ACIT, New Delhi V. Sh. Sunil Batra, New Delhi

ITA 3644/DEL/2010

• Counselvise Citation: 364420114 RSA 2010
• Duration Of Justice: 5 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 24-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 30-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUDHIR S SILWAL
• Keywords: Cost of acquisition
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G, NEW DELHI) BEFORE SHRI N. K. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER I.T.A. NO. 3644/DEL/2010 ASSESSMENT YEAR : 2007-08 ACIT, CIRCLE 32(1), VS. SUNIL BATRA, NEW DELHI A-432, DEFENCE COLONY, NEW DELHI. GIR / PAN:AAFPB2382M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUJIT KUMAR, SR. DR RESPONDENT BY : SHRI SUDHIR S SILWAL, ADV. DATE OF HEARING : 24.08.2015 DATE OF PRONOUNCEMENT : 30.09.2015 ORDER PER KULDIP SINGH, JM: THE APPELLANT, ACIT, CIRCLE 32(1), NEW DELHI HAS F IELD THE PRESENT APPEAL AND SOUGHT TO SET ASIDE THE ORDER DATED 26.0 5.2010 PASSED BY LD. CIT(A) XXVI, NEW DELHI ON THE GROUNDS INTER ALIA TH AT:- 1) THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF RS.4,18,050/- ON ACCOUNT OF SHORT TERM CAPITAL GAI N ON SALE OF PROPERTY LOCATED AT PNA-013, THE PINNACLE, GURGAON AS THE ASSESSEE HAS NOT DISCLOSED THE EXPENSES RELATING TO SALE OF THE ABOVE PROPERTY. ' 2) THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIO N OF RS.1133524/- ON ACCOUNT OF S.T.C.G. ON SALE OF PROP ERTY-LOCATED AT PC-II/303, ESSEL TOWER, GURGAON AS THE ASSESSEE WAS NOT ABLE TO FILE ANY DOCUMENT OF ANY EVIDENCE FOR THE CLAIM OF SALE IN 2004-05 AND NO EVIDENCE WAS FURNISHED REGARDING ANY L.T.G.C. DECLA RED IN RELEVANT A.Y.' ITA NO.3644/DEL/2010 2 3) THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIO N OF RS.1133524/- ON ACCOUNT OF S.T.C.G. ON SALE OF PROP ERTY LOCATED AT PC-II/303, ESSEL TOWER, GURGAON AS THE ASSESSEE WAS IN THE BUSINESS OF REAL ESTATE AND THE LOAN WAS DISBURSED AFTER FIV E MONTHS FROM THE DATE OF PURCHASE OF PROPERTY. THE LOAN WAS ALSO FAR IN EXCESS OF THE SHARE OF ASSESSEE IN THE COST OF PROPERTY. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE: DURIN G THE PROCESSING OF INCOME TAX RETURN FILED BY THE ASSESSEE FOR THE ASS ESSMENT YEAR 2007-08 DECLARING TOTAL INCOME OF RS.21,42,260/-, THE CASE WAS PUT UNDER SCRUTINY AND CONSEQUENTLY, NOTICE U/S 143(2) OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT), WAS ISSUED ON 29.09.2008. SHRI S. S. SILWAL, ADVOCATE ATTENDED THE PROCEEDINGS, FILED DETAILS IN RESPONSE TO QUESTIONNAIRE DATED 14.07.2009, FILED DETAILS / DOCUMENTS ON RECO RD AND HAS COMPLIED WITH THE NOTICE ISSUED U/S 142(1) DATED 14.07.2009 AND 0 7.10.2009. 