TaxTMI 
TaxTMI 
2014 (4) TMI 701
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds as under:- "On the facts and in the circumstances of the case and in law the learned CIT(A) erred in directing the Assessing Officer to delete the addition of Rs. 15,00,000 made by the Assessing Officer on account of payment made to purchases after execution of sale deed without appreciating the facts that the payment was made after the execution of sale deed and not a part of transfer of plot as nothing was mentioned in sale deed in this regard." 2. Facts in brief:- The assessee had filed its return of income at Rs. 59,250 on 25th July 2005. The said return of income was processed under section 143(1) and thereafter, the case was re-opened under section 147 by issuance of notice dated 28th March 2011, under section 148 of the Act, on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... schedule of payment. Thus, he held that Rs. 15 lakhs has wrongly been claimed to minimize the tax incidence on long term capital gain. Accordingly, he disallowed the sum of Rs. 15 lakhs against the long term capital gain claimed by the assessee. 3. Before the learned Commissioner (Appeals), the assessee submitted that there was a letter dated 31st March 2005 signed by the assessee as well as the purchaser and both the parties have agreed and confirmed that sum of Rs. 15 lakhs would be incurred by the purchaser towards vacating the encroachment, earth filling, etc. The assessee was bound to indemnify the purchaser with regard to the encumbrances in respect of the plot of land in terms of the lease dated 30th April 2004. The assessee had ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance dated 30th April 2004, there is a clear cut clause that the purchaser shall acquire and access to the said property at own cost and expenditure. The relevant clause (e), as appearing in the said deed, reads as under:- "(e) There is no access to the said property and that purchasers shall acquire and access at their own costs, charge and expenses." 5. Learned Departmental Representative further pointed out that the total consideration mentioned is Rs. 46 lakhs and schedule of payment has also been given therein. There is no clause as such that seller is liable for getting the clearance or to vacate the encroachment. The letter, which has been submitted, is dated 31st March 2005, which is almost after one year, the said letter is merel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horities below and the material available on record. In this cae, the assessee had not offered any long term capital gain on sale of a plot in the original return of income. Such a long term capital gain was offered only in response to the notice under section 148. The assessee's case has been that even though in the conveyance deed dated 30th April 2004, entered with the purchaser mentions the sale consideration of Rs. 46 lakhs, but in fact he has received only Rs. 31 lakhs as Rs. 15 lakhs was incurred on getting the plot free from encroachment and proper access to the plot and also earth filling. In support of this contention, a letter dated 31st March 2005, has been placed on record signed by both the parties, which was filed before the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... On the contrary, as pointed out by the learned Departmental Representative, there is a specific clause in the deed [i.e., clause (a)] , to the effect that the vendor is seized and possessed of ht subject land absolutely, and which (deed) further stipulates that the purchaser will acquire and have the access on the said plot at its own cost as mentioned in clause (e) incorporated above. However, the deed provides that the purchaser will deduct the cost incurred by him from the sale consideration. If it has not been mentioned in the conveyance deed that it is axiomatic that the sale consideration mentioned in the conveyance deed is the actual consideration receivable by the assessee. Another very important fact which is emerging from the co....