TMI Blog2016 (6) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... peal: 1. On the facts and circumstances of the case, the ld. CIT(A) has erred in accepting the additional evidence in violation of Rule 46A of the Income Tax Act. 2. On the facts and circumstances of the case, the ld. CIT(A) has erred in deleting the addition of ₹ 50,64,575/- on account of purchase of immovable property. 3. On the facts and circumstances of the case, the ld. CIT(A) has erred in deleting the addition made by the Assessing Off icer of ₹ 10,00,000/- on account of loan u/s 68 of the Income Tax Act. 4. The appellant craves leave to add, al ter or amend any of the grounds of appeal before or during the course of hearing of the appeal . 2. Brief facts of the case are as under: The assessee filed return of income for the A.Y. 2009-10 on 11.03.2010 disclosing total income of ₹ 5,32,170/-. The assessee disclosed income under the heads salary, business income, income from house property and income from other sources. During scrutiny assessment proceedings, the Assessing Officer verified the details of purchase of immovable property for a consideration of ₹ 40,00,000/-. The Assessing Officer found that the sale deed had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but has paid stamp duty on the value as per the circle rates which was ₹ 90,64,575/-. The Assessing Officer has also invoked the provisions of section 56(2)(vii), wrongly written as section 56(1)(vii), read with section 2(24)(xv). The counsel for the assessee has submitted that the provisions of sec. 50C are applicable only for the computation of income from capital gains, and can only be invoked where the assessee has transferred a capital asset and disclosed sale consideration of less than the value adopted or assessed by the stamp valuation authority. It is vehemently argued that the provisions of sec. 50C cannot be applied to the buyer of the capital asset, or to the purchase consideration. The assessee has relied upon the judgment of the jurisdictional High Court in the case of CIT vs. Khoobsurat Resorts P. Ltd. (2012) 211 Taxman 510 wherein it has been held that the fiction created by virtue of section 50C applies only in respect of the escaped income of the seller, but cannot be extended to the case of the assessee who acquires such an asset. The assessee has also relied upon the judgments of the ITAT, Delhi, in the cases of ITO vs. Fitwell Logic Systems P. Ltd. (201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with retrospective effect from the date of its insertion. Hence the Assessing Officer s reliance on section 56(2)(vii) cannot be upheld. 4.2 Even on facts, it is found that the assessee booked the property bearing No. 3, GH5, Ahinsa Khand II, Indirapuram, Ghaziabad from M/s Nirala Developers P. Ltd. on 25.05.2006 by payment of ₹ 1,50,000/- by cheque NO. 747453 from his bank account with HDFC Bank, New Friends Colony, New Delhi. The assessee has produced the booking letter dated 29.05.2006 issued by M/s Nirala Developers which shows that the unit was booked for a price of ₹ 40,00,000/-. The assessee has paid the balance amount of ₹ 38,50,000/- during the previous year relevant to the AY 2009-10 and the purchase has been registered on 09.07.2008. The Assessing Officer has disbelieved the contention of the assessee that the property was booked in 2006, when the circle rates were only ₹ 14,000/- per sq. mtr., as against circle rates of ₹ 40,000/- per sq. mtr. in 2008, on the grounds that the assessee did not file evidence of booking or of payment in 2006. Considering the evidences filed by the assessee in the form of booking letter of M/s Nirala Develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Assessing Officer. 4. We have heard both the counsel and perused the records. We have also gone through the orders of the lower authorities and the case laws relied upon by the assessee. Here is a case in which the assessee claimed to have purchased the property for a sum of ₹ 40,00,000/- and the Assessing Officer has made addition of ₹ 90,64,575/- on the basis of difference between the market price and apparent sale consideration. No attempt has been made for verifying the price from the seller of the property. In other words, there is no positive material evidencing the making of actual investment by the assessee over and above ₹ 40,00,000/-. I.T.8 A.No. 3656/Del/2013 Under such circumstances, there can be no point in making any addition towards unexplained investment u/s 69B of the Act. 5. The ld. AR relied upon the order of this Tribunal in case of DCIT vs. Rajiv Chaurasia in ITA 1729/D/2012, a copy of which has been placed on record, where identical issue arose. The Hon ble Tribunal dealt with the issue as under: Here is a case in which the assessee claimed to have purchased the property for a sum of ₹ 3.50 crore and the AO has made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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