Sri Mohammed Rafi Sayed, V. Asstt.Director of Income Tax, Trivandrum

ITA 541/COCH/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4488 (ITAT-COCHIN)
• Duration Of Justice: 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 16-06-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 12-10-2010
• Court: TRIBUNAL
• Keywords: Capital asset; Additional evidence; Cost of acquisition; Revised return

Judgement Text

I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 1 IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A. NO.541/COCH/2010 (& S.P. NO. 69/COCH/2010) ASSESSMENT YEAR:2008-09 MOHAMMED RAFI SAYED, RAJI MANZIL, KADAKKAL, MANCODE VILLAGE, MATHIRA MURI, MATHIRA P.O. KOTTARAKKARA TALUK, KOLLAM (DIST.). PIN 691 536. [PAN:AWJPM 2926L] VS. THE ASSISTANT DIRECTOR OF INCOME- TAX, (INV.), TRIVANDRUM. (ASSESSEE -APPELLANT) (REVENUE - RESPONDENT) ASSESSEE BY SMT. LATHA K., ADV.-AR REVENUE BY SHRI S.R.SENAPATI, SR. DR O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE ARISING OUT OF T HE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, KOCHI (CIT(A) FOR SHORT ) DATED 22.7.2010, AND THE ASSESSMENT YEAR UNDER REFERENCE IS 2008-09. 2. THE PRINCIPAL ISSUE INVOLVED IN THE PRESENT APPE AL RELATES TO THE COMPUTATION OF CAPITAL GAINS ON THE SALE OF ONE ACRE OF LAND AT KA DAKAMPALLY VILLAGE BY THE ASSESSEE ON 05.6.2007 TO M/S. P-ONE INFRASTRUCTURE PVT. LTD., MUMBAI FOR ` 350 LAKHS. THE FIRST POINT OF CONTENTION RAISED BY THE ASSESSEE, PER ITS GROUN D NO. 2 BEFORE US; GROUND NO. 1 BEING GENERAL IN NATURE, WARRANTING NO ADJUDICATION, IS T HAT THE SAID GAINS OUGHT TO HAVE BEEN TAXED AS A LONG-TERM CAPITAL GAIN, RATHER THAN A SH ORT-TERM CAPITAL GAIN, AS ASSESSED. THIS IS FOR THE SIMPLE REASON THAT THE TRANSFERRED PROPE RTY, THOUGH FINALLY REGISTERED IN THE NAME OF THE APPELLANT ON 04.5.2005 (VIDE DOCUMENT NO. 2347 OF 2005), STOOD PAID FOR T O THE EXTENT OF MORE THAN 50% OF THE TOTAL PURCHASE P RICE OF ` 58 LAKHS, PRIOR THERETO, AND I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 2 REGISTERED WITH THE OFFICE OF THE SUB-REGISTRAR VID E CDA NO. 832 OF 2004. THIS GROUND, HAVING BEEN RAISED FOR THE FIRST TIME BEFORE THE FI RST APPELLATE AUTHORITY, A REPORT FROM THE ASSESSING OFFICER (AO) IN ITS RESPECT WAS CALLED FO R BY HIM. THE AO, VIDE HIS LETTER DATED 7.7.2010, REPORTED THAT THE SALE DEED DATED 4.5.200 5 WAS THE ONLY RELEVANT DOCUMENT WHICH WOULD ESTABLISH THE ASSESSEES OWNERSHIP OF T HE PROPERTY, SO THAT THE PERIOD OF HOLDING HAS TO BE RECKONED WITH REFERENCE TO THE SA ID DATE, AND WHICH RESULTS IN THE SAME BEING LESS THAN THREE YEARS, I.E., THE MINIMUM HOLD ING PERIOD STIPULATED QUA ANY CAPITAL ASSET (OTHER THAN SHARES) FOR IT TO BE REGARDED AS A LONG-TERM CAPITAL ASSET, GAINS ON TRANSFER OF WHICH IS BY DEFINITION A LONG-TERM CAPI TAL GAIN. IN FACT, THE ASSESSEE ITSELF RETURNED THE IMPUGNED CAPITAL GAINS AS SHORT-TERM, AS WOULD BE EVIDENCED FROM THE COMPUTATION OF THE INCOME FILED ALONG WITH. THE DOC UMENT BEING NOW SUBMITTED, I.E., BEFORE THE FIRST APPELLATE AUTHORITY, COULD NOT BE CONSIDERED AS AN `ADDITIONAL EVIDENCE, BEING ONLY IN PURSUANCE TO A NEW CLAIM. THE LD. CI T(A) CONFIRMED THE ASSESSMENT ON THE SAME BASIS. IN HIS VIEW, ANY PAYMENT MADE BY THE A SSESSEE TOWARDS PURCHASE OF THE LAND PRIOR TO 4.5.2005 WOULD BE IMMATERIAL FOR THE PURPO SE, BEING ONLY IN THE NATURE OF AN ADVANCE. THE ASSESSEE, IT WAS FURTHER OBSERVED BY HIM, COULD HAVE PRESSED ITS CLAIM ONLY THROUGH A REVISED RETURN IN VIEW OF THE DECISION BY THE APEX COURT IN THE CASE OF GOETZE INDIA LTD. VS. CIT , 284 ITR 323, AND WHICH IS ADMITTEDLY NOT THE CASE . AS SUCH, THE ASSESSEES CLAIM IS WITHOUT MERIT. AGGRIEVED, THE ASSESSEE IS IN APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 SECTION 2(47) OF THE INCOME-TAX ACT, 1961 ( `THE ACT HEREINAFTER) DEFINES THE TERM `TRANSFER, IN RELATION TO A CAPITAL ASSET, IN AN I NCLUSIVE MANNER, INCLUDING AS ANY TRANSACTION INVOLVING THE ALLOWING OF POSSESSION OF ANY IMMOVEABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF TH E NATURE REFERRED TO IN SEC. 53A OF THE TRANSFER OF THE PROPERTY ACT, 1882 (PER CLAUSE (V)) . 3.2 THE ASSESSEES CASE, AS WE DISCERN, IS THAT THE RE WAS AN EFFECTIVE TRANSFER OF PROPERTY THERETO ON 10.3.2004, I.E., PER DEED NO. 8 32 OF 2004, REGISTERED WITH THE OFFICE OF THE SUB-REGISTRAR, THIRUVANANTHAPURAM. THE SAID DOC UMENT IS NOT ON RECORD, IN THE I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 3 ABSENCE OF WHICH THE ASSESSEES CLAIM IS A MERE ASS ERTION. IN FACT, IT WAS SPECIFICALLY INQUIRED OF THE LD. AR DURING HEARING IF THERE IS A NYTHING TO SHOW OF THE POSSESSION OF LAND AS HAVING BEEN ALLOWED TO BE RETAINED BY THE A SSESSEE PRIOR TO ITS PURCHASE, TO WHICH SHE COULD NOT MAKE ANY SPECIFIC REPLY. RATHER, WE FIND NO CONTENTION TO THIS EFFECT BY THE ASSESSEE BEFORE EITHER THE ASSESSING OR THE FIRST A PPELLATE AUTHORITY, AND THE ARGUMENT ITSELF STANDS INFERRED BY US, AS OTHERWISE REFERENCE TO AN EARLIER DEED, AS BEING MADE BY THE ASSESSEE; THE SALE (PURCHASE) DEED BEING ADMITTEDLY DATED 4/5/2005, IS OF NO RELEVANCE. IN