Shri Sher Singh Shivrain, Bahadurgarh V. JCIT, Rohtak

ITA 4312/DEL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7404 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 02-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR SENIOR
• Assessee Lawyers: PIYUSH KUMAR S
• Keywords: Cost of acquisition; Valuation report
• Section: 143(3); 54B; 234B; 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI A.T. VARKEY, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.4216/DEL./2012 (ASSESSMENT YEAR : 2009-10) ACIT, SONEPAT CIRCLE, VS. SHRI SHER SINGH SHIVRAIN , SONEPAT. 1404, SECTOR 6, BAHADURGARH, DISTT. JHAJJAR. (PAN : AECPS1320P) ITA NO.4312/DEL./2012 (ASSESSMENT YEAR : 2009-10) SHRI SHER SINGH SHIVRAIN, VS. ACIT, SONEPAT CIRCL E, 1404, SECTOR 6, SONEPAT. BAHADURGARH, DISTT. JHAJJAR. (PAN : AECPS1320P) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI GAUTAM JAIN & PIYUSH KUMAR, A DVOCATES REVENUE BY : SHRI B.R.R. KUMAR, SENIOR DR DATE OF HEARING : 02.11.2015 DATE OF PRONOUNCEMENT : 12.01.2016 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THESE CROSS APPEALS, AT THE INSTANCE OF THE ASSESSE E AND REVENUE, ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX 2 ITA NO.4216 & 4312/DEL/2012 (APPEALS), ROHTAK DATED 28.05.2012 AND RELATE TO AS SESSMENT YEAR 2009- 10. 2. THE GROUNDS RAISED IN APPEAL FILED BY REVENUE IN ITA NO.4216/D/2012 ARE AS UNDER :- 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING T HE ADDITION OF RS. 2,34,00,993/- OUT OF RS. 2,81,55,99 3/- MADE BY AO UNDER HEAD CAPITAL GAINS AS THE ASSESSEE FAIL ED TO FILE SUSTAINABLE DOCUMENTARY EVIDENCE IN RESPECT OF INVESTMENTS MADE IN ADDITIONS AS WELL AS DETAILS OF COMPLETE BANK ACCOUNTS DURING ASSESSMENT PROCEEDING S; THE LD. CIT(A) ACCEPTED THE PLEA OF THE ASSESSEE WITHOU T ANY VERIFICATION AND DOCUMENTARY EVIDENCE WHICH IS NOT JUSTIFIED. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DIRECTING THE AO TO CONSIDER THE LTCG (LONG TERM CAPITAL GAINS) OF RS. 11,75,813/-, WHICH WAS CLAIMED AS EXEMPT U/S 10(38) FURNISH SUSTAINABLE DOCUMENTARY EVIDENCE IN RESPECT OF THESE INVESTMENTS INSPITE OF SUFFICIENT OPPORTUNITI ES ALLOWED TO ASSESSEE DURING ASSESSMENT AS WELL AS REMAND PROCEEDINGS. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING THE A DDITION OF RS. 6,40,000/- OUT OF RS. 15,50,000/- MADE BY AO BY TREATING THE AGRICULTURAL INCOME AS INCOME FROM UND ISCLOSED SOURCES AS ASSESSEE FAILED TO FURNISH SUSTAINABLE DOCUMENTARY EVIDENCE IN RESPECT OF THE AGRICULTURAL INCOME DURING ASSESSMENT PROCEEDINGS; THE LD. CIT(A) ACCEP TED THE PLEA OF THE ASSESSEE WITHOUT ANY VERIFICATION A ND DOCUMENTARY EVIDENCE WHICH IS NOT JUSTIFIED. 3. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN I TA NO. 4312/D/2012 ARE AS UNDER :- 3 ITA NO.4216 & 4312/DEL/2012 1 THAT ORDER OF ASSESSMENT U/S 143(3) OF THE ACT 29.12.2011 IS WITHOUT JURISDICTION SINCE THE LEARNE D JOINT COMMISSIONER OF INCOME TAX, WHO FRAMED THE IMPUGNED ASSESSMENT WAS NOT EMPOWERED OR AUTHORIZED OR DIREC TED UNDER THE PROVISIONS OF SECTION 120(4)(B) READ WITH SECTION 2(7A) OF THE ACT TO EXERCISE THE POWERS OR PERFORM THE FUNCTIONS OF ASSESSING OFFICER AND AS SUCH, ORDER O F ASSESSMENT IS ILLEGAL, INVALID AND, BE QUASHED AS S UCH. 1.1 WITHOUT PREJUDICE TO THE ABOVE, EVEN IF IT IS A SSUMED (NOT ADMITTED) FOR THE SAME OF AN ARGUMENT THAT THE LEARNED JOINT COMMISSIONER OF INCOME TAX WAS EMPOWERED UNDE R SECTION 124(4)(B) READ WITH SECTION 2(7A) OF THE AC T, THEN TOO, ORDER OF ASSESSMENT IS WITHOUT JURISDICTION IN ABSENCE OF AN ORDER TRANSFERRING JURISDICTION U/S 127 OF TH E ACT FROM THE LEARNED ASSISTANT COMMISSIONER OF INCOME TAX, R OHTAK CIRCLE, ROHTAK TO LEARNED JOINT COMMISSIONER OF INC OME TAX ROHTAK RANGE, ROHTAK 2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACT S IN UPHOLDING AN ADDITION OF RS. 45,54,394/- BY COMPUTI NG THE LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND AT RS. 1,91,54,584/- AS AGAINST DECLARED LONG TERM CAPITAL GAIN OF RS. 1,46,00,190/-. 2.1 THAT WHILE DETERMINING THE LONG TERM CAPITAL GA IN AT RS. 1,91,54,584/- THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN RES TRICTING THE COST OF IMPROVEMENT/CONSTRUCTION ON AGRICULTURA L LAND IN THE FINANCIAL YEAR 2008-09 AT RS. 77,95,000/- AS AG AINST TOTAL EXPENDITURE OF RS.1,05,79,000/- ON ERRONEOUS CONSID ERATION THAT EXPENDITURE INCURRED AFTER SALE DEED IS NOT AN ELIGIBLE EXPENDITURE. 2.2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT SUCH EXPEND ITURE HAD BEEN INCURRED PRIOR TO THE SALE DEED BUT DISCHARGED AFTER THE SALE DEED AND HENCE, THE BASIS ADOPTED BY FAILING T O APPRECIATE EVIDENCE ON RECORD IS HIGHLY MISCONCEIVE D AND THEREFORE, UNSUSTAINABLE. 