The ITO-2(2), Indore V. Smt. Hemlata Jain, Indore

ITA 467/IND/2013

• Counselvise Citation: 46722714 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 14-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: P M CHOWDHARY
• Keywords: Capital asset; Business income; Cost of acquisition
• Section: 143(3); 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO. 290/IND/2013 A.Y. : 2009-10 SMT. HEMLATA JAIN ITO, 2(2), INDORE VS INDORE APPELLANT RESPONDENT I.T.A.NO. 467/IND/2013 A.Y. : 2009-10 ITO, 2(2), SMT. HEMLATA JAIN INDORE. VS INDORE APPELLANT RESPONDENT PAN NO. ACUPJ 3770C -: 2: - 2 I.T.A.NO. 291/IND/2013 A.Y. : 2009-10 SHRI NIKHIL JAIN, ITO, 2(2), INDORE VS INDORE APPELLANT RESPONDENT I.T.A.NO. 466/IND/2013 A.Y. : 2009-10 ITO, 2(2), SHRI NIKHIL JAIN INDORE. VS INDORE APPELLANT RESPONDENT PAN NO. ACUPJ 3771D ASSESSEE BY SHRI P.M.CHOWDHARY, ADV. DEPARTMENT BY SHRI R. A. VERMA, SR. DR DATE OF HEARING : 0 3 .0 9 .2015 DATE OF PRONOUNCEMENT : 23 . 09.2015 -: 3: - 3 O R D E R PER GARASIA, J.M. THESE CROSS APPEALS ARE DIRECTED AGAINST THE SEPARA TE ORDERS OF LD. CIT(A)-7, MUMBAI (CONCURRENT JURISDIC TION OVER THE CHARGE OF CIT(A)-I, INDORE), BOTH DATED 22.02.2 013 AND RELATE TO ASSESSMENT YEAR 2009-10. THESE APPEALS RE LATE TO TWO ASSESSEES, BUT IT RELATES TO ONE PROPERTY ONLY AND, THEREFORE, THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE H AS FILED THE RETURNS OF INCOME ON 30 TH MARCH, 2010. THE CASE WAS SELECTED UNDER SCRUTINY AND ASSESSMENT WAS MADE U/S 143(3) OF THE INCOME-TAX ACT, 1961. THE ASSESSEE SHRI NIKH IL JAIN IS A TAX CONSULTANT HAVING PROFESSIONAL INCOME, INTEREST AND INCOME FROM CAPITAL GAINS. DURING THE FINANCIAL YEA R 2008-09, THE ASSESSEE IN THE JOINT NAME OF SHRI RAMESHCHAND JAIN, FATHER, HEMLATA JAIN, MOTHER AND SHIKHA JAIN HAD SO LD -: 4: - 4 AGRICULTURAL LAND WITH FARM HOUSE AT KHAJRANA VILLA GE, INDORE. IN THE PREVIOUS YEAR ENDED ON 31 ST MARCH, 2009, (RELEVANT TO ASSESSMENT YEAR 2009-10), THE ASSESSEE SOLD THEIR C APITAL ASSET VIDE SALE DEED REGISTERED ON 26 TH SEPTEMBER, 2008, TO A COMPANY, MAN INFRA PROJECTS LIMITED FOR A TOTAL CON SIDERATION OF RS. 1,20,34,048/-. THE SHARE OF THE ASSESSEE IN THIS LAND WAS 0.093 HECTARE OWNED AND IN THE AFORESAID AMOUNT OF TOTAL SALES CONSIDERATION WORKS OUT TO BE RS. 31,15,160/- . THE ASSESSEE HAS RECEIVED THE AMOUNT OF SALE CONSIDERAT ION OF RS. 31,15,160/-. ON THE SALE OF THE PIECE OF AGRICULTUR AL LAND, THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAINS OF RS. 2 7,35,160/- AFTER DEDUCTING NIL COST OF ACQUISITION, BROKERAGE EXPENSES OF RS 50,000/- AND REGISTRATION CHARGES AND STAMP DUTY EXPENSES AT RS. 3,32,509 FROM THE AFORESAID AMOUNT OF PROPORTIONATE SALE CONSIDERATION. THE ASSESSEE HAS SOLD AGRICULTURAL LAND AND THE RESIDENTIAL