JAWAD M. MANSURI, MUMBAI V. ITO 19(3)(4), MUMBAI

ITA 3528/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87925 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 20-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 18-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK A PERAMPURNA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUM BAI , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM I.T.A. NO. 3528/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) JAWAD M. MANSURI 401, 4 TH FLOOR, TULSI MAHAL, 20 TH ROAD, BANDRA (W), MUMBAI-400 050 VS. ITO-19(3)(4), MUMBAI ! ' ./PAN/GIR NO. AEHPM 9607 C ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !#&' / APPELLANT BY : NONE $%!#&' / RESPONDENT BY : SHRI VIVEK A. PERAMPURNA ( )*&+, / DATE OF HEARING : 20.10.2014 -./&+, / DATE OF PRONOUNCEMENT : 07.01.2015 0 O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-30, MUMBAI (CIT(A) FOR SH ORT) DATED 30.03.2012, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2008-09 VIDE ORDER DATED 03.12.2010. 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE WHEN HIS APPEAL WAS CALLED OUT FOR HEARING. THE ASSESSEE STANDS DULY INFORMED OF T HE DATE OF HEARING THROUGH THE LISTING AT THE NOTICE BOARD OF THE TRIBUNAL. ON SEVERAL EAR LIER OCCASIONS ALSO, VIZ. 11.06.2013, 2 ITA NO. 3528/MUM/2012 (A.Y. 2008-09) JAWAD M. MANSURI VS. ITO 22.10.2013, 06.03.2014 AND 06.05.2014, THE HEARING WAS ADJOURNED ACCEDING TO THE ASSESSEES REQUEST, MOVED THROUGH HIS COUNSEL, SHRI G. R. NAIK, CA. UNDER THE CIRCUMSTANCES, IT WAS ONLY CONSIDERED FIT AND PROPE R TO PROCEED WITH THE MATTER, DECIDING THE APPEAL AFTER HEARING THE PARTY BEFORE US. 3. THE APPEAL RAISES ISSUES QUA THREE (3) DISALLOWANCES EFFECTED BY THE ASSESSING OFFICER (AO) IN COMPUTING THE LONG TERM CAPITAL GAI NS (LTCG) ON THE SALE OF TENANCY RIGHTS BY THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR, SINCE CONFIRMED BY THE LD. CIT(A). 4. WE HAVE HEARD THE PARTY BEFORE US, AND PERUSED T HE MATERIAL ON RECORD. WE BEGIN BY REPRODUCING THE ASSESSEES WORKING OF THE SAID L ONG TERM CAPITAL GAINS: (AMT. IN RS.) LTCG ON COMPENSATION RECD. ON SURRENDERING TENACY RIGHT IN FLAT NO. 6, COMFORT VILLA, 25-A, NEW KANT WADI ROAD, BANDRA (W), MUMBAI-400 050 63,00,000 LESS: AMOUNT INVESTED IN NEW FLAT NO. 401, TULSI MAHAL, 20 TH ROAD, BANDRA (W), MUMBAI-50 50,00,000 STAMP DUTY ON ABOVE 2,52,550 REGISTRATION CHARGES 50,920 OTHER EXP. PAID TO BUILDER 75,000 ADDITIONS MADE TOWARDS FLAT 8,92,500 62,70,970 5. THE DISALLOWANCES UNDER REFERENCE ARE AS FOLLOWS , WHICH WERE MADE THE AO ON THE COMMON GROUND OF BEING NEITHER EVIDENCED NOR EVEN O THERWISE LEGALLY VALID CLAIMS, AND CONFIRMED BY THE LD. CIT(A) FOR, PRINCIPALLY, THE S AME REASONS. WE SHALL TAKE UP EACH OF THEM SEPARATELY, AS UNDER: A) RS.20,000/- TOWARDS REGISTRATION CHARGES : THE SAME STANDS MADE FOR THE REASON THAT THE COPY OF THE PURCHASE AGREEMENT, AND THAT O F REGISTRATION RECEIPT CUM INDEX 2, EXHIBITING THE SAID CHARGES AS TOWARD THE REGIST RATION OF THE PURCHASE AGREEMENT OF THE NEW RESIDENTIAL FLAT PURCHASED IN LIEU OF AN D IN UTILIZATION OF THE SAID CAPITAL GAINS, WERE PAID AT RS.30,920/-, AS AGAINST THE CLA IMED SUM OF RS.50,920/-. THE 3 ITA NO. 3528/MUM/2012 (A.Y. 2008-09) JAWAD M. MANSURI VS. ITO ASSESSEES EXPLANATION, AS GATHERED FROM THE GROUND S OF APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, IS THAT THE BALANCE RS.20,000/ - REPRESENTED REGISTRATION EXPENSES. THE SAME, FIRSTLY, ONLY PROVES THE REVENU ES CHARGE OF THE REGISTRATION CHARGES BEING ONLY AT RS.30,920/-. THE ASSESSEES C LAIM IS BOTH UNSUBSTANTIATED AND WITHOUT ANY AUTHORITY OF LAW AND, ACCORDINGLY, STANDS RIGHTLY DISALLOWED BY THE REVENUE. WE DECIDE ACCORDINGLY. B) RS.75,000/- - OTHER EXPENSES PAID TO THE BUILDER : THE SAME, AGAIN, AS EXPLAINED PER THE GROUNDS OF APPEAL AND EXPLANATION FURNISHED BEFORE THE FIRST APPELLATE AUTHORITY, IS TOWARD ONE TIME NON-REFUNDABLE DEPOSI T PAID TO THE BUILDER. IF IT IS NON REFUNDABLE, HOW COULD IT AT ALL BE SAID TO BE A DEP OSIT? IS THERE ANY REFERENCE TO IT IN THE PURCHASE AGREEMENT? NO EVIDENCE TOWARD THE S AME STANDS FURNISHED AT ANY STAGE. WE, UNDER THE CIRCUMSTANCES, FIND NO INFIRMI TY IN THE DISALLOWANCE OF THE CLAIM IN ITS RESPECT. WE DECIDE ACCORDINGLY. C) RS.8,92,500/- - ADDITIONS TO THE NEW FLAT : THE ASSESSEE CLAIMS TO HAVE EXPENDED THE SAID SUM IN MAKING THE FLAT HABITABLE; THE FLAT AS PROVIDED BY THE BUILDER BEING IN A RAW STATE. THE ASSESSEES CLAIM, THOUGH VALID IN PRINCIPLE, I.E., WHERE THE AMOUNT IS SPENT FOR MAKING THE BUILDING/ CONSTRUCTI ON HABITABLE, WOULD FAIL, AND FOR REASONS MORE THAN ONE. FIRSTLY, THERE IS NOTHIN G TO SHOW THAT THE FLAT WAS RECEIVED OR DELIVERED IN A RAW STATE, EVEN AS THE S AID STATE OUGHT TO AND WOULD BE THE SUBJECT MATTER OF THE PURCHASE AGREEMENT IN-AS- MUCH AS IT DEFINES THE OBLIGATIONS OF THE BUILDER, STATING SPECIFICALLY WH AT IS REQUIRED TO BE DELIVERED, AND FOR WHICH IN FACT THE CONSIDERATION IS BEING PAID. THE PURCHASE AGREEMENT WOULD IN ANY CASE DETAIL THE EXTENT OF DIFFERENT WORKS TO BE CARRIED OUT. WHETHER, THEREFORE, TILING OF KITCHEN AND BATHROOMS, ON WHICH THE MAJOR PART OF IMPUGNED SUM OF RS.8.93 LACS IS STATED TO HAVE BEEN SPENT, WAS TO B E DONE BY THE BUILDER, TO WHATEVER EXTENT, OR NOT, IS NOT CLEAR. SECONDLY, TH E FACT OF HAVING EXPENDED THE SAID SUM FOR THE STATED PURPOSE IS ITSELF NOT EVIDE NCED. THE ASSESSEE HAS NOT SUBSTANTIATED HIS CLAIM AT ANY STAGE, SO THAT IT RE MAINS UNPROVED (REFER PARAS 6.4 & 4 ITA NO. 3528/MUM/2012 (A.Y. 2008-09) JAWAD M. MANSURI VS. ITO 4.3 OF ASSESSMENT AND IMPUGNED ORDER RESPECTIVELY). NO IMPROVEMENT IN HIS CASE STANDS MADE EVEN BEFORE US. WE, UNDER THE CIRCUMSTA NCES, DECLINE INTERFERENCE. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. 1/+23451+& 1&+6 ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 07, 2 015 SD/- SD/- (D. MANMOHAN) (SANJAY ARORA) / VICE PRESIDENT / ACCOUNTANT MEMBER ( 7* MUMBAI; 8 DATED : 07.01.2015 )3 ROSHANI , SR. PS !' # $%&' ('% COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( 9+ : ; / THE CIT(A) 4. ( 9+ / CIT - CONCERNED 5. <)=>$3+3?4 ,?4/ ( 7* / DR, ITAT, MUMBAI 6. >5@* GUARD FILE !' ) / BY ORDER, */)+ (DY./ASSTT. REGISTRAR) , ( 7* / ITAT, MUMBAI