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TMI Blog2024 (5) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-11 and 2013-14. Further, we also direct that the AO shall re-compute the profits, taking into consideration, the complete details, registry regarding sale of plot year wise and accord the benefit of Section 43CA. - DR. B. R. R. KUMAR, ACCOUNTANT MEMBER AND SH. YOGESH KUMAR US, JUDICIAL MEMBER For the Appellant : Sh. Sapan Usrethe, Adv. For the Respondent : Sh. Ravi Mehrotra, JCIT, DR ORDER Per Dr. B. R. R. Kumar, Accountant Member: The present appeals and CO have been filed by assessee and the Revenue against the orders of ld. CIT-1, Jabalpur dated 28.03.2018. 2. In ITA No. 141/JAB/2018, following grounds have been raised by the Revenue: 1. That on the facts and in the circumstances of the case the learned CIT(A) erred- i. in deleting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing additional evidence in violation of Rule 46A of the IT Rules in the form of books of sister concern, Rajul Builders, to support the contention of the assessee that for some of the plot advance received from the customers was accounted for in the books of the said sister concern. 3. In ITA No. 24/JAB/2020, following grounds have been raised by the assessee: 1. The learned Commissioner of Income Tax (Appeal) was not justified in rejecting the rectification application mechanically without application of mind. This resulted in raising the addition of Rs. 57,14,390 in place of entire relief of Rs. 4,91,69,153. 2. The learned Commissioner of Income Tax (Appeal) was not justified in rejecting the rectification application without appreciating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case the Id CIT(A)-1 was justified in holding that the assessee is entitled for benefit of provision of section 43CA(3) in respect of 15 plots booked in financial year 2009-10, 11 plots booked in financial year 2010-11 and 6 plots booked in financial year 2013-14 and accordingly setting aside the addition of Rs. 4,91,69,153/- to the file of ld AO. 4. As is evident from page 22 to 38 of the assessment order dated 29.12.2017, the customer to whom plot was sold during the previous year relevant to assessment year 2015-16, has paid part of the advance to Rajul Builder and this fact has also been verified by the ld AO from books of Rajul Builders during the assessment proceeding hence the ground no 5 of the departments appeal abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared on plain paper instead of stamp paper and on the same date. The agreements were signed by the same persons, Shri R.S. Mishra, Shri Dilip Mishra and Shri Rajendra Tiwari has signed as witnesses inspite of the change of years 2009, 2010 or 2014. These have been prepared just to suit the requirement laid down in the provisions of sub-section (3) of 43CA. The registry has been executed with the purchaser and consentor. However, the agreements of sales were between the assessee firm and the consentor. Since the agreement of sale submitted by the assessee is not registered, the purpose of creating a consentor who holds no title over the said property is an attempt to evade tax. 7. The Assessing Officer scanned the copies of the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the judgment of Hon ble Supreme Court in the case of T.G, Ashok Kumar vs. Govindammal Civil Appeal No. 10325 of 2010 reported in [2010] 14 SCC 370 and Brij Mohan And Ors vs. Smt. Sugra Begum And Ors 1990 SCR (3) 413, 1990 SCC (4) 147 wherein the Hon ble Supreme Court has held that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing even agreement can be oral agreement. With regard to the agreements being signed by a same witness over a period of time, the ld. CIT(A) held that these are the staff of the assessee who are available and hence these persons signed as witnesses. With regard to the change of number of the plot, the ld. CIT(A) held that this is a common busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the details of transfer from Rajul Builder to Rajul Construction . 15. In this background, we have perused the provisions of Section 43CA. The Provisions of Section 43CA reads as under: [Special provision for full value of consideration for transfer of assets other than capital assets in certain cases. 43CA. (1) Where the consideration received or accruing as a result of the transfer by an assessee of an asset (other than a capital asset), being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profits and gains from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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