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2015 (8) TMI 116 - ITAT MUMBAI

2015 (8) TMI 116 - ITAT MUMBAI - TMI - Addition as long term capital gain on sale of his share in the property - AO based his conclusion on the plea that one of the co-owners have sold his shares in the said land for a higher consideration, as compared to the consideration shown by assessee - Held that:- We found that without making any independent enquiry from the market, the AO has assumed that assessee has received the same amount of sale consideration as was received by other co-owners. No c .....

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at as per contention of ld. AR the sale consideration received by the assessee as per the sale deed was more than the registration value determined by the sub-registrar, therefore, it is more important to bring cogent material on record for arriving at a definite conclusion with regard to the excess amount received on sale which has not been recorded in the books of account - Decided in favour of assessee for statistical purposes. - ITA No.1520/Mum/2011, AND ITA No.2002/Mum/2011 - Dated:- 11-3-2 .....

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n sale of his share in the property at Bhyayander, by assuming that assessee was in receipt of cash consideration in excess of price quoted in the sale deed. The AO based his conclusion on the plea that one of the co-owners have sold his shares in the said land for a higher consideration, as compared to the consideration shown by assessee. 3. Rival contentions have been heard and record perused. Facts in brief are that the assessee is an individual having income from capital gain on sale of land .....

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dra A. Rakvi, Shri . Vinayak A. Rakvi, and Shri Moreshwar A. Rakvi. The 5th brother Shri Ganpat A. Rakvi, expired about 20 years back and accordingly, his share of property is transferred in the names of his sons Shri Rajeev G. Rakvi and Shri Amol G. Rakvi. During the relevant assessment year the assessee has sold his share of the property along with three other co-owners namely Shri Bhalchandra A. Rakvi (HUF) Shri Vinayak A. Rakvi (HUF) , Shri Moreshwar A. Rakvi (HUF) for a total consideration .....

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also separately sold to Shri Sanjay M. Punamiya vide a separate agreement for sale dated 25.10.2005 for a net consideration of ₹ 1.10 crores. Therefore, in view of the same the assessee s share being 1/4'" in the above land of 4/5'" share of ₹ 2.66 crores works out to ₹ 66,50,000-. With this background, the AO has observed that the long term capital gain on sale of the land was not disclosed by the assessee in its return of income filed for the relevant assess .....

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ion of the AO and the assessee is further appeal before us. 5. It was contended by ld. AR that the assessee along with other 3 other co-owners namely Vinayak a. Rakvi (HUF), Bhalchandra a. Rakvi (HUF) and Moreshwar A. Rakvi (HUF) have only received ₹ 2.66 crores as shown in the sale agreement dated 31.10.2005. It was submitted that beyond this, no other consideration was received either in cash or in kind. Therefore, according to the AR, the consideration in the hands of the assessee on sa .....

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d that the sale consideration in the hands of Rajiv G. Rakvi (HUF) would be the same as shown in case of the assessee. 'Further, he has also filed a confirmation from the purchaser Shri Sanjay M Punamiya confirming that he has paid ₹ 66.50 lakhs each to the assessee and 3 other co-owners namely Shri Vinayak A. Rakvi (HUF), Bhalchandra A. Rakvi(HUF) and Shri Moreshwar A. Rakvi(HUF); whereas, he has paid ₹ 1.10 crores to Shri Arnol O. Rakvi. (HUF). 6. On the other hand, ld. DR reli .....

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ment dated 31.10.2005. The balance 1/5th part of the land belonging to Rajiv G. Rakvi (HUF) (son of 5th brother of the earlier mentioned four co-owners) has sold its share in the same land for Rs.l.I0 crores. to the same party vide agreement dated 25.10.2005. We found that the assessee has disclosed 1/4th share amounting to ₹ 66.50 lakhs in the suspense account in its balance sheet. It is also clear from record that Rajiv G. Rakvi (HUF) has sold his property only 5 days prior to the sale o .....

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lakhs which is the amount considered by the AO as having been received by cash over and above the sale consideration received through cheque. The conclusion of the lower authorities that assessee was in actual receipt of ₹ 1.10 crores in respect of 1/4th share in his property was based on the fact that other co-owners of the very same property received a sum of ₹ 1.10 crores in consideration of sale of his share in the property which was effected just 5 days prior to the sale of pro .....

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