIT(A) have not appreciated the material facts that all the purchasers are income-tax assesses being in the services of the State Government for last several years and in some cases the spouse is also in services, it should not have been difficult for them to have invested Rs. 5 lacs, when individual share, if assumed, comes below Rs. 1.25 lacs each - Appel is allowed
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