TaxTMI 
TaxTMI 
2021 (7) TMI 206
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....T(A) erred in not interpreting rule 46A in letter and spirit and in not allowing the A.O to cross examine nor examine the submissions, explanations provided before the appellate authority. 4. The appellant prays that the order of the ld. CIT(A) on the above grounds be set aside and that of the assessing officer be restored. 5. The appellant craves leave to amend or to alter any ground or add a new ground, which may be necessary." 2. Briefly stated, the assessee had e-filed her return of income for A.Y 2015-16 on 09.12.2016, declaring a total income of Rs. 22,33,800/-. Subsequently, the case of the assessee was selected for scrutiny assessment under "Computer Aided Scrutiny Selection" (for short "CASS"), for the reason, that the investments in property made by her during the year were not commensurate to her returned income. 3. During the course of the assessment proceedings the A.O issued notices under Sec.142(1) on various dates, viz 21.09.2017; 26.10.2017; 09.11.2017; 17.11.2017 and 30.11.2017, wherein the assessee was inter alia called upon to furnish details of the properties that were purchased by her during the year along with the sources thereof. Howe....
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....sis of the 'agreements' which were obtained by him from the office of the Joint Sub-registrar(s), Mumbai, without perusing the contents of the same. It was the claim of the assessee that during the year in reference only the 'agreements' were entered into and registered with respect to the properties in question which were still under construction and full amount was not paid in any of the cases. It was the claim of the assessee that whatever amount was paid, the same, except for an amount of Rs. 13,32,000/-, pertained to the earlier years On the basis of her aforesaid contentions, it was the claim of the assessee that the A.O without perusing the contents of the 'agreements' had simply added the stamp duty value of the properties in question as were reflected in the AIR report. In sum and substance, it was the claim of the assessee that she had only entered into the respective 'agreements' during the year in question, and except for an investment of Rs. 13,32,000/- had not made any other investment during the year under consideration. Insofar the investment of Rs. 13,32,000/- was concerned, it was the claim of the assessee that the same was sourced from her duly disclosed sourc....
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....12 2.5. The Assessing Officer has, under section 69, made addition of Rs. 6,64,12,312, being the stamp duty value of the 6 agreements received by him from the Jt Sub Registrar, Mumbai. Contentions 2.6. Flat 101 and 201 - Insignia - Rs. 3,21,95,300 2.6.1. Please refer the Agreement dated 5th May, 2014 for purchase of the immovable property - refer page nos. 6 to 91 of the paper book. On perusal of the same, particularly, para 1 of the agreement (page no 12 of the paper book), it can be seen that the property is under construction on execution of the Agreement. 2.6.2. Further, please refer clause 'L' (page no 12 of the paper book andreceipt of the seller (page no 31 of the paper/book). It is evident that the appellant has made payments aggregating to Rs. 78,30,182 till the date of execution of the Agreement. 2.6.3. The Assessing Officer has made the impugned addition on the basis of the Agreement obtained by him from the office of Jt. Sub Registrar, Mumbai. Thus, copy of the Agreement is in the possession of the Assessing Officer. The said Agreement specifically states, as mentioned above, that the appellant has ....
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....the year under reference, much less on the basis of stamp duty value mentioned on the agreement and hence, the same needs to be deleted. 2.8. Flat 903 - Premier Exotica - Rs. 56,07,000 2.8.1. Please refer the agreement dated 25th June, 2014 for purchase of the immovable property - refer page nos 146 to 198 of the paper book. On perusal of the same, particularly, para 4 of the agreement (page no 152 of the paper book), it can be seen that the property is under construction on date of the agreement. 2.8.2. Further, please refer clause 'P' (page no 151 of the paper book) and receipt of the seller (page no 168 of the paper book). It is evident that the appellant has made a payment of Rs. 2,00,000 till the date of agreement, that too during the year ended 31st March, 2012, relevant to assessment near 2012-13. 2.8.3. The appellant submits that the Assessing Officer has made addition only on the basis of agreement obtained from the office of Jt. Sub registrar, Mumbai. Thus, copy of the Agreement is in the possession of the Assessing Officer. On perusal of the receipt issued by the seller on the agreement date, it can be seen that the appellant h....
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....the same, particularly, para 4 of the agreement (page no 259 of the paper book), it can be seen that the property is under construction on date of the agreement. 2.10.2. Further, please refer clause 'P' (page no 258 of the paper book) and receipt of the seller (page no 275 of the paper book). It is evident that the appellant has made a payment of Rs. 5,00,000 till the date of agreement, that too during the year ended 31st March, 2013 relevant to assessment year 2013-14. 2.10.3. The appellant submits that the Assessing Officer has made addition only on the basis of agreement obtained from the office of Jt. Sub registrar, Mumbai. Thus, copy of the Agreement is in the possession of the Assessing Officer. On perusal of the receipt issued by the seller on the agreement date, it can be seen that the appellant has made a payment of only Rs. 5,00,000 till the date of agreement, that too during the year ended 31st March, 2013, relevant to assessment year 2013-14. 2.10.4. Further, appellant submits that she has not made any payment towards purchase of the property during the year under reference. 2.10.5. In view of the above, the appellant contends tha....
