Co (1973) 87 ITR 407(SC), K.P. Varghese v. ITO(1981) 131 ITR 597(SC), CIT v. Shivakami Co. (P) Ltd.

Shah Realtors, Thane vs. ACIT Cir (4), Thane

In the result the appeal of the assessee is allowed

Bench: Sh.B.R.Baskaran & Shri Pawan Singhm/S Shah Realtors Acit Circle -4, A Wing, 6Th Floor, Ashar It 2Nd Floor, Parshwa Park, Road No. 16-Z, Padmavati, Beside Oriental Vs. Wagle Industrial Estate, Bank Of Commerce, Thane-400604. Ambadi Road,Vasai(W), Thane-401202 Pan: Abhfs7795J Appellant Respondent : Dr. K. Sivaram Sr. Advocate With Appellant By Sh. Sashank Dandu Advocate Respondent By : Sh. Suman Kumar (Sr. Dr) Date Of Hearing : 19.04.2018 Date Of Pronouncement: 25.05.2018 Order Per Pawan Singh; 1. This Appeal By Assessee Under Section 253 Of Income Tax Act Is Directed Against The Order Of Commissioner (Appeals)-3, Thane, Dated 14Th January 2016 For Assessment Year 2012-13. 2. Brief Facts Of The Case Are That Assessee Is A Partnership Firm, Engaged In The Business Of Builder & Developer. The Assessee Filed Its Return Of Income For Relevant Assessment Year On 22Nd Of September 2012 Declaring Total Income Of Rs.61,10,630/-. The Assessment Was Completed On 20Th February 2015 Under Section 143(3). The Assessing Officer While Passing Assessment Order Besides The Other Additions Made Addition Of Rs.2,52,65,247/- On Account Of Difference Of Sale Price Between Building M/S Shah Realtors No. 3 & Building No. 10, Sold During The Financial Year In Shah

…lly received by the assessee is more than is declared or disclosed by him and the burden of proving such an understatement or concealment is on the Revenue. Sub-s. (2) has no [1986] 159 ITR 71/25 Taxman 80K (SC) and in CIT v. Godavari Corporation Ltd. [1993] 200 ITR 567/68 Taxman 344 by holding that the burden is on the Revenue to prove under-statement of the consideration. Further, the Hon'ble Kerala High Court in CIT v. M.J. Cherian [1979] 117 ITR 371 has held that the ITO cannot fix higher sales price without any evidence. The mere presumption that the excess price could have 10 M/s Shah Realtors been cha…

ACIT 25(2), Mumbai vs. Saroj Sales Organisation, Mumbai

In the result, appeal of the Revenue is dismissed

Bench: Shri D.T. Garasia & Shri N.K. Pradhanassessment Year: 2010-11 Acit-25(2), M/S. Saroj Sales Room No.108, 1St Floor, Organization, Bldg. No.C-11, B-202, The Breezy Corner, Pratyakshkar Bhavan, Vs. 90Ft. Road, Bandra Kurla Complex, Mahavir Nagar, Bandra (East) Kandivali (W), Mumbai – 400 051 Mumbai – 400 067 Pan: Aamfs5193A (Appellant) (Respondent)

…ated by the assessee and the burden of proving such understatement is on the revenue. An identical view was reiterated in the case of CIT vs. Shivakami Co. Pvt. Ltd. 1986 159 ITR 71(SC) and again reiterated in the decision of CIT vs. Godavari Corp. Ltd. (1993)200 ITR 567 (SC). What then emerges is that some concrete evidence has to be brought forth by revenue and the explanation by the appellant cannot be rejected summarily and a hypothetical bais of calculation cannot be taken to recalculate the sale price to determine the real income. Therefore, in my considered view the addition needs to be deleted with refere…

Neelkamal Realtors and Erectors India P.Ltd, Mumbai vs. DCIT 5(2), Mumbai

In the result appeal filed by assessee is partly allowed and the appeal filed by the revenue is dismissed

Bench: Shri G.S. Pannu & Shri Pawan Singhm/S Neelkamal Realtors & Dcit -5(1), Erectors India Pvt. Ltd., Aayakar Bhavan, Ground Floor, 265-E, Mumbai-400020 Vs. Bellasis Road, Mumbai Central, Mumbai-400008 Pan: Aabcn9254D (Appellant) (Respondent) Dcit -5(1), M/S Neelkamal Realtors & Aayakar Bhavan, Erectors India Pvt. Ltd., Ground Mumbai-400020 Vs. Floor, 265-E, Bellasis Road, Mimbai Central, Mumbai-400008 Pan: Aabcn9254D (Appellant) (Respondent)

