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TMI Blog2017 (2) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: "1. Learned CIT(A) 25 erred on facts and in law in confirming the addition of Rs. 11346464/- made by JCIT 14(2) as undisclosed income of the appellant. 2. That the learned CIT(A)25 erred in confirming the said addition made by AO without bringing on records any evidence to show that the assessee received cash or otherwise, being consideration money more than the amount as per agreements produced, and failed to confront with the flat buyers as prayed by the appellant. 3. The learned CIT(A) erred in confirming, the addition made by AO without discharging burden to prove charge made on the appellant, and also erred in relying on the case laws which are different on facts and in law from that of the assessee and ignoring the case laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration on account of sale of different flats adjacently located and sold at short interval that there was a big difference between the sale considerations. The AO then asked the assessee to show cause as to why the highest sale consideration 3 received by the assessee based on the rate per sq. ft. should not be adopted based on the fact that sale was effected within a short period and the business prudence demands that the assessee must have negotiated at the highest price in order to get maximum gains. The assessee filed a reply before the AO. However, the AO was not convinced with the same. As per him, 2 BHK and 3 BHK are located on the same floor adjacently and there cannot be any reason for sharp variation in the sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for lower booking amount and slower payment schedule, the learned CIT(A) found that the assessee had sold flat no 301 & 101 in May 2010 @ Rs. 10,470/- per sq. ft. and June 2010 @ Rs. 11,020/- per sq. ft. with booking amount of 3% and 5% respectively and balance by bank finance. At the same time, in May 2010, the flat no 501 was booked @ Rs. 8,725/- per sq. ft. for fast payment i.e. 25% on booking and 60% within 2 months. He found that the assessee had not given full details as to the schedule of payment in case of bank finance to be long enough to justify the vast variations in rates. In any case, no prudent businessman would sell the property at such huge discount just for faster payment by few months. The learned CIT(A) observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the assessee sold 13 flats during the year at different stages of construction and on different payment terms to different unrelated buyers. Therefore, the consideration agreed with each of them was different. It is stated that the AO observed that there was difference in prices at which flats were sold and conjectured that the assessee would have received unaccounted cash. It is stated by him that the AO admitted that he was not having any evidence to support his contention but invoked the "preponderance of probability'' theory. The AO has applied the price per sq. ft. of flat no 301 to all flats and computed notional sale consideration and made an addition of Rs. 1,13,46,464/-. 5.1 The learned counsel submits that the consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 02-Feb-10 201 8900 1st slab stage 20-Feb-10 602 7710 2nd-3rd slab stage 15-Mar-10 702 8020 3rd slab stage 31-Mar-10 401 9250 4th slab stage 13-Apr-10 302 8950 5th-6th slab stage 3-Jun-10 402 9640 5th-6th slab stage 14-Jun-10 202 9640 7th slab stage 23-Jun-10 601 9945 Referring to the above table, the learned DR strongly supports the order passed by the learned CIT(A). 7. We have heard the rival submissions and perused the relevant material on record. We find that the assessee in response to the show cause notice issued by the AO has submitted that he has given the address of the parties earlier and the AO may confirm with the parties by using the power vested in the Act. This has been 7 mentioned b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .'' 7.2 The contentious issues in the instant appeal as delineated at para 3 to 6 here-in-above can be resolved by examining the flat buyers and granting an opportunity to the assessee to cross - examine them. Therefore, we set aside the order of the learned CIT(A) and restore the same to the file of the AO to make a fresh 8 assessment as per the provisions of the Act after examining the flat buyers and granting an opportunity to the assessee to cross - examine them. Needless to say, the AO is directed to give reasonable opportunity of being heard to the assessee before finalising the assessment order. The assessee is directed to file the relevant details before the AO. 7.3 In view of the above facts, we have not adverted to the case laws ..... X X X X Extracts X X X X X X X X Extracts X X X X
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