HOUSE AND HE HAS MADE INVESTMENT OF THIS AMOUNT OF CAPITAL GAIN IN RESIDE NTIAL FLAT AT MUMBAI. THE AO WAS OF THE VIEW THAT THE ASSESSEE HA S INVESTED PARTLY IN RESIDENTIAL FLAT AND PARTLY IN C APITAL GAIN DEPOSIT. THE ASSESSEE HAS CLAIMED EXEMPTION U/S 54F , WHICH -: 5: - 5 CANNOT BE ALLOWABLE TO THE ASSESSEE. THEREFORE, THE AO DISALLOWED 54F. MOREOVER, THE AO HAS VERIFIED THE I NVESTMENT IN ACQUIRING AND PURCHASING A FLAT NO. 1901, BUILDI NG NO. 1, WING-A, ANDHERI, MUMBAI IN THE NAME OF RAMESHCHAND JAIN, HEMLATA JAIN AND SHIKHA JAIN AND HE HAS VERIFIED TH E AGREEMENT FOR OWNERSHIP OF PREMISES, WHICH WAS EXE CUTED B E THE DEVELOPER M/S. OBEROI CONSTRUCTIONS PRIVATE LIM ITED, GOREGAON (E), MUMBAI AND FOUR PURCHASERS INCLUDING THE ASSESSEE AND HE HAS VERIFIED THE CLAUSE OF THE AGRE EMENT AND THE AGREEMENT SAYS THAT THE DEVELOPER HAS PROVIDED THE ASSESSEE TO USE THE PREMISES AS A LICENSEE WITHOUT ANY LICENSE FEE AND ,MOREOVER, IN THE AGREEMENT, THE EARLY DATE AS DECEMBER, 31, 2010, IS THE OWNERSHIP DATE. THEREFOR E, THE AO WAS OF THE VIEW THAT THE ASSESSEE IS NOT ENTITLED F OR EXEMPTION U/S 54F AND DISALLOWED THE SAME. THE AO WAS OF THE VIEW THAT CONSTRUCTION OF RESIDENTIAL PROPERTY PURCHASED BY T HE ASSESSEE IS NOT GOING TO BE COMPLETED WITHIN THE TIME PERIOD OF TWO YEARS. THEREFORE, THE ASSESSEE HAS TO MAKE THE INVE STMENT WITHIN 2 YEARS AND THAT CONDITION IS NOT SATISFIED. THEREFORE, HE DISALLOWED THE EXEMPTION U/S 54F OF THE ACT. -: 6: - 6 3. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS ALLOWED THE APPEAL BY OBSERVING AS UNDER:- 4.5 I HAVE CONSIDERED THE AOS ORDER AND THE APPELLANTS AR SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT THE APPELLANT EXECUTED THE SALE OF THE FA RM HOUSE WHICH WAS OWNED BY THE APPELLANT ALONGWITH THE OTHER CO-OWNER ON 26/09/2008. THE SAID TRANSFER RESULTED IN RECEIVED OF TOTAL CONSIDERATION OF RS. 1,20,34,048/-. THE APPELLANT'S SHARE WAS MERELY TO RS. 31,15,160/-. HAVING TAKEN NOTE OF THE AO'S ORDER AND THE APPELLANT'S AR SUBMISSION, IT IS CLEARLY EVIDENT THAT THE APPELLANT MADE THE INVESTMENT IN THE PURCHASE OF THE RESIDENTIAL HOUSE AND THE FLAT IN MUMBAI WHICH WAS DULY REGISTERED AS ON 09/09/2010 FOR A TOTAL CONSIDERATION OF RS. 1,19,73,825/-. THE APPELLANT HAS MADE HER CONTRIBUTION OF HER SHARE IN THE ACQUISITION OF -: 7: - 7 THE SAID FLAT AS IT IS EVIDENT WITH THE FACTS NARRATED BY THE APPELLANT'S AR IN HIS SUBMISSION EXTRACTED AS ABOVE. FURTHER TO THAT THE APPELLANT HAS ALSO MADE ANOTHER INVESTMENT OF RS. 1,00,000/- IN FIXED DEPOSIT UNDER THE CAPITAL GAIN ACCOUNT SCHEME AS ON 31/07/2009. THUS, TAKING NOTE OF THE APPELLANT'S SUBMISSION AS WELL AS ALSO THE CBDT'S CIRCULAR NO. 471 DATED 15/1 0/1986 AND THE JUDICIAL PRONOUNCEMENTS BROUGHT THE SUBMISSION