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TMI Blog2015 (7) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... sale consideration for transfer of 400 shares at ₹ 22,50,000/- as against ₹ 5,00,000/- - contentions of the assessees is that they have received only ₹ 10,00,000/- and the remaining amount of ₹ 35,00,000/- has not been received by the assessees from Shri Prakash Laddha till date - Held that:- We do not concur with the submissions of the assessees that the consideration of ₹ 45,00,000/- is towards transfer of shares and repayment of cost of improvement of site. The assessees till date have not brought on record any document to show the terms and conditions and the allocation of consideration for transfer of company from assessees to Laddha Group. In the absence of any documentary evidence the only inevitable inference that can be drawn is that ₹ 45,00,000/- is sale consideration for transfer of shares alone. To treat ₹ 17,49,617/- as part of sale consideration is nothing but an attempt to reduce the capital gains arising on sale of shares. A perusal of the above letter of Shri Prakash P. Laddha shows that an amount of ₹ 40,000/- was allegedly paid to Shri Janardan R. Kapse against purchase of shares. The claim made by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessees. The assessees vide letter dated 09-08-2004 submitted, that Vastukrupa Construction (India) Pvt. Ltd. was incorporated in 1991. The main objects of the company were land development, construction of residential and commercial complex etc. The authorized share capital of the company is ₹ 5,00,000/- and the paid-up capital is ₹ 80,000/-. Both the assessees are Directors of the company. Out of the total paid up share capital, the assessees were having 400 shares each having face value of ₹ 100/- each. The assessee in ITA No. 163/PN/2009 (Mrs. Aruna J. Kapse) sold her 400 shares for consideration of ₹ 13,00,000/-. The assessee in ITA No. 164/PN/2009 (Shri Janardan R. Kapse) sold his 400 shares at ₹ 32,00,000/-. The total sale consideration of the company was fixed at ₹ 45,00,000/-. Out of the total sale consideration of ₹ 45,00,000/-, the assessees have received ₹ 5,00,000/- each by cheques from Shri Prakash Laddha. For remaining amount of consideration, Shri Prakash Laddha had issued post dated cheques that were dishonoured. 3. On the basis of the documents seized and information collected, notice u/s. 158BD was issued to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not beneficial to the revenue against the proposition of law laid down by hon'ble Pune ITAT, in the case of Chandramohan Mehta Vs. ACIT, 71 ITD 245. 4. On the facts and in law the CIT(A) has erred in taxing the consideration of ₹ 27,00,000/- towards expenditure incurred by the appellant for site development of the land during 1990-91 to 31/3/2000 ₹ 13,37,745/-. 5. On the facts and in law the CIT(A) has erred in not appreciating the fact that no consideration towards expenditure incurred by the appellant for site development of the land was received and the purchaser is also not willing to pay the same and litigating the same in Nashik Court. 6. On the facts and in law the CIT(A) has erred in not considering cost of land development etc. incurred by the appellant at ₹ 13,37,745/- while arriving at taxable capital gain. Except for amounts, the grounds raised in both the appeals are identical. 5. Smt. Deepa Khare appearing on behalf of the assessees submitted that the authorities below have erred in invoking jurisdiction u/s. 158BD. During the search proceedings in the case of Laddha Group no incriminating material was found against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the consideration is for sale of shares. The ld. DR prayed for dismissing the appeals of the assessees and sustaining the impugned orders. 7. We have heard the submissions made by rival sides and have perused the orders of the authorities below. The first argument raised by the ld. AR is with respect to validity of proceedings u/s. 158BD. We find that the assessees had neither raised this ground before the Commissioner of Income Tax (Appeals) nor this ground has been taken in the grounds of appeal before the Tribunal. The ld. AR for the first time has assailed the invoking of jurisdiction u/s. 158BD in oral arguments before the Tribunal. The ld. DR has strongly objected to the same. It is a well settled law that the appellant can raise fresh legal ground before the Tribunal even if it is not taken before the First Appellate Authority. However, the appellant has to make an application for raising such additional ground. National Thermal Power Corp. Ltd. v. CIT 229 ITR 383 (SC). De`hors the fact that invoking of jurisdiction u/s. 158 BD has been challenged without any formal application for admitting additional ground, we are deciding this issue. 8. During the course of sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,745/- and Mrs. Aruna J. Kapse had incurred expenses to the tune of ₹ 4,11,872/- for improvement of site. The aforesaid amounts aggregating to ₹ 17,49,617/- was in the nature of unsecured loan to the company. The consideration of ₹ 45,00,000/- included this amount of unsecured loan. A perusal of records show that 800 shares having face value of ₹ 100/- each have been transferred in the name of Shri Prakash Laddha and his wife consequent upon the payment of ₹ 10,00,000/-. We do not concur with the submissions of the assessees that the consideration of ₹ 45,00,000/- is towards transfer of shares and repayment of cost of improvement of site. The assessees till date have not brought on record any document to show the terms and conditions and the allocation of consideration for transfer of company from assessees to Laddha Group. In the absence of any documentary evidence the only inevitable inference that can be drawn is that ₹ 45,00,000/- is sale consideration for transfer of shares alone. To treat ₹ 17,49,617/- as part of sale consideration is nothing but an attempt to reduce the capital gains arising on sale of shares. The assessees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial statements for UD1 transactions, ₹ 9,29,000/- and ₹ 8,60,000/- have been shown in F.Y. 1999-00 2000-01 respectively as paid to Shree. J.R. Kapse. Further, in F.Y 2001-02 ₹ 23,21,000/- have been shown as received against Plot Advance Paid in the regular books of Accounts for which corresponding source is UDI financial transactions, this did not actually represent any transaction/transfer of funds. Thus, for ₹ 23,21,000/- in F.Y 2001-02 neither any amount was paid nor any amount was received. However, the amount of ₹ 40,000/- was paid to Shree. J.R. Kapse against purchase of shares. Therefore, in view of the refusal by Shree. J.R. Kapse, the amount standing in his name be treated as use of name of Shree J.R. Kapse to park UDI. 12. A perusal of the above letter of Shri Prakash P. Laddha shows that an amount of ₹ 40,000/- was allegedly paid to Shri Janardan R. Kapse against purchase of shares. The claim made by the assessee and the statement given by Shri Prakash P. Laddha are not congruent. Shri Prakash P. Laddha during the course of assessment further admitted that payment to the extent of ₹ 17,89,000/- in cash and ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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