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Before: Shri Amit Shukla & Shri Prashant Maharishi
ORDER Per Amit Shukla, J.M.: The aforesaid appeal has been filed by the assessee against the impugned order dated 28.02.2019, passed by ld. CIT(Appeals)- 2, New Delhi for the quantum of assessment passed u/s. 143(3) of the Income-tax Act for assessment year 2015-16.
2. In the grounds of appeal, the assessee has raised following grounds: “1(i). That on the facts and circumstances of the case, CIT(A) has erred in confirming addition of Rs. 2,39,85,153/- u/s. 68 on the alleged ground of unexplained credit without proper appreciation of facts and evidences placed on record.
(ii) That receipt of Rs. 2,39,85,153/- being credit in the capital account is in respect of profit on sale of industrial land in respect of which the long term capital gain was duly declared and consequential tax liability was also paid in accordance with provisions of sec. 45 of I.T. Act, 1961 and as such there is no case of any unexplained credit.
That AO and CIT(A) have totally ignored the fact that the assessee had legal right in the property after obtaining possession and payment of full consideration and same was subsequently sold to M/s. Pavilion & Interiors India Pvt. Ltd. for a consideration of Rs. 3 crores, but legal documents were executed by Smt. Sadhna Sachdeva being original allottee on behalf of Vinod Ratra and assessee having declared the capital gain in respect of the same in conformity with provisions of sec. 2(47) read with sec. 45, there is no case of alleged unexplained credit and whole basis of addition is illegal, arbitrary and misconceived.
3. That the genuineness of receipt in respect of sale of property to M/s. Pavilion & Interiors India Pvt. Ltd. is not in dispute, there is no case of treating the same as unexplained credit particularly when the assessee has duly declared the capital gain in respect of such sale consideration.
4. That having declared the capital gain and paid corresponding tax liability, the appellant is entitled to credit of TDS in respect of sale consideration of the property being the beneficial owner and on the basis of disclaimer by Smt. Sadhna Sachdeva.
That the Assessing Officer has erred in charging interest u/s 234A, 234B, 234C without application of mind and proper opportunity.
That the orders of the lower authorities are not justified on facts and the same are bad in law”
The facts in brief qua the issue involved are that the assessee is an individual, who has filed his return of income on 30.09.2015 declaring income of Rs.2,66,64,490/-. One of the reasons for selection of the case for limited scrutiny under CASS was “substantial increase in capital during the year”. The Assessing Officer noted that the assessee had added an amount of Rs.2,39,85,153/- to his capital account from the profit on the sale of an industrial shed. In response to show cause notice, it was submitted that an industrial property located at plot No. 3, Surajpur, Gautam Budh Nagar, had been allotted to Smt. Sadhna Sachdeva (assessee’s sister) by UPSIDC in the financial year 2001- 02. The said property was sold by Smt. Sadhna Sachdeva to M/s. Pavilion & Interiors India Pvt. Ltd. in the assessment year 2015-16 for a consideration of Rs.3 crore, on which TDS was deducted and deposited by the buyer. It was further submitted that an ‘agreement of sale’ (ATS) was entered between Smt. Sadhna Sachdeva and the assessee on 28.03.2005 to transfer the said property to the assessee for a consideration of Rs.33,45,000/-. The Assessing Officer observed that, as per Rules laid down by UPSIDC, an industrial plot of land that has been leased out to any entity cannot be directly sold to another entity. It can be transferred only by fresh allotment from UPSIDC that changes the title of the property. According to the Assessing Officer, there was no document to show that mutation of the title was in the name of the assessee and even the TDS has been deducted in the name of Smt. Sadhna Sachdeva.
The Assessing Officer had also issued notices u/s. 133(6) to Smt. Sadhna Sachdeva and M/s. Pavilion & Interiors India Pvt. Ltd., from where he gathered following information: • The sale deed submitted by the assessee was to transfer only the building constructed on the land for a consideration of Rs.39,85,000/-. • The land had been transferred from Smt. Sadhna Sachdeva to M/s. Pavilion & Interiors India Pvt. Ltd. for a consideration of Rs.2.6 crore. • All final transfer documents have recorded the transfer to have taken place between Smt. Sadhna Sachdeva and M/s. Pavilion & Interiors India Pvt. Ltd. • TDS had been deducted and deposited in the name of Smt. Sadhna Sachdeva and showed in her Form 26AS. • The amount had been received in the bank account jointly held by Smt. Sadhna Sachdeva and the assessee.
