TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1837
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....za at Sativali, Vasai (East) Thane. On appeal before Commissioner (Appeals) the action of assessing officer was confirmed. Therefore, further aggrieved by the order of ld. Commissioner (Appeals) the assessee approached this Tribunal in second appeal. The assessee has raised following grounds of appeal; Addition of variance and sale price of flats (1) The learned Commissioner (Appeals) erred in confirming the addition of Rs. 2,52,65,247 /-under the pretext of suppressed receipt on account of alleged 'on money', wherein the Stamp Duty value is lower than the amount declared under sale, the addition has been made without any evidence on record or conclusive proof, and merely based on conjecture and surmises. Hence the addition may be deleted. (2) The learned Commissioner (Appeals) erred in not appreciating the sale of the Gala No.3 has been done at a higher rate due to the advantage of having immediate and exclusively use of the recreational ground and hence, the same cannot be compared with the other units. In view of the same, the addition may be deleted. (3) The appellant craves leave to add, amend, alter or delete any or all the above grounds of appeal. 3. We have hea....
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....rate per sq. ft., market value as per Ready Recknor Value, agreement rate and value of agreement, copy of Income tax returns of both the buyers along with the profit and loss accounts and the audited balance sheets. The location plan/site plan of the entire area is also placed on record. The ld AR for the assessee further submits that the case law relied by assessing officer in ITO Vs Diamond Investment and Properties in ITA No. 5537/M/2009 dated 29.07.2010 is not applicable on the facts of this case. In support of his submissions the ld AR for the assessee relied on the decision of Tribunal in case of ACIT Vs Rustom Soli Sethna ITA No. 5086/M/2014 dated 22.06.2017, Prashant Arjunrao Kolhe Vs DCIT [2016] 75 taxmann.com 156(Mumbai Tri), Aum Shiv Enterprises Vs ACIT ITA No. 6985 /M/2010 dated 24.08.2013, Neelkamal Realtors and Erectors Vs DCIT ITA No.1143/M/2013 dated 16.08.2013 and decision of Hon'ble Apex Court in K.P. Varghese Vs ITO [1981] 131 ITR 597(SC). 4. On the other hand the ld. DR for the revenue supported the order of the authorities below. The ld. DR for the revenue further submits that there was about 75% difference in the rate of price of building No. 3 and 10. The as....
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.... was transferred through "Conveyance Deed". The contention of assessee was not accepted by Assessing Officer holding that the assessee received on money from a major part of sale consideration has been received in cash. Therefore, the Assessing Officer proposed to estimate the sale consideration of building no.10 @ 5025 per sq. ft thereby proposed addition of Rs. 2,52,61,280/-. In order to verify the transaction, the Assessing Officer issued notice under section 133(6) to buyer of building no.3, calling upon them to submit copy of rent agreement, details of machinery installed, confirmation whether exclusive possession has been granted for use of adjoining area, how the adjoining are has been put to use by them, source of financing cost of Gala/building details of Director/shareholders. The buyer vide its reply dated 14.01.2015 submitted copy of rent agreement, details of machinery installed in AY 2010-11 to AY 2013-14. The buyer confirmed that the adjoining are/Recreation Garden area is forming part of their building and have exclusive access to the said portion. The said area is utilized by them for stocking the material. The funds for purchase of building were obtained through l....
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.... to through any light, if any, "on money" was paid. No enquiry from other purchaser was carried out by Assessing Officer, though the assessee has furnished the details of all the purchasers. 7. It is settled law that the onus to claim that apparent is not real is on one who so claims. In our view, when the Assessing Officer requires the assessee to show-cause as to why there is difference between two purchasers and that the assessee offered explanation, no addition can be made simply discarding his explanation. There must be something concrete evidence to show that the version given by assessee is not correct. It is settled law that no addition can be made on hypothetical basis or presuming a higher sale price by simply rejecting the contention without cogent reason. Moreover, the higher rate of building No.3 was disclosed by assessee in his books of accounts, rather it was not discovered by the assessing officer. In our view the addition was made by assessing officer merely on assumption and presumption basis and without any evidence. 8. The case law relied by Assessing Officer in ITO Vs Diamond Investment and Properties (supra) is not applicable on the facts of the present case....