SPECIALLY THE JURISDICTIONAL MADHYA P. HIGH COURT DECISION IN THE CASE OF SMT. SHASHI VERMA VS CIT REPORTED IN 224 ITR 106 AND THE BOMBAY HIGH COURT DECISION IN THE CASE OF CIT VS MRS. HILLA J. B. WADIA 216 TTR 376. I CONSIDERED IT PROPER AND APPROPRIATE TO HOLD THAT THE AO WAS -: 8: - 8 UNJUSTIFIED AND INCORRECT IN HIS ACTION IN DENYING THE CLAIM OF DEDUCTION TO THE APPELLANT U/S 54 AND 54F OF THE INCOME TAX ACT, AS THE APPELLANT'S INVESTMENT IN THE ACQUISITION OF THE RESIDENTIAL FLAT IS MUCH MORE THAN THE SALE CONSIDERATION RECEIVED BY THE APPELLANT ON SALE OF THE CAPITAL ASSETS EXECUTED AS ON 26.09.2008. THUS, THE APPELLANT'S THESE GROUNDS OF APPEAL ARE ALLOWED. 4. THE LD. SENIOR D.R. SUBMITTED THAT AS PER SECTION 54F, WHEREIN IF ANY OWNER OF THE PROPERTY WANTED TO HAVE ANY INVESTMENT FOR CAPITAL GAINS IN RESIDENTIAL HOUSE, THE STIPULATED TIME IS TWO YEARS. IN THIS CASE, THE ASS ESSEE HAS PURCHASED THE PROPERTY. THEREFORE, THE TIME LIMIT F OR PURCHASING THE PROPERTY IS TWO YEARS. THE ASSESSEE HAS PURCHASED THIS PROPERTY BY WAY OF AGREEMENT BETWEEN M/S. OBEROI CONSTRUCTIONS PRIVATE LIMITED, DEVELOPER AND THE -: 9: - 9 AGREEMENT WAS EXECUTED IN BETWEEN THE PARTIES, WHIC H SAYS THAT THE ASSESSEE WAS GIVEN PERMISSION TO USE THE P REMISES AS A LICENSEE AND THE DATE OF COMPLETION OF THE PROJEC T WAS 31 ST DECEMBER, 2010. THEREFORE, THE ASSESSEE WANTED TO T AKE THE BENEFIT OF SECTION 54F, BUT THE POSSESSION OF THE B UILDING CANNOT BE HANDED OVER BY THE DEVELOPER WITHIN TWO Y EARS FROM THE DATE OF AGREEMENT. THEREFORE, AS PER THE DECISI ON OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF HARSUTRAI J. RAVAL VS. CIT, (2002) 255 ITR 315 ( GUJ ), WHEREIN IT WAS HELD THAT WHEN THE PURCHASE OR CONSTRUCTION IS NOT TAKEN PLAC E, THE AO IS NOT SUPPOSED TO WAIT AFTER A PERIOD. IN THE INST ANT CASE, THE AGREEMENT OF OWNERSHIP OF PREMISES WAS PLACED ON RE CORD, REVEALED THAT EVEN CONSTRUCTION OF THE PROPERTY IN RESPECT OF WHICH THE EXEMPTION U/S 54F HAD BEEN CLAIMED IS NOT TO BE COMPLETED BEFORE THE DATE OF 31.12.2010, WHEREAS TH E ASSESSEE IS SUPPOSED TO PURCHASE THE TRANSACTION SHOULD HAVE BEEN COMPLETED BY 26.9.2010. THEREFORE, THE AO IS JUSTIF IED AND LD. CIT(A) HAS WRONGLY ALLOWED THE CLAIM. 5. THE ASSESSEE HAS FILED WRITTEN SUBMISSION, WHICH READS AS UNDER :- -: 10: - 10 THE ASSESSEE MOST HUMBLY INVITES ATTENTION OF HON'BLE TRIBUNAL TO THE CLAUSE AA OF THE AGREEMENT AT PAGE 53 OF THE PAPER BOOK WHICH INTER-ALIA REFERS TO SECTION 4 OF MOF ACT. ACCORDING TO APPELLANT PLAIN READING OF SECTION 4 WOULD GO TO SHOW THAT PROVISIONS PROVIDE FOR EXECUTION OF AN AGREEMENT BY A BUILDER WITH INTENDED BUYERS AND FURTHER SPECIFIES AND LAYS DOWN THE CONTENTS OF SUCH AGREEMENT . THE SECTION FURTHER MANDATES THAT SUCH AN AGREEMENT IS TO