2011 (8) TMI 469 - AT - Income Tax

Revenue's Appeal Dismissed: Assessing Officer Lacked Evidence, Misapplied Provisions

Income-tax Officer - 2(1) (2) Versus Chiraayu Estate & Dev. (P.) Ltd.

The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s deletion of additions under sections 69B and 45(3). It affirmed that the Assessing ... Addition u/s. 69B - Sham transaction - Held that:- there is nothing on record to indicate that assessee has invested more than what was recorded in the books of account. - There is no basis for considering that assessee has made any unexplained investment so as to invoke provisions of section 69B. A.O. cannot presume the difference between the purchase price on the basis of the entries in the books of account as unaccounted investments in this case. As rightly pointed out by the CIT(A) even a reference to valuation does not bring into existence the scope for making the addition as provisions of section 50C were also on statute and there is no difference between the value as registered and the value as made by the assessee in the books of account. - Decided in favor of assessee.Regarding addition u/s 45(3) - value of consideration - held that:- under section 45(3) once the full value of consideration is taken as the amount recorded in the books of the joint venture, the capital gain can be worked out by reducing the cost of purchase as per the books of assessee. In case the A.O. substitutes the cost of purchase, by whatever means, then that cost price has to be adjusted in the capital gains. This may result in a loss of equal amount as the books of joint venture show the book value as consideration and substituted cost price (value determined by AO in the order) as a deduction. This working would result in a loss but not a gain. This simple arithmetic calculation was missed by the A.O. and he made the addition under section 45(3) which does not permit him to substitute the full value of consideration other than the amount recorded in the books of account of the joint venture. As the Assessing Officer's action is not according to the provisions of Sec 45(3), there is no justification for upholding the contentions of Revenue. - Decided in favor of assessee. Issues Involved:1. Deletion of addition made under section 69B.2. Deletion of addition made under section 45(3).Issue-wise Detailed Analysis:1. Deletion of Addition under Section 69B:The Revenue contested the CIT(A)'s decision to delete the addition of Rs. 1,61,95,917 made under section 69B, asserting that the transactions reflected in the assessee's books were sham. The assessee, engaged in real estate, had transferred properties to a joint venture at cost price. The A.O. deemed these transactions as sham and determined an undisclosed amount initially at Rs. 60,56,27,667, later rectified to Rs. 1,61,95,917.The CIT(A) held that the land was purchased under registered agreements, negating the need for a valuation report, and found no evidence of unexplained investment, thereby ruling out the applicability of section 69B. The CIT(A) also noted that the value recorded in the books of the joint venture matched that in the assessee's books, invalidating the addition under section 45(3).The Tribunal observed that the A.O. failed to establish any case for invoking section 69B. The section stipulates that if the amount expended on investments exceeds the recorded amount in the books and the assessee offers no satisfactory explanation, the excess may be deemed as income. However, the A.O. did not provide evidence of the assessee investing more than recorded. The Tribunal agreed with the CIT(A) that the A.O.'s approach was flawed and lacked substantive evidence. The Tribunal upheld the CIT(A)'s findings, confirming that there was no basis for the addition under section 69B.2. Deletion of Addition under Section 45(3):The Revenue also contested the CIT(A)'s deletion of the addition of Rs. 1,26,64,239 under section 45(3), arguing that no capital gain arose to the assessee. The A.O. had initially added a similar amount under section 45(3) based on the transfer of land to the joint venture, which was recorded at a lower value than the market value.The Tribunal explained that section 45(3) stipulates that profits or gains from the transfer of a capital asset to a firm or joint venture by way of capital contribution are chargeable to tax, considering the amount recorded in the books of the joint venture as the full value of consideration. In this case, the purchase price of land recorded in both the transferor's and joint venture's books was the same. Therefore, as per section 45(3), the recorded amount in the joint venture's books must be treated as the full value of consideration, and no substitution of value is permitted.The Tribunal noted that the A.O.'s approach was incorrect, as substituting the cost of purchase would result in a loss rather than a gain when calculating capital gains. The Tribunal upheld the CIT(A)'s order, confirming that the A.O.'s action was not in accordance with section 45(3) and rejecting the Revenue's grounds.Conclusion:The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s deletion of additions under sections 69B and 45(3), affirming that the A.O. failed to provide substantial evidence for the additions and misapplied the relevant provisions.