] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.163/PUN/2009 BLOCK PERIOD : 1997-98 TO 2003-04 MRS. ARUNA J. KAPSE, CLASSIK ARCADE, SAIGRAM, CIDCO AMBAD LINK ROAD, AMBAD, NASHIK 422010. PAN : ANGPK2783B. . / APPELLANT V/S THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, NASHIK. . / RESPONDENT . / ITA NO.164/PUN/2009 BLOCK PERIOD : 1997-98 TO 2003-04 SHRI JANARDHAN R. KAPSE CLASSIK ARCADE, SAIGRAM, CIDCO AMBAD LINK ROAD, AMBAD, NASHIK 422010. PAN : ABPPK7293K. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 14(4), PUNE. . / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE. REVENUE BY : SHRI VISHWAS S. MUNDHE. / DATE OF HEARING : 03.07.2019 / DATE OF PRONOUNCEMENT: 16.10.2019 2 / ORDER PER ANIL CHATURVEDI, AM : 1. THESE TWO APPEALS FILED BY TWO DIFFERENT ASSESSEES, RELATE D TO EACH OTHER, ARE EMANATING OUT OF THE CONSOLIDATED ORDER OF C OMMISSIONER OF INCOME TAX (APPEALS) 1, NAGPUR DATED 29.08.2008 FOR BLOC K PERIOD 1997- 98 TO 2003-04. 2. BEFORE US, AT THE OUTSET, BOTH THE PARTIES SUBMITTED T HAT THOUGH THE APPEALS FILED BY TWO DIFFERENT ASSESSEES ARE AGAINST THE CO NSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) 1, NAGPUR THE ISSUES INVOLVED IN BOTH THE APPEALS ARE IDENTICAL EXCEPT FOR THE ASSESSE E AND THE AMOUNTS INVOLVED AND THEREFORE THE SUBMISSIONS MADE BY THEM WH ILE ARGUING ONE APPEAL WOULD BE EQUALLY APPLICABLE TO THE OTHER APPEAL ALSO AND THUS BOTH THE APPEALS CAN BE HEARD TOGETHER. IN VIEW OF THE AFORE SAID SUBMISSIONS OF BOTH THE PARTIES, WE, FOR THE SAKE OF CONVENIENCE, PROCEE D TO DISPOSE OF BOTH THE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER, PROCEE D WITH NARRATING THE FACTS IN ITA NO.163/PUN/2019 FOR BLOCK PERIOD 1997-09 TO 200 3-04. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL WHO IS STATED TO BE ENGAGED IN S UPERVISION OF CONSTRUCTION ACTIVITIES. A SEARCH AND SEIZURE ACTION U/ S 132 OF THE ACT WAS CONDUCTED IN THE CASE OF PRAKASH LADDHA GROUP ON 09.10.2002. THE BLOCK ASSESSMENTS WERE COMPLETED IN F.Y. 2004-05. DURING THE VERIFICATION OF MATERIAL FOUND IN THE SEARCH, IT WAS SEEN THAT PRAKASH LADDHA HAD ACQUIRED SHARES OF M/S. VASTUKRUPA CONSTRUCTION (INDIA) PV T. LTD. FROM MR. AND MRS. JANARDHAN KAPSE. PRAKASH LADDHA IN THE STATE MENT RECORDED U/S 132(4) OF THE ACT ON 11.10.2002 HAD ACCEPTED THE ACQ UISITION OF SHARES 3 OF VASTUKRUPA CONSTRUCTION (INDIA) PVT. LTD FROM MR. AND M RS. JANARDHAN KAPSE. IT WAS NOTED THAT VASTUKRUPA CONSTRUCTION (IND IA) PVT. LTD WAS INCORPORATED IN THE