Sh. Vijay Kumar Sharma, Phagwara V. The Dy. CIT, Phagwara

ITA 133/ASR/2012

• Counselvise Citation: 13320914 RSA 2012
• Duration Of Justice: 3 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Gift; Additional evidence; Cost of acquisition; Valuation report; Assessment record
• Section: 69C; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S. KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A. NO. 133(ASR)/2012 ASSESSMENT YEAR: 2008-09 PAN: AGNPK0002F VIJAY KUMAR SHARMA TAXI DRIVER SHARMA NIWAS PREM NAGAR PHAGWARA. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, PHAGWARA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARUN BANSAL (ADV.) RESPONDENT BY: SH. TARSEM LAL (DR) DATE OF HEARING: 1 6.09.2015 DATE OF PRONOUNCEM ENT: 24.09.2015 ORDER PER T. S. KAPOOR (AM): THIS IS ASSESSEES APPEAL FOR ASST. YEAR 2008-09 , AGAINST THE ORDER DATED 19.03.2012, PASSED BY THE LEARNED CIT(A), JAL ANDHAR. THE APPEAL WAS EARLIER DISMISSED FOR NON PROSECUTION VIDE TRIBUNAL ORDER DATED 20 TH MAY, 2014. HOWEVER, THE SAID TRIBUNAL ORDER WAS RECALLED FOR H EARING ON MERITS VIDE TRIBUNAL ORDER DATED 26.09.2014 AND THEREFORE, THE APPEAL HAS BEEN HEARD ON MERITS. THE ASSESSEE HAS TAKEN TWELVE GROUNDS OF AP PEAL WHICH WERE LATER ON MODIFIED VIDE APPLICATION DATED 15.12.2014. 2. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FI LED HIS RETURN OF INCOME DECLARING INCOME FROM RUNNING OF A TAXI, INCOME FRO M HOUSE PROPERTY AND INCOME FROM CAPITAL GAINS EARNED ON THE SALE OF A H OUSE. AS REGARDS CAPITAL GAINS THE ASSESSING OFFICER DURING THE COURSE OF AS SESSMENT PROCEEDINGS REQUIRED THE ASSESSEE TO FURNISH THE DETAILS OF BIL LS AND VOUCHERS OF EXPENDITURE CLAIMED TO HAVE BEEN INCURRED ON IMPROVEMENT ON HOU SE PROPERTY IN ASST. YEAR 1986-87 TO 1988 TO 89. THE ASSESSEE INSTEAD OF FILI NG BILLS AND VOUCHERS FILED A VALUATION REPORT DATED 28.07.2008 AND ALSO FILED A COPY OF ELECTRICITY BILL DATED 5.1.1992 IN SUPPORT OF HIS CLAIM THAT EXPENDITURE W AS INCURRED ON HOUSE PROPERTY. THE ASSESSING OFFICER, HOWEVER, DID NOT A LLOW THE CLAIM OF EXPENDITURE INCURRED FOR IMPROVEMENT OF PROPERTY AND DISALLOWED THE SAME BY HOLDING AS UNDER: 3.8. I HAVE CAREFULLY CONSIDERED THE REPLY FURNISH ED BY THE ASSESSEE WITH REFERENCE TO ALL THE FACTS, MATERIAL AND EVIDENCE A VAILABLE ON RECORD. IT IS A FACT THAT THE ASSESSEE IS A TAXI DRIVER WITH ONLY ONE TA XI AND FROM THIS PROFESSION HE ENJOYS ONLY A PETTY INCOME OF LESS THAN RS.4000/- P ER MONTH (ANNUAL INCOME SHOWN BEING RS.45,500/-). AS PER THE BANK ACCOUNT, SOON AFTER THE SALE OF THE IMPUGNED HOUSE AT DELHI (H.NO.A-1/289, JANAK PURI, NEW DELHI) FOR A SUM OF RS.92,47,552/- HE HAS TRANSFERRED THE FUNDS TO HIS TWO REAL BROTHERS NAMELY SHRI RAMESH KUMAR SHARMA (RS.45 LAKH ON 20.2.2008) AND SHRI PAWAN KUMAR SHARMA (RS.47 LAKH ON 14.03.2008) AS PER BANK ENTRIES MADE IN HIS SB ACCOUNT NO.55006908723 WITH STATE BANK OF PATIALA, PHAGWARA AND RS.31,000/- WAS WITHDRAWN IN CASH FROM THE SAID BAN K ACCOUNT ON 9.2.2008. AS PER THE BANK ACCOUNT (SUPRA), THE ASSESSEE WAS L EFT WITH NO AMOUNT OUT OF THE SALE CONSIDERATION OF THE IMPUGNED HOUSE FOR TH E PAYMENT OF LONG TERM CAPITAL GAIN TAX ARISING OUT OF THE SALE PROCEEDS O F THE IMPUGNED HOUSE. THE SOURCE OF PAYMENT OF INCOME TAX OF RS.12,68,820/- O N ACCOUNT OF LONG TERM 3. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 CAPITAL GAIN TAX IS, THEREFORE, UNEXPLAINED IN HIS HANDS AND IS LIABLE TO BE ADDED TO HIS ASSESSABLE INCOME. AS PAYMENT OF THE SAID TA X OF RS.12,68,820/- HAS BEEN MADE ON 8.11.2008 IN STATE BANK OF PATIALA, G. T. ROAD, PHAGWARA, IT PERTAINS TO THE ACCOUNT YEAR RELEVANT TO THE ASSESS MENT YEAR 2009-10. ACCORDINGLY ACTION FOR THAT ASSESSMENT YEAR I.E. 20 09-10 IS BEING INITIATED SEPARATELY IN HIS CASE. 3.9 THE ASSESSEE HAS NOT FILED ANY EVIDENCE TO EXP LAIN THE SOURCE FROM WHERE HE MET COST OF IMPROVEMENT OF THE HOUSE ALLEGED TO BE MADE HIM DURING THE ASSESSMENT YEAR 1986-87 TO 1988-89 AMOUNTING TO RS. 9,45,000/- NO EVIDENCE HAS BEEN BROUGHT ON THE RECORDS TO ESTABLISH THAT T HE ASSESSEE WAS IN A POSITION TO MEET SUCH HUGE EXPENSES RELATING TO COS T OF IMPROVEMENT TOTALING TO RS.9,45,000/- AS STATED ABOVE. HE HAS ALSO FAILED T O PRODUCE EVIDENCE IN SUPPORT OF HIS FILING HIS RETURN OF INCOME FOR THE AFORESAID ASSESSMENT YEARS WHICH COULD LEAD TO DRAW AN INFERENCE THAT HE WAS H AVING TAXABLE INCOME IN THOSE YEARS SUFFICIENT TO MEET HIS EXPENSES ON IMPR OVEMENT OF THE SAID HOUSE. THE APPROVED VALUER HAS ALSO MENTIONED IN HIS VALUA TION REPORT THAT NO RECORDS REGARDING ITEMS OF WORK DONE BY ENGAGING LABOUR ARE AVAILABLE WITH OWNER. HE HAS SIMPLY RELIED ON A ELECTRICITY BILL RECEIPT DAT ED JAN, 1992 FOR A SUM OF RS.645/- ISSUED FOR THE SAID HOUSE. (A-1/289, JANA K PURI, NEW DELHI) BY THE ELECTRICITY DEPARTMENT TO THE ASSESSEE. IT IS, THER EFORE, HELD THAT VALUATION REPORT OF THE APPROVED VALUER WHICH IS BASED ON NO DOCUMENTARY EVIDENCE DOES NOT HAVE ANY EVIDENTIARY VALUE AND ACCORDINGLY THE SAME IS REJECTED. THIS IS SIMPLY A SELF SERVING DOCUMENT OF THE ASSESSEE TO A VOID HIS CORRECT LIABILITY OF THE PAYMENT OF LONG TERM CAPITAL GAIN TAX. THE ONLY RELIABLE PIECE OF EVIDENCE, WHICH HAS BEEN BROUGHT ON THE RECORDS, IS THE SALE DEED DATED 10.01.2008, OF THE HOUSE IN QUESTION, EXECUTED BY THE ASSESSEE IN FAVOUR OF THE PURCHASER, BEFORE THE REGISTRAR, S.R.