AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 658
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...., having been confirmed by Ld CIT(A), the assessee has preferred these three appeals before us. 3. We shall first take up the appeal filed for AY 2003-04. For this year, the assessee had originally filed return of income on 25.10.2002 and the assessment was completed u/s 143(3) on 30-01-2006. Hence, as on the date of search, the AY 2003-04 falls in the category of concluded assessment and hence it would not be abated u/s 153A of the Act. In the financial year relevant to this assessment year, the assessee had received a sum of Rs. 50.00 lakhs as gift from a Dubai National, who happened to be his non-relative. This gift amount had already been declared in the original return of income. In sec. 153A proceedings, the assessing officer assessed the above said gift of Rs. 50.00 lakhs as income of the assessee and the same was also confirmed by Ld CIT(A). 4. Before us, the Ld A.R submitted that the department did not unearth any incriminating material during the course of assessment proceeding in order to show that the impugned gift amount was bogus one or the assessee had funded the same. He submitted that, in the absence of any incriminating material, the assessing officer was not en....
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....n of income filed for this year well before the date of search. It is also an undisputed fact that the assessing officer, during the course of original assessment proceedings, has made enquiries about the gift not only with the assessee, but also with the donor directly. Both the assessee as well as the donor has duly replied to the queries raised by the AO. Having satisfied with the genuineness of the gift, the assessing officer did not make any addition. 8. During the course of search proceeding, the department has found the gift confirmation letter and the AO has proceeded to examine the same on the basis of this document. In this regard, we agree with the contentions of the Ld A.R that this gift confirmation letter cannot be considered to be an incriminating material warranting an examination, since it only confirms the disclosure already made by the assessee and not against such disclosure. A material can be considered to be an incriminating material, only if it shows that the apparent was not real. A perusal of the present assessment order also shows that the assessing officer has only revisited the concluded matter relating to the gift and assessed the same on certain new g....
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....ing circumstances clearly show that the admission made by the assessee was not only under confused mind but also totally contrary to the facts. Accordingly he submitted that the tax authorities are not justified in placing reliance solely on the sworn statement given by the assessee. He submitted that the assessee has retracted from the statement while filing return of income by not disclosing the amount admitted by him. Later, before the AO, the assessee has furnished detailed reasons and evidences to show that the admission was wrong. Accordingly he submitted that the tax authorities are not justified in placing reliance solely on the sworn statement for making the impugned addition. In this regard, he placed reliance on the decision rendered by Hon'ble Supreme Court in the case of Vinod Solanki Vs. Union of India (2008)(16 SCC 537), wherein the Hon'ble Supreme Court has held that it is a trite law that evidence brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidence, which would lend adequate assurance to the court that it may seek to rely thereupon. He submitted that the tax authorities have not br....
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....ife, acquired, vide Deed of Transfer dated 08.12.2006, a residential property, being flat no. 5, at the Anand Vihar CHS Ltd., 20th Road, Khar (W), Mumbai - 400052, for a sum of Rs. 24 lakhs. 2. The trail of events / documents leading to the said purchase was as under: [Ref: Pg. No. 192 of the Paper Book ("P.B.")] a) MOU dated 16.08.2005, for purchase of the said property. Not executed and copy not available] b) Letter of Society dated 08.11.2005, addressed to the Vendor, conveying its NOC for transfer of share nos. 833 to 842, related to the said property, in favour of the assessee [Ref: Pg. No. 179 of the P.B.]. This NOC was subject to obtaining NOC from the collector, M.S.D. c) Letter dated 12.11.2005, received from Mahesh A. Thaker, Advocate, for and on behalf of Mrs. Sonaben, widow of Late Premjibhai Karsondas Rawadka, claiming title to the said property alongwith other legal heirs and stating that the vendors were not absolute owners of the said property [Ref: Pg. No. 180 to 185 of the P.B.] (d) In her application to transfer the flat dated 21.2.2006 filed before the Society, the transferor cited her bad financial position and need of money, as the reason for transfer. [....
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....he same for registration to the office of the Sub Registrar. (h) An affidavit dated 11.12.2006 was executed by the vendor stating that the Supplementary MOU (supra) was entered into, since she was not in a position to deliver a clear marketable title to the said property, free from all dispute encumbrances and government orders, including society clearances, to the assessee. She reaffirmed the said Supplementary MOU (supra) and confirmed that she had received total Rs. 30,89,167/- towards transfer of the said property in favour of the assessee [Ref: Pg. No. 193 to 194 of the P.B.]. (i) Deed of Transfer, dated 08.12.2006, for transfer of the said property in favour of the assessee [Ref: Pg. No. 134 to 176 of the P.B.]. Its salient features are as under: - Deed of Transfer, dated 08.12.2006 - Transferor - Ms. Rajuben Arun Rawadka - Transferees - Mr. Sanjay Kohli and Ms. Binaiferr Kohli - Confirming parties - Mr. Girish Arun Rawadka, Mr. Ashok Arun Rawadka, Ms,Usha Pradip Boricha and Mr. Pravin Rawadka. - Property - Room No, 5, admeasuring 450 sq. ft. at Anand Vihar Society, 20th Road, Khar (W), Mumbai - 400 052, represented by share certificate nos. 833 to 842. - NOC granted ....
