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The ITO, Ward-9 (3) , Surat Versus Shri Maganbhai Gordhanbhai Bhalani

2015 (10) TMI 2170 - ITAT AHMEDABAD

Unaccounted investment u/s.69 - CIT(A) deleted the addition - Held that:- CIT(A) proceeded on the assumption as if the housing loan of Rupees Ten lacs was obtained for the construction of house. No material has been placed in respect of the housing loan obtained from Central Bank of India and whether the amount was utilized for renovation of the house or construction of building is not clear. The assessee has also not placed any material with regard to presentation of house construction plan to .....

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ected to place all the evidences relating to purchase and construction of the property in question to AO who would make further inquiries if so needed. - Decided in favour of revenue for statistical purposes. - I.T.A. No.2589/Ahd/2011 - Dated:- 24-9-2015 - SHRI KUL BHARAT, JUDICIAL MEMBER And SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Appellant : Shri R.P. Maurya, Sr.DR For The Respondent : -None- ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Revenue is directed against the o .....

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order of the A.O. 3. It is, therefore, prayed that the order of the Ld.CIT(A) be set aside and that of the A.O. be restored. 2. Briefly stated facts are that the case of the assessee was reopened for assessment and the re-assessment u/s.143(3) r.w.s.147 of the Income Tax Act,1961 (hereinafter referred to as the Act ) was framed vide order dated 27/12/2010, thereby the Assessing Officer (AO in short) made addition of ₹ 41 lacs on account of unexplained investment. Against the said assessme .....

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d.Sr.DR supported the order of the AO and submitted that the ld.CIT(A) was not justified in deleting the addition. He submitted that admittedly, the assessee had not disclosed the investment in his book of account. 4. We have heard the ld.Sr.DR, perused the material available on record and gone through the orders of the authorities below as well as the written submission filed by the assessee. The written submission filed by the assessee is reproduced hereunder:- Dear Sir, The assessee is engage .....

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A.Y. 2008-09 relating to acquisition of residential house property. The details of payment made in cash to the seller are as follows: Date Amount (Rs.) 06-08-2008 90,000 07-02-2009 300,000 09-02-2009 400,000 10-02-2009 300,000 28-02-2009 145,000 Total 12,35,000 The assessee had actually purchased already constructed residential house property and not only land. But, it was disclosed that only land is purchased while property is being constructed after acquisition of land. This was an arrangemen .....

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per Sq. Mtrs. The total area of the land purchased was 78.04 sq. mtrs. Hence, total value of the land as per stamp valuation authority at the time of purchase comes to ₹ 86,078 (78.04*Rs. 1,103) only. Further, as of now, the valuation of the property (Land along with constructed residential house) as per stamp valuation authority is ₹ 13,500 per sq. mtrs. So, total value of property comes to ₹ 10,53,540 (78.04*Rs. 13,500). So, in no case value of property can be ₹ 41,00, .....

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O under coercion. And for that he has got Affidavit done and also notarised it. Shri Amulakhbhai Matholiya has got affidavit prepared twice, once on 21st Feb, 2011 and second time on 11th November, 2013. Copy of both the affidavit is enclosed herewith for your ready reference. Therefore, on the basis of the discussion held above and on the basis of facts held under, the addition made may be deleted. 1) The assessee has purchased the land along with building for ₹ 12,35,000 in F.Y. 2008-09 .....

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te comes to ₹ 10,53,540. Therefore, the value taken by Ld. Assessing officer of ₹ 41,00,000 is extremely high, impossible, unbelievable, without any lawful basis and unjustified. 4) The assessing officer has not given assessee an opportunity of cross examining the transferor Shri. Amulakhbhai Patel for the details given in the statement by the transferor and without giving opportunity addition cannot be made. This is against the principle of natural justice. So, on the basis of the a .....

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ereafter, he had made construction on this plot 2 ½ years ago. As per the AO, the assessee had purchased fully constructed bungalow from the vendor. The AO, therefore, concluded that there was no need for making further construction and as such no construction activity was carried out. The transaction with the so-called contractor to be not genuine. The AO had given findings in paras-5.10 to 5.15 of his order which read as under:- 5.10. To ascertain the veracity, this office has called fo .....

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8377; 3,00,000/- again by self cheque on 10.02.2009 which resulted in credit balance at ₹ 4,871/- only. Thereafter, within one month i.e. on 13.03.2009, this account has been closed. b. Shri Mahanbhai G.Bhalani (The assessee) with Central Bank of India, Ghod Dod Road, Surat Loan account No.3039060282. The account was opened only on 03.02.2009 by debiting ₹ 10,000/- plus ₹ 1240 processing charges. In this account third party cheque in the name of Brijeshkumar Babulal was debited .....

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he closing balance with interest on 30.11.2010 is ₹ 4,466/- only. 5.11. From the perusal of above bank statements, it is proved that though the assessee entered into the agreement for construction of a bunglow on 05.01.2009 with Shri Brijeshkumar Babulal Jarsaniya, the transactions are not matched with the copy of bank statements. Besides, it is not mentioned in the agreement as to whether upto what period the construction will be completed. The mode of payment and other conditions have al .....

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torbhai Matholia nor the assessee has shown the constructed bunglow in the return of income. 5.15. Therefore, considering all the facts and evidences/documents etc. collected during the assessment proceedings, as discussed above, the assessee has not recorded the investment of ₹ 41,00,000/- towards purchase of bunglow in his book of account as well as not disclosed the same in his return of income filed. Besides, the assessee s explanation is at all not satisfactory. Therefore, the value o .....

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was an arrangement done so as to get housing loan because housing loan was not available otherwise. If construction would not have been shown then bank loan would not available on the property , appears to be correct. Further, no adverse comments against the submissions of the app have been made by the A.O. in his remand report as mentioned above. Even otherwise factually also the transactions relates to A.Y. 2009-10 not to A.Y. 2008-09 which is in question. Hence, looking into the facts & .....

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finding in his order on the AO s observations contained in paras-5.10 to 5.15 of the assessment order. We find that the AO has given a finding in para-5.12 of his order that the assessee had purchased fully constructed bungalow from Shri Amulakhbhai Gatorbhai Matholia on 31/03/2008. However, the AO proceeded to make addition of ₹ 41 lacs treating the investment made in the Financial Year(FY) relevant to Assessment Year under appeal. If the finding of the AO is correct that the sale-deed wa .....

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