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2019 (2) TMI 1924 - AT - Income TaxAddition on account of accommodation entry - information received from the Director General of Income Tax (Investigation), Mumbai intimating that the assessee company is one of the beneficiaries in the accommodation entry operation carried out by Shri Praveen Jain in Mumbai - HELD THAT:- Assessee is engaged in the construction of multi storage building. In the usual course of business, the assessee was receiving the advances for flats. The advance from M/s. Josh Trading Co. Pvt. Ltd. was also received in the usual course. The assessee has given the address, PAN number and confirmation of the parties. The advance was received through banking channel - when the deal did not materialize, the advance was returned also by banking channel. All these facts are not disputed by the Revenue. A.O. has not made any enquiry himself to rebut the submission of the assessee. It is not the case that the address given by M/s. Josh Trading Co. Pvt. Ltd. is bogus or that the A.O. has made an enquiry and the said M/s. Josh Trading Co. Pvt. Ltd. has not responded. In these circumstances, in our considered opinion, the assessee has discharged the onus cast upon him. The A.O. has not brought on record any cogent material for the proposition that the advance received was bogus. It is settled law that the addition based upon surmise and conjecture de hors any enquiry whatsoever is not sustainable. Hence, in our considered opinion, there is no infirmity in the order of the ld. CIT(A). Accordingly, we uphold the same. Addition on account of long term capital gain - CIT(A) deleted the addition - HELD THAT:- The assessee had sold Tenement situated at Mumbai to the purchaser and also right of piece or parcel of tit-bit plot adjacent to the said tenement to the same purchaser. The tenement and the land were sold through two agreements. This was because there were some disputes with the purchaser. The agreement of the lease deed shows that as per the terms of the lease agreement, the lease tit-bit land is to be held by the leaseee only along with the tenement and not separately. In the case of transfer of tenement, the tit-bit area will automatically get transferred. The above makes it abundantly clear that the tit-bit land was to be sold along with the tenement and it was only due to some dispute that the agreement for the tit-bit land was entered later on. The A.O. has found difference in the stamp valuation of the tit-bit land at the time of registration. The assessee has received the entire consideration in July 2011. The stamp valuation of tit bit land as on 31.03.2012 was ₹ 1,49,44,020/-. Hence, if both the agreements are considered in cohesive manner, it will be found that the total stamp duty valuation comes to ₹ 1,37,37,500/- and ₹ 1,49,44,020/- as compared to the sale consideration received by the assessee totaling to ₹ 2,20,000/- + ₹ 80,000/-. If this is considered, the sale value received is higher than the combined stamp duty value of the property. On this account, the ld. CIT(A) is correct in deciding the issue in favour of the assessee. Applicability of section 50C - A.O. has invoked the provision of section 50C in the context of tit-bit leasehold land. It is admitted that it is a lease hold land and it has been held by the ITAT, Mumbai Bench in the case of Atul G Puranik [2011 (5) TMI 576 - ITAT, MUMBAI] that section 50C cannot be invoked on transfer of lease hold rights. Since there is no dispute that the impugned tit bit land was under lease, this decision fully applies and the application of section 50C in this case by the A.O. is not justified.
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