Holding period for purpose of transfer u/s 2(47) was to be considered from the time of agreement to sale instead of execution of sale deed
Undisputedly, interest-free funds available with assessee were far in excess of amount advanced to sister concern and a presumption would arise in favour of the assessee that interest-free funds had been utilized for advancing interest free loan to the sister cocnern, therefore, disallowance of deduction under section 36(1)(iii) was not justified.
LOAN AND ADVANCES –Interest free funds available with the assessee is in excess of amount advanced to sister concern. There is no nexus between the interest bearing funds and the money so advanced to sister concern which has been established by AO. In view of the same, a presumption will arise in favour of assessee that interest free funds have been utilized for advancing such advance to sister concern.
Once the assessment in the hands of AOP has been made then the assessment of the same income in the individual capacity tantamount to double assessment of the same income, which is impermissible in the eyes of law.
Once the income of the assessee was estimated after rejection of books of account, then, the AO could not make disallowance on the same books of account for the purpose of disallowance by invoking provisions of section 40(a)(ia) or general disallowance under section 37(1). Hence, the disallowance made by the AO was deleted.
It has been clearly mentioned that the capital gain income has been declared in the return of income of Smt. Gyanwati Dhakar, who has actually sold this property. The assessee has just signed as a confirming party.
Retraction of statement after inordinate delay without proving that same was obtained forcefully/by coercion/undue influence is clearly an after-thought and looses its significance.
Law on how revenue should be recognized by a developer of property under the percentage completion method in the light of Accounting Standards AS-1, AS-7 & AS-9, the Guidance Note on Accounting for Real Estate Transactions issued by the ICAI and several judgements on the issue explained
Only a right under the agreement to receive the interest by the assessee without reasonable certainty of realization of the same cannot be brought to income tax.
1. The impugned additions and disallowance made in the order dated 29-12-2011 under section 143(3) of the Act, bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be deleted.