FACT, THE ASSESSEES CONTENTION BEFORE THE LD. CIT( A), BEFORE WHOM THIS ISSUE WAS RAISED FOR THE FIRST TIME (PER ADDITIONAL GROUND NO. 1); I T HAVING ITSELF RETURNED THE GAINS AS A SHORT-TERM CAPITAL GAINS, THAT IN VIEW OF THE PAYME NTS MADE (PRIOR TO SALE DEED DATED 4/5/2005), AT LEAST 50% OF THE TOTAL CAPITAL GAIN B E TREATED AS LONG-TERM, ITSELF BELIES ITS STATEMENT, I.E., AS BEING MADE OUT WITH REFERENCE T O THE DEED DATED 10.3.2004. THE PURCHASE BEING OF A SINGLE PIECE OF LAND, SO THAT T HE ENTIRE OF IT REPRESENTS A SINGLE CAPITAL ASSET, ACQUIRED PER A SINGLE TRANSACTION, IT WOULD BEAR ONE CHARACTER, I.E., IRRESPECTIVE OF THE MULTIPLE DATES OR THE PERIOD OVER WHICH THE PAY MENT TOWARD THE SAME STANDS MADE. EITHER THE POSSESSION STOOD ALLOWED TO THE ASSESSEE PRIOR TO THE PURCHASE ON 4/5/2005 (THOUGH THE EXACT DATE WOULD NEED TO BE SPECIFIED) OR ONLY ON PURCHASE, FOR S. 2(47)(V) TO BE APPLICABLE IN THE FACTS OF THE CASE OR NOT, AND THERE IS NO QUESTION OF THE ASSET BEING PARTLY SHORT-TERM AND PARTLY LONG-TERM. ENTERING IN TO CONTRACTS, IN THE NATURE OF `AGREEMENTS TO SELL, IS A COMMON, USUAL PRACTICE I N THE PURCHASE/SALE OF IMMOVABLE PROPERTY, WITH THE PARTIES BINDING THEMSELVES TO A CERTAIN CONDUCT/PERFORMANCE, AND PROVIDING FOR COMPLETION OF THE TRANSACTION WITHIN A STIPULATED TIME PERIOD. HOWEVER, UNLESS IT IS SPECIFICALLY EXHIBITED THAT THE POSSES SION STOOD INDEED ALLOWED TO IT PRIOR TO ITS PURCHASE, THE ASSESSEE HAS NO CASE, WHICH IS WITHOU T EVIDENCE WHATSOEVER. IN FACT, EVEN HERE WE FIND THAT THE ASSESSEE HAD ENTERED INTO TWO SUCH AGREEMENTS; THE LATTER BEING PER DOCUMENT NO. 4479 OF 2004, DATED 04/11/2004, AGAIN, DULY REGISTERED. ANY PAYMENT/S MADE IN PURSUANCE THERETO, WHICH IN THE INSTANT CAS E IS CLAIMED TO BE OVER 50% OF THE TOTAL PURCHASE CONSIDERATION, WOULD ONLY STAND TO B E AN ADVANCE, AND NOT OPERATE TO DEEM A PART OF THE CAPITAL GAINS AS LONG-TERM. THE ASSES SEES CASE IS DE HORS ANY EVIDENCE AS ALSO MISCONCEIVED. I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 4 3.3 THE ASSESSEE HAS BEFORE US ALSO NOT RAISED ANY CONTENTION WITH REGARD TO THE SECOND GROUND OF REJECTION OF ITS CLAIM BY THE LD. CIT(A), I.E., OF THE SAME BEING NOT ADMISSIBLE IN VIEW OF IT BEING NOT MADE PER A RETURN, I.E., AS PRESCRIBED BY LAW. IN OUR VIEW, HOWEVER, HE HAVING ALREADY ADMITTED THE ASSESSEES ADDITIONA L EVIDENCE IN THE FORM OF THE CDA 832 OF 2004, DATED 10/3/2004, HE HAS CONSIDERED THE ASSESSEES SAID CLAIM, WHICH IS IN EFFECT ONLY A MODIFICATION OF ITS EARLIER CLAIM. I N FACT, THIS