TaxTMI 
TaxTMI 
2022 (11) TMI 909
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....e addition be deleted in the interest of justice Short Term Capital Gain: Rs. 1,01,05,000/- 4. The learned CIT(A) failed to appreciate that the Appellant received a sale consideration of only Rs.42,24,000/ - in respect of his property in question. The alleged receipt of Rs.1,08,08,000/ - is only a guess work for which there is no evidence. 5. Further, the learned CIT(A) failed to appreciate that the issue is covered under Section 153C but the proceedings were not held nor order passed under Section 153C. 6. The Appellate Order confirming the addition is therefore challenged. 3. The assessee has also raised the following additional grounds 7. The Hon. ITAT is requested to kindly admit the grounds which are taken for the first time before them/ as per the ratio laid down by the Han. Supreme court of India in the case of National Thermal Power Corporation Limited vs. CIT [1998] 229 ITR 383 (SC). 8. The Ld. CIT(A) erred in the adding the amount of Rs 23,66,606 as short term capital gain without appreciating the facts of the case. 9. The Ld. CIT(A) failed to appreciate the fact that (A) Short Term capital Gain of....
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....ported in 349 ITR 36, he submitted that the Hon'ble High court in the said decision has held that assessee can always make a new claim, which was not made in the return of income, before the appellate authorities. He accordingly submitted that the additional grounds should be admitted for adjudication, since all material facts necessary for adjudication are already available on record. 5. The ld. DR on the other hand strongly objected to the admission of the additional grounds. 6. After hearing both the sides and considering the fact that all material facts are already available on record, therefore, we admit the additional grounds for adjudication. 7. In ground of appeal No.1, the assessee has challenged the order of the ld.CIT(A) in confirming the addition of Rs.8,49,600/-. 8. Facts of the case, in brief, are that the assessee is an individual. A search and seizure operation u/s. 132 of the I.T.Act 1961 was carried out on 25.11.2010 in the residential premises of the assessee. The assessee had filed the original return of income on 23.01.2012 declaring income of Rs.820,968/-. Subsequently, in response to notice u/s. 153A dated 01.11.2012, the assessee filed the return....
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....dit pertaining to Sree Minerals stood explained satisfactorily and this addition of Rs.55,00,000/- is ordered to be deleted. 5.3.1) Now coming to the cash credits pertaining to Sri T Subba Rao, appellant's bank account nO.202011005700 maintained with ING Vysya Bank Ltd revealed the following deposits and payments, as under: Date Dr.(Rs.) Cr.(Rs.) 27-06-2009 1,50,000 07-07-2009 1, 49, 850 02-09-2009 1,00,000 14-09-2009 2,00,000 10-12-2009 2,00,000 17-12-2009 2,49,750 Total 2,00,000/- 8,49,750 The appellant has received an amount of Rs.8,49,750/from Sri T Subba Rao and out of this, he made a payment of Rs.2,00,000/- on 10-12-2009 and there was a closing balance of Rs.6,49,600/- as on 31-03-2010. Though, the appellant has furnished the confirmation letter from Sri T Subba Rao vide letter dated 18.02.2013, the credit worthiness of lending such a big amount is not proved since Sri T.Subba Rao though had PAN, was a non-filer. In view of the above, the addition of Rs.6,49,900/- standing in the name of Sri T. Subba Rao is sustained. 5.3.2) With re....
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....bmitted that merely because the loan creditor has not appeared before the AO, addition cannot be sustained when the assessee had produced documents to establish the genuineness of the party such as PAN of the creditor along with confirmation, bank statements showing payment etc. He also referred to the decision in the case of PCIT vs. Hitech residency Pvt.Ltd. reported in 96 taxmann.com 402. He acccordinlgy submitted that the addition made by the AO and sustained by the ld.CIT(A) should be deleted. 12. The ld.DR on the other hand heavily relied on the order of the ld.CIT(A). He submitted that the assessee by not producing the relevant documents to establish the identity and creditworthiness of the loan creditor and the genuineness of the transaction failed to discharge the onus cast on him in terms of section 68 of the I.T.Act. Therefore, the ld.CIT(A) was fully justified in sustaining the addition to the tune of Rs.8,49,600/- 13. We have considered the rival arguments made by both the sides, perused the orders of the AO and ld.CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the assessee in the ....
