TMI Blog2016 (9) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 TDR right from owner. No doubt factual position of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue is decided in favour of the revenue and against the assessee. - I.T.A. No.155/Mum/2013 - - - Dated:- 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 Commissioner of Income Tax Appeal 26 error treating the business profit of ₹ 70,00,000/- on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 declaring total income to the tune of ₹ 58,26,316/-. The return of income was processed u/s.143(1) of the Income Tax Act, 1961 ( in short the Act ). The case was selected for scrutiny under CASS. Notice u/s.143(2) of the Act was issued on 19.08.2010 and served upon the assessee. Thereafter notice u/s.142(1) of the Act dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Shailaja Co-operative Housing Society Ltd. Vs. Income Tax Officer (ITAT, Mumbai B Bench) 5. Commissioner of Income Tax Vs. H.H. Sri Raja Rajagopala Thondaiman by Lr. (High Court of Madras) 6. Commissioner of Income Tax Vs. Hindustan Housing Land Development Trust Ltd. (Supreme Court of India) 5. On the other hand the learned representative of the department has argued that in view of the MOU for sale of TDR dated 30.04.2007, it is quite clear that the assessee has purchased the TDR, therefore, in view of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee on the ground of that the assessee purchased the TDR. The assessee moved an application for TDR on 09.07.2007 as per EXIT B . 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 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 Sana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and the vouchers were self made which can be considered as cogent and convincing evidence in support of the claim of the assessee. Therefore we found that the CIT(A) has restricted the disallowance to the extent of 5% of the expenses claimed by the assessee which is quite reasonable, therefore, the observation of the CIT(A) is not required to be interfere w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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