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TMI Blog2025 (2) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... without appreciating the fact that the CIT(A) has ample power u/s.251 r.w.r 46A to accept additional evidences and his power is co-terminous with that of the AO including that the legislature has taken care to provide adequate machinery for determination of 'Fair Market Value' by the 'DVO' u/s 50C(2) so as to avoid charging tax on hypothetical income i.e capital gain, thus assessee prays that the additional evidences in the nature of valuation report including litigation documents placed before the CIT(A) may kindly be accepted for passing necessary instruction towards determination of 'Fair Market Value' by the 'DVO' u/s.50C(2). 2. That on the facts, and in the circumstances of the case and in law, the CIT(A) erred in confirming addition of Rs. 43,20,000/- on sale of flats in favour of Sh. Krishan Kumar relying upon the remand report and discarding the sale deed dated 05/04/2011 including the computation of income for the assessment year 2012-13 placed before him, thus the assessee prays that the addition of Rs. 43,20,000/- in the assessment year 2011-12 may kindly be deleted in full. 3.That without prejudice to the contention raised above in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created against the assessee in absence of corroborative evidence, accordingly assessee prays for deletion of Rs. 1,70,000/- in full. 7. That the assessee craves leave to amend, add, delete, replace, alter, vary or withdraw any or all the grounds of appeal either during the course of hearing or at any time before hearing of this appeal." 3. The ground No. 1 raised by the assessee is challenging the confirmation of addition of Rs. 1,79,50,000/- made u/s 50C of the Act. 4. We have heard the rival submission and perused the material available on record. The assessee is an individual. A survey operation was conducted in the premises of the assessee on 16.05.2012 u/s 133A of the Act. The assessee owns 7 storey office complex building having numerous flats at each floors. The ld AO observed that assessee had sold various flats during the year under consideration. These flats were purchased in the year 2006-07. The ld AO observed that the sale consideration reported by the assessee was less than the circle rate determined in terms of Section 50C of the Act. Accordingly, the assessee was show caused by the ld AO as to why the capital gains be not recomputed by adopting the sale consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment. In this scenario, the ld CIT(A) ought to have referred the matter to the file of DVO for determination of fair market value of the property in terms of Section 50C(2) of the Act which was not done in the instant case. In fact even if the assessee does not request for referring the matter to DVO, still the ld CIT(A) or the ld AO ought to have referred the matter to the DVO once the adoption of circle rate has been disputed by the assessee. Admittedly, the adoption of circle rate has indeed been objected by the assessee which is evident from various points addressed by the assessee before the ld CIT(A) which are already mentioned herein above as to why the circle rate should not be adopted. Reliance in this regard is placed on the decision of the Hon'ble Calcutta High Court in the case of Sunil Kumar Agarwal Vs. CIT reported in 372 ITR 83 (Cal) wherein, it was held that when the agreed consideration as per conveyance deed and circle rates are different and assessee objects to the adoption of such circle rate, then the ld AO should refer the matter to valuation officer as contemplated in Section 50C(2) of the Act. Respectfully following the same, we direct the ld AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessee had received Rs. 43,20,000/- in cash on sale of property. Further, we find that the sale deed was ultimately registered by the assessee only on 05.04.2011, which falls in AY 2012-13. Hence, in any event, the alleged differential sale consideration figure of Rs. 43,20,000/- cannot be brought to tax in the hands of the assessee for the year under consideration. Accordingly, ground Nos. 2 and 3 raised by the assessee are allowed. 10. Ground No. 4 raised by the assessee is challenging the addition of Rs. 40 lakhs on account of cash paid to M/s. Ring India Info Tech Pvt. Ltd towards construction cost. 11. We have heard the rival submission and perused the material available on record. The ld AO on perusal of pages 92 and 94 and Annexure A-4 of impounded documents during the survey found that the assessee had paid cash consideration aggregating to Rs. 1,63,24,000/- in respect of property No. 339/2, Mehrauli Road, Gurgaon. The ld AO observed that the assessee failed to explain the source of payment and accordingly, brought the said sum of Rs. 1,63,24,000/- to tax while completing the assessment. The assessee submitted before the ld CIT(A) as under:- "The Assessing Officer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lacs in Cash (Refer Page 94 stated above in Annexure A5) out of the Total Payment/ Adjustment with respect to the Collaboration Agreement acting lack of explanation to the source of payment. The addition with respect to the payment is unwarranted as: 1) The Assessee has been deriving considerable rental income from these commercial properties. 2) The Assessee has further taken Loan against capitalization of Rental Income against these properties which were let out commercial properties. 3) The Cash payments were made out of period with drawls from the Bank where such Income / Loan Balance which are offered to tax were available. A copy of Corporation Bank A/c Statement for the period from 01.04.2010 to 31.03.2011 is enclosed in Annexure A7 (PB 150 to 190) depicting the Cash with drawls and payments made from time to time and justifies the payment of amount of Rs. 40 Lacs in Cash. But the Assessing Officer has further added a sum of Rs. 1,23,24,000/- (Annexure 4 Page 92 referred to above as Annexure 5) which pertains to Financial Year 2010-11. The addition with respect to the above is derived from Page 94 and Page 92 (referred to above Annexure 5) wherein Cash Payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enclosed in page 136 of the Paper Book dated 06.07.2023, the ld AO concluded that assessee had received Rs. 10 lakhs in cash which is to be taxed as unexplained cash credit u/s 68 of the Act and assessee had paid interest @2% per month for 2 months in the total sum of Rs. 40,000/- which is to be brought to tax on account of unaccounted expenditure u/s 69A of the Act. This action of the ld AO was upheld by the ld CIT(A). 15. At the outset, we find on perusal of page 136 of the Paper Book containing the loose slip impounded during the survey, the said loose paper is unsigned. The assessee has also pleaded that he had no transaction with Ring India Infratech whose name is mentioned in the said loose paper. The assessee specifically had submitted that he had transaction only with Ring India Infotech Pvt. Ltd. The assessee also submitted that he does not know who Ring India Infratech is. Further, the assessee had also stated that if the loan is borrowed from Ring India Infratech as per the ld AO, then why interest is to be paid to Shyamlal. The assessee had also categorically denied who Shyamlal is. We find that no cross verification either from Shyamlal or Ring India Infratech has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the generator in cash. The ld CIT(A) ignored the aforesaid contention and confirmed the action of the ld AO. 18. Before us, the assessee who was present in person confirmed the fact that he had sold old generator to his cousin Vipin Sharma and since the cheque given by Vipin got bounced, the assessee received Rs. 1,70,000/- in cash towards sale of old generator. We find only the date and figure and name of Vipin are mentioned in the said loose sheet which is enclosed in page 137 of Paper Book. The nature of payment or receipt is not even mentioned thereon. Hence, the explanation given by the assessee could be considered as a plausible explanation in the facts and circumstances of the case. However, this matter, in our considered opinion, requires factual verification. Hence, we deem it fit and appropriate in the interest of justice and fairplay, to restore this issue to the file of ld AO for de novo adjudication in accordance with law and also in the light of explanation given by the assessee before us. Accordingly, ground No. 6 raised by the assessee is allowed for statistical purposes. 19. Ground No. 7 raised by the assessee is general in nature and does not require an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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