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TMI Blog2022 (9) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... he has filed after a search in her premises earlier. 3) Your petitioner submits that the CIT Appeal's erred, in not considering the cross examination points correctly, and has erred in presuming the cross examination queries raised by the assessing officer as that of your petitioner. 4) Your petitioner pleads that he did not receive any consideration in cash over and above the recorded consideration. Your petitioner strongly protests that the Assessing Officer's intentional attitude of denying your petitioner his rights of seeking legal advice during the cross examination. 5) Your petitioner denies receiving any amount other than sum of Rs.10, 56, 25,000/which was duly offered as income in the computation filed. No evidence to the contrary has been produced by the assessing officer till date. He has been stating that evidence is available, but till the date nothing has been produced. 6) Your petitioner had sought for cross examination vide his letter dated 04-02- 2013, wherein he had sought the right to examine the Mrs.P.Pramila and to verify the original receipt of Rs.2,00,00,000/- alleged to have been signed by the petitioner. 7) Your petitioner submits that Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee are as under: Particulars Amounts in Rupees Sale consideration 10,56,25,000 Less: Selling Expenses 4,00,00,000 Net Sale Consideration 6,56,25,000 Less: Indexed cost of acquisition Purchase cost Rs..35880735 Date 11.04.2005 (Rs..3,58,80,735 x 632/497 4,56,27,011 Less: Indexed cost of improvement FY 2005-06 Rs..6,74,754 x 632/497 8,58,037 Less: Indexed cost of improvement FY 2008-09 Rs..47,63,304 x 632/582 51,72,523 Long term capital gain tax 1,39,67,429 3. After considering the above particulars, the Assessing Officer has asked the assessee that as to why the cash received from Smt. Pramila for the sale of property at Arunachalam Road, Kotturpuram, Chennai to the extent of Rs..5,68,75,000/- should not be treated as his undisclosed income. In reply to the questionnaire, the assessee filed a letter dated 17.01.2013 and submitted that the property has been sold by the assessee to Mrs. P. Pramila, wife of Mr. P.B. Anandam for Rs..10,56,25,000/- and the same is evidenced by registering the property before the Sub-Registrar, Adyar. The assessee has further submitted that as stated to have paid an additional sum of Rs..5,68,75,000/- to Mrs. Pramila, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Vijay Pai just before registration. By considering the above facts, the ld. CIT(A) was of the opinion that the assessee has received on-money and accordingly, confirmed the order of the Assessing Officer. 6. On being aggrieved, the assessee is in appeal before the Tribunal. The ld. Counsel for the assessee has submitted that the purchaser Smt. Pramila, subsequent to the search conducted in her premise, she filed the return of income and wealth tax return, wherein, she has intimated the amount of Rs..5,68,75,000/- has been paid to the assessee. He further submitted that the assessee has entered into a registered sale deed for the sale consideration of Rs..10,56,25,000/- and except that, no other amount has been received by him. It was further submission that it is not the case of the purchaser that the payment was made to the assessee by her. The case of the purchaser is that payment was made through an office staff of her husband and paid to a staff of the assessee just before registration. It was further submission that on the basis of the income tax and wealth tax returns filed by the purchaser subsequent to the search in the case of the purchaser cannot be considered as evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of purchaser's husband, no name of the person was given as well as who was the person to whom payment was made outside the Registrar Office. Therefore, on the basis of the statement, addition cannot be made. 9. In this case, the Assessing Officer should have cross examined or put to cross examination the person who has carried the money from the purchaser and to whom the money was handed over to a person shown by Mr. Vijay M Pai. Instead of that, the Assessing officer allowed the assessee to cross examine the purchaser and her son, who has given the statement that the cash was paid and four cheques are received. Thus, in totality, proper cross examination was not carried out. 10. In the sworn statement recorded, the son of the purchaser has stated that there is no written agreement towards purchase of the property and it was only an oral agreement. The purchaser's son has stated that the total consideration agreed to purchase was Rs..16.25 crores and Rs..10.05 crores was paid while registration and the balance amount of Rs..5.75 crores also paid which includes registration charges. In reply to question No. 7, he has submitted that Rs..1.5 crores paid prior to registration. When h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that after conducting search, the purchaser has accepted in her sworn statement in respect of on-money payment. Therefore, the Assessing Officer has made addition in the hands of the purchaser Smt. Pramila. Simply because the purchaser has admitted on-money payment is not sufficient. Particularly, in this case, a search was conducted and no incriminating material has been found in respect of on-money receipt. Therefore, in our opinion, addition cannot be made in the hands of the assessee. In view of the above, we set aside the order of the ld. CIT(A) on this issue and the ground raised by the assessee is allowed. 13. The next ground raised in the appeal of the assessee relates to confirmation of addition made towards disallowance of selling expenses of Rs..4,00,00,000/-. The assessee has claimed Rs..4 crores as selling expenses for the sale of his property. The Assessing Officer asked the assessee to furnish evidence in support of his claim. In response thereto, the assessee had vide his letter dated 17.01.2013 furnished a copy of the original sale agreement dated 28.04.2008 entered into with M/s. S.M. Apparels and a copy of the cancellation of agreement dated 11.04.2009 enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid agreement. The AO has brought out on record that the appellant had not received any money from the intended and purported buyer M/s. S.M. Apparels P. Ltd. but by way of adjustment against the balance standing in the credit of the firm M/s. S.M. Fashions. The AO has referred to the cancellation agreement wherein cheque bearing no. 387915 dated 31.03.2009 being the amount received by the appellant, was in fact credited to the appellant's bank account only on 4.5.2009 i.e., only after the eventual sale of the said property Smt. P. Pramila that was registered on 27.04.2009 This act clearly shows that the impugned agreement, the purported receipt of money from M/. S.M. Apparels and the cancellation of agreement is nothing but a self-serving and an after thought attempt. Otherwise, how else could it be explained that the cheque received as per the agreement dated 11.4.2009 from M/s. S.M. Apparels was credited to the appellant's account on 4.5.2009, when the appellant in the meanwhile has actually transferred the property in favour of the third party namely Mrs. Priamila on 27.4.2009. Even if conceded without admitting that the appellant had received the impugned cheque, the normal co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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