BE COMPULSORILY REGISTERED UNDER SECTION 17 OF REGISTRATION ACT / 1908. THUS / ACCORDING TO APPELLANT SUCH AN AGREEMENT PARTAKES THE NATURE OF CONVEYANCE DEED AND WOULD BE DEEMED TO BE A DEED OF SALE .A COPY OF EXTRACT OF THE RELEVANT PORTION OF MOF ACT IS ENCLOSED HERETO AND MARKED AS ANNEXURE A TO THIS SUBMISSION. -: 11: - 11 THE APPELLANT FURTHER SUBMITS THAT EVEN ACCORDING TO SUPREME COURT SUCH AN AGREEMENT AMOUNTS TO CONVEYANCE, IN AS MUCH AS, RIGHT, TITLE AND INTEREST STANDS TRANSFERRED IN FAVOUR OF PURCHASER . THE ASSESSEE PLACES RELIANCE ON FOLLOWING DECISION IN THIS RESPECT - A) IN THE CASE OF STATE OF MAHARASHTRA VS MAHAVEER LALCHAND RATHOD REPORTED IN (1992) 94 BOMLR 110. B) IN CASE OF VEENA HASMUKH JAIN VS. STATE OF MAHARASHTRA REPORTED IN (1999) AIR (SC) 807. THE ASSESSEE FURTHER DESIRES TO BRING IT TO THE KIN D NOTICE OF THIS HON'BLE TRIBUNAL EXPLANATION I TO ARTICLE 25 OF MAHARASHTRA STAMP ACT WHICH DEEMS SUCH AGREEMENT AS CONVEYANCE AND LEVIES STAMP DUTY EQUIVALENT TO CONVEYANCE DUTY ON SUCH AGREEMENT. THE ASSESSEE FURTHER INVITES YOUR KIND ATTENTION TO CBDT CIRCULAR ( PAGE NO 89,90 & 91 OF THE PAPER BOOK) WHICH CLARIFIES THAT IN CASE OF -: 12: - 12 ACQUISITION OF FLAT BY AN ALLOTTEE UNDER CO-OPERATI VE SOCIETIES OR OTHER INSTITUTIONS THEN SUCH CASES ARE TO BE TREATED AS CONSTRUCTION FOR THE PURPOSES OF SECTION 54 & 54F OF THE IT ACT. THE AO HAS FAILED TO APPRECIATE ABOUT THE LEGAL POSITION REGARDING AGREEMENT WHICH ITSELF AMOUNTS TO CONVEYANCE AND NO FURTHER DOCUMENT OF CONVEYANCE IS REQUIRED TO BE EXECUTED. ACCORDING TO THE ASSESSEE THE AO WHILE COMING TO THE ABOVE CONCLUSION HAS TOTALLY DISREGARDED THE BINDING CIRCULARS ISSUED BY CBDT WHICH ARE REFERRED ABOVE . RELIANCE IN THIS RESPECT IS PLACED ON 216 ITR 376 . EVEN THE JURISDICTIONAL HIGH COURT IN 224 ITR 106 HAVE CONSIDERED THE CBDT CIRCULAR AND HAS HELD THAT EVEN BEFORE HIGH COURT THE CIRCULARS HAVE PERSUASIVE VALUE AND RELYING UPON THE SAID CIRCULAR THE HIGH COURT FURTHER HELD THAT IF SUBSTANTIAL PAYMENT HAS BEEN MADE ,COMPLETION OF CONSTRUCTION SHOULD NOT BE STRESSED UPON . EVEN IN -: 13: - 13 THE RECENT TRENDS OF JUDGMENTS, INCOMPLETE CONSTRUCTION WITHIN THE PRESCRIBED PERIODS HAVE BEEN ACCEPTED WHERE CAPITAL GAIN AMOUNT HAD BEEN SUBSTANTIALLY INVESTED ON THE GROUND THAT ESSENCE O F PROVISION U/S 54 & 54 F IS WHETHER ASSESSEE WHO RECEIVED CAPITAL GAIN HAS INVESTED IN A RESIDENTIAL HOUSE. THE APPELLANT PLACES RELIANCE ON FOLLOWING DECISION IN THIS RESPECT - A) IN THE CASE OF CIT VS MRS HILLA JB. WADIA REPORTED IN 216 ITR 376 (BORN) . B) IN THE CASE OF CIT VS SAMBANDAM UDAYKURNAR REPORTED IN 345 ITR 389 (KAR) . C) IN THE CASE OF CIT VS RL SOOD REPORTED IN 245 ITR 727 D) IN CASE OF CIT VS SARDARMAL KOTHARI REPORTED IN 302 ITR 286 E) IN