Shri Ramesh Chand Goel, New Delhi V. ITO, New Delhi

ITA 5079/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3778 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 15-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T R TALWAR
• Keywords: Capital asset; Business income; Additional evidence; Cost of acquisition; Revised return
• Section: 143(3)

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 5079/DEL/2014 (ASSESSMENT YEAR: 2010 - 11 ) RAMESH CHAND GOEL, 7787 - 88, ARAKASHAN ROAD, RAM NAGAR, NEW DELHI PAN:AETPG0967R VS. ITO, WARD - 39(4), NEW DELHI (APPELLANT) (RESPONDENT) ITA NO. 6022 /DEL/2014 (ASSESSMENT YEAR: 2010 - 11) ITO, WARD - 39(4), NEW DELHI VS. RAMESH CHAND GOEL, 7787 - 88, ARAKASHAN ROAD, RAM NAGAR, NEW DELHI PAN:AETPG0967R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI TR TALWAR, ADV REVENUE BY: SHRI ATIQ AHMAD, SR. DR DATE OF HEARING 07/11 /2017 DATE OF PRONOUNCEMENT 0 5 / 02 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDER OF THE LD CIT(A) - XVIII, NEW DELHI DATED 29.08.2014 FOR THE ASSESSMENT YEAR 2010 - 11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 5079/DEL/2014 FOR THE ASSESSMENT YEAR 2010 - 11: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED: - 1. A) IN CONFIRMING THE DISALLOWANCE OF RS.50,000/ - OUT OF COMMISSION PAID TO THE AUTO RICKSHAW DRIVERS , CAB DRIVERS, BROKERS/ TRAVEL AGENTS FOR BRINGING CUSTOMER TO HIS HOTELS ON THE GROUND THAT THE EXPENSES ARE NOT VERIFIABLE AND THE ASSESSEE HAS NOT PRODUCED SUFFICIENT DOCUMENTARY EVIDENCE, IGNORING THE FACT THAT THE RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 2 APPELLANT HAD PRODUCED VOUCHERS FOR PAYMENT OF COMMISSION DULY SIGNED BY THESE PAYEES CONFIRMING THE SAME. B) IN NOT FOLLOWING ITAT DECISION IN THE ASSESSEES OWN CASE FOR THE AY 2008 - 09 ACCEPTIN G 1273% OF COMMISSION AS REASONABLE WHEN THE PERCENTAGE OF COMMISSION PAID DURING THIS YEAR IS LESS I.E. 12.28% OF THE TURNOVER. II. IN TAKING THE COST OF ACQUISITION OF PROPERTY NO. DW 0078 BLOCK - S NIRVANA COUNTRY SOUTH CITY - II GURGOAN AT RS.66,67,472 ONLY AND NOT TAKING INTO ACCOUNT THE INTEREST OF RS.22,30,640/ - ON FUNDS BORROWED TO FINANCE THE PURCHASE OF THE SAID PROPERTY WHICH COLLECTIVELY MAKE OUT THE COST OF ACQUISITION OF THE SAID PROPERTY AS HELD BY THE VARIOUS HIGH COURTS INCLUDING THE JURISDI CTIONAL HIGH COURT AND SUPREME COURT, WHEN THE SAME HAD BEEN CAPITALIZED AND NOT CLAIMED UNDER ANY HEAD OF ACCOUNT IN THE EARLIER YEARS. III. A) IN NOT ALLOWING THE INTEREST OF RS.22,51,908/ - (IT SHOULD BE RS.22,30,640/ - ) ON THE FUNDS BORROWED TO FINANCE THE PURCHASE OF PROPERTY NO. DW 0078 BLOCK - S NIRVANA COUNTRY SOUTH CITY GURGOAN TOWARDS IT COST OF ACQUISITION ON THE BASIS THAT IT HAS BEEN CLAIMED AGAINST ANNUAL VALUE ASSESSABLE FOR THE 33 MONTHS PERIOD WHEN NO SUCH CLAIM HAS BEEN MADE OR ALLOWED IN T HE PAST. B) IN HOLDING THAT THE PROPERTY NO. DW0078 BLOCK - S NIRVANA COUNTRY SOUTH CITY GURGOAN WAS CAPABLE OF BEING LET OUT IN OCT. 2006 AND THE INTEREST ACCRUED ON THE LOAN TO FINANCE THE PURCHASE OF THIS PROPERTY DEEMED TO HAVE BEEN ALLOWED DURING THE PE RIOD OF FIVE YEARS WHEN NO SUCH THING HAD HAPPENED OR CLAIM MADE DURING THE INTERVENING PERIOD OF 33 MONTHS PRIOR TO THE SALE OF THE PROPERTY. C) IN NOT ALLOWING THE CAPITALIZATION OF INTEREST OF RS.22,51,908/ - (IT SHOULD BE RS.22,30,640/ - ) ON THE FUNDS BO RROWED TO FINANCE THE PURCHASE OF THE ABOVE PROPERTY, ALTHOUGH THE SAME BEING HELD ELIGIBLE, BY THE VARIOUS HIGH COURTS INCLUDING THE JURISDICTIONAL HIGH COURT AND THE SUPREME COURT. IV. A) IN NOT ALLOWING THE INTEREST OF RS. 16,39,790/ - FOR THE PERIOD 200 7 - 08, 2008 - 09 AND 2009 - 10 (INCLUDING AN INTEREST OF RS.1,86,738/ - FOR THE PERIOD UNDER CONSIDERATION I.E. AY 2010 - 11 ) ON THE LOAN AGAINST THE PROPERTY DW 0078 BLOCK - S NIRVANA COUNTRY, SOUTH CITY, GURGOAN WHICH WAS IN ADVERTENTLY CAPITALIZED BY THE ASSESS EE DUE TO ACCOUNTANTS MISTAKE TOWARDS THE PURCHASE OF THE SAID PROPERTY ON THE BASIS THAT THE LOAN WAS TAKEN FOR PURPOSES OTHER THAN THE PURCHASE OF THE SAID PROPERTY BUT PROVED BEFORE THE APPELLANT AUTHORITY THAT IT WAS UNTILISED FOR THE PURPOSE OF THE A SSESSEES BUSINESS . B) IN NOT ALLOWING THE INTEREST OF RS. 1,86,738 INCURRED DURING THE YEAR OUT OF THE TOTAL INTEREST OF RS. 16,37,790 FOR THE PERIOD 2007 - 08 TO 2009 - 10 ON THE GROUND THAT THE LOAN AMOUNT IS NOT APPEARING IN THE BALANCE SHEET OF THE APPEL LANT RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 3 PROPRIETOR M/S R.C. GOEL AND PROPRIETOR M/S BABA DX HOTEL AND M/S KRISHNA HOTEL AS ON 31 - 3 - 2008, 31 - 3 - 2009 AND 31 - 3 - 2010 IGNORING THE FACT THAT ALL THE LOANS WERE APPEARING IN THE CONSOLIDATED STATEMENT OF AFFAIRS OF THE RESPECTIVE YEARS OF THE ASSESS EE, WHO IS THE INDIVIDUAL & PROPRIETOR OF THE ABOVE 3 BUSINESSES AND WHICH HAVE BEEN FILED BEFORE THE APPELLANT AUTHORITY AND DULY EXAMINED BY HER. C) IN NOT ALLOWING THE ABOVE MENTIONED INTEREST FOR THE YEAR UNDER CONSIDERATION IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN GOETZE INDIA LTD. WHEN THE SAME IS NOT APPLICABLE TO THE APPELLANT AUTHORITIES AS HELD BY THE VARIOUS HIGH COURTS. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS A PROPRIETOR OF M/S. RC GOEL ENGAGED IN THE BUSINESS OF ON - BOARD CATERING SERVICE CONTRACTOR OF IRCTC LTD AND INVOLVING IN THE MANAGEMENT OF SERVING FOOD AND PACKED ITEMS IN THE TRAINS, AND RUNNING TWO HOTELS . THE ASSESSEE FILED RETURN OF INCOME ON 15.10.2010 DECLARING INCOME OF RS. 1501609/ - . ACCORDINGLY NOTICE U /S 143(2) WAS ISSUED ON 14.09.2011. IN RESPONSE TO THE NOTICE THE ASSESSEE FILED NECESSARY DETAILS BEFORE THE LD ASSESSING OFFICER. ACCORDINGLY, THE ASSESSMENT WAS COMPLETED U/S 143(3) AT RS. 6248450/ - AND PASSED ON 28.03.2013 AND PENALTY PROCEEDINGS INITI ATED U/S 271(1)(C) OF THE INCOME TAX ACT. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE THE LD CIT(A), WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND THEREFORE, BOTH THE PARTIES ARE IN APPEAL BEFORE US. 4. FIRST WE TAKE UP THE APPEAL OF THE ASSESSEE WHER E GROUND NO. 1 IS AGAINST DISALLOWANCE OF RS. 50000/ - OUT OF COMMISSION PAID. THE ASSESSEE HAS PAID A COMMISSION OF RS. 876850/ - . ASSESSEE WAS ASKED TO PRODUCE THE PARTY WISE EXPENSES OF THESE EXPENSES WHICH WAS EXPLAINED THAT CUSTOMER VISIT THE HOTEL THRO UGH BROKERS SUCH AS RICKSHAW AND TAXIWALAS AND THEY ARE PAID ON THE BASIS OF ROOM TARIFF OF THE DAY. THE LD ASSESSING OFFICER DISALLOWED RS. 50000/ - OUT OF THE SAME. THE LD CIT(A) CONFIRMED THE ORDER OF THE LD ASSESSING OFFICER. 5. THE LD AUTHORISED REPRES ENTATIVE SUBMITTED THAT IN APPELLANTS OWN CASE FOR ASSESSMENT YEAR 2008 - 09 THE COORDINATE BENCH HAS ACCEPTED 12.73% RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 4 AS GENUINE COMMISSION WHEREAS IN THE PRESENT YEAR THE PERCENTAGE IS ONLY 12.28% OF THE TURNOVER. SO, DISALLOWANCE MAY BE DELETED. 6. THE LD DR RELIED UPON THE ORDER OF THE LD AO AND CIT(A). 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. FOR THE PRESENT YEAR IT IS UNDISPUTED THAT COMMISSION PAID BY THE ASSESSEE IS 12.28% OF REVENUE WHEREAS, IN ASSESSMENT YEAR 2008 - 09 THE COORDINATE BENCH HA S ACCEPTED 12.73% OF THE COMMISSION OF THE TURNOVER AS REASONABLE. THEREFORE, WE DO NOT FIND ANY REASON TO CONFIRM THE DISALLOWANCE. IN THE PRESENT CASE ALSO THE ASSESSEE HAS SUBMITTED THE DETAILS OF COMMISSION PAID. IT IS NOT THE CASE OF THE AO THAT SUCH COMMISSION IS NOT BACKED BY ROOM RENT REVENUE. IN VIEW OF THIS AS THE COORDINATE BENCH HAS DETERMINED THE PERCENTAGE BASED ON THE GROSS REVENUE WE DO NOT FIND ANY REASON TO CONFIRM THE DISALLOWANCE. IN THE RESULT GROUND NO. 1 OF THE APPEAL FO THE ASSESSEE IS ALLOWED. 8. GROUND NO. 2 OF THE APPEAL IS AGAINST IS THAT INTEREST EXPENDITURE OF RS. 2230640/ - ON FUNDS BORROWED TO PURCHASE THE PROPERTY IS NOT CONSIDERED AS ACQUISITION OF THE PROPERTY . 9. THE BRIEF FACTS OF THIS ISSUE IS THAT ASSESSEE HAS SOLD ONE PROPER TY ON 24.06.2009 FOR RS. 1.40 CRORES AND LONG TERM CAPITAL GAIN WAS DECLARED OF RS. 777793/ - . THE SECOND PROPERTY WAS SOLD ON 04.03.2010 FOR RS. 10029250/ - AND LONG TERM CAPITAL LOSS OF RS. 3.33 LACS WAS SHOWN. THE ASSESSEE HAS CLAIMED INTEREST EXPENDITURE ON BANK LOAN AS COST OF ACQUISITION AND HAS CLAIMED BENEFIT OF INDEXATION NOT ONLY OF AMOUNT PAID FOR PURCHASE OF PROPERTY BUT ALSO OF INTEREST PAID ON BANK LOAN TOWARDS FINANCING OF THE PROPERTY FOR VARIOUS YEARS. THE LD ASSESSING OFFICER HELD THAT DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS ON QUERY APPELLANT ADMITTED THAT HE HAS WRONGLY CLAIMED INTEREST AGAINST CAPITAL GAIN WHICH WAS TAKEN AGAINST THE PROPERTY BUT WAS NOT UTILIZED FOR THE PURCHASE OF THE PROPERTY. THEREFORE, THE INTEREST WAS WRONGLY CAP ITALIZED THE INTEREST OF RS. 1639790/ - . FURTHER , INTEREST PAID DURING THE PERIOD OF HOLDING OF THE PROPERTY CAN BE CONSIDERED AS COST OF ACQUISITION . THEREFORE, THE INDEXED COST OF ACQUISITION IN FORM OF INTEREST AMOUNT OF RS. 1151908/ - RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 5 CLAIMED BY THE ASSE SSEE WAS DISALLOWED BY THE AO. WITH RESPECT TO THE OTHER PROPERTY THE INTEREST UPTO 27.08.2009 WAS ALLOWED TO BE CAPITALIZED AS ASSESSEE ACQUIRED THE SAID PROPERTY THEN ONLY. THE LD CIT(A) CONFIRMED THE DISALLOWANCE MADE BY THE LD ASSESSING OFFICER. 