Shri Pannalal Baijnath Jaiswal, Ahmedabad V. The Income Tax Officer, Ward-2(3), Ahmedabad

ITA 1142/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8036 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 05-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K SINGH SR DR
• Assessee Lawyers: S N SOPARKAR
• Keywords: Unexplained cash credit; Unexplained investment; Capital asset; Additional evidence; Cost of acquisition; Initiation of penalty proceedings
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.1142/AHD/2015 ( / ASSESSMENT YEAR : 2011-12) SHRI PANNALAL BAIJNATH JAISWAL 7, BHADRESHWAR SOCIETY O/S. DELHI DARWAJA SHAHIBAUG ROAD AHMEDABAD 380 004 / VS. THE ITO WARD-2(3) AHMEDABAD # ./ ./ PAN/GIR NO. : ABCPJ 6910 B ( #& / APPELLANT ) .. ( '#& / RESPONDENT ) #&( / APPELLANT BY : SHRI S.N. SOPARKAR & SHRI PARIN SHAH, ARS '#& )( / RESPONDENT BY : SHRI V.K. SINGH, SR.DR *+ ), / DATE OF HEARING 21/11/2017 -./0 ), / DATE OF PRONOUNCEMENT 01 / 12 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL FILED AT THE INSTANCE OF THE ASSESSEE IS AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS )-10, AHMEDABAD [CIT(A) IN SHORT] DATED 16/02/2015 IN THE MATTER OF ASSESSMENT ORDER ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 2 - UNDER S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS 'THE ACT') DATED 24/03/2013 RELEVANT TO ASSESSMENT YEAR (AY) 2011-12. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE R EAD AS UNDER:- 1. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG ACTION OF AO IN COMPUTING PROFIT OF RS.67,00,000/- ON SALE OF IMMOV ABLE PROPERTY AS SHORT TERM CAPITAL GAIN AS AGAINST LONG TERM CAPITA L GAIN OF RS.21,76,721/- CORRECTLY DECLARED BY THE APPELLANT. LD.CIT(A) OUGHT TO HAVE ACCEPTED LONG TERM CAPITAL GAIN COMPUTED FROM HOLDING OF ACTUAL POSSESSION OF THE PROPERTY BY THE APPELLANT. IT BE SO HELD NOW. 2. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG COMPUTATION OF SHORT TERM CAPITAL GAIN WITHOUT APPRECIATING DOCUME NTARY EVIDENCE SUBMITTED THAT APPELLANT ON PAYMENT OF MAJOR PORTIO N OF HIS SHARE OF PURCHASE PRICE EARNED RENTAL INCOME ON RECEIVING EF FECTIVE POSSESSION FROM 29.03.2007. LD.CIT(A) OUGHT TO HAVE TREATED G AIN ON SALE OF PROPERTY AS LONG TERM CAPITAL GAIN SINCE THE PROPER TY WAS HELD FOR MORE THAN 36 MONTHS. 3. LD.CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPR ECIATING THAT THE RENTAL INCOME DECLARED IN AY 2008/09 PERTAINED TO P ROPERTY UNDER CONSIDERATION ONLY SINCE THE APPELLANT NEVER POSSES SED ANY OTHER PROPERTY AT THE RELEVANT TIME. LD.CIT(A) OUGHT TO HAVE HELD THAT THE APPELLANT CORRECTLY COMPUTED LONG TERM CAPITAL GAIN ON SALE OF PROPERTY. IT BE SO HELD NOW. 4. LD.CIT(A) GRAVELY ERRED IN LAW AND ON FACTS IN HOLDING THE POSSESSION LETTER FROM THE BUILDER FILED AFTER COMM ENTS OF AO ON ADDITIONAL EVIDENCE AS INADMISSIBLE NOT APPRECIATIN G THAT THE SAME WAS FILED ON DIRECTION OF THE APPELLATE AUTHORITY. LD. CIT(A) OUGHT TO HAVE HELD THAT THE APPELLANT WAS IN ACTUAL POSSESSION OF THE PROPERTY AFTER CROSS VERIFICATION WITH THE BUILDER THE FACT AS EVI DENCED IN PURCHASE DEED ALSO. IT BE SO HELD NOW. ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 3 - 5. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG ADDITION MADE BY AO OF RS.19,05,489/- RECEIVED FROM DECEASED BROTHER OF THE APPELLANT AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. LD. CIT(A) ERRED IN NOT APPRECIATING THAT THE IMPUGNED AMOUNT RECEIVED ACCO RDING TO WISH & DIRECTION OF DECEASED MAN FURTHER CORROBORATED BY A FFIDAVITS OF LEGAL HEIRS REMAINED FULLY EXPLAINED. LD. CIT(A) OUGHT TO HAVE DELETED ADDITION MADE BY AO. IT BE SO HELD NOW. 6. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG ADDITION OF CASH CREDIT HOLDING FAILURE OF APPELLANT TO EXPLAIN RECE IPT OF IMPUGNED AMOUNT FROM THE DECEASED DESPITE ACCEPTING VERACITY OF THE AFFIDAVITS OF THE LEGAL HEIRS. LD.CIT(A) OUGHT TO HAVE DELETED A DDITION MADE BY AO WITHOUT CROSS VERIFICATION WITH LEGAL HEIRS WISH OF THE DECEASED TO GIVE IMPUGNED AMOUNT TO HIS OWN BROTHER. IT BE SO HELD NOW. 7. LEVY OF INTEREST U/S.234A/234B & 234C OF THE AC T IS NOT JUSTIFIED. 8. INITIATION OF PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT IS NOT JUSTIFIED. 3. GROUND NOS.1 TO 4 OF THE APPEAL CONCERN COMPUTIN G THE TAXABLE INCOME OF RS.67 LAKHS ON SALE OF IMMOVABLE PROPERTY AS SHORT TERM CAPITAL GAIN (STCG) INSTEAD OF LONG TERM CAPITAL GA IN (LTCG) OF RS.21,76,721/- OFFERED BY THE ASSESSEE. 