T.M.Aaditiyaa, CHENNAI V. ITO, CHENNAI

ITA 327/CHNY/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2551 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 21-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: T BHANUSEKAR
• Keywords: Additional evidence; Cost of acquisition
• Section: 54

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHENNAI. BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 327/MDS/2013 ASSESSMENT YEAR : 2009-10 T.M. AADITIYAA, 46, SEMMOZHI STREET, J. NAGAR LAYOUT, PANAIYUR, CHENNAI 600 119. [PAN : AAIPA1854A] VS. THE INCOME TAX OFFICER, BUSINESS WARD III(1), CHENNAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T. BHANUSEKAR, C.A. RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 08.04.2013 DATE OF PRONOUNCEMENT : 09.05.2013 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS ASSESSEES APPEAL IS DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS) VIII, CHENNAI DATED 07.12.2012 RELEVANT TO THE ASSESSMENT YEAR 2009-10. 2. BRIEF FACTS OF THE CASE ARE THAT DURING THE COU RSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS OBSERVED THA T THE ASSESSEE HAS SOLD PROPERTY FOR A CONSIDERATION OF ` .82 LAKHS. THE ASSESSEE HAS FILED BANK STATEMENT AND ALSO CREDIT CARD PAYMENT D ETAILS. THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.327 327327 327/M/ /M/ /M/ /M/13 1313 13 2 ASSESSING OFFICER NOTICED FROM THE COMPUTATION STAT EMENT THAT THE ASSESSEE HAS COMPUTED SHORT TERM CAPITAL LOSS OF ` .6,66,525/- ON ACCOUNT OF SALE OF SHARES AND ADMITTED LONG TERM CA PITAL LOSS OF ` .2,35,141/-. WHILE ANALYSING THE LONG TERM CAPITAL LOSS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD CLAIMED HUGE EXPENDITURE FROM THE FINANCIAL YEARS 1990-91 TO 1995-96 FOR REMODELL ING OF THE HOUSE, FOR WHICH NO EVIDENCES WERE FILED. THE ASSESSEE HAS CLA IMED DEDUCTION UNDER SECTION 54 OF THE ACT FOR A SUM OF ` .21,92,005/- FOR WHICH ALSO NO EVIDENCE HAS BEEN FILED EXCEPT FOR THE PURCHASE OF A VACANT LAND ON 19.02.2010, THEREFORE, NO DEDUCTION UNDER SECTION 5 4 WAS ALLOWED TO THE ASSESSEE. THE ASSESSEE HAS ALSO NOT PROVED THAT THE SALE RECEIPT HAS BEEN DEPOSITED IN THE CAPITAL GAINS ACCOUNT. AC CORDINGLY, THE ASSESSING OFFICER CALCULATED THE LONG TERM CAPITAL GAINS OF ` .56,10,329/- 3. ON APPEAL, THE CIT(APPEALS) CONFIRMED THE ASSES SMENT ORDER SINCE THE ASSESSEE HAS NOT FILED ANY EVIDENCE EVEN BEFORE THE HIM. 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE FILED ADDITIONAL EVIDENCE CONSISTING PHOTOCOPY OF NOTE BO OK AND DETAILS OF I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.327 327327 327/M/ /M/ /M/ /M/13 1313 13 3 DRAWINGS RELATING TO REMODELLING OF THE HOUSE. IT W AS SUBMITTED BY THE COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS FILE D DETAILS IN RESPECT OF COST OF ACQUISITION AND COST OF IMPROVEMENT INCU RRED AND CLAIMED EXEMPTION UNDER SECTION 54 OF THE ACT. IT WAS ALSO SUBMITTED THAT WITHIN A SHORT SPAN OF 3 DAYS, THE ASSESSEE HAS SUBMITTED WHATEVER DETAILS CALLED FOR AND ALSO WORKING OF THE CAPITAL GAINS. T HE ASSESSING OFFICER WITHOUT CONSIDERING THE DETAILS AND WORKING IN RESP ECT OF CAPITAL GAINS PASSED THE ASSESSMENT ORDER DATED 30.12.2011. THE L D. COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT THE ASSESSEE WAS UNABLE TO FURNISH THE ADDITIONAL EVIDENCES BEFORE THE ASSESSING OFFIC ER AND CIT(APPEALS) SINCE VERY SHORT TIME WAS GIVEN TO THE ASSESSEE TO FURNISH THE ENTIRE EVIDENCE AND PRAYED THAT THE SAM E MAY BE ADMITTED TO DECIDE THE ISSUE. 6. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE THE TRIBUNAL IS FRESH EVIDENCE AND HE HAS NOT GIVEN ANY PROPER REASON AS TO WHY TH E SAME WAS NOT FILED BEFORE THE AUTHORITIES BELOW. 7. WE HAVE HEARD BOTH SIDES, PERUSED THE ORDERS OF AUTHORITIES BELOW. IT IS NOT IN DISPUTE THAT THE ASSESSEE SOLD A RESIDENTIAL FLAT AT I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.327 327327 327/M/ /M/ /M/ /M/13 1313 13 4 THIRUVANMIYUR VIDE SALE DEED DATED 16.06.2008 FOR A CONSIDERATION OF ` .82,00,000/-. ACCORDING TO THE ASSESSEE, HE HAS INC URRED EXPENDITURE FOR REMODELLING OF THE HOUSE AND CLAIMED DEDUCTION UNDER SECTION 54 FOR A SUM OF ` .21,92,005/-. THE ASSESSING OFFICER HAS OBSERVED TH AT THE ASSESSEE HAS NOT FILED ANY EVIDENCE WITH REGARD TO THE CLAIM UNDER SECTION 54 OF THE ACT EXCEPT PURCHASE OF VACANT SIT E ON 19.02.2010 AND ACCORDINGLY, HE HAS CALCULATED LONG TERM CAPITAL AG AINST OF ` .56,10,329/- AFTER ALLOWING INDEXATION OF COST OF A CQUISITION. EVEN BEFORE THE CIT(APPEALS), THE ASSESSEE HAS NOT FILED ANY EVIDENCE WITH REGARD TO THE CLAIM UNDER SECTION 54 OF THE ACT. BE FORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN APPLICATION W ITH ENCLOSURES AS ADDITIONAL EVIDENCE FOR INCURRING EXPENDITURE FOR T HE CLAIM UNDER SECTION 54 AND SUBMITTED THAT THE DUE TO TIME CONST RAIN, THE ASSESSEE WAS NOT ABLE TO FILE THE SAME NEITHER BEFORE THE AS SESSING OFFICER NOR THE CIT(APPEALS). HE ALSO MENTIONED THAT DUE TO ILL HEALTH, HE WAS UNABLE TO FILE THE DETAILS BEFORE THE CIT(APPEALS). AFTER CAREFUL CONSIDERATION OF THE APPLICATION FILED BY THE ASSES SEE FOR THE ADMISSION OF THE ADDITIONAL EVIDENCE, WE FIND THAT NO SUPPORT ING BILLS/VOUCHERS ARE FILED FOR THE SO CALLED EXPENDITURE INCURRED BY THE ASSESSEE EXCEPT FILING PHOTOCOPY OF HAND-WRITTEN ABSTRACTS OF EXPEN DITURE. IN FACT, WHEN I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.327 327327 327/M/ /M/ /M/ /M/13 1313 13 5 THE ASSESSEE IS CLAIMING BENEFIT UNDER SECTION 54, IT IS THE DUTY OF THE ASSESSEE TO FILE THE DETAILS OF EXPENDITURE INCURRE D WITH SUPPORTING BILLS/VOUCHER ALONG WITH THE RETURN OF INCOME. THE ASSESSEE HAS FAILED TO DISCHARGE THE BURDEN COSTED UPON HIM AND FOR THA T AUTHORITIES BELOW CANNOT BE BLAMED. SO FAR AS ILL HEALTH IS CONCERNED , THERE IS NO EVIDENCE THAT HE WAS SUFFERING FROM ANY HEALTH DISO RDER AND WE FIND NO JUSTIFIABLE REASON TO ADMIT THE ADDITIONAL EVIDENCE . WE THEREFORE, REJECT THE SAME. SO FAR AS MERITS OF THE CASE, THE ASSESSI NG OFFICER HAS RIGHTLY CALCULATED THE CAPITAL GAINS AFTER ALLOWING THE COST OF ACQUISITION AS WELL AS SHORT TERM CAPITAL LOSS ON ACCOUNT OF SA LE OF SHARES AMOUNTING TO ` .6,66,525/- AND REJECTED THE SHORT TERM CAPITAL LOS S OF ` .1,88,077/- FOR WANT OF EVIDENCE AND THE SAME WAS C ONFIRMED BY THE CIT(APPEALS). WE FIND NO REASON TO INTERFERE WITH T HE ORDER PASSED BY THE CIT(APPEALS). 8. DURING THE COURSE OF HEARING THE LD. COUNSEL FO R THE ASSESSEE HAS RELIED ON THE CASE LAW OF JCIT V. B. SHIVKUMAR [2012] 27 TAXMANN.COM 305 (CHENNAI) AND SRI PRASAD NIMMAGADDA V. DCIT IN ITA NO. 255(HYD)/2012. THESE CASE LAW HAVE NO APPLI CATION IN THE PRESENT CASE WHEN THE ASSESSEE HAS FAILED TO FURNIS H EVIDENCE TO SUBSTANTIATE HIS CLAIM UNDER SECTION 54 OF THE ACT. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.327 327327 327/M/ /M/ /M/ /M/13 1313 13 6 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 9 TH OF MAY, 2013 AT CHENNAI. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 09.05.2013 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.