9911796707
TMI Blog2014 (10) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... se in allowing claim of the assessee that investments of Rs. 8,80,000/- were made out of advance received from Mehboob Alam against sale of property. This alleged transaction is not genuine as the assessee was not owner of the property in question. The assessee also failed to provide Shri Alam's address. Therefore, the indentity and capacity could not be verified. 5. The CIT (A) has erred in law and on facts of the case on treating investments of Rs. 2.50 lakhs as being explained as having been made put of cash loan taken from Mohd. Naseem Mansoori. This person resides in Abu Dhabi and there is no evidence available with the assessee that he had these funds available with him in India for making this loan. Therefore the genuineness of the transaction is not proved and the addition made by the AO deserves to be restored. 6. The CIT(A) has erred in law and on facts in accepting that investments of Rs. 21,43,986/- was made by redemption of investment in earlier years, even though the assessee had failed to provide any evidence for the same before the A.O. 7. The CIT(A) has erred in law and on facts in accepting the claim of the assessee that his investment in TATA Assets Manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the investment of Rs. 10 lakhs. The difference was explained by the assessee that it was caused by switching over from one investment to other i.e. same investment being rotated over a period of time from one scheme of the fund to the other. While the Assessing Officer has taken the investment as the cumulative figure, but the assessee has taken the figure of investments actually made, as the switches are included in the investments originally made. The Assessing Officer noted the details of investments in 26 schemes from the TATA Assets Management, but without examining the claim of switch over from one scheme to other, the Assessing Officer has worked out the total investment of Rs. 27,65,237/-. According to the assessee, the details were filed before the Assessing Officer, but he has not looked into it and taken the cumulative figure of investment in TATA Assets Management. The ld. CIT(A) took cognizance of these switch over of investments and having verified from the details, he accepted the contention of the assessee that the total investment was of Rs. 43,40,457/- as against Rs. 61,09,693/- taken by the Assessing Officer. Accordingly, the ld. CIT(A) deleted the addition. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of Rs. 27,67,236/- whereas the assessee has accepted the investments of Rs. 10,00,000/-. It is therefore imperative to examine this difference. The assessee has submitted that the difference has been caused by switches i.e. the same investment being rotated over a period of time from one scheme of the fund to the other. While the AO has taken the investment as the cumulative figure, the assessee has taken the figure of investments actually made as the switches are included in investments originally made. The AO acquired the details of investments in 26 schemes from the TATA Assets Management. The total investment worked out to Rs. 27,65,237/- without considering the switches from one scheme to the other. The investment made before and after the switch from one scheme to another included in these 26 schemes. The figure has been takers by the AO at Rs. 27,67,236/-resulting in a totaling error of Rs. 1,998/-. 7(2)(i) The investment in TATA Assets Management without considering the switches is as per Serial numbers 10 to 16, 19, 20 and 22 in the name of the assessee, serial number 18 in the name of daughter Nazia Iqbal and serial number 26 and 17 in the name of wife Smt. Shenaz I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 Switch out to TATA AIG amount is Rs. 2,05,003.27 25 1,00,000 1496321 It is Switch out to TGEIAG and amount is Rs. 1,98,824.08 Total Rs. 18,80,087.43 7(2)(iii) The total of investments as per list of 26 schemes obtained by the AO from the TATA Assets Management is Rs. 27,65,237.86. The total of investments without considering the switches as tabulated in first table is Rs. 8,85,150.2. The total investments comprised in the switches i.e. switch from one scheme to another also included in the list obtained by the AO as tabulated in second table is Rs. 18,80,087.43. The two tables above total at Rs. 27,65,237.63. In other words the difference worked out by the AO is explained by the switches from one scheme to another. However, the appellant has worked out his investment in TATA Assets Management Schemes at Rs. 10,00,000/- from the statements of Mutual Funds which were also filed with the AO. 7(2)(iv) On the basis of above examination, it is evident that the total investment by the appellant during the year under consideration is to be taken at Rs. 43,40,457/- as against Rs. 61,09,693/- taken by the AO. The difference of Rs. 17,69,236/- has been explained as above on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined the details of investment from one scheme to the other and finally concluded that actual investment in TATA Assets Management was Rs. 10 lakhs and not Rs. 27,67,236/- as adopted by the Assessing Officer. Therefore, we find no infirmity in this regard and we accordingly confirm the order of the ld. CIT(A). 9. The next issue relates to the source of investment in the aforesaid investments made by the assessee. 10. The Assessing Officer has already allowed benefit of Rs. 9,28,179/- as known source of investment. The ld. CIT(A) required the assessee to explain the total source of investment of Rs. 43,40,457/- for which assessee had furnished the details before the ld. CIT(A). As per details, assessee had furnished known source of income amounting to Rs. 50,09,986 to explain the investment of Rs. 43,40,457/-. In these details, the dispute as raised before us in the Revenue's appeal is with regard to Rs. 1 lakh from agricultural income; withdrawal of Rs. 3 lakhs from G.P.F.; receipt of Rs. 8.80 lakhs as advance from Mr Mehboob Alam against sale of property; receipt of cash loan from Mohd. Naseem Mansoori of Rs. 2.50 lakhs and redemption of investment in earlier years at Rs. 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to be convincing, as the withdrawal from the G.P.F. was made for a particular purpose i.e. for construction of the house and no evidence was placed either before him or us that the assessee has not constructed any house. Before the Assessing Officer, assessee has not disclosed withdrawal from G.P.F. as one of the source of investment. This stand was taken for the first time before the ld. CIT(A) and the ld. CIT(A), without verifying the facts, has accepted the claim of the assessee. We, therefore, do not agree with the findings of the ld. CIT(A) and accordingly we set aside the order of the ld. CIT(A) on this issue and hold that withdrawal of Rs. 3 lakhs from G.P.F. account cannot be considered to be the valid source of investment. 15. With regard to receipt of Rs. 8.80 lakhs from Mr Mehboob Alam for sale of property, assessee has simply placed sale deed/sale agreement through which he alleged to have received an advance of Rs. 8.80 lakhs in cash from Mr. Mehboob Alam. The Assessing Officer asked the assessee to produce the proof of ownership of the property, but it was not produced before him and he accordingly did not accept it to be the source of investment. 16. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtant to note here that in Uttar Pradesh, agreement for sale of immovable property is required to be registered under the Indian Registration Act, of which Stamp Duty is required to be paid. It is also an important factor that only that property can be sold which is owned by the seller. In this case, the Assessing Officer has raised a specific query from the assessee to produce the ownership document of the property which is proposed to be sold by the assessee, but the assessee did not place the ownership document before the Assessing Officer. Similar is the position before us and the ld. CIT(A). He simply placed reliance upon the so called sale agreement but could not place ownership document of the property. In the absence of documents for ownership of the property, the factum of execution of sale agreement cannot be accepted. No prudent man will purchase any property from anyone which is not owned by him. Moreover, this is the case where the assessee has raised certain funds for investment and onus is upon him to prove the same. It is for the assessee to place the relevant evidence to establish that he in fact has received the amount of Rs. 8.80 lakhs from the buyer on execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion without having residential address of the creditor. A reference was made to Abu Dhabi. In a situation where no local address has been given, how a person of resident of Abu Dhabi has extended loan in cash to the assessee for settlement of his insurance policy. The assessee ought to have furnished some evidence as to which date and what time the loan and cash was given to him and he should have also filed evidence of the availability of Mohd. Naseem Mansoori in India at the relevant point of time, as the loan was given in cash. Otherwise, a loan cannot be given in cash from an NRI living in abroad. Since the onus is upon the assessee to place relevant evidence in this regard, but he did not place the same. We are, therefore, of the view that assessee has not discharged the primary onus which lays on him. Accordingly, the alleged receipt of Rs. 2.50 lakhs in cash from Mohd. Naseem Mansoori cannot be treated to be one of the sources of investment. 25. With regard to the availability of funds of Rs. 23,31,473/- available on account of redemption of investment in earlier years is concerned, we find that before the Assessing Officer, it was contended that the investments were made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24/7/2007 from DSP Small and Mid Cap fund (Date of Purchase -14/11/2006 for Rs. 50,000/-) 58,426.13 27/07/2007 (ii) Redemption On 10.9.2007 from Frank Flexi Cap India oppur.(Date of purchase :5/4/05 for Rs. 25,000/-,13/10/05 for Rs. 25,000/-,20/12/2005 for Rs. 50,000/-) 1,42,667.00 13/09/2007 (iii) Redemption on 10/9/2007 from Frank India Prima Fund (Purchases done through SIP from April 2005) 2,31,339.55 13/09/2007 (iv) Redemption on 10/9/2007 from HDFC Equity Fund (Purchases done through SIP from April 2005) 2,74,097.36 13/09/2007 (v) Redemption on 10/9/2007 from ICICI Infrastructure Fund (Purchases done on 31/8/2005 for Rs. 50,000/- and 11/10/2006 for Rs. 50,000/-) 1,51,133.40 13/09/2007 (vi) Redemption on 10/9/2007 from ICICI Dynamic fund (Purchases done on 13/10/2005 for Rs. 50,000/- and 20/12/2006 for Rs. 50,000/-) 1,38,154.59 13/09/2007 (vii) Redemption from DSP ML Tiger fund (Date of Purchase 05/4/2005 for Rs. 25000 and 13/10/2005 for Rs. 25000) 80,740.38 27/09/2007 (viii) Redemption from Reliance Growth Fund .Date of Purchase 11/10/2006 for Rs. 1,00,000/-) 1,07,908.52 27/09/2007 (ix) Redemption from Birla Sun Life Equity Fund. Date of Purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years cannot be added as the income of the year under consideration. So far as investment of the year under consideration is concerned, it is out of income/receipts as discussed above. The three bank accounts of the assessee maintained with ICICI bank, IDBI Rank and Citi bank were examined by the AO. The interest thereon has been added to the income of the assessee. The transactions appearing in the said bank accounts have been considered by the AO in completing the impugned assessment. Therefore The redemption proceeds of investments made in Mutual Funds in the year under consideration and in earlier years credited in the said bank accounts are to be considered as available to the appellant for making the impugned investments for which the additions have been made by the AO." 28. Aggrieved, the Revenue has preferred an appeal before us with the submission that if the assessee has made investment in Mutual Funds, on its redemption the capital gain is required to be worked out, but the assessee has not offered any capital gain in the impugned assessment year and this fact cannot be ignored while accepting the receipt of redemption for the investment. The ld. D.R. has further conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
