Kishan Mehta, Udaipur V. ACIT, Circle-1, Udaipur

ITA 28/JODH/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2210 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 21-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C BADHOK
• Assessee Lawyers: ABHINAV KOTHARI
• Keywords: Application of stay; Onus to prove; Capital Gains
• Section: 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. 28/JODH/2019 (ASSESSMENT YEAR-2014-15) KISHAN MEHTA, D-19-20, SHIV PARK COLONY, DURGA NURSERY ROAD, UDAIPUR-313001. VS A.C.I.T., CIRCLE-1, UDAIPUR. (APPELLANT) (RESPONDENT) PAN: ACIPM 6039 R SA NO. 01/JODH/2020 (ARISING OUT OF ITA NO. 28/ JODH/2019) (ASSESSMENT YEAR-2014-15) KISHAN MEHTA, D-19-20, SHIV PARK COLONY, DURGA NURSERY ROAD, UDAIPUR-313001. VS A.C.I.T., CIRCLE-1, UDAIPUR. (APPELLANT) (RESPONDENT) PAN: ACIPM 6039 R ASSESSEE BY SHRI AMIT KOTHARI (CA) & SHRI ABHINAV KOTHARI (CA) R EVENUE BY SHRI K.C. BADHOK ( CIT - DR ) DATE OF HEARING 1 7 /03/2020 DATE OF PRONOUNCEMENT 20 /03/2020 O R D E R PER: R.C. SHARMA, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-1, UDAIPUR DATED 20/12/2018 FOR THE A.Y. 2014-15 IN THE MATTER OF ORDER PASSED U/S 143( 3) OF 2 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO A S THE ACT, FOR SHORT]. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE. 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-1, UDAIPUR HAS ERRED IN DISALLOWING IMPROVEMENT EXPENS ES OF RS. 2,50,000/- INCURRED IN FINANCIAL YEAR 2003-04 THOUG H PAID LONG BACK IS ILLEGAL AND BAD IN LAW. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A)-1, UDAIPUR HAS FURTHER ERRED IN DISALLOWING TRANSFER E XPENSES OF RS. 7,00,000/- AS BROKERAGE PAID IS ILLEGAL AND BAD IN LAW. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A)-1, UDAIPUR HAS ALSO ERRED IN DISALLOWING CONSTRUCTION EXPENSES OF RS. 2,32,28,644/- IS ILLEGAL AND BAD INLAW. 4. THE APPELLANT RESERVES ITS RIGHT TO ADD, AMEND, ALTER OR SUBSTITUTE ANY OF THE GROUNDS OF APPEAL ON OR BEFOR E HEARING OF APPEAL. 5. NECESSARY COST BE ALLOWED TO THE APPELLANT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PE RUSED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSIN ESS OF TRADING IN THE NAME OF RATAN TATA LAYLAND. DURING THE COURSE O F SCRUTINY ASSESSMENT OUT OF CAPITAL GAINS OFFERED BY THE ASSE SSEE, THE A.O. MADE DISALLOWANCE OF IMPROVEMENT EXPENSES OF RS. 2. 50 LACS, TRANSFER EXPENSES OF RS. 7.00 LACS PAID AS BROKERAG E AND CONSTRUCTION EXPENDITURE OF RS. 2,32,28,644/-. 3. FROM THE RECORD, WE FOUND THAT DURING THE YEAR U NDER CONSIDERATION THE ASSESSEE SOLD PROPERTY. LONG TERM CAPITAL GAINS (LTCG) ARRIVED ON SALE OF PROPERTY BY CONSIDERING S ALES CONSIDERATION 3 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT AND DEDUCTING ELIGIBLE EXPENSES THERETO I.E. COST O F LAND, CONSTRUCTION COST THEREON AND TRANSFER EXPENSES, FILED RETURN OF INCOME WITH LTCG AND OTHER REGULAR INCOME. THE A.O. HAD ASSESSED TOT AL INCOME OF RS. 6,02,39,248/- AGAINST RETURNED INCOME OF RS. 358,03 ,585/- BY MAKING FOLLOWING ADDITIONS: PARTICULAR OF ACTIVITIES ADDITIONS TOTAL INCOME AS PER RETURN OF INCOME - AS SUBMITTED ONLINE 3,58,03,585 ADD: IMPROVEMENT EXPENSES - FY 2003 - 04 RS. 250000 INDEXED COST 250000/463 * 939 5,07,019 B) TRANSFER EXPENSES 7,00,000 C) CONST RUCTION EXPENSES 2,32,28,644 2,44,35,663 TOTAL INCOME ASSESSED BY A.O. U/S 143(3) 6,02,39,248 4. THE ISSUE WITH REGARD TO DECLINE OF IMPROVEMENT EXPENSES OF RS. 2.50 LACS, THE A.O. HAS DISCUSSED THE ISSUE AT PAGE 4 PARA 3.3 OF THE ASSESSMENT ORDER. WE FOUND THAT THE LAND UNDER CONSIDERATION SITUATED AT VILLAGE NAHAR MAGRA (DHUNIMATA), PANCHA YAT NANDWEL, TEHSIL MAVLI, DISTRICT-UDAIPUR WHICH WAS PURCHASED AS AGRICULTURAL LAND VIDE SALE DEED DATED 08/03/2001. BEING THE LAND WAS NOT USED FOR A LONG PERIOD AFTER PURCHASE, INCURRED EXPENSES FOR L EVELLING, FILLING HOLES AND OTHER VARIOUS WORK MOSTLY LABOUR ORIENTED THEREON IN THE YEAR 2003-04. AFTER THAT CONSIDERING THE USE FOR BU SINESS, SAID AGRICULTURAL LAND WAS CONVERTED FOR COMMERCIAL PURP OSE AND DEPOSITED VARIOUS CHARGES ON 12/02/2007 AS DIRECTED BY THE GOVERNMENT DEPARTMENT. DURING ASSESSMENT PROCEEDING S, THE AO DEMANDED ORIGINAL VOUCHERS AND BILLS OF MATERIAL, L ABOUR, ETC. IN 4 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT SUPPORT OF IMPROVEMENT EXPENSES PURELY LABOUR WORK, CLAIMED RS. 2,50,000/- INCURRED IN THE YEAR 2003-04. DESPITE OF THE FACT THAT MATTER IS OLD ONE AND CONSISTING MOSTLY OF LABOUR W ORK, PRODUCED RECEIPT SHOWING PAYMENT MADE FROM TIME OF TIME AGAI NST CONTRACT GIVEN FOR VARIOUS WORK AT THE SITE, WHICH HAS ALSO BEEN ACKNOWLEDGED BY THE A.O. IN THE ASSESSMENT ORDER. 5. WE ALSO FOUND THAT ON PRODUCTION OF EVIDENCE OF IMPROVEMENT EXPENSES OF MORE THAN 10 YEARS OLD, THE A.O. FURTHE R ASKED TO PRODUCE THE CONTRACTOR IN PERSON. IN THAT RESPONSE, THE ASSESSEE TRIED TO CONTACT THAT WORK CONTRACTOR BUT MEANWHILE ASSES SMENT ORDER WAS PASSED BY DISALLOWING WHOLE EXPENSES MAINLY LABOUR WORK, WITHOUT CONSIDERING THE FACTS AND BASIC REQUIREMENT OF EXPE NSES ON AGRICULTURAL LAND IN VILLAGE. WE HAVE VERIFIED THE DETAILS OF IMPROVEMENT EXPENSES OF RS. 2.50 LACS SO INCURRED B Y THE ASSESSEE. GENUINENESS OF THESE EXPENSES WERE NOT DOUBTED BY T HE A.O. NOR THE WORK ALONE AT SITE WAS DISPUTED, ACCORDINGLY ABOVE, WE DO NOT FIND ANY MERIT IN THE A.OS ACTION FOR MAKING DISALLOWAN CE OF IMPROVEMENT EXPENSES OF