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TMI Blog2018 (7) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of yellow diary. In the result, ground No 2 to 2. 5 of assessee’s appeal for all the three assessment years stand allowed. Additional consideration received in respect of balance 12 flats - Held that:- the assessment order also does not talk of any evidence, much less the CIT(A) in respect of any evidence has been found to show that the assessee had received any additional sale consideration other than what has been disclosed by the assessee for assessment years 2009-10 & 2010-11 also, no evidence has been recorded to show that the assessee has received additional sale consideration of ₹ 1,42,10,000 less ₹ 54,99,000 = ₹ 87,11,000/-. In fact, Revenue has not been able to dislodge the claim of assessee nor does Revenue deny that the Revenue had not recorded the statements from the purchasers of the flats who have denied having paid any amounts as additional consideration. This being so, the addition made by the AO and confirmed by the Ld. CIT(A) on this issue is liable to be deleted and we do so. Assessment of cost of acquisition - Held that:- The total cost claimed at ₹ 9,32,80,000/- is indisputably the cost of the land. The ld. Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Co. Pvt. Ltd. , for the development of property at Kerala. It was a submission that assessee had received certain flats as a share in the joint venture. It was a submission that the assessee had sold these flats to various persons. In the course of survey, as statement was recorded from the assessee on 06. 06. 2012 wherein in respect of Question (Qn) No. 5, the question and answer are recorded as follows:- Qn No . 5 Please state the details of Joint Venture with M/s . Heera Constructions Co . Pvt . Ltd . Answer As per the above two agreements dated 05 . 10 . 2007 17 . 07 . 2008, I have been allotted 46 flats out of the constructed flats by the promoter and Rs . 4 crores had been paid to me . There is no separate payment from the promoter for car parking . However, I collected Rs . 2 . 5 lakhs per flat (as mentioned by me on page No . 28 of the yellow diary Annexure No . 1-ANN/DL/A . L/B D/Imp-1) as car parking charges from the buyers of 20 flats out of 46 flats . I have not charged the car parking charges from the buyers who have purchased the flats at the initial stages . Subsequently, it was a submission t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee has not been rebutted for dislodged by the ld. Assessing Officer in the assessment order. However, in the assessment order, the ld. Assessing Officer mentions that assessee has accepted in his statement that he has received ₹ 2. 5 lakhs per flat towards sale of car parking space and made addition. When particular evidence, more specifically the evidence in the form of diary, has been found in the course of survey and the assessee has explained the said evidence being a yellow diary, to discard the recordings in that diary, in the absence of any substantial or cogent evidence is impermissible. This being so, as no further evidence has been found to show that the assessee has sold car parking space to more than six persons as has been recorded in the diary, which is the foundation evidence, on the basis of which the assessment has been done in the assessee s case, no further addition can be made in the hand of assessee. Consequently, the additions made on the issue of car parking spaces sold stands deleted, to such extent as is in excess to car parking space sold in respect of six flats as has been mentioned in page-28 of yellow diary. In the result, ground No 2 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have heard both the parties and perused the material on record. A Perusal of the assessment orders and the orders of Ld. CIT(A) clearly shows that no evidence whatsoever has been found to show the receipt of additional sale consideration of (Rs. 77,40,000/- minus ₹ 25,80,000/-) ₹ 51,60,000/- in the course of survey. In fact, the assessment order also does not talk of any evidence, much less the Ld. CIT(A) in respect of any evidence has been found to show that the assessee had received any additional sale consideration other than what has been disclosed by the assessee for assessment years 2009-10 2010-11 also, no evidence has been recorded to show that the assessee has received additional sale consideration of ₹ 1,42,10,000 less ₹ 54,99,000 = ₹ 87,11,000/-. In fact, Revenue has not been able to dislodge the claim of assessee nor does Revenue deny that the Revenue had not recorded the statements from the purchasers of the flats who have denied having paid any amounts as additional consideration. This being so, the addition made by the ld. Assessing Officer and confirmed by the Ld. CIT(A) on this issue is liable to be deleted and we do so. In the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payments made to the sellers of the land for ₹ 9,32,80,000/- between 24. 01. 2007 and 20. 08. 07. He also drew our attention to page-2 of the agreement wherein the rate per cent subject to measurement has been agreed at ₹ 3,88,000/-. It was a submission that the agreement specified the cost of acquisition at cent basis and the agreements have been accepted by the Revenue. It was a submission that the difference between ₹ 9,32,80,000/- and ₹ 10,05,28,650/- show the cost representing the commission payments, which had been accepted by the ld. Assessing Officer. The Stamp Paper costs of ₹ 33,60,900/- was accepted by the ld. Assessing Officer and Registrar fee of ₹ 6,72,180/- has been accepted by the ld. Assessing Officer. The other cost representing document writing costs, vehicle maintenance, bank charges, rent, leveling and compound wall, telephone charges and vehicle insurance had not been accepted by the ld. Assessing Officer. It was the prayer that the cost of acquisition as disclosed by the assessee may be accepted. 13. In reply, the ld. D. R vehemently supported the orders of ld. Assessing Officer and the Ld. CIT(A). 14. We have consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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