2018 (6) TMI 28 - AT - Income Tax

Addition u/s 69 - cheques not encashed for sale of land - cancellation of sale deed - Held that - AR demonstrated before us with copy of the Deed of Transfer by sale dated 29.03.2010 and also copy of cancellation deed dated 27.02.2013. Further AR submitted that a civil suit has been filed before the Civil Judge, Senior Division II, Seraikella-Kharsawan in TS No.18/2010, dated 30.11.2015, where the sale deed was cancelled and the final order has been passed in favour of the assessee. After considering the facts and legal position and the civil suit and the litigation which was fought by the assessee in the court it is held there was no occasion to bring these fact on record - hence the issue is remitted back to the file of AO for completeness of the information also assessee shall be provided adequate opportunity of being heard - Assessee s appeal allowed for statistical purposes.

Summary

Issues Involved:
- Addition made under section 69 of the Income Tax Act
- Assessment of short term capital gain
- Validity of the sale deed and cancellation

Addition made under section 69 of the Income Tax Act:
The appellant purchased a piece of land for a total consideration of ?73 lacs, out of which ?73 lacs was paid by cheque and ?5 lac was paid in cash. The seller did not encash the cheques, leading the Assessing Officer (AO) to consider the entire ?73 lacs as concealed income. The appellant contested this addition, arguing that the payment for land cannot be deemed as income. However, the Commissioner of Income Tax (Appeals) upheld the addition under section 69, treating the cheque payment as a tax evasion tactic. The appellant further contended that the payment in cash to the Power of Attorney Holder (POA) was justified due to the landowners' preference for cash transactions. The Tribunal remitted this issue back to the AO for further verification, considering new evidence presented post the CIT(A)'s order, emphasizing the need for a thorough examination and providing the appellant with a fair hearing.

Assessment of short term capital gain:
The AO computed short term capital gain in the hands of the appellant based on the difference between the subsequent sale consideration and the initial purchase value of the land. The appellant argued that no consideration was received from the sale by the POA, thus negating any capital gain liability. The Tribunal noted discrepancies in the transaction, including the non-encashment of cheques and subsequent sale of the land without the appellant receiving any proceeds. The Tribunal directed the AO to re-examine this issue in light of the new evidence presented, particularly the cancellation of the sale deed and the civil suit filed by the appellant. The Tribunal allowed the appellant's appeal for statistical purposes, emphasizing the importance of a comprehensive review of all relevant facts before making any tax assessments.

Validity of the sale deed and cancellation:
The appellant raised concerns regarding the validity of the sale deed and subsequent cancellation due to the non-encashment of cheques and the unauthorized sale of the land by the POA. The Tribunal acknowledged the appellant's evidence, including the Deed of Transfer and cancellation deed, along with details of the civil suit filed in court. Recognizing that these crucial facts were not presented before the lower authorities during the initial proceedings, the Tribunal remitted the issue back to the AO for a detailed examination. The Tribunal stressed the significance of ensuring procedural fairness and providing the appellant with a fair opportunity to present all relevant information. The appeal was allowed for statistical purposes, highlighting the need for a thorough review of the entire transaction and legal implications involved.

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