TMI Blog2017 (12) TMI 1626X X X X Extracts X X X X X X X X Extracts X X X X ..... y corroborative evidences / materials. Hence, we direct the Assessing Officer to adopt the sale consideration as disclosed in document No.3424/07 dated 24.04.2008 viz., ₹ 18.30 lakh instead of ₹ 99.90 lakh for the purpose of calculating long term capital gains. It is ordered accordingly. - ITA No.196/Coch/2016 - - - Dated:- 19-12-2017 - Shri George George K, JM Shri Manjunatha G, AM For the Appellant : Sri. John Neelankavil, Advocate For the Respondent : Sri. A.Santhom Bose [CIT-DR] ORDER Per George George K, JM This appeal at the instance of the assessee is directed against CIT(A) s order dated 04.01.2016. The relevant assessment year is 2008-2009. 2. The grounds raised read as follows:- 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is against law and invalid. The Appellant is a defunct company and the name of the company has been struck off from the register of companies on 20/12/2016 and thereby the company is dissolved. The Registrar of companies, Kerala have issued a notification to this effect on 13.12.2006 and a copy of it had been forwarded to the lower authorities. There is no provision in the Act to make assessment on a defunct and struck off company. Order of assessment against a defunct company is invalid as it is against a person not in existence. 3. The first Appellate Authority without verifying the records confirmed the order of the Assessing Officer. On the above grounds and such other grounds that may be raised at the time of hearing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akh, and therefore, long term capital gains was calculated by taking the sale value at ₹ 99.90 lakh instead of 18.30 lakh disclosed in the sale deed. 4. Aggrieved by the adoption of sale value at ₹ 99.90 lakh, the assessee preferred an appeal to the first appellate authority. The assessee challenged the validity of issue of notice u/s 153C of the Act. Further it was contended that the assessee-company was not in existence on the date of commencement of the assessment proceedings, therefore the assessment framed on non-existent entity is against law and invalid. Further on merits it was submitted that SJ-I and SJIII the seized material does not relate to the assessee. It is stated that the narration of the Assessing Officer in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence. For the above proposition the learned Counsel for the assessee relied on the judgment of the Hon ble Delhi High Court in the case of Spice Infotainment Ltd. v. CIT [(2012) 247 CTR 0500] and CIT v. Vived Marketing Servicing Pvt. Ltd. ITA No.273/2009 dated 17th September, 2009. On merits, it was contended by the learned Counsel for the assessee that the seized material relied on by the Assessing Officer in taking the sale value of the property at ₹ 99.90 lakh is on the basis of SJ-III which is not an agreement for sale, on the contrary it was stated that it is only loose sheets of certain figures without any indication that these are amounts paid for the sale of impugned property. It was submitted that the Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SJ-III is a sale agreement for the sale of property entered into by the assessee and M/s.St.Antony s Timber Depot and the same has been signed for both the parties. But SJ-III which is enclosed in the paper book (page 67 and 68) shows it is only loose sheets of papers in which some transaction of the purchaser are recorded and that too without any signature. Therefore, the imaginary sale agreement relied by the Assessing Officer while adopting the sale consideration at ₹ 99.90 lakh is not correct. The CIT(A) has omitted to consider this crucial aspect of the case. Further the statement u/s.132(4) of the Act relied on by the A.O. recorded from Shri Babu John, who is the Managing Partner of M/s.St.Antony s Timber Depot does not state i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. Nor the statement u/s 132(4) of the Act recorded from the purchaser indicate that assessee was paid above sum of ₹ 99.90 lakh. 6.1 In the case of M.M.Financers (P) Ltd. v. DCIT [(2007) 107 TTJ (Chennai) 200], the Tribunal held that no addition could be made in the hands of the assessee on the basis of statement made by a third party and the unsigned agreement and loose papers seized from the residence, in the absence of any corroborative material to show the payment of any undisclosed consideration by the assessee towards the purchase of land. 6.2 In the case of CIT v. P.V.Kalyanasundaram [(2006) 282 ITR 259 (Mad.)], the Hon ble Madras High Court had observed as under:- The Tribunal had given factual finding and held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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