2017 (5) TMI 775 - AT - Income Tax

Validity of assessment u/s 153A - downward revision of the cost of acquisition - Held that - No incriminating material was found in the course of search which could justify downward revision of the cost of acquisition from ₹ 58.52 to ₹ 40 per square metre. Moreover, the findings recorded by the learned Commissioner of Income-tax (Appeals) have not been controverted by the Department. If the very premise on which the addition was made has no legs to stand then the addition had rightly been deleted by the learned Commissioner of Income-tax (Appeals). In the result, ground No. 1 is dismissed. Sale of flats - Held that - The basis of the addition was the instances found in the case of M/s. R. B. Enterprises. Further, the learned Commissioner of Income-tax (Appeals) has observed that the assessee had also shown that there were instances of sale of flats in the same vicinity which were much lower than shown by the assessee. The learned counsel pointed out that the business model of M/s. R. B. Enterprises is entirely different from the assessee since no evidence had been found in the case of the assessee suggesting receipt of on-money over and above is stated consideration. Therefore, the addition was rightly deleted by the learned Commissioner of Income-tax (Appeals). Sale of plots - valid transfer u/s 2(47) - Held that - The terms of memorandum of understanding with Aggarwal Associates Ltd. are not at all disputed. Admittedly, the assessee had given right of passage and all kinds of privileges and rights to Aggarwal Associates Ltd. and, therefore, there was constructive transfer in favour of Aggarwal Associates Ltd. We, therefore, do not find any reason to interfere with the order of the learned Commissioner of Income-tax (Appeals) on this count. In the result, the cross-objection filed by the assessee is dismissed.

Summary

Issues Involved:
1. Reduction of long-term capital gain by re-determining the land price.
2. Deletion of addition on account of profit on sale of land at Sailok.
3. Assessment of business income from the sale of plot No. 91 to M/s. Aggarwal Associates Ltd.

Detailed Analysis:

Issue 1: Reduction of Long-Term Capital Gain by Re-Determining the Land Price
The Assessing Officer (AO) had revised the fair market value of the land at Sailok from ?58.50 per square metre to ?40 per square metre. This was based on the valuation of similar lands at Mauja Niranajanpur in previous assessments. The Commissioner of Income-tax (Appeals) [CIT(A)] deleted the addition, noting that:
- The cost of acquisition was accepted in earlier regular assessments under section 143(3).
- No incriminating evidence was found during the search to justify the downward revision.
- The property in question was situated at Village Kanwali, not Niranjanpur.

The Tribunal upheld the CIT(A)'s decision, stating that the AO's basis for the addition lacked supporting evidence from the search. Thus, the ground was dismissed.

Issue 2: Deletion of Addition on Account of Profit on Sale of Land at Sailok
The AO observed unaccounted sales in the case of R. B. Enterprises, which was linked to the assessee's brother. The AO applied similar rates to the assessee's sales, resulting in a significant addition. The CIT(A) deleted the addition, reasoning that:
- No evidence was found to rebut the assessee's claim of receiving only the sale consideration recorded in the sale deeds.
- The evidence from R. B. Enterprises could only give rise to suspicion and was not independently corroborated.
- The business models and practices of the assessee and R. B. Enterprises were different.

The Tribunal agreed with the CIT(A), noting that the addition was based on evidence found in another entity's case and not in the assessee's own case. Therefore, the ground was dismissed.

Issue 3: Assessment of Business Income from the Sale of Plot No. 91 to M/s. Aggarwal Associates Ltd.
The AO assessed ?20 lakhs as business income from the sale of plot No. 91, based on a memorandum of understanding (MOU) with M/s. Aggarwal Associates Ltd. The CIT(A) confirmed the addition, stating that the MOU had the effect of extinguishing the assessee's rights in the plot and enabling the enjoyment of the property by Aggarwal Associates Ltd.

The Tribunal upheld the CIT(A)'s decision, noting that the MOU constituted a constructive transfer of rights in favor of Aggarwal Associates Ltd. Thus, the cross-objection filed by the assessee was dismissed.

Conclusion:
Both the appeal of the Department and the cross-objection of the assessee were dismissed. The Tribunal upheld the CIT(A)'s decisions on all counts, emphasizing the lack of incriminating evidence and the validity of the assessee's claims regarding the cost of acquisition and sale considerations.