AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (2) TMI 1064
X X X X Extracts X X X X
X X X X Extracts X X X X
....8 vide order dated 31.12.2009. 2. It would be relevant to recount the background facts of the case. The assessee, a Thane based developer, entered into a development agreement with the 'owners' (Chaudharys and Patils) on 17.02.2006 to develop a plot of land admeasuring 1650 sq. mtrs. at Ghodbunder Road, Thane. 45% of the construction, as permitted by the Brihanmumbai Municipal Corporation (BMC) - subject to a minimum of 5100 sq. ft., and another 1000 sq. ft. (as workshop), was to be given by the assessee to the owners free of cost, i.e., by way of cost of the development rights, retaining the balance built-up area, being flats, for himself. Further, vide Clause 4 of the Agreement, the assessee was to give an interest-free deposit of Rs.15 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he basis of the Revenue's case, since confirmed by the first appellate authority, and after considering the remand report called for by him upon admitting additional evidences u/r. 46A, is that no case for a mistake in the original agreement dated 17.02.2006 is made out. Both the assessee and SD are Developers, well conversant in land details, so that a 'mistake', which cannot even otherwise be lightly inferred, be so in the instant case. Further, the assignment was per a registered document, the value of which for the purpose of stamp duty and registration, was again taken at Rs.18 lacs. The plea of the consideration having been wrongly mentioned therein was thus not acceptable. The assessee's explanation was accordingly rejected as an aft....
X X X X Extracts X X X X
X X X X Extracts X X X X
....income as per the rectification deed itself inasmuch as the expenses on registration, etc. are not deducted from the gross consideration of Rs.18 lacs; the difference between the two incomes, i.e., as returned and assessed, being exactly Rs.15 lacs. 4. We have heard the parties, and perused the material on record, giving our careful consideration to the matter. 4.1 In our view, inasmuch as the question of whether the consideration of Rs.18 lacs specified in the agreement dated 08.08.2006 (PB pgs.101-129), duly registered, is wrongly so specified, and is thus inclusive of the refundable deposit of Rs.15 lacs, or not so, which arises for adjudication, is to be determined on a conjoint reading of the different agreements and a consideration ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e payment of the admitted consideration of Rs.3 lacs is not specified or borne out by the record, is to no consequence, and has been, as apparent, entered into only with a view to satisfy the Revenue authorities. 4.2 So however, on a consideration of the entirety of the facts and circumstances of the case, in our view, the assessee was entitled to a consideration of Rs. 3 lacs only on assignment and, accordingly, has rightly returned his net income therefrom, i.e., subject to the adjustment of incidental expenses. We say so for more than one reason. The interest-free deposit, even as admitted by the ld. CIT(A), as paid up to the date of the assignment (Rs.6 lacs), was paid for or financed only by the assignee, SD. In fact, even the subsequ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eement dated 08.08.2006 (PB pg.119). Further, why would the owners also not insist for the balance Rs.9 lacs; the assignment carrying all the terms and conditions of the principal agreement/s? The ld. CIT(A), while accepting that the assessee did not make any investment in the project, which had not even commenced as on the date of the assignment, and was only a middle man, yet continues to be guided by the lack of credibility of the rectification deed (which we endorse, stating our reasons for the same), despite clear findings corroborating the assessee's stand. All that the Revenue was, in our view, required to do to satisfy itself in the matter was to examine the veracity of the accounting entries made by SD in its regular books (PB pg.1....