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....ent of the assessee, dated 07.02.2008, under section 132 (4) at page 66 to 68of the P.B. B. On merits 1. At the time of entering into the MOU in 2005, the said property, jointly purchased by the assessee and his wife, was subject to various risks and uncertainties, arising due to: a) A number of claimants to title to the said property, who could prevent / obstruct the deal. b) Objections from the society (despite the NOC), arising out of claims and counter claims. c) Need to obtain NOC of the Collector MSD d) There was unauthorized construction of about 130 sq. ft. (Which was later on ordered to be demolished by the Collector, while giving NOC.) 2. From the time of agreeing to purchase the said property, till its finalization/consummation, the assessee faced various claims to the title. Some of them could not be resolved by the transferor, including some claims to title. 3. Since the Transferor was required to give a clear, free and marketable title to the property to the Transferee after resolving all disputes / claims and obtaining all approvals, which she was unable to do so, she had agreed to receive a lesser sale consideration, leaving all the attendant risks of such c....
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....e well within his right for an assessee to rebut the admissions made in the sworn statement, when the provisions of sec. 132(4) specifies that the said admission "may be" used as evidence. The admission made by the assessee is no doubt, best evidence, but there is nothing in law to prevent the assessee to show that the said admission was wrong. In our view, the said admission may be relied upon only if the assessee fails to rebut the same with cogent evidences. Thus the reliability of the admission would depend upon the facts and circumstances of each case and hence any general proposition should not be made about its reliability. 17. In the instant case, as noticed earlier, the assessee has narrated the events and also the circumstances which compelled the vendors to reduce the sale consideration at the time of registration of the flat. Since the said evidences have not been shown to be wrong by the tax authorities, we are unable to sustain the addition of Rs. 21.00 lakhs made by the assessing officer in AY 2007-08. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the assessing officer to delete the addition. 18. We shall first take up the appeal for the....
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....ker, Advocate, for and on behalf of Mrs. Sonaben, widow of Late Premjibhai Karsondas Rawadka, claiming title to the said property along with other legal heirs and stating that the vendors were not absolute owners of the said property [Ref: Pg. No. 180 to 185 of the P.B.]. d) An application dated 25.04.2007 was filed by the Transferor, with the Collector MSD, seeking his NOC for transfer of the said flat with the open space (plot) beside it, to the assessee [Ref: Pg. No. 211 - 212 of the P.B.]. e) An unsigned receipt dated 23.02.2007, for a part payment of Rs. 10,00,000/- against the then agreed consideration of Rs. 88.09 lacs for transfer of the flat alongwith open plot. [Ref: Pg. No. 178 of the P.B.]. f) The Collector MSD, vide letter dated 02.06.2007, granted approval for such transfer of the property in favour of the assessee, but ordered that the open space appurtenant to the premises / property did not belong to the Transferor, but was a common plot of land allotted to the society for its common use. Further, the additional constitution of around 130 sq. ft. was ordered to be demolished [Ref: Pg No. 214 to 217 of the P.B.]. g) Deed of Transfer, was executed on 26.07.2007, ....
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....e A.O.; - there is no admission of any wrong doing by the assessee even in the statement; - such surrender was under duress or mistaken belief of fact or law; and - such statement is later on retracted / not acted upon This legal position is too well settled, under general law as well as under the Act. In fact, vide Instruction No. F. No.286, dated 10.03.2003, the CBDT itself has instructed against such practice of extracting surrender. Please also refer to the subsequent statement of the assessee, dated 07.02.2008, under section 132 (4) at page 66 to 68 of the P.B. B. On merits 1. At the time of entering into the MOU in 2005, the said property, jointly purchased by the assessee and his wife, was subject to various risks and uncertainties, arising due to: a) A number of claimants to title to the said property, who could prevent / obstruct the deal. b) Objections from the society (despite the NOC), arising out of claims and counter claims. c) Need to obtain NOC of the Collector MSD d) There was unauthorized construction of about 130 sq. ft. (Which was later on ordered to be demolished by the Collector, while giving NOC.) e) The issue of the Vendor's right to transfer ....