ITO, New Delhi V. Sh. Kishore Kapoor, New Delhi

ITA 5599/DEL/2014

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9692 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 15-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift; Additional evidence; Cost of acquisition

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI BEFORE SMT DIVA SINGH , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 5599/DEL/2014 (ASSESSMENT YEAR: 2010 - 11 ) ITO, WARD - 5(4), NEW DELHI VS. KISHORE KAPOOR, B - 2/615, VARUN APARTMENTS, SECTOR - 9, ROHINI, NEW DELHI PAN: AADPK4344A (APPELLANT) (RESPONDENT) REVENUE BY : SHRI AMIT JAIN, SR. DR ASSESSEE BY: NONE DATE OF HEARING 30/07 / 2018 DATE OF PRONOUNCEMENT 1 3 / 0 9 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT(A) - VIII, NEW DELHI DATED 07.07.2014 FOR THE ASSESSMENT YEAR 2010 - 11 , WHEREIN G GRIEVANCE OF THE REVENUE IS THAT THE LD CIT(A) HAS DELETED THE ADDITION OF RS. 37 LAKHS AND ALSO ADMITTED THE ADDITIONAL EVIDENCES WITHOUT OBTAINING REMAND REPORT. FURTHER, THE LD CIT ( A) ALSO ALLOWED THE CLAIM OF THE ASSESSEE WITH RESPECT TO CAPITAL GAIN BY ALLOWING THE INDEXED COST OF ACQUISITION . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE INDEXED COST OF ACQUISITION WHICH WAS ALREADY ALLOWED IN PREVIOUS YEAR AND THE VALUE OF LAND STANDS AT NIL IN THE BEGINNING .? 2 WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE COST OF 100 SQ. YARDS SHORT LAND SOLD BY THE ASSESSEE.? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CAS E & IN LAW, THE LD. CIT (A) ERRED IN ACCEPTING THE CREDITWORTHINESS OF THE DONOR OF GIFT AMOUNTING TO RS. 37 LAKHS WITHOUT ANY DOCUMENTARY EVIDENCES. PAGE | 2 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT (A) ERRED IN /NOT PROVIDING A NY OPPORTUNITY TO THE AO BEFORE ACCEPTING THE ADDITIONAL EVIDENCES AND HENCE VIOLATION OF RULE 46A HAS BEEN MADE.? 5. THAT THE ORDER OF THE LD. CIT (A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 6. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS IN INDIVIDUAL , FILED HIS RETURN OF INCOME ON 06.12.2010 DECLARING INCOME OF RS. 150000/ - . THE AIR INFORMATION SHOWS THAT ASSESSEE HAS DEP OSITED RS. 54 LAKHS IN HIS SAVINGS BANK ACCOUNT WITH KARNATAKA BANK. A SSESSEE TRIED TO EXPLAIN THE ABOVE DEPOSIT BY SUBMITTING A CHART SHOWING THAT RS. 48 LAKHS IS RECEIVED FROM MR. HUKUM CHAND KHATAIRE, RS. 175000/ - FROM HANSRAJ CHOUDH A RY AND RS. 37 LAKHS FROM MR. DINESH KAPOOR. IT WAS FURTHER STATED THAT ASSESSEE HAS ENTERED INTO AN AGREEMENT FOR SALE OF LAND OF ONE BIGHA TO HANSRAJ CHOUDH A RY AND RECEIVED RS. 55 LAKHS IN CASH ON 22.08.2008 . FURTHER, IT WAS STATED THAT THE ACTUAL CONSIDERATION WAS RS. 65 L AKHS SO ASSESSEE STATED THAT ASSESSEE MAY BE ASSESSED UNDER THE HEAD CAPITAL GAIN FOR THAT SUM. THE LD ASSESSING OFFICER CONSIDERED THAT ACTUAL SUM RECEIVED BY THE ASSESSEE IS RS. 1.30 CRORES THEREFORE, IT WAS ADDED. LD AO DID NOT GIVE ANY BENEFIT OF T HE INDEXED COST OF ACQUISITION ALSO. WITH RESPECT TO RS. 37 LAKHS THE ASSESSEE STATED THAT IT IS GIVEN BY HIS BROTHER AS GIFT, HOWEVER , HE COULD NOT PROVE THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THEREFORE, ADDITION WAS MADE. 4. THE ABOVE ADD ITIONS WERE CHALLENGED BEFORE THE LD CIT ( A). THE LD CIT (A) HELD THAT ASSESSEE HAS RECEIVED ONLY RS 88.50 L AKHS ONLY AGAINST THE SALE OF 1.9 BIGHA OF LAND. THE SECOND PORTION OF LAND WAS DISPUTED AND THERE WERE CONDITIONS FROM THE BUYER. WITH RESPECT TO THE CAPITAL GAIN THE LD, CIT ( A) GRANTED DEDUCTION OF THE INDEXED COST OF ACQUISITION AND THE AMOUNT FORFEITED AS DEDUCTION . HE HELD THAT FOR RS 88.50 LAKHS SALE OF LAND THE COST F ACQUISITION IS NIL. HE FURTHER HELD THAT THE AMOUNT FORFEITED BY THE ASSESSEE OF RS 88 LAKHS IS DISPUTED BEFORE HON DELHI HIGH COURT AND TAXABILITY WILL ARISE ON THE DECISION OF THE HONOURABLE HIGH PAGE | 3 COURT. REGARDING GIFT, HE ACCEPTED THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE FROM HIS BROTHER RECEIVES IT . 5. THE LD DR VEHEMENTLY STATED THAT THE LD CIT ( A) HAS ALLOWED THE CLAIM OF THE ASSESSEE AND DELETED THE SUBSTANTIAL ADDITION BECAUSE OF CAPITAL GAIN AS WELL AS GIFT RECEIVED FROM HIS BROTHER AFTER CONSIDERING THE NEW DOCUMENTS AND ARGUMENTS WITHOUT RECORDING REASON S REQUIRED UNDER RULES 46A OF THE INCOME TAX RULES. IT WAS FURTHER STATE THAT NO REMAND REPORT WAS ASKED FROM AO. THEREFORE, THE ORDER OF THE LD CIT ( A) IS LIABLE TO BE VACATED. 6. DESPITE NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE. FURTHER, PRIOR TO TH IS DATE OF HEARING THE APPEAL IS FIXED FOR THREE TIMES, HOWEVER, NONE APPEARED. THEREFORE, THE ISSUE IS DECIDED ON MERITS OF THE CASE AS PER INFORMATION AVAILABLE ON RECORD. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE LD CIT (A) WHILE DECIDING THE CAPITAL GAIN ON SALE OF 1.9 BIGHA HAS TAKEN THE FINDING FROM THE ASSESSMENT ORDER FOR AY 2009 - 10 WHEN HE WAS AN AO. FURTHER, WITH RESPECT TO CAPITAL GAIN ON SALE OF TWO - BIGHA LAND FOR RS 88.50 LAKHS HE HAS HELD IT TO BE TAXABLE AND COMPUTED THE TAX THEREON. HE ALSO CONSIDERED THE DISPUTE PENDING BEFORE THE HONOURABLE DELHI HIGH COURT. WHILE SHRI ASHOK KR. JAIN FORFEITED GRANTING DEDUCTION OF RS. 35 LAKHS , HE HAS CONSIDERED THE AGREEMEN T . HE FURTHER GRANTED DEDUCTION OF RS. 6.50 LAKHS FOR SHORTAGE OF LAND WITH WHICH NO FAULT CAN BE FOUND . FURTHER, HE ALSO CONSIDERED THE REVISED AGREEMENT AND FRESH AGREEMENT TO SALE WHILE WORKING OUT CAPITAL GAIN TAX LIABILITY. THEREFORE, WE DO NOT FIND A NY INFIRMITY IN THE ORDER OF THE LD CIT (A) IN COMPUTATION OF CAPITAL GAIN. ACCORDINGLY GROUND NO 1 & 2 OF THE APPEAL ARE DISMISSED. 8. IN GROUND NO 3 WHILE DELETING THE ADDITION OF RS. 37 LAKHS HE FURTHER HELD THAT MR. DINESH KAPOOR RECEIVED RS. 37 LAKHS AS SALE CONSIDERATION OF PROPERTY SOLD AND SUCH SALES REALIZATION WAS GIFTED TO THE ASSESSEE. THE ASSESSING OFFICER NOTED THAT SHRI DINESH HAS FILED RETURN OF ONLY RS. 150000/ - . THE ASSESSEE DID NOT STATE THAT RS. 37 LAKHS IS OUT OF THE SALE PROCEEDS OF THE LAND. FURTHER, THE LD CIT (A) ALSO DID NOT CORROBORATE THE PAGE | 4 DATE OF GIFT AND RECEIPT OF SUM BY SHRI D INESH KAPOOR . THERE IS NO RECORDING OF FINDING ON THE ISSUE OF GENUINENESS OF THE GIFT AND ANY OCCASION TO GIVE GIFT OF RS 37 LAKHS BY A PERSON EARNING TAXABLE INCOME OF ONLY RS. 1.50 LAKHS. IN VIEW OF THIS WE SET ASIDE THE GROUND NO 3 OF THE APPEAL OF THE REVENUE BACK TO THE FILE OF THE LD AO WITH A DIRECTION TO THE ASSESSEE TO SHOW WITH DOCUMENTARY EVIDENCES ABOUT THE DATES CORROBORATING THE AMOUNT OF SALES CONSIDERATION OF LAND RECEIVED BY MR . DINESH WITH THE GIFT AND ALSO TO PROVE THE GENUINENESS AND OCCASION FOR THE GIFT . THEREFORE GROUND NO THREE OF THE APPEAL IS ALLOWED WITH ABOVE DIRECTION. 9. WITH RESPECT TO GROUND NO 4 OF THE APPEAL, THE LD DR COULD NOT SHOW US WHAT ARE THOSE ADDITIONAL EVIDENCES, WHICH ARE CONSIDERED BY THE LD CIT (A), AND WHAT IS THE VIOLATION OF RULE 46A OF THE IT RULES 1962. HENCE, THIS GROUND OF APPEAL IS DISMISSED. 10. GROUND NO 5 - 7 ARE GENERAL IN NATURE AND HENCE DISMISSED. 11. ACCORDINGLY, APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 / 0 9 / 2018 . - S D / - - S D / - ( DIVA SINGH ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 / 0 9 / 2018 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI