2021 (10) TMI 278 - AT - Income Tax

Remission / Cessation of Trading Liability u/s 41(1) - HELD THAT - No case of remission of cessation of trading liability could be made out by revenue against the assessee. The assessee had filed confirmation of the sundry creditors and the amounts were shown as payable in the books of accounts. There was no write-back of the amounts either by the assessee or by the sundry creditors. This is further fortified by the fact that certain payments / adjustments have been done in subsequent financial year and the balance amount has been offered to tax when the liability has actually ceased. Therefore, the facts of the case do not convince us to confirm the impugned addition u/s 41(1). By deleting the same, we allow this ground of appeal. Addition on account of alleged on-money - Applicability of 50C - Assessee has been sold at much higher prices than the stamp duty value of each of the flat - HELD THAT - Assessee has been sold at much higher prices than the stamp duty value of each of the flat and therefore, the provisions of Sec.50C were not applicable to the facts of the case. The assessee has sold the flats evenly throughout the year in price range of 4428 per square feet to 6958 square feet. The factors leading to variation in the sale price were duly explained by the assessee before Ld. AO which could not be disputed and no fact based findings could be rendered to controvert the same. In fact, the affidavits of 4 buyers confirming the sale price have been filed by the assessee. The assessee has duly discharged the onus of proving that the sale consideration as actually received by the assessee was reflected in the sale agreement as well as in the books of accounts. It is also evident that no further investigations have been carried out by lower authorities to rebut the documents of the assessee and bring on record any contrary evidence to prove transfer of excess sale consideration to the assessee, in any manner. Thus the conclusion that that all the flats would have been sold at highest prices is nothing more than an assumption of Ld. AO. Hence, we are inclined to delete the same. This ground stand allowed.

Summary

Issues:
1. Confirmation of addition under section 41(1) for outstanding liabilities.
2. Addition of alleged on-money on sale of flats.

Issue 1: Confirmation of addition under section 41(1) for outstanding liabilities
The assessee had long outstanding sundry creditors, and the Assessing Officer (AO) invoked section 41(1) to add the amount to the income of the assessee. The assessee contended that the liabilities were still payable, not written off, and no benefit had been received through remission or cessation of trading liability. The confirmation letters of the creditors were submitted, and the liability was shown as payable in the books. Subsequently, a portion of the liability was adjusted in a later financial year, and the remaining amount was written back and offered to tax. The tribunal found no case of remission or cessation of trading liability and deleted the addition under section 41(1).

Issue 2: Addition of alleged on-money on sale of flats
The assessee sold flats at varying rates per square feet, justifying the differences based on various factors. The AO added a differential amount as alleged on-money on the sale of flats. The assessee explained the reasons for the price variations and provided supporting documents, including affidavits from buyers. The tribunal noted that all flats were sold above the stamp duty value, and the sale prices were justified by factors like location, floor-rise, and buyer preferences. The tribunal found that the AO's addition was based on assumptions and estimates, with no factual basis to dispute the assessee's explanations. Therefore, the tribunal deleted the addition related to alleged on-money on the sale of flats.

In conclusion, the tribunal allowed the appeal, overturning the additions made by the lower authorities.