TaxTMI 
TaxTMI 
TaxTMI 
2025 (1) TMI 647
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....3(3) of the Act, relating to the Assessment Years 2009-10 and 2010-11 respectively. 3. Since the common issue of sale of immovable properties by the above two different assessees on behalf of one Shri Mansukhbhai Dobariya, the above appeals are disposed of by this common order. 4. The registry has noted that there is a delay of 242 days in filing the above appeal. This appeal is filed before the Tribunal on 31-12- 2020 this period falls under COVID-19 Pandemic situation. Thus following Supreme Court judgment dated 23.3.2020 in suo-moto Writ Petition (Civil) No.3 of 2020, wherein Hon'ble Supreme Court has extended time limit for filing appeals w.e.f. 15.3.2020. Thus, there is no delay in filing the above appeal by the Assessees and we take up the appeals for adjudication on merits. 4. ITA No. 595/Ahd/2020 is taken as the lead case. Brief facts of the case is that the assessee is an individual deriving income from Partnership Firm M/s. Dobariya Enterprise engaged in real estate and Civil Work business. For the Asst. Year 2009-10, the assessee filed his Return of Income u/s. 44AD of the Act at Rs. 1,70,138/- on estimation basis on the total receipt of Rs. 21,00,475/-. During the as....
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....11.2007. As per the terms, the money was received by Shri Mansukhbhai Dobariya from M/s. Altair Infrastructure Pvt. Ltd. [AIPL] & M/s. Navitrans Terminals Pvt. Ltd. [NTPL] in his ICICI Bank account. On receipt of money, Shri Mansukhbhai Dobariya started utilizing the funds for acquiring land in his name and also in the name of relatives etc. In this process, Shri Mansukhbhai Dobariya purchased 10 Acre of land for Rs. 8,32,000/- in the name of appellant. The purchase consideration was paid to the farmers through the account of Shri Mansukhbhai Dobariya and the same can be seen from the cheque details noted in the purchase deeds. As the lands being agricultural lands purchased in the name of appellant, the same land was subsequently sold to CLPL by the appellant for Rs. 44,82,000/- The appellant also referred the letter given by the CLPL and contended that the entire purchase and sale made by the appellant was for and on behalf of Shri Mansukhbhai Dobariya, hence taxing STCG in the hands of appellant is incorrect and requested to delete. The appellant also filed an affidavit and letter from Shri Mansukhbhai Dobariya who has stated that the transaction undertaken by the appellant wa....
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....es and conversion charges only. From the above, it is understood that the appellant was engaged by AIPL and purchased land, as per the letter of CLPL but there is no documentary evidence to say that appellant was engaged, in fact, by AIPL. When MoUs were entered by both Shri Rajiv Naroola and Shri Mansukhbhai Dobariya, the same type (atleast), of MOUs were not filed by the appellant. Hence, the contention of the CLPL cannot be accepted. Let us also see the MOUs submitted by the appellant which were entered between Shri Mansukhbhai Dobariya and Shri Rajiv Naroola. They are only notarized and not registered. Crores of rupees were transferred to Shri Mansukhbhai Dobariya, but no surety was taken as per MOUS. In one MOU the term was that Shri Mansukhbhai Dobariya work for commission but another MOU of the same date the term was to receive Rs. 7,00,000/- per acre. Hence, therefore documents are to be doubted. The claim of the appellant that purchase and sale of land was for and on behalf of his father is not forthcoming from the evidence but for from self-serving submission. The two purchase deeds never reveal that purchases were made on behalf of Shri Mansukhbhai Dobariya. It is ....
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....riya as the money was paid through his bank account for purchase and on sale also, is not correct. The money for purchase was flown from the bank account of Shri Mansukhbhai Dobariya but the purchase deeds clearly stated that the appellant purchased the agricultural lands and he became absolute title holder and owner. At best Shri Mansukhbhai Dobariya can sue for liability of money but not claim that Shri Mansukhbhai Dobariya is the owner of the lands. Unless the property mortgaged to the bank, the bank will have the right to recover the loan and to sue the borrower against the loan amount taken towards property but the bank cannot be held to be an owner of the property. By virtue of loan the banker cannot be held legally owner of any property, for which purpose the loan amount was granted. Similarly, the title deed executed before State Authority cannot be undermined to state that Shri Mansukhbhai Dobariya is the real owner In this case. There is no iota of evidence in the form of documents placed before the authorities that the appellant is a name lender nor not real owner and real owner is Shri Mansukhbhai Dobariya. If it is accepted, then the company which is procuring lands ....
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....re, existence of a capital asset, transfer of such capital asset and profits or gains that arise from such transfer. According to section 45(1) of the act, any profits or gains arising from the transfer of a capital asset effected in the previous year shall be chargeable to income-tax under the head "Capital gains" with certain conditions and exemptions. In view of the above discussion, having regard to the facts of the case, it is held that the appellant is the owner of the land which was transferred to the company. The land so transferred was a capital asset because the lands purchased were converted for non-agricultural purpose and effected sale. The transaction resulted into receipt of consideration by the appellant and also a profit on such transaction. It is also to be noted that there is no evidence to state that the lands were purchased by the father of the appellant in the name of the appellant as claimed. Hence the action of the AO in charging the transactions to capital gains is perfectly as per Law and the same is hereby approved. In view of this, the addition made by the AO is confirmed and the grounds including the without prejudice ground are hereby dismissed. 5....
