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TMI Blog2017 (10) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect in law in deleting the addition of Rs. 15,77,59,691/- made by the AO u/s 69B of the Act? B. Whether on facts and in the circumstances of the case ITAT was correct in law in not appreciating the benefit in question in any case covered under the head "Profits and gains of business or profession" in view of Section 28 (iv) of the Act?" 3. The assessment of the Assessee for AY 2006-07 was completed under Section 143(3) of the Income Tax Act, 1961 ("the Act") on 26th December 2008 on total income of Rs. 15,87,03,349/- against return income of Rs. 6,55,453/-. 4. The reasons for the above addition was that the Assessee had shown purchase of land of Rs. 40,36,91,100/-. The documents filed by the Assessee show that the Assessee had acquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt relies on K P Varghese Vs IT0 13 1 ITR 397 (SC). There it has been held that burden lies on the Revenue to show that there is under statement of consideration. It has been further held that to throw the burden of showing that there is no understatement of the consideration on the appellant would be to case an impossible burden on him to establish a negative, namely, that he did not receive any consideration beyond that declared by him. A similar view has been taken in CIT Vs Sivhakant Co. Pvt. Ltd. 159 ITR 71. The sum and substance of the citations is that the consideration declared by be appellant has to be accepted by the Revenue as true unless it is proved to be wrongly declared, and the burden of proof is upon the Revenue to establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant receive more in exchange, which could have been taxable u/s 28(iv) and whether the excess was funded from outside the books. Facts show that 16.16 acres of land at Badsahpur was exchanged for 17.8 1 acres of land Behrampur/Ullawas. It means receipt of 1.1 acres for every one acre exchanged. As to why 0.1 acres in excess for every one acre of exchange was agreed upon to be delivered to the appellant is that the appellant's landholding was contiguous, has locational advantage, where as the counter parties was dispersed and suffered on the aspect of locational advantage. These factors are vital for determining the terms of exchange. Secondly, the stamp valuation authorities do not value the land at Behrampur at any sale different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue then went in appeal before the ITAT which by the impugned order dismissed the appeal of the Revenue. The ITAT concurred with the finding findings of the CIT (A) and held as under: "22. In the present case, shares were not exchange and there was exchanges of Land in the same locality and the duration of purchase of land and its exchange i.e. four-five months was very short. Furthermore, land rates are never uniform as in the share market and the A0 has not brought on record . - any allegation, material, evidence or document on record supported by proof of any rate variation resulting in a profit and addition has been made purely on the estimate basis and the stand of the A0 taken in the case of Golden View Builders Pvt. Ltd. (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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