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TMI Blog2018 (7) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... e has actually acquired the property for himself, then only the question of computation of capital gain arises in the hands of the assessee. Accordingly, we remit this issue to the file of the Assessing Officer to re-examine the issue afresh and bring to tax only short term capital gain, if so, after giving deduction of cost towards acquisition and transfer of the said property. If the said property was acquired on behalf of Shri Anil Kumar Sharma and thereafter transferred to Shri Anil Kumar Sharma, then there cannot be any capital gain in the hands of the assessee and income on this transaction is to be estimated at 2% on this also. Accordingly, we direct the Assessing Officer to compute the income of the assessee as above. Thus, this ground of appeal of the assessee is partly allowed. - I.T.A. No.400 And 401/Coch/2015 - - - Dated:- 5-7-2018 - SHRI CHANDRA POOJARI, AM AND GEORGE GEORGE K., JM For The Assessee : Shri Shameem Ahamed, Adv. For The Revenue : Shri A. Dhanaraj, Sr. DR ORDER Per CHANDRA POOJARI, ACCOUNTANT MEMBER: These two appeals filed by the assessee are directed against the separate orders of the CIT(A), Kozhikode dated 05/02/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income on 20/12/2010 showing remuneration of ₹ 40,000/- from Gazaz global Ad Vision Pvt. Ltd. On verification of the details of land deal with Shri Anil Kumar Sharma, the Assessing Officer noticed that the assessee had only received advance of ₹ 1,50,00,000/- from Shri Anil Kumar Sharma during the FY 2006-07 relating to AY 2007-08 and no property transaction was done during the year. However, from the cash flow statement and bank statements, it was noticed by the Assessing Officer that there were huge cash deposits in the SB account of the assessee with Federal Bank and ICICI bank. It was explained by the assessee that these were amounts received from Shri Muhammed and Hameed towards refund of advance paid for purchase of properties on behalf of brother of assessee s father-in-law. The source of the money was explained to be withdrawals made from the bank account of Shri Sulaiman, brother of Shri Moosakutty, father-in law of the assessee, and paid to Shri Muhammed and Hameed. Further, it was submitted that both Shri Sulaiman and Moosakutty were NRIs doing business in the Gulf and produced copies of their bank accounts. On verification of the bank accounts, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no agreement entered with the various parties, the payments made by the assessee s relatives to the vendor and refund from them is to be substantiated by the assessee. Thus, this ground of appeal of the assessee is partly allowed for statistical purposes. 10. The only ground raised by the assessee in ITA No. 401/Coch/2015 is with regard to sustenance of addition of ₹ 1,50,42,950/- towards receipt of commission on real estate business. 11. The facts of the case are that there was information with the Assessing Officer that the assessee had entered into an agreement with Shri Anil Kumar Sharma of Ernakulam for procuring about 13 acres of land in Olavanna village in Kozhikode district on 05/07/2007. As per the agreement, the assessee had to receive ₹ 1,05,000/- per cent for procuring land on behalf of Shri Anil Kumar Sharma irrespective of the cost actually paid by the assessee to the seller. Accordingly, the assessee had procured about 544 cents of land during the period from 01/04/2007 to 25/09/2008 and Shri Anil Kumar Sharma had paid about ₹ 5.71 cores to the assessee through banking channels. Since the assessee had not filed the return of income for AY 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a trader as assumed by the Assessing Officer . The CIT(A) relied on the judgment of the Hon ble Apex Court in the case of Durga Prasad More (82 ITR 540) wherein it was observed that High Court should not ignore facts of life need not put on blinkers and swallow the story given without applying test of human probabilities. According to the CIT(A) it is not possible for an agent to make super normal profits like a trader. According to the CIT(A), in Kerala land titles are not registered at 100% of their value and part of it was paid in cash to the sellers. The CIT(A) observed that 40 to 80% of actual sale consideration was given in cash to the sellers. Therefore, considering that the money coming into the bank account of the assessee had gone out completely before coming to the notice of the Department, the CIT(A) estimated 50% of the money in the bank account as utilized for purchase of land as on money and reduced the addition of ₹ 3,00,85,900/- (Rs.2,70,51,650 + ₹ 30,34,250) to ₹ 1,50,42,950/-. 14. Against this, the assessee is in appeal before us. The Ld. AR submitted that the CIT(A) had accepted the fact that the assessee is working as an agent in bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the lower authorities. Hence, to compute the short term capital gain, one has to go through all the relevant documents for acquiring and transferring of the impugned capital asset and thereafter, it has to be decided. If the assessee has actually acquired the property for himself, then only the question of computation of capital gain arises in the hands of the assessee. Accordingly, we remit this issue to the file of the Assessing Officer to re-examine the issue afresh and bring to tax only short term capital gain, if so, after giving deduction of cost towards acquisition and transfer of the said property. In other words, if the said property was acquired on behalf of Shri Anil Kumar Sharma and thereafter transferred to Shri Anil Kumar Sharma, then there cannot be any capital gain in the hands of the assessee and income on this transaction is to be estimated at 2% on this also. Accordingly, we direct the Assessing Officer to compute the income of the assessee as above. Thus, this ground of appeal of the assessee is partly allowed. 17. In the result, the appeal filed by the assessee in ITA No. 400/Coch/2015 is partly allowed for statistical purposes and the appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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