TMI Blog2022 (5) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a factual aspect, which requires verification, we remand the issue to the AO for the limited purpose of verifying the source of investment not only to the tune of Rs.37,43,100/- but also in respect of the value of stamp duty and registration [which approximately comes to Rs.55 lakhs]. And if the AO finds after verifaication, the the explanation given by the assessee to be satisfactory, then no addition is warranted on this issue. Addition disbelieving the gift received by the assessee - HELD THAT:- It is noted that the assessee had filed the copy of the gift letters of both the donors and also the respective bank statements - However, we note that these facts could not be placed before the Ld. CIT(A) because, she was undergoing treatment for cancer which eventually took her life on 30.10.2020. So the Ld.CIT(A) confirmed Rs.26 lakhs. We note that the assessee had reasonable cause for not submitting the aforesaid evidence before the Ld.CIT(A), therefore, the impugned confirmation was made by the Ld.CIT(A) to the tune of Rs.26 lakhs. However, since these facts need to be verified, for the ends of justice, the issue is also remanded to the file of the Assessing Officer for v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the assessee appellant had not filed his return of income for A.Y. 2010-11; based on NMS information available in the ITBA Module the case of the assessee appellant was reopened for the reason sold immovable property valued at Rs. 30,00,000/-or more , which on verification on the ITD system revealed that the assessee had indeed sold a property of Rs;2,35,00,000/- on 31.07.2009 in F.Y. 2009-10 relevant to A.Y. 2010-11. Since there was no compliance to the notice u/s 148 or the statutory notices, the Ld. AO proceeded to complete the assessment u/s 144 r.w.s 148 of the l.T. Act. 1961 on 15.12.2017 wherein the entire sale proceeds of the flat at Samudra Setu, Breach Candy, Mumbai, of Rs.2,35,00,000/-was added to the total income of the assessee. 5.3.2 The assessee appellant in the statement of facts has submitted that he being a senior citizen and not having taxable income had not filed his return of income for the relevant assessment year i.e. A.Y. 2010-11. It was further submitted that the appellant, in July 2009, had sold a residential house property at Samudra Setu, Breach Candy, Mumbai, for Rs.2,35,00,000/- (purchased for Rs.1,68,14,230/- including Stamp Duty and Othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty; the indexed cost of this stamp duty is Rs 38,657/-. Accordingly the capital gains is computed at Rs 2,35,00,000 less ( Rs 2,03,46,076 + Rs 38,657/-J which is Rs 31,15,267/-. 5.3.5 The appellant has claimed exemption on purchase of residential flat in Ocean View for Rs 2,60,00,000/-. The source of such investment is from sale of property in Samudra Setu. As described above, vide sale deed dt 31.07.2019 , appellant Mr Akhtar Zain 7'Langoonwiia and his wife Mrs Shehla Akhtar Rangoonwala sold the property in Flat no 501, admeasuring 1020 sq mt in Samudra Setu Co-operative Housing Society Ltd, Bhulabhai Desai Road, Mumbai 400026 to Mr Cyrus Shahrukh Contractor and Mrs Roshni Cyrus Contractor for a consideration of Rs 2,35,00,000/- of which Rs 12,43,100/- is paid towards discharge of loan/ overdraft account no 00058020000018 with the HDFC Bank Ltd, Rs 12,56,900/- is in favour of the vendors and a sum of Rs 2,10,00,0007- is in favour of the vendors. Thus, only Rs 2,10,00,000/- and Rs 12,56,900/-, being Rs 2,22,56,900/- was available with the appellant for purchase of new flat. The source of investment in Ocean View of Rs 2,60,00,000/- thus can be explained only to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs.2.60 crores when the sale consideration that assessee received was only to the tune of Rs.2,22,56,900/-. Therefore, according to Ld CIT(A) after repayment of loan of Rs.12,43,100/- there was a difference of Rs.37,43,100/- which according to him was unexplained investment under section 69C of the Act. According to the Ld.AR, when the appellate proceedings were going on before Ld CIT(A), the assessee s wife Mrs. Shehla Akhtar Rngoonwala (appellant in ITA No.6538/Mum/2019) was suffering from cancer and since the assessee was looking after her treatment did not get proper opportunity to explain the source of the investment (difference). Therefore, given an opportunity, the assessee would be able to explain the source of investment to the tune of Rs.55 lakhs which includes the stamp duty and registration charges plus Rs.37,43,100/- confirmed by Ld.CIT(A). 8. Per contra, the Ld.DR Shri Mehul Jain relied upon the order of the Ld.CIT(A) and submitted that since the assessee failed to explain the source of investment to the tune of Rs.37,43,100/-, the Ld.CIT(A) rightly made the confirmation of the said sum which does not require any interference from our part. 9. Having heard b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Ld.CIT(A) has not given any opportunity to the assessee to explain the source of Rs.37,43,100/-. According to him, if the Ld CIT(A) had any doubts regarding this issue, the assessee ought to have been given an opportunity to explain the source of investment to the tune of Rs.37,43,100/- and without giving such an oppurtunity, the Ld CIT(A) erred in confirming this addition. Before us, in order to prove the source of Rs.37,43,100/- the assessee has filed the cash flow statement which is seen placed at pages 3 4. From a perusal of the same, it is seen that Rs.55 lakhs the assessee received as unsecured loan from Shri Pradip Tarachand Kothari (PAN AABPK1490R) and that same has been repaid on 21/12/2009 alongwith interest of Rs.68,750/- (refer page 69 of paper book). On the strength of cash flow statement the assessee contends that he would be able to discharge the burden of proving the source of investment of Rs.37,43,100/- as well as that of stamp duty and registration also which approximately comes to Rs.55 lakhs. However, we find that these documents were not filed before the Ld CIT(A) because at that time, the assessee s wife was suffering from cancer and the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 which is the copy of the HDFC cheque dated 14/12/2009 of Rs.20 lakhs [ HDFC Saving Bank NR(E) account] of the donor who is in UK; and the gift of Rs.4,48,358/-( 6,050 pounds) has been transferred from the bank account A/c 111 3519 of Mr. Syed Mujahid (CHASGBZL) and it is noted that the assessee had filed the copy of the gift letters of both the donors (refer pages 6 to 7 10 to 12of paper book) and also the respective bank statements which are found placed at pages 13 to 17 of the paper book. However, we note that these facts could not be placed before the Ld. CIT(A) because, she was undergoing treatment for cancer which eventually took her life on 30.10.2020. So the Ld.CIT(A) confirmed Rs.26 lakhs. We note that the assessee had reasonable cause for not submitting the aforesaid evidence before the Ld.CIT(A), therefore, the impugned confirmation was made by the Ld.CIT(A) to the tune of Rs.26 lakhs. However, since these facts need to be verified, for the ends of justice, the issue is also remanded to the file of the Assessing Officer for verification in accordance with law. Therefore, we set aside the impugned order and remand the issue to the Assessing Officer for the limited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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