YEAR 1991 AND WAS DOING THE BUSINES S OF LAND DEVELOPMENT AND CONSTRUCTION OF RESIDENTIAL AND COMMERC IAL COMPLEX AND ITS AUTHORIZED CAPITAL WAS RS.5 LAKHS AND PAID UP CAPITAL WAS RS.1,80,000/-. MR. AND MRS. JANARDHAN KAPSE WERE HOLDING 4 00 SHARES EACH. MR. LADDHA SUBMITTED THAT THE TOTAL SALE PRICE OF THE COMPANY WAS FIXED AT RS.45 LAKHS. IT WAS FURTHER STATED THAT ASSESS EE HAD RECEIVED RS.5 LAKHS BY CHEQUE FROM PRAKASH LADDHA AND HER HUSBAND H AD RECEIVED RS.5 LAKHS CHEQUE AND FURTHER PRAKASH LADDHA HAD ISSUED PO ST DATED CHEQUES FOR THE BALANCE AMOUNT TO THE ASSESSEE WHICH COULD NOT BE ENCASHED. IN VIEW OF THE AFORESAID FACTS, NOTICE U/S 158BD WAS ISSUED AN D SERVED ON THE ASSESSEE. THEREAFTER, THE CASE WAS TAKEN UP FOR SCRUTINY AND SU BSEQUENTLY, ASSESSMENT WAS FRAMED U/S 158BD R.W.S 143(3) OF THE ACT VIDE ORDER DT.21.11.2006 AND THE TOTAL UNDISCLOSED INCOME WAS DETERM INED AT RS.21,89,923/- ON ACCOUNT OF CAPITAL GAINS ON SALE OF SHARE S OF VASTUKRUPA CONSTRUCTION (INDIA) PVT. LTD. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.29.0 9.2008 (IN APPEAL NO.CIT(A)-1/160/2007-08) DISMISSED THE APPEAL OF T HE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL. THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE CONS OLIDATED ORDER IN THE CASE OF ASSESSEE AND HER HUSBAND IN ITA NO.163 & 164/PN/2019 VIDE ORDER DT.10.07.2015 DISMISSED THE APPEALS OF THE ASS ESSEE. THEREAFTER, ASSESSEE FILED M.A.N.45/PN/2015 WHEREIN IT WAS SU BMITTED BY THE ASSESSEE THAT WHILE DECIDING THE ISSUE, THE TRIBUNAL HA D CONSIDERED THE ASSESSMENT ORDER PASSED U/S 158BD R.W.S. 143(3) OF THE A CT AND ORDER OF LD.CIT(A) DATED 26.12.2006 PASSED IN THE CASE OF SHRI PRAKA SH LADDHA. IT WAS ASSESSEES SUBMISSION THAT THE ASSESSMENT ORDER A S WELL AS ORDER OF LD.CIT WERE NEITHER REFERRED BY THE ASSESSEE NOR THE L D. D.R. DURING THE COURSE OF HEARING AND NO ARGUMENTS WERE PLACED ON THE ABOVE DOCUMENTS. 4 IT WAS FURTHER THE SUBMISSION OF THE ASSESSEE THAT THE ASSESSEE WAS NOT CONFRONTED WITH THE SAME NOR ANY OPPORTUNITY WAS GIVEN BY THE TRIBUNAL. ASSESSEE THEREFORE SUBMITTED THAT THERE WAS MISTAKE IN THE ORDER OF THE TRIBUNAL AND SOUGHT FOR ITS RE-CALLING AND DECIDE IT AFRESH ON MERITS. THE TRIBUNAL VIDE ORDER PASSED IN M.A.NO.45 DT.29.06.2016 RECALLED THE ORDE R OF THE TRIBUNAL FOR FRESH HEARING. ACCORDINGLY, THE ASSESSEE IS NOW BEFORE US IN THE SECOND ROUND AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN LAW THE CIT(A) HAS ERRED IN ADOPTING SALE CONSIDERATION FOR TRANSFER OF 400 SHARES AT RS. 22, 50,000/- AS AGAINST RS.5,00,000/-. 