SMT. SHASHI SACHDEVA,NEW DELHI vs. DCIT, NEW DELHI
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Income Tax Appellate Tribunal, DELHI BENCH ‘G’ : NEW DELHI
Before: SHRI ANIL CHATURVEDI & SHRI AMIT SHUKLA
PER AMIT SHUKLA, JM
The aforesaid appeal has been filed by the assessee against the
impugned order passed by the ld. CIT (Appeals)-XXXI, New Delhi for
the quantum of assessment passed under section 153C of the Income-
tax Act, 1961 (for short ‘the Act’) for the Assessment Year 2008-09.
In the grounds of appeal, the assessee has taken the following
grounds:-
2 ITA No.49/Del./2015 “1. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in framing the impugned assessment order u/s 153C without assuming jurisdiction as per law and without recording requisite satisfaction as per law and without obtaining requisite approval as per law and without complying with the other mandatory condition as envisaged under the Act.
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming action of Ld. AO in making addition of Rs.71,00,000/- on account of undisclosed long term capital gain and has further erred in enhancing the assessed income by Rs.2,73,00,000/- alleged to be unaccounted sales consideration of property at sainik farms and that too without bringing cogent adverse material on record and without appreciating the submissions of the assessee.
That in any case and in any view of the matter, action of Ld. CIT (A) in confirming the action of Ld. AO in making addition of Rs.71,00,000/- on account of long term capital gain and enhancing the assessed income by Rs.2.73 crores as unaccounted sales consideration and upholding the impugned assessment order is illegal, void ab initio, contrary to law and facts, beyond jurisdiction and deserves to be quashed.
That having regards to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in not reversing the action of Ld. AO in charging the interest u/s 234A and 234B of the Income Tax Act, 1961.”
3 ITA No.49/Del./2015 3. Facts, in brief, qua the issue raised on merits in grounds no.2 &
3 are that, a search and seizure operation u/s 132 of the Act was
conducted at the business premises of M/s. Shiv Vani Group of cases
and other business premises of the group company as well as at the
residential premises of Directors on 06.01.2011. During the course of
search, certain documents marked as Annexure A-1, party B-14 was
found and page 77 of the said annexure reflected that M/s. Condor
Technic Sales Private Ltd. had purchased one property at Sainik
Farms for a sum of Rs.5,45,00,000/- from the seller, Smt. Shashi
Sachdeva, (the assessee) and Mrs. Priya Suri. As per the sale deed
dated 05.04.2007 executed in respect of this property, total sale
consideration was shown at Rs.2,01,00,000/-. However, from the
seized document Annexure A-1 (P-77) which was found and seized
from the office of M/s. Shiv Vani, the amount was mentioned as
Rs.2,72,00,000/-. Before the AO, it is brought on record that the
assessee was the owner of 1385 sq.yds. only and another same
measurement of land of 1385 sq.yds did not belong to the assessee but
to her sister, Mrs. Priya Suri. It was explained that assessee had
initially entered into an agreement to sell of this property at
Rs.2,42,50,000/- but ultimately this land was sold for
Rs.2,01,00,000/- only. The reason for lowering the sale price was
4 ITA No.49/Del./2015 explained in detail before the AO and ld. CIT (A), which in sum and
substance due to unfortunate death of a child in this area of land.
However, the AO on the basis of Annexure A-1 (P-77) assumed the sale
of this property at Rs.2,72,00,000/- on the ground that this much
amount is mentioned in this document and based on this document
alone, he held that property must have been sold at Rs.2,72,00,000/-
and not Rs.2,01,00,000/-. Accordingly, he added the difference
amount of Rs.71,00,000/- as unexplained capital gain on the sale of
the property.
Ld. CIT (A) not only confirmed the action of the AO but also went
further and assumed that this property has been sold by the assessee
at Rs.5,45,00,000/- based on some rough notings at pages 132 & 133
of Annexure A-3. In fact, he has taken two Khasras which belonged to
another owner Mrs. Priya Suri, who is sister of the assessee. Thus, he
has presumed entire sale consideration in the hands of the assessee
which has led to enhancement of Rs.2,73,00,000/-. His reasoning has
been given from paras 4.3.17 to 4.3.25. Relevant observation of the ld.
CIT (A) in this regard from paras 4.3.23 to 4.3.25 are reproduced as
under :-
“4.3.23 It is also seen that as noted by me in the letter dated 30.09.2014, the sale price of Rs.5.45 crores has been clearly mentioned against 1385 Sq. Yards of area falling in Khasra No.282 and.297.
5 ITA No.49/Del./2015 Further, the “50%” mentioned before the names Om Metal and Winsom are also very relevant. In addition the noting "50% - Winsom = Rs.2,72,50,000/- do indicate that the property sold by the assessee was for Rs.5.45 crores. The noting (on page 77) of Mr. Brij Mohan Goel clearly supports this. It has been mentioned very clearly that the noting belongs to the property purchased from Smt, Shashi Sachdeva (on the left hand side, bottom of the Page-77). Not only that the 50% mentioned against Winsom has been stated at Rs. 2,72,50,000/-. Further Winsom had also paid Rs.12,50,000/- in cash & another Rs.12.5 lakh in cheque. There is no mention of this cash in the final sale deed though the same cheque issued by Winsorn has been mentioned in the final deed which ultimately has been purchased in the name of a group concern of Shiv Vani. The cheque amount and cheque details mentioned in the said note very much tally with the figures mentioned not only in the final agreement but also in the first agreement dated 08.01.2006. 4.3.24 Mr. Brij Mohan Goel, the author of the note, is none other than the person who has signatory on behalf of Condor Technic Sales Pvt. Ltd. and his name also appears in the agreement dated 08.01.2006 which has been signed by the assessee also. The assessee had made available copy of seized documents in the paper book which did not contain all the portion of the seized document. 4.3.25 It is also noted here that it has been admitted that all the figures mentioned at left hand side of seized page no. 133 of Annexure A-1, correlate with the figures mentioned in the final agreement. The amounts written on the right hand side add up to Rs.5.45 crores. The name Mr. Brij Mohan Goel appearing on the said page also tallies with the name of the authorized signatory of Condor Technic Sales Pvt. Ltd. as mentioned in agreement dated 08.01.2006. All these factors show that the property in question was sold by the assessee for Rs. 5.45 crores and not for Rs.2.01 crores as claimed. Therefore, the addition
6 ITA No.49/Del./2015 made by the AO is hereby confirmed and the assessed income is enhanced by Rs.2,73,00,000/-.”
Before us, ld. counsel for the assessee, Dr. Rakesh Gupta, after
clarifying the facts which were placed before the AO as well as ld. CIT
(A), pointed out that even though agreement to sell for this property
was entered for Rs.2,42,50,000/- for the portion of the property
wherein the assessee was the owner; and clarified that there were two
properties being Khasra No.282 & 297 both admeasuring 1385
sq.yds., for which the assessee was co-owner along with her sister,
Mrs. Priya Suri. Portion of the assessee was agreed to be sold at
Rs.2,42,50,000/- but ultimately it was sold at Rs.2,01,00,000/-. The
AO has wrongly presumed the sale of this property at
Rs.2,72,00,000/- based on Annexure A-1 (P-77). Insofar as the basis
for addition of Rs.2,72,00,000/-, the same has no consequence
because it was not found from the possession of the assessee nor it
indicates that assessee might have agreed to sale this property for this
amount. The agreement to sell categorically provided that the property
was sold at Rs.2,01,00,000/-.
Another important fact he has submitted that, during the
assessment proceedings, the AO issued notice u/s 133 (6) to M/s.
Condor Technic Sales Pvt. Ltd., the purchaser of the property and the
7 ITA No.49/Del./2015 reply of which has been reproduced in the assessment order in which
the purchaser has also admitted that the property was purchased at
Rs.2,01,00,000/-. Mainly because agreement to sell was on a higher
price that does not mean it was actually sold in same price and it is a
matter of fact that ultimately sale has been made at Rs.2,01,00,000/-
for which detailed reasons have been given to authorities below as to
why the property was sold on lower price, accordingly the addition
made by the AO cannot be sustained.
Insofar as enhancement made by the ld. CIT (A), he submitted
that it is a factual error, because ld. CIT (A) has even taken the half
portion of two khasras which belonged to Mrs. Priya Suri and the
same could not be added in the hands of the assessee.
On the other hand, ld. DR for the Revenue on merits has strongly
relied upon the order of the AO and ld. CIT (A).
We have heard rival submissions and also perused the relevant
findings given in the impugned order as well as the material referred to
before us. The sole reason for addition by the AO was that, according
to the seized document found, the price consideration of sale of
property was mentioned at Rs.2,72,00,000/-, whereas as per the sale
deed the sale price was Rs.2,01,00,000/- therefore, he presumed that
8 ITA No.49/Del./2015 the balance amount of Rs.71,00,000/- is undisclosed capital gain on
the sale of the said property. Whereas the ld. CIT (A) even enhanced
this amount on some wrong presumption by taking the sale
consideration received by another co-owner, Mrs. Priya Suri which is
out-rightly incorrect, because as per records the property was owned
by two sisters and both have received half the share and hence it
cannot be clubbed in hands of assessee. Even this not the case of the
Assessing Officer nor there is anything in record. Therefore, the
enhancement made by the ld. CIT (A) at the threshold is deleted.
Now, coming to the addition made by the AO of Rs.71,00,000/-,
we find that the entire basis of addition is based on the seized paper
(supra) wherein the amount mentioned was Rs.2,72,00,000/- as
against the amount mentioned in the sale deed at Rs.2,01,00,000/-.
Once the assessee had given the reasons as to why the amount
received by the assessee was lower than the agreed sale price and not
only that, when the AO has made his enquiry directly from the
purchaser u/s 133 (6), who has also confirmed that it has purchased
the property at the same price i.e. Rs.2,01,00,00/-, then we do not
find any reason as to why the addition should be made on such seized
document. Apart from that, agreement to sell mentions
Rs.2,42,50,000/- and not Rs.2,72,00,000/-. Now, whether the
9 ITA No.49/Del./2015 property was agreed to be sold at Rs.2,01,00,000/- or
Rs.2,72,00,000/- (as per seized document), but fact of the matter is
that property was actually sold at Rs.2,01,00,000/- which has been
declared by the assessee in the computation of income as long term
capital gain which has also been admitted by the purchaser. Thus,
there cannot be any presumption till any contrary material is found
form the purchaser also that there was payment over and above the
agreed price in the sale deed. Accordingly, on merits, grounds no.2 &
3 are allowed.
Insofar as the legal issue raised by ground no.1, though
exhaustive submissions made by both the parties including the
written submissions, the same are not dealt with as we have already
deleted the addition on merits, the legal ground has been rendered
purely academic and the same is dismissed as infructuous.
Ground No.4 qua levy of interest u/s 234A and 234B of the Act
need no specific finding being consequential in nature.
In the result, the appeal filed by the assessee is partly allowed.
Order was pronounced on this 29th day of April, 2022.
Sd/- sd/- (ANIL CHATURVEDI) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 29.04.2022/TS
10 ITA No.49/Del./2015
