Sh. Amit Agarwal, Meerut V. ACIT, Meerut

ITA 5125/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2960 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 3
• Next Hearing Date: 22-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 17-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Keywords: Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.5125/DEL./2014 ASSESSMENT YEAR 2009-2010 SHRI AMIT AGARWAL, C/O. PUSHKAR JAIN, ADVOCATE, 115-C, JAIN NAGAR, MEERUT CITY-2. PAN AAMPA1636N VS. THE ACIT, CIRCLE-1, AAYAKAR BHAVAN, BHANSALI GROUND, MEERUT CANTT. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI NEERAJ JAIN, ADVOCATE FOR REVENUE : SHRI V.K. JIWANI, SR.D.R. DATE OF HEARING : 0 8 .03.2018 DATE OF PRONOUNCEMENT : 14 .03.2018 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), MEERUT, DATED 07.07.20 14, FOR THE A.Y. 2009-2010, CHALLENGING THE DISALLOWANCE OF RS. 5 LAKHS ON ACCOUNT OF EXPENSES INCURRED FOR IMPROVEMENTS IN PR OPERTY FOR CLAIMING SHORT TERM CAPITAL GAINS. EARLIER, THE APP EAL WAS DISMISSED FOR DEFAULT WHICH IS RESTORED BY ALLOWING M.A. OF THE ASSESSEE. 2 ITA.NO.5125/DEL./2014 SHRI AMIT AGARWAL, MEERUT. 2. THE A.O. FROM THE DETAILS OF CAPITAL GAIN FOUND THAT ASSESSEE HAS CLAIMED A SUM OF RS.5 LAKHS AS EXPENSE S OUT OF SHORT TERM CAPITAL GAIN ON SALE OF LAND AT KHASRA 2 214 AND 2215 ON 1 ST AUGUST, 2008. THE ASSESSEE WAS ASKED TO JUSTIFY TH E EXPENDITURE BY FILING DOCUMENTARY EVIDENCE IN RESPE CT OF THE EXPENDITURE, BUT, NO DOCUMENTARY EVIDENCE HAVE BEEN FILED. ASSESSEE LATER ON FILED SOME AFFIDAVITS AT THE FAG END OF THE ASSESSMENT WITHOUT PRODUCING THE DEPONENTS. IN THE AFFIDAVITS, IT IS CLAIMED THAT THE DEPONENTS HAVE RECEIVED AMOU NT IN CASH AS PAYMENT FOR CLAY FILLING ON THE LANDS. IT WAS ME NTIONED IN THE AFFIDAVIT THAT THERE WAS AN AGREEMENT BETWEEN THE D EPONENTS AND THE ASSESSEE TO DO SO BUT NO SUCH AGREEMENT HAS BEEN FILED BEFORE A.O. NO EVIDENCE OF WITHDRAWAL OF ANY CASH HAVE BEEN FILED BY ASSESSEE TO VERIFY GENUINENESS AND DATE OF PAYMENT OF THIS EXPENDITURE. IN THE ABSENCE OF ANY RELEVANT AN D COGENT EVIDENCE ON RECORD, THE ASSESSEE FAILED TO PROVE GE NUINENESS OF THE EXPENDITURE SO CLAIMED. THEREFORE, IT WAS DISAL LOWED BY A.O. THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) A ND NO EVIDENCES HAVE BEEN FURNISHED. THEREFORE, IN THE AB SENCE OF ANY 3 ITA.NO.5125/DEL./2014 SHRI AMIT AGARWAL, MEERUT. EVIDENCE OR MATERIAL ON RECORD BEFORE LD. CIT(A), T HE APPEAL OF ASSESSEE HAS BEEN DISMISSED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE A.O. AND FILED COPIES O F THE RECEIPTS AND AFFIDAVITS WHICH WERE FILED BEFORE A.O . AND ALSO FILED COMPUTATION OF INCOME FOR ASSESSMENT YEAR UNDER APP EAL AND SUBMITTED THAT PROOF OF PAYMENT OF RS.5 LAKHS WAS R S.5 LAKHS SURRENDERED BY ASSESSEE ON ACCOUNT OF OTHER INCOME IN THE COMPUTATION OF INCOME. 4. THE LD. D.R. ON THE OTHER HAND RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM O F THE VIEW THAT APPEAL OF ASSESSEE HAS NO MERIT. THE ASSE SSEE FAILED TO FILE ANY DOCUMENTARY EVIDENCE TO PROVE IF RS.5 L AKHS WERE INCURRED FOR FILLING THE CLAY ON THE LAND. THE ASSE SSEE FILED SOME AFFIDAVITS AND RECEIPTS IN WHICH ALLEGED AGREEMENT WAS MENTIONED BETWEEN THE ASSESSEE AND THE DEPONENTS BU T NO SUCH AGREEMENT WAS PRODUCED BEFORE A.O. AFFIDAVITS WERE PREPARED LATER ON AT THE FAG END OF THE ASSESSMENT. NO EVIDENCE 4 ITA.NO.5125/DEL./2014 SHRI AMIT AGARWAL, MEERUT. OF ANY AMOUNT AVAILABLE TO ASSESSEE FOR MAKING SUCH PAYMENT IN CASH WAS FILED BEFORE THE AUTHORITIES BELOW. THU S, THE ASSESSEE FAILED TO PROVE SOURCE OF PAYMENT OF RS.5 LAKHS BEFORE AUTHORITIES BELOW. LEARNED COUNSEL FOR THE ASSESSEE FILED COPY OF THE COMPUTATION OF INCOME TO SHOW THAT ASSESSEE SURRENDERED RS.5 LAKHS AS OTHER INCOME IN COMPUTATION OF INCOME . THIS ITSELF SHOWS THAT EXPLANATION OF ASSESSEE IS AN AFTERTHOUG HT. ON THE ONE HAND ASSESSEE SURRENDERED THE AMOUNT OF RS.5 LA KHS AS INCOME FROM OTHER SOURCES WITHOUT PROVING THE SOU RCE OF EARNING OF SUCH INCOME AND ON THE SAME HAND, ASSESS EE MADE A CLAIM OF DEDUCTION OF EXPENDITURE OF RS.5 LAKHS A S EXPENDITURE INCURRED FOR EARNING SHORT TERM CAPITAL GAINS. THIS SHOWS THAT ASSESSEE VERY CLEARLY MADE A BOGUS CLAIM OF INCURRI NG OF THE EXPENDITURE JUST TO AVOID PAYMENT OF TAX ON OTHER INCOME SO SURRENDERED IN COMPUTATION OF INCOME. THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, CLEARLY SUPPORTS FIN DINGS OF THE AUTHORITIES BELOW THAT ASSESSEE MADE A WRONG CLAIM WHICH HAVE BEEN CORRECTLY DISALLOWED BY THE AUTHORITIES BELOW. THE APPEAL OF ASSESSEE HAS NO MERIT AND THE SAME IS ACCORDINGL Y DISMISSED. 5 ITA.NO.5125/DEL./2014 SHRI AMIT AGARWAL, MEERUT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 14 TH MARCH, 2018 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.