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2016 (1) TMI 243 - ITAT HYDERABAD

2016 (1) TMI 243 - ITAT HYDERABAD - TMI - Eligibility of deduction u/s. 54 - Held that:- As seen from the so called revised plan placed there is a cellar floor consisting of 26.37 Sq. Mtrs., which is not reported in the valuation report stated above. In order to examine the dimensions, they were stated in Sq. Mts and there is variation in design it self. The ground floor and first floor are of similar dimensions, whereas second floor is lesser than that. The ground and first floor was mentioned .....

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itional area has come in the revised plans placed on record was not explained when questioned. Therefore, as requested by assessee, only site inspection can confirm whether assessee has indeed constructed altogether a new house or only made extension to the old bulding. The variations noted above also require deeper examination physically. Therefore, AO is directed to give an opportunity to assessee, take the technical people like Valuation Officers of the department and examine whether the stru .....

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me. As rightly noticed by the AO, assessee in fact has filed return on 20-03-2012 belatedly when the return was due in September, 2010. The belated return itself indicate that sufficient time was taken by assessee to decide the matters. This do indicate that there is no nexus with the cash deposits in the bank a/c to that of sale consideration received by assessee which was originally disclosed in the computation of income. Since assessee has not furnished any correlation with reference to sale .....

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ce there is failure on the part of assessee to explain sources of deposits, the provisions of the Act are automatically invoked. We do not see any reason to interfere with the orders of AO and CIT(A) - Decided against assessee - I.T.A. No. 1910/HYD/2014 - Dated:- 16-10-2015 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For The Assessee : Shri A.V. Raghu Ram, AR For The Revenue : Shri Rama Krishna Bandi, DR ORDER PER B. RAMAKOTAIAH, A.M. : This is an appeal by .....

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54F and addition of ₹ 41,25,000/- as unexplained deposit. 3. The learned CIT (Appeals) erred in not stating as to how the decision relied upon the assessee is not applicable and further erred in relying on other decisions without putting to the assessee to distinguish them. 4. The learned CIT (Appeals) erred in relying on decisions which are distinguishable on facts and further erred in holding that what the assessee has done is only improvement to existing structure when in fact the plan .....

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,25,000/- holding that the assessee has not established that it is sale consideration and relying on the letter of the purchaser when the department on the other hand is assessing in the hands of buyers of EMMAR properties in Boulder Hills additional incomes as on money payments on the basis of statement of the agent thereby adopting different standards to different assessees. 7. The learned CIT (Appeals) erred in distinguishing the decision of Supreme Court in the case of Smt. P.K. Noorjehan st .....

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ncome Tax Act [Act] claiming investment in a house. While scrutinisiing the return, Assessing Officer (AO) disallowed claim of deduction u/s. 54 on the reason that the investment was made much prior to the sale of property giving rise to capital gains and the investment was on an existing house, which cannot be considered as new house. In addition, AO brought to tax cash deposits in bank account which are treated as unexplained , even though assessee explained that the source is sale of property .....

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he had purchased a plot of 961 sq. yds., on 10-02-2005 at Jubilee Hills, Hyderabad, that she had constructed a house property out of the sale consideration (from sale of property at Bangalore on 19-03-2010) during the current year and that she was therefore eligible for exemption u/s 54. The Assessing Officer noted that as per the sale deed, the property at Jubilee Hills consisted of a house property with a built up area of 3,646 Sq. Ft. The Assessing Officer therefore, directed assessee to expl .....

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ly, as the time passes family needs also increase due to children getting married and looking for privacy and independent place for their nuclear family. It is not possible for the citizens to acquire or construct a large house at one go due to paucity of funds and financial constraints. Then, the assessee tried to build the house in stages based on their own family needs and availability of funds. The additional floors constructed on an existing grounds/first floor of a residential house proper .....

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ged residential house with all amenities and in a fully habitable condition. b. Assessee had submitted a plan of the existing house with subsequent constructions. There was not much variations from the original approved municipal plan except that an additional floor had been constructed. All the floors were connected by a staircase internally and the complete building formed one residential unit. The second floor was connected with the ground and first floor by way of internal staircase, did not .....

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d on the building on which exemption u/s 54 had been claimed. These documents showed that renovation of the completed by 19-03-2010, the date of sale of the property at Bangalore. These documents showed that the civil construction activity had been carried out well before the sale of the property at Bangalore and also that assessee had only carried out extension to the existing house. e. U/s 54, assessee was required to construct the residential house within a period of 3 years after the date of .....

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account extracts, the sale proceeds of the Bangalore property were withdrawn from the bank account before the due date of filing of return of income on 31-07-2010. Assessee claimed that the cash withdrawn has been used for construction. However, as per the copies of bills, the expenditure was claimed to have been incurred in cash and was therefore, not verifiable. Most of the bills were prior to the date of sale of property at Bangalore and were in the name of Sri Wahid Hussain, son of assessee. .....

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pal [121 ITD 352] The Assessing Officer, therefore, rejected the assessee s claim of exemption u/s. 54 and assessed the long term capital gains at ₹ 1,25,95,200/-. 4.3. In the course of the appellate proceedings before Ld.CIT(A), it was submitted that there were factual inaccuracies in the ITI s report, that as per valuation report dated 07-11-2012 obtained by assessee from M/s. Prakash Associates, the area of ground floor was 3,245.15 S q . F t . , first floor was 3,649.62 Sq .F t . , and .....

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u/s. 54 was allowable. The AR also submitted that assessee had not used any funds before the date of transfer, that the investment had been made by assessee s son and that assessee had invested the sale consideration after the date of transfer by giving it to her son. The AR also submitted that commencement of construction was not a criteria for allowing deduction and relied on the decisions in the cases of CIT Vs. J.R. Subrahmanya Bhatt [165 ITR 571] (Kar) and H.K. Kapoor [234 ITR 73] (All). 4. .....

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cipal approvals of old and new buildings, so that two could be compared. It was admitted that no application was made for Municipal approval. It was further submitted that there was significant difference between the built-up area of the old building and the existing building in support of the claim that the old building had been demolished and new construction undertaken. Ld. CIT(A) noted that in the first place, there is no evidence in the form of an approved municipal plan or completion certi .....

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t verifiable even with regard to the alleged additions and extensions. 6.11 Even if the appellant s claims that she had undertaken additions to the house were to be accepted, the claim of deduction u/s 54 would not be admissible in view of several judicial decisions where the courts have held that deduction u/s 54 is not allowable for additions or extensions made to a residential house. In the case of CIT v V Pradeep Kumar [2007] 290 ITR 90 (Mad), the court held that it was clear from the contem .....

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was followed in the decision in the case of ACIT v T N Gopal 121 ITO 352 (Chen) ™ where the assessee had only constructed an additional floor on his existing house property. This decision, being of a Third Member Bench, would serve as a binding precedent. 6.13 In the case of Meera Jacob v ITO [2009] 313 ITR 411(Ker), the court held that since the assessee had only made addition to the plinth area, which was in the form of modification of an existing house, she was not entitled to deductio .....

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the decision in the case of Meera Jacob, the court also went on to observe that the observation in the judgment in Meera Jacob that even addition of a floor of a selfcontained type to the existing house would have qualified for exemption, was not a statement as to law, to be noted as a precedent because that case was not one such. 6.15 In view of the several High Court decisions, apart front the Third Member decision of the ITAT, on the issue, the decision cited by the AR is not accepted and it .....

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cost of construction. These facts have not been rebutted by the AR. 6.17 Exemption u/s. 54 is available if an assessee has within a period of three years after that date constructed a residential house . Both in the case of Subramanyam Bhat and H K Kapoor, the court held that the assessee was entitled to the deduction since the construction had been completed after the date of transfer and that exemption could not be denied simply on the ground that construction had begun before the date of tra .....

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under section 54, the construction of the new house should be within two years after the transfer of the existing house and that the exemption is not available where the new construction is made before the transfer or sale of the existing house. 6.19 in the appellant s case, the new asset consisted of a house that had been purchased more than a year prior to the sale of the original asset and the appellant was, therefore, not eligible for deduction u/s. 54 on its acquisition. The investment cla .....

