ASAD NAEEMUDDIN MOULVI, MUMBAI V. ITO (WD)- 17(1)(2), MUMBAI

ITA 3113/MUM/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 5700 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M.N. LADIWALA
• Keywords: Unexplained cash credit; Sale consideration of property below Jantri Value; Business income; Depreciation; Cost of acquisition; Capital Gains
• Section: 68; 143(3); 50C; 43; 73; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A” MUMBAI BEFORE SHRI KULDIP SINGH (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) ITA No. 3113/MUM/2018 Assessment Year: 2013-14 Mr. Asad Naeemuddin Moulvi, Room No. 8/9/10, 3 rd floor, Faiz- E-Akhtar, 27, Memonwada Road, Bhendi Bazar, Mumbai-400 003. Vs. Income Tax Officer, Ward 17(1)(2), 4 th floor, Earnest House, Nariman Point, Mumbai-400021. PAN No. AFCPM 8595 F Appellant Respondent Assessee by : Mr. M.N. Ladiwala, AR Revenue by : Mr. Manoj Sinha, DR Date of Hearing : 03/08/2022 Date of pronouncement : 19/09/2022 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 06/02/2018 passed by the Ld. Commissioner of Income-tax (Appeals)-28, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2013-14, raising following grounds: 1. The learned Commissioner of Income the addition of the sum of rs.10,39,763/ thousand seven hundred sixty three only), on account of cash deposits in savings bank account considered the same as unexplained cash credit u/s. 68 of the Income Tax Act, 1961 of the appellant. 2. The Learned Commissioner of confirming @ 50% of the additions of thirteen thousand one hundred twenty four only) made by the assessing officer, on account of long term capital gains on sale of immovable property at Kharghar, Navi Mumbai 2. Briefly stated facts of the case are that the assessee claim have engaged in the business of ticketing, Visas and tours. For the year under consideration 31/03/2015 declaring total income of income filed, the assessee has shown ‘Income from house property’ remuneration’ from three partnership firms International Tours and Travels, income. The return of scrutiny assessment under Mr. Asad Naeemuddin Moulvi The learned Commissioner of Income-tax, appeals has erred in confirming the addition of the sum of rs.10,39,763/- (Rupees ten lac thirty thousand seven hundred sixty three only), on account of cash deposits in savings bank account considered the same as unexplained cash credit u/s. 68 of the Income Tax Act, 1961 of the appellant. The Learned Commissioner of Income-tax (Appeals), has al confirming @ 50% of the additions of ₹45,13,124/- (rupees forty five lac thirteen thousand one hundred twenty four only) made by the assessing officer, on account of long term capital gains on sale of immovable property at Kharghar, Navi Mumbai. stated facts of the case are that the assessee claim have engaged in the business of ticketing, Visas and tours. For the year under consideration, the assessee filed return of income on 31/03/2015 declaring total income of ₹12,12,440/-. the assessee has shown rental income under the from house property’, Income from share of profit and from three partnership firms including M/s Alliance International Tours and Travels, business income and interest income. The return of income filed by the assessee was selected for scrutiny assessment under Computer Assisted Selection Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 2 tax, appeals has erred in confirming (Rupees ten lac thirty nine thousand seven hundred sixty three only), on account of cash deposits in savings bank account considered the same as unexplained cash credit u/s. tax (Appeals), has also erred in (rupees forty five lac thirteen thousand one hundred twenty four only) made by the assessing officer, on account of long term capital gains on sale of immovable stated facts of the case are that the assessee claimed to have engaged in the business of ticketing, Visas and tours. For the the assessee filed return of income on . In the return of rental income under the head from share of profit and including M/s Alliance ome and interest was selected for Computer Assisted Selection of Scrutiny (CASS) any statutory notices under the short ‘the Act’) were issued and complied under section 143(3) of the making two additions. Firstly, the addition of made for cash credits appearing in books of accounts which were deposited in saving bank accounts and held by the as unexplained cash credit in terms of section 68 of the Secondly, the addition of sale of the property not reported by the assessee in the return of income. Aggrieved with the order of the assessee filed appeal before the Ld. CIT(A), however the Ld. CIT(A) also upheld the additions. Hence, the assessee is before the tax Appellate Tribunal ( grounds as reproduced above. 