Thus, the Assessing Officer concluded that the property was bought, held and sold in the name of Smt. Sadhna Sachdeva and there is no documentary proof of the mutation of title in the name of assessee at any time. Therefore, the assessee has failed to establish that the said property belonged to him. Thus, the source of capital as credited in the books of account of Rs.2,39,85,153/- remained unverified and thus, he added the said amount u/s. 68 of the Act.
5. Before the ld. CIT (A), the assessee filed agreement to sale entered between him and Mrs. Sadhna Sachdeva and also an affidavit dated 05.02.2019 from the later, in which she has stated on oath that she had sold the land to the assessee vide ATS entered on 28.03.2005 and then sold it to M/s. Pavilion & Interiors India Pvt. Ltd. on 28.04.2014. The affidavit also stated that a request was made to M/s. Pavilion & Interiors India Pvt. Ltd. to deduct TDS in the name of assessee but the same was deducted in her name. Apart from that, copy of correspondence between Smt. Sadhna Sachdeva and UPSIDC was also filed. The ld. CIT (A) after analyzing the entire facts had reached to the following conclusions: o No payment receipt has been filed by appellant to show that the agreement to sell was actually executed and he had purchased the lease rights on property. Except an unregistered ATS and affidavit, there is no documentary evidence. o The appellant has also not disputed the claim of his title in any court of law. o No transfer of right has happened between appellant and M/s Pavilion and Interiors (I)(P) Ltd. The appellant has not filed any document to show he had ever sold any property to any party. o The letter of UPSIDC dt. 28.03.2014 to Sadhna Sachdeva says that she has to clear the dues of Rs. 17,25,645/- and then transfer levy will be paid by the transferee. UPSIDC in its letter says- ‘Thereafter, new lease deed will be executed in the favour of transferee ’. o Copy of the letter is marked to transferee i.e. M/s Pavilion and Interiors. There is no mention of the appellant in any correspondence of UPSIDC.
o Mrs. Sadhna Sachdeva, vide reply dt. 05.04.2014 has already paid the dues of Rs. 17,25,645/- and enclosed a copy of demand draft to UPSIDC. After clearing her dues, the lessee Sadhna Sachdeva has transferred her property on 28.04.2014 to M/s Pavilion and Interiors (I)(P) Ltd. o All documents from UPSIDC, Demand drafts of actual lessee Mrs. Sadhna Sachdeva, payment receipts from M/s Pavilion & Interior cheques are with reference to Sadhna Sachdeva. The appellant is not in the picture. o The investigation made by the AO u/s 133(6) shows that ail transfers have happened between her and M/s Pavilion and Interiors (I)(P) Ltd. The name of the appellant does not. appear in any document as a seller.
6.7 All the findings above show that the appellant did not establish the right on the land at any point of time. He has also not produced any evidence to show that he sold any property to any party. On the other hand, it is clear that Sadhna Sachdeva has properly transferred her property, to M/s Pavilion and Interiors (I)(P) Ltd. on 28.04.2014 after clearing her dues to UPSIDC and getting the lease rights transferred to the party. The purchaser has made payments evidenced by payment receipts. Therefore, agitating the issue of title in assessment is not relevant. For the claim of exemption of long term capital gains, clear title and ownership is required which is conspicuous by its absence in the instant case. The claim of capital gain by the appellant is not supported by any evidence. 6.8 The appellant has claimed that entire sale consideration was received by him as he was the beneficial owner and, therefore, he wanted to claim the capital gain. The appellant has never been able to prove his legal title on the property and admittedly he is not the registered owner. Even TDS has been deducted and deposited in the name of Mrs. Sadhna Sachdeva. For claim of capital gain in the Income Tax Act, the title has to be legal or de jure and not de facto. Addition made by AO is well-founded after proper study of documents and is confirmed. The grounds are ruled against the appellant.”
6. Before us, the ld. counsel for the assessee, Mr. R.S. Singhvi submitted that the assessee had acquired the right in the aforementioned plot by way of agreement to sale, copy of which has been placed in the paper book from pages 5 to 7. Thereafter, possession letter was given by the seller to the assessee on 30.03.2005. He also pointed out that certain outstanding dues in respect of the same plot were also paid by the assessee to UPSIDC which has been reflected/shown in the balance sheet of the assessee as on 31.03.2012, copy of which has been placed in the paper book at pages 17 & 18; and same continued to be reflected in the balance sheet as on 31.03.2013 and 31.03.2014. The plot was sold for Rs. 3 crores to M/s Pavilion and Interiors (I) (P) Ltd. and there was surplus of 2.39 crores. The assessee on such sale has shown long-term capital gain of Rs.1,91,92,908/- in the return of income for the assessment year 2015-16 and also paid taxes on it. This is evident from the copy of computation filed in the paper book page 2. Here in this case, the Assessing Officer has proceeded to compute the assess income from the return of income which included the capital gain of Rs.1,91,92,908/- and thereafter, he has made further addition of Rs.2,39,85,153/- as a surplus on capital account. This amounts to double addition. He also pointed out that the sale proceeds was credited to the bank account of the assessee which is evident from the copy of bank statement appearing from pages 24 to 27 of the paper book and also drew our attention to the relevant entries given at page 25 to 27. In the affidavit filed by Smt. Sadhna Sachdeva, she had categorically stated on oath that she had sold the industrial plot to the assessee vide agreement dated 28.03.2005 and the said plot was sold on 28.04.2014 to M/s. Pavilion & Interiors India Pvt. Ltd. who had deducted TDS in her name despite her letter requesting to deduct TDS in the name of the assessee. She has further claimed that neither she has taken any credit of the TDS nor has claimed refund of Rs.3 lacs deducted by M/s. Pavilion & Interiors India Pvt. Ltd. in her ITR for A.Yrs. 2014- 15 and 2015-16 and also gave her Income-tax particulars and PAN details. Apart from that, he submitted that the assessee throughout has shown this industrial plot in the balance sheet as an owner and therefore, once the Assessing Officer has accepted the long-term capital gain from the sale of the said property, then the amount credited in the capital account from such sale cannot be added u/s. 68.
On the other hand, the ld. DR submitted that explanation of the assessee has not been found to be satisfactory and reiterated the finding of fact, as arrived by the Assessing Officer and the CIT (A) as reproduced above.
We have heard the rival submissions and have also perused the relevant finding given in the impugned order. As discussed above, an industrial plot located in Gautam Budh Nagar (U.P.) was allotted by UPSIDC to Smt. Sadhna Sachdeva in F.Y. 2001-02 which was transferred to the assessee vide agreement to sale dated 28.03.2005. As per the sale agreement, the assessee had paid consideration of Rs.33,45,000/- and in pursuance to such payment, possession of the property was delivered to the assessee. Said property was duly disclosed in the books of assessee as an asset, which was reflected in the books of account, balance sheet in all the years. During the relevant financial year, the said plot was sold to M/s. Pavilion & Interiors India Pvt. Ltd. But before sale permission for transfer of plot was also sought vide application dated 01.08.2013 whereby the UPSIDC had asked for clearing the dues and the levy. The assessee had paid these dues through cheque and also had shown such amount in his balance sheet. From the perusal of the balance sheet and the payment made by the assessee right from the year 2004 to the year 2015, it is seen that the assessee had paid total aggregate amount of Rs. 60,14,847/- which included payment made to Smt. Sadhna Sachdeva and payment made to UPSIDC for the dues. The assessee has offered long-term capital gains of Rs.1,91,92,908/- after deducting the cost of acquisition of Rs.42,40,302/-. The said long- term capital gain has been accepted by the Assessing Officer, in the sense that he has proceeded to make assessment on the basis of return of income and thereafter, has made further addition of Rs.2,39,85,153/-. If on sale of a capital asset, long-term capital gain has been declared which has been accepted by the Assessing Officer, then capital gain from sale of such an asset cannot be added as unexplained credit under deeming provision of section 68. It has also been brought on record that, even though TDS was deducted in the name of Smt. Sadhna Sachdeva, however, she has not taken credit of such TDS and has duly written to the buyer that TDS should be deducted in the name of assessee. This factor alone may not the deciding factor, but when one looks the conduct of the assessee right from the purchasing the property through ATS and duly declared as asset in the balance sheet through all the years and the sale proceeds has been credited to the bank account of the assessee, then it goes to prove that assessee was the owner of the asset under the Income Tax Act. Moreover, once a right in the plot has been transferred to the assessee on a consideration by way of contract to sale, then it amounts to transfer of an asset in the name of assessee and accordingly, the long-term capital gain shown by the assessee is accepted and the addition made u/s. 68 on the sale of same capital asset cannot be added u/s. 68. Accordingly, the appeal of the assessee is allowed.
In the result, the appeal is allowed.
Order pronounced in the open court on 18/10/2019.