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TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 295
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....ns, surmises & conjectures. Therefore, it is prayed to cancel the addition upheld of Rs. 5,31,58,400/-. 3. Upholding the addition of Rs. 5,31,58,400/-, on the ground of alleged receipt of cash over & above the consideration declared in the sale deed, in total disregard of the evidences on record, particularly the statements of the directors of Surya Properties Pvt. Ltd, recorded by the A.O. during assessment proceedings & on their cross examination by appellant & the affidavit submitted by the broker Mr. Vilas Chaudhari. 4. Relying on the statement of Mrs. Sweta Keni Kataria, recorded at the back of appellant, to justify the addition made, without appreciating the fact that no opportunity of cross examination of Mrs. Sweta Keni Kataria was allowed to appellant. 5. Upholding the addition of Rs. 5,31,58,400/-, on the ground of alleged receipt of cash, over & above the consideration declared in the sale deed, by believing the part of the statements of the directors of Surya Properties Pvt. Ltd, recorded during survey action against Surya Properties Pvt. Ltd & by the DDIT (Inv) during post search inquiries & by disbelieving part of the same, particularly relating to the sum of Rs....
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....rn of income, the assessment was completed by the Deputy Commissioner of Income Tax, Central Circle-1, Nashik ('the Assessing Officer') vide order dated 30.12.2016 passed u/s 143(3) r.w.s. 153A of the Act at a total income of Rs. 11,27,78,280/-. While doing so, the Assessing Officer made an addition of Rs. 5,31,58,400/- as undisclosed sale consideration on sale of the property. The factual background leading to the above addition is as under :- The appellant owned a property situated in village Makhamalabad bearing Survey No.347/1, Taluka Nashki admeasuring 19373 sq.mtrs. Out of which an area admeasuring about 14125 sq.mtrs. was sold vide Development Agreement and Power of Attorney executed on 12.05.1995 to M/s. Thakkers Developers Ltd. for a consideration of Rs. 12,51,000/-. Though the agreement was executed and registered, however, no sale deed was executed in favour of the said Thakkers Developers Ltd. Subsequently, the Thakkers Developers Ltd. sold this property vide Sale Deed dated 21.11.2013 to M/s Surya Properties (Nashik) Pvt. Ltd. (hereinafter referred as "SPPL") for a consideration of Rs. 5,15,00,000/-. The survey operations u/s 133A of the Act were carried out in the p....
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....rchasing company i.e., SPPL had changed their stand on the cross-examination by stating that they negotiated the deal and finalized the terms and conditions with land broker namely, Kenny Kataria, who was no more, only in order to save the appellant herein. The Assessing Officer also recorded the statement of spouse of the said Kenny Kataria, which is extracted at Para 7.18 of the assessment order. The Assessing Officer also had not believed the statements given by Directors of SPPL on cross-examination stating that they only negotiated the deal and finalized the terms and conditions for the sale with said Kenny Kataria as the said name is not appearing in any of the impounded documents. Further, the Assessing Officer analyzed the notings found in the impugned sheets and concluded that the amounts mentioned in the loose sheets would show that the amount was paid to sellers of the property and concluded that the cash portion is also paid to the seller of the land and accordingly concluded that the appellant received a sum of Rs. 5,31,58,400/- over and above the consideration stated in the sale deed. Accordingly, made addition of Rs. 5,31,58,400/- as "undisclosed consideration" on sa....
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.... the English translated copy of the said Development of Agreement placed at Pages 35 to 37 of the Paper Book. He submitted that the appellant had no interest or title in the subject land as the appellant had relinquished ownership rights over the subject land in favour of Thakkar Developers Ltd. The appellant executed sale deed as the name of the appellant still appears in land records as land owner. He also took us through the English translated copy of the sale deed dt.21.11.2013 entered among the SPPL, the appellant and Thakkars Developers Ltd., placed at pages 56 - 59 of the Paper Book and also took us to the relevant clauses of the sale deed to show that sale consideration was also paid only to Thakkers Developers Ltd., and the appellant had no interest whatsoever over the subject land. Thus, he submitted that in the absence of evidence on record, no addition can be made merely based on the statements given by the third parties, based on the notings on the loose papers impounded during the course of survey. He placed reliance on the decision of Hon'ble Bombay High Court in the case of ACIT Vs. Lata Mangeshkar reported in 97 ITR 696. 8. On the other hand, the ld.D.R. placed r....
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....e property to someone else. In practical life, there are events when a person, even after executing an agreement to sell an immoveable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed. 24. Thus, a right in respect of the capital asset, viz. the property in question had been transferred by the appellants in favour of the vendee/transferee on 27th December, 2002. The sale deed could not be executed for the reason that the appellants had been prevented from dealing with the residential house by an order of a competent court, which they could not have violated." 10. Therefore, from the above facts it clearly emanates that the appellant herein has no interest ....