3. Before us the Ld. counsel two volumes consisting of pages 1 to 28 and 1 to 78 respectively. Mr. Asad Naeemuddin Moulvi (CASS) any statutory notices under the Income-tax ) were issued and complied with. The assessment under section 143(3) of the Act was completed on 23/03/2016 after making two additions. Firstly, the addition of ₹10,39, made for cash credits appearing in books of accounts which were in saving bank accounts and held by the Assessing Officer as unexplained cash credit in terms of section 68 of the Secondly, the addition of ₹45,13,124/- was made for capital gain on sale of the property not reported by the assessee in the return of income. Aggrieved with the order of the Ld. Assessing Officer assessee filed appeal before the Ld. CIT(A), however the Ld. CIT(A) also upheld the additions. Hence, the assessee is before the tax Appellate Tribunal (in short ‘the Tribunal’) by w grounds as reproduced above. Ld. counsel of the assessee filed volumes consisting of pages 1 to 28 and 1 to 78 respectively. Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 3 tax Act, 1961 (in with. The assessment was completed on 23/03/2016 after 10,39,763/- was made for cash credits appearing in books of accounts which were Assessing Officer as unexplained cash credit in terms of section 68 of the Act. was made for capital gain on sale of the property not reported by the assessee in the return of Assessing Officer, the assessee filed appeal before the Ld. CIT(A), however the Ld. CIT(A) also upheld the additions. Hence, the assessee is before the Income- ) by way of raising of the assessee filed paperbook in volumes consisting of pages 1 to 28 and 1 to 78 respectively. 4. In ground No. ₹10,39,763/- on accou held as unexplained cash credit under section 68 of the 4.1 As per the provisions of the required to file information in respect of cash deposits more than the prescribed limit by way of Annual Information Return (AIR). In the case of the assessee cash deposits by the assessee amounting to period relevant to the assessment year under consideration. The source of cash deposit was explained by the assessee as (a) The assessee propose religious tours at ‘Macca’ and ‘Madina’ etc for ‘Haj’ and ‘Umrah’ and for December, 2012, the assessee received advance against the tour from different parties towards tickets, Visa and other expenses & same Mr. Asad Naeemuddin Moulvi In ground No. 1, the assessee has challenged addition of on account of cash deposits in saving bank account held as unexplained cash credit under section 68 of the As per the provisions of the Income-tax Act, the banks are required to file information in respect of cash deposits more than by way of Annual Information Return (AIR). In the case of the assessee, information was received through cash deposits by the assessee amounting to ₹10,39, period relevant to the assessment year under consideration. The source of cash deposit was explained by the assessee as The assessee proposed to start a business of conducting religious tours at ‘Macca’ and ‘Madina’ etc for ‘Haj’ and d for organizing the 1 st tour in the month of the December, 2012, the assessee received advance against the from different parties towards tickets, Visa and other same was deposited in saving bank account, but Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 4 , the assessee has challenged addition of nt of cash deposits in saving bank account held as unexplained cash credit under section 68 of the Act. , the banks are required to file information in respect of cash deposits more than by way of Annual Information Return (AIR). In through AIR for 10,39,763/- for the period relevant to the assessment year under consideration. The source of cash deposit was explained by the assessee as under: to start a business of conducting religious tours at ‘Macca’ and ‘Madina’ etc for ‘Haj’ and in the month of the December, 2012, the assessee received advance against the from different parties towards tickets, Visa and other was deposited in saving bank account, but the tour could not be refunded back (b) some of the amount deposited was out of his past saving and income from current year from ticketing and visas as shown in the computation of total income. 4.2 However, the assessee failed to the person from whom the cash was taken and therefore in absence of the evidences, the assessee and made the addition. Before the Ld. CIT(A) also same claim was reiterated by the assesse therefore Ld. CIT(A) also rejected his claim holding that assessee failed to discharge his onus of establishing the nature and source of income as required under provisions of the relied on following decisions: I. Homi Jehangir Gheesta v. CIT [1961] 41 ITR 13 (SC) II. Chuharmal v. CIT [1988] 172 ITR 252 (SC) Mr. Asad Naeemuddin Moulvi could not be organized and money received was back in subsequent year. some of the amount deposited was out of his past saving and income from current year from ticketing and visas as shown in the computation of total income. the assessee failed to submit name and address of the person from whom the cash was taken and therefore in absence of the evidences, the Assessing Officer rejected the contention of the assessee and made the addition. Before the Ld. CIT(A) also same claim was reiterated by the assessee sans any evidence and therefore Ld. CIT(A) also rejected his claim holding that assessee failed to discharge his onus of establishing the nature and source of income as required under provisions of the Act. The Ld. CIT(A) relied on following decisions: Homi Jehangir Gheesta v. CIT [1961] 41 ITR 13 (SC) Chuharmal v. CIT [1988] 172 ITR 252 (SC) Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 5 and money received was some of the amount deposited was out of his past saving and income from current year from ticketing and visas as shown name and address of the person from whom the cash was taken and therefore in absence rejected the contention of the assessee and made the addition. Before the Ld. CIT(A) also same e sans any evidence and therefore Ld. CIT(A) also rejected his claim holding that assessee failed to discharge his onus of establishing the nature and source of . The Ld. CIT(A) III. Fakir Mohmed Haji Hasan v. CIT [2002] 120 Taxman 11 (Guj.) IV. Hersh W Chadha v. DDIT [2011] 43 SOT 544 (Delhi) V. Iqbal Singh v. CIT [2010] 328 ITR 301 (Punj. & Har.) VI. K.V. Mathew v. Income Tax Officer (2014) 222 Taxman 0116 (Kerela) 5. Before us, the Ld. counsel received from ‘walk- assessee for ‘Haj’ and of passengers, placed on page 27 to 28 of the paperbook The said list contain ticket No., Name of the passenger, the sector of travel for which ticket was booked, fare amount. ₹17,980/- has been claim to have been rece passenger and total amount of from these ‘walk-in clients reproduced as under : Mr. Asad Naeemuddin Moulvi Fakir Mohmed Haji Hasan v. CIT [2002] 120 Taxman 11 (Guj.) Hersh W Chadha v. DDIT [2011] 43 SOT 544 (Delhi) Iqbal Singh v. CIT [2010] 328 ITR 301 (Punj. & Har.) .V. Mathew v. Income Tax Officer (2014) 222 Taxman 0116 (Kerela) Ld. counsel of the assessee claimed -in client’ for booking of their tickets by the and ‘Umrah’ travel and referred to th of passengers, placed on page 27 to 28 of the paperbook list contain ticket No., Name of the passenger, the sector of travel for which ticket was booked, fare amount. has been claim to have been received from each passenger and total amount of ₹10,39,800/- to have been received in clients’. For ready reference said list is reproduced as under : Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 6 Fakir Mohmed Haji Hasan v. CIT [2002] 120 Taxman 11 (Guj.) .V. Mathew v. Income Tax Officer (2014) 222 Taxman 0116 (Kerela) ed that cash was for booking of their tickets by the referred to the list of name of passengers, placed on page 27 to 28 of the paperbook volume I. list contain ticket No., Name of the passenger, the sector of travel for which ticket was booked, fare amount. An amount of ived from each to have been received For ready reference said list is Mr. Asad Naeemuddin Moulvi Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 7 Mr. Asad Naeemuddin Moulvi Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 8 5.1 The Ld. counsel issued in respect of tho 65 to 71 of the paperbook volume 2. These been issued on the letterhead of partnership firm M/s Alliance International Tours and Travels. The pro details of airline through which ticket was booked (AIR India and Jet Airways), passenger name, sector, basic fare taxes and total fair amount. The Ld. counsel information was submitted before the Ld. CIT(A) however same was not considered by him. the source of deposit of of past savings and current year’s business income such evidence in respect of the past saving have been filed 5.2 In view of the evidences filed, the addition-in-dispute should be deleted. Whereas the Departmental Representative Mr. Asad Naeemuddin Moulvi Ld. counsel also the referred to