TaxTMI 
TaxTMI 
2023 (9) TMI 743
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....assets. The company has offered income on the basis of agreement (i.e. MOU) in A.Y. 2010-11. The income double taxed in A.Y.2011-12 is against law of natural justice. WITHOUT PREJUDICE TO THE ABOVE: 1. The Ld. CIT(A) erred, not to determine, the income which has been offered in the assessment year 2010-11 on the basis of surrender of rights of purchase, as tri party MOU agreement dt. 18.03.2010 and taxed it in A.Y. 2011-12, amounts to double taxation that too after reopening the assessment u/s 148 without examining legal position and without appreciating facts. 2. That the Ld. CIT(A) erred to discard the additional evidence produced, confirming death of three owner of land as per the rule 46A of Income-tax Act, while the rule 46A does fetter the right of assessees to produce evidences but it does not restrain the CIT(A)'s power u/s 254(4) or 250(5)." 2. Brief facts culled out from assessment-order are such that a search u/s 132 was carried on "Chugh Group" of Indore wherein two documents were seized by authorities. These documents revealed details of a sale- transaction of land done by assessee. Let us familiarize ourselves with the parties to the docu....
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..... 99,20,000/- upto AY 2010-11. The assessee also submitted that as per MOU dated 18.03.2010, the assessee's share, namely the surrender value of right over and above the cost was fixed at Rs. 29,30,000/- and the assessee had already offered it in Previous Year 2009-10, AY 2010-11 on the basis of MOU dated 18.03.2010. However, the AO held that the MOU dated 18.03.2010 was in future tense and the sale-deed was actually executed on 24.06.2010 (which is also mentioned in tri-party Agreement dated 20.07.2010), thus the transaction of sale was actually done on 24.06.2010. Accordingly, the AO insisted that the issue actually related to previous-year 2010-11, AY 2011-12 (Para No. 1 / Page No. 4 of assessment-order). The AO also accepted the assessee's version that the receipt of Rs. 29,30,000/- had been shown in the return of income of AY 2010-11 (Para No. 2 / Page No. 4 of assessment-order). But with regard to the cost of land, on perusal of Clause No. 2 of the aforesaid purchase-agreement dated 07.02.2008, the AO found that the assessee is stated to have purchased land for Rs. 62,00,000/- and paid a sum of Rs. 12,00,000/- (partly through cheque and partly in cash) by 26.12.2007 and remai....
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....uring first-appeal, the assessee submitted that all three original owners, RLM, had expired and in support the assessee filed death-certificates which are accepted by CIT(A) in Para No. 2 of appeal-order. But then CIT(A) noted that the assessee did not file any evidence to prove the cost of Rs. 99,20,000/-. Accordingly, he confirmed the addition made by AO by concluding thus: "The assessee, having failed to produce any documentary evidence in support of its contention that the amount of Rs. 99,20,000/- was the cost of land paid by it to the three dead persons, Sri Ram, Sri Lakshman and Mr. Munna in the FY 2007-08, is liable to LTCG tax on the amount of Rs. 99,20,000/- in the FY 2011-12. In the absence of copies of bank statements evidencing the payment of Rs. 99,20,000/- to the so called 'original owners' of the land, the contention of the assessee raised in ground nos. 1 & 2 are not acceptable. Therefore, the assessment of LTCG of Rs. 99,20,000/- in the hands of the assessee for the AY 2011-12 is confirmed." 4. Still aggrieved by order of CIT(A), the assessee has come in next appeal before us. 5. We have heard the learned Representatives of both sides at length and ....
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.... Net Income in the hands of assessee company offered in AY 2010-11 Rs. 29,30,000 (iii) In a Written-Submission filed to us in Paper-Book, following claims are made: Page No. 2 of Paper-Book: "3. That the party of the first part i.e. Distinct Realty Pvt. Ltd. could have paid with interest to parties of third part Mr. Rama, Mr. Munna and Mr. Laxman Amount Rs. 99,20,000/- shown as advance in the books, as the sale-deed was not executed/registered in the name of assessee company, till A.Y. 2010-11" Page No. 6 of Paper-Book: "That the section 2(47) of Income-tax Act, which defines the word "transfer" in relation to capital assets. The assets can be capitalized on execution/registered of sale deed but here the assessee company offered the income on the basis of MOU (for surrender of rights on land) dated 18/03/2010, as such the sale deed was not registered in the name of assessee company, showing continuously advance to owner of land since A.Y. 2008-09, it's not capitalized in the books of account of the assessee company." (iv) The CIT(A) has understood assessee's case as if the assessee had paid Rs. 99,20,000/- to the original ow....
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....ison of two sheets, one can easily discern a total mis-match. While in the first-sheet which is audited by auditors, the break- up of receipt of Rs. 45,83,006/- shown in P&L A/c was "Misc. Receipts of Rs. 35,28,123 (+) Site maintenance/supplies of Rs. 10,54,883/-", in the second-sheet which is signed only by assessee and not by auditors, it has changed to "Profit of transfer of rights of Piplia Kumar Land to M/s KMM Real Estate & Construction Pvt. Ltd. - Rs. 29,30,000/- (+) Income of site maintenance of Panchwati Colony & MIS income - Rs. 16,53,006/-". We fail to understand how can it be so? It certainly requires a probe. It seems that the AO has accepted assessee's version that the receipt of Rs. 29,30,000/- had been declared in P&L A/c of financial year 2009-10 related to AY 2010- 11 because of this new sheet. One may empathically say that when the AO has accepted the assessee's version, how the ITAT can raise a question on same? But it is an accepted law that the ITAT is the last fact-finding authority and we have a sacred duty to give a correct finding. Further, the observation made by us is very much relevant for proper adjudication of the controversy in hand and unless we rep....