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Loan advanced by a company & interest paid by recipient on such debt, cannot be disallowed on account of being bogus, if it is not established that such lender is a shell company: ITAT

2019-TIOL-1501-ITAT-MUM

IN THE INCOME TAX APPELLATE TRIBUNAL
BENCH ‘B’ MUMBAI

ITA No.2277/Mum/2018
Assessment Year: 2013-14

INCOME TAX OFFICER
21(2)(4), MUMBAI

Vs

M/s NASEEM HASAN MUJAWAR
201, SOFIA HEIGHTS, L J ROAD
MAHIM (WEST), MUMBAI
PAN NO:ABAPM5414B

CO No.79/Mum/2019
Arising in ITA No. 2277/Mum/2018
Assessment Year: 2013-14

M/s NASEEM HASAN MUJAWAR
201, SOFIA HEIGHTS, L J ROAD
MAHIM (WEST), MUMBAI
PAN NO:ABAPM5414B

Vs

INCOME TAX OFFICER
21(2)(4), MUMBAI

Sandeep Gosain, JM & Rajesh Kumar, AM

Date of Hearing: May 16, 2019
Date of Decision: June 20, 2019

Appellant Rep by: Mrs Jothilakshmi Nayak, DR
Respondent Rep by: 
Shri S L Jain, AR

Income Tax – Sections 2(47) & 50C

Keywords – Interest expenses – Re-development agreement – Surrender of tenancy rights – Transfer

The assessee for the relevant AY, declared income from salary, house property and income from other sources. During the scrutiny assessment, the AO noted that the assessee incurred expenditure in paying interest on loan. The loan was advanced by one M/s. Golden Agro Products Pvt. Ltd. On further verifying the details of the company, the AO held that such company was only a shell company and hence the loan was not genuine. Hence, addition was made on account of loan and interest paid on such loan. The AO also made addition of capital gain on account of surrender of tenancy rights by the assessee on redevelopment of the building in which the subject property was located. This was disputed by the assessee contending that proper transfer as per section 2(47) did not happened but such contention was rejected. Hence, income from house property as declared as refuted by the AO. The CIT(A) however, set aside the additions made by the AO.

On hearing the appeal, the Tribunal held that,

Whether without establishing on record that the corporate creditor is a shell company, loan advanced by such entity and interest paid by the assessee on such debt could be disallowed by the AO as bogus liabilities – NO: ITAT

++ on the issue of loan and interest expenses on it, the AO was under an obligation to consider the identity of the creditors, creditworthiness and genuineness of the transactions. The creditors genuineness was established by filing the PAN and complete address details of M/s. Golden Agro Products Pvt. Ltd. As far as genuineness of transaction is concerned, it was established from the fact that both the acceptance and repayment of the loan had been through banking channels as evident from the bank statement. Lastly, creditworthiness of the lender is concerned, it was established from the audited accounts, ledger accounts and bank statement, which were filed during the course of appellate proceedings. Even otherwise the loan received from the company cannot be doubted as bogus because the AO had failed to establish that M/s Golden Agro Products Co. is a shell company. The AO could not prove or record that there was cash deposits or cash withdrawals in the bank account either by the assessee or the directors of the company. In the case of loan from creditors is concerned, it could not be enquired by the AO as the enquiry of source of source is not the requirement of law as per the decision in CIT Vs. Nirav Modi and CIT Vs. Pr.CIT Vs. Veedhata Tower Pvt. Ltd. The AO had not brought any anomaly in the banking transactions of the company, while granting loan to the assessee. Thus, the loan taken from M/s. Golden Agro Products Pvt. Ltd cannot be treated as bogus. Thus the interest paid on such loan cannot be disallowed;

Whether on re-development of building, grant of partial control of building till completion of construction by the contractor is transfer as contemplated u/s 2(47) via surrender of tenancy rights in the property and as such taxable u/s 50C – NO: ITAT

++ on the issue of earning capital gain by surrender of tenancy rights, the handing over of the flat would be completed only when the redeveloped building was constructed and possession is given to the assessee. Thus, only when the assessee gets possession of the new flat in the re-developed building, then he loses the rights as tenant in the tenanted premises. Hence, it cannot be treated as that of transfer as defined u/s. 2(47). Once there is no transfer, there is no question of invocation of the provisions of Section 50C. Recently, the Bombay High Court in the case of CIT Vs. Dr.Arvind S. Phake has held that – immoveable property can be regarded to have been transferred on the date of execution of the development agreement and irrevocable general power of attorney only if the terms indicate that complete control is given to the developer. But in the instant case, neither the new property was received by the assessee nor parted with his tenancy right/tenanted property. The assessee continued to be the tenant of the property, which has been established by payment of rents subsequent to the execution of the agreement with the developer. Thus, considering the totality of the facts and circumstances, CIT(A) also rightly concluded that this cannot be treated as a case involving ‘transfer’ as per Section 2(47) of the Act. Therefore, once there is no surrender of tenancy rights, the action of the AO in computing the valuation of the tenancy right is not justified. Hence, Revenue’s appeal is dismissed.

Revenue’s appeal allowed/Assessee’s cross objection dismissed

Cases followed:

CIT Vs. Nirav Modi – 2016-TIOL-1296-HC-MUM-IT

CIT Vs. Pr.CIT Vs. Veedhata Tower Pvt. Ltd.- 2018-TIOL-766-HC-MUM-IT

CIT Vs. Dr. Arvind S. Phake – Bombay High Court, ITA No.139  of 2015 

ORDER

Per: Sandeep Gosain:

This is an appeal by the Revenue against the order of the Commissioner of Income Tax (Appeals)-33, Mumbai, dated 02-01-2018 for the AY.2013-14. Assessee raised cross objections against the said appeal. 2. First of all, we will take up the Revenue’s appeal. The Revenue has raised the following grounds:

“On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in:

1 “On the facts and circumstances of the case and law, the Ld. CIT(A) has erred in deleting the addition made on account of loan taken by the assessee from M/s. Golden Agro Products Pvt. Ltd., of Rs. 60,00,000/- without appreciating the A.O’s findings that even the existence of the company could not be proved, meaning thereby that it is a shell company. “

2 “On the facts and circumstances of the case and law, the Ld. CIT(A) has erred in deleting the disallowance of interest expenses of Rs.3,60,000/- without appreciating the fact that if the main loan has been given by a company where existence could not be proved, the consequential interest on the said loan would automatically stand disallowed. “

3 “On the facts and circumstances of the case and law, the Ld. CIT(A) has erred in holding that the A.O. has failed to establish that M/s. Golden Agro Products Pvt Ltd is shell company, notwithstanding that there is information (which subsequently came on record) to show that Shri Jitendra Salecha, Director of the impugned company, admitted on oath before DDIT(Inv), Unit-7 (3), Mumbai that he has floated various companies, including M/s. Golden Agro Products Pvt Ltd for providing accommodation entries.

4 “On the facts and circumstances of the case and law, the Ld. CIT(A) has erred in ignoring the findings given by the A.O. in the remand report in respect of the creditworthiness of the lender and genuineness of the transactions.”

5 “On the facts and circumstances of the case and law, the Ld. CIT(A) is justified in deleting the addition of Rs.1,84,63,421/- under the head capital gain without appreciating the action of the A.O. regarding surrender the tenancy rights of Rs. 1,84,63,421/- as capital gains in the hands of the assessee for the A.Y. under consideration.

6 “The appellant prays that the order of Ld.CIT (A) on the above grounds be set aside and that of the Assessing Officer be restored.”

7 “The appellant craves leave to amend or to alter any ground or add a new ground, which may be necessary”.

3. Brief facts of the case are that, the assessee is an individual, deriving income from salary, house property, business income and income from other sources. The assessee e-filed his return of income on 13-09-2013 declaring total income at Rs.16,20,580/-. Subsequently, the case was selected for scrutiny and after sending the statutory notices and seeking reply from the assessee, the order of assessment was passed by the Assessing Officer on 28-03-2016, thereby making additions under different heads.

3.1. Aggrieved by the order of Assessing Officer, the assessee preferred an appeal before the CIT(A). After considering the case of both the parties, Ld.CIT(A) partly allowed the appeal of assessee.

3.2 Aggrieved by the said order of Ld.CIT(A), the revenue preferred the present appeal before us, by raising the grounds of appeal, herein above.

4. Ground Nos. 1 to 4 raised by the Revenue are in connection with challenging the order passed by the CIT(A), in deleting the additions made on account of loan taken by the assessee from M/s. Golden Agro Products Pvt. Ltd. Hence, we thought that it is fit to dispose-of these grounds by the present common discussion in this order.

4.1. Ld. DR appearing on behalf of the Revenue, submitted that the Ld.CIT(A) has erred in deleting the addition made on account of loan taken by the assessee from M/s. Golden Agro Products Pvt. Ltd., of Rs.60,00,000/-, without appreciating that the Assessing Officer’s finding that even the existence of the company could not be proved that M/s. Golden Agro Products Pvt. Ltd., was a shell company. It was further submitted that the Ld.CIT(A) has also erred in deleting the disallowance of interest expenses of Rs.3,60,000/-, without appreciating the fact that if the main loan had been given by a company, whose existence could not be proved, consequentially, the interest on the said loan would automatically stand disallowed. Ld.DR further submitted that Assessing Officer during the course of assessment, while carrying out explanation, had established that M/s. Golden Agro Products Pvt. Ltd., was a shell company, but even then, Ld.CIT(A) had erred in holding that the Assessing Officer had failed to establish that M/s. Golden Agro Products Pvt. Ltd., is a shell company, notwithstanding the fact that Shri Jitendra B. Salecha, Director of the said company himself admitted before the DDIT(Inv.) Unit-7(3), Mumbai that he has floated various companies, including M/s. Golden Agro Products Pvt. Ltd., for providing accommodation entries. Thus, once there was admission on the part of the said Director of the company himself, in that eventuality, Ld.CIT(A) should have sustained the addition.

4.2. On the other hand, Ld.AR relied upon the order passed by the Ld.CIT(A) and reiterated the same argument, which was raised by him before Ld. CIT(A). 4.3. We have heard both the parties and perused the judgments cited by the parties and orders passed by the Revenue authorities. Before we decide the merits of these grounds, it is necessary to evaluate the order passed by the Ld.CIT(A), while dealing these grounds. Ld.CIT(A) has dealt with these grounds in para No.5 (Para Nos. 5.1 to 5.14). However, operative portion of the same is discussed in paras 5.6 to 5.14 and the same are reproduced herein below:

“5.6 I have carefully gone through the impugned assessment order, submissions of the appellant, the remand report of the AO and reply by the appellant, and the material available on record. My observations are as under: 5.7 Though not specifically quoted the relevant section under which the disallowance is made, it is observed from the assessment order that the AO has treated the loans taken from M/s. Golden Agro Products Pvt. Ltd. as unexplained credit, which falls u/s 68 of the IT. Act. It is therefore important to understand the position of law with respect to treating any entry/cash credit as unexplained u/s 68 that has evolved from a catena of judgments delivered by High Courts and Tribunals. The Hon’ble ITAT Mumbai in the case of ITO vs. Anant Shelters Pvt. Ltd.(2012) 20 Taxmann.com 153 has enumerated certain principles which are extremely useful for the issue in hand. It has been stated in the said judgment that over the years, law regarding cash credits has evolved and has taken a definite shape. A few aspects of law u/s 68 can be enumerated as- 1. Sec. 68 can be invoked when there is a credit of amounts in the books maintained by the assessee, such credit is a sum of money during the previous year and either the assessee offers no explanation about the nature and source of such credits or the explanation by the assessee in the opinion of the AO is not satisfactory. 2. The opinion of the AO for not accepting the explanation offered by the assessee as not satisfactory is required to be formed objectively with reference to the material on record. 3. Courts are of the firm view that the evidence produced by the assessee cannot be brushed aside in a casual manner. 4. The onus of proof is not static. The initial burden lies on the assessee to establish the identity and the credit worthiness of the creditor as well as the genuineness of transaction. 5. The identity of creditors can be established by either furnishing their PANs or assessment orders. The genuineness of the transaction can be proved if it was shown that the money was received by a/c payee cheque. Creditworthiness of the lender can be established by attending circumstances. 5.8 From the assessment order, it is observed that the AO has formed his view about the bogus nature of the loans taken by the appellant from M/s. M/s. Golden Agro Products Pvt. Ltd., as the said company could not be located at the said address. Further, the appellant could not supply any document respect to the said company at the time of assessment proceedings. 5.9 However, during the remand proceedings, following documents were produced by the appellant to establish genuineness of the loans-

