Sarwar Mohd. Khan, Bhopal V. Assistant Commissioner of Income Tax 2 (1), Bhopal

ITA 191/Ind/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1879 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 10-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADITYA SHUKLA
• Keywords: Cost of acquisition
• Section: 6; 143(3); 142(1); 143(2); 48; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE (CONDUCTED THROUGH VIRTUAL COURT) BEFORE Ms. MADHUMITA ROY, JUDICIAL MEMBER & SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT MEMBER I .T .A . N o .1 9 1 /I n d / 2 0 2 1 ( A s se ss m e n t Y e a r : 2 0 0 8 - 0 9 ) Sh r i Sa r w a r M o h d . K h a n Fla t N o . 4 0 2 , Q u e e n s Pa la c e , K o h e f iz a H u z u r , B h o p a l , M . P. 4 6 2 0 0 1 V s. C I T ( A ) N FA C N a t io n a l Fa c e l e s s A p p e a l C e n tr e , D e l h i PA N N o .A N P P K 7 3 3 6 R (Appellant) .. (Respondent) Appellant by : None Respondent by : Shri Aditya Shukla, Sr. DR D a t e o f H e a r i ng 22.06.2022 D a t e o f P r o no un c e m e nt 29.06.2022 O R D E R PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the assessee is directed against the order dated 12.07.2021 passed by the Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi arising out of the order dated 30.12.2010 passed by the ACIT- 2(1), Bhopal under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for A.Y. 2008-09. 2. There is a delay of 30 days for filing the appeal before us. An application for condonation of such delay has been filed by the assessee alongwith the affidavit affirmed by the assessee. The reason for delay due to non-functioning of New Income Tax Portal and medical issues have been ITA No.191/Ind/2021 Shri Sarwar Mohd. Khan vs. CIT(A) Asst.Year –2008-09 - 2 – considered by us which seems to be genuine. Thus, the delay is hereby condoned. 3. None appeared on behalf of the assessee at the time of call no adjournment has been sought for. However, a short submission has been filed by the assessee in favour of the case made out. On the other hand, the Ld. D.R. on the other hand relied upon the order passed by the authorities below. 4. We have heard the Ld. DR and perused the relevant materials available on record. 5. The brief facts leading to the case is this that the assessee, an individual filed its return of income declaring total income at Rs. 23,80,135/- on 24.06.2009. Such income has been derived from Long Term Capital Gain and from other sources too. Under scrutiny a notice under Section 143(2) of the Act dated 21.08.2010 followed by a questionnaire under Section 142(1) of the Act dated 22.11.2010 was served upon the assessee. The issue arose out of the transaction of selling of land alongwith five other persons situated at Village Prempura, Tehsil Huzur, District Bhopal vide registered deed dated 09.08.2007 for a total consideration of Rs. 24,12,00,000/- out of which the assessee has received an amount of Rs. 4,38,40,000/-. The assessee before the Ld. AO has furnished the photo copy of MOD under capital gain deposit scheme amounting to Rs. 3,99,00,000/- with the State Bank of India, Sultania Road, Bhopal deposited on 31.07.2008. The assessee further submitted that the impugned property was an ancestral property which has been inherited after the demise of his father in the year 1994-95. However, in the absence of any documentary evidence in support of cost of acquisition, the Ld. AO treated the ITA No.191/Ind/2021 Shri Sarwar Mohd. Khan vs. CIT(A) Asst.Year –2008-09 - 3 – cost of acquisition of impugned property as NIL and finally Rs. 39,40,000/- has been added on account of Long Term Capital Gain. 6. In appeal the Ld. CIT(A) did not allow the expenses of Rs. 39,40,000/- being brokerage paid to M/s. DSP Fin Print Ltd. of Rs. 38,40,000/- for assisting in sale of land which has already been taxed in the hands of DSP Fin Print Ltd. Such amount was paid to the broker vide Cheque No. 917764 dated 14.08.2007 of ICICI Bank Ltd. and the balance amount of Rs. 1,00,000/- is the transfer expenses thereof. 7. The case of the assessee is this that this amount of brokerage was paid through cheque by the assessee and is allowable deduction under Section 48 of the Act and rules for the calculation of Long Term Capital Gain. Moreso, the said amount of Rs. 38,40,000/- has already being taxed in the hands of the broker namely DSP Fintprint Ltd., a copy of the appellate order of the said DSP Fin Print Ltd. dated 18.11.2011 annexed to the file before us from which the said fact has been verified to be true. It is also the case of the assessee that in the case of the co-owner of the property being one of the sisters of the assessee namely Smt. Aisha Parveen Khan, the cost of acquisition has been taken as on 01.04.1981 and not 01.04.1994. The same is also applicable to the case of the assessee has already submitted by the assessee before the First Appellate Authority. Considering this aspect of the matter the value of the property as on 01.04.1981 should have been calculated at Rs. 59,000/- per acre as of the ultimate submission of the assessee. In support of this submission the assessee duly submitted the copy of the order passed by the Ld. ACIT-1(1), Bhopal dated 31.01.2010 passed in the matter of Smt. Aisha Parveen which is reflecting from the order passed by the Ld. CIT(A). However, even the entire set of documents being furnished before the Ld. CIT(A), the Ld. CIT(A) has ITA No.191/Ind/2021 Shri Sarwar Mohd. Khan vs. CIT(A) Asst.Year –2008-09 - 4 – not considered the same since the same was not placed before the Ld. AO. It is relevant to mention that no remand report has also been asked for by the Ld. CIT(A) on this documents relating to the issue involved in the mater for proper adjudication of the same. Thus, considering the entire aspect of the matter we find that a positive case has been made out by the assessee in regard to the expenses of Rs. 39,40,000/- being brokerage paid to the DSP Fin Print Ltd. particularly taking into consideration the order passed by the appellate authority in the matter of said DSP Fin Print Ltd. formerly known as Espee Finsee Ltd. We do not hesitate to grant relief to the assessee as claimed. Hence, the addition by the authorities below is hereby deleted. The Ld. AO is directed to pass order accordingly. 8. In the result, the appeal filed by the assessee is allowed. This Order pronounced in Open Court on 29 /06/2022 Sd/- Sd/- Sd/- Sd/- (BHAGIRATH MAL BIYANI) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 29/06/2022 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Indore 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, (Dy./Asstt.Registrar) O r d e r p r o n o u n c e d o n 2 9/06/ 2 0 22 b y p l a c i n g t h e r e s u l t o n t h e N o t i c e B o a r d a s p e r R u l e 3 4 ( 4 ) o f t h e In c o m e T ax ( A p p e l l a t e T r i b u n a l ) R u l e , 1 9 6 3 . ITA No.191/Ind/2021 Shri Sarwar Mohd. Khan vs. CIT(A) Asst.Year –2008-09 - 5 – ITAT, Indore 1. Date of dictation 23.06.2022 2. Date on which the typed draft is placed before the Dictating Member 23.06.2022 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S 27.06.2022 5. Date on which the fair order is placed before the Dictating Member for pronouncement .06.2022 6. Date on which the fair order comes back to the Sr.P.S./P.S .06.2022 7. Date on which the file goes to the Bench Clerk .06.2022 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................