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....0/- as short term capital gain on the lands transferred to M/s. Contrans Logistics Pvt. Ltd. (CLPL) in the hands of the appellant, ignoring the fact- (a) that the appellant had undertaken the transaction on behalf of Shri Mansukh Dobariya (father of the appellant) and the same is confirmed by him in the proceedings before the Ld. A.O. and the first appellate authority through an affidavit by rejecting the admission of such evidences and holding the same to be additional evidences. (b) the consideration for purchase and the sale thereof is also received in the account of Shri Mansukh Dobariya. (c) the purchaser too has confirmed to have had the transactions with Shri Mansukh Dobariya. (d) the various documents submitted including the purchase deed, sale deed, MoUs, etc. also indicate the transaction being carried out by Shri Mansukh Dobariya. It is thus prayed that it may please be held that the transaction of purchase and sale of the lands transferred to CLPL actually belongs to Shri Mansukh Dobariya and any income arising from such transaction cannot be taxed in the hands of the appellant and the same is to be deleted. 3. The Ld. CIT(A)-1, Vadodara has failed to apprec....
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....ts. 6.3. Further the AO has not given any adverse comments in Remand Report on the above referred additional evidences furnished by the assessee. Thus AO could have issued summons u/s. 131 or 133[6] to Shri Mansukbhai Dobariva and recorded his statement but AO choose not to do so. Whereas notice issued by AO to CLPL u/s. 133(6) was replied by CLPL and accepted the factum of availing services of assessee for identification, consolidation and execution of land. The Hon'ble the Gujarat High Court in the case of M/s. Glass Line Equipment vs. CIT reported in 253 ITR 454 held that "contents of the affidavit cannot be ignored unless proved to the contrary". Accordingly, affidavit of Shri Mansukbhai Dobariya could not have been brushed aside by the Lower Authorities. Under such facts and circumstances, contents of such additional evidences need to be accepted. It is well settled that only "Real income" can be taxed by the revenue and not "notional income". Reliance is placed on decision of Hon'ble Apex Court in case of "Godhra Electricity Co. Ltd. vs. CIT-225 ITR 746 (SC)". In view of the additional evidences placed on record, the impugned addition is not justified in the eye of l....
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....has also submitted an agreement pertaining to Mansukbbhai Dobariya stating that Shri Mansukhbhai Dobariya would receive commission on sale of land. However, assessee could not furnish any evidence regarding receipt of commission by him. As per assessee's letter also, the commission was received by Shri Mansukh Dobariya not by the assessee. Meanwhile, to conduct inquiries with respect to sale of land, riotice u/s 133(6) of the Act was issued on to M/s Contrans Logistics Pvt. Ltd (CLPL). The company, CLPL submitted its reply on 12.12.2011 wherein it submitted that services of Assessee were availed for Identification, consolidation and execution of conveyance deeds in favour of company. The company stated that fund transaction was routed through Mansukh Dobariya, father of the assessee. In the reply, CLPL has also clarified the fact that Shri Mansukh Dobariya was handling the affairs of company. Accordingly, claim of assessee that he was receiving merely commission is rejected as assessee has not produced any evidence in this regard. 3.2 As mentioned above the assessee has sold a land to M/s CLPL. The assessee has not shown Capital Gain in his return of income. The assessee has ....
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.... receipts is also not proved as signature put by Shri Yakub Asmal Mala on purchase deed is entirely different from the signature of recipient in cash receipts. Moreover, one of the receipts is signed by some other person Shri Musa Ismail. 3.3.3 In view of above cost of acquisition for the assessee is derived at Rs. 8,32,000/-i.e. sum of cheque payments as appearing the purchase deeds. 3.4 The assessee has purchased the land through registered deeds which clearly states that assessee has taken possession and title has already been transferred through that conveyance deed. Moreover assessee has enjoyed title and possession for more than a year. The case of assessee clearly falls in Capital Gain category. The holding period of assessee is qualifies for Short Term Capital Gain, computation of which is as under: Sales Consideration 44,82,000/- Less: Index Cost of Acquisition 8,32,000/- Short Term Capital Gain 36,50,000/- 8.2. Thus the registered Sale Deeds makes it abundantly clear that the properties belongs to the two assessees here in. The assessees failed to produce expenses relating to the land as well as non-agricultural conversion expense and payments made to the farme....
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....ected to taxation as short term capital gain is thus prayed to be deleted. 4. Without prejudice to the above, the Ld. CIT(A)-5, Vadodara has erred in law and in facts in not allowing the deduction of the expenses incurred in the purchase of the lands allegedly transferred by the appellant. 11. The Grounds of Appeal raised by the assessee Sri. Ajay Reghubhai Bha rwad in ITA No. 597/Ahd/2020 for Asst. Year 2010-11 reads as under: 1. The Ld. CIT(A)-5, Vadodara has erred in law and in facts in dismissing the appeal holding the same to be filed belatedly ignoring the fact that the appellant has filed an appeal on 28.04.2018 (admittedly before the due date) in physical mode and thereafter the same is digitally filed on 08.06.2016. Considering the physical submission of the appeal in the specified time, the Ld. CIT(A) ought to have admitted the appeal. 2. The Ld. CIT(A)-5, Vadodara has erred in law and in facts in confirming the action of the Ld. A.O. in assessing the income at Rs. 1,82,71,740/- against a returned income of Rs. 1,85,450/- as declared in the return of income. 3. The Ld. CIT(A)-5, Vadodara has erred in law and in facts in confirming an addition of Rs. 1,78,49,285/-....