4. THE ASSESSEE FILED A COMPUTATION REGARDING PURCH ASE AND SALE OF PROPERTY SITUATED AT PNA-013, THE PINNACLE, GURGAON , WITH A.O. BY CLAIMING SALE CONSIDERATION AT RS.,41,58,100/- AND COST OF ACQUISITION AS ON 19.01.2006 AT RS.40,92,651/- AND ASSESSED THE SHORT TERM CAPITAL GAIN (STCG) AT RS.65,449/-. HOWEVER, THE A.O. ASSESSED THE STCG AT RS.4,83,500/- ON THE BASIS OF RECEIPT DATED 25.07.2 006 DEPICTING SALE PRICE OF RS.43,51,500/- RECEIVED BY THE ASSESSEE FORM SHRI R AJAN RAMANNI AND SMT. RAJINI RAMANNI RESIDENT OF 57, ANAND LOK, NEW DELHI AS FULL AND FINAL SETTLEMENT AGAINST SALE OF AFORESAID PROPERTY. SAL E PROCEEDS OF RS.43,51,500/- DEPICTED IN THE RECEIPT (SUPRA) INCL UDES AN AMOUNT OF RS.38,68,000/- PAID BY THE ASSESSEE FOR THE PROPERT Y IN QUESTION TO M/S. DLF UNIVERSAL LTD. AND CONSEQUENTLY MADE AN ADDITION OF RS.4,18,050/- BEING THE INCOME DERIVED FROM STCG ON THE SALE OF AFORESAID P ROPERTY. ITA NO.3644/DEL/2010 3 5. THE ASSESSEE HAS CLAIMED STCG OF RS.17,38,753/- ON THE SALE OF PROPERTY SITUATED AT PC-II/303, ESSEL TOWER, GURGAO N BY CLAIMING SALE CONSIDERATION AT RS.50,00,000/- AND THE COST OF ACQ UISITION AT RS.32,61,247/- (SALE CONSIDERATION RS.50,00,000 COST OF ACQUISIT ION RS.32,61,247 = STCG RS.17,38,753/-). HOWEVER, THE A.O. OBSERVED THAT T HE ASSESSEE HAS WRONGLY SHOWN THE COST OF ACQUISITION OF THE PROPERTY AT RS . 32,61,247/- AS AGAINST THE ACTUAL ACQUISITION COST OF RS. 21,27,723/- ON T HE BASIS OF THE FACT THAT THERE WERE THREE CO-SHARERS IN THE PROPERTY IN QUES TION NAMELY; SHRI SUNIL BATRA, SHRI DAMODAR DAS BATRA AND SMT. ASHA BATRA, EACH HAVING 1/3 RD SHARE AND SHRI DAMODAR DAS BATRA, FATHER OF THE ASSESSEE HAS SHOWN THE COST OF ACQUISITION OF RS.21,27,723/- ONLY. CONSEQUENTLY, EXCESS PAYMENT OF COSTS OF ACQUISITION CLAIMED BY THE ASSESSEE TO THE TUNE OF RS.11,33,524/- HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE ON THE STCG. 6. LD. CIT(A) DELETED THE ADDITIONS MADE IN THE ASS ESSMENT ORDER DATED 21.12.2009. FEELING AGGRIEVED, THE REVENUE HAS COM E UP BEFORE THE TRIBUNAL BY FILING THE PRESENT APPEAL. 7. AT THE VERY OUTSET LD. D.R. CONCEDED THAT ONLY G ROUNDS NO. 1 & 2 ARE EFFECTIVE GROUNDS TO BE ARGUED BEFORE THE TRIBUNAL AND CONTENDED THAT THE LD. CIT(A) HAS WRONGLY ASSESSED THE COST OF ACQUISI TION OF PROPERTIES LOCATED AT PNA-0134, THE PINNACLE, GURGAON AND PC-I I/303, ESSEL TOWER, GURGAON AND RELIED ON THE JUDGEMENT CITED AS CIT VS TATA IRON & STEEL LTD. 231 ITR 285 (S.C.). ON THE OTHER HAND, LD. A.R. R ELIED UPON THE IMPUGNED ORDER PASSED BY LD. CIT(A) AND CONTENDED THAT WHEN ICICI BANK HAS DIRECTLY ISSUED THE CHEQUE IN FAVOUR OF THE BUILDER TO PURCHASE THE PROPERTY AND BENEFIT OF INTEREST IS REQUIRED TO BE GIVEN TO THE ASSESSEE AND PRAYED FOR DISMISSAL OF APPEAL. ITA NO.3644/DEL/2010 4 8. NOW, THE FIRST ISSUE TO BE DETERMINED IS, AS TO WHETHER LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.4,18,050/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF PROPERTY LOCATED AT PNA-013 , THE PINNACLE, GURGAON AS THE ASSESSEE HAS NOT DISCLOSED THE EXPEN SES RELATING TO SALE OF THE ABOVE PROPERTY. AS PER THE COMPUTATION FILED BY THE ASSESSEE ALONG WITH HIS RETURN OF INCOME, HE HAS CLAIMED SHORT TER M CAPITAL GAIN (STCG) OF RS.65,449/-, WHICH IS DETAILED AS UNDER: SALE CONSIDERATION RS.42,58,100/- LESS COA ON 19.01.2006 RS.40,92,651/- STCG RS. 65,449/- 8.1 HOWEVER, ON THE OTHER HAND, A.O. BY RELYING UPO N THE RECEIPT DATED 25.07.2006 ISSUED BY THE ASSESSEE HIMSELF IN FAVOUR OF MR. RAJAN RAMANI AND MRS. RAJANI RAMANI LYING AT PAGE 2 OF THE PAPER BOOK FILED BY THE ASSESSEE, OBSERVED THAT STCG COME S TO RS.4,83,500/- INSTEAD OF RS.65,449/- AS CLAIMED BY THE ASSESSEE, TABULATED AS UNDER: SALE CONSIDERATION RS.43,51,500/- LESS C.O.A. RS.38,68,000/- STCG RS.04,83,500/- 8.2 LD. CIT(A) IN PARA 6.2 AT PAGE 9 OF THE IMPUGNE D ORDER OBSERVED THAT THE A.O. HAS ERRONEOUSLY ASSESSED THE COST OF ACQUISITION OF PROPERTY AT PNA-013, THE PINNACLE, GURGAON AT RS .38,68,000/- AS AGAINST ACTUAL COST OF ACQUISITION OF RS.40,92,651/ -. DURING THE PROCEEDINGS BEFORE LD. CIT(A), HE HAS CALLED COMMEN TS FROM LD. JCIT, RANGE 32, NEW DELHI WHICH ARE AS UNDER: IN RESPECT OF THE COMPUTATION OF CAPITAL GAINS ON PROPERTY LOCATED A PC-2/303, IT IS SUBMITTED THAT ONLY TWO C OMPONENTS ITA NO.3644/DEL/2010 5 COULD BE DEDUCTED FROM THE FULL VALUE OF CONSIDERAT ION WHILE COMPUTING CAPITAL GAINS. THESE ARE EXPENDITURE INC URRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH THE TRANS FER AND THE COST OF ACQUISITION OF ASSETS ALONG WITH THE COST O F ANY IMPROVEMENT INTEREST ON CAPITAL FOR PURCHASED PROPE RTY DOES NOT INCREASE THE COST OF ACQUISITION OF ASSET (MLG ENTERPRISES VS CIT (KARNATAKA) (H.C.) 167 ITR 11 : ITO VS VIKRA M SADANANDA HOSKOTE (ITAT, MUM.) 1800 SOP 130). THER EFORE, THE COMPUTATION WAS DONE AS PER THE PROVISION OF TH E I.T. ACT, 1961. 8.3 LD. D.R. BY RELYING UPON THE JUDGEMENT CITED AS CIT VS TATA IRON & STEEL CO. LTD. 231 ITR 285 (S.C.) CONTENDED THAT LD. CIT(A) HAS WRONGLY IGNORED THE LAW LAID DOWN BY HON'BLE SU PREME COURT IN THE JUDGEMENT (SUPRA) BY ADDING THE AMOUNT OF RS.1, 58,209/- AS INTEREST PAID TO MRS. GUNJAN BATRA IN THE COST OF A CQUISITION. 8.4 HONBLE APEX COURT IN THE JUDGEMENT (SUPRA) HEL D AS UNDER: THE MANNER OF REPAYMENT OF A LOAN CANNOT AFFECT TH E COST OF THE ASSETS ACQUIRED BY THE ASSESSEE. WHAT I S THE ACTUAL COST MUST DEPEND ON THE AMOUNT PAID BY THE ASSESSEE TO ACQUIRE THE ASSET. THE AMOUNT MAY HAVE BEEN BORROWED BY THE ASSESSEE, BUT EVEN IF THE ASSESSEE DID NOT REPAY THE LOAN IT WILL NOT ALTER THE COST OF THE ASSET. IF THE BORROWER DEFAULTS IN REPAYMENT OF A PART OF THE LOAN, THE COST OF THE ASSET WILL NOT CH ANGE. WHAT HAS TO BE BORNE IN MIND IS THAT THE COST OF AN ASSET AN D THE COST OF RAISING MONEY FOR PURCHASE OF THE ASSET ARE TWO DIF FERENT AND INDEPENDENT TRANSACTIONS. EVEN IF AN ASSET IS PURCH ASED WITH NON REPAYABLE SUBSIDY RECEIVED FROM THE GOVERNMENT, THE COST OF THE ASSET WILL BE THE PRICE PAID BY THE ASSESSEE FOR ACQUIRING THE ASSET. HELD ACCORDINGLY, THAT FOR THE ASSESSMENT YEAS 1960 -61 AND 1961-62, AT THE TIME OF REPAYMENT OF LOAN, THER E WAS A FLUCTUATION IN THE RATE OF FOREIGN EXCHANGE AS A RE SULT OF WHICH THE ASSESSEE HAD TO REPAY A MUCH LESSER AMOUNT THAN HE WOULD HAVE OTHERWISE PAID. THIS WAS NOT A FACTOR WHICH C OULD ALTER ITA NO.3644/DEL/2010 6 THE COST INCURRED BY THE ASSESSEE FOR PURCHASE OF T HE ASSET. THE ASSESSEE MAY HAVE RAISED THE FUNDS TO PURCHASE THE ASSET BY BORROWING BUT WHAT THE ASSESSEE HAS PAID FOR IT, IS THE PRICE OF THE ASSET. THAT PRICE CANNOT CHANGE BY ANY EVENT SU BSEQUENT TO THE ACQUISITION OF THE ASSET. IN OUR JUDGMENT, THE MANNER OR MODE OF REPAYMENT OF THE LOAN HAS NOTHING TO DO WIT H THE COST OF AN ASSET ACQUIRED BY THE ASSESSEE FOR THE PURPOS E OF HIS BUSINESS. 8.5 THE RATIO OF THE JUDGEMENT (SUPRA) IS APPLICABL E TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE COST OF ACQUISITI ON IN THE PRESENT CASE IS TO BE TAKEN AT THE ACTUAL AMOUNT OF RS.38,6 8,000/- PAID BY THE ASSESSEE TO M/S. DLF UNIVERSAL LTD. AS IS APPARENT FROM THE RECEIPT PLACED AT PAGE 2 OF THE PAPER BOOK FILED BY THE ASS ESSEE AND THE AMOUNT OF RS.1,58,209/- CANNOT BE ADDED TO THE AMOU NT BEING THE INTEREST PAID BY HIM TO MRS. GUNJAN BATRA. 8.6 LD. CIT(A) IN PARA 6.2 AND 6.3 OF THE IMPUGNED ORDER HAS ALLOWED THE EXPENSES TO THE TUNE OF RS.36,442/- AS TRANSFER CHARGES AND RS.30,000/- STATED TO HAVE BEEN PAID AS COMMISS ION BY THE ASSESSEE TO MR. P. K. GANESH FOR THE SALE OF PROPER TY MERELY ON THE BASIS OF ASSUMPTIONS AND PRESUMPTIONS. THERE IS NO REFERENCE OF MAKING PAYMENT OF TRANSFER CHARGES OF RS.36,442/- I N THE RECEIPT DATED 25.07.2006 LYING AT PAGE 2 OF THE PAPER BOOK FILED BY THE ASSESSEE NOR ANY SEPARATE RECEIPT HAS BEEN SET UP BY THE ASSESSE E DURING PROCEEDINGS BEFORE THE A.O. OR LD. CIT(A) AS THE CA SE MAY BE. EVEN OTHERWISE, PROPERTY IN QUESTION HAS NEVER BEEN TRAN SFERRED IN THE NAME OF ASSESSEE RATHER HE HAS FURTHER SOLD THE SAME ON THE BASIS OF AGREEMENT / RECEIPT DATED 25.07.2006 BY ACCEPTING P ART SALE CONSIDERATION OF RS.43,51,500/- AND THE BALANCE PAY MENT OF ITA NO.3644/DEL/2010 7 RS.1,25,04,000/- WAS TO BE PAID BY THE PURCHASER TO THE BUILDER DIRECTLY. ONLY AFTER MAKING THE FULL AND FINAL SAL E CONSIDERATION, THE TRANSFER OF PROPERTY WAS TO BE EFFECTED IN THE NAME OF PURCHASER. 8.7 SO FAR AS THE ISSUE OF MAKING PAYMENT OF COMMIS SION CHARGES OF RS.30,000/- BY THE ASSESSEE TO SHRI K. P. GANESH VIDE RECEIPT LYING AT PAGE 9 OF THE PAPER BOOK FILED BY THE ASSESSEE I S CONCERNED, AGAIN THERE IS NOT AN IOTA OF EVIDENCE ON RECORD NOR THER E IS ANY REFERENCE IN THE RECEIPT DATED 25.07.2007 LYING AT PAGE 2 OF THE PAPER BOOK THAT RS.30,000/- HAS BEEN PAID AS COMMISSION TO SHRI K P GANESH, OTHERWISE RECEIPT DATED 25.07.2006 WOULD HAVE CONTA INED THE REFERENCE OF PAYMENT OF COMMISSION CHARGES OF RS.30 ,000/-. HAD SHRI K. P. GANESH BEEN THE BROKER IN THE SALE OF PR OPERTY IN QUESTION, HE WOULD HAVE SIGNED THE RECEIPT DATED 25.07.2006 A S WITNESS. SO, TILL THE FINALIZATION OF DEAL VIDE RECEIPT DATED 25.07.2 006 SHRI K. P. GANESH WAS NOT IN THE PICTURE NOR THE ASSESSEE HAS PREFERRED TO BRING ON RECORD AS TO WHAT SERVICES HE HAS PROVIDED TO QU ALIFY FOR RECEIPT OF COMMISSION OF RS.30,000/-AND AT WHAT RATE. SO, CLA IMING THE TRANSFER CHARGES OF RS.36,442/- AND COMMISSION CHARGES OF RS .30,000/- BY THE ASSESSEE TO BE INCLUDED IN THE COST OF ACQUISITION IS MISCONCEIVED. LD. CIT(A) HAS ALLOWED THE SAME ON MERE ASKING OF THE A SSESSEE. 8.8 THE ASSESSEE HAS SUBTRACTED THE AMOUNT OF RS.1, 93,400/- FROM THE SALE CONSIDERATION OF RS.43,51,500/- ON THE PRE TEXT THAT THE AMOUNT HAS BEEN DIRECTLY PAID BY THE BUYER TO THE BUILDER AND HIS CLAIM HAS BEEN ALLOWED BY LD. CIT(A) WITHOUT HAVING ANY EVIDE NCE ON RECORD IN THIS REGARD. A BARE PERUSAL OF THE RECEIPT DATED 2 5.07.2006 LYING AT PAGE 2 OF THE PAPER BOOK ISSUED BY THE ASSESSEE HIM SELF IN FAVOUR OF ITA NO.3644/DEL/2010 8 THE BUYER CLEARLY SHOWS THAT PROPERTY WAS SOLD BY T HE ASSESSEE FOR RS.43,51,500/- AND THERE IS NO DETAIL IN THE SAME A S TO WHICH ACCOUNT THE AMOUNT OF RS.1,93,400/-WAS TRANSFERRED. MOREOV ER, WHEN THE RECEIPT DATED 25.07.2006 IS EXAMINED IN TOTALITY, T HE ASSESSEE HAS RECEIVED RS.43,51,500/- FROM MR. RAJAN RAMANI AND M RS. RAJINI RAMANI BEING FULL AND FINAL SETTLEMENT AMOUNT WHICH INCLUDED THE AMOUNT OF RS.38,68,000/- PAID BY THE ASSESSEE TO TH E BUILDER M/S. DLF UNIVERSAL LTD., GURGAON. EVEN OTHERWISE, WHEN THE ASSESSEE HIMSELF HAS ACCEPTED THE FACT THAT HE HAS SOLD THE PROPERTY FOR RS.43,51,500/-, IT DOES NOT LIE IN HIS MOUTH THAT O UT OF THE SAID AMOUNT HE HAS PAID RS.1,93,400/- TO THE BUILDER, PARTICULA RLY WHEN IT IS CATEGORICALLY MENTIONED IN THE RECEIPT DATED 25.07. 2006 THAT HE HAS RECEIVED AN AMOUNT OF RS.43,51,500/- FROM THE PURC HASER. SO, THE FINDING OF LD. CIT(A) QUA THE ADDITION OF RS.4,18,0 50/- ARE PERVERSE, HENCE, HEREBY SET ASIDE. 9. THE SECOND GROUND OF APPEAL IS. AS TO WHETHER LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.11,33,524/- ON ACCOUNT OF STCG ON SALE OF PROPERTY LOCATED AT PC-II/303, ESSEL TOWER, GURGAON AS THE ASSESSEE WAS NOT ABLE TO FILE ANY DOCUMENT OF ANY E VIDENCE FOR THE CLAIM OF SALE IN 2004-05 AND NO EVIDENCE WAS FURNISHED RE GARDING ANY LTCG DECLARED IN RELEVANT ASSESSMENT YEAR. 9.1 UNDOUBTEDLY THE ASSESSEE ALONG WITH HIS FATHER AND MOTHER, WAS HAVING 1/3 RD SHARE IN THE PROPERTY IN QUESTION SOLD FOR RS.1.50 CRORES TO SANJAY SUCHETA AND MRS. RITU SUCHETA. ASSESSEE HAS CLAIMED TO HAVE ACQUIRED THE SAME AT RS.32,61,247/- I.E. 1/3 RD SHARE. THE A.O. ON THE BASIS OF UNDISPUTED FACT THAT SHRI SUNIL BATRA ASSESSEE BEING CO- ITA NO.3644/DEL/2010 9 SHARER IN THE PROPERTY IN QUESTION TO THE EXTENT OF 1/3 RD SHARE ALONG WITH SHRI DAMODAR DAS BATRA AND SMT. ASHA BATRA HAD PURCHASED THE SAME FOR RS.50,00,000/- AND AS SUCH THE COST OF ACQ UISITION QUA EACH CO-SHARER COMES TO RS.21,27,723/- AND BY TREATING T HE COST OF ACQUISITION AT RS.21,27,723/- COMPUTED THE STSCG AT RS.28,72,276/- AT PAR WITH HIS (ASSESSEE) FATHER SHRI DAMODAR DAS BATRA, WHO HAS ALSO 1/3 RD SHARE IN THE PROPERTY AND THEREBY MADE ADDITION OF RS.11,33,524 TO THE INCOME OF ASSESSEE. 9.2 LD. CIT(A) BY ERRONEOUSLY RELYING UPON THE JUDG EMENT CITED AS CIT VS HINDUSTAN PETROLEUM LTD., 98 ITR 167 (S.C.) AND CIT VS MITHLESH KUMARI, 92 ITR 09 EXTENDED THE RELIEF OF I NTEREST PAID BY THE ASSESSEE ON THE BORROWED LOAN OF RS.35,00,000/- USE D FOR THE PURCHASE OF PROPERTY IN QUESTION BY ADDING THE SAME TO THE C OST OF ACQUISITION, WHICH IS NOT PERMISSIBLE UNDER LAW AND THE JUDGEMEN TS CITED AS HINDUSTAN PETROLEUM LTD. AND MITHLESH KUMARI (SUPRA ) ARE NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CA SE. 9.3 HON'BLE SUPREME COURT IN CASE CITED AS CIT VS T ATA IRON AND STEEL CO. LTD. (SUPRA) DISCUSSED IN PRECEDING PARAS 8.3 AND 8.4, HELD THAT THE ACTUAL COST OF ACQUISITION IS THE AMOUNT P AID BY THE ASSESSEE TO ACQUIRE THE ASSET WHICH DOES NOT INCLUDE THE INTERE ST IF ANY PAID BY THE ASSESSEE ON THE LOAN BORROWED FOR THE PURPOSE OF PU RCHASING SUCH ASSET. 9.4 SO, IN THE LIGHT OF UNDISPUTED FACTS AND LAW DI SCUSSED ABOVE, THE COST OF ACQUISITION OF PROPERTY IN QUESTION IN THE HANDS OF THE ASSESSEE, IS RS.21,27,723/-, AS HAS BEEN CLAIMED BY SHRI DAMO DAR DAS BATRA, FATHER OF THE ASSESSEE ONE OF THE CO-SHARER IN THE PROPERTY IN QUESTION ITA NO.3644/DEL/2010 10 TO THE EXTENT OF 1/3 RD SHARE. SO, LD. CIT(A) HAS COMMITTED PATENT ILLEGALITY BY CONSIDERING THE COST OF ACQUISITION A T RS.32,61,247/-. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE. 10. CONSEQUENTLY, THE PRESENT APPEAL FILED BY THE R EVENUE IS HEREBY ALLOWED. 11. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEP., 2015. SD./- SD./- ( N. K. SAINI) (KULDIP SIN GH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 30 TH SEP., 2015 2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 9/9 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 10,11,18,23,30/9 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 30/09/15 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 30/09 SR. PS/PS 7 FILE SENT TO BENCH CLERK 30/9 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER ITA NO.3644/DEL/2010 11