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....for the year under consideration. Backed by his aforesaid observations, the CIT(A) being of the view that no addition w.r.t the investments in the properties in question was liable to be made u/s 69 or u/s 68 of the Act vacated the addition of Rs. 6,64,12,312/- that was made by the A.O. 5. The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Departmental Representative (for short 'D.R') submitted that the assessee had purposively evaded furnishing of the copies of the 'agreements' qua the properties in question in the course of the assessment proceedings and filed the same for the very first time before the CIT(A). It was, thus, submitted by the ld. D.R that as the details of the investments were not available with the A.O, therefore, he had rightly relied on the AIR information, and in the absence of any explanation as regards the nature and source of the investments in the properties in question had made the addition u/s 69 or u/s 68 during the year under consideration. It was further submitted by the ld. D.R that though the copies of the 'agreements' were filed by the assessee for the very first time in the course of the....
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....s paid by the assessee till the date of execution of the said respective 'agreements', which too, except for an investment of Rs. 13,32,000/- that was made during the year under consideration pertained to the years preceding the year under reference. In the backdrop of his aforesaid contention, it was the claim of the ld. A.R that as it was a matter of fact borne from the records that the assessee had not made any unexplained investments during the year in question, thus, no addition either under Sec. 69 or u/s 68 was called for in its case. 7. We have heard the ld. authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. Before adverting to the merits of the case, we may herein observe, that though the A.O had made the impugned addition of Rs. 6,64,12,3122/- u/s. 69 or u/s Sec. 68 of the Act, however, the revenue in its grounds of appeal had assailed the order of the CIT(A), for the reason, that he had erred in deleting the addition that was made by the A.O u/s 69C of the Act. As the aforesaid mistake appears to have inadvertently crept in on account of a typographical error while drafting the appeal, we,....
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....bserve, that as stated by the ld. A.R, and rightly so, the A.O had in the course of the assessment proceedings merely gone by the AIR information and had failed to peruse the contents of the aforesaid respective 'agreements' in question which were there before him. On appeal, the CIT(A) after perusing the 'agreements' qua the properties in question concurred with the claim of the assessee that the A.O had merely added the stamp duty value of the properties as per AIR information and had overlooked the actual transaction values. It was further observed by the CIT(A) that the actual amount that was paid by the assessee as per the 'agreements' was less than the stamp duty value. Further, it was noticed by the CIT(A) that all the six properties in question were under construction during the year in reference. Also, it was observed by the CIT(A) that a perusal of the 'agreements' revealed that the assessee had not paid any amount during the year under reference, except for an amount of Rs. 13,32,000/- that was paid by her during the year under consideration in respect of one of the property, viz. Flat Nos. 101 & 201- Insignia, vide agreement dated 05.05.2014. It was further observed ....
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.... 07.06.2014 Jt. Sub Registrar, Kurla 6 47,93,000 06.06.2014 Jt. Sub Registrar, Kurla 6,64,12,312 The AO made the addition of Rs. 6,64,12,312 u/s 69 of the Act on failure of the assessee to prove the sources of investments made and held the investments to be unexplained. The AO further, without prejudice to addition made u/s 69, made addition u/s 68 stating that corresponding sources remain unexplained and corresponding credit entries are not proved by the appellant w.r.t. the investment made. The ld. AR filed written submissions and explained each of the agreement entered into by the appellant (written Submissions reproduced above). The AR also produced the copies of each of the agreement. The submissions made be the AR can be summarized as under - "1 Each of the property is under construction. 2. AIR reflects stamp duty value and not the actual transaction value. 3. Actual amount paid by the assessee is less than the stamp duty \ value. 4. The appellant did not pay any amount during the year under reference, except Rs. 13,32,000, in respect of first property. Whatever sum....
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....y be gathered from a perusal of Page 7 - Para 5.1 of the assessment order. On being confronted with the said fact, the ld. D.R could not rebut the same. We, thus, in the backdrop of the aforesaid facts, are of the considered view, that as the copies of the 'agreements' in question were there before the A.O in the course of the assessment proceedings, therefore, the claim of the ld. D.R that the CIT(A) had admitted the same in violation of Rule 46A of the Income-tax Rules, 1962, is devoid of any merit, and thus, is rejected. The Ground of appeal No. 3 raised by the revenue is dismissed. 9. We have further perused the copies of the six 'agreements' which form part of the assessee's 'Paper book' (for short 'APB'), and are persuaded to subscribe to the observation of the CIT(A) that qua all the six 'agreements' the 'agreement value' was less than the 'stamp duty value'. Apart from that, we also concur with his view that though the 'agreements' were executed during the year under consideration, however, only part of the purchase consideration qua the properties in question was paid till the date of execution of the said 'agreements', and except for an amount of Rs. 13,32,000/- (supra....