4 ITA NO.4216 & 4312/DEL/2012 3 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACT S IN UPHOLDING AN ADDITION OF RS. 2,00,000/- BY COMPUTIN G THE LONG TERM CAPITAL GAIN ON SALE OF RESIDENTIAL HOUSE AT RS.25,22,188/- AS AGAINST DECLARED LONG TERM CAPITA L GAIN OF RS.23,22,188/-. 3.1 THAT WHILE DETERMINING THE LONG TERM CAPITAL GA IN AT RS. 25,22,188/- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN RES TRICTING THE COST OF IMPROVEMENT/CONSTRUCTION ON RESIDENTIAL HOUSE IN THE FINANCIAL YEAR 2008-09 AT NIL AS AGAINST TOT AL EXPENDITURE OF RS. 2,00,000/- ON REPAIR OF THE HOUS E. 4 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACT S IN NOT ALLOWING THE CLAIM OF EXEMPTION OF RS. 39,15,450/- U/S 54B OF THE ACT. 4.1 THAT THE FINDING OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THAT NO EVIDENCE HAS BEEN LED THAT AGRICULTURE OPERATIONS WERE BEING CARRIED OUT ON TH E SAID LAND IS CONTRARY TO FACTS AND EVIDENCE ON RECORD A ND HAS BEEN ARRIVED WITHOUT GRANTING ANY OPPORTUNITY AND THEREFORE, UNSUSTAINABLE. 5 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN UPH OLDING AN ADDITION OF RS. 9,10,000/- OUT OF AGGREGATE ADDITIO N MADE OF RS. 15,50,000/- REPRESENTING AGRICULTURAL INCOME EA RNED BY THE APPELLANT IN THE YEAR UNDER CONSIDERATION. 6 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN UPH OLDING THE LEVY OF INTEREST U/S 234B OF RS. 30,56,108/- WH ICH IS NOT LEVIABLE AT ALL ON THE FACTS OF THE INSTANT CASE. IT IS THEREFORE PRAYED THAT, IT BE HELD THAT, ASSES SMENT FRAMED IS WITHOUT JURISDICTION AND, VARIOUS ADDITIONS SUST AINED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) TOGETHER WITH INTEREST MAY KINDLY BE DELETED AND, A PPEAL OF THE APPELLANT BE ALLOWED. 5 ITA NO.4216 & 4312/DEL/2012 4. DURING THE COURSE OF HEARING, GROUND NO. 1 AND 1 .1 OF THE GROUNDS OF APPEAL FILED BY THE ASSESSEE WERE NOT PRESSED AN D ARE THEREFORE, DISMISSED. 5. GROUND 2 TO 3.1 RAISED BY ASSESSEE AND GROUND 1 RAISED BY REVENUE RELATE TO ADDITION OF RS. 2,81,55,993/- ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF 2 RESIDENTIAL HOUSES AND AGRICULTUR AL LAND BY THE APPELLANT COMPANY. 6. FROM THE PERUSAL ON THE FACTS ON RECORD, IT IS N OTICED THAT THE APPELLANT FILED RETURN OF INCOME DECLARING CAPITAL GAIN ON SALE OF LAND AND 2 HOUSES AT RS.1,68,44,084/- IN THE MANNER AS UNDER : HOUSE NO. 1392 SOLD ON 28/04/2008 SALE CONSIDERATION 27,50,000 LESS: INDEXED COST (FY 2003-04) 22,50,000/ 463*582 28,28,294 28,28,294 -78,294 AY 2004-05 AGRICULTURE LAND SOLD ON 05/11/2008 SALE CONSIDERATION 4,24,42,000 LESS: INDEXED COST (FY 2004-05) 21,05,000/ 480*582 25,52,312 (FY 2005-06) 30,00,000/ 497*582 35,13,078 (FY 2006-07) 33,95,000/ 519*582 38,07,110 (FY 2007-08) 53,20,000/ 551*582 56,19,310 (FY 2008-09) 1,23,50,000/ 582*582 1,23,50,000 2,78,41,810 1,46,00,190 HOUSE NO. 1402 SOLD ON 18/08/2008 SALE: CONSIDERATION 35,00,000 LESS: INDEXED COST (FY 2002-03) 7,51,000/ 447*582 9,77,812 (FY 2008-09) 2,00,000/ 582*582 2,00,000 23,22,188 TOTAL LTCG 1,68,44,084 6 ITA NO.4216 & 4312/DEL/2012 7. THE ASSESSING OFFICER HOWEVER DETERMINED LONG TE RM CAPITAL GAIN ON SALE OF THE HOUSE AND AGRICULTURAL LAND AT RS. 4 ,44,07,059/- IN THE FOLLOWING MANNER: PROPERTY COST INDEX COST SALE VALUE CAPITAL GAIN H. NO. 1392, SECTOR- 6 (PURCHASED IN 2003-04) 6,00,000/- 600000X582 463 = 7,54,211 27,50,000/- 19,95,789/- H. NO. 1402, SECTOR 6 (PURCHASED IN 2002-03) 7,51,000/- 751000X582 447 =9,77,812/- 35,00,000/- 25,22,188/- AGR. LAND (PURCHASED IN 2004- 05) 21,05,500/- 21,05,500X582 480 = 25,52,912 4,24,42,000/- 3,98,89,082/- TOTAL 4,44,07,059 8. THE CIT(A) NOTICED THAT THE REASON WHICH LED THE ASSESSING OFFICER TO COMPUTE LONG TERM CAPITAL GAIN AT RS. 4, 48,07,059/- WAS THAT HE HAD NOT TAKEN INTO ACCOUNT THE ADDITIONS AS HAVE BE EN CLAIMED BY THE APPELLANT COMPANY FOR EACH OF THE ASSETS SOLD IN TH E INSTANT YEAR. THE DETAILS OF THE ADDITIONS CLAIMED AND DENIED BY THE ASSESSING OFFICER ARE AS UNDER: PROPERTY COST ADDITION NOT ALLOWED ASSESSMENT YEAR H.NO. 1392, SECTOR-6 (PURCHASED IN 2003-04) 6,00,000/- 16,50,000/- 2004-05 H.NO. 1402, SECTOR-6 (PURCHASED IN 2002-03) 7,51,000/- 2,00,000/- 2009-10 AGRICULTURAL LAND (PURCHASED IN 2004-05) 21,05,500/- 30,00,000/- 33,95,000/- 53,20,000/- 1,23,50,000/- 2006-07 2007-08 2008-09 2009-10 9. BEFORE THE CIT(A), THE APPELLANT CONTENDED THAT THE ADDITIONS TO THE ASSETS SOLD HAVE DULY BEEN REFLECTED IN THE STATEME NT OF AFFAIRS AS ON 31.03.2007, 31.3.2008 AND 31.3.2009 FILED BEFORE TH E ASSESSING OFFICER. 