4. GROUND NOS. 5 & 6 CONCERN ADDITION MADE BY THE A SSESSING OFFICER (AO) UNDER S.68 OF THE ACT FOR ALLEGED UNEX PLAINED CREDITS OF RS.19,05,489/-. 5. BRIEFLY STATED, THE RETURN OF INCOME OF THE ASSE SSEE WAS PICKED UP FOR SCRUTINY FOR THE RELEVANT AY 2011-12. IN THE C OURSE OF SCRUTINY ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 4 - PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAS SOLD AN IMMOVABLE PROPERTY AT SHITAL VARSHA - AHMEDABAD WHICH WAS C O-OWNED BY ASSESSEE ALONG WITH WIFE SMT. KALAWATIBEN PANNALAL JAISWAL. IT WAS OBSERVED BY THE AO THAT THE AFORESAID PROPERTY WAS JOINTLY PURCHASED BY THE ASSESSEE EARLIER VIDE PURCHASE AGREEMENT DATED 15/07/2008 FOR A CONSIDERATION OF RS.1,60,00,000/-. THE ASSESSEE WA S STATED TO BE HOLDING 50% SHARE IN THE CO-OWNERSHIP PROPERTY. THUS, COST OF ACQUISITION ATTRIBUTABLE TO THE ASSESSEE STANDS AT RS.80 LAKHS. THE SAID PROPERTY WAS STATEDLY SOLD BY THE ASSESSEE ON 01/04/2010 AND TH E SHARE OF THE ASSESSEE IN THE SALE CONSIDERATION STANDS AT RS.1,47,00,000/ -. THE AO THEREAFTER OBSERVED THAT THE ASSESSEE HELD THE PROPERTY FOR LE SS THAN THREE YEARS AND THEREFORE THE GAIN EMANATING ON SALE OF PROPERTY IS TAXABLE AS SHORT TERM CAPITAL GAINS (STCGS). IT WAS FOUND BY THE AO THAT ASSESSEE HAS, INSTEAD, CLAIMED INDEXATION BENEFIT ON THE SAID PRO PERTY AND COMPUTED LONG TERM CAPITAL GAINS (LTCGS) THEREFROM TO REAP C ONCESSIONAL TAX BENEFITS. IT WAS INTER ALIA NOTED BY THE AO THAT THE PURCHASE DEED WAS REGISTERED IN FAVOUR OF THE ASSESSEE ALONG WITH TH E JOINT OWNER ON 15/07/2008 ONLY. IT WAS ALSO OBSERVED THAT CORRESP ONDING SALE AGREEMENT WAS EXECUTED ON 01/04/2010. THE AO ACCORDINGLY OBS ERVED THAT THE ASSESSEE WAS IN POSSESSION OF THE PROPERTY FOR A PE RIOD OF LESS THAN 36 MONTHS. THE AO ALSO UNDERSCORED THE FACT THAT AS M ENTIONED IN THE PURCHASE-DEED, THE BUILDING USE PERMISSION OF THE SAID PROPERTY WAS APPROVED ON 27/10/2008 VIDE APPLICATION DATED 16/10 /2008. THEREFORE, ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 5 - AS A COROLLARY, THE POSSESSION COULD NOT BE AVAILED AT EARLIER DATE. THE ASSESSEE IN REPLY SUBMITTED BEFORE THE AO THAT THE POSSESSION OF THE PROPERTY WAS TAKEN 29/03/2007 PRIOR TO REGISTRATION OF AGREEMENT I.E. ON 15/07/2008. THE ASSESSEE THUS SOUGHT TO JUSTIFY I TS ACTION OF TREATING THE GAINS UNDER LONG TERM CAPITAL GAIN CATEGORY. THE A O HOWEVER CAME TO A CONCLUSION THAT THE CLAIM TOWARDS LTCGS AT RS.21, 76,721/- TOWARDS SALE OF PROPERTY IS NOT SUPPORTABLE BY EVIDENCES ON RECORD. THE AO ACCORDINGLY HELD THAT GAINS ARISING ON SALE OF PROP ERTY IS SUSCEPTIBLE TO TAX AS APPLICABLE TO SHORT TERM CAPITAL GAINS. 6. AS REGARDS SECOND ISSUE, THE AO OBSERVED THAT AS SESSEE HAS SHOWN RECEIPT OF CASH OF RS.19,05,489/- FROM ESTATE OF LA TE BROTHER SHRI RAJARAM BAIJNATH JAISWAL. THE AO NOTED THE CONTENTION OF T HE ASSESSEE THAT IT HAS RECEIVED AFORESAID AMOUNT IN CASH FROM THE ESTATE O F SHRI RAJARAMJI ON HIS DEATH PURSUANT TO HIS WISHES. A COPY OF CAPITA L ACCOUNT OF SHRI RAJARAMJI AS ON 31/03/2011 DULY SIGNED BY SON OF TH E DECEASED (AMARCHAND R.JAISWAL) WAS FURNISHED TO SUPPORT RECE IPT. THE AO FURTHER OBSERVED THAT THE ASSESSEE CLAIMED THAT THE AFORESA ID AMOUNT IN CASH WAS GIVEN TO HIM BY DECEASED BROTHER OUT OF HIS ASSETS AS PER WILL ALONG WITH CASH GIVEN TO SON AMOUNTING TO RS.4,88,068/-. THE AO REBUTTED THE AFORESAID CLAIM OF RECEIPT IN CASH IN TERMS OF A WILL INTER ALIA ON THE GROUND THAT DURING THE YEAR AGGREGATE CASH RECEIPT OF RS.2,11,000/- ONLY WAS AVAILABLE IN THE HANDS OF DECEASED. THE AO FOU ND THAT RECEIPT OF ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 6 - STAGGERING AMOUNT OF CASH OF RS.19,05,489/- CLAIME D TO HAVE BEEN RECEIVED FROM THE ESTATE OF DECEASED BROTHER IS NOT CORROBORATED BY ANY EVIDENCE VIZ. COPY OF WILL, RESOURCES TOWARDS AVAIL ABILITY OF CASH ETC. THE AO ACCORDINGLY OBSERVED THAT THE ASSESSEE HAS F AILED TO DISCHARGE ITS ONUS TOWARDS THE GENUINENESS OF CASH RECEIVED PURPO RTEDLY FROM BROTHERS ACCOUNT. WHILE COMING TO SUCH CONCLUSION , THE AO FURTHER OBSERVED THAT THE DECEASED WAS AN INCOME-TAX ASSESS EE AND WAS ALSO HOLDING A BANK ACCOUNT AND THEREFORE IT WILL BE UNR EASONABLE TO THEM THAT A PERSON OF SUCH MEANS WOULD KEEP SUCH HUGE AMOUNT AS CASH IN HAND. THE AO ACCORDINGLY ADDED RS.19,05,489/- AS UNEXPLAI NED CASH CREDIT WITH THE AID OF SECTION 68 OF THE ACT. 7. AGGRIEVED, THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE FURNISHED ADDITIONAL EVIDENCE IN THE SHAPE OF ALLOTMENT LETTER DATED 19/02/2007 ISSUED BY THE BUILDERS/DEVELOPERS WHEREBY THE ALLOTMENT OF THE PR OPERTY WAS STATED TO BE CONFIRMED. THE ASSESSEE ACCORDINGLY CLAIMED THA T IT CAME TO POSSESS RIGHTS IN PROPERTY WHICH WERE LATER ON ACCENTUATED INTO FULL OWNERSHIP ON EXECUTION OF REGISTERED-DEED AND MEETING OBLIGAT IONS ATTACHED THERETO. THE ASSESSEE ALSO RELIED UPON POSSESSION LETTER OF THE PROPERTY PURCHASED DATED 05/03/2007 TO PROP UP ITS CLAIM OF ACQUISITION OF RIGHTS OF CAPITAL NATURE IN THE IMPUGNED PROPERTY. ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 7 - 8. THE CIT(A), HOWEVER, DID NOT SEE ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE CIT(A) AFTER TAKING INTO ACCOUNT REM AND REPORT FROM THE AO AND WRITTEN SUBMISSIONS MADE ON BEHALF OF THE AS SESSEE OBSERVED THAT THE POSSESSION LETTER WAS FILED AFTER THE COM MENTS OF THE AO WITHOUT ANY APPLICATION FOR ADMISSION AS ADDITIONAL EVIDENC E AND HENCE DISCARDED THE SAME. THE CIT(A) ALSO FOUND CONTRADICTION IN T HE VERSION OF THE ASSESSEE AND OBSERVED THAT WHILE THE ASSESSEE CLAI MS THE POSSESSION DATE TO BE 05/03/2007 AS PER THE LETTER FROM THE BUILDER , IT HAS ALL ALONG CLAIMED THAT POSSESSION WAS GIVEN ON 29/03/2007. T HE UNEXPLAINED DISCREPANCY ALSO CAST ASPERSIONS ON THE DATE OF POS SESSION. THE POSSESSION LETTER ALSO DOES NOT BEAR ANY DATE. THE ORIGINAL COPY OF THE POSSESSION LETTER WAS NOT PRODUCED. IN ESSENCE, TH E CIT(A) QUESTIONED THE GENUINENESS OF THE POSSESSION LETTER. 9. AS REGARDS RENTAL INCOME STATED TO BE DERIVED ON THE PROPERTY BEFORE ITS SALE, THE CIT(A) FOUND THAT DETAILS OF T HE PROPERTY FOR WHICH RENT WAS OFFERED IS NOT IDENTIFIABLE FROM THE RETUR N OF INCOME FOR AY 2008-09. THE CIT(A) ALSO NOTED THAT EVIDENCE IN TH E FORM OF RENT AGREEMENT OR RECEIPT OF RENT IN THE BANK ACCOUNT IS ALSO NOT AVAILABLE. THE RENT IS ALSO SHOWN TO BE RECEIVED IN CASH AND T HEREFORE NOT VERIFIABLE. IN SHORT, THERE WAS NO WAY TO RELATE THE RENT RECEI PT, IF ANY, WITH THE PROPERTY. THE CIT(A) THEREFORE CAME TO THE CONCLUS ION THAT ASSESSEE DID NOT HAVE THE POSSESSION OF THE PROPERTY ON 29/03/20 07 AS CLAIMED. THE ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 8 - CIT(A) ACCORDINGLY ENDORSED THE ACTION OF THE AO IN TREATING THE CAPITAL GAIN ARISING FROM THE PROPERTY AS STCGS INSTEAD OF LTCGS. 10. AS REGARDS SECOND GROUND AGITATED, THE CIT(A) N OTED THAT THE ASSESSEE FILED AFFIDAVIT OF THE SON AND WIFE OF THE DECEASED BROTHER AS ADDITIONAL EVIDENCE OF THE RECEIPT OF CASH ON DEA TH OF BROTHER. HOWEVER, THE CIT(A) NOTED THAT THE ASSESSEE HAS FAI LED TO FILE ANY EVIDENCE SUCH AS WILL ETC. OF DECEASED BROTHER. T HE CIT(A) AFTER CONSIDERING VARIOUS SUBMISSIONS OF THE ASSESSEE FOU ND THAT CASH OF RS.19,05,489/- ALLEGEDLY RECEIVED FROM THE ESTATE O F DECEASED BROTHER TO JUSTIFY CORRESPONDING INVESTMENTS, IS NOT SUPPORTA BLE BY ANY CREDIBLE DOCUMENTARY EVIDENCES. THE CIT(A) ACCORDINGLY UPHE LD THE ADDITION OF RS.19,05,489/- TOWARDS UNEXPLAINED CASH CREDIT IN T HE HANDS OF THE ASSESSEE. 11. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BE FORE THE TRIBUNAL. 12. THE LD.SENIOR COUNSEL FOR THE ASSESSEE, SHRI S .N.SOPARKAR REITERATED THE FACTS PLACED BEFORE THE LOWER AUTHOR ITIES AND SUBMITTED THAT BOTH THE LOWER AUTHORITIES HAVE MISDIRECTED THEMSE LVES IN LAW IN TREATING THE CAPITAL GAINS ARISING OF SALE OF IMMOVABLE PROP ERTY AS STCGS. THE LD.COUNSEL ADVERTED TO THE PURCHASE AGREEMENT DATED 15/07/2008 (JOINTLY PURCHASED ALONG WITH WIFE) FOR ACQUISITION AT AN A GGREGATE CONSIDERATION ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 9 - OF RS.1,60,00,000/- FROM A BUILDER/DEVELOPER. THE LD.COUNSEL ADVERTED TO THE DETAILS OF VARIOUS PAYMENT MADE IN TRANCHES AS APPEARING IN THE PURCHASE AGREEMENT AND STRIDENTLY CONTENDED THAT AS MUCH AS RS.58 LAKHS OUT OF RS.80 LAKHS PAYABLE BY THE ASSESSEE TOWARDS HIS SHARE WAS PAID ON OR BEFORE 05/03/2007. THE LD.COUNSEL THEREAFTER AD VERTED OUR ATTENTION TO AN ALLOTMENT LETTER DATED 19/02/2007 AND SUBMITT ED THAT THE PROPERTY/FLAT WAS ALLOTTED TO THE ASSESSEE FOR A TO TAL CONSIDERATION OF RS.1.60 CRORES WHICH WAS ULTIMATELY TRANSLATED INTO PURCHASE AGREEMENT. THE LD.COUNSEL THEREAFTER REFERRED TO A POSSESSION LETTER DATED NIL (APPEARING AT PAGE NO.131 OF THE PAPER-BOOK) AND S UBMITTED THAT AS PER THE POSSESSION LETTER ISSUED BY THE BUILDER/DEVELOP ER, THE ASSESSEE WAS IN POSSESSION OF THE PROPERTY IN QUESTION W.E.F. 05/03 /2007 NOTWITHSTANDING EXECUTION OF FORMAL PURCHASE-DEED IN JULY-2008. TH E LD.COUNSEL THUS SUBMITTED THAT WHEN ALL THESE FACTS OF ALLOTMENT LE TTER, POSSESSION LETTER, PURCHASE AGREEMENT AND THE DETAILS OF PAYMENT SUBST ANTIALLY MADE (BEFORE POSSESSION AS CLAIMED) ARE SEEN IN TANDEM, IT IS QUITE CLEAR THAT THE ASSESSEE HELD THE PROPERTY IN ITS COMMAND FROM 5 TH MARCH-2007 WHICH WAS ULTIMATELY SOLD AFTER 36 MONTHS FROM ITS POSSESSION VIDE SALE- DEED DATED 01/04/2010. THE LD.COUNSEL THEREFORE ST RIDENTLY CONTENDED THAT CLEARLY THE ASSESSEE CAME TO HOLD THE ASSET BE FORE ITS SALE FOR MORE THAN 36 MONTHS AND THEREFORE THE CLAIM OF THE ASSES SEE TOWARDS LTCG CANNOT BE DISPROVED ON SUCH FACTS. THE LD.COUNSEL THEREAFTER ADVERTED OUR ATTENTION TO THE COMPUTATION OF THE INCOME OF T HE ASSESSEE FOR AY ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 10 - 2008-09, WHEREIN RENT INCOME OF RS.1,50,000/ - CL AIMED TO BE DERIVED FROM THE AFORESAID PROPERTY WAS DECLARED TO SUPPORT ITS CLAIM OF POSSESSION OF THE PROPERTY DURING THE FINANCIAL YEA R (FY) RELEVANT TO AY 2008-09. THE LD.COUNSEL ACCORDINGLY SUBMITTED THAT THE RIGHTS TOWARDS THE PROPERTY WAS ACCRUED IN FAVOUR OF ASSESSEE BY V IRTUE OF THE ALLOTMENT LETTER AND POSSESSION LETTER AND THEREFORE THE PROP ERTY BEFORE ITS SALE IS TO BE RECKONED AS LONG TERM CAPITAL ASSET AND THE GAI N ON SALE THEREOF OUGHT TO HAVE BEEN TREATED AS LTCGS AS CHARACTERIZE D BY THE ASSESSEE. THE LD.COUNSEL ALSO PLACED RELIANCE UPON THE DECISI ON OF THE COORDINATE BENCH OF TRIBUNAL IN DY.CIT VS. SHRI DILIP RAMANLAL PARIKH IN ITA NO.914/AHD/2016 ORDER DATED 16/10/2017 FOR THE PRO POSITION THAT SUBSEQUENT PURCHASE-DEED RELATES BACK TO THE DATE O F ALLOTMENT FOR THE PURPOSES OF DETERMINATION OF PERIOD OF HOLDING. 13. AS REGARDS THE SECOND ISSUE, SHRI SOPARKAR ON CE AGAIN BROADLY REITERATED THE FACTS PLACED BEFORE THE LOWER AUTHOR ITIES AND SUBMITTED THAT THE AFFIDAVITS OF THE LEGAL HEIR OF THE DECEASED BR OTHER GOES TO SUPPORT THE CLAIM OF THE ASSESSEE TOWARDS RECEIPT OF RS.19.05 L AKHS RECEIVED FROM THE ESTATE OF LATE BROTHER IN CASH. ON QUERY FROM THE BENCH, THE LD.COUNSEL SUBMITTED THAT NO WRITTEN WILL WAS CODIFIED. THE W ISHES OF THE DECEASED BROTHER EXPRESSED ORALLY WERE FULFILLED BY THE LEGAL HEIRS. TO SUPPORT ITS CLAIM OF RECEIPT OF AFORESAID AMOUNT OF RS.19.05 LAKHS THE LD.COUNSEL REFERRED TO A CAPITAL ACCOUNT OF THE DEC EASED AS ON ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 11 - 31/03/2011. THE LD.COUNSEL SUBMITTED IN CONCLUS ION THAT THE CIT(A) HAS NOT APPRECIATED THE FACTS IN PERSPECTIVE AND CO MMITTED ERROR IN CONFIRMING THE ACTION OF THE CIT(A). HE ACCORDINGL Y URGED THAT THE ORDER OF THE LOWER AUTHORITIES REQUIRES TO BE SET ASIDE A ND THE ADDITION SO MADE REQUIRES TO BE DELETED. 14. THE LD.DR FOR THE REVENUE, ON THE OTHER HAND, R ELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND VOCIFEROUSLY OP POSED THE PLEA THE ASSESSEE. AS REGARDS FIRST ISSUE, THE LD.DR EMPH ASIZED THAT THE POSSESSION LETTER IS UNDATED AND ALSO, NOTABLY, A P HOTOCOPY ONLY THE ORIGINAL OF WHICH WAS NOT PRODUCED. THE LD.DR NEXT CONTENDED THAT IT IS FAR FETCHED TO ASSUME THAT BUILDER WOULD GIVE AN I RREVERSIBLE VACANT AND PEACEFUL POSSESSION TO A BUYER WITHOUT RECEIPT OF A CTUAL CONSIDERATION AND WITHOUT EXECUTION OF FORMAL DEED FOR SALE AND HENCE ASSUME RISKS ASSOCIATED WITH THIRD PARTY POSSESSION. THE LD.DR CONTENDED THAT THE ASSESSEE HAS NOT ADDUCED THE IMPUGNED ALLOTMENT LE TTER TO CLAIM RIGHTS IN PROPERTY AT THE ASSESSMENT STAGE. THE LD.DR TH EREAFTER SUBMITTED THAT ALLOTMENT LETTER DOES NOT CONFER ANY VALUABLE RIGHT IN FAVOUR OF ASSESSEE. IT MERELY ACKNOWLEDGES THE RECEIPT OF PART PAYMENT TOWARDS ALLOTMENT OF THE PROPERTY IN QUESTION. THE LD.DR NEXT CONTENDED THAT THE PHOTOCOPY OF THE POSSESSION LETTER WITHOUT PRODUCING THE ORIG INAL LETTER WAS RIGHTLY FOUND DEFECTIVE BY THE CIT(A) IN MORE THAN ONE ASPE CT. IT WAS CONTENDED THAT THE CHAIN OF EVENTS AS NARRATED IN THE ORDER O F THE CIT(A) CLEARLY ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 12 - SHOW THAT THE PROPERTY SOLD WAS HELD AS CAPITAL ASS ET FOR LESS THAN 36 MONTHS AND THEREFORE RIGHTLY DENIED BENEFITS ASSOCI ATED TO LTCG TOWARDS INDEXATION OF COSTS AND CONCESSIONAL TAX TREATMENT. 15. IN A SHARP REBUTTAL WITH REGARD TO SECOND ISSUE , THE LD.DR ONCE AGAIN RELIED UPON THE ORDER OF THE CIT(A) AND SUBMI TTED THAT IT IS BEYOND ANYBODYS UNDERSTANDING AS TO WHY SUCH HUGE AMOUNT WOULD BE GIVEN TO THE ASSESSEE IN FORM OF CASH. THE THEORY OF OR AL WILL IS CREATED ONLY TO SUPPORT UNEXPLAINED INVESTMENTS. THE SOURCE OF CASH IN THE HANDS OF THE DECEASED BROTHER IS ALSO NOT VERIFIABLE. THE A FFIDAVIT FILED BY THE LEGAL HEIRS WITHOUT ANY WRITTEN TESTIMONY (WILL) I S ONLY AN AFTERTHOUGHT TO COVER UP THE INTRODUCTION OF UNACCOUNTED MONEY O F ASSESSEE BY WAY OF CASH. THE LD.DR ACCORDINGLY CONTENDED THAT IT IS OSTENSIBLE THAT THE ASSESSEE HAS FAILED TO DISCHARGE ITS ONUS MISERABL Y. 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE FIRST ISSUE CONCERNS AS TO WHETHER THE GAINS ARISING ON S ALE OF IMMOVABLE PROPERTY IN QUESTION IS TO BE CONSIDERED AS SHORT T ERM CAPITAL GAIN (STCG) OR LONG TERM CAPITAL GAIN (LTCG) IN THE FACT S OF THE CASE. 16.1 THE SCHEME OF TAXATION PROVIDES FOR CONCESS IONAL TAX TREATMENT ON GAINS ARISING FROM SALE OF LONG TERMS CAPITAL ASSET S (LTCA). THE PRESCRIBED PERIOD HOLDING OF CAPITAL ASSET IN QUEST ION IS 36 MONTHS ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 13 - IMMEDIATELY PRECEEDING ITS TRANSFER TO ENJOY THE CO NCESSIONAL TREATMENT ATTRIBUTABLE TO LTCA. IN THE BACKDROP OF THIS, THE ASSESSEE CLAIMS THAT THE PROPERTY IN QUESTION WAS HELD FOR MORE THAN 36 MONTHS PRIOR TO ITS TRANSFER AND THUS ELIGIBLE FOR FAVOURABLE TAX TREAT MENT. 16.2. IN THIS REGARD, WE FIRST TAKE NOTE OF THE FO REMOST PLEA OF THE ASSESSEE THAT THE RIGHTS IN THE PROPERTY UNDER S ALE STANDS ACQUIRED BY VIRTUE OF ALLOTMENT LETTER DATED 19/02/2007 TOWARDS ITS ACQUISITION. IT IS THE CASE OF THE ASSESSEE THAT THE ALLOTMENT LETT ER HAS VESTED THE RIGHTS AND INTEREST IN THE PROPERTY IN FAVOUR OF ASSESSEE IN FEBRUARY-2007 ITSELF. IT IS FURTHER CASE OF THE ASSESSEE THAT TH E POSSESSION OF THE PROPERTY WAS ALSO ACQUIRED ON PART PAYMENT OF HIS S HARE AS PER POSSESSION LETTER ON 05/03/2007. IT IS THUS THE CASE OF THE A SSESSEE THAT NOTWITHSTANDING THE EXECUTION OF THE PURCHASE-DEED FOR ACQUISITION OF IMPUGNED PROPERTY AT LATER POINT OF TIME ON 15/0 7/2008, THE ASSESSEE WAS HOLDING THE COMMAND OVER THE PROPERTY BY WAY OF ALLOTMENT AND POSSESSION IN THE MONTH OF FEB-MARCH 2007 ITSELF. IT IS THUS THE CASE OF ASSESSEE THAT EVEN WHEN THE PERIOD OF HOLDING IS RE CKONED FROM THE DATE OF POSSESSION ON 29/03/2007, THE ASSESSEE CAN BE FO UND TO HOLDING THE PROPERTY FOR A PERIOD OF MORE THAN 36 MONTHS PRIOR TO ITS SALE ON 01/04/2010. THE ASSESSEE ACCORDINGLY HAS CLAIMED T HAT PROFITS AND GAINS ARISING ON SALE OF PROPERTY WHICH WAS HELD AS CAPIT AL ASSET FOR MORE THAN 36 MONTHS PRIOR TO ITS SALE IS SUSCEPTIBLE TO CONCE SSIONAL TAX TREATMENT ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 14 - BEING LONG TERM CAPITAL GAINS AS OFFERED BY THE A SSESSEE. IT IS CONTENTION ON BEHALF OF THE ASSESSEE THAT THE REVEN UE AUTHORITIES HAVE WRONGLY CONCLUDED THAT THE IMMOVABLE PROPERTY WAS H ELD FOR LESS THAN 36 MONTHS IN THE GIVEN FACTS OF THE CASE AND HAVE COMMITTED GRAVE ERROR IN TREATING THE GAINS AS STCG INSTEAD OF LTCG. 16.3. THE REVENUE, ON THE OTHER HAND, CONTENDS THAT THE IMMOVABLE PROPERTY IN QUESTION WAS HELD FOR LESS THAN 36 MONT HS WHEN RECKONED FROM THE DATE OF PURCHASE AGREEMENT. IT IS THE C ASE OF THE REVENUE THAT THE ALLOTMENT LETTER DID NOT GRANT ANY RIGHTS IN FA VOUR OF THE ASSESSEE. IT IS THE FURTHER CASE OF THE REVENUE THAT IT IS NOT POSS IBLE FOR THE SELLER TO GIVE POSSESSION IN THE GIVEN SET OF FACTS. IT IS THE CO NTENTION OF THE REVENUE THAT THE POSSESSION LETTER WAS NOT PRODUCED EITHER AT THE ASSESSMENT STAGE OR AT THE APPELLATE STAGE. A PHOTOCOPY OF POSSESSI ON LETTER WAS ANNEXED TO CERTAIN REPLIES BEFORE THE CIT(A) AT A LATER STA GE MERELY AS AN AFTER THOUGHT. IT IS FURTHER EMPHASIZED ON BEHALF OF THE REVENUE THAT THE JOINT OWNERS HAVE COMBINEDLY GIVEN ONLY RS.58 LAKHS TO T HE CORRESPONDING SELLER BEFORE THE AFORESAID DATE OF POSSESSION TOWA RDS ACQUISITION AGAINST AGREED CONSIDERATION OF RS.1,60,00,000/-. UNDER T HESE CIRCUMSTANCES, WHERE CONSIDERABLE PORTION OF THE TOTAL PURCHASE AMOUNT WAS OUTSTANDING AND A PURCHASE-DEED WAS ALSO NOT EXECU TED, ONE CANNOT FATHOM PURPORTED CLAIM OF POSSESSION. THE POSSES SION LETTER ALSO STRANGELY CLAIMS A VACANT AND PEACEFUL POSSESSION W ITHOUT RECEIPT OF ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 15 - CONSIDERATION WHICH IS BEYOND UNDERSTANDING. BESID ES, IT IS ALSO CONTENDED THAT BUILDING USE PERMISSION OF THE PR OPERTY WAS APPROVED AT QUITE SUBSEQUENT STAGE ON 27/10/2008 PURSUANT TO AP PLICATION DATED 16/10/2008. IN THESE CIRCUMSTANCES, THE POSSESSION CLAIMED TO HAVE BEEN GIVEN IN MARCH-2007 PRIOR TO USE PERMISSION IS BEYO ND COMPREHENSION. 16.4. TO APPRECIATE THE PERSPECTIVE OF THE ASSESS EE TOWARDS CLAIM OF HOLDING THE IMPUGNED ASSET FOR MORE THAN 36 MONTHS, WE HAVE PERUSED THE ALLOTMENT LETTER DATED 19/02/2007 (AS APPEARING AT PAGE NO.10 OF THE PAPER-BOOK) FILED AFTER THE COMPLETION OF THE ASSES SMENT BEFORE THE CIT(A) AS AN ADDITIONAL EVIDENCE. A MERE GLANCE OF THE ALLOTMENT LETTER GIVES UNFLINCHING IMPRESSION THAT NO RIGHT CAN BE S AID TO HAVE BEEN CREATED IN FAVOUR OF THE ASSESSEE BY VIRTUE OF THE AFORESAID LETTER. THE ALLOTMENT LETTER MERELY STIPULATES THAT THE SELLER HAS RECEIVED A SUM OF RS.15 LAKHS AS AGAINST THE TOTAL PROPOSED CONSIDERA TION OF RS.160 LAKHS. BY VIRTUE OF CLAUSE NO. 2, 3 & 4 OF THE ALLOTMENT L ETTER, CERTAIN OBLIGATIONS HAVE ONLY BEEN PLACED ON THE ASSESSEE UNILATERALLY. CLAUSE NO.5 SIMPLY REFERS TO THE EXECUTION OF A FORMAL AGREEMENT IN TH E DUE COURSE. A BARE PERUSAL OF THE ALLOTMENT LETTER WOULD THEREFORE SHO W THAT NO RIGHT TO SUE THE BUILDER/DEVELOPER (SELLER) IS CREATED IN FAVOU R OF THE ASSESSEE PER SE TO ASSERT ANY RIGHT AS A CONSEQUENCE OF SUCH LETTER . THEREFORE, SUCH ALLOTMENT LETTER, IN OUR CONSIDERED VIEW, DOES NOT CREATE ANY RIGHT OR INTEREST IN FAVOUR OF THE ASSESSEE TO BE RECOGNIZED AS CAPITAL ASSET AS ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 16 - CLAIMED. THEREFORE PERIOD OF HOLDING OF PROPERTY I N QUESTION CANNOT BE TRACED BACK TO THE DATE OF ALLOTMENT LETTER. THE PERIOD OF HOLDING THUS CANNOT BE RECKONED FROM THE DATE OF SO-CALLED ALLOT MENT LETTER. 16.5. WE SHALL NOW TURN TO THE PARALLEL CLAIM OF T HE ASSESSEE TOWARDS HAVING TAKEN POSSESSION OF THE IMPUGNED PROPERTY BY VIRTUE OF POSSESSION LETTER DATED NIL WHEREBY POSSESSION OF THE PROPERTY IN QUESTION IS SOUGHT TO BE GIVEN TO THE JOINT OWNERS W.E.F. 05/03/2007. THE POSSESSION LETTER IS CLAIMED TO HAVE CREATED RIGHT AND INTEREST OF CAPITAL NATURE WITH EFFECT FROM THE DATE OF POSSESSION IN F AVOUR OF THE ASSESSEE. THE POSSESSION LETTER IS THUS PIVOTAL FOR SUCH ASS ERTIONS. IN THIS REGARD, IT IS NOTICED THAT THIS POSSESSION LETTER WAS STRANGEL Y NEITHER GIVEN AT THE ASSESSMENT STAGE NOR FILED BY WAY OF ADDITIONAL EVI DENCE BEFORE THE CIT(A). THE POSSESSION LETTER WAS ANNEXED AT THE F IRST APPELLATE STAGE ALONG WITH CERTAIN REPLIES AT A BELATED STAGE. THE PROPRIETY OF SUCH LETTER IS STATED TO BE A SUSPECT BY REVENUE. IT IS SEEN O N A BARE PERUSAL OF THE AFORESAID UNDATED POSSESSION LETTER THAT A VACANT AND PEACEFUL POSSESSION OF THE PROPERTY IN QUESTION IS PURPORTED LY GIVEN TO ASSESSEE WEF 05/03/2007. SIGNIFICANTLY, AS ON THAT DATE, THE ASSESSEE JOINTLY WITH HIS WIFE HAD PAID BARELY RS.58 LAKHS AS AGAINST COM MITTED AMOUNT OF RS.160 LAKHS. IT IS HIGHLY UNPALATABLE THAT A BUIL DER WOULD RELINQUISH ITS CONTROL AND PREMATURELY GIVE VACANT AND PEACEFU L POSSESSION OF A PROPERTY TO JOINT-BUYERS ON RECEIPT OF SUCH A COMPA RATIVELY SMALL AMOUNT ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 17 - VIS-A-VIS THE TOTAL OBLIGATION, MORE SO IN THE ABSE NCE OF ANY FORMAL AGREEMENT ENTERED INTO WITH THE BUYERS (ASSESSEE) A T THAT STAGE. BESIDES, WE ALSO TAKE NOTE OF THE VITAL FACT THAT THE AFORES AID POSSESSION LETTER IS NON-DESCRIPT WITHOUT ANY REFERENCE TO THE FATE OF T ERMS OF BALANCE AMOUNT TO BE PAID BY THE ASSESSEE AND OTHER JOINT-OWNER IN CASE OF ANY DEFAULT. OSTENSIBLY, THE IMPUGNED POSSESSION LETTER IS SEEK ING TO GRANT ABSOLUTE AUTHORITY IN FAVOUR OF THE ASSESSEE WITHOUT ANY FET TERS AND RECOURSE FOR CANCELLATION OR REPOSSESSION UNDER ANY CIRCUMSTANCE S. THIS IS QUITE INEXPLICABLE. IT IS HARD TO UNDERSTAND THAT A BUILD ING/DEVELOPER WOULD PART WITH POSSESSION OF PROPERTY TO ITS CUSTOMERS IN HAS TE AT SUCH A PREMATURE STAGE WITHOUT ANY COVER FOR REALIZATION OF THE BA LANCE CONSIDERATION AGREED UPON. IT IS ONLY TO STATE THE OBVIOUS THAT THE POSSESSION OF A PROPERTY UNDER CONSTRUCTION CANNOT BE GIVEN IN SUCH A NONCHALANT MANNER WHICH WOULD IN FACT IMPEDE A DEVELOPER TO COMPLETE ITS OBLIGATION OF CONSTRUCTION OF THE PROPERTY STATED TO BE IN POSSES SION OF ITS CUSTOMER. THE VACANT POSSESSION AS CLAIMED CANNOT BE VISUAL IZED FOR COMPLETION OF CONSTRUCTION. WE ALSO DO NOT SEE ANY PERCEPTIBL E OCCASION FOR A PURCHASER (ASSESSEE) TO GET HOLD OF THE POSSESSION WHEN THE PROPERTY IS UNDER ONGOING CONSTRUCTION PHASE AND EVEN BUILDING USE PERMISSION HAS NEITHER BEEN APPLIED FOR OR NO APPROVED BY THE COMP ETENT AUTHORITY. IT IS UNCHARACTERISTIC OF A DEVELOPER TO CREATE A CRUCIA L RIGHT OF POSSESSION IN FAVOUR OF ASSESSEE TOWARDS ONGOING UNDER CONSTRUCTI ON PROPERTY AND GIVE PREFERENTIAL AND DISSIMILAR TREATMENT TO THE ASSESS EE IN AN UNDULY MANNER ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 18 - QUA OTHER CUSTOMERS. WHEN THESE INTRIGUING CIRCUMSTAN CES ARE READ IN CONJUNCTION WITH THE BUILDING USE PERMISSION ACTUA LLY GRANTED ON 27/10/2008 BY THE LOCAL AUTHORITY AFTER THE COMPLET ION OF THE CONSTRUCTION, THE PURPORT OF SUCH SYMBOLIC POSSESS ION LETTER CAN BE UNDERSTOOD AT ONCE. THE POSSESSION LETTER OF SUCH TYPE CLEARLY INDICATES A FOUL PLAY TO MISLEAD THE REVENUE IN BELIEVING THE C LAIM OF THE ASSESSEE TOWARDS PERIOD OF HOLDING OF MORE THAN 36 MONTHS. THE GRANT OF VACANT POSSESSION OF UNDER CONSTRUCTION PROPERTY BELIES LO GIC AND DEFIES COMMON SENSE. 16.6. AS NOTED EARLIER, THERE ARE LONG LIST OF CI RCUMSTANCES TO BELIEVE THAT THE CLAIM OF PURPORTED POSSESSION IS UNREAL. FIR STLY, A VITAL DOCUMENT IN THE FORM OF A POSSESSION LETTER REMAINS UNDATED A ND ALSO NOT PRODUCED FOR ENQUIRY BEFORE THE AO. NOTICEABLY, THE POSSESS ION LETTER WAS ALSO NOT PRODUCED AS ADDITIONAL EVIDENCE BEFORE CIT(A) EARLI ER. SECONDLY, THE CIRCUMSTANCES VIZ. TRUNCATED PAYMENT OF ONE THIRD O F TOTAL AGREED CONSIDERATION; THIRDLY, PROPERTY UNDER CONSTRUCTION WITHOUT ANY COMPLETION CERTIFICATE; FOURTHLY, NO FORMAL AGREEME NT IN PLACE AT THE TIME OF PURPORTED POSSESSION; FIFTHLY, NO RIGHT WITH BUI LDER TO SEEK RETRIEVAL OF THE SO-CALLED POSSESSION IN THE EVENT OF ANY DEFAUL T FROM THE ASSESSEE. THESE CIRCUMSTANCES UNEQUIVOCALLY ESTABLISHES WITH OUT ANY TRACES OF DOUBT THAT A SYMBOLIC POSSESSION LETTER WAS INTROD UCED AS A PRETENSE WITH A MOTIVE TO JUSTIFY LONGER PERIOD OF HOLDING OF TH E ASSET WITH THE OBJECT ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 19 - OF LESSENING THE TAX BURDEN AND TO AVOID APPROPRIAT E INCIDENCE OF TAXATION. THE CLAIM OF ASSESSEE HAS NO SEMBLANCE O F BONAFIDES. THE SO- CALLED POSSESSION LETTER, IN OUR VIEW, IS ONLY COSM ETIC AND INCONSEQUENTIAL FOR DETERMINATION OF PERIOD OF HOLDING OF IMPUGNED PROPERTY SOLD. 16.7. WE THEREFORE HOLD THAT THE CIT(A) WAS RIGHT IN DISREGARDING THE EFFECT OF SUCH DISCREDITED POSSESSION LETTER. THU S, THE PERIOD OF HOLDING, IN OUR VIEW, CANNOT BE RECKONED EITHER FROM THE DAT E OF ALLOTMENT LETTER OR THE DATE OF PURPORTED POSSESSION AS CLAIMED IN THE SIMILAR VAIN, WE DO NOT FIND ANY MERIT IN THE PLEA OF THE ASSESSEE FOR AFFIRMATION OF POSSESSION HAVING REGARD TO RENTAL INCOME SHOWN TO BE GENERATED ON SUCH PROPERTY. THE PROPERTY WAS UNDER CONSTRUCTION AND THUS NOT HABITABLE. RENT WAS CLAIMED TO BE RECEIVED IN CASH FROM AN UNI DENTIFIABLE USER. THE ENTIRE ACTION OF THE ASSESSEE DEFIES LEGITIMACY OF ANY SORT AND IS CLEARLY DEVOID OF ANY STRENGTH WHATSOEVER. THUS, THE PERI OD OF HOLDING OF THE ASSET/PROPERTY CANNOT BE RECKONED FROM THE DATE OF ALLOTMENT LETTER OR POSSESSION LETTER AS CLAIMED. IN THIS VIEW OF THE M ATTER, WE DECLINE TO INTERFERE WITH THE CONCLUSION OF THE CIT(A) THAT TH E ASSET UNDER SALE WAS SHORT TERM CAPITAL ASSET AND CONSEQUENTLY PROFIT I S LIABLE TO BE TAXED AS SHORT TERM CAPITAL GAINS ONLY. 17. GROUND NOS.1 TO 4 OF ASSESSEES APPEAL CONCERNI NG FIRST ISSUE ARE DISMISSED. ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 20 - 18. WE SHALL NOW TURN TO DWELL UPON THE OTHER ISSUE RAISED BY THE ASSESSEE TOWARDS ADDITION OF RS.19,05,489/- ASSESSE D AS AN UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSEE. 18.1. WHILE IT IS THE CASE OF THE REVENUE THAT RECE IPT OF CASH AMOUNTING TO RS.19,05,489/- FROM THE ESTATE OF DECEASED BROTH ER (SHRI RAJARAM BAIJNATH JAISWAL) REMAINS UNEXPLAINED IN TERMS OF S ECTION 68 OF THE ACT, THE ASSESSEE, ON THE OTHER HAND, HAS TAKEN A STAND (ON HIS DEATH ON 8/12/2010) THAT THE AFORESAID AMOUNT WAS RECEIVED F ROM THE ESTATE OF THE LATE BROTHER AS PER HIS ORAL WISHES WHICH IS DULY S UPPORTED BY AFFIDAVIT OF THE LEGAL HEIR (WIFE AND SON) OF THE DECEASED BROTH ER. 18.2. WE FIND THE CLAIM OF THE ASSESSEE TO BE QUIT E PERPLEXING HAVING REGARD TO THE CIRCUMSTANCES EXISTING. A PERUSAL OF THE CAPITAL ACCOUNT OF THE DECEASED BROTHER AS ON 31/03/2011 (PAGE NO.130 OF THE PAPER-BOOK) SHOWS THAT THE LATE BROTHER WAS HAVING VERY LIMITED RESOURCES AT HIS DISPOSAL. THE AFORESAID AMOUNT OF RS.19.05 LAKHS A CCOUNTS FOR NEARLY 50% OF THE ESTATE OF THE DECEASED WHO IS SURVIVED B Y HIS WIFE AND A SON. NO IMMOVABLE PROPERTY IS APPARENTLY HELD BY THE DEC EASED BROTHER FOR SHELTER AND USE OF WIFE AND SON. SIMILARLY, A BREA K-UP OF RS.19.05 LAKHS APPEARING BELOW THE CAPITAL ACCOUNT GOES TO SHOW T HAT RS.9.90 LAKHS ONLY IS ATTRIBUTABLE TO CASH COMPONENT. THE BALANC E AMOUNT OUT OF ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 21 - RS.19.05 LAKHS IN QUESTION REPRESENTS NON-CASH ENTR IES. WE DO NOT FIND ANY DOCUMENTARY EVIDENCE OF RELIABLE NATURE TO JUST IFY THE CLAIM OF THE ASSESSEE THAT THE AMOUNT WAS DEVOLVED ON THE ASSESS EE DUE TO THE WISHES OF LATE BROTHER. NO WRITTEN WILL EXECUTED BY LAT E BROTHER, IF ANY, WAS BROUGHT ON RECORD. THE AMOUNT WAS CLAIMED TO BE TR ANSFERRED OWING TO ORAL WISHES AS DEPOSED BY SURVIVING LEGAL HEIRS. S UCH EXPLANATION ON BEHALF OF THE ASSESSEE ARE GROSSLY OPPOSED TO HUMAN PROBABILITIES AND DOES NOT INSPIRE ANY CONFIDENCE. IT IS ONLY ELEMEN TARY THAT A WILL HAS TO BE FORMALLY REDUCED IN WRITING IN THE PRESENCE O F WITNESSES TO GIVE EFFECT TO PURPORTED DICTATES OF DECEASED WHICH IS N OT DONE IN THE PRESENT CASE. SECONDLY, AN ODD AMOUNT OF SUCH MAGNITUDE VI S-A-VIS TOTAL ESTATE ONLY MYSTIFIES AN ORDINARY HUMAN CONDUCT. THIRDLY , THE CASH INTRODUCED DOES NOT MATCH WITH THE BIFURCATION OF THE AMOUNT D EVOLVED. FOURTHLY, THE ALTERNATIVE TO WILL IN THE FORM OF AFFIDAVIT OF PURPORTED LEGAL HEIR IS NOT SUFFICIENT IN SUCH CIRCUMSTANCES TO REPLACE THE EFFECT OF A WRITTEN WILL. THE REASONS ARE NOT FAR TO SEEK. A LIVING P ERSON HAS AN ABSOLUTE POWER OF DISPOSAL OF HIS PROPERTIES AND ESTATE AND MAY BEQUEATH HIS SELF- GENERATED PROPERTY/ASSETS IN FAVOUR OF ANY PERSON O F HIS CHOICE. THE LEGAL HEIRS NAMELY WIFE AND SON HEREIN CAN ONLY BE RECKONED TO BE FRONTRUNNERS AND STRONG CONTENDERS IN THE ESTATE OF THE PROPERTY. THE ASSET WILL HOWEVER NOT AUTOMATICALLY DEVOLVE IN FA VOUR OF ANY PARTY IN THE ABSENCE OF ANY WRITTEN WILL OR OTHER DOCUMENTAT ION AS CLAIMED. ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 22 - THE AFFIDAVIT OF LEGAL HEIRS TOWARDS PURPORTED ORAL WISHES OF THE DECEASED IS THUS NOT CONCLUSIVE. 18.3. THE WHOLE NARRATIVE OF RECEIPT OF DISPROP ORTIONATE CASH OF SUCH LARGE AMOUNT OUT OF THE ESTATE OF LATE BROTHER IS H IGHLY IMPROBABLE AND A SAD SPECTACLE OF A MAKE BELIEVE STORY DEVOID OF ANY CREDENCE. THE CROSS- EXAMINATION OF LEGAL HEIRS OR OTHERWISE IS INCONSE QUENTIAL FOR UNDERSTANDING THE LEGAL EFFECT OF A VOID IN THE AB SENCE OF WILL OR OTHER TANGIBLE DOCUMENT. INCIDENTALLY, IT IS ALSO NOT K NOWN AS TO WHEN THE SO- CALLED CASH WAS GIVEN TO THE ASSESSEE AND BY WHOM A ND BEFORE ITS TRANSFER, IT WAS LYING IN WHOSE CUSTODY. 18.4. THE FACTS TOWARDS CREDITS ARE NOT CLEAR AT A LL. THE CIRCUMSTANCES DO NOT STAND TO REASONS AND INDICATES OTHERWISE TO TA KE THE TRANSACTION OUT OF AMBIT OF SECTION 68 OF THE ACT. THE HAWKISH NARRAT IVE GIVEN BY THE ASSESSEE WAS RIGHTLY DENOUNCED BY THE REVENUE AUTHO RITIES. 18.5. THE CASE-LAWS RELIED UPON ON BEHALF OF THE A SSESSEE ARE RENDERED IN ITS OWN SET OF FACTS WHICH ARE MATERIALLY DIFFERENT . THEREFORE, WE DO NOT CONSIDER IT NECESSARY TO DEAL WITH THE SAME OUT OF CONTEXT. 18.6. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCES AND IN VIEW OF TOTALLY IMPROBABLE AND UNSUBSTANTIATED CIRCUMSTANCE S, WE ARE UNABLE TO ITA NO.1142/AHD /2015 SHRI PANNALAL BAIJNATH JAISWAL VS. ITO ASST.YEAR 2011-12 - 23 - AFFIRMATIVELY APPRECIATE THE STAND OF THE ASSESSEE ON THIS SCORE. THEREFORE, WE DECLINE TO INTERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW. 19. CONSEQUENTLY, ASSESSEES THIS GROUND IS ALSO D ISMISSED. 20. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 01/ 12 /2017 SD/- SD/- ( ) ( ) ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 01/ 12 /2017 4..*,.*../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '#& / THE RESPONDENT. 3. 567, 8, / CONCERNED CIT 4. 8, ( ) / THE CIT(A)-10, AHMEDABAD 5. 9:;,*67 , 67 0 , 5 / DR, ITAT, AHMEDABAD 6. ;<+ / GUARD FILE. / BY ORDER, '9,, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD