Shri Raman Kumar Kapur, New Delhi V. ACIT, New Delhi

ITA 3383/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1235 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Cost of acquisition; TDS; Capital Gains
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DLEHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA.NO3383/DEL/2017 ASSESSMENT YEAR: 2008-09 SHRI RAMAN KUMAR KAPUR, VS. ACIT, CIRCLE 36(1), PROP. RAMTEX OVERSEAS CORP. NEW DELHI. 9, RAJ NIWAS MARG, NEW DELHI PAN AAJPK 1989M (APPLICANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SH. SURENDER PAL, SR. DR. DATE OF HEARING:03/12/2019 DATE OF ORDER : 13/12/2019 ORDER PER K. NARASIMHA CHARY, J.M. AGGRIEVED BY THE ORDER DATED 31/3/2017 IN APPEAL N O. 300/10- 11/108/14-15 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 12, NEW DELHI (LD. CIT(A)) FOR THE ASSESSMENT YEA R 2008-09, SH. RAMAN KUMAR KAPOOR (THE ASSESSEE) FILED THIS APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF EXPORT OF HOME FABRICS AND ALSO INCOME FROM HOUS E PROPERTY. HE IS ALSO 2 THE PROPRIETOR OF M/S RAMTEX OVERSEAS CORPORATION. FOR THE ASSESSMENT YEAR 2008-09, HE HAD FILED HIS RETURN OF INCOME ON 30/9/2008 DECLARING AN INCOME OF RS. 37,33,520/-. DURING THAT YEAR THE ASS ESSEE SOLD A HOUSE AT GARDEN ESTATE ON 10/3/2008 FOR RS. 2,26,00,000/-AND WHILE CALCULATING THE CAPITAL GAIN, HE CLAIMED THE IMPROVEMENT CAST AT RS . 53,98,500/-AND TRANSFER EXPENSES AT RS. 2 LACS. ASSESSEE FURTHER CLAIMED TH E DEDUCTION OF INTEREST PAID ON HOUSING LOAN CLAIMED AS COST OF ACQUISITION WHEN HE SOLD THE HOUSE AT PINNACLE AND 20/9/2007 FOR RS.1,56,28,246/-. 3. ACCORDING TO THE LEARNED ASSESSING OFFICER, WHEN REQUIRED, ASSESSEE FAILED TO FURNISH ANY BILL OR DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM FOR IMPROVEMENT COST OR FOR TRANSFER EXPENSES. LEARNED ASSESSING OFFICER, THEREFORE, INFERRED THAT THE EXPENSES AND IMPROVEME NT COST WERE CLAIMED JUST TO REDUCE TAXABLE INCOME FROM CAPITAL GAIN. ON THIS PREMISE LEARNED ASSESSING OFFICER COMPUTED THE CAPITAL GAIN ON THE HOUSE AT GARDEN ESTATE AT RS. 63,67,976/-AS AGAINST THE DECLARED AMOUNT OF RS. 7,69,476/-AND ADDED AN AMOUNT OF RS.55,98,500 TO THE INCOME OF TH E ASSESSEE. 4. SO ALSO, IN RESPECT OF THE HOUSE AT PINNACLE , T HE OBSERVATIONS OF THE LEARNED ASSESSING OFFICER ARE THAT WHEN CONFRONTED ON THE POINT OF INTEREST PAID ON HOUSING LOAN, ASSESSEE FAILED TO FURNISH AN Y DETAILS OR DOCUMENTS IN SUPPORT OF THE CLAIM, AND THEREFORE, LEARNED ASSESS ING OFFICER COMPUTED THE CAPITAL GAIN ON HOUSE AT GARDEN ESTATE AT RS.16,14, 940/-AS AGAINST THE LOSS OF RS. 9,15,17/-SHOWN BY THE ASSESSEE AND MADE AN A DDITION OF RS. 25,30,650/-AS CAPITAL GAIN. 5. AGGRIEVED BY THESE TWO ADDITIONS, ASSESSEE PREFE RRED APPEAL BEFORE THE LD. CIT(A). IT WAS STATED BY THE ASSESSEE BEFOR E THE