9911796707
TMI Blog2025 (2) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case in confirming the action of AO in initiating penalty u/s. 271(1)(c) of the Act which is wholly unsustainable in law and on facts of the case." 2.1 The assessee has also raised the following additional ground: "The appellant craves leave to raise this additional ground of appeal before Your Honors. The appellant, through oversite, could not raise in the original appeal memo, the following additional ground of appeal and therefore the appellant now craves leave to raise these additional grounds of appeal before Your Honor. This is a legal ground and therefore as per the decision of Hon'ble Supreme Court in the case of National Thermal Power (229 ITR 383), it can be raised before Your Honor: "1. The CIT(A) has erred in law and on facts of the case in confirming the action of learned AO in making an addition of Rs. 69,49,250/- as income from undisclosed sources." The appellant respectfully requests that this Honorable Tribunal admit these additional grounds of appeal, and in light of the above arguments, set aside the CIT(A)'s decision to reject the books of accounts. The appellant further requests a fair assessment based on the evidence provided without pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has affirmed non-payment. These evidences were produced before the proceedings under Section 143(1) of the Act and, therefore, the said issue is settled at the original assessment itself. The Ld. AR further submitted that as relates to applicability of Section 56(2)(vii) of the Act which has not come into picture in the original assessment as there was no dealing as such of payment related to the said purchase of land. The confirmation clearly set out that the assessee is not in possession with the said land. Thus, the reopening itself is not justifiable and hence the ld. AR prayed that the assessment under Section 143(3) read with Section 147 of the Act is not justifiable. As on merit, the ld. AR submitted that the basis of the addition was diverted/changed from the basic purchase deeds and if there is no adequate consideration of the deed whether it is registered or not does not have any sanctity per se. The Ld. AR relied upon the decision of Hon'ble High Court of Gujarat in the case of CIT vs. Mohmed Juned Dadani, 355 ITR 172. The Ld. AR, on the legal ground, has given the following comments which are as under :- - It is respectfully submitted that the assessment records under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Act, 1872. The appellant thus submits that when the contract itself is not enforceable under the law, there cannot arise any liability of tax pursuant to the said contract. It is further most respectfully submitted that it is a well settled law that there arises no income under the head capital gain on a transaction which never materialised and it is further held by the Courts that at best the said transaction may result into a hypothetical income and as there is no real income involved in such transaction, there arises no income. Reliance for this proposition is placed upon I-Process Services India Pvt. Ltd. vs. DCIT (ITAT- Delhi), placed at page No. 22-24 of the Compilation of judgments. - In this connection, the appellant most respectfully submits that the addition has been made by the learned Assessing officer on the premises that the appellant had purchased an immovable property amounting to Rs. 1,07,72,000/- without consideration along with its co-owner and accordingly the share of the appellant amounting to Rs. 69,49,250/- (50%) was added to the total income of the appellant under section 56(2)(vii)(b)(i) of the Act. - In this connection, the assessee most respectfull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The appellant thus submits that the appellant has not received any immovable property in question and thus the provisions of section 56(2)(vii) are not applicable and thus addition deserves to be deleted. - Alternatively and without prejudice to the above, the appellant has not received the possession of the said property and is not enjoying the fruits of ownership. Please refer additional evidences. The appellant thus most respectfully submits that "actual receipt" of the property is a Preliminary condition in order to invoke the provisions of section 56(2)(vii) of the Act. Reliance for this proposition is placed upon the judgement of Hon'ble Gujarat High Court in the case of PCIT vs Jigar Jaswantlal Shah, 460 ITR 628. In the facts and circumstances of the case is no possession has been transferred by the sellers to the appellant the provisions of Section 56(2)(vii) are not applicable and thus the addition deserves to be deleted. - Alternatively and without prejudice to the above the appellant most respectfully submits that the property in question is an agricultural land situated beyond 8 km from the Bhavnagar district. The appellant most respectfully submits that the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Gujarat High Court's decision in case of Mohmed Juned Dadani (supra) is distinguishable as reopening is done under Section 80HHC of the case and the hence it cannot be placed at the same footing in the present case where the assessee has not cancelled the deed of purchase. On merit, the ld. DR submitted that the plea of the assessee that there was no transaction/payment is not justifiable when the assessee has paid the stamp duty and this requires examination as till date the assessee has not cancelled the deed of purchase. 7. We have heard both the parties and perused all the relevant material available on record. From the perusal of the records, it can clearly be set out that in the original assessment under Section 143(1) of the Act, the issue related to the deed of purchase of land was not looked into as the same is not reported in the assessee's income before the Revenue. Besides that, there is no change of opinion but all the aspects should have been taken into consideration by the Assessing Officer under proceedings related to Section 143(1) of the Act and, therefore, the Department has rightly reopened the assessee's case. The decisions relied by the Ld. AR in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