2. ON THE FACTS AND IN LAW THE CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE CONSIDERATION FOR TRANSFER OF 400 SHARES W AS RS. 5,00,000/- AS PER COPY OF SHARE TRANSFER FORM SEIZED IN ACTION U/S. 132(4), STATEMENT OF MR. PRAKASH LADDHA U/S. 132(4) AND STATEMENT OF CROSS EXAMINATION OF MR. PRAKASH LADDHA. 3. ON THE FACTS AND IN LAW THE CIT(A) HAS ERRED IN ACCEPTING PART OF THE CONTENTS OF THE LETTER FILED BY THE APPELLANT BENEF ICIAL TO THE REVENUE AND REJECTING PART OF THE CONTENTS OF THE SAME LETTER, WHICH IS NOT BENEFICIAL TO THE REVENUE AGAINST THE PROPOSITION OF LAW LAID DOWN BY HON'BLE PUNE ITAT, IN THE CASE OF 'CHANDRAMOHAN MEHTA VS. ACIT, 71 ITD 245. 4. ON THE FACTS AND IN LAW THE CIT(A) HAS ERRED IN TAXING THE CONSIDERATION OF RS. 27,00,000/- TOWARDS EXPENDITURE INCURRED BY THE APPELLANT FOR SITE DEVELOPMENT OF THE LAND DURING 1990-91 TO 31/3/2000 RS.13,37,745/-. 5. ON THE FACTS AND IN LAW THE CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT, NO CONSIDERATION TOWARDS EXPENDITURE INCURRED BY THE APPELLANT FOR SITE DEVELOPMENT OF THE LAND WAS RECEIVED AND THE PURCHA SER IS ALSO NOT WILLING TO PAY THE SAME AND LITIGATING THE SAME IN NASHIK COUR T. 6. ON THE FACTS AND IN LAW THE CIT(A) HAS ERRED IN NOT CONSIDERING COST OF LAND DEVELOPMENT ETC. INCURRED BY THE APPELLANT AT RS. 13,37,745/- WHILE ARRIVING AT TAXABLE CAPITAL GAIN. 4. BEFORE US, LD.A.R. SUBMITTED THAT ASSESSEE HAD MADE R EQUEST FOR ADMISSION OF ADDITIONAL GROUNDS BEFORE THE TRIBUNAL WHILE THE MATTER WAS BEING HEARD IN THE FIRST ROUND AND THE ADDITIONAL GROUND WAS WITH RESPECT TO CHALLENGING THE INVOCATION OF PROVISIONS OF SEC.158BD AS IT WAS ASSESSEES SUBMISSION THAT THERE WAS NO UNDISCLOSED IN COME ARISEN BELONGING TO THE ASSESSEES AS FOUND IN THE MATERIAL SEIZED. 5 5. THE ADDITIONAL GROUNDS RAISED IN ITA NO.163/PN/2009 RE ADS AS UNDER : 1. THE LEARNED AO ERRED ON FACTS AND IN LAW IN INV OKING ACTION U/S 158BD WITHOUT ANY INDICATION IN THE MATERIAL SEIZED AT AN NEXURE A ITEM NO.18 THAT ANY UNDISCLOSED INCOME IS ARRIVING OR BELONGING TO THE APPELLANT. 2. THE LEARNED AO ERRED IN LAW AND ON FACTS IN ASSE SSING THE CAPITAL GAIN IN THE BLOCK ASSESSMENT U/S 158BD WHEN THE RESPECTIVE INVESTMENTS AS ALSO THE SUBSEQUENT SALE OF SHARES HAD BEEN DISCLOSED BY THE APPELLANT IN THE REGULAR RETURNS FILED BY THE APPELLANT BEFORE THE D ATE OF SEARCH. 6. SIMILAR GROUNDS AND ADDITIONAL GROUNDS HAVE BEEN RAISE D IN ITA NO.164/PN/2009 FOR THE BLOCK PERIOD 1997-98 TO 2003-04. 7. BEFORE US, LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE LOWER AUTHORITIES AND FURTHER SUBMITTED THAT OF THE CONSIDERATIO N OF RS. 45 LAKHS, RS. 35 LAKHS WAS NEVER RECEIVED BY THE ASSESSEE OR HER HUSBAND AS THE CHEQUES ISSUED BY MR. PRAKASH LADDHA WERE NOT HONOURE D BY HIM AND IN SUCH A SITUATION, NO ADDITION WAS CALLED FOR IN THE PRESENT CASE. THE LD.A.R. SUBMITTED THAT SINCE THE ORDER HAS BEEN RECALLED, T HE JURISDICTIONAL ISSUE OF ASSESSMENT FRAMED U/S 158BD ALSO NEEDS TO BE D ECIDED NOW. SHE SUBMITTED THAT THE AO HAS ERRED IN INVOKING ACTION U/S 1 58BD OF THE ACT MORE SO, AS THE RESPECTIVE INVESTMENTS WERE DISCLOSED BY THE ASSESSEE IN THE RETURNS OF INCOME FILED PRIOR TO SEARCH. SHE THEREFORE SUBMITTED THAT THE ASSESSMENT ORDER PASSED U/S 158BD OF THE ACT BE SET ASIDE. LD. D.R. ON THE OTHER HAND, SUPPORTED THE ORDER OF LOWER AUTHORITIES. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS CONSEQUENT TO THE ORDER IN MISCELLANEOUS APPLICATION (M.A.) FILED BY THE ASSESSEE A GAINST THE ORDER OF THE TRIBUNAL DATED 29.06.2016. THE TRIBUNAL WHILE DECIDING THE APPEAL OF THE ASSESSEE IN THE FIRST ROUND HAD DECIDED THE ISSUE OF 158BD VIDE PARA 7 AND 8 AND HELD AS UNDER : 6 7. WE HAVE HEARD THE SUBMISSIONS MADE BY RIVAL SID ES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE FIRST ARGU MENT RAISED BY THE LD. AR IS WITH RESPECT TO VALIDITY OF PROCEEDINGS U/S. 158BD. WE FIND THAT THE ASSESSEES HAD NEITHER RAISED THIS GROUND BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) NOR THIS GROUND HAS BEEN TAKEN IN THE GROUNDS OF APPEAL BEFORE THE TRIBUNAL. THE LD. AR FOR THE FIRST TIME HAS ASSA ILED THE INVOKING OF JURISDICTION U/S. 158BD IN ORAL ARGUMENTS BEFORE TH E TRIBUNAL. THE LD. DR HAS STRONGLY OBJECTED TO THE SAME. IT IS A WELL SETTLED LAW THAT THE APPELLANT CAN RAISE FRESH LEGAL GROUND BEFORE THE TRIBUNAL EVEN I F IT IS NOT TAKEN BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, THE APPELLANT H AS TO MAKE AN APPLICATION FOR RAISING SUCH ADDITIONAL GROUND. NATIONAL THERMA L POWER CORP. LTD. V. CIT 229 ITR 383 (SC). DE`HORS THE FACT THAT INVOKING OF JURISDICTION U/S. 158 BD HAS BEEN CHALLENGED WITHOUT ANY FORMAL APPLICATION FOR ADMITTING ADDITIONAL GROUND, WE ARE DECIDING THIS ISSUE. 8. DURING THE COURSE OF SEARCH PROCEEDINGS IN THE C ASE OF LADDHA GROUP, DOCUMENTS RELATING TO SALE OF SHARES OF VASTUKRIPA CONSTRUCTION (I) PVT. LTD. WERE FOUND AND SEIZED. SH. PRAKASH LADDHA AND HIS W IFE SMT. ARUNA P. LADDHA HAD PURCHASED 400 SHARES EACH IN VASTUKRIPA CONSTRUCTION (I) PVT. LTD. FROM THE ASSESSES IN FINANCIAL YEAR 1999-2000. IN STATEMENT RECORDED U/S. 132(4), SH. PRAKASH LADDHA ADMITTED THE PURCHA SE OF SHARES. FOR VERIFICATION OF FACTS, ASSESSES WERE SUMMONED U/S. 131. ON THE BASIS OF DOCUMENTS SEIZED, VERIFICATION OF CASE RECORDS AND THE STATEMENTS RECORDED, IT TRANSPIRED THAT ASSESSES HAVE NOT RETURNED THE CAPI TAL GAINS ON SALE OF SHARES IN THEIR RESPECTIVE RETURN OF INCOME. IN THE BACK DROP OF THESE FACTS NOTICE U/S. 158BD WAS ISSUED TO THE ASSESSEES. THE PROVISIONS OF SECTION 158BD CAN BE INVOKED WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY UNDISCLOSED INCOME OF A PERSON OTHER THAN ONE AGAIN ST WHOM SEARCH WAS CONDUCTED IS REFLECTED IN THE BOOKS OF ACCOUNTS/DOC UMENTS OF THE PERSON SEARCHED. WE FIND THAT AFTER RECORDING OF SATISFACT ION NOTICE U/S. 158BD WAS ISSUED TO THE ASSESSEES BY THE ASSESSING OFFICER ON 29-09-2004. THE LD. AR OF THE ASSESSEES HAS CONTENDED THAT THE ENTIRE INCO ME HAS BEEN ACCOUNTED FOR AND IS REFLECTED IN THE BALANCE SHEET OF THE AS SESSEES. HOWEVER, NO DOCUMENTARY EVIDENCE HAS BEEN PLACED ON RECORD IN S UPPORT OF SUCH CONTENTIONS. FURTHER, THE LD. AR HAS NOT BEEN ABLE TO SHOW THAT THE ASSESSEES HAVE DISCLOSED CAPITAL GAINS ON SALE OF SHARES IN A NY OF THE IMPUGNED ASSESSMENT YEARS. THUS, WE ARE NOT INCLINED TO ACCE PT THE CONTENTIONS OF THE ASSESSEES THAT INVOKING OF JURISDICTION U/S. 158BD IS UNJUSTIFIED. ACCORDINGLY, WE REJECT THE SAME. 9. THEREAFTER, THE ISSUE WAS DECIDED ON THE MERITS OF THE CASE VIDE PARA NO.9 ONWARDS. THE ASSESSEE FILED M.A. AGAINST THE ORDER O F THE TRIBUNAL AND IN PARA 1 OF THE M.A. THE ASSESSEE REFERRED TO THE DECISIONS OF TRIBUNAL IN PARAS 11 AND 12 AND HAS ADJUDICATED THE ISSUE. THE ISSUE WAS DECIDED BY THE TRIBUNAL ON THE BASIS OF THE MATERIAL WHICH WAS NEV ER CONFRONTED TO THE ASSESSEE I.E., THE LETTER OF SHRI PRAKASH P. LADDHA MEN TIONED IN PARA NO.11 OF THE TRIBUNALS ORDER. WE HAVE PERUSED THE M.A. FILED BY THE ASSESSEE AND FIND NO MENTION OF PARAS 7 AND 8 OF THE ORD ER OF THE TRIBUNAL DATED 10.07.2015 BY WHICH THE TRIBUNAL DECIDED THE ISSUE O F INVOKING JURISDICTION U/S 158BD OF THE ACT. 7 10. THE LD.A.R. FOR THE ASSESSEE STATES THAT WHILE DECIDING THE M.A. IN M.A.NO.45/PN/2015 ORDER DATED 29.06.2016, THE TRIBUNAL HAD RECALLED ITS ORDER AND REGISTRY WAS ASKED TO LIST THE APPEAL OF THE A SSESSEE FOR FRESH HEARING AFTER DUE COURSE. IN THIS REGARD, IT IS THE