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2019 (1) TMI 1884 - AT - Income TaxAssessment u/s 153A - as per assessee in absence of any incriminating material found from the premises of the assessee, the action of the AO in making the assessment u/s 153A of the Act is against the law - reassessment proceedings under section 147 of the Act were found to be pending as on the date of issue of notice u/s 153A - HELD THAT - In the instant case, the Assessing Officer has mentioned that assessment in the case of the assessee was reopened by way of issue notice under section 148 of the Act and those reassessment proceeding under section 148 were pending on the date of issue of notice u/s 153A - This fact has not been contorted by the assessee either before the AO or before the CIT(A). We are bound to conclude that as on the date of the issue of notice u/s 153A assessment proceedings were pending in the case of the assessee, which got abated. Hence, the contention of the assessee that no assessment proceedings were pending in the case of the assessee, is rejected. As the one of the condition required for holding addition made under section 153 proceedings as valid in terms of decision of Kabul Chawala 2015 (9) TMI 80 - DELHI HIGH COURT has not been satisfied, we do not find any infirmity in the finding of the Ld. CIT(A) on this issue and accordingly we uphold the same. The ground No. 1 of the appeal of the assessee is dismissed. Whether material found during the course of the search at the premise of Sri Naresh Gupta, belonged to the assessee? - The material found from the premise of the Sh Naresh Gupta is digital record of the draft deed maintained in the computer of Sh. Naresh Gupta, Advocate (deed writer), which belonged to him. As the information contained in said agreement to sell was merely related to the assessee. The said document was prepared in ordinary course of his profession and thus he was rightful owner of the document, though the document contained related information to the assessee, it belongs to Sh. Naresh Gupta only. Therefore, the Assessing Officer correctly reopened the assessment under the provisions of section 147 of the Act. Since the said reassessment proceedings under section 147 of the Act were found to be pending as on the date of issue of notice u/s153A of the Act, the Assessing Officer is justified in completing the assessment under the provisions of section 153A of the Act. Accordingly, the ground No. 1 of the appeal challenging the validity of proceeding under section 153A of the Act is dismissed. Sale of first floor of property - According to the Ld. Assessing Officer, on perusal of the contents of draft of sale of agreement found in the hard disk of computer as well as contents of the registered sale deed, he found that both are same except difference of amount of sale consideration - whether it can be presumed that the assessee received payment in cash of ₹ 83,50,000/-in addition to the amounts recorded in registered sale deed ? - HELD THAT -The entire document found is a draft prepared by the deed writer, which is not signed by any of the party mentioned in the said draft. Such an unsigned document cannot be made basis of presumption that the assessee received cash on sale of the property. The assessee has been subjected to search but no other documentary evidence of receipt of cash by the assessee has been found in the course of the search. We also note that no attempt has been made by the Assessing Officer to make an enquiry from the buyer or to ascertain the prevalent market value of the property sold by the assessee. We are of the opinion that no addition can be sustained only on the basis of the unsigned draft agreement to sell found from the premises of the third party and that too without any corroborative evidences. Accordingly, we set aside the order of the Ld. CIT(A) and the Assessing Officer on the issue in dispute and direct the Assessing Officer to delete the addition for alleged cash received on sale of 1st floor of the property under reference. The grounds No. 2 and 3 of the appeal are, accordingly, allowed. Long term capital gain on sale of agriculture land - AY 2012-13 - HELD THAT - As perused the Notification No. 18/1/95/2008-3C1 dated 20/03/2010 issued by the Department of urban local bodies, Haryana government, which is available on page 114 of the paper book filed by the assessee. The said notification has included entire part of the revenue land of the village Ghata . There is no dispute between the parties that the land in question was situated in village Ghata. In view of the clear finding of the fact recorded by the Ld. CIT(A) that the land in question was situated within the 8 km of the limits of the Municipal Corporation, the sale of the land is liable to provisions of the capital gain. In view of the above, we do not find any error in the order of the Ld. CIT(A) on the issue in dispute, accordingly we uphold the same. The ground No. 1 of the appeal is, accordingly, dismissed.
Issues Involved:
1. Validity of assessment under section 153A of the Income-tax Act. 2. Addition of ?83,50,000/- for alleged cash received on sale of property. 3. Addition of ?83,50,000/- for alleged cash received on sale of another property. 4. Charging of interest under sections 234A, 234B, and 234C of the Income-tax Act. 5. Capital gain on sale of agricultural land. Issue-wise Detailed Analysis: 1. Validity of Assessment under Section 153A: The assessee challenged the validity of the assessment under section 153A, arguing that no incriminating material was found from the premises of the assessee. The Tribunal noted that the assessment was reopened under section 147, which later abated due to the issuance of notice under section 153A. The Tribunal concluded that the reassessment proceedings were pending, and thus, the assessment could not be treated as completed. Consequently, the Tribunal upheld the validity of the proceedings under section 153A, dismissing the assessee's contention. 2. Addition of ?83,50,000/- for Alleged Cash Received on Sale of Property: The assessee contested the addition of ?83,50,000/- based on a draft agreement to sell found from a third party's premises. The Tribunal observed that the draft agreement was unsigned and found from the hard disk of the deed writer, who denied any knowledge of the monetary transaction. The Tribunal held that without corroborative evidence, no addition could be made based solely on the unsigned draft agreement. The Tribunal directed the deletion of the addition of ?83,50,000/- for alleged cash received on the sale of the first floor of the property. 3. Addition of ?83,50,000/- for Alleged Cash Received on Sale of Another Property: Similar to the second issue, the assessee challenged the addition of ?83,50,000/- for the ground floor of the same property. The Tribunal, maintaining consistency with its decision on the second issue, allowed the assessee's appeal and directed the deletion of the addition. 4. Charging of Interest under Sections 234A, 234B, and 234C: The assessee contested the charging of interest under sections 234A, 234B, and 234C. The Tribunal noted that the interest was consequential to the additions made by the Assessing Officer. Since the Tribunal had already directed the deletion of the additions, the charging of interest was also consequentially dismissed. 5. Capital Gain on Sale of Agricultural Land: The assessee challenged the addition of ?65,08,020/- on account of long-term capital gain on the sale of agricultural land, claiming the land was agricultural and not liable for capital gain tax. The Tribunal examined the notification and reports from revenue authorities, confirming that the land fell within the municipal limits of Gurgaon. The Tribunal upheld the addition, agreeing with the findings of the Assessing Officer and the CIT(A). Summary: The appeal for assessment year 2008-09 was partly allowed, with the Tribunal directing the deletion of additions based on the unsigned draft agreement to sell. The appeal for assessment year 2012-13 was dismissed, with the Tribunal upholding the addition of long-term capital gain on the sale of agricultural land and the consequential interest charges.
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