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2015 (11) TMI 732 - AT - Income TaxReopening of assessment - Unaccounted sale of property - CIT(A) deleted the addition - Held that - CIT(A) has analyzed the facts concerning to the issue in a proper perspective and taken conscious decision that the addition made by the AO of ₹ 80 lakhs is not sustainable in law. Even though the assessee has submitted that the above said amount of ₹ 80.00 lakhs was not accounted for, yet we notice that what is really taxable under the Act is the capital gain arising on sale of shares only, since the transfer of land was automatic on the transfer of shares of M/s Mourya Realty Pvt Ltd. We further notice that the Ld CIT(A) has given a categorical finding that the impugned amount of ₹ 80.00 lakhs was included in the sale consideration and hence no separate addition is called for. Hence, we do not find any infirmity in his order on this issue. - Decided against revenue.
Issues Involved:
1. Deletion of the addition of Rs. 80 lakhs made by the Assessing Officer (AO). 2. Determination of the year in which capital gain should be assessed. 3. Verification of repayment of Rs. 23.57 lakhs. Issue-wise Detailed Analysis: 1. Deletion of the Addition of Rs. 80 Lakhs Made by the AO: The revenue challenged the deletion of the Rs. 80 lakhs addition made by the AO. During a search and seizure operation, it was discovered that the assessee received Rs. 80 lakhs in cash related to the sale of property, which was not accounted for. The AO reopened the assessment and added Rs. 80 lakhs as income since the assessee did not respond to various queries. However, during appellate proceedings, the assessee provided details showing that the Rs. 80 lakhs was part of a larger transaction involving the sale of shares and land through M/s Mourya Realty Pvt. Ltd. to M/s Delhiwala Real Estate Pvt. Ltd. The CIT(A) noted that the assessee received a total of Rs. 4,72,78,000 against an agreed amount of Rs. 3,99,21,000 and returned the excess Rs. 73,57,000. The CIT(A) found that the Rs. 80 lakhs was included in the sale consideration and thus, no separate addition was warranted. The Tribunal upheld this view, stating that the Rs. 80 lakhs was part of the capital gain arising from the sale of shares, not a separate taxable amount. 2. Determination of the Year in Which Capital Gain Should Be Assessed: The core issue was whether the capital gain should be assessed in the year of the agreement for the sale of land (AY 2007-08) or the year of the share transfer (AY 2008-09). The CIT(A) observed that the actual transaction involved the transfer of shares of M/s Mourya Realty Pvt. Ltd., which automatically transferred the land. The shares were transferred in May 2007, making the capital gains assessable in AY 2008-09. The Tribunal agreed, emphasizing that the transaction's nature was the sale of shares, not land, and thus the capital gain should be taxed in AY 2008-09. 3. Verification of Repayment of Rs. 23.57 Lakhs: During remand proceedings, the AO verified that Rs. 50 lakhs was repaid by cheque but could not confirm the repayment of Rs. 23.57 lakhs in cash due to a lack of response from M/s Delhiwala Real Estate Pvt. Ltd. The CIT(A) noted that the receipt of Rs. 82.06 lakhs in cash was undisputed and that the AO did not show this cash being utilized elsewhere. Thus, the repayment of Rs. 23.57 lakhs in cash was accepted despite the lack of confirmation. The Tribunal upheld this finding, stating that the repayment was credible and the addition of Rs. 80 lakhs was unsustainable. Conclusion: The Tribunal concluded that the CIT(A) had correctly analyzed the facts and determined that the addition of Rs. 80 lakhs was not sustainable. The capital gain should be assessed in AY 2008-09, and the repayment of Rs. 23.57 lakhs was credible. Therefore, the appeal filed by the revenue was dismissed. The judgment was pronounced on 23rd September 2015.
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