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TMI Blog2022 (11) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... in: Rs. 1,01,05,000/- 4. The learned CIT(A) failed to appreciate that the Appellant received a sale consideration of only Rs.42,24,000/ - in respect of his property in question. The alleged receipt of Rs.1,08,08,000/ - is only a guess work for which there is no evidence. 5. Further, the learned CIT(A) failed to appreciate that the issue is covered under Section 153C but the proceedings were not held nor order passed under Section 153C. 6. The Appellate Order confirming the addition is therefore challenged. 3. The assessee has also raised the following additional grounds 7. The Hon. ITAT is requested to kindly admit the grounds which are taken for the first time before them/ as per the ratio laid down by the Han. Supreme court of India in the case of National Thermal Power Corporation Limited vs. CIT [1998] 229 ITR 383 (SC). 8. The Ld. CIT(A) erred in the adding the amount of Rs 23,66,606 as short term capital gain without appreciating the facts of the case. 9. The Ld. CIT(A) failed to appreciate the fact that (A) Short Term capital Gain of Rs 10,000 arisen on transfer of Property is already included in the amount of 8,20,968 which was offered in the return of Income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authorities. He accordingly submitted that the additional grounds should be admitted for adjudication, since all material facts necessary for adjudication are already available on record. 5. The ld. DR on the other hand strongly objected to the admission of the additional grounds. 6. After hearing both the sides and considering the fact that all material facts are already available on record, therefore, we admit the additional grounds for adjudication. 7. In ground of appeal No.1, the assessee has challenged the order of the ld.CIT(A) in confirming the addition of Rs.8,49,600/-. 8. Facts of the case, in brief, are that the assessee is an individual. A search and seizure operation u/s. 132 of the I.T.Act 1961 was carried out on 25.11.2010 in the residential premises of the assessee. The assessee had filed the original return of income on 23.01.2012 declaring income of Rs.820,968/-. Subsequently, in response to notice u/s. 153A dated 01.11.2012, the assessee filed the return of income declaring total income of Rs.8,20,968/-. During the course of assessment proceedings, the AO noted that the assessee has shown the following unsecured loans as out standing at the end o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intained with ING Vysya Bank Ltd revealed the following deposits and payments, as under: Date Dr.(Rs.) Cr.(Rs.) 27-06-2009 1,50,000 07-07-2009 1, 49, 850 02-09-2009 1,00,000 14-09-2009 2,00,000 10-12-2009 2,00,000 17-12-2009 2,49,750 Total 2,00,000/- 8,49,750 The appellant has received an amount of Rs.8,49,750/from Sri T Subba Rao and out of this, he made a payment of Rs.2,00,000/- on 10-12-2009 and there was a closing balance of Rs.6,49,600/- as on 31-03-2010. Though, the appellant has furnished the confirmation letter from Sri T Subba Rao vide letter dated 18.02.2013, the credit worthiness of lending such a big amount is not proved since Sri T.Subba Rao though had PAN, was a non-filer. In view of the above, the addition of Rs.6,49,900/- standing in the name of Sri T. Subba Rao is sustained. 5.3.2) With regard to Sri CVK Murthy, though had PAN but a non-filer and the appellant has not proved creditworthiness of Sri Murthy. Hence, this amount of Rs.1,00,000/- is sustained. 5.3.3) The cash credit pertaining to Sri Ganguliah is also not explained satisfactorily because basically the PAN itself was not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of PCIT vs. Hitech residency Pvt.Ltd. reported in 96 taxmann.com 402. He acccordinlgy submitted that the addition made by the AO and sustained by the ld.CIT(A) should be deleted. 12. The ld.DR on the other hand heavily relied on the order of the ld.CIT(A). He submitted that the assessee by not producing the relevant documents to establish the identity and creditworthiness of the loan creditor and the genuineness of the transaction failed to discharge the onus cast on him in terms of section 68 of the I.T.Act. Therefore, the ld.CIT(A) was fully justified in sustaining the addition to the tune of Rs.8,49,600/- 13. We have considered the rival arguments made by both the sides, perused the orders of the AO and ld.CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the assessee in the instant case has received an amount of Rs.63,49,600/-from four parties, which the AO added u/s. 68 of the I.T.Act on the ground that assessee could not produce the said persons for his examination and also failed to prove their creditworthiness. We find the ld.CIT(A) deleted an amount of Rs.55 lakhs received from one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42,24,000/- 18. Facts of the case in brief are that during the course of assessment proceedings, the AO noted that during the search and seizure operation at the business premises of M/s. Sri Krishna Construction, copy of an agreement of sale dated 20.01.2009 entered into by the assessee with Shri C. Veerabadra Reddy bellery for sale of landed property admeasuring 15.44 acres located at Belagallu, Bellary district for consideration of Rs.1,08,08,000/- was found and was impounded vide page No.76 to 77 of annexure A/TBC/5. The AO recorded the statement of the assessee u/s. 131 of