2021 (10) TMI 271 - AT - Income Tax

Capital gain determination - Addition invoking the provisions of section 50C - date of transfer of capital asset - as per assessee capital asset in question was sold by the assessee vide agreement dated 3.6.2013 and not by Sale Deed dated 23.11.2015 and the value mentioned in sale agreement dated 3.6.2013 to be adopted - DR submitted that the sale agreement produced before the lower authorities cannot be relied upon wherein the assessee received ₹ 51,000 by way of cash out of sale consideration of ₹ 48 lakhs - HELD THAT - In the present case, the assessee wants take advantage of first proviso to section 50C of the Act that transfer took place vide sale agreement dated 3.6.2013 and not on 23.11.2015. The date mentioned in the sale agreement to be considered and corresponding valuation on that date to be valued. In our opinion, the assessee adopted colourable device to avoid tax by producing the sale agreement dated 3.6.2013 which is executed on ₹ 2/- non-judicial stamp paper and payment of ₹ 51,000 was made by cash. Being so, we cannot give any credence to this agreement, though it was in writing. The plea of the assessee that transfer having taken place earlier to execution and registration of sale deed cannot be appreciated - the assessee has actually has executed the transfer of impugned property only through Sale Deed dated 23.11.2015, as such the AO rightly applied the valuation as applicable on this date. We do not find any infirmity in the order of the lower authorities and the same is confirmed.- Decided against assessee. Addition u/s. 68 - assessee has shown cash deposit into bank account for the demonetization period from 9.1.2016 to 30.12.2016 - Assessee submitted assessee availed the following loans and deposited into the bank account and withdrawn the same for redeposit into bank account - HELD THAT - As submitted cash book filed before us to show that it was duly reflected in the cash book and redeposited in the bank account. In our opinion, these are additional evidence to be examined at the end of the AO. Therefore, we set aside the orders of lower authorities and remit the issue to the AO for re-examination and fresh decision in accordance with law. - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Sustaining the addition of ?36 lakhs by invoking section 50C of the Income-tax Act, 1961.
2. Sustaining the addition of ?27,80,163 under section 68 of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Sustaining the Addition of ?36 Lakhs by Invoking Section 50C of the Income-tax Act, 1961:

The first issue pertains to the addition of ?36 lakhs sustained by the CIT(A) under section 50C of the Income-tax Act, 1961. The assessee sold a property for ?48 lakhs, but the stamp duty valuation was ?84 lakhs. The AO invoked section 50C to bring the difference as additional capital gain.

The assessee argued that the transfer took place on 3.6.2013 via an agreement for sale, not on 23.11.2015 via the sale deed. The assessee relied on section 47 of the Indian Registration Act, 1908, and the Tribunal's decision in Sri Ayi Vaman Narasimha Acharya's case, asserting that the provisions of section 50C could not be invoked for the assessment year under consideration.

The Tribunal, however, found that the sale agreement dated 3.6.2013, executed on ?2 non-judicial stamp paper with a cash payment of ?51,000, was not credible. The Tribunal held that the actual transfer occurred through the sale deed dated 23.11.2015, and the AO rightly applied the valuation on this date. The Tribunal confirmed the order of the lower authorities, rejecting the assessee's plea.

2. Sustaining the Addition of ?27,80,163 Under Section 68 of the Income-tax Act, 1961:

The second issue involves the addition of ?27,80,163 under section 68 of the Income-tax Act, 1961. The assessee deposited ?23,61,630 in cash into the bank account during the demonetization period, while the cash balance shown in the return was ?27,80,183 as of 31.3.2016. The AO considered this amount unexplained under section 68.

The assessee contended that the deposits were from loans availed and redeposited into the bank account. The Tribunal noted that these were additional evidence and directed the AO to re-examine the issue afresh, considering the cash book and other documents provided by the assessee.

Conclusion:

The Tribunal upheld the addition of ?36 lakhs under section 50C, finding the sale agreement dated 3.6.2013 not credible and confirming the valuation on the sale deed date of 23.11.2015. For the addition of ?27,80,163 under section 68, the Tribunal remitted the issue to the AO for re-examination based on additional evidence provided by the assessee. The appeal by the assessee was partly allowed.