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orne in mind in this regard is that the deduction u/s 54 is available for purchase or construction of a residential house and not for repayment of loans. In other words, the deduction is given in the event of creation of ownership in a new residential house. The appellant was already the owner of the residential house. The repayment of the loan did not create such ownership. The eligibility for the deduction is to be determined with reference to the satisfactions of the conditions attached to pu .....

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REPORT ON THE EXTENT OF CONSTRUCTION MADE BY APPELLANT AT D.NO. 8-2-293/82/J-111/96, PLOT NO. 96-111, SY.NO.403/1(OLD), 120(NEW), ROAD NO.72, JUBILEE HILLS, HYDERABAD 1. One of the issues in the appeal relates to deduction under section 54 of the Income Tax Act, 1961 (henceforth the Act ). While the case of the Appellant is that it had literally demolished/made substantial changes to the existing building to the property which was purchased vide sale deed dated 10.02.2005, the case of the Reven .....

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spite of the fact that the Appellant specifically questioned the inspection report of the Inspector. The Appellant In the course of appeal proceedings has submitted before the learned Commissioner (Appeals) that Inspector working under the Assessing Officer, has submitted his report without stepping into the building by simply taking photographs and therefore the same cannot be relied upon. However, the Commissioner (Appeals) has brushed aside this submission and has placed heavy reliance on th .....

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has build a house containing ground plus two floors consisting of 10,544.39 sq.feet (3245.15 sft in the Ground floor, 3649.62 sft in the first floor and 3649.62 sft in the second floor). Unfortunately, the Appellant did not obtain any municipal permission for this construction nor has applied for any Building regularization and therefore is unable to establish, the fact as per the records of the statutory authorities. However, the fact remains that the Appellant has constructed the building with .....

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nature where documents in the form of statutory approvals are available, the only way out is to conduct site inspection . It is submitted that the Hon ble Tribunal is the final fact finding authority and has got all the powers to either call for a remand report from Departmental Authorities or to conduct personal inspection by itself by visiting the site to ascertain the facts. It is submitted that given the circumstances in which the Appellant is in, the only way is either to call for a remand .....

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cause . In the above said circumstances and having regard to the settled position of law on the powers of the Tribunal as a final fact finding authority, it is prayed that the Hon ble Tribunal may be pleased to: (i) To call for a remand report on the total extent of construction made by the Appellant on the property purchased by the Appellant vide sale deed dated 10.02.2005 at D.No.8020293/82/J-l11/96, Plot No.96-111, Sy.No.403/1(old), 120(New), Road No.72, Jubilee Hills, Hyderabad; or (ii) To .....

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e case of DCIT Vs. Sri Vidyasagar Dontineni in ITA Nos. 632 & 1238/Hyd/2013, dt. 28-01-2015 by ITAT A Bench allowing the claim u/s. 54 on the reason that construction was completed later to the sale of property giving rise to capital gains, even though construction started much earlier. 8. In reply Ld DR supported the orders of AO and CIT(A). Further, Ld. DR had filed written submissions as under: 1. As per the claim of the ld.AR made before the Bench, the assessee extended the built up spac .....

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original asset and the supposedly new asset simultaneously existed.) -Acquisition of the supposedly new asset strangely happened on 10-02-2005, i.e., much before the sale of the original asset. (Description of the supposedly new asset: 961 sq.yds + built up space of 3,646 sft) (In the natural course, sale of original asset precedes the acquisition of new asset, whereas in the assessee s case, it is exactly opposite in time dimension). -Since the assessee failed to prove before the departmental a .....

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ion 54 is reproduced in full. Profit on sale of property used for residence. 54. (1) Subject to the provisions of sub-section (2), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of a long-term capital asset, being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head Income from house property (hereafter in this section referred to as the original asset) .....

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the cost of the residential house so purchased or constructed (hereafter in this section referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be nil; or (ii) if the .....

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ade within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return [such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139J in an account in any s .....

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the amount deposited under this subsection is not utilised wholly or partly for the purchase or construction of the new asset within the period specified in sub-section (1), then,- (i) the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of three years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid. Explanation.- [Omi .....

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d two years after the date of transfer of the original asset. The assessee s does not fall under this category because she did not purchase a new house. (b) If the acquisition of the new asset (house) is by way of construction, the assessee can construct the new asset (house) within 3 years from the date of transfer of the original asset. That means the total time period available for construction of the new house is not more than 3 years commencing from the date of transfer of the original asse .....

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he Id .AR made submission that the assessee can claim exemption u/s.54 despite the fact the assessee did not transfer the original asset as on the date of acquisition of the new asset. For this purpose he relied on the judgment of Hyderabad Bench of ITAT in the case of DCIT vs. Sri Vidyasagar Dontineni in ITA No s 632 & 1238/Hyd/2013, wherein it was held (paragraph 8.1) that the assessee would be eligible to claim exemption u/s.54 even if investment is made (as an extension) in a house whose .....

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o be commenced and completed within the specified period. The specified period in the case of construction(applicable for the subject case) is 3 years commencing from the date of transfer (19/03/2010). On the contrary, in the instant case of the assessee, the Id.AO pointed out clearly in paragraph 3 in page 3 of the Assessment Order that the renovation work of the house has started from January, 2009 onwards and major work was completed by 19-03-2010, the date on which the assessee has sold the .....

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claiming exemption u/s.54, the amount equivalent to the capital gains has to be utilised within the specified period for acquisition of new asset. In case of purchase of a house, there cannot be a direct and complete nexus between appropriation of capital gains and acquisition of the house because acquisition process commences one year before the date of transfer of the original asset and there could be a chance of partial utilization of funds outside the capital gains fund, whereas in the case .....

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e construction of the house which could have commenced before the specified period. In other words, what is crucial for claim of exemption u/s.54 is appropriation of the capital gains funds during the specified period for construction of the house , but not the point of commencement of the construction process as decided in the above case law. In the instant case, the capital gains funds have not, at all, been appropriated by the assessee for the construction of the new asset (old house) because .....

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ssions stand on one side of the argument and paragraphs 4 to 5 stand on another Side of the argument while without causing prejudice to each side of the arguments. That means the arguments given in paragraphs 4 to 5 are not dependent upon the arguments given in paragraphs 1 to 3 meaning thereby that the arguments given in paragraphs 4 to 5 still hold good irrespective of the fate of arguments in paragraphs in 1 to 3. It is requested that the above written submissions may be reproduced and be mad .....

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/2013, dt. 28-01-2015 (supra) that a careful reading of the relevant provisions of Section 54 makes it clear that capital gains arising from the transfer of long term capital assets being residential house is eligible for deduction u/s. 54 to the extent the same is invested or utilized during the specified period for purchase or construction of a residential house . In the above referred case, assessee was owning a plot in Jubilee Hills with a old structure which was demolished and construction .....

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he case of Meera Jacob Vs. ITO [313 ITR 411] (Ker) has held that assessee would not be entitled to deduction u/s. 54F in respect of investment in modification/expansion of an existing residential house. On the other hand, construction of a house only qualifies for exemption on the investment. Even addition of a floor of a self-contained type to the existing house would have qualified for exemption. 9.2. The Hon ble Madras High Court in the case of CIT Vs. Pradeep Kumar [290 ITR 90) (Mad) has hel .....

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p;…….. Mere construction by way of extension of the old existing house would not mean constructing a residential house u/s. 54F. There was no evidence or contemporaneous documents available to show that there were constructions. The submission of assessee about the construction of residential house was not based on any valid material. Therefore, assessee was not entitled to the benefit of Section 54F . 9.3. Following the decision of the jurisdictional High Court in the above case, .....

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fit. Even though the construction could start much before the sale of property giving rise to Long Term Capital Gain, what is relevant is the completion of house and investment made by assessee within the specified period as per the provisions of the Act. 11. Keeping the above principles in mind, if we analyze assessee s and Revenue s contentions, we are unable to come to any conclusion whether assessee has constructed a new independent house. There is no evidence on record that the old building .....

