TMI Blog2021 (6) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed, impugned addition was to be set aside. ITAT held no addition could be made under section 41(1) in respect of unexplained purchases where amount was shown as payable in balance sheet and thus there was no cessation of liability. Respectfully following the Jurisdictional High Court order in DATTATRAY POULTRY BREEDING FARM PVT LTD [ 2018 (12) TMI 1636 - GUJARAT HIGH COURT] and parity with the Delhi ITAT order and sales were not disputed by the lower authorities, so in view of the above, we allow this ground of appeal. Notional short term capital gain on transfer or otherwise of some real estate asset - Addition of short term capital gain erroneously considered by the appellant in computation of total income - Contention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, the Ld. CIT(A) has grossly erred in upholding the disallowance of ₹ 58,55,315/- out of total addition made by Assessing Officer of ₹ 61,11,115/- being opening balance of sundry creditors in the books of accounts of the assessee. 2. In Law and in the facts and circumstances of the appellant's case, the Ld. CIT(A) has grossly erred in not allowing the additional claim raised by the appellant during the course of assessment proceedings being inadvertently by oversight short term capital gain of ₹ 22,88,832/- was offered in return of income filed u/s. 139(1) though the property was not transferred during the year under consideration. 3. The appellant craves leave to add, amend and/or alter the ground or g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Before the Ld. CIT(A) submitted that the disputed amount is at ₹ 58,55,315/- and not ₹ 61,11,115/- and Ld. CIT(A) confirmed the order of the ld. A.O. 7. Now Assessee has come before us by way of second statutory appeal is stated that opening balance of sundry creditors has been added by the lower authorities and sales made against the purchase of above creditors not disturbed. Purchases made from creditors were in earlier year payments were made through banking channel and same are part of paper book at page no. 24 to 46 and ledger account of creditors along with statement of purchases are part of paper book at page no. 47 to 77. 8. Ld. A.R. cited a judgment of Jurisdictional High Court in the case of Dattatray Poultry B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sheet and thus there was no cessation of liability. 10. Respectfully following the Jurisdictional High Court order and parity with the Delhi ITAT order and sales were not disputed by the lower authorities, so in view of the above, we allow this ground of appeal. 11. The next ground is relating to confirming the addition of ₹ 22,88,832/- being short term capital gain erroneously considered by the appellant in computation of total income. 12. The ground is relating to notional short term capital gain on transfer or otherwise of some real estate asset. The appellant stated that asset was converted from fixed asset to investment in the year consideration but same has not been disposed off and has been accounted at the original va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the ld. CIT(A). Ld. A.R. cited the case of CIT vs. Mitesh Impex [2014] 46 taxmann.com 30 (Guj.) wherein Hon'ble Gujarat High Court has held that if any legal contention or even a claim would be permissible to be raised for the first time before the appellate authority or the Tribunal when facts necessary to examine such ground, contention or claim are already on record. In such a case the situation would be akin to allowing a pure question of law to be raised at any stage of the proceedings. This is precisely what has happened in the present case. The Appellate Commissioner and the Tribunal did not need to nor did they travel beyond the materials already on record in order to examine the claims of the assessee for deductions under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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