TMI Blog2015 (2) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... DER Per B. Ramakotaiah, A.M. This appeal by assessee is directed against the Order of Ld. CIT(A)-I, Hyderabad dated 9th December, 2013. Assessee has raised the following two material grounds : 2. On the facts and in the circumstances of the case the Ld. CIT(A) erred in upholding the assessment of the sum of ₹ 20 lakhs received in advance for the sale of property owned by M/s. A.L. Sudershan Construction Co., Ltd., in the hands of the assessee. 3. On the facts and in the circumstances of the case the Ld. CIT(A) further erred in upholding the assessment of income for A.Y. 2007-08 though the amount was actually received in the year relevant for A.Y. 2006-07. 2. Briefly stated, assessee is an individual and Director of M/s. Vijay Balaji Construction Company which is a sister concern of M/s. Bhoorathnam Group. Search and seizure operations under section 132 of the I.T. Act were conducted on 30th August, 2007 in the group cases and on the basis of incriminating material found assessments under section 143(3) read with section 153A were completed. During the search and seizure proceedings, an agreement of sale dated 14.11.2005 in respect of 1847 sq. yards of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the amount received has been subsequently cancelled, as could be seen from the assessment order and the entire advance amount was returned to the agreement holder. It was further submitted that it was later sold by the said company to a new buyer and the capital gains arising from there has been duly assessed in the hands of company for A.Y. 2007-08. For the above mentoned reasons, assessee prayed that ₹ 20 lakhs made by A.O. be deleted. Ld. CIT(A), however, did not agree and confirmed the amount by stating as under : 08.0. I have gone through the assessment order and the appellant's submissions. In the assessment of the company M/s. A.L. Sudharshan Construction Company, the Assessing Officer after discussion in the joint meeting with the Investigation Wing, has held that the consideration for transaction could not be less than that of first proposal and the amount of ₹ 1.2 crore should be adopted as the sale consideration in the hands of the assessee and since an amount of ₹ 20 lakh was found to have been received by Sri A.L. Udayshankar i.e, the assessee, against this transaction and the same was brought to tax in his hands and the balance amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement assessment of the consideration actually received by the assessee and brings to tax capital gains on the footing that the fair market value of the capital asset represents the actual consideration received by the assessee as against the consideration untruly declared or disclosed by him . Having considered the facts and circumstances of the present case, we are inclined to uphold the addition made by the last. Accordingly, the appeal of the assessee is dismissed. 08.1. It may be noted that the Hon'ble Tribunal has considered only Rs. l crore from out of the ₹ 1.2 crores which was the amount of consideration as per the original agreement deed, for the purpose of capital gains and did not consider the amount of balance ₹ 20 lakh received by the assessee. Since the Hon'ble Tribunal has held that the sale consideration as per the original agreement needs to be taxed for the purpose of capital gains, and as per the agreement of sale, the assessee was authorised to receive the sale consideration in his name and since he himself had admitted that he received ₹ 20 lakh in cash, the addition made by the Assessing Officer is hereby confirmed. 4. Ld. Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written agreement placed on record, why when the property pertaining to company was sold for ₹ 1,20,00,000 or it could have been sold for ₹ 1,20,00,000, an amount of only ₹ 1 crore was assessed in the hands of said company and ₹ 20 lakhs was assessed in the hands of assessee.. Had the entire amount of ₹ 1,20,00,000 assessed in the hands of said company, the same would have also got confirmed as per the orders of ITAT. As only ₹ 1 crore was assessed in the hands of company, the amount to that extent was only confirmed. That does not mean that the balance amount of ₹ 20 lakhs should have been assessed in the hands of assessee in his individual capacity. It is also not explained how even if ₹ 20 lakhs was received the same is taxable as income. If it is to be considered as capital gains, amount the same cannot be considered as capital gain as assessee does not own that asset. It cannot be considered as business income as the assessee is not in the business of trading. Just because partners in the erstwhile firm authorized him to receive amount of ₹ 40 lakhs, on behalf of other vendors it cannot be considered as income of assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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