TMI Blog2006 (5) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has erred in law and on facts in admitting the additional evidence of the agreement dated 20-5-1984 which was never produced before the Assessing Officer and has contravening the provisions of rule 46A of the Income-tax Rules, 1962." 3. Rival contentions have been heard and records perused. First grievance of revenue relates to deletion of addition of Rs. 39,550 made on account of short-term capital gain. The facts in brief are that the assessee sold a plot of land during the year under consideration and received payment of Rs. 77,000 in cash. The Assessing Officer found that assessee has purchased the plot at Rs. 37,500 and which was held by him for less than 36 months. It was contended before the Assessing Officer that assessee was not the legal owner, but only power of attorney holder, therefore, capital gains should not be charged in his hands. It was also submitted that plot was sold at Rs. 150 per sq. yard and not at Rs. 310 per sq. yard as alleged by the Assessing Officer as per the statement of husband and brother of the buyer of the plot. However, on the basis of statement recorded by the DDI, the Assessing Officer concluded that assessee had sold plot at Rs. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Properties Act, 1882, is considered to be transfer in relation of capital assets. In the instant case, sale agreement was registered in the name of the assessee, according to which, possession was also handed over. Therefore, in view of clause ( v ) of section 2(47), transfer is complete for the purpose of computation of capital gain even though a sum of Rs. 500 was remained to be paid by the assessee. However, the assessee has also disputed the computation of capital gain, on the plea that sale consideration taken by the Assessing Officer was based on the statement recorded by DDI from buyer s husband and his brother, without giving opportunity to cross examine. We also found that the assessee has also furnished instances of sale, according to which, the price prevailing in the area was at par with the rates at which the assessee had sold the plot. In the interest of justice and fair play, we are restoring this ground to the file of Assessing Officer with a limited purpose of computing capital gain, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd source of investment, the value of such investment may be deemed to be income of the assessee. However, in the instant case, the CIT(A) has recorded a finding that the entire payment made to M/s. Om Traders were not unexplained, but the assessee has recorded some of the payments in his books of account on dates different from the dates on which payments was found recorded in the books of the Om Traders. He, therefore, observed that only the peak credit of Rs. 52,500 can be considered as unexplained. We also found that as per details of various payments made by the assessee as found recorded in the books of M/s. Om Traders vis-a-vis in assessee s books of account, as reproduced by the CIT(A) at page 9 of his appellate order, there was peak unexplained credit of Rs. 52,900 only. Nothing was brought on record by the department to controvert this finding of the CIT(A). There is no dispute to the well-settled legal position that addition under deeming provisions of section 69 can be made only to the extent of amount of investment which could not be satisfactorily explained by the assessee. We, therefore, direct the Assessing Officer to restrict the addition under section 69 to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and clause ( j ) of rule 6DD of the Rules, the CBDT issued Circular No. 220 dated 31st May, 1977, 108 ITR (St.) 8, where, in paragraph 4 thereof, it was stated that though all the circumstances in which the conditions laid down in rule 6DD( j ) would be applicable cannot be spelt out, some of them which would seem to meet the requirements of the said rule are : ( i )The purchaser is new to the seller; or ( ii )The transactions are made at a place where either the purchaser or the seller does not have a bank account; or ( iii )The transactions and payments are made on a bank holiday; or ( iv )The seller is refusing to accept payment by way of a crossed cheque/draft and the purchaser s business interest would suffer due to non-availability of goods otherwise than from this particular seller; or ( v )The seller, acting as a commission agent, is required to pay cash in turn to person from whom he has purchased the goods; or ( vi )Specific discount is given by the seller for payment to be made by way of cash. 12. The said circular was noticed and considered in Navsari Waste Cotton Products v. CIT [1987] 163 ITR 378 (Guj.), where it was held that it would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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