TMI Blog2015 (7) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was therefore not applicable to the year when the Assessee had entered into the Banakat. We further find in the case of Chaturbhuj Dwarakadas Kapadja vs. CIT (2003 (2) TMI 62 - BOMBAY High Court) has held that the capital gains would be taxable in the year in which the transactions are entered into even if the transfer of immovable property is not effective or complete under the general law. Before us, Revenue has not brought any material on record to controvert the submissions made by ld. A.R. nor has brought any contrary binding decision in its support. We are therefore of the view that in the present case the provisions of Section 50C could not be applied. We therefore direct the deletion of addition made by A.O. - Decided in favour of assessee Addition on account of unaccounted investment - Held that:- With respect to addition of ₹ 88,050/- on account of interest, we find that Assessee has not placed any material on record to controvert the findings of ld. CIT(A) and therefore to that extent we find no reason to interfere with the order of ld. CIT(A). With respect to the addition on account of remaining amount of 15,85,179/- (Rs. 16,73,229/- less ₹ 88,050/-) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143(3) vide order dated 13.12.2010 and the total income was determined at ₹ 37,91,537/-. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 28.04.2011 granted partial relief to the Assessee. Aggrieved by the aforesaid order of ld. CIT(A), Assessee is now in appeal before us. The grounds raised by the Assessee, which have been later modified, reads as under:- 1. The appellant submits the Id CIT(A) has erred in confirming the taxing of the capital gain of ₹ 19,74,272/- u/s 50C of I.T Act by the AO as against the claim of ₹ 1,45,000/- as capital loss by the appellant. 1.1The appellant further submits that the Ld CIT(A) has erred in confirming the order of the AO rejecting the claim of the appellant u/s 50 C (2) of I.T. Act to refer the valuation of the capital asset to Valuation officer and adopt the value so assessed by such authority. 1.2 The appellant further submits that the Id CIT(A) has erred in rejecting the claim of the appellant that as the possession of the said property was already handed over to the purchaser on 17-05-91 against the earnest money of ₹ 50,000/- received on 17-05-91 as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument proving the source of acquisition, mode of acquisition nor had produced any valuation report to prove the basis of working of fair market value as on 01.04.1981 at ₹ 90,000/-. He also noticed that Assessee had not made any attempt to challenge the price determined by the State Government authority for the purpose of valuation. He accordingly considering the value of property as per the provisions of Section 50C and worked out the long term capital gain at ₹ 19,74,272/- as against the capital loss worked out by Assessee. Aggrieved by the order of A.O, Assessee carried the matter before ld. CIT(A) who upheld the order of A.O by holding as under:- 3.2 I have considered the submission made by the appellant and observation of the AO. The appellant has admitted that the sale deed is dated 14/02/2008. Prior to that the appellant has stated that earnest money of ₹ 50,000 was received and the property was handed over to the purchaser in 1991. No prudent man would hand over such huge property by taking ₹ 50,000/- only when deed value is ₹ 3.5 lac. The appellant has brought no material on record to show as to why the sale deed has been registered on 14/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld. D.R. on the other hand supported the order of A.O and ld. CIT(A). 8. We have heard the rival submissions and perused the material on record. The issue in the present case is with respect to computation of capital gain on sale of property. It is a fact that assessee had entered into an agreement for sale in 1990 to sell the property for ₹ 3,50,000/- and pursuant to the agreement Assessee was paid only 50,000/- on 17.05.1993. It is also a fact that the possession of the property was handed over by the Assessee on the receipt of earnest money of ₹ 50,000/-. The agreement for sale and Banakat which has been entered into by the Assessee have been placed on record and have not been disputed by the Department. Before us, Revenue has not brought any material on record to demonstrate that the possession of the property was handed over by the Assessee in the year under consideration and not in the year 1990, being the year in which the Assessee had entered into a Banakat. We further find that Section 50C, being the special provision for the purpose of calculation of capital gains in certain cases, was inserted by Finance Act, 2002 with effect from 01.04.2003 and was ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed reasons given by the A.O and which has been quoted above. The bank account is in the name of the appellant In the individual capacity and jointly held with his wife. The bank has clearly stated that the account is not in the name of HUF. The PAN Number of bank account is PAN number of the assessee as individual and not in the capacity of HUF. The appellant has used this account for individual purpose which is clear from the fact that the sale proceeds of ₹ 3 lakh from the execution of property mentioned in ground number one has been credited in this account. The property was held in the individual capacity without any doubt and if is not disputed by the appellant. Therefore this account definitely belongs to the assessee in the individual capacity and not in the capacity of HUF. As regards, the claim of the assessee that the deposit of ₹ 10,49,722/- and ₹ 2,02,31 I/- are explained, as stated above it is seen that these are additional evidences not given to the AO. The AO is therefore directed to verify these documents, and if these documents are found to be genuine, and the entries are correct, the AO is directed to allow the amount to the extent it is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of details by the Assessee before A.O, he considered the aggregate of amounts appearing in the credit side of the bank account with ICICI Bank as unexplained investment. Before us, Assessee has placed on record the copy of the bank statement which shows that various amounts have been debited and credited under auto-sweep and revese-sweep . We further find that there is no finding with respect to the auto-sweep and reverse-sweep by both the authorities. We therefore restore the issue back to the file of A.O to re-work the amount of addition after considering the explanation of the Assessee with respect to autosweep and reverse-sweep and in accordance with law. The Assessee is also directed to co-operate by furnishing the necessary evidence as called for by A.O. Needless to state that A.O shall grant adequate opportunity of hearing to the Assessee. In the result, the ground of Assessee is partly allowed for statistical purposes. Ground no. 4 is with respect to addition on account of agricultural income. 13. A.O noticed that Assessee has claim to have earned agricultural income of ₹ 8,000/-. The Assessee was asked to substantiate its claim of having earne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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