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TMI Blog2014 (2) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... MOU entered on 06/10/2005 between builder and Mrs. Sudha Murthy and copies of photoes indicating the view point from apartment - As the additional evidence is admitted, Assessing Officer has to examine these, as they are not placed before Assessing Officer in the course of assessment proceedings – thus, the addition cannot be sustained on the basis of the reasoning taken by AO - Since the additional evidence was not placed before Assessing Officer, in the interest of justice, the order is set aside and the matter remitted back to the AO to consider the additional evidence and complete the assessment as per law and facts – Decided in favour of Assessee. - ITA No. 6985/Mum/2010 - - - Dated:- 14-8-2013 - Shri B. Ramakotaiah And Dr. S. T. M. Pavalan,JJ. For the Petitioner : Shri J. D. Mistry For the Respondent : Shri K. K. Ved Shri T. D. Singh ORDER Per B. Ramakotaiah, AM:- This appeal by the assessee is against the order of CIT(A)-26, Mumbai dated 30.08.2010. The assessee raised the following ground :- "1. Re: Addition of Rs.1.70 crores as allegedly suppressed sales: 1.1 The CIT(A) has erred in confirming the view of AO that the appellant had understated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually earned income by the assessee. There is no iota of evidence of any sort with AO which suggests remotely that the assessee has earned more income from sale of flats than disclosed in sale agreement. Further, it was contended that the assessee follows percentage completion method, whereby profit was offered according to the percentage of work completed in the year and since project was not complete, no such addition can be made on account of difference of sale price. In support of the contention ld.AR has placed his reliance in the case of K.P. Varghese vs. ITO (131 ITR 597(SC); CIT vs. Shoorji Vallabhdas Co.(1962) (46 ITR 144)(SC); Godhra Electricity Co. Ltd. vs. CIT (1997) (225 ITR 746)(SC); India finance Contruction Co. Pvt. Ltd. vs. B.N. Panda DC, (1993)(200 ITR 710)(Bom.); Umacharan Shaw Bros. (37 ITR 271(SC) and CIT vs. Sivakami Co. P. Ltd.(1986) (159 ITR 71)(SC). Further by letter dated 23.08.2010 it was submitted that there was a survey u/s. 133A on the premises of related concern of the assessee on 20.02.2009 wherein the assessee's premises was also there and nothing was found in the course of survey. Nor was any excess cash or were any documents or paper evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pts without establishing anything from his side. He also referred to the order of CIT(A) to submit that CIT(A) wrongly considered that Assessing Officer discharged the burden of proving the amount received over and above what was accounted for, whereas it is assessee who submitted the entire information and without any basis AO considered the difference in price as unaccounted receipt. He also referred to the additional evidence placed on record to submit that there is an affidavit by the partner of the firm about MOU entered by Shri N.R. Murthy and special price was obtained and confirmations from Shri N.R. Murthy and also statements from other owners of the flat 701 and 801 and photographs placed on record to submit why special price was obtained for selling flat No.901 which has a clear view over the others. 6. The ld. DR however, relief on the orders of AO and ld. CIT(A) to submit the facts. 7. We have considered the issue and examined the paper book placed on record and additional evidence. As seen from AO's order AO has arrived at the difference in price by his brief order which is as under :- "6. On perusal of various details filed, it is noticed that the firm has sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. Therefore, it can be safely considered that price paid by Shri N.R. Murthy is special price, not only for the floor which he has selected but also for all the facilities provided to him. It was also submitted in the course of argument that this flat was kept for sentimental reasons and this apartment was hardly occupied by Shri N.R. Murthy even as of now. Whatever may be the reason for paying higher amount, the assessee has accounted for the entire amount and if there is any understatement of sale price of flat 701 and 801, it is for the revenue to establish the understatement by separately examining the sale of these flats rather than basing the assessment on the fact that flat 901 was sold at a higher price. The assessee also placed on record lot of information about the price at which similar apartments were sold in the area and we do not find that this aspect were even examined by AO and CIT(A). Prima facie we are of the opinion that AO was not correct in making the addition simply on the basis that flat 901 was sold at a higher price. Ld Counsel has placed reliance on various case law to support contentions which we do not intend to refer here for the reason that AO did n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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