(i) Confirmation of loan as obtained from Golden Agro Products Pvt. Ltd. of Rs.60,00,0007- by cheque on 26.09.12; on the said amount Rs.3,60,0007- is being credited as interest for the period. (ii) Golden Agro Products Pvt. Ltd. is duly assessed under PAN:AACG9127G. (iii) Confirmation for the period ended 31.3.14 reflecting credit of interest on the said loan amount of Rs.4,80,000/- making the total outstanding as on 31.3.14 at Rs.68,40,000/-. (iv) Repayment of said amount by the appellant by cheques on different dates as per confirmations i.e., Rs.10,00,000/- on 05.01.2015 ; Rs. 10,00,000/- on 07.01.2015; Rs.30,00,0007- on 09.01.2015 and Rs.18,40,000/- on 25.03.2015. (v) A bank statement of M/s Golden Agro Products Pvt. Ltd. with Axis bank reflecting payment by RTGS to the appellant on 26.9.12 of Rs.60,00,000/-. (vi) Copy of audited accounts of M/s Golden Agro Products Pvt. Ltd. for the period ending 31.03.2013. (vii) The creditor company changed its address from B.S. Road, Dadar to Dahisar, as is apparent from copy of Form no. 18 as filed by the said company with Registrar of Companies w.e.f. 01.12.2012. Moreover, the administrative office of the company is at 203, Sidat Mansion, 17/17A, 2nd Marine Street, Mumbai 400 002.

(viii) The financials of the company as reflected in audited accounts are

A.Y.TurnoverIncome as per P & L A/c
12-1311,30,56,08139,61,068
13-1420,16,79,38016,10,878
14-1512,92,28,99125,96,960
15-164,96,08,94038,48,406
16-176,16,59,59620,64,349

5.10 If the above referred principles laid down by the Courts are applied to the facts of the case under consideration, it can be seen that the identity of the creditors has been established by filing PAN and complete address of M/s Golden Agro Products Pvt. Ltd. The genuineness of the transaction is established from the fact that both the acceptance and repayment of loan have been through banking channels as evident from the bank statements. The creditworthiness of the lender is also established from the audited accounts, ledger a/c and bank statements, which were filed before the Assessing Officer during appellate proceedings. 5.11 It is further observed that during the remand proceedings, the AO recorded the statement of Mr. Jitendra B. Salecha, Director of M/s Golden Agro Products Pvt. Ltd. u/s 131 on 07.09.2017. On going through the statement of Mr. Jitendra Salecha, it can be inferred that the registered office of M/s. Golden Agro Products Pvt. Ltd. has been changed twice and Form No. 18 was filed with the ROC. In reply to question no.14 and 15. Mr.Jitendra Salecha has explained that the company was regularly advancing surplus funds as loans to private parties for earning interest income for the company. The company had advanced loan during the year to the appellant, from refund of loan received from Mr. All Mohammed Qasim Duberia to whom the company had advanced the loan in May, 2012. An affidavit was also submitted to this effect. 5.12 No doubt the AO has commented upon the financials of the Company in extending the loan of Rs. 60 lac to the appellant but he has failed to establish that M/r. Golden Agro Products Pvt. Ltd. is a shell company. In my considered opinion, on the given set of facts and circumstances, loans received from this company cannot be doubted as bogus. The appellant on his part has provided ample evidences which has been detailed in the preceding paragraphs. Also, there are no cash deposits or cash withdrawals in the bank accounts either by the appellant or the director of the company. These aspects are also confirmed by the director of the company during the remand proceedings. The AO has not highlighted any anamoly in the bank transactions of the company while granting loans to the appellant. 5.13 There are plethora of judgements which do not justify such an addition as attempted by the Assessing Officer in the instant case viz.,

1. DCIT Vs. G.V.S. Investment Pvt.Ltd.(2005) 992 TTJ 706 (Delhi), 2. Uma Polymers Vs. DCIT (2006) 284 ITR 80-I (Jodhpur)(TM). 3. Acchelal Shah Vs. ITO(2009) 121 TTJ (Kol.) 695-700 4. Commissioner of Income Tax Vs. Lovely Exports(P) Ltd. [216 CTR 195(SC)] = 2008-TIOL-238-SC-IT5. CIT v. Stellar Investments Ltd. (2001)251 ITR 263/115 Taxman 99(SC) 6. CIT vs. M/s. Creative World Telefilms Ltd. (Earlier known as Link International Services Pvt. Ltd.) dated 12.10.2009 in ITA No.2182 of 2009 (Bombay H.C) 7. CIT Vs. Sophia Finance Ltd. [(1994) 205 ITR 98)] (Delhi H.C) = 2003-TIOL-277-HC-DEL-IT8. CIT Vs. Dolphin Canpack Ltd. (2006)283 ITR 190] (Delhi H.C.)9. CIT Vs. Divine Leasing and Finance Ltd. (299 ITR 268)(Delhi H.C) = 2008-TIOL-118-SC-IT

10. CIT Vs. AKJ Granites (P) Ltd. 301 ITR 208

5.14 Looking to the totality of the facts and circumstances of the issue involved, applicable law and on the basis of discussions mentioned above, addition of Rs.60,00,000/- on account of unexplained credit, is not justified and hence deleted. Thus, ground of appeal no. 2 is allowed”.

4.4. After having gone through the facts of the present case and considering the order passed by the Revenue authorities, we find that the Ld.CIT(A) while deciding these grounds, had taken into consideration the remand report sought during the appellate proceedings and the conclusion drawn and after appreciation remand report, which is reproduced herein above at para 5.9.

4.5. After taking into consideration the facts, we find that the Assessing Officer was under an obligation to consider the identity of the creditors, creditworthiness and genuineness of the transactions. As far as the genuineness of the creditors is concerned, after perusing the record, we find that the same was established by filing the PAN and complete address details of M/s. Golden Agro Products Pvt. Ltd. As far as genuineness of the transaction is concerned, the same was established from the fact that both the acceptance and repayment of the loan had been through banking channels as evident from the bank statement. Lastly, creditworthiness of the lender is concerned, the same was established from the audited accounts, ledger accounts and bank statement, which were filed during the course of appellate proceedings. Apart from that, during the proceedings, Assessing Officer had recorded a statement of Shri Jitendra B. Salecha, Director of M/s. Golden Agro Products Pvt. Ltd., concluding u/s. 131 of the Act. On going through the said statement, we also noticed that M/s. Golden Agro Products Pvt. Ltd., had changed twice their address and Form 18 was filed with the ROC. Even the said Director of the company, Shri Jitendra, during the course of investigation, had explained that the company was regularly advancing surplus funds as loans to the private parties for earning interest income for the company. The company had advanced loans during the year to the assessee from refund of loan received from M/s.Ali Mohammed Qasim Duberia, whom the company had advanced the loans in May, 2012. In this respect, an affidavit had also been filed by the said person. Even otherwise the loan received from the company cannot be doubted as bogus because the AO had failed to establish that M/s Golden Agro Products Co. is a shell company. The AO could not prove or record that there was cash deposits or cash withdrawals in the bank account either by the assessee or the directors of the company.

4.6 We are of the view that in the case of loan from creditors is concerned, the same could not be enquired by the Assessing Officer as the enquiry of source of source is not the requirement of law as had been held in the case of CIT Vs. Nirav Modi [390 ITR 292] = 2016-TIOL-1296-HC-MUM-IT and CIT Vs. Pr.CIT Vs. Veedhata Tower Pvt. Ltd., [403 ITR 415] = 2018-TIOL-766-HC-MUM-IT. Although Assessing Officer had commented upon the financials of the company, who had failed to establish on record that the said company i.e., M/s. Golden Agro Products Pvt. Ltd., was a shell company and he also not brought any anomaly in the banking transactions of the company, while granting loan to the assessee. Thus, when we have upheld that the loan taken from M/s. Golden Agro Products Pvt. Ltd cannot be treated as bogus. Thus the interest paid on such loan cannot be disallowed.

4.7 No new facts and circumstances have been brought before us in order to controvert or rebut the judicious findings so recorded by Ld. CIT(A). In these circumstances, we find no reasons to interfere with the findings given by the Ld.CIT(A). These grounds raised by the Revenue in this regard are dismissed.

5. As far as Ground No.5 is concerned, it relates to challenging the order of the CIT(A), deleting the additions under the head ‘capital gains’.

5.1. We have heard both the parties and perused the judgments cited and orders passed by the Revenue authorities. Before we decide the merits of this ground, it is necessary to evaluate the order passed by the Ld.CIT(A), while dealing this ground. Ld.CIT(A) has dealt with this ground in para 7 of his order (paras 7.1 to 7.8). However, operative portion of the same is discussed in paras 7.4 to 7.8 and the same are reproduced herein below:

“7.4 I have carefully gone through the impugned assessment order, submissions of the appellant and the material available on record.

7.5 The facts in brief are that the appellant entered into an agreement on 17.09.12 with M/s. Unique Construction, for redevelopment of the tenanted property at Regi Annexe, 46, MMC Road, Mahim (W), Mumbai 400 016. There were 8 flats in the said building being occupied by 8 tenants. The flat no.7 on the 3rd floor was in possession of the appellant, for which he was paying monthly rent of Rs.500/-. As against the consideration declared at Rs.12,00,000/-, the Stamp Duty Authorities valued it at Rs.1,84,63,500/-. As per the clause- 3 of the agreement, all the tenants would continue to stay in their premises till construction of the new building was completed for occupation. The clause- 4 provided that the new building was to be constructed in the space available behind the existing building, without causing any hardship or harassment to the current tenants. According to the clause- VI, the new building would be ready within 3 years from the receipt of commencement certificate. It is highlighted that the clause- 14(M) has specified that the owners have agreed that during the operation of the agreement and till the tenants were put in the possession of the alternate accommodation on ownership basis, the tenancy rights of the tenants/occupants including the tenant/occupant herein, shall be treated as continued intact, secured and undisturbed as covered by the Maharashtra Rent Control Act, 1999. It was also made clear in the agreement that there was no question of providing temporary alternate accommodation or transit accommodation to the tenants/occupants because the owners will not be shifting and/or no, taking possession of their tenanted premises during construction of the new building.

7.6 Based on the above facts, the Ld. AR has argued that upon perusal of various terms of the agreement it is clear that the appellant continued as tenant in the old property till alternate accommodation got constructed and possession of the same was given to the appellant. In this regard, I agree with the Ld. AR that the terms and conditions of the agreement clearly reflects that there was no surrender of tenancy on the date of agreement i.e. 17.09.2012. As such the appellant continued to pay rent under the terms of agreement. It is brought on record that the appellant has continued to pay the rent for subsequent periods. She paid rent of Rs.6,000/- pm for the period Sept., 2012 to August, 2013 on 13.11.12 and for the period Sept., 2013 to Aug., 2014 on 29.12.13. Thus there is no surrender or transfer of tenancy rights under the agreement under reference. The copies of rent receipts are also submitted during the appellate proceedings, which were forwarded to the AO for verification during the remand proceedings. No adverse finding has been given by the Assessing Officer on it.

7.7 Hence, It is clear that as per agreement the obligation of the appellant was to hand over the possession of its tenanted flat to the Developer, only in exchange of a flat in the redeveloped new building. The handing over of the flat is completed only when the redeveloped building was constructed and possession is given to the appellant. Only when the appellant gets possession of the new flat in the redeveloped building, he loses the rights as tenant in the tenanted property. Hence, the instant case cannot be treated as that of transfer as defined u/s. 2(47) of the I.T.Act. Once there is no transfer, there is no question of invocation of the provisions of Sec.50C of the Act. Recently, Hon’ble Bombay High Court in the case of CIT vs Dr.Arvind S. Phake has held that immoveable property can be regarded to have been transferred on the date of execution of the development agreement and irrevocable general power of attorney only if the terms indicate that complete control is given to the developer. If the entire consideration is not received by the assessee and physical possession of the property is not parted with, there is no transfer under section 2(47)(v). Apart from that it is observed that Hon’ble jurisdictional High Court has taken a consistent stand that only upon receipt of the possession of the new property, the transfer will be treated as complete. In the instant case, neither the new property was received by the appellant nor has he parted with his tenancy right/tenanted property. The appellant continued to be the tenant of the property, which has been established by payment of rents subsequent to the exclusion of the agreement with the Developer.

7.8 Considering the totality of the facts and circumstances of the issue involved, this cannot be treated as a case involving “transfer” as per section 2(47) of the I.T. Act. Once there is no surrender of tenancy right, the action of the AO in computing the valuation of the tenancy right at Rs.1,84,63,421/- is not justified. As such, the addition of Rs.1,84,63,421/- under the head capital gain is deleted. The ground of appeal number 4 is accordingly, allowed”.

5.2. After having gone through the facts of the present case and hearing the parties at length, we find that the assessee entered into an agreement dt.17-09-2012 with M/s.Unique Construction for re-development of the tenanted property at Regi Annexe, 46, MMC Road, Mahim(W), Mumbai, which were 8 flats in the said building being occupied by 8 tenants. Flat No.7 on the 3rd floor was in possession of the assessee, for which he was paying monthly rent. As per Clause-3 of the said agreement of the tenants, all the tenants would continue to stay in their premises till construction of the new building was completed for occupation. The Clause-4 provided that the new building was to be constructed in the space available behind the existing building, without causing any hardship or harassment to the current tenants. According to Clause-12, the new building would be ready within 3 years from the receipt of the commencement certificate. We have also noticed that as per the terms of the agreement, the owners have agreed that during the operation of the agreement and till the tenants were put in the possession of the alternate accommodation on ownership basis, the tenancy rights of the tenants/occupants including the tenant/occupant herein, shall be treated as continued intact, secured and undisturbed as covered by the Maharashtra Rent Control Act, 1999. Above all these facts, Ld.CIT(A) appreciated the arguments of the assessee and the stand taken by the assessee that assessee continued as a tenant in the old property as per the terms and conditions of the agreement till alternate accommodation is got constructed and possession of the same was given to the assessee. In this regard, the terms of the agreement clearly reflects that there was no surrender of tenancy on the date of agreement i.e., 17-09-2012, because as per the clauses of the agreement, the obligation of the assessee was to hand over the possession of its tenanted flat to the developer, only in exchange of a flat in the re-developed new building. The handing over of the flat would be completed only when the redeveloped building was constructed and possession is given to the assessee. Thus in this way, only when the assessee gets possession of the new flat in the re-developed building, then he loses the rights as tenant in the tenanted premises. Hence, considering those facts, it cannot be treated as that of transfer as defined u/s. 2(47) of the Income Tax Act. Once there is no transfer, there is no question of invocation of the provisions of Section 50C of the Act. Recently, the Hon’ble Bombay High Court in the case of CIT Vs. Dr.Arvind S.Phake has held that – immoveable property can be regarded to have been transferred on the date of execution of the development agreement and irrevocable general power of attorney only if the terms indicate that complete control is given to the developer. But as per the facts of the present case, neither the new property was received by the assessee nor parted with his tenancy right/tenanted property. The assessee continued to be the tenant of the property, which has been established by payment of rents subsequent to the execution of the agreement with the developer. Thus, considering the totality of the facts and circumstances, Ld.CIT(A) also rightly concluded that this cannot be treated as a case involving ‘transfer’ as per Section 2(47) of the Act. Therefore, we are also of the view that once there is no surrender of tenancy rights, the action of the Assessing Officer in computing the valuation of the tenancy right is not justified. Hence, we uphold the action of Ld.CIT(A) in deleting the addition under the head „capital gain’. Hence, this ground raised by the Revenue is dismissed.

6. In the result, the appeal of Revenue is dismissed.

7. Assessee has filed cross-objection with regard to taxing income from house property based on estimated rent, instead of the amount, which was offered to tax by him.

8. We have heard the counsels for both the parties at length and we have also perused the material placed on record, we find from the records that the assessee had received rental income regarding which, the AO had sought proof of rental income receipt and proof of deduction claimed for the same. In this case, the assessee had placed on record copy of leave and licence agreement of Rs.35,000/-. AO assessed deemed rent income of Rs. 30,000/- per month from the flat at Mahim and Rs. 15,000/- per month from a room at Mahim aggregating at RS. 5,40,000 and thus made additions.

8.1 Primarily, the said additions were made by the AO on the basis of leave and licence agreement filed by the assessee showing monthly rental income at Rs. 35,000/-. The said estimation was found justified by Ld. CIT(A) by considering the location of the property. Since AO had not carried out any enquiries to establish that the lumpsum amount of Rs. 2,20,000/- offered by the assessee is not the rental income. Thus directed the AO to give set off of Rs. 2,20,000/- already disclosed by the assessee from the rent being estimated of Rs. 5,40,000/- and in this way, restricted the additions at Rs. 3,20,000/- and granted benefit of statutory deduction u/s 24B of the Act on the rental income.

8.2 No new facts and circumstances have been brought before us in order to controvert or rebut the judicious findings so recorded by Ld. CIT(A). In these circumstances, we find no reasons to interfere with the findings given by the Ld.CIT(A). Therefore this ground raised by the assessee is dismissed.

9. In the result, the appeal of Revenue and cross objection filed by the assessee are dismissed with no order as to cost.

(Order pronounced in the open court on 20.06.2019)

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