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TMI Blog2015 (3) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer, about 8 years later. Further, there is nothing to show that the purchase cost exceeded the stated consideration of ₹ 4 lakhs, or that any part thereof, whatever be its value, was paid during the relevant year, or that it (the said year) witnessed anything apart from the execution of the agreement and its registration. Deferring the date of possession to the year 2003, i.e., after the date of occupancy certificate, would not also advance the Revenue’s case, which, as made out, is without any credible evidence or legal basis. The Revenue referred to a statement by the builder dated 26.12.2011, charging the first appellate authority to have proceeded by ignoring the facts brought out thereby. The same, which may well be relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ria ORDER Per Sanjay Arora, A. M. This is an Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-26, Mumbai ( CIT(A) for short) dated 03.10.2012, partly allowing the assessee s appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ( the Act hereinafter) for the assessment year (A.Y.) 2009-10 vide order dated 30.12.2011. 2. The only issue arising in this appeal is the maintainability or otherwise in law of the addition in the sum of ₹ 35,14,230/- made by the Assessing Officer (A.O.) on account of alleged investment in a residential flat purchased by the assessee, since deleted by the ld. CIT(A), so that the Revenue is in appeal. 3. It would be relevant to br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year of registration of agreement, i.e., f.y. 2008-09, as the year of payment. The market value of the property, as determined by the stamp valuation authorities for the relevant year was at ₹ 33.43 lakhs. Including thereto the stamp duty (Rs. 1,49,350/-) and registration charges (Rs. 30,880/-), he made the addition in a sum of ₹ 35,14,230/-. In appeal, the assessee furnished details of payment made, i.e., at total ₹ 7 lakhs, being at ₹ 4 lakhs and 3 lakhs toward purchase of Flat B/301 and Flat B/302 respectively in the said building in the name of the assessee and his wife, which was during the period from 5.11.1999 to 31.1.2001, i.e., during the previous years relevant to the A.Ys. 2000-01 2001-02. The possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generally, to ensure performance, retain a part of the consideration pending the completion of any part of the contract, which may include an aspect or part of construction work, or even execution of agreement and its registration, only upon which there is transfer of title. However, that would not by itself imply that purchase had not occurred earlier, and that it had occurred only along with, i.e., the said transfer, about 8 years later. Further, there is nothing to show that the purchase cost exceeded the stated consideration of ₹ 4 lakhs, or that any part thereof, whatever be its value, was paid during the relevant year, or that it (the said year) witnessed anything apart from the execution of the agreement and its registration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Developer, observing the principles of natural justice, so that both the parties before him are allowed adequate opportunity, and of course the materials being relied upon by the other side, to state their case (refer: Kapurchand Shrimal v. CIT [1981] 131 ITR 451 (SC)). He may, where deemed fit and proper, also allow the assessing authority an opportunity to meet and rebut the assessee s case in the matter. The addition of income qua purchase cost shall be decided afresh in accordance with law, issuing definite findings of fact. We decide accordingly. The foregoing, however, would operate to decide on the addition qua the payment, if any, of the purchase cost, deemed at ₹ 33.34 lakhs, or a part thereof. The balance addition made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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