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TMI Blog2023 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... income - differential amount of sale proceeds - addition on account of difference of value of the property as per stamp duty valuation authority and sale consideration received by the assessee on sale of shops - HELD THAT:- We find that all the documents furnished by the assessee during the assessment as well as appellate proceedings were sufficient to justify claim of the assessee. On the contrary, the findings of the lower authorities were not based any documentary evidences, but based on some presumption that the assessee has concealed sale of plot, and thereby earned undisclosed income which action of the AO was not justified by any documentary evidence and therefore not in accordance with law. On such presumption, burden to establish concealment of income indeed was with the AO with some incriminating material. In the absence of the same, we are unable to find any merit in the impugned order of the ld.CIT(A), which we set aside, and allow the grounds of appeal of the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... als that the only effective ground raised by the Revenue is against by action of the ld.CIT(A) for not calling for remand report from the AO and not furnishing copies new evidences provided by the assessee during the appellate proceedings for rebuttal. 5. We have gone through orders of the ld.CIT(A). Qua the above grievance of the Revenue, we find, it is not the case of the Revenue. Reason being that the ld.CIT(A) in his impugned order has categorically recorded an observation in para-4 (page no.9) that "the submissions of the appellant were also forwarded to the AO but no report from the AO has been received till date." In this order also, the ld.CIT(A) has also dealt with the issue of additions. Observation of the ld.CIT(A) in both the years are similarly worded. For clarity, we reproduce the relevant para-4 (Asst.Year 2011-12) of the impugned order as under: "4. Ground No.1: By this ground the appellant has disputed the addition of Rs.31069500/- being suppression of sale of property as per AIR information. As noted in the assessment order the Sub-registrar Indore provided information that the appellant had shown only receipts of Rs.168800/-. Appellant explained that the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we take up assessee's appeal being ITA No.326/Ind/2018 for A.Y.2010-11. 9. In this appeal, the sole grievance of the assessee is that the ld.CIT(A) while upholding order of the AO passed under section 143(3) read with section 250 of the Act has been deviated from the order of his predecessor dated 25.2.2016 by which the latter has given clear cut direction to the AO to allow claim of the assessee by observing that the impugned addition of Rs.1,71,03,449/- on account of difference of value of the property as per stamp duty valuation authority and sale consideration received by the assessee on sale of shops was unwarranted. Without looking to the merit of the case and the direction of the ld.CIT(A) vide order dated 25.2.2016, the AO maintained the same addition, which was confirmed by the present CIT(A) in the impugned order dated 5.2.2018. The grievances of the assessee, thus, reflected in the following grounds as raised in the appeal: "1. On the facts and in the circumstances of the case the learned Commissioner of Income Tax (Appeals)-I, Indore, has erred in upholding the action of the learned Assessing Officer misinterpreting the absolute directions given by the Hon'ble Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th her husband Shri Keshav Kumar Nachani; that thereafter they both entered into a development agreement with M/s.Chugh Housing & Developers for development of commercial complex in the name of "Orbit Mall"; that all three of them received their respective share in the form of shops/offices which their respective personal capacity sold and profit earned from sale was offered for taxation. On verification, the AO noticed substantial difference in the total sale of assets; that in the books of Kunal Enterprises, an amount of Rs.40,67,500/- showed as sale proceeds, while in the books of M/s.Chugh Housing & Developers sales reflected at Rs.2,38,16,000/-. He further noticed that names of purchasers also differed in the accounts of both Kunal Enterprises and M/s.Chugh Housing & Developers. Therefore, the AO doubted sales proceeded showed by the assessee. The explanation and details submitted by the assessee were not satisfied the AO, and he accordingly, made an addition of Rs.1,71,02,449/- being the differential amount of sale proceeds and treated the same as undisclosed income. 11. Against this action of the AO, the assessee went in appeal before ld.CIT(A), who after considering the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to M/s.Chugh Housing & Developers which sold property to one Omprakash Khatri with consent of Shri Keshav Nachani and Smt.Renu devi Nachani, in the absence of books of accounts of audited final accounts, the genuineness of the transaction was not verifiable. The assessee did not produce the books of accounts, audited balance sheets and copy of the bank account of M/s.Chugh Housing & Developers; that whatever bank statement furnished did not reveal the real sale consideration of the unit was Rs.1,07,00,000/-; that therefore the AIR information could not be verified, it could not be doubted that the assessee had sold the unit no.501 but the entire sale proceeds were not offered for taxation. Accordingly, the AO repeated the addition of Rs.1,71,02,449/-. This action was again challenged before the ld.CIT(A). 13. Before the ld.CIT(A) has submitted that the ld.CIT(A) in the first appellate order had categorically stated that details of M/s.Chugh Housing & Developers were furnished before him and the same were forwarded to the AO for his comments, no response was received. Considering the facts, the then ld.CIT(A) found the impugned addition to be unwarranted and accordingly directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were not offered for taxation. He therefore repeated the addition of Rs.1,71,02,449/-. The Ld. CIT(A) has maintained the addition with the same observation as that of the Ld. AO and further observed that the appellant failed to prove that unit no. 501 is pertaining to M/s Chugh Housing & Development. Submission filed by the appellant: It is humbly submitted that the particular property was in the share of M/s Chugh Housing & Development. The sale deed of the property which is placed at page of the PB. The sale deed was effected at Rs. 1,07,00,000/- . In clause 3 and clause no. 5 it was mentioned that the full sale consideration has been received by the second party which is M/s Chugh Housing & Development with the consent of Keshav Nachani and Renudevi Nachani. The said sale has been credited in the P&L account of M/s Chugh Housing & Development (page 48, 49 & 50 of PB). They have offered this as income and paid tax. The bank statement of both the parties, the purchaser and M/s Chugh Housing & Development clearly show that the transaction is between them. The Ld. AO has made contradictory statement about filing of bank account. At one stage he observes that no bank state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O without any justifiable reasons. Though the ld.CIT(A) in the impugned order has recorded the submissions of the assessee supported with the documentary evidences, like, copy of the ledger books purchasers, bank statements, ITR and audited accounts of M/s.Chugh Housing & Developers, but he has not discussed any of them in the impugned order, rather simply confirmed ultimate finding of the AO. We find that all the documents furnished by the assessee during the assessment as well as appellate proceedings were sufficient to justify claim of the assessee. On the contrary, the findings of the lower authorities were not based any documentary evidences, but based on some presumption that the assessee has concealed sale of plot, and thereby earned undisclosed income which action of the AO was not justified by any documentary evidence and therefore not in accordance with law. On such presumption, burden to establish concealment of income indeed was with the AO with some incriminating material. In the absence of the same, we are unable to find any merit in the impugned order of the ld.CIT(A), which we set aside, and allow the grounds of appeal of the assessee. 17. In the result, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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