10. THE L D AUTHORISED REPRESENTATIVE SUBMITTED THAT ASSESSEE HAS PAID INTEREST OF RS. 3891698/ - ON PURCHASE OF PROPERTY IN ASSESSMENT YEAR 2003 - 04 BUT SOLD ON 24.06.2009. THEREFORE, THE CLAIM OF THE ASSESSEE IS THAT ASSESSEES CASE IS SQUARELY COVERED BY THE DECIS ION OF HON'BLE DELHI HIGH COURT IN CASE OF CIT VS. MITHILESH KUMARI 92 ITR 9 AND BOMBAY HIGH COURT IN CASE OF SHRI NIRMAL COMMERCIAL LTD VS. CIT 193 ITR 694. 11. THE LD DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTESTED AND DEFENDED THE ORDERS OF THE LOWER AUTHORITIES. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS . THE LIMITED ISSUE IN THIS GROUND OF APPEAL IS THAT ASSESSEE HAS PURCHASED ONE PROPERTY IN 2003 - 04 BUT POSSESSION OF THE PROPERTY WAS TAKEN ON 12.10.2006 WHICH WAS SOLD ON 24.06.2009. THE ASSESSEE HAS PURCHASED THE PROPERTY FOR RS. 6667472/ - AND HAS ALSO PAID INTEREST THEREON. THE ASSESSEE INDEXED COST OF ACQUISITION AS WELL AS THE INTEREST P AID CONSIDERING THE SAME AS COST OF ACQUISITION AND WORKED OUT THE SAME AT RS. 13220208/ - AND SHOWN LONG TERM CAPITAL GAIN OF RS. 779793/ - . THE LD ASSESSING OFFICER CONSIDERED THAT THE PROPERTY IS NOT HELD BY THE ASSESSEE FOR 36 MONTHS AND THEREFORE, IS SH ORT TERM CAPITAL GAIN. THEREFORE, HE DID NOT ALLOW THE INTEREST AS THE COST OF ACQUISITION. THE LD CIT(A) HAS HELD THAT AS THE APPELLANT HAD RECEIVED THE POSSESSION OF THE PROPERTY ON 12.10.2006 THE INTEREST PAID PRIOR TO AND AFTER RECEIVING THE POSSESSION IS DEEMED TO HAVE BEEN ALLOWED AGAINST THE ANNUAL VALUE OF THE PROPERTY. HOWEVER, IN PARA NO. 2 AT PAGE 21 HE HAS HELD THAT INTEREST EXPENDITURE IS TO BE A PART OF COST OF ACQUISITION BUT BECAUSE OF SECTION 24B THE ASSESSEE IS NOT ENTITLED TO THE SAME. HO WEVER, THE LD CIT(A) HAS FAILED TO APPRECIATE THAT THOUGH THE DEED OF THIS PROPERTY WAS EXECUTED ON 12.10.2006 BUT THE PROPERTY WAS INCAPABLE OF BEING LET OUT AS THERE WAS NO OCCUPANCY AROUND THAT AREA. HOWEVER, THE ABOVE FACT COULD NOT BE DEMONSTRATED RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 6 BEF ORE THE LD ASSESSING OFFICER AND WE DO NOT FIND ANY SUCH MENTION IN THE OR DER OF THE LD ASSESSING OFFICER, THEREFORE, WE SET ASIDE GROUND NO. 2 AND 3 OF THE APPEAL BACK TO THE FILE OF THE LD CIT(A) TO CORRECTLY ADJUDICATE TO ASCERTAIN THE FACTS WHETHER THE PROPERTY IS CAPABLE OF BEING LET OUT OR NOT AND THEN DECIDE ABOUT THE AMOUNT OF INTEREST TO BE CONSIDERED AS COST OF ACQUISITION. IN THE RESULT GROUND NO. 2 AND 3 OF THE APPEAL OF THE ASSESSEE IS ALLOWED WITH ABOVE DIRECTION. 13. GROUND NO. 4 OF THE APPEAL IS AGAINST REJECTING THE CLAIM OF RS. 1637790/ - BEING INTEREST EXPENDITURE INCURRED BY THE ASSESSEE FOR THE BUSINESS PURPOSES. THOUGH THE ASSESSEE GAVE A WRONG TREATMENT TO THE ABOVE EXPENDITURE EARLIER BUT IGNORANCE OF THE ASSESSEE CANNOT BE USED AGAINST THE ASSESSEE TO DENY HIM THE CORRECT DEDUCTION OF EXPENDITURE. DURING THE COURSE OF APPELLATE PROCEEDING THE ASSESSEE MADE A CLAIM THAT ABOVE EXPENDITURE OF RS. 1639730/ - MAY BE ALLOWED AS DEDUCTION TO THE ASSESSEE AGAINST BUSINESS INCOME. THE LD CIT(A) HE LD THAT AS ASSESSEE HAS NOT FILED REVISED RETURN SUCH CLAIM IS NOT ALLOWABLE. 14. THE LD AR SUBMITTED THAT THERE IS NO NEED OF FILING OF REVISED RETURN IF THE CLAIM IS MADE BEFORE THE APPELLATE AUTHORITIES. HE RELIED ON THE DECISION OF HON'BLE DELHI HIGH COUR T IN CASE OF CIT VS. JAI PARABOLIC SPRINGS LTD 306 ITR 42. 15. THE LD DR RELIED UPON THE DECISION OF HON'BLE SUPREME COURT IN CASE OF GOETZE INDIA VS. CIT 284 ITR 323. 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOW ER AUTHORITIES. FRESH CLAIMS MADE BEFORE THE APPELLATE AUTHORITIES ARE NOT HIT BY THE DECISION OF HON'BLE SUPREME COURT IN GOETZE INDIA LTD (SUPRA) AS HELD BY HON'BLE DELHI HIGH COURT IN JAI PARABOLIC SPRINGS LTD (SUPRA) AS WELL AS HON'BLE BOMBAY HIGH COU RT IN CASE OF CIT VS. PRUTHIVI BROKERS AND SHAREHOLDERS PVT. LTD 349 ITR 336. THEREFORE, ACCORDING TO US THE LD CIT(A) SHOULD HAVE EXAMINE D THE CLAIM OF THE ASSESSEE OF ALLOWABILITY OF THE ABOVE EXPENDITURE OF RS. 1639790/ - AS ALLOWABLE INTEREST EXPENDITUR E AGAINST THE BUSINESS INCOME. IN VIEW OF RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 7 THIS WE SET ASIDE THIS GROUND OF APPEAL TO THE FILE OF THE LD CIT(A) . IN THE RESULT GROUND NO. 4 OF THE APPEAL OF THE ASSESSEE IS ALLOWED ACCORDINGLY. 17. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED WITH ABOVE DIR ECTIONS FOR STATISTICAL PURPOSES. 18. NOW WE COME TO THE APPEAL OF THE REVENUE WHEREIN, FOLLOWING GROUNDS ARE RAISED: - 1. THAT THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.34,40,831/ - MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON THE SALE OF PROPERTY DW0078 BLOCK - S, NIRVANA COUNTRY SOUTH CITY, GURGAON WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD SOLD OWNERSHIP RIGHTS TO THE PURCHASER WHICH HE HAD OBTAINED VIDE CONVEYANCE DEED DATED 12.10.2006, AS IS EVIDENT FROM THE SALE DEED DATED 24 - 06 - 2009. 2 . THAT THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS. 12,86,037/ - MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON THE SALE OF PROPERTY 1401 BLOCK - I, 13TH FLOOR NIRVANA COLONY SOUTH CITY - II, PHASE - II, GURGAON WITHOUT APPRECIATING THE FACT THAT THE ASSESS EE HAD SOLD OWNERSHIP RIGHTS TO THE PURCHASER WHICH HE HAD OBTAINED VIDE CONVEYANCE DEED DATED 27.08.2009 AND THIS IS EVIDENT FROM THE SALE DEED DATED 04 - 03 - 2010. 3. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 34,40,831/ - AND 12,86,037/ - ON A/ C OF SHORT TERM CAPITAL GAIN BY REFERRING TO THE ADDITIONAL EVIDENCE, VIZ SALE AGREEMENT AND CONVEYANCE DEED WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSING OFFICER. 19. THE FIRST AND SECOND GROUND OF APPEAL BOTH RELATE TO THE TREATMENT OF THE PROPERTIES AS LONG TERM CAPITAL ASSET BY THE LD CIT(A) WHEREAS THE LD ASSESSING OFFICER HAS TAKEN THEM TO BE A SHORT TERM CAPITAL ASSET. THE THIRD GROUND IS REGARDING ADMISSION OF ADDITIONAL EVIDENCE. THE MAIN CLAIM OF THE ASSESSING OFFICER IS THAT THE PROPERTIES HAV E BEEN SOLD BY THE ASSESSEE WHICH WAS PURCHASED VIDE CONVEYANCE DEED DATED 12.10.2006 AND SOLD ON 24.06.2009 FOR ONE PROPERTY AND FOR SECOND PROPERTY CONVEYANCE DEED WAS EXECUTED ON 27.08.2009 AND SOLD ON 04.03.2010. THE MAIN DIFFERENCE IS THAT ASSESSEE HA S CLAIM ED THE DATE OF ACQUISITION FROM THE DATE OF ALLOTMENT OF THE PROPERTY AND NOT FROM THE DATE OF EXECUTION OF THE DEED. THE LD CIT(A) ON THE BASIS OF THE ALLOTMENT LETTER FOR BOTH THE PROPERTIES WHICH ARE DATED 22.09.2004 AND 20.04.2004 RESPECTIVELY H ELD THAT THE ABOVE PROPERTIES ARE LONG TERM CAPITAL ASSET. RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 8 20. THE LD DR VEHEMENTLY SUBMITTED THAT WHEN THE DEED WAS EXECUTED ON 12.10.2006 AND 27.08.2009 THE PROPERTIES ARE HELD BY THE ASSESSEE FOR LESS THAN 36 MONTHS AND HENCE, SAME ARE SHORT TERM CAPIT AL ASSET. ADVERTING TO THIS FACT HE REFERRED TO GROUND NO. 3 OF THE APPEAL TO SAY THAT LD CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCES VIDE PARA NO. 6.1 OF THE ORDER FOR WHICH NO OPPORTUNITY WAS GRANTED TO THE LD ASSESSING OFFICER. 21. THE LD AR VEHEMENTLY S UBMITTED THAT THESE ARE THE ALLOTMENT LETTERS WHICH CIT(A) DIRECTED THE ASSESSEE TO FILE AND CANNOT BE CONSIDERED AS ADDITIONAL EVIDENCES. HE SUBMITTED THAT ANYWAY THEY ARE MENTIONED IN THE SALE DEED FOR PURCHASE OF PROPERTY. 22. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDER OF THE LD CIT(A). THE LD CIT(A) VIDE PARA NO. 6.4 HAS HELD THAT ABOVE PROPERTIES WERE ACQUIRED ON THE DATE ON WHICH THE PROPERTIES WERE ALLOTTED TO THE ASSESSEE AND THEREFORE, BOTH THE PROPERTIES ARE LONG TERM CAPITAL ASSET. IN SHORT HE HELD THAT THE DATE OF ALLOTMENT OF THE PROPERTY THE DATE OF ACQUISITION OF THE PROPERTY. LD DR COULD NOT POINT OUT THAT HOW THE DATE OF ACQUISITION SHOULD NOT BE CONSIDERED FROM THE DATE OF ALLOTMENT OF THE PROPERTY. IN VIE W OF THIS WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD CIT(A) IN HOLDING THAT BOTH THE PROPERTIES ARE HELD BY ASSESSEE FOR MORE THAN 36 MONTHS AND THEREFORE, THEY ARE LONG TERM CAPITAL ASSETS. IN VIEW OF THIS WE DISMISS THE APPEAL OF THE REVENUE. 23. IN THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 5 / 02 / 2018 . - S D / - - S D / - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 5 / 02 / 2018 A K KEOT COPY FORWARDED TO RAMESH CHAND GOEL VS.ITO, ITA NO. 5079/DEL/2014 ITA NO. 6022/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 9 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI