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TMI Blog2023 (12) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... on 15.02.2020. Therefore, hereby direct the AO to delete the impugned addition. The AO would be at liberty for taxing the capital gain arising out of sale of capital asset in the relevant year in accordance with law, Grounds of appeal are allowed. - Shri Kul Bharat, Judicial Member For the Appellant : Sh. Vineet Gupta, CA And Sh. Apurv Sharma, CA For the Respondent : Shri Om Parkash, Sr. DR ORDER PER KUL BHARAT, JM: This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 30.05.2023, pertaining to the assessment year 2014-15. The concise ground of appeal raised by the assessee is as under: The Ld. A.O. erred in treating partial advance received against agreement to sell of an ancestral joint agricultural land as sale consideration without transfer of possession of land in the year under consideration. 2. Facts, in brief, are that case was reopened for assessment on the basis that the assessee had deposited cash amounting to Rs. 37,70,000/- in his bank account maintained with Syndicate Bank during F.Y. 2013-14 relevant to A.Y. 2014- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins that the subject transaction was merely a transaction of advance and not a transaction of sale/transfer of immovable property, in his order and thus misdirected himself in confirming the addition made and is therefore is inconsistent to the legal position, provisions and without the authority of the law. It is not the ipse dixit of the Ld. Assessing Office to compute the income by changing the definitions as provided in the law nor the computation and determination of income can be at the whims and fancies of the Ld. Assessing Office or the Id. The Commissioner of Income Tax (Appeals) as held by Hon'ble Income Tax Appellate Tribunal Delhi 'F' Bench in Assistant CIT Circle, Bulandshahr V/s. M/s Rama Dairy Products Ltd. (ITA No.5185/Del/2010) Neither Ld. Assessing Office nor Ld. The Commissioner of Income Tax (Appeals) brought on records that the land was transferred to said prospective buyer in the year under consideration. Neither Ld. Assessing Office nor Ld. The Commissioner of Income Tax (Appeals) brought on records that the how Agreement to Sell converted to Contract of Sale in the year under consideration or how partial advance received can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd took place in Financial Year 2013-2014 when the Ld. Assessing Office considered the Advance as Sale Consideration for the Financial Year 2013-2014 and made additions to the income of the Appellant. As also held in CIT Vs Sethia Plastic Industries [2006] 206 CTR DEL 484. the AO, even while making a best judgment assessment is obliged to take into account all the relevant material as are brought before him and he has gathered, and are not in dispute. Whereas, in the present case, Ld. Assessing Office proceeded to make additions without gathering any adverse material on records. That the Ld. Assessing Officer simply on the basis of suspicions, surmises and conjectures can not change the nature of transactions to suit the Income Tax Department to unnecessarily create demand of tax and is against the spirit of the law as also held in Madnani Construction.. Vs. CIT [2008] 296 ITR 45 Guwahati. Mere suspicion or thought of the Ld. Assessing Officer cannot be given more credence than the documentary evidence filed by the assessee considering the provision of section 91 of the Evidence Act. As also held by ITAT Mumbai in Shri Rajeev G. Kalathil Vs. DCIT (ITAT Mumbai), ITA No.672 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882); or (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immovable property. 6.2 The contention of the assessee is that amount in question was received as advance in respect of sale of agricultural land. The Assessing Officer did not accept the contention and made addition by observing as under:- 5. On perusal of the bank account statements furnished by the assessee, it is found that the assessee has deposited cash of Rs. 20 Lakh in his bank account on 01.03.2013 and as the assessee has claimed that Rs. 1.00 Crore was received by the all co-owners as advance on 27.02.2013. Hence it appears that the assessee has deposited his 1/5 share of Rs. 20 Lakh i.e 1/5 of 1.00 crore in his bank account on 01.03.2013. Since this transaction falls in the financial year 2012-13, it is being considered separately. 6. Since, no cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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