the pro those walk-in clients, which are placed on page 65 to 71 of the paperbook volume 2. These proforma on the letterhead of partnership firm M/s Alliance onal Tours and Travels. The proforma invoice rough which ticket was booked (AIR India and Jet ), passenger name, sector, basic fare taxes and total fair Ld. counsel of the assessee has submitted that above information was submitted before the Ld. CIT(A) however same was nsidered by him. Though before the Assessing Officer the source of deposit of ₹10,39,763/- was claimed to have been out d current year’s business income, but before us no such evidence in respect of the past saving have been filed In view of the evidences filed, the Ld. counsel dispute should be deleted. Whereas the Departmental Representative relied on the orders of the Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 9 also the referred to the proforma invoices in clients, which are placed on page proforma invoices have on the letterhead of partnership firm M/s Alliance forma invoices contains rough which ticket was booked (AIR India and Jet ), passenger name, sector, basic fare taxes and total fair of the assessee has submitted that above information was submitted before the Ld. CIT(A) however same was Assessing Officer part of claimed to have been out , but before us no such evidence in respect of the past saving have been filed . Ld. counsel submitted that dispute should be deleted. Whereas the Ld. relied on the orders of the Assessing Officer and Ld. CIT(A) and submitted that no such list of passengers were filed before the should be upheld. 6. We have heard rival submission of the parties on the issue in dispute and perused the relevant materi dispute before us is whether assessee has discharge establishing nature and source of the cash credit of The list of passengers from whom the assessee has claimed to have received cash have not been ref or by the Ld. CIT(A). In the list issued by the assessee, from the airlines namely AIR India and Jetairways (International). Therefore, the truth in the claim of the assessee that booked by him in individual capacity and those passengers, can be verified from the respective airlines and if that fact is found to be correct, the Mr. Asad Naeemuddin Moulvi and Ld. CIT(A) and submitted that no such list of passengers were filed before the lower authorities, therefore addition in dispute We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The issue in dispute before us is whether assessee has discharge establishing nature and source of the cash credit of The list of passengers from whom the assessee has claimed to have received cash have not been referred either by the Assessing Officer or by the Ld. CIT(A). In the list of passengers and pro issued by the assessee, it is claimed that those tickets were booked from the airlines namely AIR India and Jetairways (International). e truth in the claim of the assessee that booked by him in individual capacity and cash was received from those passengers, can be verified from the respective airlines and if that fact is found to be correct, the Assessing Officer Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 10 and Ld. CIT(A) and submitted that no such list of passengers authorities, therefore addition in dispute We have heard rival submission of the parties on the issue in al on record. The issue in dispute before us is whether assessee has discharged his onus of establishing nature and source of the cash credit of ₹10,39,763/-. The list of passengers from whom the assessee has claimed to have Assessing Officer and proforma invoice ed that those tickets were booked from the airlines namely AIR India and Jetairways (International). e truth in the claim of the assessee that same were cash was received from those passengers, can be verified from the respective airlines and if Assessing Officer may consider the claim of the assessee Therefore, in the facts and circumstances of the case and the interest of substantial justice, we feel it appropriate to restore this issue back to the file of the claim of cash deposits by the assessee. The assessee shall file all the necessary evidence in support of its claim including the airlines regarding booking of tickets individual capacity (not by passengers and also produce those passengers Assessing Officer for verification. The to carry out inquiries as deemed fit in the facts and circumstances of the case for adjudication of issue mention that the assessee shall be afforded adeq being heard. The ground No. accordingly allowed for statistical purposes. Mr. Asad Naeemuddin Moulvi he claim of the assessee if same is in accordance with law in the facts and circumstances of the case and the interest of substantial justice, we feel it appropriate to restore this issue back to the file of the Ld. Assessing Officer for verification of the claim of cash deposits by the assessee. The assessee shall file all the necessary evidence in support of its claim including the airlines regarding booking of tickets by the assessee in individual capacity (not by the partnership firm) in the name of the d also produce those passengers, if called for by the for verification. The Assessing Officer to carry out inquiries as deemed fit in the facts and circumstances of or adjudication of issue-in-dispute. It is needless to mention that the assessee shall be afforded adequate opportunity of . The ground No. 1 of the appeal of the assessee is accordingly allowed for statistical purposes. Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 11 if same is in accordance with law. in the facts and circumstances of the case and the interest of substantial justice, we feel it appropriate to restore this issue verification of the claim of cash deposits by the assessee. The assessee shall file all the certificate from by the assessee in in the name of the , if called for by the Assessing Officer is at liberty to carry out inquiries as deemed fit in the facts and circumstances of dispute. It is needless to uate opportunity of of the appeal of the assessee is 7. In ground No. 2 of the addition of ₹45,13, on sale of immovable property, which has been upheld by the Ld. CIT(A). 8. The Assessing Officer fact of sale of residential flat No. 402, situated at Paratik Pura Khargar, Navi Mumbai whereas the value of the said property as per the stamp duty authority was of ₹82, sale and consequent capital gain was not appearing in the return of income filed by the assessee. The assessee explained that said property had been purchase “Alliance International Tour and Travels Hassanali Naseer’ and both being partners in purchase of the said flat was shown in the books of accounts of the Mr. Asad Naeemuddin Moulvi of the appeal, the assessee has challenged 50% 45,13,124/- on account of long-term capital gain on sale of immovable property, which has been upheld by the Ld. Assessing Officer from the AIR information observed the ale of residential flat No. 402, situated at Paratik Pura , Navi Mumbai for a total sale consideration of whereas the value of the said property as per the stamp duty 82,71,000/-. According to the Assessing Officer and consequent capital gain was not appearing in the return of income filed by the assessee. The assessee explained that said property had been purchased by the partnership firm namely Alliance International Tour and Travels” in the name of and ‘Mr Asad Naimudin Moulvi’ (i.e. the assessee), both being partners in said firm. It was submitted further that purchase of the said flat was shown in the books of accounts of the Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 12 he appeal, the assessee has challenged 50% term capital gain on sale of immovable property, which has been upheld by the Ld. from the AIR information observed the ale of residential flat No. 402, situated at Paratik Pura, for a total sale consideration of ₹ 73 lakh whereas the value of the said property as per the stamp duty Assessing Officer and consequent capital gain was not appearing in the return of income filed by the assessee. The assessee explained that said by the partnership firm namely in the name of ‘Mr. Ayaz i.e. the assessee), firm. It was submitted further that purchase of the said flat was shown in the books of accounts of the firm under the head of building (Residence) as an asset of under the block of building (residence). The sale of the said premises is also shown under the block of building in the books of accounts, which is reflected in the financial statements for the year ending 31/03/2014. been shown under the head block of building was claimed in the past the head ‘income from capital gains assessee filed a confirmation le Tours and Travels’ along with balance firm. Further, the assessee is also not applicable as accounted in the books of accounts of the partnership firm. Assessing Officer after perusal of the purchase and sale agreement found that assessee is ‘Sh Ayaz Hasanali Naseer Mr. Asad Naeemuddin Moulvi firm under the head of building (Residence) as an asset of under the block of building (residence). The sale of the said premises is also shown under the block of building in the books of accounts, which is reflected in the financial statements for the year It was contended that said residential flat has been shown under the head block of building and the depreciation was claimed in the past, therefore, there was no tax liability under income from capital gains’ in the case of the confirmation letter from ‘Alliance along with balance-sheet of the said partnership the assessee also submitted that section 50 is also not applicable as the said property was purchased and accounted in the books of accounts of the partnership firm. after perusal of the purchase and sale agreement is co-owner in the said residential property with ali Naseer’ and name of partnership firm was Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 13 firm under the head of building (Residence) as an asset of the firm under the block of building (residence). The sale of the said premises is also shown under the block of building in the books of accounts, which is reflected in the financial statements for the year esidential flat has and the depreciation no tax liability under in the case of the assessee. The Alliance International sheet of the said partnership also submitted that section 50C of the Act the said property was purchased and accounted in the books of accounts of the partnership firm. The Ld. after perusal of the purchase and sale agreement owner in the said residential property with and name of partnership firm was nowhere mentioned in the said agreement capital gain tax, the assessee has r fixed assets of the M/ Further, the Assessing Officer clearly applicable in the case of the assessee valuation is more than the sale consideration shown in agreement. Accordingly out of the valuation as per the stamp duty, the computed capital gain of order and thus made addition of also the assessee reiterated same submission and submitted evidence containing entr International Tour and firm. The Ld. CIT(A) observed that in the agreement to sale, seller parties were appearing as assessee’ only and there was no reference of firm Mr. Asad Naeemuddin Moulvi nowhere mentioned in the said agreement(s) and for avoiding the gain tax, the assessee has reflected the said property in fixed assets of the M/s Alliance International Tour Assessing Officer held that provision of section 50 clearly applicable in the case of the assessee as is more than the sale consideration shown in agreement. Accordingly, after reducing indexed cost of acquisition of the valuation as per the stamp duty, the Assessing Officer computed capital gain of ₹45,13,124/- in para 5.2 of the assessment order and thus made addition of ₹45,13,124/-. Before the Ld. CIT(A) also the assessee reiterated same submission and submitted evidence containing entry in the books of accounts of M/ and Travels and confirmation letter from . The Ld. CIT(A) observed that in the agreement to sale, seller parties were appearing as ‘Sh Ayaz Hassanali Naseer only and there was no reference of firm Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 14 and for avoiding the eflected the said property in the Alliance International Tour and Travels. ld that provision of section 50C are as a stamp duty is more than the sale consideration shown in the sale cost of acquisition Assessing Officer in para 5.2 of the assessment . Before the Ld. CIT(A) also the assessee reiterated same submission and submitted y in the books of accounts of M/s. Alliance and confirmation letter from said . The Ld. CIT(A) observed that in the agreement to sale, seller Sh Ayaz Hassanali Naseer’ and ‘the only and there was no reference of firm M/s Alliance International Tour documentation prepared by the assessee was post fact attempt to circumvent section 50 the addition to the extent of the 50% the property. The relevant finding of the Ld. CIT(A) is reproduced as under: “3.2 On the other hand we have agreement for sale in which sellers are: i. Ayaz Hassanali Nasser ii. Asad N. Moulv There is no reference whatsoever of Alliance. The documentation prepared is obviously post facto. The attempt is a colorable device obviously to circumvent Sec.50C (43CA not being in existence in impugned year). As co only to the extent of 50%. The A.O. clearly acknowledges appellant as co-owner. Sale value is Rs.73 lacs as per agreement. SVA is Rs.82.71 lacs per A.O. But since it is joint ownership, (in absence of specification of shares %age) the same shall be divided in equal parts. The ground is partly allowed. 9. Before us also the assessee has reiterated the submission which were made before the Mr. Asad Naeemuddin Moulvi International Tour and Travels. The Ld. CIT(A) held that documentation prepared by the assessee was post fact ttempt to circumvent section 50C of the Act. However the addition to the extent of the 50%, as assessee being the property. The relevant finding of the Ld. CIT(A) is reproduced as 3.2 On the other hand we have agreement for sale in which sellers are: Ayaz Hassanali Nasser Asad N. Moulvi (assessee). There is no reference whatsoever of Alliance. The documentation prepared is obviously post facto. The attempt is a colorable device obviously to circumvent Sec.50C (43CA not being in existence in impugned year). As co-owner, appellant is liable to capital gains tax but only to the extent of 50%. The A.O. clearly acknowledges appellant as owner. Sale value is Rs.73 lacs as per agreement. SVA is Rs.82.71 lacs per A.O. But since it is joint ownership, (in absence of specification of e) the same shall be divided in equal parts. The ground is partly allowed.” us also the assessee has reiterated the submission which were made before the lower authorities and no fresh Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 15 . The Ld. CIT(A) held that documentation prepared by the assessee was post facto and an . However, he sustained being co-owner in the property. The relevant finding of the Ld. CIT(A) is reproduced as 3.2 On the other hand we have agreement for sale in which sellers are: There is no reference whatsoever of Alliance. The documentation prepared is obviously post facto. The attempt is a colorable device obviously to circumvent Sec.50C (43CA not being in existence in le to capital gains tax but only to the extent of 50%. The A.O. clearly acknowledges appellant as owner. Sale value is Rs.73 lacs as per agreement. SVA is Rs.82.71 lacs per A.O. But since it is joint ownership, (in absence of specification of e) the same shall be divided in equal parts. The ground is us also the assessee has reiterated the submission authorities and no fresh evidence to support the contention purchase and sale agreement of the property ‘Sh Ayaz Hasanali Naseer party in their individual capacity and not in the capacity of pa of the partnership firm Therefore, by way of making entries in the books of accounts the assessee cannot claim that said property was owned by said partnership firm. By way of making entering accounts of the partnershi ownership and character of the transaction of purchase and sale entered into in individual capacity are accordingly rejected. We do not find any Ld. CIT(A) on the issue in dispute and accordingly same. The ground No. dismissed. Mr. Asad Naeemuddin Moulvi evidence to support the contention are filed. On perusal of the purchase and sale agreement of the property, we find that name of Sh Ayaz Hasanali Naseer’ and ‘the assessee’ are appearing as a seller party in their individual capacity and not in the capacity of pa of the partnership firm M/s Alliance International Tour by way of making entries in the books of accounts the assessee cannot claim that said property was owned by said partnership firm. By way of making entering in of the partnership firm, the assessee cannot change character of the transaction of purchase and sale individual capacity. The arguments of the assessee accordingly rejected. We do not find any error in the order of the ssue in dispute and accordingly, same. The ground No. 2 of the appeal of the assessee is accordingly Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 16 filed. On perusal of the we find that name of are appearing as a seller party in their individual capacity and not in the capacity of partner Tour and Travels. by way of making entries in the books of accounts the assessee cannot claim that said property was owned by said in the books of the assessee cannot change character of the transaction of purchase and sale . The arguments of the assessee in the order of the , we uphold the of the appeal of the assessee is accordingly 10. In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open Court in Sd/- (KULDIP SINGH JUDICIAL MEMBER Mumbai; Dated: 19/09/2022 Dragon Legal/Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// Mr. Asad Naeemuddin Moulvi In the result, the appeal of the assessee is partly allowed for ounced in the open Court in 19/09 Sd/- KULDIP SINGH) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai Mr. Asad Naeemuddin Moulvi ITA No. 3113/M/2018 17 In the result, the appeal of the assessee is partly allowed for /09/2022. OM PRAKASH KANT) MEMBER Sr. Private Secretary) ITAT, Mumbai