THE CASE OF DCIT V S CHATURBHUJ VALLABHDAS (H UF) REPORTED IN 130 ITD 230 (ITAT MUMBAI) F) IN CASE OF SMT USHA VAID VS ITO REPORTED IN 53 S OT 385 (ITAT AMRITSAR) -: 14: - 14 G) IN THE CASE OF KISHORE H GALAIYA V S ITO REPORTED I N 137 ITD 229 (ITAT MUMBAI) H) THE CASE OF V. A. THARA BAI V S DCIT REPORTED IN 5 0S0T 537 (ITAT CHENNAI) 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT WE HAVE GONE THROUGH THE ORDER OF CIT( A) AND CIT(A) IN HIS ORDER HAS HELD THAT THE ASSESSEE HAS SOLD THE FARM HOUSE WITH OTHER CO-OWNERS AND ASSESSEE HAS MA DE INVESTMENT IN PURCHASE OF RESIDENTIAL FLAT IN MUMBA I, WHICH WAS DULY REGISTERED. THE ASSESSEE WHO HAS PURCHASED THE FLAT, WHICH IS IN HIS NAME. THEREFORE, HE RELIED UPON THE DECISION OF HON'BLE M.P. HIGH COURT, WHEREIN THE SAME ISSUE HAD COME UP BEFORE HON'BLE HIGH COURT IN THE CASE OF SMT. SHASHI VERMA VS CIT REPORTED IN 224 ITR 106, WHEREIN IT IS HELD THAT AS PER CIRCULAR NO. 471 DATED 15 TH OCTOBER, 1986, STATES THAT THAT FOR THE PURPOSE OF CAPITAL GAINS TAX, THE COST OF THE NEW ASSET IS THE TENTATIVE COST OF CONSTRUCTION AND THE FACT THAT THE AMOUNT WAS ALLOWED -: 15: - 15 TO BE PAID IN INSTALLMENTS DOES NOT AFFECT THE LEGAL POSITION. WE FIND THAT HON'BLE HIGH COURT HAS HELD THAT EXEMPTION U/S 54F IS ALLOWABLE, WHERE THE ASSESSEE HAS UTILIZED THE ENTIRE CAPITAL GAINS FOR MAKING THE PAYMENT TOWARDS INSTALLMENT FOR ACQUISITION OF FLAT UNDER THE SCHEME OF DDA WITHIN TH E PRESCRIBED PERIOD OF TWO YEARS, NOTWITHSTANDING THAT THE FLAT WAS NOT COMPLETED AND POSSESSION WAS NOT HANDED OVER TO THE ASSESSEE. SIMILARLY, THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF STATE OF MAHARASHTRA AND OTHERS VS. MAHAVIR LALCHAND RATHOD AND ANOTHER, HAS ALSO CLARIFIED THAT WHENEVER THE AGREEMENTS FOR SALE WERE ENTERED INTO BETWEEN THE BUILDERS-DEVELOPERS AND THE PURCHASERS OF THE FLATS, WHICH WERE EXECUTED IN TERMS OF SECTION 4 OF THE MAHARASHTRA OWNERSHIP FLATS ACT, 1963, ARE REQUIRED TO BE REGISTERED UNDER SECTION 17(1) OF THE INDIAN -: 16: - 16 REGISTRATION ACT. THEREFORE, THIS AGREEMENT OF SALE IS WITH ALL THE PURPOSES ARE SALE DEED AND IT IS A CONVEYANCE DEED AND THE SIMILAR VIEW WAS TAKEN BY THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SAMBANDAM UDAYKUMAR, (2012) 345 ITR 389 (KAR). SIMILAR VIEW WAS TAKEN BY HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. R.L. SOOD, (2000) 245 ITR 727 (DEL). 7. WE, RESPECTFULLY, FOLLOWING THE ABOVE DECISIONS, DI SMISS THE DEPARTMENTAL APPEALS. 8. COMMON GROUND IN ASSESSEES APPEALS RELATES TO THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OF RS. R S. 3,32,509/- TO THE INCOME OF THE ASSESSEES. 9. THE ASSESSEE HAS INCURRED ON STAMP REGISTRATION EXPENSES OF RS. 12,84,811/- AND BOTH THE ASSESSEES CLAIMED RS. 3,32,509/-. THESE REGISTRATION CHARGES WERE LIA BILITY OF PAYMENT OF STAMP CHARGES WHICH WERE KEPT OUTSTANDIN G AS ON THE YEAR AND WAS PAID IN THE NEXT YEAR OUT OF THE B OOKS AND BANK ACCOUNTS. THE AO HAS VERIFIED AS TO HOW THIS L IABILITY WAS -: 17: - 17 REFLECTED IN THE BALANCE SHEET. IN THE BALANCE SHEE T, THE ASSESSEE HAS SHOWN THE LIABILITY AS PAYABLE TO M/S. MAN DEVELOPERS. SUBSEQUENTLY, IT WAS CORRECTED AS M/S. MAN INFRA PRODUCTS LIMITED, MUMBAI AND THE ASSESSEE HAS CLARI FIED THAT THE EXPENDITURE INCURRED WAS MADE FOR FINANCIAL YEA R 31.12.2009. HOWEVER, NO CONFIRMATION OR ANY DOCUMEN TARY EVIDENCE, IN THIS REGARD, WAS SUPPLIED BEFORE THE A O AND HENCE, THE AO HAS HELD THAT THE ASSESSEE DID NOT FI LE ANY CONFIRMATION AND DOCUMENTARY EVIDENCE FROM THIS PAR TY. THEREFORE, THE CLAIM WAS DISALLOWED. 10. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DISMISSED THE CLAIM. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE AND THE OTHER CO-OWNERS S OLD THE PROPERTY TO M/S. MAN INFRA PRODUCTS LIMITED. THE AO HAS DEALT THIS ISSUE IN PARA 12. THE AO HELD THAT THE ASSESSEE HAD INCURRED THESE EXPENSES OUT OF UNDISCLOSED INCOME. THE LD. CIT(A) DEALT THIS ISSUE IN PARA 5.2. THE RELEVANT P ARA IS AS UNDER :- -: 18: - 18 5.2 HAVING CONSIDERED ALL THE FACTS AVAILABLE ON RECORDS AS WELL AS THE AOS ORDER, I AM OF THE CONSIDERED VIEW THAT THE APPELLANTS VIEW IS NOT JUSTIFIED AT ALL MERELY BASED ON SPECIFIC CLAUSE IN THE REGISTERED AGREEMENT, UNLESS AND UNTIL IT IS SUBSTANTIATED WITH ACT OF THE APPELLANT TO PROVE FO R INCURRING SUCH EXPENSES ON THE DATE OF SUCH SALE, TOWARDS WHICH SUCH LIABILITY HAS BEEN CLAIMED BY APPELLANT. THE FACTS NARRATED BY THE AO CLEARLY REVEALS AND ESTABLISHED THAT ON THE DATE OF REGISTRATION APPELLANT DID NOT INCURRED SUCH EXPENSES. FURTHER, TO THAT EVEN THE SUBSEQUENT PAYMENT WHICH HAVE BEEN SHOWN BY THE APPELLANT AS LIABILITY IS ALSO NOT COMMENSURATE WITH THE TRANSFEREE. THESE ENTIRE FACTS LEADS TO THE AOS OBSERVATION WHICH IS DENIAL OF THE CLAIM OF THE APPELLANT. IN THIS BACKGROUNDS OF THE APPELLANTS CASE, I DO NOT AGREE WITH THE APPELLANTS REQUEST. ACCORDINGLY, THE AOS ORDER IS CONFIRMED AND THE GROUNDS OF APPELLANTS APPEAL IS DISMISSED. -: 19: - 19 12. AFTER HEARING BOTH SIDES, WE ARE OF THE VIEW THAT A LL RELEVANT FACTS HAVE NOT BEEN BROUGHT ON RECORD TO D ECIDE THIS ISSUE. THEREFORE, IN THE INTEREST OF JUSTICE AND EQ UITY, WE FIND IT APPROPRIATE TO SET ASIDE THIS ISSUE TO THE FILE OF THE AO TO BE DECIDED DE NOVO. 13. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. 14. IN THE RESULT, THE DEPARTMENTAL APPEALS ARE DISMISS ED AND ASSESSEES APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 23 RD SEPTEMBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :23 RD SEPTEMBER, 2015. CPU* 4159