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TMI Blog2020 (9) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... eopening of assessment and also merit of addition by invoking provisions of Section 50C of the Act amounting to Rs. 26,37,537/- and addition U/s 69C and 69 of the Act of Rs. 6.34 lacs. 4. Rival contentions have been heard and record perused. In this case, the A.O. recorded following reasons before initiation of reassessment proceedings: - " As per the information available under my possession , it is seen that Shri Mukesh Kumar Agarwal resident of Chhavani, Neem Ka Thana has sold an immovable property(Basement) situated at Subhas Mandi, Neem Ka Thana on 04/06/2009 for a sale consideration of Rs. 7,00,000/- to Smt Parmeshwari Devi resident of Jodhpura Sunari, Tehsil- Udaipurwatti, Distt- Jhunjhunu. However, the DLC value of the property s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of basement & shops was started on the said plot. The assessee constructed Hall in basement and eight shops on the ground floor. One of the shop was sold in F.Y. 2008-09 and basement, Roof rights & balance shops were sold during the year under consideration. Another plot of 81.66 Sq. yards was purchased on 29/06/2009 and was sold in the same year i.e. on 12/11/2009. 6. It is clear from the above sequence of transaction, that the intention of the assessee in making above referred transaction of sale purchase was of business nature and was therefore assessable under head Income from Business. Although in the return of income, assessee made a bonafide mistake by showing all such transactions under the head Income from Capital Gain instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le answering Q.No. 3& 4) that the investment was made to earn in the real estate business. Even otherwise the transaction was to be assessed under the head income from business because:- 1. The construction of shops & basement were made immediately after the purchases. 2. The efforts were made to find the buyer quickly and shops, basement & roof were sold during the construction stage i.e sale was made within a short period of time. 3. The land could not have produced the personal income or enjoyment if shops were not constructed over the land. 4. Intention was to do business of real estate & also to sale the property after construction immediately i.e on the first opportunity. 5. The intention was to earn profits after immediate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble ITAT Mumbai 'C' Bench in the case of Sh. Chandre Shakhar Bahirwani in ITA no. 7810/M/2010 vide their order dated 17/06/2015 has held "Moreover, if the assessee is, otherwise, entitled to a claim of deduction but due to his ignorance or for some other reason could not claim the same in the return of income, but has raised his claim before the appellate authority ,the appellate Shri Chandrashekhar J. Bahirwani authority should have looked into the same. The assessee cannot be burdened with the taxes which he otherwise is not liable to pay under the law. Even a duty has also been cast upon the Income Tax Authorities to charge the legitimate tax from the tax payers. They are not there to punish the tax payers for their bonafide mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date Sale Value DLC value 1. Shop no SB-7 27/07/2009 71,000/- 1,11,000/- 2. Shop no SB-1 & SB-4 07/09/2009 1,60,000/- 2,74,000/- 3 Shop no SB-6 07/09/2009 1,10,000/- 2,17,000/- 4. Shop no SB-8 27/09/2009 71,000/- 1,11,000/- 5. Shop no SB-9 07/09/2009 70,000/- 70,000/- 4,82,000/- 7,83,000/- A sum of Rs. 1,00,000/- was withdrawn from Bank on 29/06/2009. Copy of bank account was also produced before the A.O.. Apart from this the assessee has made investment for Rs. 1,60,651/- out of advance received from the sale of other shops i.e. out of Rs. 4,82,000/- and out of his own capital. It is worth to mention that the assessee has declared other income of Rs. 1,54,000/- from partnership busine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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