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TMI Blog2013 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... se, before a plea based on section 56(2)(vi) can be taken, a foundation has to be laid that the transaction was without any consideration. No such foundational plea had been taken before the Tribunal. Apart from this the Tribunal has rightly noted that the provisions of section 51would come into play as it specifically covers this type of a transaction. Once the transaction has been held to be genuine, there is no question of the transaction being without any consideration. Consequently, no merit in the revenue’s appeal, much less any substantial question of law for consideration - in favour of assessee. - ITA 1263/2011 - - - Dated:- 17-1-2013 - MR BADAR DURREZ AHMED AND MR R.V. EASWAR JJ. For the Appellant: Mr Karan Khanna, Sr. Stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance consideration by that date, the seller (respondent/ assessee) had the right to forfeit the earnest money and the purchaser Shinestar Buildcon (P) Ltd. would have no claim on the property whatsoever and the agreement to sell would stand terminated. 4. Shinestar Buildcon (P) Ltd. failed to pay the balance consideration by 30.03.2007 and the respondent/ assessee sent a notice of forfeiture dated 31.03.2007 and forfeited Rs.18 crores out of the earnest money of Rs.36 crores. The first two cheques mentioned in the table above amounting to Rs.18 crores were returned to Shinestar Buildcon (P) Ltd. as a part of the settlement arrived at between the assessee and the said Shinestar Buildcon (P) Ltd. However, the balance four cheques were encas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted towards the cost of the property for the purpose of computation of capital gain. Moreover, if the AO chooses to treat the forfeited amount otherwise she may do so after recording proper reasons in the body of the assessment order and after meeting out the legal position on the issue. 7. The Commissioner of Income Tax (Appeals) held in favour of the respondent/ assessee in view of the fact that the assessing officer had not complied with the directions given by the Addl. Commissioner of Income Tax under section 144A of the said Act. He also held that the said directions were binding on the assessing officer and the assessing officer had no authority to disregard the said directions. 8. Being aggrieved by the order of the CIT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Further, Ld. Commissioner of Income Tax (Appeals) has given a finding that there was survey u/s 133A at the premises of the assessee and no incriminating material which has any adverse implication in relation to the genuineness of the transaction was found. Thus, it is clear that the addition was made on the basis of presumption. The earnest money was received through banking channels and genuineness of the receipt is not in dispute. We find ourselves in agreement with the Ld. Commissioner of Income Tax (Appeals) that no addition can be done on the basis of surmises and conjectures. Hence, we do not find any infirmity in the Ld. Commissioner of Income Tax (Appeals) s direction that as directed by the Addl. Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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