Saket Bansal, V. ACIT,

ITA 165/PAT/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1175 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 15-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R K MISHRA
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Corroborative evidences
• Section: 50C

Judgement Text

1 ITA NO. 165/PAT/2014. IN THE INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH, PATNA. BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 165/PAT/2014. ASSESSMENT YEAR : 2005 - 06. SHRI SAKET BANSAL, ASSTT. COMMISSIONER OF INCOME - TAX, A - 153, NEW FRIENDS COLONY, VS. CENTRAL CIRCLE - 1, PATNA. NEW DELHI - 110065. APPELLANT. RESPONDEN T. APPELLANT BY : NONE (WRITTEN SUBMISSIONS) RESPONDENT BY : SHRI R .K. MISHRA. DATE OF HEARING : 03 - 08 - 2016 DATE OF PRONOUNCEMENT : 23 RD SEPT., 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, PATNA DATED 03 - 07 - 2014 AND PERTAINS TO ASSESSMENT YEAR 200 5 - 06 . THE GROUNDS OF APPEAL READ AS UNDER : 1. IT IS CONTENDED THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME - TAX (APPELS) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF RS.6,09,367/ - MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF INDEXED COST OF IMPROVEMENT OF LAND HOLDING THE SAME TO BE UNEXP LAINED INVESTMENT. 2. IN THIS CASE THE AO MADE AN ADDITION OF RS.14,67,470/ - ON ACCOUNT OF UNDISCLOSED LONG TERM CAPITAL GAIN BY THE ASSESSEE. THE ASSESSEE HAS SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD SOLD AGRICULTURAL LAND FOR A SALE CONSIDERATION OF RS.35,00,000/ - VIDE REGISTERED SALE DEED DATED 28 - 05 - 2 ITA NO. 165/PAT/2014. 2004 . THE VALUE ADOPTED FOR THE PURPOSE OF STAMP DUTY WAS RS.51,51,570/ - WHICH HAS BEEN CONSIDERED BY THE AO AS SALE CONSIDERATION FOR THE PURPOSE OF ASSESSING LONG TERM CAPITAL GAIN INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT AND CONSEQUENTLY ASSESSING THE LONG TERM CAPITAL GAIN OF RS.14,67,470/ - . 3. UPON ASSESSEES APPEAL LEARNED CIT(APPEALS) HAS AFFIRMED THIS ACTION. THE ASSESSEE HAS NOT FILED APPEAL AGAINST THIS ADDITIO N. HOWEVER, THE AO HAS ALSO MADE DISALLOWANCE ON ACCOUNT OF COST OF IMPROVEMENT OF LAND AND MADE AN ADDITION OF RS.6,09,367/ - . THIS CLAIM OF COST OF IMPROVEMENT IN THE LAND BY THE ASSESSEE WAS NOT ACCEPTED BY THE AO ON THE GROUND THAT THE ASSESSEE HAD NOT FURNISHED RELEVANT DETAILS AND EVIDENCES. LEARNED CIT(APPEALS) HAS AFFIRMED THIS ADDITION HOLDING AS UNDER : THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CONSIDERED. THE AO HAS CATEGORICALLY MENTIONED THAT NO EVIDENCE IN SUPPORT OF DEVELOPMENT OF LAND WAS FILED BEFORE HIM. OTHER T HAN MAKING A CLAIM TOWARDS THE COST OF IMPROVEMENT OF LAND NO EVIDENCED IN SUPPORT OF SUCH CLAIM HAS BEEN FURNISHED DURING APPELLATE PROCEEDINGS. IN VIEW OF TH E SAME NO INTERFERENCE IS CONSIDERED NECESSARY IN THE ADDITION MADE BY THE ASSESSING OFFICER. 4. AGAINST THIS ORDER THE ASSESSEE HAS FILED APPEAL BEFORE THE ITAT. 5. THOUGH NONE APPEARED ON BEHALF OF THE ASSESSEE BUT THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS AND HAS ASKED THE BENCH TO CONSIDER THE SAME IN DISPOSING OF THE APPEAL. 6. ACCORDINGLY I HAVE HEARD THE LEARNED D.R. AND PERUSED THE RECORDS. IN SUPPORT OF THE CLAIM OF COST OF IMPROVEMENT THE ASSESSEES ARGUMENTS IN THE WRITTEN SUBMISSIONS ARE AS UNDER : 1. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD SOLD AG RICULTURAL LAND FOR A SALE CONSIDERATION OF RS.35,00,000/ - VIDE REGISTERED SALE DEED DATED 28.05.2004. THE VALUE ADOPTED FOR THE PURPOSE OF STAMP 3 ITA NO. 165/PAT/2014. DUTY WAS RS.51,51,570/ - WHICH HAS BEEN CONSIDERED BY THE LD. AO AS SALES CONSIDERATION FOR THE PURPOSE OF ASSE SSING LONG TERM CAPITAL GAIN INVOKING THE PROVISIONS OF SECTION 50C OF HE ACT AND CONSEQUENTLY ASSESSING THE LONG TERM CAPITAL GAIN OF RS.14,67,470/ - . 2. IN THE RETURN OF INCOME THE APPELLANT HAD CLAIMED COST OF IMPROVEMENT OF LAND AMOUNTING TO RS.4,45,600/ - INCURRED IN THE FINANCIAL YEAR 1998 - 99 AND CONSEQUENTLY INDEXED COST WAS CLAIMED AT RS.6,09,367/ - (APB 8) FOR CALCULATING LONG TERM CAPITAL GAIN ON THE SALE OF AGRICULTURAL LAND. 3. THE LD. AO HAS ALSO DISALLOWED INDEXED COST OF IMPROVEMENT OF RS.6,09,367/ - TREATING THE SAME TO BE UNEXPLAINED INVESTMENT AS THE ASSESSEE DID NOT FURNISH SUPPORTING EVIDENCE FOR EXPENSES INCURRED FOR DEVELOPMENT OF LAND. (PARA 5 AT PAGE 3 OF ASSESSMENT ORDER) 4. IN PARA 3 OF THE ASSESSMENT ORDER (PAGE 2) THE LD. AO HAS ALSO OBSERVE D AS UNDER : IT IS OBSERVED THAT THE ASSESSEE DOES NOT MAINTAIN PROPER BOOKS OF ACCOUNT. THE CASE WAS DISCUSSED. THE ASSESSEE FILED THE DEAILS AL ONG WITH THE EVIDENCES. 5. BEFORE THE LEARNED CIT(APPEALS) IT WAS REITERATED THAT THE APPELLANT HAD NOT MAINTAINED BOOKS OF ACCOUNT BEING AN INDIVIDUAL IS NOT OBLIGATED UNDER THE LAW TO MAINTAIN THE SAME. 6. AS THE APPELLANT BEING AN INDIVIDUAL ASSESSEE NOT OBLIGATED TO MAINTAIN BOOKS OF ACCOUNT THEREFORE HE COULD NOT ADDUCE DETAILED EVIDENCES FOR THE EXPENDITU RE INCURRED ON IMPROVEMENT OF LAND SUCH AS FENCING ETC. THE COST WAS INCURRED IN FINANCIAL YEAR 1998 - 99 AND THE REASSESSMENT WAS FRAMED IN THE MONTH OF DECEMBER, 2007 I.E. AFTER A GAP OF ABOUT 8 YEARS IT WAS NOT PRACTICABLE FOR THE ASSESSEE TO GATHER AND A DDUCE SUCH OLD EVIDENCES IN RESPECT OF THE COST OF IMPROVEMENT. FURTHER IT IS NOT IMPROBABLE THAT COST OF IMPROVEMENT IS INCURRED FOR THE FENCING AND UTILIZATION OF THE AGRICULTURAL LAND SITUATED ON THE OUTSKIRTS OF DELHI WHICH WAS ACQUIRED IN THE YEAR 19 95 - 96 AND THE LD. AO HAS ALSO NOT DOUBTED THE COST OF IMPROVEMENT AND HAS TREATED THE SAME AS UNEXPLAINED INVESTMENT DISALLOWING THE CLAIM ONLY ON THE GROUND THAT THE APPELLANT COULD NOT FURNISH EVIDENCES IN RESPECT OF THE SAME. 7. PER CONTRA LEARNED D.R. CLAIMED THAT WITHOUT PRODUCING ANY EVIDENCE OF THE COST INCURRED, THE ASSESSEES CLAIM OF EXPENDITURE INCURRED FOR IMPROVEMENT 4 ITA NO. 165/PAT/2014. OF THE LAND HAS RIGHTLY BEEN DISALLOWED BY THE AUTHORITIES BELOW. HENCE HE CLAIMED THAT THE ADDITION BE SUSTAINED. 8. UPON CAREFUL CONSIDERATION I FIND THAT AS AGAINST THE SALE CONSIDERATION SHOWED OF RS.35,00,000/ - ON SALE OF LAND THE AO HAS ADDED RS.14,67,470/ - ON THE GROUND THAT STAMP DUTY VALUE WAS RS.51,51,570/ - . THIS ADDITION BY THE AO WAS SUSTAINED BY THE LEARNED CIT(AP PEALS) AND THE ASSESSEE HAS ACCEPTED THE SAME AND HAS NOT FILED APPEAL AGAINST THE SAME BEFORE THE ITAT. HOWEVER, THE ASSESSEE HAS ALSO CLAIMED COST OF IMPROVEMENT OF RS. 4,45,600/ - WHICH UPON INDEXING WAS CLAIMED AT RS.6,09,367/ - . HOWEVER, NO EVIDENCE OR SUPPORTING DOCUMENT WAS PRODUCED IN SUPPORT OF THE CLAIM OF COST OF IMPROVEMENT. THUS THIS CLAIM OF THE ASSESSEE WAS DENIED BY THE AUTHORITIES BELOW. BEFORE THE ITAT ALSO EXCEPT FOR CLAIMING THAT COST OF IMPROVEMENT WAS INCURRED, NO COGENT EVIDENCE HAS BE EN BROUGHT ON RECORD. IN THESE CIRCUMSTANCES, IN MY CONSIDERED OPINION, THERE IS NO INFIRMITY IN THE ORDERS OF THE FIRST APPELLAT E AUTHORITY. ACCORDINGLY I UPHOLD THE SAME. 9. IN THE RESULT THIS APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF SEPT., 2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. DATED: 23 RD SEPT., 2016. 5 ITA NO. 165/PAT/2014. COPY FORWARDED TO : 1. SAKET BANSAL, A - 153, NEW FRIENDS COLONY, NEW DELHI - 110065. 2. A.C.I.T., CENTRAL CIRCLE - 1 , PATNA. 3. C.I.T. - PATNA. 4. CIT(APPEALS) - I, PATNA. 5. D.R., ITAT, PATNA. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH, PATNA. WAKODE.