LD. CIT(A) THAT AT THE 3 TIME OF MAKING THE SALE OF THE HOUSE AT GARDEN ESTA TE, IT WAS DECIDED BY SELLER AND PURCHASER THAT A SELLER WILL MAKE IMPROV EMENT TO THE PROPERTY BEFORE REGISTRATION OF THE SAME. IT WAS NOT IN DISP UTE THAT THE ASSESSEE HAD BECOME OWNER OF THE PROPERTY AT THE GARDEN ESTATE B Y NAME ESTATE GREEN BY REGISTRATION ON 17/02/2006, WHICH HE SOLD UNDER SALE DEED DATED 10/3/2008. LD. CIT(A) PERUSED THE SALE DEED AND FOU ND THAT THERE IS NO MENTION OF ANY IMPROVEMENT DONE OR TO BE DONE OR AG REED BY THE SELLER AND PURCHASER THAT THE SELLER WILL MAKE SOME IMPROVEMEN T IN THE HOUSE PROPERTY. ON THE OTHER HAND, IT WAS FOUND THAT THE VENDEE, NAMELY, SH. AMITABH JHINGAN AGREED TO BEAR ALL THE EXPENSES AND OUTGOINGS FOR COMPLETION OF TRANSFER OF THE PROPERTY INCLUDING ST AMP DUTY, REGISTRATION AND THE LIKE. SALE DEED DOESNT SUPPORT THE CONTENT ION OF THE ASSESSEE INASMUCH AS IT DOES NOT CONTAIN ANY RECITAL AS TO T HE IMPROVEMENTS TO BE MADE BY THE ASSESSEE TO MAKE THE PROPERTY SELLABLE. 6. LD. CIT(A) ALSO CONSIDERED THE BILL DATED 15/2/2 008 WHICH WAS THE FINAL BILL AND OBSERVED THAT THERE IS NO INDEPENDEN T BILL FOR PURCHASE OF VARIOUS ITEMS AND THE ASSESSEE FAILED TO SUBMIT ANY INITIAL BILLS FOR THE RENOVATION WORK BEING CARRIED OUT WHEREAS THE PAYME NTS WERE MADE ON VARIOUS DATES STARTING FROM 10/7/2007 TO 31/3/2008. THE PAYMENTS WERE NOT SUPPORTED BY TDS. ON AN EXAMINATION OF THE MATE RIAL BEFORE HER, LD. CIT(A) REACHED A FACTUAL FINDING THAT THE CLAIM MAD E BY THE ASSESSEE WAS NOT GENUINE AND WAS FABRICATED ONLY TO REDUCE THE AMOUN T OF CAPITAL GAIN, AND IT SERIOUSLY LACKS CREDIBILITY. 7. IN RESPECT OF THE SALE OF PROPERTY AT PINNACLE AND CONSEQUENT CAPITAL GAINS, LD. CIT(A) NOTICED THAT THE ASSESSEE SOLD SU CH PROPERTY ON 20/9/2007 FOR RS. 1,56,28,246/-AND CLAIMED INTEREST PAID ON H OUSING LOAN AS COST OF 4 ACQUISITION WHILE COMPUTING THE CAPITAL GAIN. ACCOR DING TO THE LD. CIT(A) NO DETAIL OR DOCUMENT WAS AVAILABLE TO SUPPORT THE CLA IM FOR TRANSFER OF EXPENSES AT RS. 1,93,400/-. 8. THE FINDINGS OF FACTBY THE LD. CIT(A) GO TO SHOW THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT DATED 30/7/2004 FOR PURCH ASE OF APARTMENT AT A PINNACLE WITH CAR PARKING BY PAYING RS.1,17,75,246 /-TOWARDS THE COST UP TO31/5/2006; THAT HE SOLD THE PROPERTY TO MR YOGESH SURI AND MRS RUPA SURI AND 20/9/2007; THAT THE ASSESSEE CLAIMED THAT HE SO LD THE PROPERTY BEFORE TAKING OVER THE POSSESSION OF THE PROPERTY AND, THE REFORE, INTEREST IS ALLOWABLE AS COST OF ACQUISITION; THAT THE ASSESSEE CLAIMS TO HAVE SOLD THE FLAT AT PINNACLE ON 20/9/2007; THAT HE CLAIMS TO H AVE THE FLAT ON 30/7/2004, BUT NEVER PRODUCES THE COPY OF ALLOTMENT LETTER FRO M DLF AND THE MONEY RECEIPT OF DLF DATED 14/1/2004 SHOWS THAT THE MONEY WAS RECEIVED AGAINST PROVISIONAL ALLOTMENT; THAT THE ASSESSEE NEVER PROD UCED ANY ALLOTMENT LETTER BY DLF OR APARTMENT BUYERS AGREEMENT WITH TH E DLF; THAT THE ASSESSEE ENTERED INTO AN AGREEMENT TO SELL DATED 13 /5/2005 WITH MRS GEETU SINGH FOR SALE OF HIS APARTMENT; THAT THE ASSESSEE HAS ALSO NOT PRODUCED THE COPY OF AGREEMENT TO SELL WITH THE SH. YOGESH SURI AND MRS RUPA SURI FOR SALE OF PLOT; AND THAT, THEREFORE, THE ASSESSEE HAS NOT ESTABLISHED THAT HIS IS A CASE OF LONG TERM CAPITAL GAIN (LTCG). LD. CIT(A) , THEREFORE, CONFIRMED THE ASSESSMENT ORDER AND DISMISSED THE APPEAL. 9. WHEN THE MATTER IS CALLED, NEITHER THE ASSESSEE NOR ANY AUTHORISED REPRESENTATIVE ENTERED APPEARANCE. IT COULD BE SEEN FROM THE RECORD THAT THE NOTICE SENT TO THE ADDRESS GIVEN IN FORM NO. 36 IS RETURNED WITH THE ENDORSEMENT OF THE POSTAL SERVANT THAT THE ADDRESSE E LEFT. IF THE ASSESSEE IS AVAILABLE IN SUCH ADDRESS, SUCH NOTICE SHOULD HAVE BEEN SERVED ON THE 5 ASSESSEE. IF FOR ANY REASON, THE ASSESSEE IS NOT AV AILABLE THERE, IT IS FOR THE ASSESSEE TO MAKE ARRANGEMENTS FOR SERVICE OF SUCH N OTICE BY FURNISHING THE ADDRESS WHERE THE ASSESSEE WOULD BE AVAILABLE, OR T O DELIVER IT TO SOME AUTHORISED PERSON, OR BY MAKING REQUEST TO THE POST AL DEPARTMENT TO DETAIN THE MAIL TILL THE ASSESSEE CLAIMS THE SAME. SINCE T HE ASSESSEE DOES NOT SEEM TO HAVE ADOPTED ANY OF THESE METHODS, WE ARE THE CO NSIDERED OPINION THAT NO TIME COULD BE GRANTED. BASING ON THE RECORD WE P ROCEED TO HEAR THE COUNSEL FOR REVENUE AND DECIDE THE MATTER ON MERITS . 10. RECORD REVEALS THAT THE ASSESSEE DID NOT PRODUC E ANY EVIDENCE BEFORE THE AUTHORITIES BELOW IN SUPPORT OF HIS CONT ENTIONS ON THE LONG-TERM CAPITAL GAIN (LTCG) IN RESPECT OF BOTH THE PROPERTI ES. THE CATEGORICAL FINDING OF THE LD. CIT(A) IS THAT THE CLAIM MADE BY THE ASS ESSEE IS NOT GENUINE AND IS FABRICATED ONLY TO REDUCE THE AMOUNT OF CAPITAL GAI N. SHE REACHED SUCH A CONCLUSION BASING ON THE CONDUCT OF THE ASSESSEE IN NOT PRODUCING EVEN AN IOTA OF EVIDENCE IN SUPPORT OF HIS CLAIM. IN THE AB SENCE OF ANY EVIDENCE TO ESTABLISH THAT THERE IS SUFFICIENT COMPLIANCE WITH THE LETTER OF LAW, IS NOT POSSIBLE FOR THE AUTHORITIES TO ALLOW THE CLAIM FOR LTCG. 11. EVEN BEFORE US ALSO THERE IS NO APPEARANCE FOR THE ASSESSEE NOR ANY PRODUCTION OF ANY EVIDENCE IN SUPPORT OF THE CONTEN TIONS OF THE ASSESSEE THAT WERE TAKEN BEFORE THE AUTHORITIES BELOW. FOR P AUCITY OF EVIDENCE WE FIND IT DIFFICULT TO TAKE A DIFFERENT VIEW FROM THE VIEW TAKEN BY THE LD. CIT(A). WE ACCORDINGLY DO NOT FIND ANY MERITS IN THIS APPEA L AND THE SAME IS LIABLE TO BE DISMISSED. 6 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. PRONOUNCED IN OPEN COURT ON THIS THE 13 TH DECEMBER, 2019. SD/- SD/- (G.S. PANNU) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED: 13/12/2019 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI