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2016 (9) TMI 697 - ITAT MUMBAI

2016 (9) TMI 697 - ITAT MUMBAI - TMI - Unexplained money u/s.69A - sale consideration of the subject property - beneficial ownership of the flat - Held that:- From the record we found that the said flat No.132/H in Raj Arcade was sold to M/s Karma Ispat Ltd, was belonging to the builder and not to the assessee. As per the evidence discussed by CIT(A) in his order, the builder has shown the sale of flat in its books of accounts and also offered profit arising thereon in respect of sale considerat .....

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rebutted by the AO, therefore, the same cannot once again be added in the hands of the assessee. The detailed finding recorded by CIT(A) are as per material on record, therefore, do not require any interference on our part. - Decided against revenue - ITA No. 1344/Mum/2013 - Dated:- 12-8-2016 - Shri R. C. Sharma, AM And Shri Sandeep Gosain, JM Revenue by : Shri Randhir Gupta Assessee by : Shri Dharmesh Shah ORDER Per R. C. Sharma ( A. M ) This is an appeal filed by the revenue against the order .....

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gh the Assessment Order, written submissions of the AR, the Remand Report of the AO and the AR s rejoinder thereto. On a perusal of these documents, I am of the view that there is considerable force in the AR s submissions for the reasons recorded hereunder. 7.1. The contention of the appellant that no income is chargeable in her hands as she was merely a name lender in the entire transaction merits consideration. Even though the purchase agreement dated 11.09.2006 and sale agreement dated 18.12 .....

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ed by the appellants during the course of the assessment proceedings itself stating that even though they were the signatories, they were merely name lenders to the arrangement and that the agreements were executed only under the direction of the builder. The appellant had also requested the AO to cross verify these facts from the builders. The AO however did not carry out any such cross verification during assessment proceeding and arrived at the conclusion that the appellant was the legal owne .....

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tion for the same. This confession of the builder also corroborates with the AO's finding in remand proceedings. During the remand proceedings, the AO issued summons to M/s. Rajesh Construction Co. and in reply they have submitted t at they have not sold the said flat no. 132 H to the appellant during AY 2006-07 which confirms with the stand taken by the appellant. 7.3 During the remand proceedings, the builder has further submitted that the appellant had initially paid a sum of ₹ 11,0 .....

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said receipts issued by them in respect of Raj Madhur Flats. Thus it is clear that in fact no consideration has passed from the appellant's side in respect of the Raj Arcade Flat. 7.4 Even at the time of sale of the said flat the appellant has not received any amount from M/s, Karma Ispat Ltd. The entire consideration of ₹ 50 Lakhs is received by the builder, This fact is evident from the appellant's and her husband's bank statements filed before me, This fact is also corrobor .....

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shown the sale of flat in his books for which he has also received the sale consideration, it is also not proved by the Department that the appellant & her husband have received any other benefit under this arrangement. Therefore, the clear position that emerges is that the beneficial ownership of the flat was always with the builder and the appellant was merely a front for executing the arrangement, Once this position is accepted, I am of the view that as the income arising from the sale o .....

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mon law, 'owner' means a person who has got valid title legally conveyed to him after complying with the requirements of law such as the Transfer of Property Act, Registration Act, etc. But in the context of s. 22 of the IT Act, having regard to the ground realities and further having regard to the object of the IT Act, namely, "to tax the income", we are of the view, "owner" is a person who is entitled to receive income from the property in his own right," Thus .....

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er wife, However the entire investment for buying the property was made by the assessee himself, The Hon'ble Calcutta High Court relying on the above decision of the Apex Court held that the "when the entire investment was made by the assessee, simply the flat is in the name of wife of the assessee, In such case, the income from that property should be taxed in the hands of the assessee and not in the hands of his wife", On the same analogy even in the present case only the flat is .....

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cisions: LakhmichandBaijnath v CIT [1959] 35 ITR 416 (SC) Roshan Di Hatti v CIT [1977] 107 ITR 938 (SC) Kale Khan Mohammad Hanif v CIT[1963] 50 ITR 1 (SC) CIT v R S Rathore [1995] 212 ITR 390 (Raj.) 7.7. In the case of the above mentioned decisions of the Supreme Court and Rajasthan High Court, the appellant had received / credited a certain sum of money in his books of accounts for which certain explanation was given by the assessee which was rejected by all the Income Tax Authorities and there .....

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