9911796707
TMI Blog2024 (12) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession of such property was given to the assessee, was never brought to the notice of the assessing officer/Ld. CIT(A) for their consideration. Assessee, in our view has not given this important document which establishes that he was in possession of such possession rights in respect of the above property since 2004. Though assessee has made reference to extracts of the assessment/appellate orders of the co-owners of such property to establish that he was having right to possession over such property, but that in our view, would not qualify as substantive evidence to prove that the assessee was having possession rights over such property. This is especially in the light of the fact that the possession agreement dated 2004 was not brought to the notice of the assessing officer/Ld. CIT(A) for their consideration. Computing the cost of acquisition of such possession rights in the return of income filed by the assessee in response to notice issued by AO u/s.148 of the Act, the assessee has taken cost of acquisition of such right of possession by taking the value of land as per value computed by registered Valuer Report as on 01.04.1981. It is not clear that why the assessee has take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised the following Grounds of Appeal: 1. The Leamed CIT (A) has erred in upholding the addition u/s 69A that of Rs. 53,00,000 as unexplained money though it is received against the possession of the property. 2. The Learned CIT (A) has erred in not appreciating the facts that the alleged amount received against the handed over the possession of the land for relinquishment of the right as per Kabja Karar in F.Y. 2012-13. 3. The Learned CIT (A) has erred in not appreciating the facts and law that for relinquishment of right there is no need of any ownership of the land but possession is required which is holding by the appellant, which is handed over by him to land owner. 4. The Learned CIT (A) has not appreciated the facts that the land owners (Payer) allowed deduction against the capital gain by them as expenses for the taking the possession. The aforesaid grounds are without prejudice to each other and the appellant craves leave to add/delete/alter and/or amend any of grounds as aforesaid as and when necessary. 3. The brief facts of the case are that the assessee filed return of income on 31.03.2018 declaring total income of Rs. 2,24,860/- for assessment year 2014-15. Subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 54F of the Act and also the cost of indexation worked out by the assessee amounting to Rs. 43,73,026/-, while finalizing the assessment. 4. In appeal, the Ld. CIT(A) upheld the appeal of the assessee with the following observations: 5.3.1 The appellant had filed his return of income on 31.3.2015 declaring total income of Rs. 2,24,860/-. The appellant had not disclosed/declared any income on account of said transaction. As per the information available with this office the appellant had received Rs. 53.00.000/- out of Rs. 80,00,000/- during the year under consideration. Appellant has not denied that he had received the amount of Rs 53,00,000/-and there is no dispute that the appellant had received the amount on relinquishment of his right over the land. 5.3.2 In order to tax the said amount under the head 'capital gains the appellant need to establish the ownership of the property i.e. 2 bigha land. However, neither during assessment proceedings nor present proceedings the appellant has failed to prove the ownership on the land on the date of kabja karar. The assessee has also failed to furnish the copy of the sale deed after the kabja karar. Therefore, the receipt of Rs. 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count we find that the assessee has deposited cash in the bank account. The cash deposited has been transferred it to various accounts in the same branch. The assessee has not explained source of cash deposited The assessee has not withdrawn cash from the bank on the bake of which it could be argued that the same cash was deposited in The bank account and therefrom peak credit of deposits in the bank account should have been worked out. Therefore the contention of the assessee that the Assessing Officer should have determined the peak credit is not supported by any evidence However, we also find that on February 10, 2008 an amount of Rs 1,75,000 has been transferred by cheque No. 868596 and another amount of Rs 1,750 vide cheque No 263278 We also find that on 29th March 2006 amount of Rs 18,00,000/- has been transferred from account No. C-738. The Assessing Officer had also noted that an amount of Rs. 1,00,000 was also withdrawn from cash The source of the balance amount has not been explained. Therefore the addition made by the Assessing Officer except the above amount of Rs 18,76,750 (Rs 1,75,000 plus Rs. 1,750 plus Rs. 18,00,000) has to be upheld. Accordingly, we do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty by the said co-owner of the property. Accordingly, the Counsel for the assessee submitted that possession rights in the said piece of land were clearly with the assessee which constituted a capital asset and transfer of such right of possession constituted transfer of capital asset and such gain was liable to be taxed as capital gains tax. Secondly, the Counsel for the assessee drew our attention to page 75 of the Paper Book i.e. order of Ld. CIT(A) in the case of Shri Mahendrabhai K Patel in which the said Shri Mahendrabhai K. Patel had given an Affidavit that the assessee was having possession rights over the said land and the same was used for tilling purposes till the time of entering of the possession agreement in favour of Shri Mahendrabhai K Patel. Accordingly, the counsel for the assessee submitted that the assessee was having possession rights over such piece of land which constituted a capital asset and the transfer of such capital asset was liable to be taxed as capital gains. Further, the counsel for the assessee submitted that the assessee had entered into an agreement in the year 2014, vide a family arrangement by way of which the assessee along with other four per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mportant document which establishes that he was in possession of such possession rights in respect of the above property since 2004. Though assessee has made reference to extracts of the assessment/appellate orders of the co-owners of such property to establish that he was having right to possession over such property, but that in our view, would not qualify as substantive evidence to prove that the assessee was having possession rights over such property. This is especially in the light of the fact that the possession agreement dated 2004 was not brought to the notice of the assessing officer/Ld. CIT(A) for their consideration. 9. Further, while computing the cost of acquisition of such possession rights in the return of income filed by the assessee in response to notice issued by Ld. A.O. u/s. 148 of the Act, the assessee has taken cost of acquisition of such right of possession by taking the value of land as per value computed by registered Valuer Report as on 01.04.1981 of Rs. 43,73,026/-. However, it is not clear that why the assessee has taken the cost of acquisition of right of possession on the basis of registered value of such land/property as per report of registered valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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