RS. 2.50 LACS AS INCURRED BY THE ASSESS EE WITHOUT POINTING OUT ANY DEFECT IN THE NATURE AND QUANTUM O F EXPENDITURE SO INCURRED. WE FOUND THAT THE EXPENSES WERE GENUINELY INCURRED AND THE SAME DESERVES TO BE ALLOWED IN VIEW OF THE FOLL OWING JUDICIAL PRONOUNCEMENTS: 5 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT (A) A RAJENDRAN & ORS. VS ACIT (MAD) 2006(155) TAXM ANN 0364- MAD; 2006-(204)-CTR-0009-MAD HON'BLE HIGH COURT HELD THAT - WHEN THE ASSESSEE HA VE ESTABLISHED ALL THE REQUIREMENTS OF IT ACT,... REJE CTION OF THOSE EXPLANATIONS IS DEFINITELY DUE TO ARBITRARY A ND UNREASONABLE EXERCISE OF POWER.' (B) CIT VS SMT P K NOORJAHAN [1999] 237 ITR 570 (S C] ... TO TREAT THE THE EXPLANATION OFFERED BY THE A SSESSEE IS NOT FOUND SATISFACTORY AND THE SAID DISCRETION H AS TO BE EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANC ES OF THE PARTICULAR CASE. (C) LAL CHAND BHAGAT AMBIKA RAM VS. COMMISSIONER O F INCOME TAX, 37 ITR 288 (SC) ... THAT BURDEN TO PROVE THE SOURCE ... WAS ON THE ASSESSEE AND SUCH ONUS HAD BEEN DISCHARGED BY HER B Y PRODUCING OF RELEVANT RECORD'. .. (D) CIT VS. DAYA CHAND JAIN VAIDHYA 98 ITR 280 (AL L.); NARNDRA G. GORADIA (HUF) VS. CIT (234 ITR 571) (BOM ); DECISION IN THE CASE OF SUMITI DAYAL CONCLUSION THAT . . . . THE REVENUE HAD FAILED TO B RING ON RECORD ANY EVIDENCE TO SHOW THAT THE EXPLANATION OF THE ASSESSEE WAS INCORRECT. COMMENT: MERELY ASKING FOR IDENTITY OF THE PERSON A FTER PASSING OF MORE THAN TEN YEARS WITHOUT CONSIDERING THE FACTS OF ACTUAL WORK AND IMPROVEMENT AT THE SITE. IN THE CASE OF RAVI MARKETING (P) LTD VS CID [2006] 280 ITR 519 (CAL.) IT IS HELD THEREIN THAT THE SCOPE FOR THE AUTHORITI ES UNDER THE ACT OR THE COURT IS CONFINED ONLY TO EXAMINING THE PURPOSE AND THE GENUINENESS OF THE EXPENDITURE, NEI THER THE EXPEDIENCE NOR THE QUANTUM. 6 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT 7. THE A.O. HAS ALSO DISALLOWED RS. 7.00 LACS INCUR RED AS BROKERAGE. THE A.O. HAS DEALT WITH THE ISSUE AT PAG E 3 AND 4 PARA 3.2 UNDER THE HEADING EXPENSES RELATE TO LTCG. 8. WE HAVE CONSIDERED THE RIVAL CONTENTION AND FOUN D THAT THE SAID LAND WAS PURCHASED BY THE ASSESSEE AS AGRICULT URAL LAND IN THE YEAR 2001 BEING THE LAND WAS NOT USED FOR A LONG PE RIOD AFTER PURCHASE, INCURRED EXPENSES FOR LEVELLING AND FILLI NG HOLES AND OTHER VARIOUS WORK MOSTLY LABOUR ORIENTED IN THE YEAR 200 3-04. AFTER THAT CONSIDERING THE USE FOR BUSINESS, SAID AGRICULTURAL LAND WAS CONVERTED FOR COMMERCIAL PURPOSES AND DEPOSITED VARIOUS CHARG ES ON 12/02/2007 AS DIRECTED BY THE GOVERNMENT DEPARTMENT . THE ASSESSEE HAS GIVEN THIS LAND FOR THE HOTEL PROJECT TO M/S RA TAN JYOTI VILLAGE RESORTS P LTD.. TOTAL CONSIDERATION ON SALE OF ASSE SSEES PROPERTY INCLUSIVE CONSTRUCTION COST ON LAND WAS RECEIVED TH ROUGH BANK AGGREGATING TO RS. 610.00 LACS. TO EXPLORE HIGHER R EALIZATION PERSONAL EFFORTS WAS PUT ON BY THE ASSESSEE AND FOR THAT PUR POSE ASSESSEE TOOK SERVICES OF PERSON WHO ARRANGED BUYER OF THE P ROPERTY WITH REASONABLE RATES. IT IS A WELL KNOWN FACT THAT THIS TYPE OF EXPENSES OF BROKERAGE ARE ESSENTIAL IN NORMAL COURSE ALSO, WHER EAS PRESENT CASE WAS OF POSSESSION OF PROPERTY WITH LENDING INSTITUT ION AND INCOMPLETE PROJECT. THE BROKERAGE EXPENSES SO INCURRED BY THE ASSESSEE WAS ACCEPTED BY THE A.O. AND NO WHERE THE A.O. HAS MENT IONED SUCH 7 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT EXPENSES AS FALSE OR WRONG OR EXCESSIVE. THUS, THE BROKERAGE OF RS. 7.00 LACS PAID BY THE ASSESSEE WHICH IS FOUND TO BE GENUINE AND DESERVES TO BE ALLOWED. WE DIRECT ACCORDINGLY. 9. WITH REGARD TO CONSTRUCTION EXPENDITURE OF RS. 2 ,32,28,644/-, WE FOUND THAT THE AO HAS DISCUSSED THE ISSUE AT PAG E 4 TO 8 IN PARA 3.4 TO 3.6 OF THE ASSESSMENT ORDER UNDER THE HEADIN G EXPENSES RELATED TO LTCG. THE LAND UNDER CONSIDERATION SITUA TED AT VILLAGE NAHAR MAGRA (DHUNIMATA), PANCHAYAT NANDWEL, TEHSIL MAVLI, DISTRICT UDAIPUR WHICH WAS PURCHASED AS AGRICULTURAL LAND VI DE SALE DEED DATED 08/03/2001. BEING THE LAND WAS NOT USED FOR A LONG PERIOD AFTER PURCHASE, INCURRED EXPENSES FOR LEVELLING, FI LLING HOLES AND OTHER VARIOUS WORK MOSTLY LABOUR ORIENTED THEREON IN THE YEAR 2003-04. AFTER THAT CONSIDERING THE USE FOR BUSINESS, SAID A GRICULTURAL LAND WAS CONVERTED FOR COMMERCIAL PURPOSE AND DEPOSITED VARI OUS CHARGES ON 12/02/2007 AS DIRECTED BY THE GOVERNMENT DEPARTMENT . DETAILS OF COST OF IMPROVEMENT, CONVERSION CHARGES AND CONSTRU CTION COST HAS BEEN STATED IN COMPUTATION OF TOTAL INCOME. ADJOINI NG TO THIS LAND, THE ASSESSEE BROTHER LATE SHRI SUSHIL KUMAR MEHTA W AS ALSO HAVING LAND. CONSIDERING DEVELOPMENT IN THE AREA, ASSESSEE S BROTHER PLANNED TO SET UP HOTEL PROJECT ON THIS TOTAL LAND IN THE NAME OF COMPANY STYLED AS RATAN JYOTI VILLAGE RESORTS P LTD . (RJVRPL). FOR THIS HOTEL PROJECT, THE ASSESSEE GIVEN THE LAND ON LEASE TO THE 8 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT COMPANY RJVRPL FOR 18 YEARS VIDE LEASE DEED DATED 0 5/02/2010 WITH THE CONDITION THAT TOTAL CONSTRUCTION COST WOULD BE BORNE BY COMPANY AND ON VACATION AFTER COMPLETION OF LEASE PERIOD SH ALL HANDOVER TO THE ASSESSEE ON AS IT IS CONDITION. 10. FROM THE RECORD WE FOUND THAT FOR THIS HOTEL PR OJECT COMPANY RJVRPL OBTAINED TERM LOAN AGAINST THE SECURITY OF L AND FROM THE UDAIPUR CO-OPERATIVE BANK LTD. (TUUCBL). LAND WAS G IVEN TO THE COMPANY ON LEASE OF 18 YEARS AND TO THAT EFFECT OFF ERED AS SECURITY TO BANK FOR COMPANY RJVRPL WHO TOOK THE LOAN. DUE TO U NTIMELY DEMISES OF ASSESSEES BROTHER SHRI SUSHIL MEHTA IN JULY 2010 AND VARIOUS REASONS THEREAFTER, HOTEL PROJECT COULD NOT BE COMPLETED. MEANWHILE PERIOD OF REPAYMENT OF TERM LOAN STARTED AND COMPANY RJVRPL BECOME DEFAULTER IN REPAYMENT OF LOAN AND AS PER BANKING NORMS LOAN ACCOUNT BECOME NPA IN THE BOOKS OF BANKE R TUUCBL. ON COMPANYS RJVRPL DEFAULT IN REPAYMENT, BANKER (LOAN EE) TUCCBL TOOK OVER POSSESSION UNDER SARFAESI ACT IN DECEMBER , 2012 OF WHOLE PROPERTY WITH LAND AND SOLD. AFTER THAT AND B EFORE SALE OF PROPERTY THE TUCCBL TOOK AUTHORISATION CUM CONSENT FOR SALE OF PROPERTIES BY WAY OF PRIVATE TREATY SALE ON 22/02/2 013 IN WHICH CLEARLY MENTIONED BY THE ASSESSEE: I. IN PAGE 4. SALE PROCEEDS FOR THE CLEARANCE OF THE SAID LOAN SHALL BE TREATED AS THE REIMBURSEMENT OF THE C OST OF 9 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT BUILDING CONSTRUCTED ON THE SAID PROPERTIES AND/OR FOR RELEASE OF THE MORTGAGE OF THE SAID PROPERTIES 11. CONSIDERING ALL THESE STATED FACTS TUUCBL CONVE YED ITS ACCEPTANCE VIDE LETTER NO. 103 DATED 22/02/2013 OF ASSESSEES CONDITIONS AS MENTIONED IN ABOVE ASSESSEES PRIVATE TREATY CONSENT LETTER. AFTER ADJUSTMENT OF DUE LOAN AMOUNT IN THE ACCOUNT OF TUUCBL RETURNED BALANCE REALIZED AMOUNT ON SALE TO ASSESSE E. 12. THUS, TOTAL CONSIDERATION WAS RECEIVED BY THE A SSESSEE BEING LAND WAS IN THE INDIVIDUAL NAME AND SALE DEED OF LA ND WITH CONSTRUCTION THEREON EXECUTED THROUGH BANK UNDER SA RFAESI ACT. TOTAL CONSIDERATION ON SALE OF ASSESSEES PROPERTY INCLUSIVE CONSTRUCTION COST ON LAND WAS RECEIVED THROUGH BANK AGGREGATING TO RS. 610.00 LACS. 13. WE ALSO FOUND THAT BEFORE THE LOWER AUTHORITIES , THE ASSESSEE HAD SUBMITTED DETAILED STATEMENT FOR CONSTRUCTION/I NVESTMENT COST REIMBURSED TO COMPANY RS. 232,28,644 IN FY 2013-14 VIDE LETTER DATED 08/11/2016 STATING EXPENSES AND AS CLAIMED IN RETURN OF INCOME. THE A.O. OBSERVED IN PAGE NO. 5 AT PARA 3.5 OF THE ASSESSMENT ORDER ABOUT LEASE AGREEMENT DATED 05/02/ 2010 ON PARA 7, IF COMPANY TAKEN ANY LOAN ETC. BY MORTGAGE OF PR OPERTY, ANY SUCH LOAN, INTEREST, OTHER EXPENSES WILL BE BEARED BY TH E COMPANY ONLY. THE A.O. FURTHER MENTIONED ABOUT RS. 175,00,000/- O N ACCOUNT OF 10 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT NON PAYMENT OF LOAN BY COMPANY, BUT ASSESSEE IN ITS SUBMISSION STATED ABOUT THE WAY OF PAYMENT RECEIVED THROUGH BA NK ONLY, NOTHING HAS BEEN CLAIMED AS INTEREST AND OTHER EXPENSES IN THAT ACCOUNT, BEING WAS TO BE BORNE AND ACTUALLY PAID BY THE BORR OWER COMPANY RJVRPL. THIS RECOVERY THROUGH ASSESSEE SALE PROCEED S BY TUCCBL WAS ON ACCOUNT OF TERM LOAN SANCTIONED AND DISBURSE D FOR CONSTRUCTION OF RJVRPL HOTEL PROJECT, WHICH ITSELF JUSTIFY THAT CONSTRUCTION COST HAS BEEN REIMBURSED BY THE ASSESS EE TO THE COMPANY NOT PAID TO BANK ON ASSESSEES ACCOUNT. FUR THER THE SAID AMOUNT HAS BEEN CONSIDERED BY RJVRPL AS PART CONSID ERATION TOWARDS RECOVERY OF CONSTRUCTION COST IN THEIR ACCO UNT. 14. IT IS CLEAR FROM THE ABOVE THAT THE ASSESSEE WA S OWNING ONLY LAND UNDER CONSIDERATION AND CONSTRUCTION THEREON W AS MADE BY THE LOANEE COMPANY RJVRPL. THUS, THE SALE CONSIDERATION IS INCLUSIVE OF CONSTRUCTION COST ON LAND. THE ASSESSEE ONLY CLAIME D RELEVANT EXPENSES REIMBURSED ON CONSTRUCTION AS CLAIMED BY T HE COMPANY RJVRPL DURING THE PERIOD AND WHICH IS ON ACCOUNT OF REALIZATION OF COST OF LAND WITH CONSTRUCTION COST BY THE ASSESSEE WHICH WAS INCURRED BY RJVRPL. 15. THE SALE DEED ALREADY STATED THE TOTAL PROPERTY INCLUSIVE OF CONSTRUCTION WHEREAS OTHERWISE THE ASSESSEE WAS OWN ING ONLY LAND 11 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT AND ALL CONSTRUCTION EXPENSES HAVE BEEN INCURRED BY RJVRPL. WHOLE CONSTRUCTION COST HAS BEEN BORNE BY THE RJVRPL. DUE TO SALE WHOLE PROPERTY BEFORE COMPLETION OF SCHEDULED CONSTRUCTIO N WORK BY LOANEE BANK WHOLE CONSTRUCTION COST AS CLAIMED BY THE COMP ANY BEING SALE BEFORE THE AGREED LEASE PERIOD OF 18 YEARS, WAS REI MBURSED BY THE ASSESSEE. ON SALE REALIZATION OF PROPERTY CONSISTI NG OF COST OF LAND AND CONSTRUCTION, WHOLE AMOUNT RECEIVED BY THE ASSE SSEE AND ON THAT ACCOUNT ONLY HUGE LONG TERM CAPITAL GAIN WAS EARNED , OFFERED AND PAID INCOME TAX THEREON. 16. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, W E DIRECT THE A.O. TO ALLOW CONSTRUCTION EXPENSES OF RS. 2,32,28, 644/- SO INCURRED BY RJVRPL WHILE COMPUTING THE CAPITA GAINS. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 18. NOW WE TAKE S.A. NO. 01/JODH/2020 BY WAY OF THIS STAY APPLICATION, THE ASSESSEE SEEKS STAY OF OUTSTANDING DEMAND RAISED BY THE DEPARTMENT TILL DISPOSAL OF THE APPEAL. 19. AS WE HAVE DECIDED THE APPEAL FILED BY THE ASSE SSEE FROM WHICH THIS STAY APPLICATION AROSE ON MERIT. TH EREFORE, THIS STAY APPLICATION BECOME INFRUCTUOUS. 12 ITA 28/JODH/2019 & SA 01/JODH/2020 KISHAN MEHTA VS ACIT 20. IN THE RESULT, THIS STAY APPLICATION IS DISMISS ED AS INFRUCTUOUS. 21. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED AND S.A. OF THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2020. SD/- SD/- (SANDEEP GOSAIN) (R.C.SHA RMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :. 20/03/2020 *RANJAN COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. THE CIT(A) 5. DR, ITAT, JODHPUR 6. GUARD FILE (ITA 28/JODH/2019 & SA NO. 01/JODH/2020 ) BY ORDER ASSISTANT REGISTRAR ITAT JODHPUR