-II, JANAK PURI, NEW DELH I. NEEDLESS TO MENTION THAT THE SALE DEED IS DULY SIGNED BY THE SELLER I.E., TH E ASSESSEE AS WELL THE PURCHASER. THE FIRST PAGE OF THE SALE DEED GIVES YE AR OF CONSTRUCTION OF THE HOUSE AS 1982 I.E., PERIOD BEFORE THE PURCHASE OF T HE HOUSE BY THE ASSESSEE ON THE BASIS OF GPA OF SH. AJIT SINGH DATED 06.02.1987 . COPY OF THE MAP FURNISHED BY THE ASSESSEE, AS MENTIONED ON THE MAP, WAS PREPA RED BY THE ARCHITECT ON 25.11.1981 AND THE SAME WAS SIGNED BY THE ORIGINAL OWNER VIZ. SH. AJHIT SINGH. 4. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 THIS MAP WAS GOT SANCTIONED SUBSEQUENTLY AS PER THE BUILDING BYE LAWS OF 1983 ON 27.02.1987, WHICH IS EVIDENT FROM THE PRINT OF R UBBER STAMP AVAILABLE ON PHOTO COPY OF THE MAP. THUS, THE FACTS AVAILABLE ON RECORDS REVEALS THAT THE ASSESSEE IN ACTUAL PURCHASED THE HOUSE (AND NOT THE PLOT) AS PER THE GPA OF SH. AJIT SINGH DATED 06.02.1987 WHICH WAS DULY CONSTRUC TED IN THE YEAR 1982 AS MENTIONED IN THE SALE DEED OF THE HOUSE EXECUTED ON 10.01.2008. 3.10. IT IS THEREFORE, NOT POSSIBLE TO ADMIT THE CL AIM OF THE ASSESSEE REGARDING COST OF IMPROVEMENT SHOWN DURING THE YEAR 1986-87, 1987-88 AND 1988-89. ACCORDINGLY HIS CLAIM OF COST OF IMPROVEMENT IS HER EBY REJECTED. 3. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE ASS ESSEE HAD PAID PROCESSING FEE AND CONVERSION CHARGES AMOUNTING TO RS.2,38,610/- TO THE DELHI DEVELOPMENT AUTHORITY, NEW DELHI BUT ASSESSEE WAS N OT ABLE TO EXPLAIN THE SOURCE OF SUCH EXPENDITURE AND THEREFORE, THE ASSES SING OFFICER MADE AN ADDITION OF THE SAID AMOUNT ALSO. AGGRIEVED THE ASS ESSEE FILED THE APPEAL BEFORE THE LEARNED CIT(A) AND FILED VARIOUS SUBMISSIONS AN D ADDITIONAL EVIDENCE UNDER RULE 46A. THE LEARNED CIT(A) AFTER ELABORATING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE OBJECTIONS OF THE ASSESSING OFFICER REGARDING ADMISSION OF ADDITION EVIDENCE DISMISSED THE APPEAL OF ASSESSEE BY HOLDING AS UNDER: 7. HAVING CONSIDERED THE MATTER RELATING TO THE PU RCHASE OF THE PROPERTY, THE ISSUE REMAINS ABOUT THE COMPUTATION OF THE LONG TERM CAPITAL GAINS ON THE SALE OF THE PROPERTY BY THE ASSESSEE. THE LEARNED A .O., HAS NOT ACCEPTED THE COST OF CONSTRUCTION/IMPROVEMENT IN THE YEARS 1987 TO 1989 IN THE ABSENCE OF EVIDENCE AND FOR THE REASONS WHICH HAVE BEEN NOTED EARLIER. HE HAS ALSO OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE. T HE ASSESSMENT RECORD SHOWS THAT THE A.O., HAD RAISED A QUERY ON 06/09/2010 TO THE ASSESSEE ASKING HIM TO SUBSTANTIATE THE COST OF ACQUISITION AND THE COST O F IMPROVEMENT OF THE PROPERTY 5. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 WITH DOCUMENTARY EVIDENCE. THE LAST SUBMISSION WAS MADE BY THE LEARNED AR FOR THE APPELLANT ON 15/11/2010, WHICH IMPLIES THAT THE ASSESSEE HAD MORE THAN TWO MONTHS TIME TO SUBMIT THE RELEVANT DOCUMEN TS. THE SALE DEED REGISTERED BY THE APPELLANT SHOWS THE YEAR OF CONST RUCTION OF THE HOUSE AS 1982. THE REGISTERED AGREEMENT TO SELL DATED 6/2/1987, WH ICH WOULD HAVE THROWN LIGHT ON THE NATURE OF THE PROPERTY PURCHASED BY SH RI P.L. SHARMA, HAS NOT BEEN PLACED ON RECORD. AS POINTED OUT BY THE LEARNE D A.O, THE REPORT OF THE REGISTERED VALUER IS BASED ON HEARSAY, SINCE HE WAS NOT A WITNESS TO THE CONSTRUCTION OF THE PROPERTY AND COULD NOT CERTIFY THE YEAR WHEN IT WAS CONSTRUCTED. THE APPELLANT HAS CLAIMED TO HAVE INCU RRED CERTAIN COST OF CONSTRUCTION BY SHOWING WITHDRAWALS FROM MULTIPLE B ANK ACCOUNTS. THE TOTAL WITHDRAWALS SHOWN IN THE FINANCIAL YEAR 1986-87 ARE RS./1,37,000/-. IT IS NOT SHOWN THAT THESE WITHDRAWALS WERE EXCLUSIVE OF THE WITHDRAWALS FOR HOUSEHOLD EXPENSES OR FOR OTHER PURPOSES. WITHDRAWALS OF A SI STER ARE INCLUDED IN THIS AMOUNT, WHICH IS STRANGE, PAYMENT OF RS.2 LACS WAS ALSO MADE FOR THE PURCHASE OF THE PROPERTY DURING THE RELEVANT YEAR AND THERE WOULD HAVE BEEN MORE PAYMENT TOWARDS THE STAMP DUTY REGISTRATION CHARGES OF THE AGREEMENT TO PURCHASE. HENCE, THE AVAILABILITY OF THE FUNDS IN T HIS YEAR DOES APPEAR TO BE NOT CLEAR OR SUBSTANTIATED. IN THE WRITTEN SUBMISSIONS THE APPELLANT HAS ALSO SHOWN WITHDRAWALS IN THE FINANCIAL YEAR 1989-90 ALSO AMOU NTING TO RS.1,08,400/-, THOUGH NO SUCH CLAIM WAS MADE IN THE ASSESSMENT PRO CEEDINGS AND IT IS NOT EVEN CLAIMED IN THE GROUNDS OF APPEAL. AFTER ADDING UP THE AMOUNT FOR THE FINANCIAL YEAR 1989-90, THE APPELLANT HAS FURTHER A DDED INCOME FROM TAXI AND PAST SAVINGS OR AROUND RS.3 LACS TO THE WITHDRAWALS TO SHOW THE AVAILABILITY OF THE FUNDS. THIS SHOWS THE AMOUNT OF STRETCHING THE APPELLANT HAS HAD TO DO TO JUSTIFY THE COST OF IMPROVEMENT BEING CLAIMED. THE CONTENTION REGARDING SEWERAGE CONNECTION AND THE ELECTRICITY CONNECTION BEING TAKEN SUBSEQUENTLY DO NOT EXPLAIN AS TO HOW SHRI P.L. SHARMA WAS ABLE TO RESIDE IN THE HOUSE IN JANUARY 1988 WITHOUT THESE CONNECTIONS. THE AUTHENC ITY OF THE DOCUMENTS, CLAIMED TO HAVE BEEN OBTAINED FROM THE GOVERNMENT A UTHORITIES, HAS NOT BEEN CERTIFIED BY ANY AUTHORITY FROM THE GOVT. AND ONLY PHOTOCOPIES HAVE BEEN SUBMITTED. THE ORIGINALS ARE CLEARLY NOT IN THE POS SESSION OF THE APPELLANT. THIS DOES NOT APPEAR TO ME TO BE STRANGE, SINCE THE PROP ERTY IN QUESTION NEVER 6. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 BELONGED TO THE APPELLANT TILL DECEMBER, 2007 WHILE THE DOCUMENTS RELATE TO MUCH EARLIER PERIODS. WHILE IT MAY BE POSSIBLE THAT SHRI P.L.SHARMA, THROUGH SHRI VIJAY KUMAR SHARMA, CARRIED OUT SOME IMPROVEME NT IN THE HOUSE ALREADY CONSTRUCTED ON THE PLOT (SINCED THE DDA APPROVAL IS FOR ADDITION TO BUILDING AND NOT FOR A NEW CONSTRUCTION), IN THE ABSENCE OF EVID ENCE RELATING TO THE CONSTRUCTION EXPENDITURE INCURRED BY SHRI P.L. SHAR MA; BECAUSE THE YEAR OF CONSTRUCTION IS APPEARING AS 1982 IN THE SALE DEED; BECAUSE OF THE VARIATION IN THE CONTENTIONS MADE DURING THE ASSESSMENT AND IN T HE APPELLATE PROCEEDINGS; THE UNRELIABILITY OF THE ADDITIONAL DOCUMENTS BEING SUBMITTED NOW; AND THE OPPORTUNITY GIVEN DURING THE ASSESSMENT PROCEEDINGS , I AM OF THE VIEW THAT THE ADDITIONAL EVIDENCE SOUGHT TO BE ADMITTED AT THIS S TAGE DOES NOT FULFILL THE CRITERIA OR RULE 46A(1). THE SAME ARE, THEREFORE, N OT ADMITTED. CONSEQUENTLY, NO BENEFIT OF THE COST OF CONSTRUCTION OF THE IMPUGNED PROPERTY CLAIMED TO HAVE BEEN INCURRED IS ALLOWED TO THE APPELLANT. GROUND N OS.1 TO 3 AND 6 & 7 OF APPEAL ARE REJECTED. 8. AS REGARDS THE ADMISSION OF THE ADDITIONAL GROUN D OF APPEAL, IN THE CASE OF CIT VS. ABHISHEK INDUSTRIES LTD. 290 ITR 655 (P& H) THE HONBLE JURISDICTIONAL HIGH COURT HAVE HELD THAT THE ONLY P RE-CONDITION FOR ADMISSION OF ADDITIONAL GROUND OF APPEAL WAS THAT IT SHOULD BE R EASONABLE. IT WAS HELD IN THE CITED CASE THAT THE REQUEST FOR RAISING OF THE ADDI TIONAL GROUND WAS REASONABLE BECAUSE THE FACTS WITH REGARD TO THE LEGAL ISSUE, B EING RAISED AS AN ADDITIONAL GROUND OF APPEAL, WERE ALREADY ON RECORD AND SECOND LY THE ISSUE HAD ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN THE EARLI ER YEARS. THUS, ADMISSION OF AN ADDITIONAL GROUND WILL BE CONSIDERED TO BE REASO NABLE IF THE RELEVANT MATERIAL IS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE I N THE EARLIER YEARS. THUS, ADMISSION OF AN ADDITIONAL GROUND WILL BE CONSIDERE D TO BE REASONABLE IF THE RELEVANT MATERIAL IS ALREADY AVAILABLE ON RECORD. I N THE CASE OF ACIT VS. DHL OPERATIONS BV 108 TTJ (MUMBAI) SB) 152 THE HONBLE SPECIAL BENCH OF THE TRIBUNAL HAVE HELD THAT THE ONE LIMITATION OF ADMIS SION OF ADDITIONAL GROUND OF APPEAL WAS THAT NO NEW FACT WAS REQUIRED TO BE INVE STIGATED OR ADMISSION OF THE ADDITIONAL GROUND. IN THE CASE OF ITO VS. BALINDER JASON MANN 112 TTJ (ASR)125, IT WAS HELD BY THE HONBLE JURISDICTIONAL TRIBUNAL THAT AN ADDITIONAL GROUND OF APPEAL WHICH REQUIRED INVESTIGATION OF NE W FACTS COULD NOT BE 7. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 ADMITTED. IN THE CASE OF LATE BHAGWANDAS PUNJABI TH ROUGH L/H MISS VARSHA BHAGWANDAS PUNJABI VS. ACIT 138 TTJ (AHD) 85, THE H ONBLE TRIBUNAL REFUSED TO ADMIT AND ADDITIONAL GROUND OF APPEAL WHICH REQU IRED INVESTIGATION OF FACTS NOT BROUGHT ON RECORD BY THE APPELLANT. THUS, THE G ENERAL VIEW APPEARS TO BE THAT WHILE AN ADDITIONAL GROUND OF APPEAL MAY BE AD MITTED WHICH DOES NOT REQUIRE EXAMINATION OF NEW FACTS, OR WHICH GOES TO THE ROOT OF THE JURISDICTION OF THE ASSESSMENT MADE BY THE AO, ANY ADDITIONAL GROUN D WHICH REQUIRES INVESTIGATION OF FACTS NOR ALREADY AVAILABLE ON REC ORD WILL NOT BE ADMITTED. IN THE PRESENT CASE THE APPELLANT HAS SOUGHT ADMISSION OF THE ADDITIONAL GROUND PRIMARILY FOR INVESTIGATING A NEW FACT. I AM OF THE VIEW, IN VIEW OF THE JUDGMENTS DISCUSSED ABOVE, THAT SUCH A COURSE OF ACTION IS NO T PERMISSIBLE. HENCE, THE ADDITIONAL GROUND OF APPEAL IS NOT ADMITTED. IT IS NOTED THAT EVEN IF THE AVERMENTS MADE IN SUPPORT OF THE ADDITIONAL GROUND OF APPEAL WERE FOUND TO BE CORRECT ON INVESTIGATION, THE AMOUNT WOULD BE HELD TO BE PART OF THE INCOME OF THE ASSESSEE, BEING AMOUNT PAID FOR AND ON HIS BEHA LF FOR DISCHARGE OF HIS LIABILITY) AND PART OF THE CONSIDERATION FOR TRANS FER OF THE PROPERTY. IF THE AMOUNT WAS PAID GRATIS, IT WOULD BE ASSESSEE,S INCO ME U/S 56 (GIFT FROM UNRELATED PERSONS). 9. AS REGARDS THE APPELLANTS CONTENTION TO ALLOW D EDUCTION IN RESPECT OF THE PAYMENT OF RS.2,38,600/- AS PROCESSING AND CONVERSI ON CHARGES, IT IS SEEN THAT THE AMOUNT HAS BEEN ADDED TO THE ASSESSEES TOTAL I NCOME AS UNEXPLAINED EXPENDITURE. THE LEARNED A.O HAS SHOWN THAT THE APP ELLANT HAD NO RESOURCES TO MAKE THIS PAYMENT, AND HIS CONTENTION RESTS ON SOUN D GROUND. THE INCOME OF THE ASSESSEE, EVEN TAKING INTO ACCOUNT THE DEDUCTIO N CLAIMED U/S 24, IS NOT SO LARGE AS TO KEEP CASH AT HOME AMOUNTING TO RS.2,38, 600/-, WHEN THE ASSESSEE HAS TO TAKE LOAN FROM BANK IN ORDER TO FINANCE THE ONLY TAXI THAT HE DRIVERS. HENCE, THE ADDITION TO THE ASSESSEES INCOME AS UNE XPLAINED EXPENDITURE IS UPHELD. AS PER THE PROVISO TO SECTION 69C OF THE AC T, NO DEDUCTION IN RESPECT OF ANY UNEXPLAINED EXPENDITURE WILL BE ALLOWED WHILE C OMPUTING THE INCOME UNDER ANY HEAD OF INCOME. HENCE, THE DEDUCTION CLAIMED BY THE APPELLANT IN GROUND NUMBER 4&5 OF APPEAL IS NOT PERMISSIBLE IN LAW AND THESE GROUNDS OF APPEAL ARE REJECTED. 8. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 4. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. AT THE OUTSET, THE LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER HAD REJECTED THE CLAIM OF ASSESSEE OF INCURRENCE OF EXP ENDITURE OF IMPROVEMENT ON THE BASIS THAT ASSESSEE WAS NOT ABLE TO PRODUCE BIL LS AND VOUCHERS OF THE SAME. HE SUBMITTED THAT EXPENDITURE ON IMPROVEMENT WAS IN CURRED ABOUT 20 YEARS BACK AND IT WAS NOT POSSIBLE FOR ASSESSEE TO KEEP A RECORD OF THE SAME FOR SUCH A LONG PERIOD. HE FURTHER SUBMITTED THAT EVEN BY LA W THE ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNTS AND VOUCHERS ETC. FOR A PERIOD OF MORE THAN 6 YEARS AND IN THIS RESPECT HE INVITED OUR ATT ENTION TO SUB-CLAUSE (4) OF 44A AND SUBMITTED THAT SUB CLAUSE 4 REQUIRES THAT B OARD MAY PRESCRIBE THE PERIOD FOR WHICH THE BOOKS OF ACCOUNTS AND OTHER DO CUMENTS ARE TO BE RETAINED. THE LEARNED AR SUBMITTED THAT THE BOARD IN THIS RES PECT HAS PRESCRIBED A PERIOD OF SIX YEARS VIDE RULE 6F, SUB CLAUSE-5 AND IN THIS RESPECT THE LEARNED AR READ SUB-CLAUE5 OF RULE 6F. IN VIEW OF THE ABOVE THE LEARNED AR SUBMITTED THAT THE ASSESSEE WAS NOT LIABLE TO PRODUCE BILLS A ND VOUCHERS FOR A PERIOD RELATING TO MORE THAN 20 YEARS. THE LEARNED AR FURT HER SUBMITTED THAT ASSESSEE HAD FILED A VALUATION REPORT OF A GOVERNMENT VALUER WHICH CLEARLY PROVE THAT ASSESSEE HAD INCURRED EXPENDITURE ON IMPROVEMENT OF THE PROPERTY. THE LEARNED AR FURTHER SUBMITTED THAT LEARNED CIT(A) HA S WRONGLY HELD IT WAS A CASE OF RELINQUISH OF RIGHT AND TREATED THE SAME AS GIFT WHEREAS EVEN DDA HAD ACCEPTED THE GENERAL POWER OF ATTORNEY. RELIANCE IN THIS RESPECT WAS PLACED ON THE CASE LAWS, IN THE CASE OF KRISHAN KUMAR JHAMB V S. ITO, 179 TAXMAN.144 (P&H). THE LEARNED AR FURTHER SUBMITTED THAT THE LE ARNED CIT(A) WAS ALSO NOT 9. ITA NO. 1 33(ASR)/2012 ASST. YE AR 2008-09 JUSTIFIED IN REJECTING THE CLAIM OF ASSESSEE OF MAK ING PAYMENT OF CONVERSION CHARGES AMOUNTING TO RS.2,38,610/- AS THE SAME WAS PAID VIDE BANK DRAFT BY THE PURCHASER OF PROPERTY AND NOT BY ASSESSEE. THE LEARNED AR FURTHER SUBMITTED THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN REJECTING THE ADDITIONAL EVIDENCE SPECIFICALLY IN VIEW OF THE FACT THAT IT R EQUIRED SOME TIME TO COLLECT SUCH EVIDENCES AS DOCUMENTS RELATE TO A PERIOD OF M ORE THAN 20 YEARS. IN VIEW OF THE ABOVE ARGUMENT, THE LEARNED AR SUBMITTED THA T APPEAL OF THE ASSESSEE NEEDS TO BE ALLOWED. 6. THE LEARNED DR ON THE OTHER HAND, SUBMITTED THAT IN VALUATION REPORT THE VALUER HIMSELF HAS STATED THAT ALL THE FACTS AS NAR RATED IN THE VALUATION REPORT WERE STATED ON THE BASIS OF STATEMENTS OF THE ASSES SEE SO NO COGNIZANCE CAN BE TAKEN FOR SUCH VALUATION REPORT. THE LEARNED DR FUR THER INVITED OUR ATTENTION TO THE FINDINGS OF LEARNED CIT(A) AND SUBMITTED THAT T HE LEARNED CIT(A) HAS ELABORATELY DEALT WITH THE ISSUE AND HAS RIGHTLY DI SMISSED THE APPEAL. 7. THE LEARNED AR IN HIS REJOINDER SUBMITTED THAT T HE VALUER HAS PHYSICALLY INSPECTED THE PROPERTY AND IN THIS RESPECT OUR ATTE NTION WAS INVITED TO THE COPY OF VALUATION REPORT PLACED IN PAPER BOOK. 8. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE IN MODIFIED GROUN DS AS WELL AS IN ORIGINAL GROUNDS OF APPEAL HAS SUBMITTED THAT THE LEARNED CI T(A) WAS NOT JUSTIFIED IN REJECTING THE ADDITIONAL EVIDENCES AND FURTHER THE CIT(A) WAS NOT JUSTIFIED IN NOT PROVIDING THE PROPER OPPORTUNITY TO ASSESSEE TO BRI NG ON RECORD CERTIFIED 10. ITA NO. 133(ASR)/2012 ASST. YE AR 2008-09 DOCUMENTS FROM GOVT. AUTHORITIES WITH REGARD TO SEW ERAGE CONNECTIONS AND ELECTRICITY CONNECTION. THE ASSESSEE HAS ALSO RAISE D THE ISSUE THAT THE LEARNED CIT(A) HAS FAILED TO EXAMINE THE BUYERS, BROKERS AN D BANKERS OR OTHER THREE PERSONS UNDER SECTION 133. LEARNED AR HAS ALSO RAIS ED THE ISSUE OF NON REQUIREMENTS OF MAINTENANCE OF BILLS AND VOUCHERS R ELATING TO PERIOD OF MORE THAN 20 YEARS. WE ARE IN AGREEMENT WITH THE ARGUMEN T OF LEARNED AR THAT THE ASSESSEE IS NOT EXPECTED TO KEEP BILLS AND VOUCHERS RELATING TO PERIOD OF 20 YEARS AND EVEN LAW DOES NOT REQUIRE AN ASSESSEE TO KEEP SUCH EVIDENCES FOR A PERIOD OF MORE THAN 6 YEARS AS IS APPARENT FROM SUB CLAUSE 5 OF RULE 6F. THE ASSESSEE IN THE FORM OF ADDITIONAL EVIDENCES HAS TR IED TO PROVE THAT THE EXPENDITURES WERE INCURRED FROM THE SOURCES OF HIS BROTHERS AND HIS SISTER WHICH THE LEARNED CIT(A) HAS REJECTED. WE FIND THAT THE LEARNED CIT(A) HAS REJECTED THE COPIES OF SEWERAGE AND ELECTRICITY BIL L ON THE BASIS THAT THESE WERE ONLY PHOTO COPIES AND ORIGINAL WERE NOT WITH THE AS SESSEE WHEREAS IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS CLAIMED THAT LE ARNED CIT(A) HAS NOT PROVIDED ANY OPPORTUNITY TO BRING ON RECORD CERTIF IED COPIES FROM GOVT. AUTHORITIES WITH REGARD TO SEWERAGE CONNECTION AND ELECTRICITY CONNECTION. SIMILARLY, WE FIND THAT ASSESSEE VIDE GROUND NO.5 H AS CLAIMED THAT AMOUNT OF RS.2,38,610/- WAS PAID TO DDA BY BUYER OF HOUSE AND NOT BY APPELLANT AND IN THIS RESPECT HAD FILED A COPY OF REPLY OBTAINED UND ER RTI ACT WHICH IS PLACED AT PAPER BOOK PAGE 80 AND 81. THEREFORE, THE FACT AS T O WHO HAD PAID THE CONVERSION AND PROCESSING FEE AMOUNTING TO RS.2,38, 410/- CAN BE EASILY VERIFIED FROM THE BANKERS. THEREFORE, KEEPING IN VI EW THE FACTS AND 11. ITA NO. 133(ASR)/2012 ASST. YE AR 2008-09 CIRCUMSTANCES WE ARE OF THE VIEW THAT THE MATTER SH OULD BE RE-ADJUDICATED BY ASSESSING OFFICER WHO SHOULD DECIDE KEEPING IN VIEW OF ALL ADDITIONAL EVIDENCES AND OTHER CORROBORATING MATERIAL. THE ASSESSING OFF ICER MAY AT HIS OWN OBTAIN A REPORT FROM VALUER TO ASCERTAIN THE YEARS OF INCU RRENCE OF EXPENDITURE. 9. IN VIEW OF THE ABOVE, APPEAL FILED BY THE ASSES SEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 4 TH SEPTEMBER, 2015. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED: 24.09.2015. /PK/ PS. COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. VIJAY KUMAR SHARMA 2. THE DY. COMMISSIONER OF INCOME TAX , JALANDHAR. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.