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TMI Blog2024 (5) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, the capital asset has been defined in section 2(14) of the Act which provides that an asset which is held by the assessee and not connected with the business or profession of the assessee is required to be treated as capital asset. Admittedly, the land admeasuring Ac. 10-00 is owned and registered in the name of A. Vindhyavali and not in the name of the assessee. The registered document clearly shows that the property was owned, registered and held by Smt. A. Vindhyavali who is not connected with the assessee in any manner. Thus, it is clear that the land owned by Smt. A. Vindhyavali was not a capital asset in the hands of the assessee and therefore, no addition can be made in respect of such land for capital gains arising out of the sale of the capital asset. Admittedly, the assessee was only the owner of Ac. 22-27 gts, and assessee has offered the STCG in the FY 2019-20 relevant to the AY 2020-21. This has been recorded by the AO in the order itself. With respect to the objection of the Revenue that no opportunity of hearing was given to the AO before relying upon the sale deeds. It will be sufficient to mention here that the AO mentioned about the sale deeds with respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into a sale-cum-GPA for purchase of Ac 32.27 gts with M/s. Deccan Townships Pvt Ltd for total purchase consideration of Rs. 4.92 Crs and immediately sold the said land to 04 different parties for a total sale consideration of Rs. 14.70 Crs. With regard to the said transaction, the assessee had admitted and offered short term capital gains of Rs. 9,68,00,000/- to tax in his hands for the AY 2020-21. Subsequently, the assessee has filed an affidavit retracting the declaration made during the course of search proceedings. It was the contention of the assessee before the Ld. AO that during the course of search, under the stress and panic, the assessee has inadvertently stated that the extent of land was Ac 32.27 gts against the original land sold admeasuring Ac 22-27 gts. The assessee also explained in his retracted affidavit that the land owners M/s. Deccan Townships Pvt Ltd sold the land to Sri Adala Prabhakar Reddy / Vindhyavali, a third party who is not at all related to the assessee. However, the Ld. AO did not consider the retraction affidavit filed by the assessee and also not considered the submissions made in this regard during the assessment proceedings. Accordingly, the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property of any kind held by an assessee, whether or not connected with his business or profession; In the instant case, it is clear that the land admeasuring Ac 10-00 gts was not held by the appellant and further the AO has not brought anything on record indicating otherwise, except for merely relying on the statement of the appellant given during the course of search and at the same time ignoring the affidavit given by the appellant subsequent to the search. In view of the above discussion and facts on record, it is clear that the land admeasuring Ac 10-00 gts does not belong to the appellant and the appellant is not party to the sale of land and therefore charging of capital gains on sale of land cannot be done in the hands of the appellant when he is not the owner of the said land or the same is not held by him, when it is proved beyond doubt that the said land was sold to somebody else directly by the said owner M/s. Deccan Townships Pvt ltd and therefore the addition of Rs. 3,04,77,880/- is hereby deleted. In view of the same, the ground No.3 and 4 are allowed. The Ground No.2 and 5 need no separate adjudication in view of the adjudication above. The ground No.1 and 6 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing this affidavit to correct my sources of head of income and to clarify that the income is regular income and no part of it represents undisclosed / concealed income." 4.2. But the issue in question is neither related to any estimate nor have any relation to the financial year. And the CIT(A) without following the due process of law, accepted this additional evidence without complete pages of documentary proof [which was never provided to the AO and the same is duly mentioned in the assessment order already available before the Ld. CIT(A) and thereafter without seeking any remand report from the AO on the issue which was being raised by the AO through various notices, decided the matter unilaterally against the revenue. 4.3. The order of the CIT(A) is therefore not acceptable. The Ld. CIT(A) erred both in law and on facts of the case in granting relief to the assessee. The Ld. CIT(A) erred in granting relief to the assessee on the basis of additional evidence produced during the appellate proceedings without calling for a remand report from the AO has required under the rule 46A(3) of the Income Tax Rule. The Ld. CIT(A) has placed only first and second page in which no paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is not the owner of the capital asset. This fact has been clearly brought out from the sale deed enclosed as part of the paper book submitted. • Further, the Department has raised a ground on not obtaining a remand report from the Ld. AO by the Ld. CIT(A) while disposing of the appeal in favour of the assessee; • In this regard we would like to bring to you kind notice that the assessee has categorically stated in the affidavit filed and also in the submissions made during the course of assessment proceedings that the assessee has no role in the land transaction of Ac. 10-00 gts. The Ld. AO completely disregarded the same and made addition. • It is pertinent to note that there was no incriminating material based on which the addition was made by the Ld. AO. In this regard, we would also like to rely upon the ruling by the Hon'ble Supreme Court in the case of Principal Commissioner of Income Tax, Central-3, vs. Abhisar Buildwell P. Ltd held as follows: • "………………….. 14. in view of the above and for the reasons stated above, it is concluded as under: (i) that in the case of search u/s. 132 or requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings was the statement recorded by the Investigation Wing u/s. 132(4) of the Act. As the Ld. Assessing Officer has made the addition in the hands of the assessee for the entire land, the assessee preferred the appeal before the Ld. CIT(A). The ld.CIT(A) has granted relief to the assessee after relying upon the registered document dated 19/8/2019 in respect to agricultural land admeasuring Acs. 22.27 gts and another registered document dated 19/8/2019 with respect to land admeasuring Ac. 10- 00 gts which was transferred by M/s. Deccan Townships Pvt Ltd in favour of Smt. A. Vidhyavali. If we look into the Q.No. 34, 35 and 36 of the sworn statement recorded on 23/11/2019, which are to the following effect: Q. 34. During the course of search operation conducted in the office premises on 20/11/2019, certain loose sheets numbered 47 to 81 were found and seized as Annexure A/VPDPL/OFF/11. I am showing you page numbers 47 to 81 containing the copy of agreement of sale cum General Power of Attorney made and executed on 19/08/2019 vide document No. 42367/2019 by M/s. Deccan Townships Pvt ltd (PAN: AABCD5806F) and Sri Kamaraju Narendra Kumar for a consideration of Rs. 3,40,12,500/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Undoubtedly, the capital asset has been defined in section 2(14) of the Act which provides that "an asset which is held by the assessee and not connected with the business or profession of the assessee is required to be treated as capital asset." Admittedly, the land admeasuring Ac. 10-00 is owned and registered in the name of A. Vindhyavali and not in the name of the assessee. The registered document clearly shows that the property was owned, registered and held by Smt. A. Vindhyavali who is not connected with the assessee in any manner. Thus, it is clear that the land owned by Smt. A. Vindhyavali was not a capital asset in the hands of the assessee and therefore, no addition can be made in respect of such land for capital gains arising out of the sale of the capital asset. 7.4. Admittedly, the assessee was only the owner of Ac. 22-27 gts, and assessee has offered the STCG in the FY 2019-20 relevant to the AY 2020-21. This has been recorded by the Ld. Assessing Officer in the order itself. 7.5. With respect to the objection of the Revenue that no opportunity of hearing was given to the Ld. Assessing Officer before relying upon the sale deeds. It will be sufficient to mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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