CASE OF THE ASSESSEE THAT BOTH THE ISSUES OF THE JURISDICTION I.E., THE APPLICATION OF P ROVISIONS OF SEC.158BD AND ON MERITS HAVE BEEN RECORDED. WE FIND NO MERIT IN THE SAID PLEA OF THE ASSESSEE. THE M.A. IS CLEARLY FOR THE LIMIT ED PURPOSE WHEREIN THE REFERENCE WAS ONLY MADE TO THE ISSUE DECIDE D IN PARAS 11 AND 12 I.E., THE ISSUE DECIDED ON MERITS. NO REFERENCE MADE TO PARAS 7 AND 8 OF THE ORIGINAL ORDER OF THE TRIBUNAL ORDER BY WHICH THE JUR ISDICTIONAL ISSUE WAS DECIDED. HENCE, THIS PLEA OF THE ASSESSEE IS DISMISSED. 11. NOW COMING TO THE ISSUE RAISED ON MERITS OF THE CASE WHETHER IN THE PRESENT FACTS, ANY ADDITION IS WARRANTED ON ACCOUNT OF TH E SALE OF SHARES OVER AND ABOVE THE CHEQUE AMOUNT RECEIVED BY THE ASS ESSEE AND SHRI JANARDHAN R. KAPSE. THE ASSESSEE MS. ARUNA KAPSE HAD SOLD 400 SHARES FOR CONSIDERATION OF RS.13 LAKHS AND THE OTHER ASSESSEE S HRI JANARDHAN R. KAPSE HAD SOLD 400 SHARES AT RS.32 LAKHS. THE TOTAL SALE CONSIDERATION WAS FIXED AT RS.45 LAKHS. BOTH THE ASSESSEES CLAIM TO H AVE RECEIVED RS.5 LAKH EACH BY CHEQUE FROM SHRI PRAKASH LADDHA. FOR THE REMAINING AMOUNT, POST DATED CHEQUES WERE ISSUED WHICH WERE DISHONOURE D. 12. DURING THE COURSE OF SEARCH, IN THE CASE OF PRAKASH G ROUP, PRAKASH LADDHA AND HIS WIFE MRS. ARUNA LADDHA ACCEPTED THE PUR CHASE OF SHARES FOR A TOTAL CONSIDERATION OF RS.45 LAKHS. DURING THE COURSE OF 158 BD PROCEEDINGS, THE ASSESSEE CLAIMED THAT THE AMOUNT DUE F ROM PRAKASH LADDHA ON ACCOUNT OF DISHONOUR OF CHEQUES WERE NOT REC EIVED TILL DATE AND ISSUE AROSE BETWEEN THE PARTIES WHEREIN THE CASE WAS PENDING BEFORE THE DISTRICT COURT, NASHIK. THE ASSESSEE CLAIMS THAT THEY H AD ONLY RECEIVED THE SUM OF RS.5 LAKHS EACH. ANOTHER PLEA RAISED WAS THAT THE THEY HAVE SPENT 8 A SUM OF RS.17,49,617/- FOR IMPROVEMENT OF SITE OF LAND. THE AO WAS OF THE VIEW THAT SINCE BOTH THE ASSESSEES HAD EQUAL NUMB ER OF SHARES IN VASTUKRUPA CONSTRUCTION (INDIA) PVT. LTD., THEN THE SALE C ONSIDERATION SHOULD BE EQUALLY DIVIDED. THUS, AO COMPUTED THE LONG TE RM CAPITAL GAINS ON THE SALE OF SHARES AFTER GIVING BENEFIT OF INDEXATION. H OWEVER, THE CLAIM OF UNSECURED LOAN GIVEN FOR IMPROVEMENT OF SITES WAS NOT ALLOWED. 13. THE ISSUE WHICH WAS DECIDED BY THE TRIBUNAL WAS ON TH E MERITS OF THE CASE ON THE ADMISSION OF THE ASSESSEE THAT IT WAS T O BE RECEIVED RS.45 LAKHS AS SALE CONSIDERATION. THE NEXT CONTENTION WAS T HAT IT HAD ONLY RECEIVED RS.10 LAKHS AND THE BALANCE RS.30 LAKHS WAS NOT RECEIVED BY THE ASSESSEE TILL THE DATE OF TRANSACTION. SINCE THE POST DA TED CHEQUES REMAINED DISHONOURED, THE ASSESSEE ALSO CLAIMED DEDUCTION ON ACCOUNT OF EXPENDITURE INCURRED FOR IMPROVEMENT OF SITE TOTALING TO RS .17,49,617/- AND CLAIMED THAT THE SAME WAS IN THE NATURE OF UNSECUR ED LOAN TO THE COMPANY. THE ASSESSEE FURTHER CLAIMED THAT SUM OF RS.45 LAKHS WAS NOT ONLY TOWARDS TRANSFER OF SHARES BUT ALSO REPAYMENT OF COST OF IMPROVEMENT OF SITE. THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE OF PAYM ENT OF THE AMOUNT TOWARDS IMPROVEMENT OF SITE AND THIS PLEA OF THE A SSESSEE WAS REJECTED. BEFORE US ALSO NO SUCH EVIDENCE HAS BEEN FILED. IN ANY CASE, THE ASSESSEE HAD CLAIMED TO HAVE SOLD THE SHARES FOR A SUM OF RS.45 LAKHS AGAINST WHICH IT HAD JOINTLY RECEIVED RS.10 LAKHS AND FOR BALANCE THERE WAS DISPUTE PENDING BEFORE THE DISTRICT COURT, NASHIK. WHILE AS SESSING THE INCOME UNDER THE HEAD OF CAPITAL GAINS, THE SALE CONSIDERAT ION OF THE ASSETS SOLD IS TO BE TAKEN INTO ACCOUNT, WHETHER THE AMOUNT IS RECEIVED OR TO BE RECEIVABLE IN FUTURE. UNDOUBTEDLY SINCE THE ASSESSEE ONL Y PLEADS THAT THEY RECEIVED RS. 5 LAKHS EACH TOWARDS SALE CONSIDERATION, IT SH OULD BE ADOPTED. BUT THE TRANSACTION WAS FOR A SUM OF RS.45 LAKHS JOINTLY TO BE RECEIVED BY THE TWO PERSONS. HENCE, FOR THE PURPOSE OF INCLUSION OF CA PITAL GAINS, THE SAID AMOUNT IS TO BE ADOPTED IRRESPECTIVE OF THE FACT THA T THE BALANCE 9 AMOUNT HAS NOT BEEN RECEIVED. WE HAVE DECIDED THIS ISSU E ON THE BASIS OF THE FACTS AND THE LAW POINT. THE PLEA OF THE ASSESSEE IN THE M.A. PROCEEDING WAS THAT IT HAD NOT RECEIVED COPIES OF SEIZED DOCUMENTS AND HENCE, THAT EVIDENCE CANNOT BE USED AGAINST THE ASSESS EE. THE TRIBUNAL IN M.A. HAD ACCEPTED THE SAID PLEA OF THE ASSESSEE. HOWEVER WE HAVE PROCEEDED TO DECIDE THE APPEAL ON THE MERITS OF THE CAS E KEEPING IN MIND THE FACTS AND LAW INVOLVED AND ARE NOT DECIDING THE ISSUE ON THE BASIS OF THE SEIZED DOCUMENTS. IN VIEW THEREOF, THE PLEA OF THE LD . D.R. FOR THE REVENUE IS THAT IT WAS IMMATERIAL WHETHER THE SALE CONSIDE RATION WAS RECEIVED IN FULL OR PART WHILE DECIDING THE ISSUE OF THE CAPITA L GAINS IS ACCEPTED AND THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE DISM ISSED. 14. IN THE RESULT, BOTH THE APPEALS OF ASSESSEES ARE DI SMISSED. ORDER PRONOUNCED ON 16 TH DAY OF OCTOBER, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 16 TH OCTOBER, 2019. YAMINI !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1, NAGPUR. CIT (CENTRAL), NAGPUR. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.