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2016 (5) TMI 806 - AT - Income TaxCapital gain liability - assessee charged commission from the original owners for executing sale deeds as GPA holder - Held that:- The character of transaction would not change even if commission charged or not. Considering the above facts, it is clear that when revenue has accepted contention of the assessee in subsequent assessment year 2008-09 that assessee acted as GPA holder only and no capital gain is chargeable in his hands, therefore, on identical facts, revenue cannot direct to charge capital gains in the hands of the assessee for selling properties by the assessee as GPA holder on behalf of the owners of the properties. The Revenue authorities shall have to follow rule of consistency. Assessee is not owner of the properties of which he has acted as GPA holder only. No profit arises on executing Sale Deed by assessee as GPA holder. There is also no transfer of capital asset by assessee so as to attract the provisions of capital gains in his hands. Addition, therefore, is wholly unjustified and shall have to be deleted. We, accordingly, set aside the orders of authorities below and delete the addition - Decided in favour of assessee Addition in respect of advance money received from the buyers - Held that:- According to the agreement, the buyer shall have to get Sale Deed registered and to pay the balance amount by 05.01.2007. It is admitted fact that no sale deed was executed and terms of the agreement were not complied with. The assessee claimed to have refunded advance money of ₹ 50,000/- to the buyer but no evidence have been produced in support of the contention that actually assessee refunded amount of ₹ 50,000/- to the buyer. Mere entry in the cash book without supporting document is not enough to prove the return of the amount in question, therefore, authorities below as per agreement, rightly inferred that amount in question have been forfeited and as such had become income of the assessee. - Decided against assessee Addition on account of 15% disallowance out of development charges - Held that:- No merit in this ground of appeal of the assessee. The assessee pleaded before ld. CIT(Appeals) that he is not investigating agency and has no power to call any person for investigation. The explanation of the assessee shows that assessee has no evidence or material to rebut findings of authorities below. This ground of appeal has no merit, the same is dismissed. - Decided against assessee Addition on account of commission paid for sale of plot - Held that:- No merit in this ground of appeal of the assessee. The assessee failed to produce any evidence of payment of the commission. No particulars were given and no evidence have been filed as to what services have been rendered by the agent on behalf of the assessee. In the absence of any evidence, we do not find any merit in this ground of appeal of the assessee.- Decided against assessee Disallowance of proportionate interest on account of interest free loans for non business purposes - Held that:- Restore this issue to the file of Assessing Officer with direction to re-decide this issue after verifying the facts of availability of the capital and reserve funds with the assessee and direct Assessing Officer to re-decide this issue in the light of decision of Hon'ble Supreme Court in the case of Hero Cycles P. Ltd. (2015 (11) TMI 1314 - SUPREME COURT OF INDIA ). Addition being 1/5th of several expenses i.e. petrol expenses, car repair, driver's salary and telephone expenses etc. confirmed No specific details have been produced before us to prove that these expenses have not been used by assessee and his family members for personal purpose - Decided against assessee
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