7 ITA NO.4216 & 4312/DEL/2012 IT WAS SUBMITTED THAT THE ASSESSING OFFICER WHILE C ALCULATING THE LONG TERM CAPITAL GAIN HAS DENIED COST OF ADDITIONS MADE IN THE CONSTRUCTION/DEVELOPMENT OF THE ASSETS WHICH WERE D ULY SHOWN IN THE STATEMENT OF AFFAIRS OF RESPECTIVE YEARS AND WAS CO RROBORATED BY THE STATEMENT OF AFFAIRS ACCEPTED IN THE PRECEDING YEAR S. IT WAS FURTHER STATED THAT AMOUNT WAS SPENT ON CONSTRUCTION OF A BIG RESI DENTIAL HOUSE AND IMPROVEMENT OF AGRICULTURE LAND SUCH AS FILING, LAN DSCAPING ETC. INCLUDING A BARBED WIRE BOUNDARY WHICH WAS CONSTRUCTED ON THE ENTIRE LAND OF 46 KANALS AND 8 MARLAS AND A PUCCA WATER HARVESTING PO OL OF 90 LACS LITERS WAS ALSO CONSTRUCTED BY THE APPELLANT WHICH WAS DUL Y CONNECTED WITH ROAD AND PAVEMENTS. THE APPELLANT FURNISHED PHOTOCO PIES OF THE SAID PROPERTY IN SUPPORT OF THE CLAIM OF COST OF LAND IN CURRED FOR DEVELOPMENT OF THE PROPERTY APART FROM A VALUATION REPORT. THE ASSESSEE FILED COPY OF BANK STATEMENT IN SUPPORT OF THE CLAIM OF CONSTRUCT ION. A REMAND REPORT WAS OBTAINED FROM THE ASSESSING OFFICER. ON CONSIDE RATION OF THE ABOVE, CIT(A) ALLOWED THE CLAIM OF THE APPELLANT EXCEPT TO THE EXTENT OF RS. 47,55,000/- AND AS SUCH, BOTH ASSESSEE AND REVENUE ARE IN APPEAL. 10. DURING THE COURSE OF HEARING, THE LEARNED COUNS EL FOR THE ASSESSEE SUBMITTED THAT SINCE DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, THE ASSESSING OFFICER HAD DIRECTED THE ASSESSEE TO FURN ISH ONLY DETAILS OF ASSETS FOR THE YEAR UNDER CONSIDERATION THERE WAS N O JUSTIFICATION TO DENY DEDUCTION ON ACCOUNT OF COST INCURRED IN EARLIER YE ARS WHICH WERE 8 ITA NO.4216 & 4312/DEL/2012 OTHERWISE SUPPORTED BY STATEMENT OF AFFAIRS PLACED ON RECORD ALONG WITH RETURNS OF INCOME FOR EARLIER YEARS AND THUS, DENIA L OF INVESTMENT IN EARLIER YEARS WAS WHOLLY UNTENABLE. SO FAR AS THE A DDITIONS MADE IN THE INSTANT YEAR, IT WAS SUBMITTED THAT COMPLETE BANK S TATEMENTS WERE FURNISHED AS WOULD BE SEEN FROM THE REPLIES TO THE ASSESSING OFFICER DATED 15.11.2011 AND 19.12.2011 AND PLACED IN THE P APER BOOK. A CHART TABULATING THE CLAIM MADE VIS--VIS EACH OF THE THR EE PROPERTIES SOLD IN THE INSTANT YEAR WAS FURNISHED AND IS EXTRACTED HEREUND ER: SR. NO. PROPERTY SUBMISSION OF THE ASSESSEE 1 HOUSE NO. 1392, SECTOR-6, BAHADURGARH A.Y. COST (RS.) BAHADURGARH (RS.) 04-05 16,50,000 20,74,083 1) THE LEARNED ASSESSING OFFICER DISALLOWED THE CO ST INCURRED ON DEVELOPMENT OF LAND OF RS. 16,50,000/- IN ASSESSMEN T YEAR 2004-05 THROUGH ALLOWED THE COST OF PURCHASE OF LAND OF RS. 6 LACS. THUS, HE RESTRICTED THE COST TO RS. 6 LACS AS AGAINST CLAIM OF RS. 22,50,000/- (RS. 6,00,000/- + RS. 16,50,000/-) II) IN ARRIVING AT THE ABOVE CONCLUSION, HE OVERLOO KED THAT THE SAID COST INCURRED IN ASSESSMENT YEAR 2004-05 WAS DULY DECLAR ED IN THE STATEMENT OF AFFAIRS FURNISHED IN EARLIER YEAR AS WOULD BE EVIDE NT FROM CHART HEREUNDER: SR. NO. A.Y AMOUNT PAGES OF PAPER BOOK ASSESSMENT U/S (PAGES OF PAPER BOOK) I) 2006-07 22,50,000 81 143(3) (83-84) II) 2007-08 22,50,000 86 143(1) (87) III) 2008-09 22,50,000 88 143(1) (89) 2) THESE STATEMENT OF AFFAIRS WERE ALSO FURNISHED I N THE COURSE OF ASSESSMENT PROCEEDINGS BY REPLY DATED 19.12.2011 (PAGES 16-17 OF PAPER BOOK). MOREOVER THERE WERE ALSO PLACED BEFORE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) VIDE SUBMISSION DATED 12.3.2012 (PAGE 71 OF PAPER BOOK READ WITH PAGE 74 OF PAPER BOOK). THIS HAS ALSO BEEN ACCEPTE D BY THE LEARNED ASSESSING OFFICER IN REMAND REPORT DATED 11.4.2012 (PAGES 75- 76 OF PAPER BOOK) 3) IT IS THUS SUBMITTED THAT ONCE AN ADDITION HAS BEEN SHOWN IN A PARTICULAR YEAR AND THE RETURN OF INCOME FOR THAT YEAR HAS BEC OME FINAL, IT IMPLIES THAT THAT THE ADDITIONS SHOWN BY THE ASSESSEE WERE ACCEP TED BY THE DEPARTMENT. THUS THERE IS NO REQUIREMENT OF FILING THE EVIDENCE S OF EARLIER YEARS. INFACT, THE LEARNED ASSESSING OFFICER HAS NEVER REQUIRED TH E APPELLANT, DURING ASSESSMENT PROCEEDINGS TO FILE SUCH EVIDENCES (SEE PAGE 78 OF SUBMISSION DATED 20.04.2012 AND PAGE 71 OF SUBMISSION DATED 12 .3.2012) 9 ITA NO.4216 & 4312/DEL/2012 4) IT IS SUBMITTED THAT, THE LEARNED COMMISSIONER O F INCOME TAX (APPEALS) WAS JUSTIFIED TO ACCEPT THE INVESTMENT IN H. NO. 13 92, SECTOR-6, BAHADURGARH OF RS. 16,50,000/-. THE FINDINGS OF LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) ARE IN PARA 8.4 AT PAGE 9 TO BE READ WITH PARA 8.1 AT PAGE 6 OF HIS ORDER 2 AGRICULTURAL LAND (MEASURING 46 KANALS) ALONGWITH FARM HOUSE THEREON AT GURGAON (A) A.Y. COST (RS.) BAHADURGARH (RS.) 06-07 30,00,000 35,13,078 07-08 33,95,000 38,07,110 08-09 53,20,000 56,19,310 09-10 1,23,50,000 1,23,50,000 TOTAL 2,40,65,000 2,52,89,498 THE LEARNED ASSESSING OFFICER DISALLOWED THE COST I NCURRED ON DEVELOPMENT OF LAND OF RS. 2,40,65,000/- IN ASSESSMENT YEARS 2006- 07 TO 2009-10 THROUGH ALLOWED THE COST OF PURCHASE OF LAND OF RS. 21,05,5 00. THUS, HE RESTRICTED THE COST TO RS. 21,05,500 AS AGAINST CLAIM OF RS. 2,61, 70,500/- (RS. 21,05,500+30,00,000+33,95,000+53,20,000+1,23,5 000) II) IN ARRIVING AT THE ABOVE CONCLUSION, HE OVERLOO KED THAT THE SAID COST INCURRED WAS DULY DECLARED IN THE STATEMENT OF AFFA IRS FURNISHED IN EARLIER YEARS AS WOULD BE EVIDENT FROM CHART HEREUNDER: SR. NO. A.Y AMOUNT PAGES OF PAPER BOOK ASSESSMENT U/S (PAGES OF PAPER BOOK) I) 06-07 51,05,000 (21,05,000+ 30,00,000) 81 143(3) (83-84) II) 07-08 85,00,000 (21,05,000+ 30,00,000) 33,95,000) 86 143(1) (87) III) 08-09 1,38,20,000 (21,05,000+ 30,00,000) 33,95,000+ 1,23,50,000) 88 143(1) (89) IV) 09-10 2,61,70,000 (1,23,50,000+ 1,38,20,000) 90 143(3) 2) THESE STATEMENT OF AFFAIRS WERE ALSO FURNISHED I N THE COURSE OF ASSESSMENT PROCEEDINGS BY REPLY DATED 19.12.2011 (PAGES 16-17 OF PAPER BOOK). MOREOVER THESE WERE ALSO PLACED BEFORE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) VIDE SUBMISSION DATED 12.3.2012 (PAGE 71 OF PAPER BOOK READ WITH PAGE 74 OF PAPER BOOK). THIS HAS ALSO BEEN ACCEPTE D BY THE LEARNED ASSESSING OFFICER IN REMAND REPORT DATED 11.4.2012 (PAGES 75- 76 OF PAPER BOOK) 3) THE ASSESSEE PURCHASED THE PLOT OF LAND FOR A C ONSIDERATION OF RS. 21,05,000/- ON 27.10.2004 (PAGES 101-110 OF PAPER B OOK). IT CONSTRUCTED A FARMHOUSE THEREON AND SOLD THE SAID PROPERTY BY TWO SEPARATE SALE DEEDS SR.NO. DATE OF SALE DEED AMOUNT (RS.) PAGES OF PAPER BOOK I) 14.7.2008 1,05,79,500 91-94 II) 5.11.2008 3,18,63,000 95-100 TOTAL 4,24,42,500 4) IT IS SUBMITTED THE AMOUNT OF RS. 1,23,50,000/- IN THE INSTANT YEAR AND RS. 1,17,15,000/- IN EARLIER YEARS WAS SPENT ON CONSTRU CTION OF RESIDENTIAL HOUSE AND IMPROVEMENT ON AGRICULTURE LAND SUCH AS FILLING AND LAND SCAPPING ETC. A BARBED WIRE BOUNDARY WAS ALSO CONSTRUCTED ON THE EN TIRE LAND OF 46K 8M. A 10 ITA NO.4216 & 4312/DEL/2012 PAKKA WATER HARVESTING POOL WAS ALSO GOT CONSTRUCTE D BY THE APPELLANT WHICH WAS DULY CONNECTED WITH ROAD AND PAYMENTS. THE CAP ACITY OF THE POOL WAS ABOUT 90 LAKH LITERS. THE ASSESSEE HAD PURCHASED A ND DEVELOPED THIS PIECE OF LAND FOR EXCLUSIVE USE OF HIS RESIDENCE WITH BEST A VAILABLE MATERIAL USED IN CONSTRUCTION. EVEN IN POOL COSTLY STONES WERE USED AS IS EVIDENT FROM THE PHOTOS PRODUCED BEFORE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS) AND WERE ALSO SHOWN BEFORE THE LEARNED ASSESSING OFFICE R (PAGE 73 OF PAPER BOOK). THE AMOUNT INVESTED WAS WITHDRAWN FROM THE BANKS AND THE SOURCE OF THE SAME THUS STOOD EXPLAINED WHEN IT IS REFLECTED IN THE BALANCE SHEETS I.E. THE SOURCES AND ITS APPLICATIONS. AS SUCH, NO ADVERSE INFERENCE COULD BE VALIDLY DRAWN. 5) IT IS SUBMITTED THAT THE CONSTRUCTION OF THE FA RM HOUSE IS SUPPORTED BY DETAILS OF CONSTRUCTION (PAGE 80 OF PAPER BOOK) AND VALUATION REPORT DATED 1.7.2008 VALUING THE DEVELOPMENT WORK INCLUDING WAT ER HARVESTING POND AT RS. 1,55,27,000/- (PAGES 111-121 OF PAPER BOOK). T HIS FACT IS SPECIFICALLY STATED IN THE SALE DEED DATED 14.7.2008 (PAGES 91-9 4 AT PAGES 92-93 OF PAPER BOOK) 6) IT IS THUS SUBMITTED THAT THE ENTIRE COST OUGHT TO BE ALLOWED AS DEDUCTION. 7) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ), HAS RESTRICTED THE AMOUNT INVESTED IN THE YEAR TO RS. 77.95 LACS OUT O F TOTAL SUM OF RS. 123.50 LACS ON THE GROUND THAT RS. 45.55 LACS WAS PAID AFT ER 14.7.2008, WHICH IS THE DATE OF SALE DEED OF FARM HOUSE. THERE IS NO JUSTI FICATION TO HOLD SO. ONCE PAYMENTS MADE ARE NOT DISPUTED BY THE REVENUE, WHIC H ARE BY ACCOUNT PAYEE CHEQUES AND ACCEPTED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND, BANK STATEMENTS FILED IN THE ASSESSMENT PROCEE DINGS (PAGE 8 OF CIT(A) ORDER), IT IS SUBMITTED THAT THE SUM OF RS. 45.55 L ACS NOT ALLOWED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MAY AL SO KINDLY BE ALLOWED AS DEDUCTION. 3 HOUSE NO. 1402, SECTOR-6, BAHADURGARH A.Y. COST (RS.) BAHADURGARH (RS.) 09-10 2,00,000 2,00,000 1) THE LEARNED ASSESSING OFFICER DISALLOWED THE CO ST INCURRED ON DEVELOPMENT OF LAND OF RS. 2,00,000/- IN ASSESSMENT YEAR 2009-10. II) IN ARRIVING AT THE ABOVE CONCLUSION, HE OVERLOO KED THAT THE SAID COST EXPLAINED THROUGH THE STATEMENT OF AFFAIRS FOR ASSE SSMENT YEAR 2009-10 (PAGE 90 OF PAPER BOOK). THE DETAILS OF INVESTMENT ARE A T PAGE 80 OF PAPER BOOK SUPPORTED BY BANK STATEMENTS PLACED ON RECORD. AS SUCH NO ADVERSE COULD VALIDLY BE DRAWN. THUS THE LEARNED ASSESSING OFFIC ER BE DIRECTED TO ALLOW THE INVESTMENT MADE OF RS. 2 LACS AS WOULD BE EVIDENT F ROM CHART HEREUNDER: SR. NO. A.Y AMOUNT PAGES OF PAPER BOOK I) 09-10 2,00,000 90 11. THE LEARNED DR CONTENDED THAT THE ASSESSING OFF ICER WAS JUSTIFIED IN MAKING THE ABOVE ADDITION. IT WAS SUBMITTED THAT THOUGH IT IS NOT DENIED THAT THE STATEMENT OF AFFAIRS HAD BEEN FURNI SHED ALONG WITH RETURN OF INCOME IN THE PRECEDING ASSESSMENT YEARS YET SUC H A FACT ALONE CANNOT 11 ITA NO.4216 & 4312/DEL/2012 BE MADE A BASIS TO ALLOW DEDUCTION TO THE APPELLANT COMPANY WHILE COMPUTING THE CAPITAL GAIN IN THE INSTANT YEAR. IT WAS FURTHER SUBMITTED THAT AS REGARDS FARM HOUSE SOLD, MERE FURNISHING OF PHOTOCOPIES AND REFERENCES TO THE SALE DEED CANNOT BE A GROUND TO A LLOW DEDUCTION OF THE COST OF CONSTRUCTION CLAIMED BY THE APPELLANT COMPA NY. 12. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. IT IS NOTICED THAT DURING THE INSTANT YEAR, THE APPELLANT SOLD HOUSE NO. 1392, SECTOR-6, BAHADURGARH AND IN RESPECT OF S UCH AN ASSET, CLAIMED EXPENDITURE INCURRED ON DEVELOPMENT OF LAND OF RS. 16,50,000/- IN ASSESSMENT YEAR 2004-05. FURTHER DURING THE INSTANT YEAR, THE APPELLANT HAD ALSO SOLD AN AGRICULTURAL LAND MEASURING 46 KAN AL ALONGWITH FARM HOUSE AT GURGAON AGAINST WHICH IT CLAIMED AN EXPEND ITURE INCURRED ON DEVELOPMENT OF LAND OF RS. 2,40,65,000/- DURING THE ASSESSMENT YEARS 2006-07 TO 2009-10. THE BREAKUP OF THE SAID COST IN CURRED AND CLAIMED FOR THE YEARS IS AS UNDER: ASSESSMENT YEAR AMOUNT 2006-07 30,00,000/- 2007-08 33,95,000/- 2008 - 09 53,20,000/ - 2009-10 1,23,50,000/- 13. FURTHER ANOTHER PROPERTY SOLD IN THE INSTANT YE AR WAS HOUSE NO. 1402, SECTOR-6, BAHADURGARH WHEREBY THE ASSESSEE CL AIMED AN EXPENDITURE OF RS. 2,00,000/- INCURRED DURING THE I NSTANT ASSESSMENT YEAR WHICH TOO HAD BEEN DENIED BY THE ASSESSING OFFICER. THUS APPELLANT 12 ITA NO.4216 & 4312/DEL/2012 CLAIMED COST OF RS. 16,50,000/- INCURRED IN ASSESSM ENT YEAR 2004-05 IN RESPECT OF HOUSE NO. 1392, SECTOR-6, BAHADURGARH AN D COST OF RS. 33,00,000/-, 33,95,000/- AND RS. 53,20,000/- INCURR ED IN THE ASSESSMENT YEARS 2006-07 TO 2008-09 TOWARDS AGRICULTURAL LAND SOLD ALONGWITH FARM HOUSE AT GURGAON IN THE INSTANT YEAR. SO FAR AS THE COST INCURRED IN THE PRECEDING ASSESSMENT YEARS IS CONCERNED, THE CIT(A) HAS ALLOWED THE SAME BY HOLDING VIS--VIS AGRICULTURAL LAND AS UNDE R: THE AGRICULTURE LAND WAS PURCHASED IN THE FY 2004- 05 FOR A CONSIDERATION OF RS. 21,05,000/-. THEREAFTER, IMPROVEMENTS/ ADDITION S TO THE AGRICULTURE LAND BY WAY OF EARTH FILLING, BARBED WIRE FENCING, CONST RUCTION OF WATER HARVESTING POOL, CONSTRUCTION OF HUGE RESIDENTIAL HOUSE ETC. W ERE CLAIMED TO HAVE BEEN MADE DURING THE FY 2005-06, 2006-07, 2007-08 & 2008 -09 BY INVESTING RS. 30,00,000/-, RS. 33,95,000/-, RS. 53,20,000/- AND R S. 1,23,50,000/- RESPECTIVELY. THE INVESTMENT IN THE FY 2005-06 HAS BEEN SHOWN IN THE BALANCE SHEET FILED ALONG WITH RETURN OF INCOME AND THE ASS ESSMENT WAS COMPLIED U/S 143(3) ACCEPTING THE INCOME RETURNED. THE INVESTMEN T IN THE FY 2006-07 & 2007-08 HAVE BEEN DULY REFLECTED IN THE STATEMENT O F AFFAIRS AS ON 31.03.3007 & 31.03.2008 FILED ALONG WITH THE RETURN OF INCOME. THESE RETURNS OF INCOME HAVE BEEN PROCESSED U/S 143(1). THE DECLARATION IN THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN OF INCOME REGARDING THE ADD ITION/ IMPROVEMENTS MADE IN THE AGRICULTURE LAND INDICATES THAT THE ASSESSEE HAS IN FACT INVESTED THESE AMOUNTS TOWARD THE ADDITIONS TO THE AGRICULTURE LAN D. 14. SO FAR AS THE COST OF RS. 16,50,000/- IS CONCER NED, THE SAME TOO HAS BEEN ALLOWED ON THE GROUND THAT SUCH COST WAS REFLE CTED IN THE STATEMENT OF AFFAIRS AS ON 31.3.2007 AND WHICH WAS ACCEPTED I N ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT. HAVING CONSIDERED THE RIVAL SUBMISSIONS, WE FIND THAT SO FAR AS COST INCURRED IN PRECEDING A SSESSMENT YEARS IS CONCERNED, IT IS NOT DENIED THAT SUCH COST WAS DULY REFLECTED IN THE STATEMENT OF AFFAIRS FURNISHED ALONG WITH RETURN OF INCOME FOR EACH OF THE PRECEDING ASSESSMENT YEARS. THESE RETURNS OF INCOME AS FILED BY THE 13 ITA NO.4216 & 4312/DEL/2012 ASSESSEE HAVE ACQUIRED FINALITY. NEITHER ACTION UND ER SECTION 147 OR SECTION 263 OF THE ACT HAS BEEN TAKEN BY THE REVENU E TO DISTURB SUCH A RETURN. IN SUCH CIRCUMSTANCES, WE ARE IN AGREEMENT WITH THE CONCLUSION OF THE CIT(A) THAT COST AS INCURRED AND REFLECTED IN T HE STATEMENT OF AFFAIRS FURNISHED IN THE RETURN OF INCOME IN THE PRECEDING ASSESSMENT YEARS HAD TO BE ALLOWED AS DEDUCTION TO THE APPELLANT AND COULD NOT BE DENIED WHILE COMPUTING CAPITAL GAIN ON SALE OF THE HOUSE/AGRICUL TURAL LAND IN THE INSTANT YEAR. 15. NOW COMING TO THE COST INCURRED IN THE INSTANT YEAR, SO FAR AS AGRICULTURAL LAND AT GURGAON IS CONCERNED, IT CLAIM ED COST OF RS. 1,23,50,000/-. IT WAS STATED THAT SUCH EXPENDITURE WAS INCURRED FOR CONSTRUCTION OF THE FARM HOUSE AND DEVELOPMENT OF T HE AGRICULTURAL LAND. THE BREAK-UP OF THE SAID EXPENDITURE HAS BEEN NOTED BY THE CIT(A) AS UNDER: DURING THE YEAR UNDER CONSIDERATION I.E. FY. 2008- 09, AN AMOUNT OF RS.1,23,50,000/- WAS CLAIMED TO HAVE BEEN SPENT TOW ARDS ADDITIONS TO AGRICULTURE LAND. THE AR HAS FURNISHED ACCOUNT OF A DDITIONS MADE DURING THE YEAR AS UNDER:- DATE PARTICULARS CHQ. NO. AMOUNT (RS) 04.04.2008 CASH (PAID TO CONTRACTORS FOR LABOUR CHARGES) 2,50,000/ - 07.04.2008 CASH (PAID FOR PURCHASE OF WOOD & TIMBER) 1,80,000/ - 11.04.2008 CASH (PAID FOR PURCHASE OF RODI, CEMENT, CREASER ETC.) 4,00,000/- 15.04.2008 CASH (PAID FOR PURCHASE OF CEMENT, RODI, CREASER, SAND ETC.) 2,00,000/- 18.04.2008 CASH (PAID FOR PURCHASE OF CEMENT, RODI, CREASER & LABOUR CHARGES) 2,50,000/- 14 ITA NO.4216 & 4312/DEL/2012 21.04.2008 CASH (PAID FOR MATERIAL & LABOUR CHARGES) 1,30,636 25.04.2008 2,00,000/ - 01.05.2008 SELF (PAID FOR PURCHASE OF CEMENT, RODI SAND, LABOUR ETC.) 223920 5,00,000/ - 01.05.2008 CASH (PAID FOR MATERIAL & LABOUR ETC) 223920 6,50,000/ - 05.05.2008 CASH (PAID FOR PURCHASE OF CEMENT, RODI, CRESAR ETC) 4,25,000/- 06.05.2008 CASH (PAID FOR PURCHASE OF CEMENT, RODI, CRESAR ETC) 1,20,000/- 07.05.2008 CASH (PAID FOR PURCHASE OF CEMENT, RODI, CRESAR ETC) 1,20,255/- 09.05.2008 CASH (PAID FOR PURCHASE OF CEMENT, RODI, CRESAR ETC) 3,25,000/- 17.5.2008 CASH (PAID TO CONTRACTOR) 2,50,000/- 18.05.2008 CASH PAID FOR MATERIAL) 4,00,000/- 21.05.2008 SELF (PAID FOR PURCHASE OF CEMENT, RODI, SAND, LABOUR, ETC.) 223921 5,00,000/- 28.05.2008 2,50,000/- 02.06.2008 CASH (PAID FOR PURCHASE OF STONE) 4,00,000/ - 06.06.2008 SELF (TO CHARBHUJA MARBLE CO.) 223921 1,29,109/ - CASH (PURCHASE OF MATERIAL) 1,50,000/ - SELF (PAID FOR PURCHASE OF CEMENT, RODI, SAND, LABOUR ETC.) 223918 4,50,000/- CASH (PAID FOR PURCHASE OF STONE) 1,25,000/- CASH (PAID FOR PURCHASE OF MATERIAL) 1,60,000/- 18.06.2008 SELF ( PURCHASE OF WOOD , VIJAY KUMAR A. SON) 223927 3,60,000/- 22.06.2008 SELF (CHABHUJA MARBLE CO.) 223932 3,70,000/- 24.06.2008 SELF (PAID FOR PURCHASE OF CEMENT, RODI,CRESAR,) 223925 2,50,000/- SELF (PAID FOR PURCHASE OF CEMENT, RODI,CRESAR,) 223926 2,50,000/- 22.07.2008 SELF (RAM KISOR) 223932 5,00,000/ - 12.11.2008 SELF( MAHADEV STONE) 00005774 3,30,000/ - 24.11.2008 JOGINDER TRADING CO. 258635 4,00,000/- 20.12.2008 JOGINDER TRADING CO. 621656 5,25,000/- 20.01.2009 KUMAR IRON STORE 621658 2,00,000/- 27.01.2009 JOGINDER TRADING CO. 258644 6,00,000/- 29.01.2009 JOGINDER TRADING CO. 258645 4,00,000/- JOGINDER TRADING CO. 258646 5,00,000/ - JOGINDER TRADING CO. 258647 5,00,000/ - 21.03.2009 JOGINDER TRADING CO. 621667 6,00,000 TOTAL 1,23,50,000 15 ITA NO.4216 & 4312/DEL/2012 16. THE CIT(A) HAS ALLOWED THE AFORESAID EXPENDITUR E CLAIMED TO THE EXTENT OF RS.77,95,000/- AND DENIED SUM OF RS.45,55 ,000/- BY HOLDING AS UNDER: THIS EXPENDITURE CLAIMED IS EVIDENT FROM ENTRIES I N THE 9 BANKS ACCOUNTS MAINTAINED BY THE ASSESSEE. 8.3 FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE HAS SPENT SUBSTANTIAL AMOUNT TOWARDS ADDITIONS TO THE AGRICULTURE LAND BY WAY OF EARTH FILLING, CONSTRUCTION OF WATER HARVESTING POOL AND FARM HOUS E ETC. IT IS SEEN THAT THE ASSESSEE HAS SOLD THE FARM HOUSE FOR A CONSIDERATIO N OF RS. 1,05,79,000/- VIDE SALE DEED DATED 14.07.2008 AND THE AGRICULTURE LAND FOR A CONSIDERATION OF RS. 3,18,63,000/- VIDE SALE DEED DATED 5.11.2008 . HAD THE ASSESSEE NOT MADE ANY INVESTMENT FOR THE CONSTRUCTION OF FARMS H OUSE ON THE BARE AGRICULTURE LAND PURCHASED DURING FY 2004-05, HE WO ULD NOT HAVE BEEN ABLE TO SELL THE FARM HOUSE BY A SEPARATE SALE DEED FOR A CONSIDERATION OF RS. 1,05,79,000/-. HOWEVER, IT IS SEEN FROM THE ABOVE A CCOUNT THAT THE ASSESSEE HAS CLAIMED PAYMENT OF RS. 45,55,000/- EVEN AFTER 1 4.07.2008 TO VARIOUS CONCERNS TOWARDS ADDITION TO THE FARM HOUSE, WHICH IS NOT TENABLE. THE ADDITION TO THE FARM HOUSE MADE DURING THE YEAR IS THEREFORE RESTRICTED TO RS. 77,95,000/-. IN VIEW OF THE ABOVE, THE ACTION OF TH E AO IN TAKING THE ADDITION TO THE AGRICULTURE LAND AT NIL DISCARDING THE EVIDE NCES AVAILABLE ON RECORD IS UNJUSTIFIED. 17. FROM THE AFORESAID, IT IS APPARENT THAT THE EXP ENDITURE CLAIMED IS EVIDENT FROM THE BANK ACCOUNT MAINTAINED BY THE ASS ESSEE WHICH FACT HAS NOT BEEN PROVED OR ESTABLISHED BY LEADING ANY MATER IAL TO BE INCORRECT OF ERRONEOUS. IT IS ALSO NOT ESTABLISHED HOW SUMS WIT HDRAWN FROM THE BANK HAVE BEEN UTILIZED FOR ANY OTHER PURPOSE OTHER THAN CLAIMED BY THE APPELLANT TOWARDS LAND OR CONSTRUCTION OF THE FARM HOUSE. EVEN OTHERWISE, IT IS ALSO NOTICED THAT ASSESSEE HAD PUR CHASED A PLOT OF LAND FOR CONSIDERATION OF RS.21,05,000/- ON 2710.200 WHICH W AS SOLD AT AGGREGATE CONSIDERATION OF RS. 4,24,42,500/- BY WAY OF TWO SA LE DEEDS DATED 14.07.200 AND 05.11.2008. BOTH THE SALE DEEDS HAVE BEEN PLACED IN THE PAPER BOOK. IT IS FURTHER SEEN THAT THE SALE DEED DATED 14.7.2008 WAS 16 ITA NO.4216 & 4312/DEL/2012 SPECIFICALLY IN RESPECT OF SALE OF FARMS HOUSE INCL UDING RAIN WATER HARVESTING SYSTEMS IN THE INSTANT YEAR. THE APPELL ANT HAS ALSO FURNISHED A VALUATION REPORT DATED 1.7.2008 VALUING THE COST IN CURRED FOR DEVELOPMENT WORK IN LAND/FARMHOUSE AT RS. 1,55,27,000/-. NEITHE R THE ASSESSING OFFICER NOR THE CIT(A) OR LEARNED DR HAS POINTED OU T ANY DEFECT IN THE VALUATION REPORT FURNISHED BY THE APPELLANT. IN SU CH CIRCUMSTANCES, WE FEEL THAT THE CIT(A) WAS