JAI GANESH CO-OP. HSG. SOCIETY LTD.,RAIGAD vs. I.T.O. WARD 3,, PANVEL

These Revenue‟s and assessee‟s cross appeal for Assessment Year 2008-09 arise against the CIT(A) -2 Aurangabad‟s order dated 18.01.2016 passed in case No. THN/CIT(A)-2/359/2014-15 involving proceeding u/s 144 r.w.s.147 of the Income Tax Act, 1961 in short the “Act.”

Coming to the Revenue‟s sole substantive grievance regarding fair market value of assessee‟s capital asset as Rs. 5,94,96,000/-, we note with the able assistance coming from the Departmental side that this taxpayer had neither transferred any “land nor a building” as specified u/s.50C(1) of the Act but only its lease hold rights in the „CIDCO‟ area. We thus hold that such a leasehold rights are nowhere covered u/s.50C(1) going by specified categories therein as per stricter interpretation recently reiterated in Commissioner of Customs Vs. Dilip Kumar and Co. (2018) 9 SCC 1(SC) (FB). We accordingly reject the Revenue‟s instant sole substantive grievance as well as the main appeal ITA No. 542/PUN/2016.

Next comes the assessee‟s cross appeals challenging correctness of both the lower authorities action adding the alleged unaccounted cash component of Rs.5,94,96,000/- in issue. The Revenue vehemently argued that both the learned authorities have gone by the seized material annexure O-2(extracted in page 12 in assessment order dated 24.03.2014) clearly indicating cash “paid to Jai Ganesh Co-operative … members”. It further invokes the necessary presumption of correctness given to the such seized documents u/s 292C as well.

We find no substance in Revenue‟s forgoing arguments supporting the impugned addition. This is for the precise reason that the alleged seized document itself rebuts the presumption in assessee‟s favour once its members only had received the payment who are separately assessable in their individual capacity(ies). We further make it clear that the learned lower authorities have nowhere quoted any other cogent evidence since they have only gone by above seized document. We accordingly accept the assessee‟s sole substantive grievance as well as its cross appeal in very terms. Ordered accordingly.

This Revenues appeal ITA 542/PUN/2016 is dismissed and assessee‟s cross appeal is allowed in above terms. A copy of this common order be placed in the respective case files.