WAS DESPITE THE AOS OBJECTION TO THE SAME AS QUALIFYING AS AN ADDITIONAL EVIDENCE , WHICH DECISION THE REVENUE HAS NOT CHALLENGED BEFORE US. HOWEVER, THE QUESTION OF ACCE PTANCE OF THE CLAIM, EVEN WHERE ADMITTED, ARISES ONLY ON IT BEING EVIDENCED, WHILE WE FIND IT TO BE NOT. 3.4 WE, FOR THE REASONS AFORE-STATED, CONFIRM T HE REJECTION OF THE ASSESSEES CLAIM BY THE REVENUE. WE DECIDE ACCORDINGLY. 4. THE OTHER ISSUES RAISED BY THE ASSESSEE PER ITS GROUNDS OF APPEAL RELATES TO THE NON- ALLOWANCE OF THE VARIOUS DEDUCTIONS CLAIMED BY IT I N THE COMPUTATION OF SHORT-TERM CAPITAL GAINS ON THE TRANSFER OF THE SAID LAND VIDE ITS RETURN FILED ON 4.6.2009. THE FIRST DEDUCTION AGITATED BY THE ASSESSEE BEFORE US IS IN RESPECT OF BROKERAGE, WHICH STANDS CLAIMED AT ` 38.30 LAKHS, AND ALLOWED AT ` 7 LAKHS BY THE AO, I.E., AT THE RATE OF 2% OF THE SALE CONSIDERATION, AT WHICH IT STANDS CONFIRMED BY THE FIRST APPELLATE AUTHORITY. THE AO EXAMINED THE MATTER IN DETAIL; THE BROKERAGE CLAIM WORKING TO A WHOPPING 10.94% OF THE SALE CONSIDERATION, I.E., AS AGAINST THE NORMAL BRO KERAGE RATE OF 1% TO 2%. FIRSTLY, THE PAYMENTS TO `FEMINA, WHICH WERE FOR A TOTAL OF ` 22.30 LAKHS, WERE MADE AFTER A LAPSE OF THREE MONTHS. NORMALLY, NO BROKER WOULD WAIT EVEN FOR 15 - 20 DAYS, WHEREAT THE OTHER PAYMENTS AGGREGATING TO ` 10 LAKHS WERE MADE, NOT TO SPEAK OF 3 - 4 MONTHS. S ECONDLY, IT WAS OBSERVED BY HIM THAT THE ASSESSEE HAD PURCHASED NOT LESS THAN 23 PROPERTIES BETWEEN 23.6.2007 AND 16.2.2008. THE BROKERAGE CLAIMED COUL D THUS BE IN RESPECT OF THESE PURCHASES. IN FACT, THE ASSESSEE HAD PURCHASED FOU R PROPERTIES AT A CONSIDERATION OF ` 90 LACS ON 8.10.2007, ON WHICH DATE A PAYMENT OF ` 6.80 LAKHS WAS MADE TO FEMINA. THE SAME WAS, THUS, APPARENTLY TOWARD THE SAID PURCHASE . THE PAYMENT TO SHRI M.M.FAROOK, I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 5 WHICH WAS AT ` 2 LAKHS ON 7.6.2007, I.E., IMMEDIATELY AFTER THE SA LE UNDER REFERENCE, WAS CONSIDERED BY HIM AS BEING, IN ALL LIKELIHOOD, THE ACTUAL BROKERAGE PAID FOR THE SAID SALE TRANSACTION. THE ASSESSEE, VIDE QUESTIONNAIRE DATED 15.10.2009, WAS REQUIRED TO FURNISH THE NAMES AND COMPLETE ADDRESSES OF THE BROKERS WHO HAD BROKERED THE SALE OF THE LAND AT KADAKAMPALLY, ALSO STATING THE MODE OF PAYMENT AND PRODUCING THE CONFIRMATION LETTERS FROM THE BROKERS. THE ASSESSEE FAILING TO COMPLY WI TH THE SAME, DESPITE REQUESTING FOR AND BEING ALLOWED TIME FOR THE SAME, THE AO FOUND T HE ASSESSEES CASE AS COMPLETELY UNSUPPORTED BY ANY EVIDENCE, AND ALLOWED IT BROKERA GE BY ESTIMATING THE SAME AT 2%. THE SAME STOOD CONFIRMED IN APPEAL, WITH THE LD. CI T(A) NOTING THAT THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE EVEN AT THE APPELLAT E STAGE, SO THAT NO INTERFERENCE WITH THE DECISION OF THE AO IN THE MATTER IS CALLED FOR. AG GRIEVED, THE ASSESSEE IS IN APPEAL. 5. NO ARGUMENTS WHATSOEVER WERE RAISED BY THE ASSES SEE BEFORE US IN RESPECT OF ITS RELEVANT GROUND (GROUND NO. 3). THE FACTS, AS STAT ED IN THE ORDERS OF THE AUTHORITIES BELOW, HAVE NOT BEEN DISPUTED, AND WHICH ARE SELF-S PEAKING, AND LEAD TO AN UNMISTAKABLE INFERENCE OF THE ASSESSEE AS HAVING MADE AN INFLATE D CLAIM OR, IN THE VERY LEAST, ITS CLAIM BEING UNSUBSTANTIATED IN THE MAIN. THE NORMAL BROK ERAGE RATE, AS OBSERVED BY THE AO, IS IN THE RANGE OF 1% TO 2%. IN FACT, THE RATE, AS IN ANY COMPETITIVE TRADE, IS NOT FIXED OR A STANDARDIZED, AND DECLINES WITH THE INCREASE IN VOL UME; THE FIXED COSTS INCURRED BY THE BROKER, I.E., IN MAINTAINING HIS ESTABLISHMENT AS W ELL AS IN NEGOTIATING THE DEAL, REMAINING THE SAME. IN FACT, WE ARE UNABLE TO COMPREHEND, AND THE ASSESSEE HAS NOWHERE EXPLAINED, AS TO WHY AS MANY AS FIVE BROKERS WERE INVOLVED IN THE DEAL, WHICH IS IN ESSENCE A SINGLE TRANSACTION. EVEN IF TWO BROKERS WERE INVOLVED, I.E ., ONE FROM EACH SIDE, THE SELLER AND THE PURCHASER, BOTH OF THEM WOULD PAY BROKERAGE ONLY TO THEIR RESPECTIVE BROKER. THE PAYMENTS MADE BY THE ASSESSEE ARE IN THE MONTH OF S EPTEMBER AND OCTOBER, 2007, I.E., 3 TO 4 MONTHS AFTER THE SALE, WHICH IS NOT UNDERSTAND ABLE, AND NEITHER HAS THE ASSESSEE ADVANCED ANY EXPLANATION TOWARD THE SAME. AGAIN, TH ERE IS NO EXPLANATION BY THE ASSESSEE, WHO HAS FAILED TO EVEN FURNISH CONFIRMATI ONS FROM THE BROKERS TO WHOM THE BROKERAGE HAS BEEN `PAID, FOR THE REASON OF THE BR OKERAGE BEING INCURRED AT AN EXORBITANT COST OF ABOUT 11% OF THE TRANSACTION VALUE. NO DOUB T, THE ASSESSEE CONTENDS THAT THE I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 6 NORMAL BROKERAGE RATE VARIES FROM 6% TO 7%, SO THAT THE SAME OUGHT TO HAVE BEEN ADOPTED BY THE AO. HOWEVER, ITS SAID CLAIM IS AGAIN DE HORS ANY DIRECT OR EVEN INDIRECT MATERIAL. RATHER, THAT ITSELF IS AN ADMISSION BY T HE ASSESSEE OF ITS CLAIM BEING INFLATED TO THE EXTENT OF 4% TO 5%. UNDER THE CIRCUMSTANCES, W E FIND NO MERIT WHATSOEVER IN THE ASSESSEES CLAIM AND, CONSEQUENTLY, THE ORDERS OF T HE REVENUE AUTHORITIES ON THE RELEVANT GROUND ARE UPHELD. WE DECIDE ACCORDINGLY. 6. THE NEXT EXPENDITURE DISALLOWED, WHICH IS EFFECT ED BY THE AO IN PART, IS IN RESPECT OF TRAVELLING, CLAIMED AS TOWARD THE SALE OF THE LA ND UNDER REFERENCE, AT ` 3 LAKHS, AND ALLOWED BY THE AO AT ` 2 LAKHS, AT WHICH AMOUNT IT STANDS CONFIRMED BY THE LD. CIT(A), SO THAT THE ASSESSEE IS IN APPEAL. THE SAID EXPENDITUR E STANDS CLAIMED IN RESPECT OF TO AND FRO TRAVELLING FROM DUBAI, WHEREAT THE ASSESSEE WAS RES IDING AND WORKING AT THE RELEVANT TIME, UNDERTAKEN OSTENSIBLY FOR THE PURPOSE OF THE SALE. THE BASIS FOR THE PART DISALLOWANCE (1/3 RD ) IS THAT THE ASSESSEE COULD NOT ESTABLISH THAT THE ENTIRE EXPENDITURE WAS INCURRED FOR THE PURPOSE OF THE SALE OF THE PROPERT Y UNDER REFERENCE. WE FIND MUCH MERIT IN THE REVENUES CASE, AS IT IS ONLY THE EXPENDITUR E INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH THE TRANSFER OF THE CAPITAL ASSET T HAT IS DEDUCTIBLE IN THE COMPUTATION OF CAPITAL GAINS U/S. 48(1). THE ONUS TO ESTABLISH TH AT THE EXPENDITURE WAS INCURRED SOLELY FOR THE PURPOSE OF THE TRANSFER IS SQUARELY ON THE ASSE SSEE, AND WHICH HE HAS FAILED TO BEFORE EITHER OF THE REVENUE AUTHORITIES OR EVEN BEFORE US . IN FACT, THE FACT THAT THE ASSESSEE WAS ACTIVELY INVOLVED IN PURCHASE OF VARIOUS PROPERTIES AT THE RELEVANT TIME, FURTHER LENDS CREDENCE TO THE INFERENCE OF THE WHOLE OF IT BEING NOT FOR THE STATED PURPOSE. THE ASSESSEE CLAIM BEING NOT ESTABLISHED, WE FIND NO BASIS OR RE ASON TO INTERFERE WITH THE IMPUGNED ORDER ON THIS GROUND, WHICH THUS GETS CONFIRMED. W E DECIDE ACCORDINGLY. 7. THE NEXT GROUND, I.E., GROUND NO. 5, OF THE ASSESSEES APPEAL RELATES TO THE DISALLOWANCE OF ITS CLAIM IN RESPECT OF THE `COST O F IMPROVEMENT ON THE SALE OF HIS PROPERTY AT PARUTHIPARA, WHICH IS CLAIMED IN THE SU M OF ` 2 LAKHS. THE SAME WAS NOT ACCEPTED IN THE ABSENCE OF ANY EVIDENCE BEING FURNI SHED BY THE ASSESSEE IN SUBSTANTIATION OF ITS CLAIM, WITH THE AO RATHER POINTING OUT THAT NO SUCH PAYMENT STANDS REFLECTED IN THE I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 7 `RECEIPT AND PAYMENT ACCOUNT FOR THE FINANCIAL YEA R 2004-05, DURING WHICH THE SAID IMPROVEMENT COST IS CLAIMED TO HAVE BEEN INCURRED B Y THE ASSESSEE. THE SAME STOOD CONFIRMED BY THE LD. CIT(A) ON THAT BASIS, FURTHER NOTING THAT THE APPELLANT COULD NOT FURNISH ANY EVIDENCE EVEN AT THE APPELLATE STAGE. AGGRIEVED, THE ASSESSEE IS IN APPEAL. 8. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE GROUND WAS NOT SPECIFICALLY ARGUED BY THE LD. AR BEFORE US. THE AP PELLANTS CASE, AS DISCERNED FROM THE PERUSAL OF ITS LENGTHY GROUND, IS THAT THE IMPROVEM ENT EXPENDITURE WAS INCURRED DIRECTLY BY HIM AND, FURTHER, FINDS REFLECTION IN HIS `RECEI PT AND PAYMENT ACCOUNT FOR THE RELEVANT YEAR. THIS CLAIM, HOWEVER, IS IN DIRECT CONTRADICTI ON TO WHAT STANDS OBSERVED BY THE AO, AND CONFIRMED BY THE LD. CIT(A) ON THE BASIS OF THE SAME BEING NOT CONTROVERTED, SO THAT THE MINIMUM THAT THE ASSESSEE OUGHT TO HAVE DONE WA S TO PLACE THE SAID ACCOUNT ON RECORD, IN THE ABSENCE OF WHICH THERE IS NO BASIS F OR REVERSING THE DECISION BASED ON THE CONCURRENT FINDING/S OF THE AUTHORITIES BELOW. FUR THER, THE ASSESSEE, AS WOULD BE APPARENT, IS NOT MAINTAINING ANY DAY TO DAY ACCOUNT S, AND THE EXPENDITURE STANDS CLAIMED ON AN ESTIMATE BASIS. EVEN SO, THE LEAST HE IS EXP ECTED TO STATE AND FURNISH IS THE DETAILS OF THE `IMPROVEMENT/S EFFECTED, ALONG WITH THE APPROX IMATE COST THEREON; IT HAVING INCURRED THE SAME DIRECTLY. ALSO, WHERE SO REQUIRED, OR EVEN SUO MOTU , THE DETAILS OF THE PAYEE/S, I.E., TO WHOM THE PAYMENT/S HAVE BEEN MADE. CLEARLY , SUCH PRIMARY DETAILS ARE ABSENT, SO THAT THE REVENUES STAND OF THE ASSESSEES IMPUGNED CLAIM BEING TOTALLY UNSUBSTANTIATED, SO THAT IT IS LIABLE TO BE REJECTED, CANNOT BE FAUL TED WITH. MERELY BY STATING THAT IT HAD INCURRED SOME EXPENDITURE ON THE TWO FLOORS CONSTIT UTING THE PROPERTY, WHICH IS ALL WHAT THE ASSESSEE HAS STATED, WOULD NOT BE SUFFICIENT FO R THE PURPOSE. UNDER THE CIRCUMSTANCES, WE, THEREFORE, DECLINE TO INTERFERE WITH THE IMPUGN ED ORDER ON THIS GROUND. WE DECIDE ACCORDINGLY. 9. VIDE ITS GROUND NO. 6, THE ASSESSEE CLAIMS FOR A LLOWANCE OF COST OF LIVING BY AT LEAST 4.5% TO EACH CENT; IT HAVING SOLD 100 CENTS O F LAND, SO THAT IT WOULD COVER REASONABLE COST OF LIVING. THE SAID GROUND WAS NOT PRESSED BY THE ASSESSEE BEFORE US. THE SAME HAVING BEEN ALSO AGITATED BEFORE THE FIRST APPELLAT E AUTHORITY (VIDE GROUND NO. 3), WE FIND THAT THE ASSESSEE IS ALLUDING TO THE COST INFLATION INDEX, FOR WHICH THE `COST OF ACQUISITION I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 8 AND THE `COST OF IMPROVEMENT ARE TO BE ADJUSTED IN COMPUTING THE CAPITAL GAINS IN RESPECT OF A LONG-TERM CAPITAL ASSET. AS RIGHTLY HELD BY BO TH THE AUTHORITIES, THE CLAIM IS INADMISSIBLE AS THE RELEVANT ASSET, I.E., 100 CENTS OF LAND AT KADAKAMPALLY, IS A SHORT-TERM CAPITAL ASSET IN THE ASSESSEES HAND, SO THAT HIS C LAIM IS WITHOUT THE SANCTION OF LAW. WE DECIDE ACCORDINGLY. 10. VIDE GROUND NO. 7, THE ASSESSEE PRAYS FOR GRANT OF OPPORTUNITY TO IT TO PRODUCE THE ORIGINAL PROOF OF PAYMENT OF TAX, WITH THE DIRECTIO N (TO THE AUTHORITIES BELOW) TO GIVE CREDIT FOR THE SAME, I.E., AFTER VERIFICATION. THE SAID GROUND WAS ALSO NOT SPECIFICALLY PRESSED BEFORE US. EVEN SO, WE FIND NO PREJUDICE T O THE REVENUES CAUSE IN ALLOWING THE SAID GROUND IN-AS-MUCH AS THE SAME ONLY PLEADS FOR GRANT OF OPPORTUNITY TO PRODUCE THE ORIGINAL PROOF OF PAYMENT/S OF TAX. WE, ACCORDINGLY , DIRECT THE AO TO, WHILE GIVING EFFECT TO THIS ORDER, AFFORD AN OPPORTUNITY TO THE ASSESSE E TO DO SO, AND IF SO, DEAL WITH THE SAME IN ACCORDANCE WITH LAW AFTER DUE VERIFICATION (ALSO REFER PARA 11). WE DECIDE ACCORDINGLY. 11 THE EIGHTH AND THE LAST GROUND OF THE ASSESSEE S APPEAL IS ESSENTIALLY IN THE NATURE OF A PRAYER FOR TAKING A LENIENT VIEW IN THE MATTER , IN VIEW OF THE FINANCIAL AND HEALTH PROBLEMS BEING FACED BY THE ASSESSEE, I.E., IN THE INTEREST OF JUSTICE. THE RENDERING OF JUSTICE, IT MAY BE APPRECIATED, IN THE CONTEXT OF T HE TRIBUNAL, OR ANY OTHER APPELLATE AUTHORITY FOR THAT MATTER, WOULD BE TO, ON REVIEW, CORRECT ANY MISTAKES/ERRORS EITHER OF FACT OR OF LAW, THAT MAY HAVE, IN ITS VIEW, BEEN COMMITT ED BY THE REVENUE AUTHORITIES IN THE ADMINISTRATION OF THE STATUTE UNDER REFERENCE. THE ASSESSEES CASE, AS WOULD BE APPARENT FROM THE FOREGOING, IS PRINCIPALLY UNSUBSTANTIATED, AND WHICH IT FAILED TO IMPROVE IN ANY MANNER EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE US, WITH MOST OF THE GROUNDS BEFORE US, RATHER, BEING NOT PRESSED BY THE LD. AR IN FACT, IT IS ON ACCOUNT OF SUCH LENIENCY ONLY THAT THE ASSESSEE HAS BEEN GRANTED AN OTHER OPPORTUNITY TO FURNISH THE PROOF OF PAYMENT/S OF TAX, DESPITE A SAME GROUND HAVING B EEN RAISED BEFORE THE LD. CIT(A) (AS ADDITIONAL GROUND # 8), AND WHO DECIDED THE SAME ON MERITS AFTER CALLING FOR A REPORT FROM THE ASSESSING OFFICER (REFER PARA # 13 OF THE IMPUG NED ORDER). THE GROUND, THUS, HAS NOT MUCH BEARING IN LAW. WE DECIDE ACCORDINGLY. I.T.A. NO. 541/COCH/2010 (FOR AY 2008-09) 9 12. THE ASSESSEE HAS ALSO MOVED A STAY PETIT ION. HOWEVER, AS WE HAVE DISPOSED OF THE ASSESSEES APPEAL, THE SAME BECOMES UNFRUCTUOUS . NO SEPARATE ORDER IN ITS RESPECT IS, CONSEQUENTLY, BEING PASSED. 13. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED, AND ITS STAY PETITION IS DISMISSED AS UNFRUCTUOUS. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 26TH JULY, 2011 GJ COPY TO: 1. SRI MOHAMMED RAFI SAYED, RAJI MANZIL, KADAKKAL, MANCODE VILLAGE, MATHIRA MURI, MATHIRA P.O. KOTTARAKKARA TALUK, KOLLAM (DIST.) . PIN: 691 536. 2. THE ASSISTANT DIRECTOR OF INCOME-TAX, (INV.), TR IVANDRUM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, KO CHI. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE .