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TMI Blog2017 (11) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,44,430/- as against short term capital loss of Rs. 25,92,000/- computed by the assessee by:- (a) taking the value of property adopted by Stamp Valuation Authority at Rs. 1,45,36,430/- as against the sales consideration of Rs. 1,40,00,000/- declared by the assessee, (b) not allowing the deduction of Rs. 74 lacs paid to Alka Bengamin, Narendra Khoraniya & Surendra Lamba and Rs. 40 lacs paidto Amber Bengamin, Ahish Bengamin & Shrawan Benjamin, aggregating to Rs. 1.14 crores for vacating the plot. (c) holding that assessee has not explained the source for making payment of Rs. 1.14 crores for vacating the plot." 2. The assessee is engaged in the business of property brokerage/ dealing. He filed the return of income declaring income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengamin as well as in the statement recorded u/s 131 of these persons denied having received any compensation from the assesee. As regards Shri Sharwan Bengamin the notice issued u/s 133(6) was not served as he was not found at the address provided by the assessee. Further, the AO also held that the compensation claimed to have paid in cash is unusual and this difficult to accept that the assessee who is a property dealer would purchase a property which is under unauthorized possession and thereby incurred a loss of Rs. 25,92,000/- in a short period of just two months. Accordingly, the AO completed the assessment whereby short term capital gain of Rs. 93,44,430/- was brought to tax. Aggrieved by the order of the Assessing Officer the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid on the date of agreement i.e. 30.03.2011 and balance amount of Rs. 34,00,000/- was to be paid on or before 15.05.2011 for which a cheque no. 317242 dated 15.05.2011 of SBBJ, Prathviraj Raod, Jaipur was issued in the name of Alka Benjamin. The said cheque was got dishonored when it was presented as the payment was stopped by the assessee. Thereafter, assessee made the payment of Rs. 34,00,000/- in cash on 19.05.2011 which was acknowledged by Smt. Alka Benjamin and Shri Narendra Khurania on the back side of this cheque. The assessee also made cash payment of Rs. 40,00,000/- to Sharwan Benjamin, Amber Benjamn and Ashish Benjamin on 18.05.2011 to get vacated the at first floor and the basement of the property. This payment was duly ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee has submitted that the assessee has borrowed fund which were repaid through bank transactions. He has referred to the details of payment of the borrowed fund at page 8 of the paper book and submitted that the assessee subsequently refunded the amount to the creditors through banking channel. Hence, the ld. AR of the assessee has submitted that when the assessee has produced all relevant documentary evidence to substantiate its claim and there is no in consist any in the facts as explained by the assessee and the documentary evidence produced by the assessee then disallowance of the claim by the AO and ld. CIT(A) on the basis of the reply and denial of these persons is not justified. 5. On the other hand, the ld. DR has subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. The assessee purchased the property in question vide sale deed dated 17.03.2011. As per the contents and averments of the sale deed dated 17.03.2011. it is stated that this property plot no. 71A and B measuring 964.70 sq. yard was owned by seller/ vender Smt. Alka widow of Shriselsteen Robut D/o late Shri Kramat Masih. It is further stated in the sale deed that the seller is a legal owner and having all rights of the said property without any encumbrance or any other interest or right of the third party. It is also the said that two property is free from any dispute or claim of any third persons. The sale deed clearly states that the seller has handed over the vacant physical possession of the property to the assessee. Thus, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The AO though issued notice u/s 133(6) and received the reply from these persons however, all other connected and relevant facts and aspects of the matter like whether these six persons were in possession of the property in question and when the property was got vacated. All these facts can be verified only in the enquiry conducted through examination of these six persons by recording their statements and giving opportunity to the assessee for cross examination. Since the AO has not conducted the requisite enquiry to reach conclusive finding of fact. We are of the considered view that these matters require a proper verification and enquiry of the relevant facts. Accordingly, we set aside this issue to the record of the Assessing Officer for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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