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ssessee has placed the old maps as well as new plan stated to have been of existing new building. This plan placed in page 66 of Paper Book is not an authenticated copy, as it was not drawn up by any architect. Moreover, as admitted by assessee, no permissions were taken from Municipal Corporation. Therefore, authenticity of the plan could not be verified by us. Further, as seen from the valuation report placed by assessee in support of the investment in the new house, placed at pages17 & 18 .....

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uation report stated above. In order to examine the dimensions, they were stated in Sq. Mts and there is variation in design it self. The ground floor and first floor are of similar dimensions, whereas second floor is lesser than that. The ground and first floor was mentioned as 302.35 Sq. Mtrs., whereas the second floor area was shown at 231.35 Sq. Mtrs. In the valuation report the ground floor is different from first and second which are of same dimensions. Thus, there is variation in the buil .....

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ouse or only made extension to the old bulding. The variations noted above also require deeper examination physically. Therefore, AO is directed to give an opportunity to assessee, take the technical people like Valuation Officers of the department and examine whether the structure as claimed by assessee is old or new, so as to consider the eligibility of deduction u/s. 54. 12. Incidental to the above, as seen from the valuation report on the basis of which assessee claimed investment of ₹ .....

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investments. As noted by the AO in the assessment order, assessee seems to have constructed the house much before 19-03-2010, on which date sale of Bangalore property occurred. As extracted by the AO in page Nos. 4 & 5 of assessment order, most of the civil works were completed before the date and bills subsequent to 19-03-2010 pertaining to decorative features and furniture etc., does not qualify for deduction u/s. 54F. In fact, in the case of DCIT Vs. Sri Vidyasagar Dontineni in ITA Nos. .....

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challenged by assessee therein. Similar are facts in the present case. Assessee even though claimed that it has invested part of the money before 19-03-2010, but part also afterwards. AO s order indicate that such expenditure is for land-scaping, furniture and fittings which cannot be considered as necessary for making it habitable. The decorative items cannot be considered as part of investment for the purpose of Section 54. However, assessee in the Paper Book has filed certain details of paym .....

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ch assessee is claiming the amounts, we are also unable to examine whether assessee s contentions are correct or not? In view of this, apart from examining whether the house constructed by assessee is extension of old house or a new house, AO is also directed to examine the investment made and the period and determine how much of the amount is eligible for deduction, keeping in mind the observations made above. In case the amounts are invested/claimed to have invested by the funds of assessee s .....

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that the house is a new house and investment was made after the capital gain has accrued i.e., after 19-03-2010. In view of this, without giving any clear opinion on the contentions of either party, we are of the opinion that the matter requires thorough examination by the AO afresh to establish the facts first. Needless to say that assessee should be given due opportunity to substantiate her contentions and AO should deal with them in the order. There should not be any occasion to complain, li .....

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sidered allowed for statistical purposes. 16. Ground Nos. 6 & 7 pertain to the addition of ₹ 41,25,000/- made by the AO. AO found out that assessee has deposited cash into bank account and asked for the sources. Assessee explained that the amount was received from the seller of Bangalore property and filed revised computation of capital gain increasing the sale consideration by that extent. AO did not accept the contentions as he has issued letter to the buyer who denied having paid th .....

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rt in the case of Smt. P.K. Noorjehan as relied on by assessee in the Grounds of Appeal. 17. We are not concerned with the contentions in Ground No. 6 which are not verifiable by us, as it is merely an allegation by assessee. What stand Revenue takes in other cases should not pre-judge the issue or cause prejudice in assessee s case. It is assessee who is ascertaining that amount received and deposited in bank account is the sale consideration from the sale of property. However, nothing was brou .....

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ed on record that these amounts were deposited in the bank account was an advance received in cash. Generally, whenever there is a property transaction, some amount is paid by way of cheque if there is any agreement of sale and if there is any cash dealings, cash is paid separately. As seen from the bank a/c, there was no such credit of cheque payments in the month of November, 2009, there were only some deposits by way of instruments i.e., cheques on 3rd December, 2009 to an extent of ₹ 1 .....

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