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TMI Blog2021 (4) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... w: 1. The leaned CIT(A) has erred in law in confirming the addition of Rs. 107142/- made in respect of the sale consideration of the land u/s.50C of the Income Tax Act. 2. The learned CIT (A) has erred in law in confirming the addition of Rs. 572000/- made in respect of unexplained cash credit u/s.68 of the Income Tax Act. 3. The learned CIT(A) has erred in law in confirming the addition of Rs. 150000/- out of Rs. 300000/- made in respect of low withdrawal of household expenses. 4. The appellant craves leave to add, amend, alter, delete, change or modify any or all grounds before or at the time of the hearing. 3. First issue raised by the assessee is that the learned CIT (A) erred in confirming the addition for Rs. 1,07,142/- under section 50C of the Act. 4. The facts of the case on hand are that the assessee, during the year under consideration, sold a piece of land bearing survey number 299/1 & 299/2 for Rs. 2,75,00,000/- jointly. However, the stamp value of the impugned land was of Rs. 2,77,14,285/-only which was more than the sales value. Therefore the AO invoked the provision of section 50C of the Act and worked out the difference in consideration declared viz-a-viz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as applicable to the year under consideration as well as amendment brought in by the Finance Act 2018. The provision before amendment as applicable to the relevant assessment year under consideration reads as under: 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed 91 [or assessable] by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed 91 [or assessable] shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. 9.2 The above provision creates a deeming fiction that in case where consideration on sale or transfer of property being land or building falls below the value on which stamp duty is paid to State Government under relevant Act then such value should be taken as consideration for purpose of computing capital gain on such transfer. 9.3 However this deeming fiction was creating hardship to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibhai Sonani vs. ACIT reported in 161 ITD 627 where the issue was that whether the amendment brought in section 50C of the Act with regard to the point of time for taking stamp value vide Finance Act 2016 is retrospective in nature or not. The coordinate bench held as under: "So far as section 50C is concerned, the Finance Act, 2016, with effect from 1-4-2017, inserted the provisos to section 50C. [Para 5] There cannot be any dispute that this amendment in the scheme of section 50C has been made to remove an incongruity, resulting in undue hardship to the assessee. Once it is not in dispute that a statutory amendment is being made to remove an undue hardship to the assessee or to remove an apparent incongruity, such an amendment has to be treated as effective from the date on which the law, containing such an undue hardship or incongruity, was introduced. [Para 7] The present amendment, being an amendment to remove an apparent incongruity which resulted in undue hardships to the taxpayers, should be treated as retrospective in effect. Quite clearly therefore, even when the statute does not specifically state so, such amendments, can only be treated as retrospective and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income going untaxed due to tax withholding lapse. The penalty for tax withholding lapse per se is separately provided for in Section 271C, and, section 40(a)(ia) does not add to the same. The provisions of Section 40(a)(ia), as they existed prior to insertion of second proviso thereto, went much beyond the obvious intentions of the lawmakers and created undue hardships even in cases in which the assessee's tax withholding lapses did not result in any loss to the exchequer. Now that the legislature has been compassionate enough to cure these shortcomings of provision, and thus obviate the unintended hardships, such an amendment in law, in view of the well settled legal position to the effect that a curative amendment to avoid unintended consequences is to be treated as retrospective in nature even though it may not state so specifically, the insertion of second proviso must be given retrospective effect from the point of time when the related legal provision was introduced. In view of these discussions, as also for the detailed reasons set out earlier, we cannot subscribe to the view that it could have been an "intended consequence" to punish the assessees for non-deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of his old car on which EMI was pending with the understanding with the buyer that the purchaser shall pay the pending EMIs. However, the car loan was in his name (the assessee) therefore the purchaser of car used to deposit cash for Rs. 9000/- every moth in his (the assessee) bank account. 12.2 Likewise, regard the cash deposit of Rs. 7,13,750/- in SBI bank, the assessee submitted that the cash for Rs. 3,18,750/- was deposited out of receipt against sale of property bearing survey no- 687 which was duly disclosed in return of income. The assessee also submitted that during the year he has withdrawn cash on various occasion. Thus the household expenses of Rs. 36,000/- was met out from such withdrawal. The assessee further submitted that an amount of Rs. 3,75,000/- was withdrawn from SBI bank dated 16/06/2010 which was used for the payment of purchase consideration of Rs. 3,50,000/- and stamp duty of Rs. 15,000/- along with other expenses against purchase of land. 12.3 The assessee further claimed that the above facts can be substantiated from the bank statement, books of accounts and sale and purchase agreement of property which were filed before the AO during the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he name of the assessee only. Thus the other party was paying the AMI to the assessee which was subsequently paid to the bank. In this regard, conversely, we find that contention of the assessee was not based on any documentary evidence. Thus in the absence of necessary documents, we do not find any merit submission of the assessee. Accordingly we confirmed the addition for the sum of Rs.72,000 to the total income of the assessee. 17.1 Regarding the balance amount, it was explained by the assessee that money was deposited out of the cash withdrawal from the bank. The assessee to this effect has filed the cash book which is placed on pages 27-28 of the paper book. We find force in the argument of the learned AR for the assessee. If the amount has been deposited in cash by the assessee out of the cash withdrawal from the bank, then no addition, to our mind is warranted particularly in a situation where there is no finding of the authorities below suggesting that the amount withdrawn from the bank was utilized by the assessee for any other purpose. In the absence of such finding, an inference can be drawn that the amount withdrawn by the assessee from the bank was utilized for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before us. 22. The learned AR before us submitted that the household expenses were met out of the income of the assessee, his wife and the mother. In other words the assessee contributed in such household expenses to the tune of Rs.36,000.00 only. 23. On the other hand the learned DR vehemently supported the order of the authorities below. 24. We have heard the rival contentions of the parties and perused the materials available on record. Normally, there cannot be addition on the basis of estimation. However, the facts of the case on hand are different insofar the expenses incurred by the assessee towards the children education fee. The AO has given very clearcut finding that the assessee has been incurring children education fee of Rs.10,350.00 for each child aggregating to Rs. 31,050.00. Furthermore, it has also been pointed out that the family of the assessee consist of 5 members in totality. Thus in such circumstances the drawings shown by the assessee to the tune of Rs.36,000 does not appear to be reasonable. 24.1 Moving further, we also find that the assessee has not produced any documentary evidence in support of his contention that there was the income in the h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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