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....5 were not pressed by the ld. Counsel for the assessee for which the ld. DR has no objection. Accordingly these grounds are dismissed as not pressed. 16. Ground NO.3 and 6 being general in nature are dismissed 17. In ground of appeal No.4, the assessee has challenged the order of the ld.CIT(A) in confirming the addition of Rs.42,24,000/- 18. Facts of the case in brief are that during the course of assessment proceedings, the AO noted that during the search and seizure operation at the business premises of M/s. Sri Krishna Construction, copy of an agreement of sale dated 20.01.2009 entered into by the assessee with Shri C. Veerabadra Reddy bellery for sale of landed property admeasuring 15.44 acres located at Belagallu, Bellary district for consideration of Rs.1,08,08,000/- was found and was impounded vide page No.76 to 77 of annexure A/TBC/5. The AO recorded the statement of the assessee u/s. 131 of the I.T.Act, 1961 in respect of this transaction dated 08.03.2013. He observed from the reply of the assessee that initially he claimed that the actual consideration received was Rs.27,00,000/- only. However, the assessee changed his version stating that actual consideration re....
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....ccordingly entered into an agreement of sale (unregistered) dated 20.01.2009 with Sri Veerabhadra Reddy @ Rs.7,00,000/- per acre for a total consideration of Rs.1,08,08,000/- and received an advance of Rs.27,00,000/- with a condition that the balance amount of Rs.81,08,000/- was to be paid within four months i.e. on or before 20.05.2009. 20. However, subsequent to this agreement of sale, changes were reportedly brought out in the master-plan and the proposed ring alignment drifted away from the appellant's land bringing an end to the abnormal real estate boom. As such the buyer did not show any enthusiasm and he did not report for registration within the agreed stipulated time of four months ending on 20.05.2009. It was submitted that in the changed circumstances, after hard bargaining with Sri Veerabhadra Reddy, the property was finally registered for an amount of Rs.15,44,000/- (as per fair market value) on 26.06.2009. It was submitted that the assessee received an amount of Rs,42,44,000/-(advance of Rs.27,00,000/- plus Rs.15,44,000/- on the date of registration) as total consideration on this sale. It was submitted by the assessee that in spite of bringing all these facts....
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....by the assessee and Shri Veerabadra Reddy for sale of 15.44 acres of land located in Bellary for a consideration of Rs.1,08,08,000/-, however due to changed circumstances the buyer did not agree to purchase the land at the agreed price for which the assessee had to sell the same at lesser price. He submitted that the registered document shows a particular price which should be considered as correct in absence of any contrary material. Referring to the decision of Hon'ble Kerala High Court in the case of CIT vs. K.C.Agnes reported in 262 ITR 354, he submitted that it is not necessary that the price stated in the agreement should be taken as against the amount mentioned in the sale deed. He further submitted that there is no evidence before the AO that assessee has received any extra money over and above what is mentioned in the sale deed. For the above proposition he relied on the decision of Hon'ble Supreme Court in the case of KP Varghese vs. ITO reported in 131 ITR 597, where it has been held that the burden of proving is that of revenue when there is allegation of under statement of concealment in the consideration shown. He further submitted that the market value of the impugne....
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....that given an opportunity the assessee is in a position to produce the above person before the AO and substantiate that due to the changed circumstances, that is due to drifting away of the ring road from the side of the land, its market value fell down drastically for which the land was sold at a lesser price then the agreed price. 26. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the AO with a direction to give an opportunity to the assessee to substantiate his case by producing Mr.C.Veerabhadra Reddy for his examination. Further, the assessee is also directed to produce necessary evidence to show that the proposed plan was drifted away from the land in question for which the price has come down. The AO shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. This ground raised by the assessee is accordingly allowed for statistical purposes. 27. So far as the additional grounds are concerned, the assessee is aggrieved by the order of the ld.CIT(A) in confirming the addition of Rs.23,66,606/- made by the AO. ....