the I.T.Act, 1961 in respect of this transaction dated 08.03.2013. He observed from the reply of the assessee that initially he claimed that the actual consideration received was Rs.27,00,000/- only. However, the assessee changed his version stating that actual consideration received by him for the said sale of the land was Rs.42,24,000/- and not Rs.1,08,08,000/- as mentioned in the sale agreement. However, the AO did not accept the claim of the assessee and made addition of Rs. 1,01,05,000/- as STCG by observing as under:- i. From the registered sale deed no.2179/09-10 dated 26.06.2009 entered by Sri C.V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were reportedly brought out in the master-plan and the proposed ring alignment drifted away from the appellant's land bringing an end to the abnormal real estate boom. As such the buyer did not show any enthusiasm and he did not report for registration within the agreed stipulated time of four months ending on 20.05.2009. It was submitted that in the changed circumstances, after hard bargaining with Sri Veerabhadra Reddy, the property was finally registered for an amount of Rs.15,44,000/- (as per fair market value) on 26.06.2009. It was submitted that the assessee received an amount of Rs,42,44,000/-(advance of Rs.27,00,000/- plus Rs.15,44,000/- on the date of registration) as total consideration on this sale. It was submitted by the assessee that in spite of bringing all these facts before the AO, the AO solely basing on the agreement of sale dated 20.05.2009 considered the sale consideration at Rs.1,08,08,000/-. 21. Based on the submissions made by the assessee, ld.CIT(A) called for a remand report from the AO. The AO in his remand report stated that assessee has not proved that the property was sold as a distress sale due to price crash and has also not produced Sri C.Veera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision of Hon'ble Kerala High Court in the case of CIT vs. K.C.Agnes reported in 262 ITR 354, he submitted that it is not necessary that the price stated in the agreement should be taken as against the amount mentioned in the sale deed. He further submitted that there is no evidence before the AO that assessee has received any extra money over and above what is mentioned in the sale deed. For the above proposition he relied on the decision of Hon'ble Supreme Court in the case of KP Varghese vs. ITO reported in 131 ITR 597, where it has been held that the burden of proving is that of revenue when there is allegation of under statement of concealment in the consideration shown. He further submitted that the market value of the impugned property is not more than the amount that was disclosed in the registered documents. Therefore, the question of payment of any money over and above the amount mentioned in the registered sale deed does not arise in absence of any corroborative evidence. He also relied on various decisions and submitted that the addition sustained by the ld.CIT(A) should be deleted. 23. The ld.DR on the other hand heavily relied on the order of the ld.CIT(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue to the file of the AO with a direction to give an opportunity to the assessee to substantiate his case by producing Mr.C.Veerabhadra Reddy for his examination. Further, the assessee is also directed to produce necessary evidence to show that the proposed plan was drifted away from the land in question for which the price has come down. The AO shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. This ground raised by the assessee is accordingly allowed for statistical purposes. 27. So far as the additional grounds are concerned, the assessee is aggrieved by the order of the ld.CIT(A) in confirming the addition of Rs.23,66,606/- made by the AO. 28. Facts of the case, in brief, are that in the Return of Income for the year under consideration, the assessee admitted an amount of Rs.8,20,968/- as short term Capital Gain. The assessee was asked to furnish the details of the transactions and also the copies of the sale deeds and purchase deeds of the said transaction. The assessee filed a revised computation sheet for the short term capital gain. As per the said statement the assessee has sold 4 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e correct and needs to be rectified. In view of the above, the AO is directed to pass appropriate orders while giving effect to this appellate order. This ground is allowed. 31. Aggrieved with such order of the ld.CIT(A), the assessee is in appeal before the Tribunal. 31.1. The ld.counsel for the assessee strongly challenged the order of the ld.CIT(A) in partly sustaining the addition made by the AO. He submitted that when the assessee has not received any extra money over and above, the amounts disclosed, the ld.CIT(A) is not justified in sustaining the addition. We find before the ld.CIT(A), the assessee has filed a chart showing quantification of the short-term capital gain and determining the same to be at Rs.15,45,638/-. The ld.CIT(A) directed the AO to verify the same and pass appropriate order. It is the submission of the ld.counsel for the assessee that the short term capital gain of Rs.10,000/-, Rs.1,70,000/- & Rs.86,606/- and another Rs.16 lakhs are already included in the amount of Rs.21,86,606/- and therefore, taxing the above amounts will amount to double taxation. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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