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2015 (5) TMI 785 - ITAT DELHI

2015 (5) TMI 785 - ITAT DELHI - TMI - Undisclosed Short Term Capital Gain from sale of shares - Held that:- The arguments of the learned Authorized Representative that the appellant had not sold the property cannot be accepted since it is judicially well known that in the case of a company the entire property held in the name of Company can be transferred through the mode of transfer of shares as held in Sanjay Parwal Versus ACIT, Circle, New Delhi [2015 (5) TMI 723 - ITAT DELHI ] thus we confir .....

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butable to shareholding of Mrs. Ritu Parwal is taxable in the hands of the appellant. Mrs. Ritu Parwal was holding 58,000/- shares. The share of on money comes to ₹ 1,71,10,000/-. Therefore, the total addition in the hands of the appellant comes to ₹ 3,48,10,000/-. Hence, we confirm the addition in the hands of the appellant only to the extent of ₹ 3,48,10,000/-. Hence, there is no warrant for a separate addition in hands of appellant. - Decided partly in favour of assesse. - I .....

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Act, 1961 by the Learned Commissioner of Income Tax (Appeals) XXIV, New Delhi is against law and facts on the file in as much as he was not justified to uphold the action of the Learned Deputy Commissioner of Income Tax, Circle 26(1), New Delhi in making an addition of ₹ 4,24,65,1501- on account of alleged undisclosed Short Term Capital Gain from sale of shares of M/s Smriti Buildcom Pvt. Ltd. since the addition has been made:- (i) on the basis of a document which was not executed or signe .....

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holly without any sub-stratum; (v) by ignoring the fact that the property in question on which the impugned short term capital gain had allegedly been earned was not owned by the appellant and was owned by M/s Smriti Buildcom Pvt. Ltd. of which the appellant was only a shareholder: (vi) by ignoring the fact that the appellant on her own and in her individual capacity was not competent to contract or deal with or sell or alienate the said property in any manner in as much as the company owning th .....

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ly no adverse inference can be drawn in her case on the basis of the same; (ix) on the basis of a document which is void ab-initio in as much as the impugned Agreement to Sell has not been registered as required by the Transfer of Property Act, 1882 read together with Registration Act, 1908 as amended till date and in force in the relevant point of time; (x) on the basis of the photo copies of an alleged document of which the original has not been discovered or unearthed at any point of time and .....

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different parties where the transactions have taken place within close proximity and there has been no change in the underlying facts. 2. The brief facts of the case are that the assessee is an individual. She derives income under heads of income from salary , capital gain and income from other sources. The appellant filed the return of income for the AY 2008-2009 on 29.09.2008, disclosing income of ₹ 5,91,550/-. Against the said return of income, the assessment was completed u/s 143(3) vi .....

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re conducted in the business premises of one Mr. Sanjay Parwal, who is husband of the appellant. 3. During the course of search operation at the head office of HBN Group, certain documents were found and seized as per Annexure A-I, which revealed that commercial property No. B-53, B-1, Community Centre, Janakpuri, New Delhi was purchased by the HBN Group from Sh. Sanjay Parwal and Smt. Ritu Parwal through transfer of shares of M/s. Smriti Buildcon Pvt. Ltd. for a total consideration of ₹ 1 .....

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cash amount of ₹ 8.70 crores, paid to Sh. Sanjay Parwal and Smt. Ritu Parwal, for taxation. 4. The Assessing Officer has noted in the assessment order that the shares of M/s. Smriti Buildcon Pvt. Ltd. have already been transferred to the HBN Group and the management of the said company has been taken over by the HBN Group, although, before transferring the shares to the individuals and companies of HBN Group, Sh. Sanjay Parwal and Smt. Ritu Parwal had transferred part of their hare holdin .....

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nd Smt. Ritu Parwal to the HBN Group through transfer of shares of M/s. Smriti Buildcon Pvt. Ltd. for ₹ 12.95 crores and that he had personally received cash of ₹ 25 lacs from Mr. Anil Mahajan and Mr. G.S. Chauhan on behalf of HBN Group and had delivered it personally to Sh. Sanjay Parwal. 4.2 The AO also recorded in the assessment order that the Investigation Team of the Department had seized a document serialed page number 52 of Annexure A-1 from the office of HBN Group, wherein, t .....

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transaction of ₹ 12.95 crores, out of which ₹ 4.50 crores had already been paid. 4.3 The AO noted in the assessment order that statement of Sh. Anil Mahajan, Chief Manager, Real Estate of HBN Group, was recorded on 21.11.2009 by the Search Team, where, in response to Question No. 14, Sh. Mahajan confirmed the following payments: - Payments Payable (in crores) Paid (in crores) Balance (in crores) Total payments 12.95 9.5 3.45 Cash 8.70 6.95 1.75 By Cheque 4.25 2.55 1.70 5. The AO note .....

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ore 31.03.2008. The receipt dated 14.01.2008 duly acknowledged the payment received by Sh. Virender Nehra was seized as per Annexure A-5/page 58 by the Search Team. 6. The Investigating Wing, New Delhi also granted opportunity to the appellant to cross examine those witnesses and the statements recorded from the witnesses as well as from Sh. Virendra Nehra was confonted to the appellant. During which time, the appellant had merely stated that she had no knowledge of her financial affiars and the .....

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Pvt. Ltd. were 2,94,700, out of which, the appellant Smt. Ritu Parwal held 1,05,000 shares as on 31.01.2008. Based on the above evidences seized during the course of search, the AO valued ₹ 4,61,40,150/- and after deducting the cost of these shares with premium at ₹ 35,50,000/-, the AO added ₹ 4,24,65,150/- as undisclosed Short Term Capital Gain in the hands of the appellant. 8. Aggrieved by this assessment order, the assessee preferred an appeal before the CIT(A)-XXIV, New De .....

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cted to pass on this information to the Assessing Officers of the other shareholdersx of M/s Smriti Buildcon Pvt. Ltd., so that similar action can be taken in their cases for AY 2008-09. The AO may also consider passing on the information regarding this trasnaction to appropriate authorities in the DDA as well as in the office of Registrar of Properties, since, this has become a very common method of avoiding payment of stamp duty to the Government Ex-chequer. Information can also be passed on t .....

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hat the back portion of the copy of agreement to sell is not available. i.e. the name and address and date on which the Non Judicial Papers were purchased. As per agreement to sell, it is clear that the agreement was never signed by appellant-Mrs. Ritu Parwal. The second party has entered into an agreement in his individual capacity and not as a director of HBN Group as is evident from the first page of Agreement to sell. He had drawn our attention to the last para of the agreement, wherein it i .....

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in the A/c of Mrs. Ritu Parwal, hence, out of the said amount only ₹ 20 lacs has been received by appellant. It was further submitted that the only basis for making addition is the photocopy agreement to sell which is tripartite agreement among Mr. Sanjay Parwal and three parties, original of which is not found anywhere. The appellant is never party to the agreement to sell are tripartite agreement. The appellant had disowned the knowledge of factum of sale of property held in the name of .....

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ed the material available on record. The only question that comes up for our consideration is whether in the facts and circumstances of the case, the CIT(A) was justified in confirming the addition made by the AO on account of alleged understatement of sale consideration of shares held in M/s Smriti Buildcon Pvt. Ltd.. For the detail reason given in the ITA No. 892/Del/2015, we confirmed the basis of addition. However, there was no evidence on record to show that the appellant was paid her share .....

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