NOT JUSTIFIED TO RESTRICT DEDUCTION TO THE EXTENT OF RS.77.95 LACS OUT OF THE TOTAL SUM OF RS. 1,23,50,0 00/- ON THE GROUND THAT SUM WAS PAID AFTER 14.7.2005 WHICH WAS THE DATE OF SALE DEED OF THE FARM HOUSE. THUS IN OUR CONSIDERED OPINION THE ENTIRE C OST OF DEDUCTION OF RS. 1,23,50,000/- BE ALLOWED WHILE COMPUTING LONG TERM CAPITAL GAIN ON SALE OF THE AGRICULTURAL LAND/FARM HOUSE BY THE APPELLAN T. 18. THE ONLY SUM NOW REMAINS IS OF RS. 2,00,000/- C LAIMED BY THE APPELLANT HAVING BEEN INCURRED TOWARDS REPAYMENT OF THE HOUSE OF 1402, SECTOR-6, BAHADURGARH SOLD IN THE INSTANT YEAR. THE CIT(A) VIS--VIS THE SAID SUM WHILE HOLDING DENIAL OF DEDUCTION HAS HELD THAT NO EVIDENCE HAS BEEN BROUGHT ON RECORD REGARDING INVESTMENT OF THE SAID LAND AND THEREFORE, CLAIM OF DEDUCTION TO THIS EXTENT IS DIS ALLOWED. THE APPELLANT IN THE COURSE OF HEARING HAS ONLY REFERRED TO STATE MENT OF AFFAIRS WHICH IS NOT A SUFFICIENT BASIS TO ALLOW THE CLAIM OF DEDUCT ION TOWARDS COST OF ACQUISITION OF THE PROPERTY. THERE IS NOTHING TO SU PPORT THAT ANY EXPENDITURE WAS INCURRED TOWARDS COST OF DEVELOPMEN T OF HOUSE AT PLOT 17 ITA NO.4216 & 4312/DEL/2012 NO. 1402, SECTOR-6, BAHADURGARH IN THE INSTANT YEAR . HAVING REGARD TO ABOVE, WE FEEL THAT ACTION OF THE CIT(A) IS IN ORDE R AND CLAIM OF THE APPELLANT IS THEREFORE, REJECTED. IN THE RESULT, TH E GROUNDS RAISED BY THE APPELLANT ARE PARTLY ALLOWED AND GROUND RAISED BY T HE REVENUE IS REJECTED. 19. GROUND 2 RAISED BY REVENUE RELATES TO LONG TERM CAPITAL GAIN OF RS.11,75,813/- WHICH WAS CLAIMED AS EXEMPT UNDER SE CTION 10(38) OF THE ACT AND SHORT TERM CAPITAL GAIN OF RS. 3,09,715/- D ECLARED BY THE APPELLANT IN ITS RETURN OF INCOME. THE CIT(A) VIS--VIS AFORE SAID GROUND HAS HELD AS UNDER:- 15. I HAVE CONSIDERED THE ISSUE AND THE SUBMISSION S MADE BY THE AR. THE AO ASKED THE ASSESSEE TO FURNISH THE DETAILS TO LTC G & STCL ON SHARES ALONG WITH EVIDENCES FOR THE FIRST TIME ON 7.12.201 1. IN RESPONSE TO THIS REQUIREMENT, THE ASSESSEE VIDE LETTER DATED 19.12.2 011 FURNISHED THE DETAILS ALONG WITH COPIES OF D-MAT A/C, TRANSACTION STATEME NTS WITH SHARE BROKERS AND PAYMENT OF STT ALONG WITH REVISED COMPUTATION STATE MENTS, WHICH HAS BEEN CONFIRMED IN THE REMAND REPORT OF THE AO. HOWEVER, THE AO IN THE ASSESSMENT ORDER HAS STATED THAT NO DETAILS WERE FURNISHED AND THEREFORE MADE THE IMPUGNED ADDITION. AS SUBMITTED BY THE AR, THE EVID ENCES FURNISHED ARE COMPUTER GENERATED STATEMENTS WHICH CAN BE TAKEN AS ADMISSIBLE EVIDENCE. HOWEVER, IF THE AO HAD ANY DOUBT, HE SHOULD HAVE MA DE NECESSARY ENQUIRIES TO ASCERTAIN THE AUTHENTICITY OF THE DOCUMENTS FILE D BY THE ASSESSEE. THE TRANSACTION STATEMENTS OF THE SHARE BROKER INDICATE THE NAME OF THE ASSESSEE AND TO THIS EXTENT THE OBSERVATION OF THE AO IN THE REMAND REPORT THAT THE NAME OF THE ASSESSEE HAS NOT BEEN MENTIONED IN THE DOCUM ENTS IS INCORRECT. SINCE THERE IS NO DISPUTE REGARDING PAYMENT OF STT, THE A SSESSEE IS ELIGIBLE FOR EXEMPTION OF LTCG U/S 10 (38) OF THE ACT. THE AO IS DIRECTED TO CONSIDER THE LTCG OF RS. 11,75,813/-, WHICH HAS BEEN CLAIMED AS EXEMPT U/S 10(38), AND THE STCL OF RS. 3,09,715/- AS DECLARED IN THE REVIS ED COMPUTATION, AN ALLOW THE CLAIM AFTER VERIFICATION. ACCORDINGLY, THE GROU ND OF APPEAL ARE TREATED AS ALLOWED. 20. IT IS NOTICED FROM THE ABOVE THAT THE CIT(A) HA S RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO ALLOW CLAIM AFTER VERIFICATION OF THE EVIDENCES FURNISHED BY THE APPELLANT. IN SUCH CIRCU MSTANCES, WE DO NOT 18 ITA NO.4216 & 4312/DEL/2012 SEEK TO INTERFERE IN THE AFORESAID CONCLUSION AND T HEREFORE, GROUND RAISED BY THE REVENUE IS HELD TO BE FOUND NOT IN ORDER AND HENCE REJECTED. 21. GROUND 5 RAISED BY ASSESSEE AND GROUND 3 RAISED BY REVENUE RELATES TO ADDITION OF RS.15,50,000/- REPRESENTING AGRICULTURAL INCOME DECLARED BY THE APPELLANT AND HELD TO BE INCOME FRO M UNDISCLOSED SOURCES. THE CIT(A) HAS NOTED THAT DURING THE INSTA NT YEAR, THE APPELLANT HAD DECLARED AGRICULTURAL INCOME OF RS.15,50,000/- BUT SINCE THE APPELLANT HAD NOT FURNISHED ANY BILLS AND VOUCHERS IN RESPECT OF SALE OF AGRICULTURAL PRODUCE AND IN RESPECT OF EXPENSES INCURRED ON AGRI CULTURAL OPERATIONS THEREFORE THE SAME IS ADDED AS INCOME FROM UNDISCLO SED SOURCES. HE NOTED THAT APPELLANT WAS OWNER OF 41 ACRES OF LAND AND DETAILS OF OWNERSHIP HAVE BEEN FILED BEFORE THE ASSESSING OFFI CER. IT WAS CONTENDED BY THE APPELLANT BEFORE CIT(A) THAT AGRICULTURAL LA ND PRODUCED AND SOLD WAS FOR 2 YEARS NON PRODUCTION OF SALE BILLS ALONE COULD NOT BE A GROUND TO DENY CLAIM OF THE APPELLANT. IN THE REMAND REPOR T AS OBTAINED, THE ASSESSING OFFICER DID NOT DISPUTE OWNERSHIP OF THE AGRICULTURAL LAND BUT HOWEVER REITERATED THAT IN ABSENCE OF EVIDENCE FURN ISHED BY THE APPELLANT, CLAIM IS NOT MAINTAINABLE. THE CIT(A) HOWEVER HAS A LLOWED CLAIM OF THE APPELLANT TO THE TUNE OF RS. 6,40,000/- AND UPHELD THE BALANCE OF RS. 9,10,000/- FOR THE FOLLOWING REASONS: 20. I HAVE CONSIDERED THE ISSUE AND THE SUBMISSION S MADE BY THE AR. THE OWNERSHIP OF AGRICULTURE LAND BY THE ASSESSEE IS NO T IN DOUBT. THE ASSESSEE HAS DECLARED AGRICULTURAL INCOME OF RS. 3,14,513/- IN T HE AY 2007-08. NO AGRICULTURAL INCOME WAS SHOWN IN THE AY 2008-09. AG RICULTURAL INCOME FOR 19 ITA NO.4216 & 4312/DEL/2012 BOTH THE YEARS WAS DECLARED IN THE YEAR UNDER CONSI DERATION AT RS. 15,50,000/-. THE CLAIM OF AGRICULTURAL INCOME CANNOT BE DENIED M ERELY BECAUSE FORM-J WAS NOT FURNISHED BY THE ASSESSEE. THE CONTENTION OF TH E AR THAT THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE OF RS. 18,902/- PER AC RE IS REASONABLE CONSIDERING THAT I HAVE UPHELD AGRICULTURAL INCOME OF RS. 26,000/- PER ACRE BY THE ABOVE MENTIONED APPEAL ORDER IS MISPLACED AND U NACCEPTABLE AS AGRICULTURAL INCOME DEPENDS ON VARIOUS FACTORS LIKE FERTILITY OF LAND, AVAILABILITY OF WATER ETC. SINCE THE ASSESSEE HIMSE LF HAS SHOWN AGRICULTURAL INCOME OF RS. 3,14,513/- IN THE AY 2007-08, I WOULD DEEM IT REASONABLE TO ADOPT RS. 3,20,000/- AS AGRICULTURAL INCOME FOR THE AY 2008-09 & 2009-10. SINCE NO AGRICULTURAL INCOME WAS DECLARED IN THE AY 2008-09 ON THE GROUND THAT THE AGRICULTURAL INCOME FOR BOTH THE YEARS, WH ICH HAS BEEN DECLARED IN THE YEAR UNDER CONSIDERATION, COULD BE TAKEN AS RS. 6,4 0,000/-. THE ADDITION TO THE TUNE OF RS. 9,10,000/- THEREFORE IS SUSTAINED AND T HE GROUNDS OF APPEAL ARE PARTLY ALLOWED. 22. HAVING REGARD TO THE RIVAL SUBMISSIONS AND MATE RIAL PLACED ON RECORD, IT IS UNDISPUTED THAT THE APPELLANT HAS NOT PRODUCED DOCUMENTARY EVIDENCE IN SUPPORT OF AGRICULTURAL INCOME DECLARED BY THE APPELLANT. IT IS FURTHER NOT DISPUTED THAT THE APPELLANT IS OWNER OF AGRICULTURAL LAND IN THE INSTANT YEAR. FURTHER, IT IS ALSO NOT DISPUTED THAT IN THE PRECEDING ASSESSMENT YEARS, AGRICULTURAL INCOME HAD BEEN DECL ARED OF RS. 3,14,513/- AND HAVING REGARD TO THE SAID POSITION, WE FIND THA T THE FINDING OF THE CIT(A) TO ACCEPT AGRICULTURAL INCOME AT RS. 6,00,00 0/- IS IN ORDER. THE LEARNED DR HAS ALSO NOT BEEN ABLE TO SHOW IN ANY MA NNER HOW SUCH AN ACCEPTANCE OF THE CLAIM IS EXCESSIVE. IN VIEW OF TH E ABOVE POSITION, WE UPHOLD ORDER OF THE CIT(A) AND REJECT THE GROUNDS R AISED BOTH BY ASSESSEE AND REVENUE. 23. GROUND 4 RAISED BY ASSESSEE RELATES TO DENIAL O F EXEMPTION OF RS. 39,15,450/- UNDER SECTION 54B OF THE ACT. THE CIT(A ) VIS--VIS THE SAID CLAIM HAS HELD AS UNDER: 20 ITA NO.4216 & 4312/DEL/2012 9.1 I HAVE CONSIDERED THE CONTENTION RAISED BY TH E AR. THE BENEFIT OF SECTION 54B IS ONLY AVAILABLE IN CASE OF SALE OF AG RICULTURE LAND ON WHICH AGRICULTURE OPERATIONS WERE CARRIED OUT AT LEAST 2 YEARS PRIOR TO THE DATE OF SALE. IN THE PRESENT CASE, NO EVIDENCE HAS BEEN LED THAT AGRICULTURE OPERATION WERE BEING CARRIED OUT ON THE SAID LAND. THEREFORE, THE BENEFIT ON SECTION 54B IS NOT AVAILABLE TO THE ASSESSEE AND CONTENTION IN THIS REGARD IS DISMISSED. 24. FROM THE AFORESAID, IT IS NOTICED THAT CIT(A) H AS HELD THAT SECTION 54B OF THE ACT IS ONLY AVAILABLE IN CASE OF SALE OF AGRICULTURAL LAND ON WHICH AGRICULTURAL OPERATIONS WERE CARRIED OUT AT L EAST TWO YEARS PRIOR TO THE DATE OF SALE AND SINCE IN THE PRESENT CASE, NO EVIDENCE HAS BEEN LED THAT THE AGRICULTURAL OPERATIONS WERE BEING CARRIED OUT ON THE SAID LAND AND THEREFORE, SECTION 54B IS NOT AVAILABLE TO THE APPELLANT. 25. BEFORE US, THE LEARNED COUNSEL SUBMITTED THAT N O OPPORTUNITY WAS GIVEN EITHER BY THE ASSESSING OFFICER OR CIT(A) TO FURNISH SUCH RELEVANT EVIDENCE AND THEREFORE, PRAYED THAT THE ISSUE MAY K INDLY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATI ON. THE LEARNED DR DID NOT FAIRLY OBJECT TO SUCH A PRAYER MADE BY THE APPE LLANT. WE THEREFORE, FEEL IT APPROPRIATE THAT THE ISSUE BE RESTORED TO T HE FILE OF ASSESSING OFFICER FOR RECONSIDERATION IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT THE APPELLANT WOULD BE ENTITLED TO LEAD ALL SUCH EV IDENCE TO SUPPORT CLAIM OF EXEMPTION UNDER SECTION 54B OF THE ACT AND THE A SSESSING OFFICER SHALL PASS AN ORDER AFTER GRANTING NECESSARY OPPORT UNITY TO THE APPELLANT. IN THE RESULT, GROUND IS ALLOWED FOR STATISTICAL PU RPOSES. 21 ITA NO.4216 & 4312/DEL/2012 26. GROUND 6 RAISED BY ASSESSEE RELATES TO LEVY OF INTEREST WHICH IS CONSEQUENTIAL IN NATURE. 27. IN THE RESULT, APPEALS FILED BOTH BY THE ASSESS EE AND REVENUE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 12 TH DAY OF JANUARY, 2016. SD/- SD/- (PRASHANT MAHARISHI) (A.T.VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 11 TH DAY OF DECEMBER, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), ROHTAK. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.