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 Assistant Commissioner Assessment Iv Trade Tax, Varanasi & Ors. Vs M/s Auto Centre
 Ansal Housing And Construction Ltd. Vs Assistant Commissioner Of Income Tax & Anr.
 All India Federation of Tax Petitioner(s) Vs Union of India and Another
 Akansha Vs Jignesh Koshti & Anr.
 In Re The Indian Express And The Tribune Dated 2nd May 2018 Regarding Kasauli Incident
 Badri Vishal Pandey & Ors. Vs Rajesh Mittal & Ors.
 Afshan Pracha Vs Union Of India & Ors.
 Abdus Shafi Siddiqui Vs Sanjiv Singh
 Aarifhussain Vs The State Of Gujarat & Anr.
 All India Federation of Tax Practitioners Vs Union of India and Another
 Air India Ltd. Vs Commissioner Of Service Tax

February, 21st 2013
%                                          Judgment delivered on: 18.02. 2013

+       ITA 1089/2011
+       ITA 1090/2011

        CIT                                                        ..... Appellant

        DISCOVERY ESTATES PVT. LTD.                                ..... Respondent

+       ITA 1097/2011

        CIT                                                        ..... Appellant

        DISCOVERY HOLDINGS PVT. LTD.                               ..... Respondent

Advocates who appeared in this case:
For the Appellant   : Mr N. P. Sahni, Sr. Standing Counsel with Mr Ruchesh Sinha,
                      Jr. Standing Counsel.
For the Respondents : Mr G. C. Srivastava with Ms Preeti Bhardwaj, Advocates.




        These three appeals relating to two different assessees were heard

together since common issues are involved and, therefore, a single order

is passed for the sake of convenience.

ITA 1089/2011,1090/2011 & 1097/2011                                       Page 1 of 20
2.      The appeals are by the Revenue.          ITA Nos.1089/2011 and

1090/2011 relate to the same assessee i.e. Discovery Estates Pvt. Ltd. and

ITA No.1097/2011 relates to another company of the same group by

name Discovery Holdings Pvt. Ltd.          On 13.02.2012, the following

substantial questions of law were framed by this Court in all the three


        "(i) Whether the Income Tax Appellate Tribunal was right
        in holding that the rental income should be assessed under
        the head "income from business" and not under the head
        "income from house property"?
        (ii) Whether the Income Tax Appellate Tribunal was right
        in holding that the sale consideration disclosed by the
        assessee on sale of shops should be accepted?
        (iii) Whether the findings recorded by the Income Tax
        Appellate Tribunal in respect of the question number (ii) are

3.      It is common ground that the first substantial question of law is to

be answered in the negative, in favour of the Revenue and against the

assessee in view of the judgment of this Court in CIT Vs. M/s Ansal

Housing Finance and Leasing Co. Ltd. & Ors. decided on 31.10.2012 in

ITA 18/1999.

4.      So far as the other two substantial questions of law are concerned,

they are connected with each other. The brief facts in this connection

may be noticed. We are taking up first the facts in ITA No.1089/2011.

ITA 1089/2011,1090/2011 & 1097/2011                               Page 2 of 20
The assessee is engaged in the business of construction of commercial

complexes. In the accounting year ended on 31.03.2006 relevant to the

assessment year 2006-07, it had constructed 67081 sq. ft. area of a

shopping mall called City Square Mall. The construction cost including

the land cost amounted to `5,456/- per sq. ft. The shops in the complex

were sold. In respect of 7 shops, the Assessing Officer noticed that the

assessee had booked sales at `6,000/- per sq. ft. in the ground floor in the

year 2003 whereas in the year 2005, shops in the same floor were booked

at the rate of `3,390/- per sq. ft. One of the shops was even found to have

been sold at the rate of `2,300/- per sq. ft. which was even less than the

land cost of `2,332/- per sq. ft. The AO further noted that even in respect

of the same floor, different rates were being charged from different

customers. The following table sets out the relevant details:-

         Date of             Floor      Name of       Area Sold   Rate
         agreement                       Buyer                    Sq. ft.

         12.05.03         GF-16       Anju Arora        1394      6000

         02.09.03         UG-16       Promila Arora    1882.17    4000

         06.10.03         UG-17       Bimal Chawla     1133.49    4000

         05.01.05         GF-ATM-5 Sanjay Kumar        252.17     4748

         27.01.05         GF-ATM-2 Vandana              295       3390

ITA 1089/2011,1090/2011 & 1097/2011                                         Page 3 of 20
         04.10.05         TF-05       Revie       2736.83      2300

         07.12.05         GF-ATM-4 Laxmi           275.8      5438.72

5.      On the basis of the above findings, the Assessing Officer came to

the conclusion that the assessee had suppressed the sale price and had

booked losses which was not justified. According to him, no person

would sell the property at prices even below the cost if he wishes to

remain in business. He, therefore, disallowed the loss of `1,31,60,475/-

shown by the assessee on sale of shops. This figure was arrived at by

deducting the cost of `4,47,11,920/- from the sale price of `3,15,51,445/-.

6.      On appeal, the assessee submitted as follows:-

        (a)      The rate at which space in a shopping mall is sold depends

                 on various factors such as time, location, floor, size,

                 approach, demand and supply etc. Therefore, there cannot

                 be a uniform sale price. By way of example, it was pointed

                 out that the shop sold to Anju Arora was in the ground floor

                 and had the best approach and was ideally located as

                 compared to the other shops.   The buyer was also in great

                 hurry as he realised the advantages.       The assessee took

ITA 1089/2011,1090/2011 & 1097/2011                                   Page 4 of 20
                 advantage of these factors and could strike a better bargain.

                 Thereafter for four months, no shop could be sold and,

                 therefore, prices had to be reduced.

        (b)      In the case of Promila Arora and Bimla Chawla, the prices

                 were lower than in the case of Anju Arora because the shops

                 were located in the upper floor.       In the case of Sanjay

                 Kumar, the price was higher because the shop was located in

                 the ground floor, though it could not fetch the same price as

                 in the case of sale to Anju Arora because of less

                 advantageous location. The sale to Vandana Arora was at a

                 price lower than the price paid by Sanjay Kumar as this

                 space was not properly connected in the sense that there was

                 only one entry from outside.

        (c)      The shop sold to Revie was in the third floor and was of a

                 large area and, therefore, could fetch only `2,300/- per sq. ft.

        (d)      By December, 2005, the project was completed and the cost

                 was known to the assessee and, therefore, a shop of a small

                 size in the ground floor was able to fetch `5,438/- pr sq. ft.

                 which is equal to the cost of land and construction.

ITA 1089/2011,1090/2011 & 1097/2011                                     Page 5 of 20
        (e)      After December 2005 till March 2006, there was no sale of

                 shops which shows that the demand for shopping space

                 could widely fluctuate.

        (f)      There was no evidence brought on record to establish any

                 understatement of sale consideration.            No independent

                 inquiries were made by the Assessing Officer to bring in

                 comparable cases of sale at higher prices.

        (g)      The Assessing Officer, if he had suspected the declared sale

                 prices, ought to have raised queries but he did not do so.

7.      On consideration of the above submissions, the CIT (Appeals) held

that there was no justification for disallowing the loss on the sale of

shops. He accordingly directed the Assessing Officer to allow the loss.

8.      The Revenue carried the matter in appeal before the Income Tax

Appellate Tribunal in ITA No.3617/DEL/2009. The Tribunal took up the

appeals of the Revenue in the case of the assessee for the assessment year

2007-08 (ITA No.3495/DEL/2010) as also in the case of M/s. Discovery

Holdings        Pvt.     Ltd.     for   the   assessment   year   2007-08     (ITA

No.3431/DEL/2010) and disposed of all the three appeals by a common

order dated 25.02.2011. The issue relating to the disallowance of loss on

ITA 1089/2011,1090/2011 & 1097/2011                                    Page 6 of 20
the sale of shops in the case of Discovery Estates Pvt. Ltd. for the

assessment year 2006-07 and the deletion of the addition of

`1,72,80,780/- made by the AO for the assessment year 2007-08 as well

as the deletion of the addition of `31,32,992/- made by the Assessing

Officer on similar grounds in the case of M/s. Discovery Holdings Pvt.

Ltd. for the assessment year 2007-08 were considered together from

paragraph 15 of the order. After considering in detail the facts and the

rival submissions, the Tribunal recorded the following findings in

Paragraph 19 of its common order:-

        (a)      The assessee is maintaining proper books of accounts and

                 the Assessing Officer has not pointed out any specific

                 defects therein.

        (b)      The view of the Assessing Officer that there can be no loss

                 in real estate business and the assessee cannot sell the shops

                 below cost price is not correct, having regard to the facts.

        (c)      The assessee has given reasons as to why it booked sales at

                 the initial stage at a lower price.     It was found that the

                 assessee could not book a single shop for sale in the year

                 2004 and during the period from May 2003 to December

ITA 1089/2011,1090/2011 & 1097/2011                                   Page 7 of 20
                 2004, it could book only five shops for sale. These factors

                 suggest that in the beginning of the business, the assessee is

                 forced to offer some concession in the price to draw custom.

        (d)      The Assessing Officer could have brought evidence on

                 record to show that any purchaser had actually paid a price

                 higher than the price shown in the books. No such evidence

                 was forthcoming. There was not even material to doubt the

                 sale transactions.

        (e)      It is not permissible for the Assessing Officer to rely on the

                 perceived general market conditions; the price shown by an

                 assessee cannot be doubted for the reason that in the opinion

                 of the Assessing Officer, the real estate prices did not show

                 any downward trend.

        (f)      The market prices can at best be a starting point for further

                 inquiry but they cannot be substituted for the price shown by

                 the assessee in the books of accounts.

On the basis of the aforesaid findings, the Tribunal upheld the order of

the CIT (Appeals). It may be noted that since the CIT (Appeals) had

deleted the additions in all the three cases, the Tribunal upheld the

ITA 1089/2011,1090/2011 & 1097/2011                                  Page 8 of 20
decision of the CIT (Appeals) in all the three appeals filed by the

Revenue for identical reasons.

9.      For the sake of completeness, we may notice the facts relating to

the assessment year 2007-08 in the case of M/s. Discovery Estates Pvt.

Ltd. in ITA No.1090/2011 and in the case of M/s. Discovery Holdings

Pvt. Ltd. in ITA No.1097/2011. In the case of Discovery Estates Pvt.

Ltd., the Assessing Officer, on a scrutiny of the sale agreements filed

before him and the copy of the accounts noted that though the total cost

of construction, including the land cost, came to `5,456/- per sq. ft., the

assessee had booked sales in the first floor at `5,000/- per sq. ft and sold

the third floor shop to M/s. Vatika Hospitality Pvt. Ltd. at `5,412/- per sq.

ft.   From these figures, he drew the inference that the assessee had

suppressed the sale price. According to him, it was not acceptable that

the shops could be sold at the rates which are less than the total cost of

construction. Moreover, some of the shops sold by the assessee were to a

company by name M/s. Sewa Buildcon Pvt. Ltd., which is a sister

concern of M/s. Sewa International Fashion Ltd., which was a partner of

the joint venture under which the shopping mall namely, City Square

Mall was constructed. There was no registered sale deed for the sale of

ITA 1089/2011,1090/2011 & 1097/2011                               Page 9 of 20
shops to Sewa Buildcon Pvt. Ltd; there was only a simple agreement.

The Assessing Officer, in the absence of a registered sale document, took

the view that the rent capitalization method will be appropriate to

determine the fair market value of the properties. He calculated the fair

market value of the property in accordance with the method prescribed by

Rule 1 BB of the Wealth tax Rules, 1957 under the rent capitalization

method and arrived at the fair market value of the rented property which

was sold to Sewa Buildcon Pvt. Ltd. during the year at `3,84,86,160/-.

The difference between the fair market value arrived at as above and sale

price disclosed by the assessee came to `1,72,80,780/- which was added

as sale consideration received outside the books of accounts.             This

addition as noted earlier was deleted by the CIT (Appeals) whose

decision was confirmed by the Tribunal.

10.     In the case of Discovery Holdings Pvt. Ltd., the assessee

constructed a mall known as Mega City Mall. A total area of 201127 sq.

ft. was completed in the relevant year, with 16744 sq. feet area under

construction. The cost of the land and the construction cost was declared

at `3,023/- per sq. ft. As in the other case, in this case also, the Assessing

Officer noticed variation in the prices charged from different customers,

ITA 1089/2011,1090/2011 & 1097/2011                                Page 10 of 20
which are all noted in Paragraph 6 of the assessment order and came to

the conclusion that these variations clearly showed that the assessee had

suppressed the sale and booked a loss. For reasons that are similar to the

reasons given in the case of M/s. Discovery Estates Pvt. Ltd. for the

assessment year 2006-07 (ITA No.1089/2011), the Assessing Officer

made an addition of `31,32,992/- to the book results.                   In doing so, he

picked out only five properties for special treatment and made the

addition in the following manner:-

           Particular    Area         Rate/sq. ft.   Value       Value @
                         (Sq.ft.)                                3750/- = per
                                                                 sq. ft.

           SF-11         738.64          2750        20,31,260   27,69,900

           SF-10         738.64          2750        20,31,260   27,69,900

           SF-08         738.64          3001        22,17,000   27,69,900

           SF-09         738.64          3001        22,17,000   27,69,900

           SF-15         813.35          3074        25,00,000   30,49,612

                                                     10996520    14129512

                                    Difference `31,32,992/- =

It will be noticed from the above table that the Assessing Officer adopted

the sale price of `3,750/- per sq. ft. as against the declared sale

consideration and arrived at the addition. As noted earlier, the addition

ITA 1089/2011,1090/2011 & 1097/2011                                             Page 11 of 20
was deleted by the CIT (Appeals), whose decision was confirmed by the


11.     The main contention taken up on behalf of the Revenue was that

the CIT (Appeals) as well as the Tribunal did not examine the assessment

orders in the manner expected of them and both these authorities have

deleted the additions made by the Assessing Officer without proper

reasons. It was submitted that there was no satisfactory answer to the

query raised by the Assessing Officer as to why and how the properties

could be sold at a price which was lesser than the cost of construction

(including land cost). It was further submitted that a part of the shops in

the City Square Mall was sold by the assessee Discovery Estates Pvt. Ltd.

to a sister concern at low prices and these sales were suspect. There

were, it is contended, no registered sale deeds and the shops were being

sold on the basis of unregistered agreements and thus there was no

scrutiny of the sales by the registering authorities and this aspect was

overlooked by the CIT (Appeals) as well as the Tribunal. It was thus

contended that the findings recorded by the Tribunal were vulnerable to

the criticism of being perverse.

ITA 1089/2011,1090/2011 & 1097/2011                              Page 12 of 20
12.     On behalf of the assessee, it was submitted that the features noticed

by the Assessing Officer in the course of the assessment proceedings such

as absence of registered sale documents, sale of shops to a sister concern,

difference in sale prices of the shops etc. have all been properly explained

by the assessees and that at best, these features can only be a starting

point for further inquiry and so long as there was no evidence brought on

record to show suppression of the sale prices, no addition can be made.

It was submitted that the assessing authority has no power to disturb the

sale price shown except in three cases. The first is under Section 145 of

the Act. Where the sale of properties is part of the business of the

assessee, the Assessing Officer, if he is of the opinion that the accounts

are not correct and complete, may proceed to reject the books of accounts

and thereafter make a best judgment assessment of the income in the

manner prescribed by Section 144. The second is the case where Section

50 C of the Act is invoked on the basis of the prices fixed by the Stamp

Valuation Authorities of the State Government. That section, it is pointed

out, however, applies only in the computation of capital gains and cannot

BE availed by the Revenue where the profits of the business are to be


ITA 1089/2011,1090/2011 & 1097/2011                                Page 13 of 20
13.     The third is the case of section 92BA inserted by the Finance Act,

2012 w. e. f. 01.04.2013. This section gives power to the assessing

officer to recalculate the profits shown by the assessee in cases of

"specified domestic transactions", where the aggregate of such

transactions entered into in the relevant accounting year exceeds a sum of

`5 crores. According to the learned counsel for the assessee, except in

these three situations, the Act does not permit the enhancement of the

profits of the business shown by the assessee. It is further pointed out

that in the present case, the assessing officer has not invoked section 145

(3). It is this sub-section that empowers him, where he is not satisfied

about the correctness or completeness or the accounts of the assessee, to

make an assessment to the best of his judgment in the manner provided in

section 144. Therefore, there is no option to the assessing officer except

to accept the book results.           It is, however, conceded that if there is

evidence to show suppression of the sale price, in that case the assessing

officer can very well invoke the aforesaid provision of the Act, reject the

books of the assessee as being incorrect and proceed to estimate the sale

price. It is, however, pointed out that there is no such evidence in the

ITA 1089/2011,1090/2011 & 1097/2011                                  Page 14 of 20
present case. It is further contended that this is the basis of the order of

the Tribunal which can hardly be characterised as perverse.

14.     On a careful consideration of the matter we are inclined to accept

the submissions of the learned counsel for the assessee and agree with

him that the findings recorded by the Tribunal are not perverse. It is not

correct to say that the assessee did not satisfactorily answer the queries

raised by the assessing officer on noticing the absence of registered sale

documents, variations in sale prices of shops in the same floor, sale of

shops to sister concerns, etc.        They have all been answered by the

assessees and we have adverted to the replies of the assessee while

summarising its submissions made before the CIT (Appeals). Neither the

CIT (Appeals) nor the Tribunal found anything amiss in those replies/

submissions. The power of the assessing officer to raise valid queries on

the basis of the facts or unusual features noticed by him must be

conceded.        The features noticed by him in the assessees' business

certainly constitute a starting point of inquiry. They are, however, not to

be taken as evidence or material showing any suppression or

understatement of the sale price. If on further probe, the assessing officer

was able to unearth any evidence or material on the basis of which actual

ITA 1089/2011,1090/2011 & 1097/2011                              Page 15 of 20
suppression of the sale price could be found, then the additions made on

that basis would be valid. Even if the evidence does not show the precise

amount of suppressed sale price, but shows clearly and categorically that

there was understatement of sale consideration, that would be sufficient

to empower the assessing officer to reject the account books as being

incorrect and incomplete. He may thereafter make an estimate of the

profits of the business to the best of his judgment, on the basis of the

evidence unearthed by him revealing suppression of sale price. But it is

not open to him, merely on the basis of what he perceives to be the

market conditions, to make additions to the sale price or the profits,

without any evidence of understatement. These principles have been kept

in mind by the Tribunal and, therefore, its order cannot be faulted or

branded as perverse. Moreover, as rightly pointed out on behalf of the

assessee, there is no other provision in the Act permitting the assessing

officer to enhance the profits or the sale price except section 50C and

section 92BA. Section 50C does not apply to the present case as it

applies only to a case of capital gains. Section 92BA also does not apply

as it came into force only from the assessment year 2012-13. Moreover,

ITA 1089/2011,1090/2011 & 1097/2011                            Page 16 of 20
it applies only to such domestic transactions as may be prescribed by the

competent authority.

15.     Several decades back the Madras High Court in the case of Shri

Ramalinga Choodambikai Mills Ltd. v. CIT: (1955) 28 ITR 952 held

that in the absence of any evidence to show either that the sales were

sham transactions or that the market prices were in fact paid by the

purchasers, the mere fact that goods were sold at a concessional rate

would not entitle the income tax department to assess the difference

between the market price and the price paid by the purchaser as profit of

the assessee. In CIT v. A. Raman & Co.: (1968) 67 ITR 11 the Supreme

Court held that the law does not oblige a trader to make the maximum

profit that he can out of his trading transactions. Income which actually

accrues is taxable, but income which the assessee could have, but has not

in fact earned, is not made taxable.       These two judgments were

approvingly noticed and applied by the Supreme Court in CIT v. Calcutta

Discount Co. Ltd.: (1973) 91 ITR 8. These judgments apply to the

present case in favour of the assessee.

16.     A Division Bench of this Court was examining a converse case in

CIT vs. Dinesh Jain HUF : (2012) 211 Taxman 23. There the question

ITA 1089/2011,1090/2011 & 1097/2011                            Page 17 of 20
arose under section 69B of the Act as to what was the correct investment

made by the assessee in an immoveable property.            The income tax

authorities relied on the fair market value of the property calculated on

the basis of rule 3 of Schedule III to the Wealth Tax Act which prescribed

the rent capitalisation method for valuation of immoveable properties.

The difference between the value of the property so calculated and the

actual price paid by the assessee in that case was sought to be added as

undisclosed investment. Disapproving the action, this Court held that the

Wealth Tax Act was concerned with the fair market value of the asset and

under Schedule III thereto, which came into force on 01.04.1989, it was

not even an estimate of fair market value of the asset, but a prescribed

computation of the value of the asset on the basis of the rent capitalisation

method. The difference between the fair market value of the property and

the investment made in the property for purposes of section 69B was

pointed out and it was held that a mechanical addition of the difference

between the value arrived at on the basis of the rent capitalisation method

and the actual investment made by the assessee in the property has to be

deprecated. We are referring to this aspect because in one of the cases

before us, the assessing officer has sought to adopt rule 1BB of the

ITA 1089/2011,1090/2011 & 1097/2011                               Page 18 of 20
Wealth Tax Rules, which also prescribes the rent capitalisation method of

valuation of immoveable properties, and to make an addition to the sale

price on that basis.                  In our view such an approach cannot be


17.     It only remains for us to refer to the observations of the assessing

officer to the effect that no one makes a loss in real estate business and

that the market perceptions indicate that the prices of the immoveable

properties are always on the upward trend. These observations have,

inter alia, formed the basis of the additions made by the assessing officer.

It was even suggested before us on behalf of the revenue that it is a

"notorious practice" prevailing in real estate circles that in all property

transactions there is non-disclosure of the full consideration. As pointed

out earlier, this cannot per se constitute the basis of the addition, though

we must hasten to add that it can very well be a starting point for further

investigation. In Lalchand Bhagat Ambica Ram vs. CIT: (1959) 37 ITR

288, the Supreme Court disapproved the practice of making additions in

the assessment on mere suspicion and surmises or by taking note of the

"notorious practice" prevailing in trade circles. It was observed as under:

        "Adverting to the various probabilities which weighed with the
        Income-tax Officer we may observe that the notoriety for

ITA 1089/2011,1090/2011 & 1097/2011                                 Page 19 of 20
        smuggling food grains and other commodities to Bengal by
        country boats acquired by Sahibgunj and the notoriety achieved
        by Dhulian as a great receiving centre for such commodities were
        merely a background of suspicion and the appellant could not be
        tarred with the same brush as every arhatdar and grain merchant
        who might have been indulging in smuggling operations, without
        an iota of evidence in that behalf."

18.     The Tribunal cannot be said to have taken into account irrelevant

material or ignored relevant material in arriving at its decision. It seems

to have applied the right principles in support of its decision. Its order

cannot therefore be termed as perverse.

19.     For the aforesaid reasons we answer the second substantial

question of law in the affirmative, in favour of the assessee and against

the revenue. The third substantial question of law is answered in the

negative, in favour of the assessee and against the revenue.

20.     In the result the appeals filed by the revenue are partly allowed.

                                                           R.V.EASWAR, J

                                            BADAR DURREZ AHMED, J
FEBRUARY 18, 2013

ITA 1089/2011,1090/2011 & 1097/2011                                 Page 20 of 20
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