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TMI Blog2014 (1) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... stances, the reasonable inference can be that the cost of balcony area has been taken into consideration and embedded into, while fixing the rate of carpet area exclusive of area of balconies. The conclusions arrived at by the lower authorities are based on conjectures and surmises and not based on any plausible evidence - The burden is on the Revenue to prove that actual consideration was more than that was disclosed by the assessee, which in this case the Revenue has failed to discharge - Decided in favour of assessee. Genuineness of unsecured loan - Held that:- The assessee has submitted that the necessary details like confirmation letters from the creditors, copies of their income tax returns, ledger account etc were filed - The assessee had produced the required evidence before the Assessing Officer but the Assessing Officer failed to take notice of the same - The issue has been restored for fresh adjudication. - ITA No.831/M/10 - - - Dated:- 8-1-2014 - Shri D. Karunakara Rao And Shri Sanjay Garg,JJ. For the Petitioner : Shri K. Shivaram Rahul K. Hakani For the Respondent : Shri Anurag Shrivastava, D.R. ORDER Per Sanjay Garg, Judicial Member: The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was adopted by the stamp duty authority. He further observed that it was a known fact that in the suburbs, the builders generally sell their flats to the buyers at a price which consists of both cheque component and cash component. He therefore held that it was a case of suppression of sale price by the assessee. He adopted the sale price ascertained by the stamp duty authorities and added back into the income of the assessee the difference of price between that of sale agreement and stamp duty authorities arrived at Rs. 1,10,58,909/-. 4. In first appeal, the ld. CIT(A) observed that the selling price adopted by the stamp authorities was not confined only to the actual value or market value but that was because of the difference of carpet area of the flats. The carpet area shown by the assessee in the sale agreement was substantially less as compared to the carpet area ascertained by the stamp authorities. The sale price was adopted by the stamp authorities on the basis of specific calculation of carpet area related to the individual flats. Even it was mentioned in the sale agreement itself that carpet area mentioned in the deed was exclusive of area of balconies, niches and door ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have been applied. 7. On the other hand, the ld. D.R. has stated that while adopting the value of stamp valuation authorities, the Assessing Officer had not applied section 50C of the Act but the stamp value was adopted on the reasonable footing that the same was the fair and correct market value of the flats at the time of sale. The ld. DR has further relied upon the findings of the authorities below. 8. We have considered the respective submissions of the ld. representatives of the parties. 9. So far the issue of applicability of or resort to the provisions of section 50C of the I.T. Act in the case of the assessee is concerned, since, it is not the case of the revenue, that section 50C of the Act is applicable or has been applied in the present case, hence, neither there is any necessity nor we think it proper to further deliberate on this issue as to the applicability of section 50C of the Income Tax Act to the case of the assessee as the same being not contested by the Revenue. 10. It is an admitted fact that the Assessing Officer had adopted the value of stamp valuation authorities while adopting the sale price of the flats in question. The CIT(A) while confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchasers and other contributing factors like noise of trains and two dilapidated buildings in the surroundings. The finding of the ld. CIT(A) that the assessee had tried to suppress the actual carpet area of the flat as it was mentioned in the sale agreement that carpet area mentioned in the deed was exclusive of area of balconies, niches and door jambs, in our view, is not well founded. When it was mentioned in the agreement that the value/cost of balcony area was inclusive in the sale value of the carpet area and the said area was excluded for the purpose of calculating the carpet area, then under such circumstances, the reasonable inference can be that the cost of balcony area has been taken into consideration and embedded into, while fixing the rate of carpet area exclusive of area of balconies. The conclusions arrived at by the lower authorities are based on conjectures and surmises and not based on any plausible evidence. 11. It may be further observed that the Hon'ble Supreme Court in the case of 'K.P. Varghese' (1981) 131 ITR 597 (S.C.) has held that the burden is on the Revenue to prove that actual consideration was more than that was disclosed by the assessee, which in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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