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2023 (9) TMI 943

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..... AO has rightly calculated the capital gain in the hands of the appellant thereby confirming the addition of Rs. 6,57,83,900/-." 4. As is evident, the issue relates to addition made in the hands of the assessee of Rs. 6,57,83,900/- by way of short term capital gains. 5. The short term capital gains relate to land which the assessee claimed belonged to a company but the Assessing Officer noted the facts to be to the contrary. He found as a matter of fact that the land had been purchased in the individual name of the assessee, and not as director of the company, and even claim of payment for purchase of land made by the company was found to be incorrect. The AO also noted that the assessee had in fact entered into a development agreement with the company for development of the land. For the aforesaid reasons, he held that the transaction of purchase and sale of impugned land actually related to the assessee, and not the company, though, the sale was registered in the name of the company. Accordingly, short term capital gain on the same was taxed in the hands of the assessee amounting to Rs. 6,57,83,900/-. 6. The matter was carried in appeal before the ld. CIT(A), who after going .....

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..... ller as M/s.Kunj Infro Development P.Ltd. as second party of seller. 11. The concurrent factual finding of both the AO and the ld. CIT(A), which the assessee has not been able to controvert are that - i) Purchase of the impugned property was in the individual name of the assessee, and not on behalf of the company viz. "KIDPL". The AO notes these facts at para-5 of its order as under: "5. ..... The land land has been purchased in the names of (1) Shri Keyur bhai Jitendra bhai Patel and (2) Shri Kiran bhai Ravji bhai Patel in their individual capacity and in the deed it is not stated anywhere that land has been purchased on behalf of Kunj Infra Development Pvt Ltd. on behalf of Kunj Infra Developemnt Pvt. Ltd. and signed on behalf of Kunj Infra Development P. Ltd. The said deed is also signed in their individual capacity. All these factors make it clear that the land is purchased by Shri Keyur bhai Jitendra bhai Patel and Shri Kiran bhai Ravji bhai Patel. These facts have not been controverted by the assessee before us. ii) Both the AO and the ld. CIT(A) have found that the payment for purchase of land was not made by the company viz. "KIDPL" as claimed by the assessee. T .....

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..... d. in Gujarat Mercantile Co. Op. Bank Ltd. Ahmedabad. The first entry is of cash deposits of Rs. 5000/- on 2.12.2008 therefore it is apparent that the payment for land cannot be made from this account in April 2008. Another bank account in Bank of India no 18260200000584 was opened on 14.02.2008. However out of 10 cheque no. mentioned in the sale deed only 2 cheques no. 791805 and 791804 were reflected in the debit side of the bank statement on 06.05.2008 issued to Mr. Bhavesh and Mr. B N Patel the seller. However the remaining other cheques have not been debited in the bank account of the company. It is further seen that on 02-04-2008 Rs. 24 lacs were deposited in the bank account no. 584 in Bank of Baroda by Sh. Keyur Patel and further seen that in the copy of account of Keyur Patel, payment of Rs. 1,25,4,400/- was made by Keyur Patel on behalf of the company. It is further seen that the other 8 cheque no. mentioned in sale deed dated 13-6-2008 were never deposited in the Bank of Baroda account of the Kunj Infra for withdrawal thus it is presumed that the payment was made by some other account by Shri Keyur Patel only and not from the accounts ot the company. It is also noticed f .....

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..... The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, both possession and title may be transferred independently of each other. For real property, land registration and recording provide public notice of ownership information. In the instant case the title of the property is in the name of the appellant and hence it is the only person who can transfer the property to others. In the appeal under consideration the sale amount was received by the appellant Shri Keyur Patel thus the transaction is fully completed in the hand of Shri Keyur Pater and he is the effective and de jure owner of the land. The AO has rightly calculated the capital gain in the hand of the appellant. Since the land was sold within 3 years from the date of purchase therefore the action of the AO treating the profit out of the sale of the property as Short Term .....

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..... ccomplish an act otherwise debarred by law. And accepting this explanation would tantamount to allowing assessee to take benefit of an otherwise illegal act. We therefore reject this contention of the assessee. 18. The case laws relied upon by the ld. counsel for the assessee, we find, are of no assistance, since they are distinguishable on facts, with the findings of the Revenue authorities in those cases being that the property was purchased in the name of the assessees as directors of the company which is not the fact in the present case before us. In the impugned case, the AO has categorically found that the purchase of the property in individual name was not on behalf of the company. 19. In view of the above, we uphold the order of the Ld. CIT(A) holding short term capital gains earned on sale of land to the tune of Rs. 6,57,83,900/- taxable in the hands of the assessee. Ground No. 1 raised by the assessee is accordingly dismissed. 20. Ground No. 2 reads as under: "The ld. CIT(A) has further erred in law and on facts in confirming the addition of Rs. 51,61,500/- made u/s. 68 of the Act." 21. The issue relates to the addition made to the assessee on account of cash found .....

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