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TMI Blog2015 (11) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has erred in deleting the addition of Rs. 1133524/- on account of S.T.C.G. on sale of property located at PC-II/303, Essel Tower, Gurgaon as the assessee was in the business of real estate and the loan was disbursed after five months from the date of purchase of property. The loan was also far in excess of the share of assessee in the cost of property." 2. Briefly stated, the facts of the case are: during the processing of income tax return filed by the assessee for the Assessment Year 2007-08 declaring total income of Rs. 21,42,260/-, the case was put under scrutiny and consequently, notice u/s 143(2) of the Income tax Act, 1961 (hereinafter referred as the 'Act'), was issued on 29.09.2008. Shri S. S. Silwal, Advocate attended the proceedings, filed details in response to questionnaire dated 14.07.2009, filed details / documents on record and has complied with the notice issued u/s 142(1) dated 14.07.2009 and 07.10.2009. 4. The assessee filed a computation regarding purchase and sale of property situated at PNA-013, The Pinnacle, Gurgaon, with A.O. by claiming sale consideration at Rs.,41,58,100/- and cost of acquisition as on 19.01.2006 at Rs. 40,92,651/- and assessed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be given to the assessee and prayed for dismissal of appeal. 8. Now, the first issue to be determined is, "as to whether Ld. CIT(A) has erred in deleting the addition of Rs. 4,18,050/- on account of short term capital gain on sale of property located at PNA-013, the Pinnacle, Gurgaon as the assessee has not disclosed the expenses relating to sale of the above property." As per the computation filed by the assessee along with his return of income, he has claimed short term capital gain (STCG) of Rs. 65,449/-, which is detailed as under: Sale consideration Rs.42,58,100/- Less COA on 19.01.2006 Rs.40,92,651/- STCG Rs. 65,449/- 8.1 However, on the other hand, A.O. by relying upon the receipt dated 25.07.2006 issued by the assessee himself in favour of Mr. Rajan Ramani and Mrs. Rajani Ramani lying at page 2 of the paper book filed by the assessee, observed that STCG comes to Rs. 4,83,500/- instead of Rs. 65,449/- as claimed by the assessee, tabulated as under: Sale consideration Rs.43,51,500/- Less C.O.A. Rs.38,68,000/- STCG Rs.04,83,500/- 8.2 Ld. CIT(A) in para 6.2 at page 9 of the impugned order observed that the A.O. has erroneously assessed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee for purchase of the asset. The assessee may have raised the funds to purchase the asset by borrowing but what the assessee has paid for it, is the price of the asset. That price cannot change by any event subsequent to the acquisition of the asset. In our judgment, the manner or mode of repayment of the loan has nothing to do with the cost of an asset acquired by the assessee for the purpose of his business." 8.5 The ratio of the judgement (supra) is applicable to the facts and circumstances of the case and the cost of acquisition in the present case is to be taken at the actual amount of Rs. 38,68,000/- paid by the assessee to M/s. DLF Universal Ltd. as is apparent from the receipt placed at page 2 of the paper book filed by the assessee and the amount of Rs. 1,58,209/- cannot be added to the amount being the interest paid by him to Mrs. Gunjan Batra. 8.6 Ld. CIT(A) in para 6.2 and 6.3 of the impugned order has allowed the expenses to the tune of Rs. 36,442/- as transfer charges and Rs. 30,000/- stated to have been paid as commission by the assessee to Mr. P. K. Ganesh for the sale of property merely on the basis of assumptions and presumptions. There is no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no detail in the same as to which account the amount of Rs. 1,93,400/-was transferred. Moreover, when the receipt dated 25.07.2006 is examined in totality, the assessee has received Rs. 43,51,500/- from Mr. Rajan Ramani and Mrs. Rajini Ramani being full and final settlement amount which included the amount of Rs. 38,68,000/- paid by the assessee to the builder M/s. DLF Universal Ltd., Gurgaon. Even otherwise, when the assessee himself has accepted the fact that he has sold the property for Rs. 43,51,500/-, it does not lie in his mouth that out of the said amount he has paid Rs. 1,93,400/- to the builder, particularly when it is categorically mentioned in the receipt dated 25.07.2006 that he has received an amount of Rs. 43,51,500/- from the purchaser. So, the finding of Ld. CIT(A) qua the addition of Rs. 4,18,050/- are perverse, hence, hereby set aside. 9. The second ground of appeal is. "as to whether Ld. CIT(A) has erred in deleting the addition of Rs. 11,33,524/- on account of STCG on sale of property located at PC-II/303, Essel Tower, Gurgaon as the assessee was not able to file any document of any evidence for the claim of sale in 2004-05 and no evidence was furnished reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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