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11-01-2019, Elegant Infraworld, Section 2(47)(vi), 2(47), Tribunal Delhi

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2 months 5 days ago #8361 by amit
Section - 2(47)(vi), 2(47), 54F, 53A
Order Date - 11-01-2019
Favouring - Assessee
Court - Tribunal Delhi
Appellant - Elegant Infraworld Pvt. Ltd.
Respondent - ITO
Justice - BHAVNESH SAINI, J.M. & O.P. KANT, A.M.
Citation - 119Taxpundit157
Appeal No. - I.T.A.No.4334/Del./2018
Asstt. Year - 2010-2011

Order

PER : BHAVNESH SAINI, J.M.

This appeal by Assessee has been directed against the Order of the Ld. CIT(A), Muzaffarnagar, Dated 30.03.2018, for the A.Y. 2010-2011 on the following grounds :

1. Because the Ld CIT(A) has erred on facts and law in confirming the addition of Rs.2,27,47,792/- as short term capital gain by erroneously holding the Date of Transfer to be 01.06.2009 (A.Y.2010-11) while the Date of Transfer as per law is 30.01.2009 (A.Y.2009-10) on which date i.e. 30.01.2009, the property being agricultural land was not a capital asset u/s 2(14) of the Income Tax Act and thus was out of purview of Sec. 45 of the Income Tax Act.

2. Because the Ld CIT(A) has erred on facts and law in confirming the addition of Rs.2,27,47,792/- as short term capital gain by committing grave error on facts and law in not allowing the sum of Rs.1,50,00 000/- being expenditure incurred wholly and exclusively in connection with the impugned transfer u/s 48 of the Income Tax Act

2. Brief facts of the case are that in this case return was filed on 26.09.2010 claiming loss of Rs.1,79,729/-. The A.O. noticed that assessee has sold agricultural land admeasuring 2.6941 hectare and the profit earned out of the sale proceeds amounting to Rs.77,47,792/- was transferred to reserve and surplus. The assessee furnished copies of purchase deeds and sale deeds of the land and on going through the same, A.O. noticed that the lands in question have already been declared as non-agricultural land on 12.02.2009 and 14.05.2009 respectively. The assessee submitted before the A.O. that the possession of the aforesaid land was duly delivered to M/s Archit Steel (P) Ltd. on 30.01.2009 on payment of Rs 2.75 Crores towards total consideration of Rs.3.72 Crores. Copy of Agreement to Sell and possession letter, executed on 30.01.2009 are filed for consideration.

2.1. The A.O found contradiction in the explanation of assessee. It was noted that balance-sheet filed by the assessee stands in contrast to fresh untenable claim of assessee. The assessee itself has shown the impugned sold land as its asset in the balance-sheet as on 31.03.2009, therefore, how possession could be given to the purchaser on 30.01.2009. It was also noted that the impugned land comprise part of its asset as on 01.04.2009 and it was also forming part of its audited balance-sheet as on 31.03.2009. Besides, the assessee had also shown that agricultural land was sold during the year under consideration and the profit earned out of the sale proceeds amounting to Rs.77,47,792/ was transferred to the reserve and surplus. The A.O. also noted, Director of the assessee company was Smt. Meenu Garg whereas Director of M/s. Archit Steel (P) Ltd., is Shri Pradeep Garg. Smt. Meenu Garg is wife of Shri Pradeep Garg. Therefore, documents could be brought into existence conveniently. The discovery of actual dates of issuance of non-judicial stamp would have unearth the veracity of the claim of assessee. The A O. also noted that in the sale deed it is mentioned that possession is given at the time of sale i.e., on 30.05.2009 The A.O. also noted that unless the instrument is fully stamped, it cannot be taken into evidence and that Agreement to Sell is not a registered document. The assessee also claimed deduction of Rs.1.50 crores out of the sale consideration of Rs.3.72 crores on account of surrender of rights payable to Mr. Ashok Jain. However, the claim of assessee was not accepted and found to be an afterthought, therefore, the amount of Rs.1.50

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