Sh. Brij Bhushan Aggarwal, Saharanpur V. ITO, Saharanpur

ITA 214/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3460 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 19-04-2017
• Assessment Year: 2014-2015
• Appeal Filed On: 12-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: BEDOBANI CHAUDHURI
• Keywords: Additional evidence; Corroborative evidences; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.214/DEL/2017 ASSESSMENT YEAR 2014-15 BRIJ BHUSHAN AGGARWAL, 2-A/1501, POST OFFICE ROAD, SAHARNPUR. PAN: ABFPA 6529A VS. ITO, WARD-I, SAHARANPUR. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SAMEER JAIN, ADV., ASSESSEE(S) BY : MS. BEDOBANI CHAUDHURI, SR.D.R. / DATE OF HEARING : 19/04/2017 / DATE OF PRONOUNCEMENT: 24/04/2017 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F LEARNED CIT(A), MUZAFFARNAGAR, VIDE ORDER DATED 04.10.2016 FOR THE ASSESSMENT YEAR 2014- 15. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. TH A T TH E ORDER PASSED B Y THE L D. CIT(A) IS BAD IN LAW TO THE E XTENT I T C O NFIRMS THE ADDITIONS MADE BY TH E ASS E SSING OFFIC E R ON ACCOUNT O F REFUSAL TO ACCEPT THE DEDUCTIONS CLAIMED . 2. TH A T THE LD. CIT(A) ERRED ON BOTH FACTS AND IN LAW IN AS MUCH AS NOT CONSIDERING THE FACT THAT THE DEDUCTION WAS C L AIMED IN RESPECT O F IMPROVEMENTS CONDUCTED IN THE LAND I.E. FI L ING OF EARTH, ITS L OA DING , UNLOADING, TRANSPORTING AND LEVEL L ING ETC. IN THE YEAR 2004 I .E. MOR E THAN 10 Y EARS BACK , WHICH IS AN UNORGANIZED SECTOR, AND A MPL E E VIDENCE TO THAT EFFECT WAS PROVIDED B Y THE APPE LL ANT TO BOTH T H E ASS E SSING OFFICER A ND LD . CIT , APPEALS . 3. TH AT T H E LD. CIT(A) E RRED IN LAW IN REJECTING THE CONTENTIONS OF APP E LL A N T W ITHOUT PRO V IDING AN Y R E ASONING FOR THE SAME IN A NON SPEA KIN G ORD E R . ITA NO.214/DEL/2017 2 4. TH A T BOTH ASSESSING OFFICER AND LD. CI T (A) ERRED IN NOT CON D UCT ANY IN S P EC TION/ E NQUIR Y AT SITE BEFORE DISALLOWING THE INDEXED COST OF I MPROV E M E NT LAW A ND A LSO B E FOR E CONTROVERTING THE STATEMENT M A D E ON A SWORN AFFIDAVIT B Y THE APPELLANT. 5. TH AT LD . CIT (A) IGNOR E D THE SETTLED POSITION OF LAW THAT WHEN A FACT U A L S TAT E MENT IS PROV I DED B Y AN ASSESSE E IN THE FORM OF AFFI D AV I T, T H E SAID STAT E M E NT SHOULD B E DISMISSED ONL Y ON C OGENT B AS IS . IN THE INSTANT C A S E, THE LD. CI T ( A ) MERE L Y DISMISSED ST ATE M E NT WITHOUT AN Y BASIS AND WITHOUT CONSIDERING NOT ONL Y STATE M E NTS MADE BUT ALSO WITHOUT L OOKING INTO THE EVIDENCE RECOR D. 6. TH AT LD . CIT (A) ALSO ERRED M NOT CONSIDERING A VERY COGENT EVIDENCE PROVIDED BY THE APPELLANT IN THE FORM OF S CHEDULE OF RATES BY THE CENTRAL PUBLIC WORKS DEPARTMENT (CPWD). THE DEDUCTION C LAIMED BY THE APPELLANT WAS IN L I NE WITH THE RATES PRESCRIBED BY TH E CENTRAL GOVERNMENT AND STILL CIT (A) IGNORED THE SA ID EVIDENCE A ND W E NT AHEAD TO DISALLOW THE CLAIMED DEDUCTION. IT IS P ERTINENT TO M E NTION THAT NEITHER THE ASSESSING OFFICER NOR CIT(A) DEALT WITH T H E S A ID GROUND IN THEIR ORDER . 7. THAT BOTH THE ASSESSING OFFICER AND LD . CIT (A) HAVE NOT DISPUTED A N YW H E RE THAT THE LAND WHICH WAS SOLD B Y THE ASSESSEE WAS EARLIER B E IN G US E D FOR MAKING BRICKS B Y DIGGING THE SOIL/ EARTH WHICH LED IT TO B EC OM E VER Y DEEP AS COMPARED TO THE ADJOINING LAND. IT HAS ALSO NOT B EE N CONTROVERT E D THAT DIGG I NG LED TO CONSTANT WATER LOGGING A ND T HUS PROPER CULTI V ATION WAS NOT POSSIBLE WITHOUT FILLING IT UP, W HI C H TASK WAS UNDERTAKEN BY THE APPELLANT B Y INCURRING COST . 8. TH AT TH E ORDER OF LD. CIT (A) ABRUPTL Y DISMISSES THE CONTENTION OF T H E APP E LL A NT B Y STATING T HAT TH E SAME AR E NOT SUPPORTED B Y AN Y EV ID E N CE, WHILE COMPLETEL Y IGNORING THE CPWD RATES ANNEXED TO THE A PP EA L AND THE SWORN AFFIDAVIT OF THE APPELLANT HIMSELF SUBMITTING TH E S A M E . THAT SOME NEW EVIDENCE WHICH HAS COME IN THE POSSE SSION OF THE APPELLANT, PROVIDED WITH A SEPARATE AP PLICATION, A L SO CO N F IRMS TO TH E S AI D F A CT I . E . THE LAND WAS BEING USED FOR M AK IN G BRICKS AND THAT THE LAND W AS IMPROVED AS CLAIMED B Y THE A PP E LL A NT (VIDE LICENSE DATED 07 . 04.1992 ALONG WITH CERTIFICATE OF S A RP A N C H OF THE AREA W H E RE THE LAND IS LOCATED). 9. T H AT LD. ASS E SSING OFFI CE R HAS ILL E GALL Y AND W ITHOUT AN Y BASIS LA TE R O N H AS ISSUED A PENALTY NOTICE UNDER SECTION 271 OF THE IN COM E T AX A CT, 1961 IN AS MUCH AS SECTION 271 DEALS WITH CONCEALME N T OF IN C OM E B Y THE . ASSESSEE , WHICH IS NOT THE CASE ' HERE. THEREFORE, ITA NO.214/DEL/2017 3 T H E SA ID NOTIC E OF L EVY OF PENAL TY N EE DS TO BE SET ASIDE ON THAT BASIS . 2. THE ASSESSEE HAS ALSO SUBMITTED ADDITIONAL EVIDE NCES, I.E., THE CERTIFICATE OF LICENSE GRANTED BY THE MUNICIPAL COR PORATION OF MUZAFFARNAGAR DATED 14.01.2005 AND AFFIDAVIT BY SAR PANCH OF THE VILLAGE DATED 21.12.2016. 3. LEARNED COUNSEL FOR THE ASSESSEE APPEARING BEFOR E ME COULD NOT ESTABLISH THE REASONS FOR NOT SUBMITTING THESE EVID ENCES BEFORE THE AUTHORITIES BELOW AND ESPECIALLY THE CERTIFICATE WH ICH HE CLAIMS TO BE THE AFFIDAVIT OF SARPANCH WHICH IS DATED 21.12.2016 AND WHAT PREVENTED THE ASSESSEE TO PROCURE SUCH CERTIFICATE DURING THE ASS ESSMENT PROCEEDINGS OR APPELLATE PROCEEDINGS. THE SPECIFIC QUESTION WAS AR GUED FROM THE LEARNED AR WHICH SHOULD NOT BE UNSERVED IN THE OPEN COURT A ND ACCORDINGLY LEARNED AR HAS FAILED TO SUBSTANTIATE AND ESTABLISH THE NEC ESSITY OF SUCH ADDITIONAL EVIDENCE AT THIS STAGE. ACCORDINGLY SUCH EVIDENCES, APPEARED TO BE AFTERTHOUGHT. ACCORDINGLY THE ADDITIONAL EVIDENCES SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE ARE REJECTED. 4. AS REGARDS THE FACTS OF THE PRESENT CASE WHICH A RE REPRODUCED IN THE ORDER OF THE LEARNED CIT(A) IN PARAGRAPH 3 IS REPRO DUCED HEREINBELOW. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS FOUND THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE SOLD 20 BIGHA S OF LAND FOR A TOTAL SALE CONSIDERATION OF RS.70,54,000/-. IN THE COMPUTATION OF LONG TERM CAPITAL GAIN THE ASSESSEE HAS CLAIMED INDEXED COST OF FILLING OF SOIL IN BHATTA LAND FOR 20 BEGHAS AT RS.9,78,125/-. IN THIS REGARD THE ASSESSE E WAS ASKED VIDE ORDER SHEET ENTRY DATED 06.10.2015 TO PRODUCE SOME PROOF TO SUB STANTIATE HIS CLAIM. O N 09. 11. 2015 THE ASSESSEE F IL E D A N A FFI DAV I T STA T I NG TH A T ' A S R EG ARDS T HE L AND FILI N G OF 20 BIGHAS LAND L YING LOW AS COM PA R E D TO RO A D L E V E L AN D INV E STED R S . F I V E LAC S ON CONTRACT BASIS INCLUDING T HE COST OF SOIL, LOADING TRANSPORTATION OF S O I L , UN LOAD IN G ITA NO.214/DEL/2017 4 AND LEVELING ALSO IN THE YEAR 2004 AND AS THE DEPONENT SAID EARLIER NO BOO KS OF ACCOUNT HAS BEEN MAINTAINED, THERE IS NO OTHER EVIDENCE WITH THE DEP ONENT A FT E R TEN YEARS FOR THIS INVESTMENT. FURTHER ON 16 . 11 . 2015 NOTICE U/S 1 42(1) OF T H E L . T . ACT ALONGWITH PROPOSED SHOW CAUSE NOTICE BEFORE MAKING ADDITION WAS ISSUED , FIXING THE DATE FOR COMPLIANCE ON 23 . 11.2015 . ON THE DATE FIXED THE ADVOCATE OF THE ASSESSEE ATTE NDED THE PROCEEDINGS BUT HE COULD NO T P R O D U C E A N Y EVID E NCE REGARDING ABOVE CLAIM OF INDEXED COST OF FILLIN G SOIL AT RS.9)8 , 125/- . FROM THE ABOV E DISCUSSION IT IS CLEAR THAT THE ASSESSEE DOES NOT HAVE ANY SINGLE DOCUMEN T ARY P R OOF REGA R DING H I S C L AIM OF I NDEXED COS T OF FILLING SOIL AT RS . 9 , 78,125/- . IN T H E ABSENCE OF ANY PROOF THE AMOUNT C L A I MED AS INDEXED COST OF FILLING OF SO I L I N BHATTA LAND CANNOT BE ALLOWED TO THE ASSESSEE . THEREFORE, THE SAME IS HEREBY ADDED TO THE TOTAL INCOME OF THE ASSESSEE. (ADDITION RS.9 , 78, 125/-) 5. LEARNED CIT(A) IN FACT DISMISSED THE GROUNDS OF THE ASSESSEE AND HIS FINDINGS WHICH IN PARAGRAPH 6 ARE REPRODUCED HEREIN BELOW. 6. TH E FA C TS OF THE CASE AS W ELL AS SUBMISSION M A D E B Y THE A PPELLANT HAVE BEEN CONSIDERED. IN THIS CASE THE APP E LLANT HAS SOLD 20 BIGHAS OF LAND FOR CONSIDERATION OF RS.7054000/- AND HAS SHOWN LONG TERM CAPITAL GAI N UPON THE SAME. IN THE COMPUTATION , THE APPELLANT HAS CLAIMED COST OFRS.978125 1 - ON ACCOUNT OF LAND FILLING IN THE YEAR 2004. THE APPELLANT HAS FAILED TO SUBSTANTIATE THE CLAIM IN RESPECT TO THE SAME DURING THE ASSESSMENT PROCEEDIN GS B Y NOT FURNISHING ANY DOCUMENTARY EVIDENCE TO SUPPORT THE SAME. ACCO R DINGLY THE A.O. HAS DISALLOWED THE AMOUNT OF RS . 978125 1 - AS DEDUCTION FROM THE COMPUTATION OF LONG TERM CAPITAL GAIN. DURING THE APPELLATE PROCEEDINGS ALSO THE APP E LLANT COULD NOT FUR NISH AN Y E V IDENCE TO SUPPORT HIS C LAIM ON THIS ACCOUNT . THE ONUS WAS ON THE APPELLANT TO FURNISH SATISFACTORY EXPLAN ATION WITH SUPPORTING EVIDENCES. HOWE V ER , THE APPELLANT HAS FAILED TO DISCHARGE THE ONUS COST UPON HIM. IN THE CIRCUMSTANCES THE AO WAS JUSTIFIED TO COMPUT E THE CAPITAL GAIN BY DISALLOWING SUM OF RS.9 , 78 , 125/-. THE SAME IS HEREBY CONFIRMED. GROUNDS OF APPEAL NOS.1 TO 5 ARE DISMISSED. 6. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. A SPECIFIC QUESTION WAS RAISED BEFORE THE LEARNED AR BY THIS COURT THAT WHY THE DOCUMENTARY EVIDENCES IN SUPPORT OF THE CLAIM OF TH E ASSESSEE WAS NOT PUT FORWARD BEFORE ANY AUTHORITIES BELOW. LEARNED AR FA ILED TO THE SAID QUESTION OF THE COURT. THERE WAS NOT PLACED AS DOCU MENTARY EVIDENCE ON RECORD BEFORE ANY AUTHORITIES BELOW OR EVEN BEFORE ME TO SHOW THAT ITA NO.214/DEL/2017 5 EXPENDITURE OF RS.9,78,125/- HAS ACTUALLY BEEN INCU RRED ON ACCOUNT OF LAND FILLED IN THE YEAR 2004. THE ASSESSEE HAS ALSO NOT FILED ANY VALUATION REPORT OF THE REGISTERED VALUER TO SUBSTANTIATE HIS CLAIM. THE LEARNED AR IN FACT BLAMED THE AUTHORITIES BELOW THAT NO INQUIRY HAS BE EN CONDUCTED BY ANY OF THE AUTHORITIES BELOW ON THE SAID LAND AND IT WAS T HE DUTY OF THE OFFICER BELOW TO DO THE SAME. THE ASSESSEE HAS PRODUCED THE PWD RATES IN THIS REGARD, IT SHOULD HAVE BEEN TAKEN INTO CONSIDERATIO N BY THE AUTHORITIES BELOW AND BY THE BENCH. SUCH TYPE OF PLEADINGS BEFORE THE BENCH IN FACT CANNOT HELP THE ASSESSEE AND ARE WITHOUT ANY DOCUMENTARY E VIDENCE, THEREFORE, ARE REJECTED. THUS, ALL THE GROUNDS OF THE ASSESSEE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 24 TH APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: 24/04/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR