9911796707
TMI Blog2012 (9) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... erm capital gain on sale of land at Rs.1,97,267/-. At any rate, without prejudice, the long term capital gain as assessed is very excessive. 3. That the Ld. CIT(A) had erred on facts and under the law in retaining an addition of Rs.48,000/- out of the amounts aggregating at Rs.5,96,536/Dreceived by the appellant as advance from M/s Tawari Colonizers Pvt. Ltd. Al any rate, without prejudice, the addition as made is very excessive . 4. That the authorities below had erred on facts and under the law in making an addition of Rs. 6,19,500/- towards the assessable income of the appellant as :unsecured loans given by the appellant to M/s Tawari Colonizers Pvt. Ltd. during the year under appeal. The fact remains that no fresh amount had been given to the said Co. and therefore, the Id. CIT(A) ought not to have confirmed the addition. 5. That there was no justification on the part of the Ld. CIT(A) to have retained an addition of Rs.2,42,000/- out of the alleged unexplained investment as liability in favour of the appellant. Various observations made by the authorities below in their respective orders with regard to the above additions/disallowances are either incorrect or are un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized representative of assessee filed his power of attorney and filed some evidences as asked for. Further reminder was issued on dated 20.9.2007, 4.10.2007, 10.10.2007 which were non complied and thereafter summon u/s 131(1) of the Act dated 18.10.2007 fixing the date as 24.10.2007 was served through affixture. On non compliance of the said summon a reminder summon u/s 131(1) dated 1.11.2007 was served on the assessee through Speed Post. The assessee did not receive the notice and the said notice was received back with remarks "refused". The Assessing Officer then issued final show cause notice and fixed the date as 21.11.2007. The notice was served on authorized representative of the assessee also. The authorized representative of the assessee in compliance of the said shown cause notice filed copy of balance sheet for financial year 2000-01, 2001-02, 2001-02 and 2002-03. 3. During the course of assessment proceedings, the Assessing Officer found that in Account No.4369 with Union Bank of India, there was a cash deposit of Rs..5,00,000/- on 18.2.2005. The assessee was asked to file cash flow statement and evidence regarding deposit of above Rs..5,00,000/-. In response to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al land of 53561.75 sq. yd. rate @ Rs..450/- per sq.yd. comes to Rs..2,41,02,787/- but the Tawri Colonizers Pvt. Ltd. had given advance of only Rs..30,000/- for this deal, the payment of Rs..30,000/- to the assessee and his partner is to save the income tax and moreover, the agreement is not a registered agreement. The Assessing Officer further noted that assessee has taken value as on 1.4.1981 of the said land @ Rs..110/- per sq. yd. as per the report of the approved valuer whereas as per circle rate as on 1.4.1981, the value of land was Rs..8600/- per bigha. On the basis of 750 sq. yds. per bigha the cost comes out to be Rs..1.46 per sq. yd. Therefore, the Assessing Officer calculated the fair price of land as on 1.4.1981 At Rs..1367.50 on the basis of 20% share of 596.66 sq. yd. at Rs..11.46 per sq. yd. After indexation, the Assessing Officer worked out index cost at Rs..6564/- and calculated long term capital gain as per section 50C amounting to Rs..1,97,267/- and added the same to the income of the assessee. 5. During assessment proceedings, the Assessing Officer further noted that assessee had shown a sum of Rs..5,96,536/- as advance from M/s Tawri Colonizers Pvt. Ltd. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee did not make any cash payment to ICICI Bank amounting to Rs..2,38,709/-. During the year under consideration, total payment of Rs..1,11,400/- was paid into loan account of ICICI Bank out of which Rs..47,742/- was paid in cash and Rs..63,658/-was paid through cheques. Thus only Rs..47,742/- is to be considered in the cash flow statement as against Rs..2,38,709/- taken by ld Assessing Officer. 6. That the Assessing Officer has taken cash withdrawal from ICICI Bank at Rs..1,33,000/- whereas the correct amount of cash withdrawal was Rs..1,36,000/-. 7. That Ld Assessing Officer has taken cash deposit during the year in bank account with UBI at Rs..6,74,600/- but factually the amount of deposit is Rs..7,00,100/-. 8. That during the year under consideration, the wife of the assessee Smt. Lata Maheshwari gave Rs..1,05,000/- which was not considered by Ld Assessing Officer as the assessee had no opportunity to bring the same on record. In this respect affidavit of wife of assessee was also filed. 9. That during course of assessment proceedings, the Assessing Officer required to file cash flow statement by the assessee and assessee filed statement of affairs as on 31.3.2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dences in support thereto except Rs..1,05,000/- stated to have been received in cash from his wife. Therefore, out of addition of Rs..3,99,218/- made by the Assessing Officer on account of deficit/short fall in cash addition of Rs..2,94,218/- was deleted and addition of Rs..1,05,000/- was upheld. Rs..1,97,267/- towards long term capital gain: 9. The AR submitted before Ld CIT(A) as under:- 1. That the assessee along with his other four brothers and two sisters- in-laws entered into agreement dated 4.7.1998 to sell total land (agricultural land) measuring 53561.75 sq. yd @ Rs..450/- per sq. yd. to M/s Tawri Colonizers Pvt. Ltd. in which the assessee's land was 5645 sq. yd. The above said land was agricultural and totally un-developed land and was very uneven and was surrounded by jungles. There was no proper approach road for this land. As per the said agreement, the company M/s Tawri Colonizers Pvt. Ltd. was authorized to undertake development work by leveling the land for making Approach road and pucca road and far laying sewerage & drainage pipes, and was to construct boundary wall around the entire land. The purchaser company developed the land and named the colony as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inee and thus the total amount of sale consideration was received and accounted for by the purchaser company in its accounts. These facts were totally ignored while making the assessment. 10. The assessee placed additional evidence under Rule 46A of IT Rules, 1962 as he was prevented by sufficient and reasonable cause for not filing/producing the same before Assessing Officer during the assessment proceeding as the Ld Assessing Officer did not afford any opportunity and did not given any query for assessing long term capital at Rs..1,97,267/- and therefore appellant was not accorded any opportunity to controvert or rebut the evidence collected by Ld Assessing Officer. After hearing the submission of assessee, the Ld CIT(A) did not agree with the contentions of assessee and upheld the decision of Assessing Officer as regards working of sale consideration amounting to Rs..2,03,831/-. The Ld CIT(A) held the sale consideration at Rs..2,03,831/- on the basis of following observations:- 1. That as per clause 3 of agreement dated 4.7.1998 possession of said land was not handed over to the builder company and it had been categorically agreed amongst the parties that the possession shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave heard the rival submissions of both the parties and have gone through the material available on record. We find that initially the case was built by Assessing Officer on the basis of statement of affairs filed by assessee on the basis of which Assessing Officer prepared cash flow statement and added back the shortage of cash as his income. Similarly on this basis only the Assessing Officer had added back amount of Rs..5,96,536/- which the assessee had claimed as advance from Tawri Colonizers. Instead during investigations u/s 133(6) M/s Tawri Colonizers had claimed to carry liability of Rs..6,19,500/- and Rs..12,04,523/-. These amounts were also added by Assessing Officer. These additions were deleted/reduced by ld CIT(A) on the basis that these represented amounts received from M/s Tawri Colonizers being part of sale consideration. If that be the case then these should have been shown as credits in the statement of affairs of assessee for calculation of short cash in hand and consequent addition should have been upheld by Ld CIT(A). Similarly, calculation of long term capital gain has been done on the basis of rate adopted u/s 50C of the Act whereas from the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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