…here is no concealment or suppression of the consideration.’. Identical view was subsequently reiterated in CIT VS. Shivakami Co. P. Ltd. (1986) 159 ITR 71 (SC). Similar view has been expressed by the Hon’ble Supreme Court in CIT VS. Godavari Corp Ltd. (1993) 200 ITR 567 (SC) by holding that the burden is on the Revenue to prove under- statement of the consideration. The following observations of the Hon’ble Supreme Court from this case merit mention :` Section 52(2) of the IT Act, 1961 can be invoked only where the consideration for the transfer of a capital asset has been understated by the assessee or in other…

DCIT Cen Cir 8(1), Mumbai vs. Bhuta Investment P.Ltd, Mumbai

Bench: Shri Mahavir Singh & Shri Ashwani Tanejaassessment Year: 2008-09

…125 per share on the basis of certain instances of share transactions cited by him as against actual consideration received by the assessee. After relying on the decision of Hon'ble Supreme Court in the case of K.P Varghese (supra), Godavari Corporation Ltd., 200 ITR 567, Shivakami Co. Pvt Ltd. 159 ITR 71, the CIT(A) reached to the conclusion that even if there were some other instances of sale of shares at a higher price that cannot lead to a conclusion that the assessee has sold its shares at higher price until otherwise the AO is able to prove that the consideration received by the assessee is more than what i…

DCIT Cen Cir 8(1), Mumbai vs. Indra Gaggar, Mumbai

In the result, all the appeals of the Revenue are dismissed

Bench: Shri Rajendra & Shri C.N. Prasadआयकर अपील सं./Ita Nos.808, 1295, 1294, 1296 & 809/M/2015 आयकर अपील सं आयकर अपील सं आयकर अपील सं (िनधा"रण वष" िनधा"रण वष" / Assessment Years: 2006-07, 2007-08, 2008-09, 2009-10 & 2011-12) िनधा"रण वष" िनधा"रण वष" Dcit Cen Cir 8(1), Smt. Indra Gaggar, R.No.656, 6Th Floor, 41-42, 4Th Floor, Aayakar Bhavan, Gaurav Extension, M.K. Road, Film City Road., बनाम/Vs. बनाम बनाम बनाम Mumbai – 400 020 Gokuldham, Goregaon (East), Mumbai – 400 063 Pan: Afxpg3889B (अपीलाथ% अपीलाथ%/Appellant) ("&यथ% "&यथ%/Respondent) अपीलाथ% अपीलाथ% "&यथ% "&यथ% Present For: Assessee By : Shri Anuj Kisnadwala, A.R. Revenue By : Shri P. Ghosh, D.R. सुनवाई क' तारीख/Date Of Hearing : 15.11.2016 सुनवाई क' तारीख सुनवाई क' तारीख सुनवाई क' तारीख घोषणा क' तारीख /Date Of Pronouncement : 30.11.2016 घोषणा क' तारीख घोषणा क' तारीख घोषणा क' तारीख आदेश / O R D E R Per Bench:

…125 per share on the basis of certain instances of share transactions cited by him as against actual consideration received by the assessee. After relying on the decision of Hon’ble Supreme Court in the case of K.P.Varghese (supra), Godavari Corporation Ltd., 200 ITR 567, Shivakami Co. Pvt. Ltd. 159 ITR 71, the CIT(A) reached to the conclusion that even if there were some other instances of sale of shares at a higher price that cannot lead to a conclusion that the assessee has sold its shares at higher price until otherwise the AO is able to prove that the consideration received by the assessee is more than what…

DCIT Cen Cir 44, Mumbai vs. Deven J Mehta, Mumbai

In the result, the appeal of the revenue is dismissed

…contrary, the decisions cited by the appellant in the following cases are directly relevant and applicable to the facts and circumstances of the appellant's case: (1) K.P. Varghese vs. ITO (1981) 131 ITR 597 (SC) (ii) CIT vs. Godavari Corporation Ltd. (1993) 200 ITR 567 (SC) (iii) CIT vs. Shivakami Co. Pvt. Ltd. (1986) 159 ITR 71 (SC) (iv)CIT V/s Smt.Nandini Nopany (1998) 230 IRE 679 (Cal) 5 14.2 In view of the decisions cited above, it is established that even if there were some other instances of sale of shares at a higher price that cannot lead to a conclusion that the appellant had also sold its shares at h…