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2016 (9) TMI 1217 - ITAT MUMBAI

2016 (9) TMI 1217 - ITAT MUMBAI - TM - Addition on sale of TDR - taxability - Held that:- The assessee received the TDR on 13.05.2008 by virtue of letter dated 13.05.2008 as per EXIT C. In view of the said circumstances apparently on 30.04.2007 the date of the execution of the MOU no TDR was in existence. The TDR cost was Nil, therefore right to eliminate is not taxable. The MOU speaks about the purchase of land however, the word purchase of TDR right has also been mentioned but at the time of .....

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land was well within the knowledge of the party but this fact cannot be denied that the TDR right on the land first time was accrued in favour of assessee which was sold by the assessee for sum of ₹ 1,20,00,000/-. In view of this peculiar facts and circumstances and in view of the law relied by the learned representative of the assessee mentioned above, we are of the view that he said amount in question is not taxable in accordance with law, therefore, we delete the said addition and allo .....

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0% of the total expenditure, however in appeal before the CIT(A), CIT(A) restricted the disallowance to the extent of 5%. No justifiable materials have been placed on record. However, assessee took the plea of preaudited accounts but this factual situation was also there at the time of filing an appeal before the CIT(A). When we consider the reasons of disallowance to the extent of 5% of the expenditure then we found that the documents of the accounts were not supported by third party evidence a .....

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ated:- 19-8-2016 - SHRI B.R.BASKARAN, AM AND SHRI AMARJIT SINGH, JM For The Assessee : Shri S.L.Jain For The Department : Shri A. Ramachandran CIT-DR ORDER PER AMARJIT SINGH, JM: This is an appeal filed against the order dated 09.11.2012 passed by the Commissioner of Income Tax (Appeal) 26, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Y.2009-10. 2. The assessee has raised the following grounds:- 1. On the facts and in the circumstances of the case and in the law the learned .....

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d Competent Authority. Thirdly, it is also completely wrong to say on the part of the learned Commissioner of Income Tax Appeals - 26 that the reserved area there was some surplus land left in the hands of the appellant. Your honor is requested to delete unnecessary addition of ₹ 70,00,000/- made by the learned Commissioner of Income Tax Appeal. 2. On the facts and in the circumstances of the case and in the law the learned Asst. Commissioner of Income Tax erred making disallowance @ 10% o .....

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nce the Appellant has not concealed the particulars of income or furnished inaccurate particulars at the time of the assessment. Hence there was not fault on the part of the appellant for submitting inaccurate particulars of income. In view of the above, the Penalty proceeding u/s.271(1)(c) of the Income Tax Act 1961 initiated the learned Commissioner of Income Tax Appeal - 26 should be dropped. 3. The brief facts of the case are that the assessee has filed his return of income on 29.09.2009 dec .....

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opment Right (TDR) for ₹ 50,00,000/- and assessee has also received advance against TDR to the tune of ₹ 1,20,00,000/-. The notice was given to the assessee and the Assessing Officer had arrived at this conclusion that the assessee has purchase the TDR for sum of ₹ 50,00,000/- and sold the same in sum of ₹ 1,20,00,000/-. Therefore, the difference to the tune of ₹ 70,00,000/- was added to the income of the assessee. The assessee has also claimed the expenses to the t .....

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e the income to the tune of ₹ 70,00,000/- is not liable to be added towards the income of the assessee. In support of this contention the learned representative of the assessee has placed reliance on the following decisions: 1. Commissioner of Income Tax Vs. Sambhaji Nagar Coop HSG Society Ltd. (High court of Bombay) 2. Jethalal D. Mehta Vs. Deputy Commissioner of Income Tax (ITAT, Mumbai D Bench) 3. Commissioner of Income Tax Vs. B.C.Srinivasa Setty (Supreme Court of India) 4. New Shailaj .....

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view of the said circumstances the income from the sale of TDR is liable to be taxable hence the learned CIT(A) has rightly passed the order which is not require to be interfered with at this appellate stage. By giving the careful thoughts to the contention raised by the learned representative of the parties and perused the record, we found that the assessee purchased certain property / land situated at village Pahadi Village, Goregaon (East), Mumbai bearing CTS No.255 admeasuring approx. 4085. .....

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e metres out of the said property is reserved for a Parking Lot. 6. At the time of the sale of the property, the purchaser / assessee came to know each and every aspect of the assessee. He knew that he would only entitled for the TDR which could be subsequently sold. Now, he purchased the said property in sum consideration of ₹ 50,00,000/-. Subsequently, the purchaser / assessee sold the TDR in sum of ₹ 1,20,00,000/-, therefore, an amount of ₹ 70,00,000/- was added to the incom .....

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TDR right has also been mentioned but at the time of execution of MOU dated 30.04.2007 no TDR right was in existence in favour of the seller as well as purchaser. Moreover, it come into notice that the seller was owner of the said land by virtue of Sanad dated 18th August 1962. The TDR right if any was going to be accrued then the same is going to accrued in favour of the owner. The assessee purchased this said land when no TDR was accrued in favour of earlier owner. Assessee did not purchase T .....

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