TaxTMI 
TaxTMI 
2016 (11) TMI 359
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.... 77,800/- (iv) Unexplained source of investment in Reliance Mutual Fund Rs. 4,00,000/- 2.2 Aggrieved by the order of assessment dated 28.12.2010 for A.Y. 2008-09, the assessee preferred an appeal before the CIT(A)-33, Mumbai. The learned CIT(A) disposed off the appeal allowing the assessee partial relief. In the impugned order the learned CIT(A) deleted the additions made in the order of assessment listed at para 2.1 of this order (supra) at (i) Unexplained cash credits of Rs. 2,05,22,380/- and at (iv) Unexplained source investment in Reliance Mutual Fund of Rs. 4,00,000/-. The other two additions made by the Assessing Officer (AO) listed at para 2.1 of this order (supra) at (ii) and (iii) were upheld. 3. Aggrieved by the order of the CIT(A)-33, Mumbai the Revenue is in appeal raising the following grounds: - "1. On the facts and circumstances of the case and in law CIT(A) erred in deleting the addition of Rs. 2,05,22,380/- on account of unexplained cash credit u/s 68 of the I.T. Act, 1961. Even though the Assessee failed to prove the genuineness of unsecured loans. 2. On the facts and circumstances of the case and in law, the learned CIT(A) erred in ....
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....d that both before the AO and learned CIT(A), the assessee had furnished the copies of purchase agreement of flat, copies of bank account, copies of relevant pass books of the assessee's relatives who had contributed towards purchase of the aforesaid property for the assessee and confirmation thereof, i.e. of Shri Dilip Gurnani (son), Deepa Hopchandani (daughter), Kamal Sadhwani (brother-in-law) and Manju Kamal Sadhwani (sister). The learned CIT(A) has also acknowledged that the same details were filed before her in the form of a paper book. It is submitted that apart from the above, the assessee had also filed an affidavit of Smt. Laxmi Bhatia reiterating the facts of the matter, which were already explained to the AO in assessment proceedings. In this context, it is submitted by the learned A.R. for the assessee that the contention of Revenue that the learned CIT(A) had admitted additional evidence without giving the AO opportunity under Rule 46A of the IT Rules is baseless. All the evidences in the form of copies of PAN, passports, bank accounts and confirmations of the aforesaid blood relatives considered by the learned CIT(A) while deleting the addition of Rs. 2,05,22,380/- ma....
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....k of Baroda N.A. 4 Laxmi Bhatia India - - N.A. (2) Subsequent to death of their father these children decided to purchase a house for the mother however she being alone and not competent to deal with the Builder, Oberoi Constructions P. Ltd., the builder was approached by her sister Mrs. Laxmi Bhatia for purchase of flat No.406 in Oberoi Springs. A letter of allotment of 18.05.2006 was issued by the builder in the name of Mrs. Laxmi Bhatia for a consideration of Rs. 88,72,900/-. Against the same Mrs. Laxmi Bhatia has paid the amount in installment. (3) The appellant has filed ledger account of Mrs. Laxmi Bhatia as it appears in the books of accounts of Oberia Construction Pvt. Ltd. given by them. Same is in form of Annexure-'A' . It is noted that: (i) The first payment of Rs. 4,43,645/- made by Mrs. Laxmi Bhatia on 12.04.2006 by cheque No.062670 then second Rs. 15,18,225/- vide cheque No. 0282147 dated 15.05.2006 and third Rs. 7,00,000/- by cheque No. 816754 dated 12.05.2006. Then there are further payments as can be seen from Annexure-A totaling to Rs. 35,00,358/ done by Mrs. Laxmi Bhatia. It is seen that the booking amount of Rs. 4,....
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....Out of the total consideration of Rs. 88,72,900/- (Rupees Eighty Eight lakhs Seventy Two Thousand Nine Hundred only) the confirming party/ies have paid a sum of Rs. 55,36,689/- (Rupees Fifty Five Lakhs Thirty Six Thousand Six Hundred Eighty Nine only) to the developer and Rs. 33,36,211/- (Rupees Thirty Three Lakhs Thirty Six Thousand Two Hundred and Eleven only) is still payable by the confirming party/ies to the developers." "4. Out of the total consideration of Rs. 15,184,152/-(Rupees One Crore Fifty One Lakh Eighty Four Thousand One Hundred and Fifty Two only) a sum of Rs. 11,847,941/- (Rupees One Crore Eighteen Lakhs Forty Seven Thousand Nine Hundred and Forty One only) shall be payable by the purchaser to the confirming party/ies and the balance sum of R.3,336,211/- (Rupees Thirty Three Lakhs Thirty Six Thousand Two Hundred and Eleven only) shall be payable by purchaser to the developer. 5. The purchaser has paid the said sum of Rs. 5,536,689/- (Rupees Fifty Five Lakhs Thirty Six Thousand Six Hundred and Eighty Nine only) to the confirming party/ies on or before execution hereof (the payment and receipt the confirming party/ies both hereby admit and acknowledge). The bal....
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....8.05.2006 for the price of Rs. 88,72,900/ - which is much above the market rate as per stamp duty authorities of Rs. 50,40,000/- prevailing in January 2008. Even if it is assumed that builder was selling others the flat @ rate which has been reflected at Rs. 1,51,84,152/-, the appellant being purchaser cannot be brought into the net of provision of sec.50C which is applicable to the seller. In this case neither purchaser nor seller are hit by provision of sec.50C for the reason that seller is the builder. Thus sec.50C is not applicable for the reason that the appellant is the purchaser of the property. 3.8 After going through all these details I am convinced that it is a case where a tripartite agreement has been entered for the enhanced consideration of the flat which was neither due nor paid and same was not payable even subsequent to agreement entered into 11.01.2008. It is also a case that the appellant has filed a case declaring total loss at Rs. 17,30,697- against which the other investments as well as purchase of immovable property amount has been added to tax income in her hands at Rs. 1,94,19,483/- when the facts remains that the total investments have been made by the ....
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....nd the appellant's sons and daughters and sister and brother in law. Even keeping the affidavit aside the bank account copies furnished are showing the entries and supporting the claim of appellant. Hence I find force in the argument of the appellant that no fund of Smt. Laxmi Bhatia was invested in the flat which is appearing in the name of appellant and hence the affidavit filed by Smt. Laxmi Bhatia that she does not have any right, title or interest in the said flat that no amount is payable to her for the difference as is reflected in the tripartite agreement dated 11.01.2008 is reliable being supported by facts. 3.12 In view of this, coupled with the undisputed fact that appellant's son whose name is also incidentally appearing as purchaser along with the appellant on page 2, Mr. Dilip J. Gurnani and that he himself, daughter Deepa Hotchandani, brother-in-law Kamal Sheetaldas Sadhwani Gopwani and sister Manju Kamal Sadhwani who all are staying abroad (as is evident from the passport in their names) where they have business abroad and have invested the funds through their bank accounts maintained in India, the identity, credit worthiness and the purpose of transactio....
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....n (E), Mumbai ('said flat'). In this regard the children sought the help of the assessee's sister Smt. Laxmi Bhatia to deal with the Builder, M/s. Oberoi Construction P. Ltd. As per the letter of allotment dated 18.05.2006 issued by the Builder the consideration for the said flat was Rs. 88,72,900/-. The allotment letter was issued in the name of Smt. Laxmi Bhatia since she dealt with the Builders and facilitated payments in respect to acquisition of the said flat. In these circumstances, the Builders refused to enter into any agreement with the assessee, but rather entered into a tripartite agreement with Smt. Laxmi Bhatia, the assessee and itself; wherein the consideration for sale of flat was shown as Rs. 1,51,84,152/- (the Builder was said to be selling other flats to customers at that rate) as against the recorded sale price of Rs. 88,72,900/- which was also recorded in the agreement. 5.3.4 The learned CIT(A) at para 3.4 of her order, after examining the bank statements of Mrs. Laxmi Bhatia vis-a-vis her ledger account, as it appeared in the books of account of the Builders, observed that the cheques issued by her to the Builders from her bank account for acquisition of the....
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....tificial increase in the name of Mrs. Laxmi Bhatia and had appeared, since the investment in the flat as per the agreement was shown at Rs. 1,51,84,152/-; whereas as per the letter of allotment and in accordance with the registered agreement the consideration for purchase of the flat is recorded at Rs. 88,72,900/-. In fact, according to the learned CIT(A) Mrs. Bhatia's name appeared in the allotment letter only because of her dealing with the builder for facilitating purchase of the said flat for the assessee and it is not the case of the AO that she had invested any amount in the purchase of the said property at any stage. The learned CIT(A) also observed that the affidavit of Mrs. Laxmi Bhatia reiterates the fact that she was only facilitator for the purchase of the said flat on behalf of the assessee, as the funds for purchase thereof were arranged through the assessee's and her close relatives and the entries in the bank account copies examined, corroborate the claim of the assessee. 5.3.7 In the factual matrix of the case, as discussed above, we concur with the factual findings of the learned CIT(A) that it has been established that the assessee's son, Dilip Gurnani; daught....