SHRI SHANKAR, Jaipur V. ITO, Jaipur

ITA 52/JPR/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7194 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL JCIT DHK
• Keywords: Salary income; Additional evidence; Valuation report; Onus to prove
• Section: 54B; 54F; 133(6); 139(1); 131; 68; 148; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA -@ ITA NO. 52/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2006-07 SHANKAR, S/O- SHRI CHOTIYA, VILLAGE- THIKARIA, TEHSIL- SANGANER, DISTT.- JAIPUR. C UKE VS. I.T.O., WARD-7(2), JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ADZPL 1382 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKS J LS @ ASSESSEE BY: SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/09/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 18/10/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26/10/2016 OF LD. CIT(A)-III, JAIPUR FOR THE A.Y. 2006-07. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE IMPUGNED REASSESSMENT ORDER OF LD. AO BY IGNORING THE FACT THAT THE SAID ORDER HAS BEEN PASSED WITHOUT JURISDICTION AND THEREFORE IS PRIMA FACIE BAD IN LAW AND DESERVES TO BE QUASHED. ITA 52/JP/2017 SHANKAR VS ITO 2 1.1 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN FAILING TO APPRECIATE THE FACT THAT THE JURISDICTION OVER THE CASE OF ASSESSEE LIES WITH INCOME TAX OFFICER, WARD-6(4) AND NOT WITH THE INCOME TAX OFFICER, WARD-7(2) WHO HAS PASSED THE IMPUGNED REASSESSMENT ORDER. THUS, THE ORDER OF LD. AO DESERVES TO BE QUASHED. 1.2 THAT, THE IA. C1T(A) HAS FURTHER ERRED IN REJECTING THE AFORESAID OBJECTION OF ASSESSEE MERELY ON THE GROUND THAT THIS GROUND WAS NOT RAISED BEFORE AO AND THAT THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, BY COMPLETELY IGNORING THE WELL ESTABLISHED LAW THAT THE QUESTION OF JURISDICTION CAN BE RAISED AT ANY STAGE AND THAT THE DEFECT OF LACK OF JURISDICTION IS A MATERIAL ONE AND NOT ONE WHICH CAN BE CURED U/S 292 OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE ADDITION OF RS. 76,390/- MADE BY LD. AO BY WAY OF DISALLOWANCE OF BROKERAGE EXPENSES PAID BY ASSESSEE ON THE SALE / PURCHASE OF LAND UNDERTAKEN BY ASSESSEE. THUS, THE ADDITION OF RS. 76,390/- DESERVES TO BE DELETED. 2.1 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE EVIDENCES SUBMITTED BY ASSESSEE IN SUPPORT OF THE FACT OF PAYMENT OF BROKERAGE IN THE SHAPE OF CONFIRMATION AND ID OF THE BROKER BEFORE THE LD. CIT(A) U/R 46A, HOWEVER, THE LD. CIT(A) HAS UPHELD THE IMPUGNED ADDITION MERELY ON THE GROUND THAT THE BROKER WAS NOT PRODUCED BEFORE THE LD. AO, BY COMPLETELY IGNORING THE FACT THAT REQUEST WAS MADE BEFORE THE LD. AO TO SUMMON THE BROKER U/S 131 / 133(6) AND EXAMINE, SINCE HIS CONFIRMATION AND ID PROOF WAS SUBMITTED BEFORE LD. AO. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE ADDITION OF RS. 40,000/- AND RS. 2,78,620/- MADE BY LD. AO BY WAY OF DISALLOWANCE OF BROKERAGE EXPENSES AND EXPENSES INCURRED ON AGRICULTURE LAND RESPECTIVELY PAID BY ASSESSEE ON THE SALE / PURCHASE OF LAND UNDERTAKEN BY ASSESSEE. THUS, THE ADDITION OF RS. 3,18,620/- [40,000 + 2,78,620] DESERVES TO BE DELETED. ITA 52/JP/2017 SHANKAR VS ITO 3 3.1 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE EVIDENCES SUBMITTED BY ASSESSEE IN SUPPORT OF THE FACT OF PAYMENT OF BROKERAGE IN THE SHAPE OF CONFIRMATION AND ID OF THE BROKER BEFORE THE LD. CIT(A) U/R 46A, HOWEVER, THE LD. CIT(A) HAS UPHELD THE IMPUGNED ADDITION MERELY ON THE GROUND THAT THE BROKER WAS NOT PRODUCED BEFORE THE LD. AO, BY COMPLETELY IGNORING THE FACT THAT REQUEST WAS MADE BEFORE THE LD. AO TO SUMMON THE BROKER U/S 131 / 133(6) AND EXAMINE, SINCE HIS CONFIRMATION AND ID PROOF WAS SUBMITTED BEFORE LD. AO. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE DISALLOWANCE OF ASSESSEE'S CLAIM OF DEDUCTION U/S 54F OF THE ACT, BY WRONGLY OBSERVING THAT THE VALUATION REPORT SUBMITTED BY ASSESSEE IS NOT COMPLETE / CORRECT BY COMPLETELY IGNORING THE FACT THAT A BONA-FIDE MISTAKE WAS COMMITTED BY THE REGISTERED VALUER WHO MISTAKENLY WROTE NAME OF SOME OTHER PERSON ON THE REPORT INSTEAD OF ASSESSEE. THUS, THE ACTION OF LD. CIT (A) DESERVES TO BE HELD BAD IN LAW AND THE ADDITION OF RS. 23,22,500/- MADE BY WAY OF SUCH DISALLOWANCE DESERVES TO BE DELETED. 4.1 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN BRUSHING ASIDE THE MODIFIED / CORRECTED VALUATION REPORT OF THE REGISTERED VALUER SUBSEQUENTLY SUBMITTED BY ASSESSEE WHEREIN, THE MISTAKE HAS BEEN RECTIFIED AND THE NAME OF ASSESSEE IS DULY SHOWN. THUS, IN THE PRESENCE OF RELIABLE EVIDENCE TO THIS EFFECT, THE LD. CIT(A) COULD NOT HAVE UPHELD THE IMPUGNED DISALLOWANCE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMING THE ADDITION OF RS. 10,44,216/- MADE BY LD. AO U/S 68 BY HOLDING THE DEPOSITS MADE BY ASSESSEE IN HIS BANK ACCOUNT AS HIS UNDISCLOSED INCOME WITHOUT ANY BASIS. THUS, THE ADDITION OF RS. 10,44,216/- SO SUSTAINED BY THE LD. CIT(A) DESERVES TO BE DELETED. 5.1 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE EVIDENCES AND EXPLANATIONS FURNISHED BY THE ASSESSEE IN SUPPORT OF THE SOURCE OF DEPOSITS MADE BY ASSESSEE. THUS, THE ADDITION OF RS. 10,44,216/- DESERVES TO BE DELETED. ITA 52/JP/2017 SHANKAR VS ITO 4 5.2 THAT, THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE FACT THAT HER ACTION OF UPHOLDING THE ADDITION OF RS. 10,44,216/- ON ACCOUNT OF BANK DEPOSITS HAS RESULTED INTO DOUBLE ADDITION OF SAME INCOME, IN VIEW OF THE FACT THAT THE DEPOSITS HAVE BEEN MADE OUT OF THE SALE PROCEEDS OF LAND, CAPITAL GAIN ARISING OUT OF WHICH HAS BEEN CLAIMED AS EXEMPT U/S 54F WHICH HAS BEEN DISALLOWED WRONGLY. 6. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2. GROUND NO.1 OF THE APPEAL IS REGARDING VALIDITY OF THE REASSESSMENT ORDER PASSED BY THE I.T.O., WARD 7(2), JAIPUR WITHOUT JURISDICTION. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY AS WELL AS AGRICULTURE. THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME U/S 139 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). THE A.O. ISSUED A NOTICE U/S 148 OF THE ACT ON 26/03/2013 AND COMPLETED THE REASSESSMENT ON 10/02/2014 WHEREBY THE A.O. HAS MADE ADDITION ON ACCOUNT OF CAPITAL GAIN AND UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT WITH INTEREST. THE ASSESSEE CHALLENGED THE ACTION OF THE A.O. BEFORE THE LD. CIT(A) AND ALSO RAISED GROUND AGAINST THE VALIDITY OF REASSESSMENT ORDER PASSED BY THE ITO, WARD 7(2), JAIPUR INSTEAD OF JURISDICTION OF I.T.O., WARD 6(4), JAIPUR. THE LD. CIT(A) DID NOT ACCEPT THIS CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NEVER CHALLENGED THE JURISDICTION OF THE A.O. DURING THE REASSESSMENT ITA 52/JP/2017 SHANKAR VS ITO 5 PROCEEDINGS AND ALSO FILED COMPUTATION OF INCOME IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT. 3. BEFORE THE TRIBUNAL, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS DERIVING SALARY FROM GOVERNMENT OF INDIA, THUS PROPER JURISDICTION OF THE ASSESSEE LIES WITH ITO, WARD 6(4), JAIPUR AND NOT THE I.T.O., WARD 7(2), JAIPUR. IN ABSENCE OF ORDER PASSED U/S 127/124 OF THE ACT TO TRANSFER THE JURISDICTION TO I.T.O., WARD 7(2), JAIPUR, THE ASSESSMENT WAS FRAMED BY THE I.T.O., WARD 7(2), JAIPUR IS ABSOLUTELY BAD IN LAW FOR WANT OF JURISDICTION. THE A.O. HAS ASSUMED JURISDICTION OF THE ASSESSEES CASE ON THE GROUND OF ADDRESS OF THE ASSESSEE IS FALLING UNDER HIS JURISDICTION. WHEREAS THE ASSESSEE BEING A SALARIED PERSON AND A GOVERNMENT EMPLOYEE, THE JURISDICTION LIES WITH ITO, WARD 6(4), JAIPUR. THE LD AR HAS RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ITSC 365 ITR 87 (MUM) AS WELL AS THE DECISION IN THE CASE OF M/S MAVANY BROTHERS VS. CIT 62 TAXMANN.COM 56. THUS, THE LD AR HAS CONTENDED THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY THE I.T.O., WARD 7(2), JAIPUR WAS BAD IN LAW AND LIABLE TO BE QUASHED. 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME U/S 139 OF THE ACT AND ITA 52/JP/2017 SHANKAR VS ITO 6 SUBSEQUENTLY, WHEN THE A.O. RECEIVED INFORMATION REGARDING DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE THEN AS PER THE PARTICULARS OF THE ASSESSEE AVAILABLE ON RECORD, THE A.O. WHO WAS HAVING THE JURISDICTION OVER THE TERRITORY CONSIDERING THE ADDRESS OF THE ASSESSEE, ISSUED A NOTICE U/S 148 OF THE ACT AFTER PRIOR APPROVAL OF THE PR.CIT. THE ASSESSEE ALSO PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND FILED COMPUTATION OF INCOME, THUS THE ASSESSEE HAS SUBMITTED TO THE JURISDICTION OF THE I.T.O., WARD 7(2), JAIPUR AND NEVER RAISED OBJECTION REGARDING THE JURISDICTION. THEREFORE, THE ASSESSEE IS NOT PERMITTED TO RAISE THIS OBJECTION AFTER COMPLETION OF THE ASSESSMENT. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. SINCE THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME U/S 139(1) OF THE ACT AND FURTHER IT IS NOT A CASE OF THE ASSESSEE THAT HE IS REGULAR ASSESSED TO TAX UNDER A DIFFERENT ITO, THEREFORE, THE NOTICE ISSUED BY THE I.T.O., WARD 7(2), JAIPUR BASED ON THE ASSESSEES PARTICULARS AND ADDRESS WHICH IS FALLING UNDER HIS JURISDICTION, CANNOT BE DISPUTED AFTER COMPLETION OF THE ASSESSMENT AND PARTICULARLY WHEN THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS. AS PER PROVISIONS OF SECTION 124(3)(B) OF THE ACT, NO PERSON IS ALLOWED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING ITA 52/JP/2017 SHANKAR VS ITO 7 OFFICER WHEN HE HAS NOT MADE ANY RETURN OF INCOME AFTER EXPIRY OF TIME ALLOWED, INTER ALIA, NOTICE ISSUED U/S 148 OF THE ACT. THUS, THE ASSESSEE DID NOT OBJECT THE JURISDICTION OF THE A.O. AS PER THE TIME PERIOD GIVEN U/S 124(3)(B) OF THE ACT AND EVEN UP TO THE DATE OF THE ASSESSMENT ORDER PASSED BY THE A.O. SINCE THE JURISDICTION OF THE ASSESSEE WAS NOT PREDETERMINED PRIOR TO NOTICE ISSUED U/S 148 OF THE ACT AS THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME, THEREFORE, THE OBJECTION RAISED BY THE ASSESSEE AFTER THE ASSESSMENT ORDER PASSED BY THE A.O., CANNOT BE ENTERTAINED. THE LD. CIT(A) HAS CONSIDERED THIS ISSUE IN PARA 4.3 AS UNDER: 4.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, FINDINGS OF THE AO AND SUBMISSION OF THE APPELLANT. THE ASSESSEE CHALLENGED THE JURISDICTION OF A.O. IT IS SEEN FROM RECORDS/REMAND REPORT THAT NO SUCH JURISDICTION WAS MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. MOREOVER ASSESSEE PARTICIPATED IN THE ASSESSMENT PROCEEDINGS WHICH IS FORTIFIED BY FACT THAT ASSESSEE FILED COMPUTATION OF INCOME IN RESPONSE TO NOTICE U/S 148 AND EXPLANATIONS REGARDING THE DEPOSITS MADE THEREFORE I FIND NO MERIT IN THE OBJECTION RAISED BY THE ASSESSEE REGARDING THE OBJECTION TO JURISDICTION OF AO AND THEREFORE THE SAME IS DISMISSED. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AS DISCUSSED IN THE FOREGOING PART OF THIS ORDER, I DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LD. CIT(A) QUA THIS ISSUE, HENCE UPHOLD THE SAME. ITA 52/JP/2017 SHANKAR VS ITO 8 6. GROUND NO. 2 OF THE APPEAL IS REGARDING DISALLOWANCE OF BROKERAGE CHARGES IN RESPECT OF SALE/PURCHASE OF LAND BY THE ASSESSEE OF RS. 76,390/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE ALONGWITH TWO OTHER CO-OWNERS HAD SOLD THE LAND. WHILE COMPUTING LONG TERM CAPITAL GAIN, THE ASSESSEE HAS CLAIMED RS. 76,370/- AS HIS SHARE OF BROKERAGE PAID TO ONE HEMRAJ AND PRAVEEN KUMAR. THE A.O. DISALLOWED THE CLAIM FOR WANT OF ANY EVIDENCE. BEFORE THE LD. CIT(A), THE ASSESSEE FILED CONFIRMATION FROM THESE TWO PERSONS WITH THEIR ID PROOF AS AN ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES, 1962 (IN SHORT, THE RULES). THE LD. CIT(A) CALLED FOR A REMAND REPORT FROM THE A.O. IN WHICH THE A.O. HAS REITERATED ITS STAND AS TAKEN IN THE ASSESSMENT ORDER. AFTER CONSIDERING THE REMAND REPORT, THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE LD. CIT(A). 7. BEFORE THE TRIBUNAL, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS SOLD LAND ALONGWITH CO-OWNERS AND BROKERAGE WAS PAID ON THE SALE, THEREFORE, THE ASSESSEE HAS CLAIMED ONLY HIS SHARE OF BROKERAGE WHILE COMPUTING THE LONG-TERM CAPITAL GAIN. ONCE, THE ASSESSEE HAS PRODUCED CONFIRMATION ALONGWITH ID PROOF OF THE PERSONS TO WHOM THE BROKERAGE WAS PAID THEN THE CLAIM CANNOT BE DENIED AS IT IS A PREVAILING PRACTICE OF CHARGING OF BROKERAGE AT 2%. ITA 52/JP/2017 SHANKAR VS ITO 9 8. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE CLAIM OF BROKERAGE PAYMENT. THE LD. CIT(A) HAS CONSIDERED THE CLAIM AND FOUND THAT IN ABSENCE OF PROOF OF BROKERAGE PAYMENT PRODUCED BEFORE THE A.O., THE SAME CANNOT BE ALLOWED AS ACCEPTED AT THIS STAGE. SHE HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 9. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. WHEN THE TRANSACTION OF SALE OF LAND IS NOT IN DISPUTE THEN AS PER NORMAL PRACTICE PREVAILING IN SUCH TRANSACTIONS, A BROKERAGE AT THE RATE OF 2% IS BEING PAID. THOUGH, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FILE ANY EVIDENCE IN SUPPORT OF THE BROKERAGE PAYMENT, HOWEVER, BEFORE THE LD. CIT(A), THE ASSESSEE PRODUCED CONFIRMATION ALONGWITH ID PROOF OF THESE TWO PERSONS. THE LD. CIT(A) HAS REJECTED THE CLAIM OF THE ASSESSEE ONLY ON THE GROUND THAT THE PROOF WAS NOT PRODUCED BEFORE THE A.O. ONCE THE CLAIM OF THE ASSESSEE IS NOT FOUND TO BE EXCESSIVE AND IT IS IN ACCORDANCE WITH THE PREVAILING PRACTICE OF BROKERAGE @ 2% THEN THE SAME CANNOT BE DENIED. THE SALE AND PURCHASE OF THE IMMOVABLE PROPERTY TRANSACTIONS ARE GENERALLY CARRIED OUT ONLY THROUGH THE BROKERS WHO PLAYED A VERY CRUCIAL ROLE OF SOLICITING THE SALE AND ITA 52/JP/2017 SHANKAR VS ITO 10 PURCHASE TRANSACTIONS BETWEEN THE PARTIES. ACCORDINGLY, THE A.O. IS DIRECTED TO ALLOW BROKERAGE PAYMENT @ 2% OF THE SALE PROCEEDS. 10. GROUND NO. 3 OF THE APPEAL IS REGARDING DISALLOWING OF BROKERAGE CHARGES IN RESPECT OF AGRICULTURAL LAND PURCHASED BY THE ASSESSEE AS WELL AS THE EXPENDITURE INCURRED ON THE AGRICULTURAL LAND TOWARDS LEVELLING ETC. THE ASSESSEE PURCHASED TWO AGRICULTURAL LANDS DURING THE YEAR UNDER CONSIDERATION AND CLAIMED DEDUCTION U/S 54B OF THE ACT. THE A.O. HAS DISALLOWED THE CLAIM OF BROKERAGE PAYMENT OF RS. 40,000/- AS WELL AS THE EXPENDITURE OF RS. 2,78,620/- ON ACCOUNT OF LEVELLING EXPENSES WHILE COMPUTING DEDUCTION U/S 54B OF THE ACT AND CONSEQUENTLY MADE ADDITION OF THE SAME TO THE CAPITAL GAIN OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE ACTION OF THE A.O. BEFORE THE LD. CIT(A) BUT COULD NOT SUCCEED. 11. BEFORE THE TRIBUNAL, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE SUBMITTED COPIES OF CONFIRMATION FOR PAYMENT OF BROKERAGE ALONGWITH ID PROOF OF THE PERSONS TO WHOM THE BROKERAGE WAS PAID. HE HAS ALSO REFERRED TO THE EVIDENCES TOWARDS THE EXPENDITURE INCURRED FOR LEVELLING OF THE LAND AS WELL AS SOME OTHER WORK OF SOIL BOUNDARY ON THE LAND. WITHOUT CONSIDERING ALL THESE EVIDENCES PRODUCED BY THE ASSESSEE, THE A.O. AS WELL AS THE LD. CIT(A) ITA 52/JP/2017 SHANKAR VS ITO 11 HAS DISALLOWED THE CLAIM, WHICH IS NOT JUSTIFIED. THE LD AR HAS SUBMITTED THAT THE CLAIM IS ALSO SUPPORTED WITH WITHDRAWAL MADE BY THE ASSESSEE FROM HIS BANK. 12. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 13. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. AS REGARDS THE BROKERAGE CHARGES, SINCE THE ASSESSEE HAS CLAIMED 2% BROKERAGE CHARGES WHICH IS OTHERWISE A GENERAL PRACTICE PREVAILING IN SUCH TRANSACTION OF PURCHASE AND SALE OF IMMOVABLE PROPERTIES, THEREFORE, IN VIEW OF MY FINDINGS IN RESPECT OF GROUND NO. 2 ON THIS ISSUE, THE BROKERAGE CHARGES @ 2% IS ALLOWED. AS REGARDS THE EXPENDITURE INCURRED FOR LEVELLING AND OTHER WORK DONE AT THE AGRICULTURAL LAND, THE ASSESSEE HAS PRODUCED A RECEIPT OF ONE GANGA DEVI, HOWEVER, IT IS NOT EXPLAINED HOW THE SAID LADY HAS GOT THE WORK DONE AS IT REQUIRES MACHINERY TO DO THE WORK OF LEVELLING. THE RECEIPT PRODUCED BY THE ASSESSEE SAYS THE WORKING OF TRACTOR FOR SOME HOURS, HOWEVER, IT IS NOT CLEAR WHETHER THE SAID LADY WAS HAVING THE TRACTOR AND OTHER LABOUR FORCE FOR DOING THE WORK. THUS, IN ABSENCE OF THE DETAILS OF THE JCB AND TRACTOR FOR WHICH THE CHARGES ARE PAID BY THE ITA 52/JP/2017 SHANKAR VS ITO 12 ASSESSEE, THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTED. ACCORDINGLY, WHEN THE ASSESSEE HAS FAILED TO EVEN FURNISH THE RELEVANT DETAILS REGARDING THE PARTICULARS OF THE MACHINERY AND WHETHER THE LADY WHO HAS EXECUTED THE RECEIPT WAS HAVING THOSE MACHINERIES, CLAIM CANNOT BE ACCEPTED. 14. GROUND NO. 4 OF THE APPEAL IS REGARDING DISALLOWANCE OF COST OF CONSTRUCTION WHILE ALLOWING DEDUCTION U/S 54F OF THE ACT. THE ASSESSEE CLAIMED THE COST OF CONSTRUCTION OF RESIDENTIAL HOUSE OF RS. 23,22,500/- FOR THE PURPOSE OF EXEMPTION U/S 54F OF THE ACT. THE A.O. HAS REJECTED THE SAID CLAIM ON THE GROUND THAT THE VALUATION REPORT FILED BY THE ASSESSEE IS IN THE NAME OF ONE SMT. SUSHMA BAIRWA AS THE SINGLE OWNER OF THE PROPERTY. ON APPEAL. THE ASSESSEE FILED RECTIFIED REPORT OF THE VALUER, HOWEVER, THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE A.O. IN REJECTING THE CLAIM. 15. BEFORE THE TRIBUNAL, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ORIGINAL REPORT WAS SUBMITTED DURING THE ASSESSMENT PROCEEDINGS AND THE FIRST PAGE OF THE REPORT HAD INADVERTENTLY EXCHANGED WITH ANOTHER CLIENT SMT. SUSHMA BAIRWA. THIS MISTAKE WAS DUE TO THE SAID PAGE HAD GOT EXCHANGED AND NOT THE ENTIRE REPORT AS IT IS EVIDENT THAT THE REMAINING REPORT CONTENDS THE DESCRIPTION OF THE PROPERTY OF THE ITA 52/JP/2017 SHANKAR VS ITO 13 ASSESSEE. THUS, INADVERTENT MISTAKE AT THE END OF THE VALUER IS PROVED BEYOND DOUBT AND THE FACTS THAT THE VALUATION SHOWN IN BOTH I.E. IN ORIGINAL AND REVISED REPORT IS REGARDING THE SAME PROPERTY BELONGING TO THE ASSESSEE IS ALSO PROVED BEYOND DOUBT. THEREFORE, MERELY BECAUSE, THERE WAS INADVERTENT MISTAKE OF EXCHANGE OF ONE PAGE OF VALUATION REPORT WITH ANOTHER REPORT WHICH WAS SUBSEQUENTLY RECTIFIED, CANNOT BE A GROUND FOR REJECTING THE CLAIM. 16. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE CLAIM OF THE ASSESSEE WAS NOT SUPPORTED BY A VALID VERIFIABLE EVIDENCE. 17. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE A.O. HAS REJECTED THE CLAIM ON THE GROUND THAT THE VALUATION REPORT IS IN THE NAME OF SOME OTHER PERSON THAN THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THAT VALUATION REPORT FILED BY THE ASSESSEE WAS THOUGH IN RESPECT OF THE PROPERTY OWNED BY THE ASSESSEE BEARING NO. D-350, JAGDAMBA NAGAR, BEHIND HEERAPURA, AJMER ROAD, JAIPUR, HOWEVER, THE NAME OF SOME OTHER PERSON APPEARED IN THE VALUATION REPORT DUE TO THE MISTAKE OF EXCHANGING FIRST PAGE OF THE REPORT WITH THE OTHER VALUATION REPORT. THIS FACT WAS BROUGHT ON RECORD AND THE RECTIFIED VALUATION REPORT WAS FILED DURING THE APPELLATE ITA 52/JP/2017 SHANKAR VS ITO 14 PROCEEDINGS AND REMAND PROCEEDINGS. ONCE THIS SUBSTANCE OF THE VALUATION REPORT REMAINS SAME AND THE SUBJECT MATTER IS ALSO REMAINED SAME THEN ONLY BECAUSE THE NAME OF THE OWNER IS MISTAKENLY GIVEN OF SOME OTHER PERSON DUE TO EXCHANGE OF THE ONE PAGE OF THE REPORT WHICH WAS SUBSEQUENTLY RECTIFIED, THE CLAIM OF THE ASSESSEE OUGHT TO HAVE NOT BEEN DISALLOWED. FURTHER WHEN THE PERIOD OF CONSTRUCTION IS ALSO GIVEN IN THE VALUATION REPORT AND THE A.O. AS WELL AS THE LD. CIT(A) HAS REJECTED THE CLAIM ON TECHNICAL GROUNDS INSTEAD OF EXAMINING THE ISSUE ON THE MERITS IS NOT JUSTIFIED. ACCORDINGLY, ONCE THE CONSTRUCTION OF HOUSE IS NOT IN DISPUTE THEN ONLY THE VALUATION OR THE COST OF THE CONSTRUCTION ASPECT IS REQUIRED TO BE VERIFIED. THEREFORE, ANY TYPOGRAPHICAL MISTAKE OR OTHER INADVERTENT MISTAKE IN THE VALUATION REPORT WOULD NOT HAVE PREVAIL OVER THE SUBSTANTIAL ISSUE OF COST OF CONSTRUCTION OF THE PROPERTY IN QUESTION. NEITHER THE A.O. NOR THE LD. CIT(A) HAS EVEN PROCEEDED TO EXAMINE THE SAID ISSUE OF CORRECTNESS OF THE COST OF CONSTRUCTION. THEREFORE, IN VIEW OF THE FACT THAT THE ASSESSEE PRODUCED THE VALUATION REPORT AS WELL AS RECTIFIED REPORT SHOWING THE CORRECT NAME OF THE OWNER THEN THE ASSESSEE HAS DISCHARGED HIS ONUS TO PROVE THE CLAIM OF COST OF CONSTRUCTION OF THE ITA 52/JP/2017 SHANKAR VS ITO 15 HOUSE. ACCORDINGLY, THE CLAIM OF THE ASSESSEE U/S 54F OF THE ACT TOWARDS THE COST OF CONSTRUCTION IS ALLOWED. 18. GROUND NO. 5 OF THE APPEAL IS CONSEQUENTIAL TO GROUND NO. 4 OF THE APPEAL, ACCORDINGLY BECOME INFRUCTUOUS. 19. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH OCTOBER, 2019. SD/- FOT; IKY JKO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18 TH OCTOBER, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SHANKAR, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-7(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 52/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR