9911796707
TMI Blog2016 (4) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee filed its return of income on 30.6.1995 declaring the income of Rs. 12,93,320/- under the head income from other sources and Rs. 24,59,371/- under the head Long Term Capital Gains (LTCG) from sale of movable properties known as "Madhu Sadan" situated at Podar Street, Santa Cruz (W), Mumbai. The assessee got the said property by way of will from her late husband in 1970. The property consisted of land of about 1003 sq.yards and building comprising ground, first and 2nd floor. During the financial year the assessee entered into an agreement dated 11.9.1993 with M/s Lake End Constructions Pvt Ltd for transfer of the said building for a consideration of Rs. 1,30,00,000/- for development, however retained the first floor of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first floor of the old building was not taken into account while calculating capital gain on the sale of the property and also that the expenses on brokerage charges was claimed at Rs. 4,50,000/- as against Rs. 2.6 lakhs being 2 per cent on the sale consideration of Rs. 1,30,00,000/-. The assessment u/s 147 r.w. section 143(3) of the Act was completed on 27.3.2002 by taking sale consideration for sale of property known as "Madhu Sadan" to be Rs. 2,25,00,000/- instead of Rs. 1,30,00,000/- shown by the assessee. The AO determined the sale consideration of the property on the ground that 1800 sq.ft area was not in existence which was given to the assessee by the builder after demolishing the old building completely and the value of the new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the AO by holding as under : "For the above reasons, I am inclined to hold that the value of the flat will constitute part of the consideration for sale of the property by the assessee. The value of the flat has been taken by the AO at Rs. 95 Lacs on the basis of the value which appears to have been put upon the flat by the parties to the transaction. Accordingly, the action of the AO in taking the sale consideration at Rs. 2.25 Crore is confirmed. I have also considered the facts of the case in entirety and the findings given by my predecessor in the quantum appeal. After analysing all the fact, it becomes evident that even though apparently there were two agreements entered into by appellant, they have been proved beyond doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by agreement dt.20.07.1994 has been finally found as one transaction only and that is how the tax liability has arised. From analysis of the facts, it cannot be believed that two opinions are possible because this case has gone through huge gyrations and what has emerged is the real intention. The "guilty mind" of the appellant is proved beyond any doubts. I have also considered the various decisions relied upon by the AR, however, they are distinguishable on facts. But in my view, the nature of transactions entered into by the appellant by executing two deeds which has been held as 'Sham' clearly attracts penalty, as held by Mumbai IT AT in the case of M/s Ultramarine & Pigments Ltd v. ACIT reported in (2010), 38 DTR 42. The crux ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty by the developer as under : a) Rs. 40 lakhs on 31.3.1995, b) Rs. 45 lakhs on 31.3.1996 c) Rs. 10 lakhs on 31.3.1997. The Tribunal directed the authorities below to allow the benefit of Rs. 95 lakhs as investment in the new property as the assessee did not press ground before the Tribunal relating to sales consideration of Rs. 2,25,00,000/- which do not mean that the assessee concealed any income or furnished in accurate particulars of her income. The Co-ordinate Bench directed that the benefit u/s 54 of the Act be allowed in respect of Rs. 95 lakhs. The ld. Counsel, prayed that in view of the above facts, which proved unequivocally that no transfer of 1800 Sq Fts on the first floor of the new property had been taken place and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars with regard to the said sale of property in the return of income and also declared capital gain after claiming benefit u/s 54 of the Act in respect of flat at Rameshwar Co-Op.Hsg Soc, Santa Cruz (W), Mumbai besides claiming the expenditures on transfer of property and declared long term capital gains for taxation. Besides, the security deposit which was treated as part of sales consideration was refunded to the builder upon handing over of the 1800 sq.ft. flats on first floor of the new property in three installments as agreed. Thus under these facts we are of the considered opinion that the assessee has not furnished any inaccurate particulars of income and order of ld.CIT(A) upholding the penalty u/s 271(1)(c) of the Act cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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