Ravi Sharma, New Delhi V. ITO, New Delhi

ITA 1393/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4109 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 20-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 09-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI SENIOR
• Keywords: Business income; Cost of acquisition
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.1393/DEL./2009 (ASSESSMENT YEAR : 2005-06) SHRI RAVI SHARMA, VS. ITO, WARD 2 (2), SH 126, 1 ST FLOOR, GHAZIABAD. SHASTRI NAGAR, GHAZIABAD. (PAN : AGOPS8289F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL SHARMA, ADVOCATE REVENUE BY : SMT. BANITA DEVI, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF TH E ORDER OF CIT (APPEALS), GHAZIABAD DATED 11.11.2008. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT THE LEARNED CIT(APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE LEARNED AO OF ASSESSING THE SHORT TERM CAPITAL GAIN ON SALE OF FLAT NO. 45 SECT OR 8, AAKARSHAN, CHIRANJIV BIHAR, GHAZIABAD AT RS.1,01,522/- AGAINST THE LOSS OF RS.64,000/- DECLARED BY THE ASSESSEE. 2. THAT THE LEARNED CIT(APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN HOLDING THE PURCHASE PRICE OF THE FLAT AT RS.7,68,956/- AGAINST RS.11,00,000/- BEING THE ACTUAL AMOUNT PAID BY THE ASSESSEE TO THE SELLER. THE FINDING THAT THE ASSESSEE HAS FAILED TO FURNISH CORROBORATIVE EVIDENCE IS WHOLLY INCORRECT AND CONT RARY TO MATERIAL ON RECORD. ITA NO.1393/DEL/2009 2 2.1 THAT THE LEARNED CIT(APPEALS) HAS FAILED TO APP RECIATE THAT THE PURCHASE CONSIDERATION HAD BEEN PAID THROUGH DD /CHEQUE WHICH WAS DULY ACKNOWLEDGED BY THE PURCHASERS AND MERE IN TIMATION BY THE SELLER TO THE BUILDER WAS NOT SACROSANCT TO HOL D THAT THE CONSIDERATION PAID BY THE ASSESSEE WAS NOT THE ACTU AL AND CORRECT CONSIDERATION. 3. THAT THE LEARNED CIT(APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE AO OF E STIMATING THE BUSINESS INCOME AT RS. 1 LAKH AGAINST THE RETURNED INCOME OF RS.80,950/-. IT IS, THEREFORE, PRAYED THAT THE ADDITIONS AS SUST AINED BY THE CIT(APPEALS) BE DELETED AND THE APPEAL BE ALLOWED. 2. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUS INESS OF REPAIRING OF INVERTERS. NO BOOKS OF ACCOUNT WERE MAINTAINED. T HE ASSESSEE WAS HAVING HALF SHARE IN THE PROPERTY AND THE BALANCE HALF WAS OWNE D BY ASSESSEES WIFE, SMT. NIDHI SHARMA. IN THE RETURN, THE ASSESSEE CLAIMED SHORT TERM CAPITAL LOSS ON THE SALE OF FLAT NO.45, SECTOR 8, AAKARSHAN, CHIRANJIV VIHAR, G HAZIABAD. THIS LOSS WAS SET OFF AGAINST THE PROFIT EARNED ON THE SALE OF SHARES. T HE ASSESSEE CLAIMED THAT THE PROPERTY WAS PURCHASED FOR RS.12,28,000/- INCLUDING STAMP DUTY AND OTHER REGISTRATION CHARGES AND IT WAS SOLD FOR RS.11 LACS . THE LEARNED AR SUBMITTED THAT THE TOTAL COST OF THE PROPERTY WAS RS.12,28,000/- A ND THE ASSESSEE WAS HAVING HALF OF THE SHARE OF THE PROPERTY. HE FURTHER SUBMITTED TH AT THE AMOUNT WAS PAID BY DEMAND DRAFTS/CHEQUES, THEREFORE, THE COST OF ACQUISITION OF THE PROPERTY SHOULD BE TAKEN AT RS.12,28,000/- INSTEAD OF RS.8,96,956/- (INCLUDING THE STAMP DUTY PAID AND OTHER REGISTRATION CHARGES). ON THE OTHER HAND, THE LEAR NED DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.1393/DEL/2009 3 3. AFTER HEARING BOTH THE SIDES ON THE ISSUE, WE FI ND THAT THE FLAT WAS ORIGINALLY ALLOTTED TO SHRI RAVINDER KUMAR RAINA AND SMT. SUCH ITRA RAINA, RESIDENT OF KAVI NAGAR, GHAZIABAD. AS PER THE LETTER DATED 2.1.2004 (PLACED AT PAGE 17 OF THE PAPERBOOK) FOR THE CHANGE OF RIGHT TO PURCHASE THE UNIT NO.8/45, 908-45, AAKARSHAN, CHIRANJIV VIHAR, GHAZIABAD, THE AMOUNT SHOWN AS REC EIVED FROM THE ASSESSEE AND HIS WIFE WAS OF RS.7,68,956/-. THIS LETTER IS ADDR ESSED TO ANSAL HOUSING & CONSTRUCTION LTD. SIGNED BY ORIGINAL ALLOTTEES AND ALSO BY THE ASSESSEE AND HIS WIFE. THE CHANGE OF RIGHT TO PURCHASE HAS BEEN CONFIRMED. THE SALE CONSIDERATION SHOWN IS RS.7,68,956/-. THE ASSESSEES CLAIM THAT HE HAS PAID MORE TOWARDS THE PURCHASE OF THE PROPERTY IS NOT PROVED. THE ASSESSEE HAS GO T THE PROPERTY REGISTERED IN ITS NAME FOR WHICH THE STAMP CHARGES OF RS.1,09,2O0/- H AS BEEN PAID AND THE OTHER EXPENSES ON REGISTRATION WERE OF RS.18,800/-. THUS , THE TOTAL COST WHICH CAN BE TAKEN FOR THE WORK OUT OF THE SHORT TERM CAPITAL GA IN COMES TO RS.8,96,956/-. IN VIEW OF THESE FACTS, THE SUBMISSION OF THE ASSESSEE HAS NO MERITS. CONSIDERING ALL THESE FACTS, WE SUSTAIN THE ORDERS OF THE AUTHORITI ES BELOW AND DISMISS THE ASSESSEES APPEAL. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF APRIL, 2011. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : THE 29 TH DAY OF APRIL, 2011/TS ITA NO.1393/DEL/2009 4 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT, NEW DELHI.