SHRI ARPIT KHAIRARI, JAIPUR V. INCOME TAX OFFICER, WARD-2-2, JAIPUR

ITA 613/JPR/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2268 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA J DHK
• Assessee Lawyers: R S POONIA
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Additional evidence; Corroborative evidences; Accommodation entries; Reason to believe; Reassessment proceedings; Set aside; Capital Gains
• Section: 50C; 54F; 133(6); 64; 48; 13; 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B , JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE : SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 613/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI ARPIT KHAIRARI 116/1, HARI MARG, CIVIL LINES JAIPUR CUKE VS. THE ITO WARD- 2(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: BAVPK 5368 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI R.S. POONIA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY : MS.CHANCHAL MEENA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/02/2020 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /03/2020 VKNS'K@ ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A)-1, JAIPUR DATED 01-02-2018 FOR THE ASSESSME NT YEAR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN LAW AND FACT IN CONFIRMING ISSUANCE OF NOTICE UU147/148 BY THE AO WITHOUT HAVING JURISDICT ION, KINDLY QUASH THE ENTIRE PROCEEDINGS WHICH INITIATED WITHOUT JURISDICTION. ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 2 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) ERRED IN LAW AND FACT IN CONFIRMING ISSUANCE OF NOTICE U/S 148/147 BY THE AO WITHOUT REASONS TO BEL IEVE, WITHOUT HAVING ANY MATERIAL IN HIS POSSESSION, AND USING SECTION 50C WHICH IS NOT APPLICABLE IN CASE OF SALE BY AGREEMENT ARBITRARILY, SO KINDLY QUASH THE ENTIRE P ROCEEDINGS ON THE BASIS OF SAID NOTICE. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) ERRED IN LAW AND FACT IN CONFIRMING THE ORDE R DISPOSING OFF OBJECTION RAISED BY THE ASSESSEE ERRO NEOUSLY. SO KINDLY QUASH THE ENTIRE PROCEEDINGS AND CONSEQUE NTIAL ASSESSMENT ORDER. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) ERRED IN LAW AND FACT IN CONFIRMING THE ADDI TION OF RS. 25,69,606/- (RS. 26,27,403 MINUS RELIEF GRANTED RS. 57,797) AS MADE BY THE AO ON ACCOUNT OF LONG TE RM CAPITAL GAIN (LTCG' FOR SHORT) AS AGAINST RS. 1, 93,215/- DECLARED BY THE ASSESSEE BY REJECTING THE DEDUCTION U/S 54F OF THE ACT OF RS. 23,76,391/- AS CLAIMED BY THE ASS ESSEE. THE REJECTION SO MADE AND CONFIRMED BY THE LD. CIT(A) B EING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE, THE APPELLANT BE HELD ENTITLED TO THE DEDUCTION U/S 54F AS CLAIMED. 2.1 THE GROUND NO. 1 AND 2 OF THE ASSESSEE ARE REGA RDING THE VALIDITY OF INITIATION OF PROCEEDINGS U/S 147/148 OF THE ACT . 2.2 THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RET URN OF INCOME ON 24-03-2010. THEREAFTER THE AO RECEIVED INFORMATION ABOUT THE TRANSFER OF IMMOVABLE PROPERTIES BY THE ASSESSEE DURING THE FIN ANCIAL YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION. THE AO CONDUCT ED AN ENQUIRY BY ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 3 ISSUING NOTICE U/S 133(6) OF THE ACT CALLING FOR CE RTAIN INFORMATION FROM THE ASSESSEE. THEREAFTER THE AO ISSUED NOTICE U/S 1 48 OF THE ACT ON 30-03- 2016 AFTER RECORDING THE REASONS THAT INCOME ON ACC OUNT OF CAPITAL GAIN ARISING FROM TRANSFER OF THE IMMOVABLE PROPERTIES H AS ESCAPED ASSESSMENT. IN THE REASSESSMENT PROCEEDINGS, THE AO COMPUTED THE LONG TERM CAPITAL GAIN AT RS. 26,27,403/- AFTER DISALLOW ING THE CLAIM OF DEDUCTION U/S 54F OF THE ACT. THE ASSESSEE CHALLENG ED THE ACTION OF THE AO BEFORE THE LD. CIT(A) AND ALSO QUESTIONED THE VA LIDITY OF REOPENING OF THE ASSESSMENT. THE LD. CIT(A) HAS FOUND NO MERITS IN THE OBJECTION OF THE ASSESSEE AGAINST REOPENING OF THE ASSESSMENT. 2.3 BEFORE US, THE LD.AR OF THE ASSESSEE HAS SUBMI TTED THAT AS PER THE REASONS RECORDED BY THE AO, HE PROPOSED TO ASSESS T HE CAPITAL GAIN ON ACCOUNT OF TRANSFER OF IMMOVABLE PROPERTIES BY CONS IDERING THE STAMP DUTY VALUATION AND FOUND THAT CONSIDERING THE RETUR N OF INCOME FILED BY THE ASSESSEE WHEREIN THE ASSESSEE AFTER CLAIMING DE DUCTION U/S 54F OF THE ACT HAS OFFERED CAPITAL GAINS TO TAX AT RS. 1,93,2 15/-. THE LD.AR OF THE ASSESSEE REFERRED TO NOTICE ISSUED BY THE AO U/S 13 3(6) OF THE ACT PRIOR TO REASONS RECORDED BY THE AO AND SUBMITTED THAT THE A SSESSEE HAS DULY REPLIED THE SAID NOTICE BY FILING THE LETTER DATED 09-03-2016 WHEREIN THE ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 4 ASSESSEE EXPLAINED THAT THE ASSESSEE HAS DULY DISCL OSED THIS TRANSACTION IN THE RETURN OF INCOME AND ALSO CLAIMED DEDUCTION U/S 54F OF THE ACT AND REMAINING AMOUNT OF CAPITAL GAIN HAS BEEN OFFERED T O TAX. THUS THE LD.AR OF THE ASSESSEE SUBMITTED THAT WHEN THE ASSESSEE HA S DISCLOSED THE FACTS IN THE RETURN OF INCOME AFTER CLAIMING DEDUCTION U/S 5 4F OF THE ACT THEN REOPENING OF THE ASSESSMENT WITHOUT CONSIDERING THE FACTS DISCLOSED IN THE RETURN OF INCOME IS WITHOUT APPLICATION OF MIND. HE HAS FURTHER CONTENDED THAT EVEN THE APPROVAL GRANTED BY THE PR. CIT U/S 151 OF THE ACT IS WITHOUT APPLICATION OF MIND BUT MECHANICAL ONE. IN SUPPORT OF HIS CONTENTIONS, THE LD.AR OF THE ASSESSEE RELIED ON F OLLOWING DECISIONS. 1. CIT VS KELVINATOR OF INDIA LTD. (2010) 187 TAXMAN 3 12 (SC) 2. RAVINDRA KUMAR, HUF VS CIT (2019) 110 TAXMANN.COM 58 (PATNA) 3. CIT VS S. GOYANKA LIME & CHEMICAL LTD. (2015) 64 TAXMANN.COM 313(SC) 4. CIT VS S. GOYANKA LIME & CHEMICAL LTD. (2015) 56 TAXMANN.COM 390 (M.P.) THE LD.AR OF THE ASSESSEE ALSO RELIED ON THE DECISI ON OF THIS COORDINATE BENCH DATED 10-10-2019 IN THE CASE OF SHRI RAM MOHA N RAWAT VS ITO IN ITA NO. 1014/JP/2018 FOR THE ASSESSMENT YEAR 2007- 08 AND SUBMITTED THAT THE TRIBUNAL HAS HELD THAT WHEN THE REASONS R ECORDED BY THE ARE BASED ON INCORRECT AND INCOMPLETE FACTS THEN REOPEN ING IS NOT VALID AND ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 5 LIABLE TO BE QUASHED. TAKING THE SUPPORT OF THE DEC ISION, THE LD.AR OF THE ASSESSEE PLEADED THAT FACTUALLY THE REASONS RECORDE D BY THE AO ARE INCORRECT AND, THEREFORE, THE REOPENING IS NOT VALI D. 2.4 ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THA T THE ASSESSEE HAS TRANSFERRED THESE TWO PLOTS OF LANDS VIDE REGISTERE D AGREEMENT AND ALSO SHOWN SALE CONSIDERATION IN CASH EXCEPT RS. 1.00 LA C. THEREFORE, WHEN THE AO RECEIVED THE INFORMATION FROM THE DIT (I&CI) THA T THE ASSESSEE HAD SOLD THE IMMOVABLE PROPERTIES SITUATED AT PLOT NO. N-70(83), HANUMAN VATIKA-II, HEERAPURA, AJMER ROAD, JAIPUR AND PLOT NO.N-69(76), HANUMAN VATIKA-II, HEERAPURA, AJMER ROAD, JAIPUR ON 30-05-2008 TO ONE SHRI JAI PRAKASH S/O SHRI NORANG LAL AND SUB-RE GISTRAR HAS ADOPTED THE VALUE OF SALE CONSIDERATION OF THE PROPERTIES A T RS. 26,57,797/-. THE AO AFTER TAKING PRIOR APPROVAL CONDUCTED AN ENQUIRY BY ISSUING NOTICE U/S 133(6) OF THE ACT. THE AO HAS CLEARLY STATED IN THE REASONS THAT THE ASSESSEE FILED REPLY BUT NO EVIDENCE WAS FILED FOR CLAIMING DEDUCTION U/S 54F OF THE ACT OF RS.24,04,500/-. THEREFORE, THE AO WAS HAVING PRIMA FACIE REASONS TO BELIEVE THAT INCOME ASSESSABLE ON ACCOUNT OF CAPITAL GAIN HAS ESCAPED ASSESSMENT. THE LD. DR FURTHER CONTENDE D THAT THE AO HAS TAKEN INTO CONSIDERATION THE RETURN OF INCOME FILED BY THE ASSESSEE AS WELL ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 6 AS REPLY FILED BY THE ASSESSEE BUT NEITHER IN THE R EPLY NOR IN THE RETURN OF INCOME THE ASSESSEE HAS EITHER FURNISHED OR GIVEN R EFERENCE TO ANY DOCUMENTARY EVIDENCES OF INVESTMENT MADE IN THE NEW RESIDENTIAL HOUSE. THUS THE LD. DR RELIED ON THE ORDERS OF THE AUTHORI TIES BELOW. 2.5 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIALS AVAILABLE ON RECORD. DURING THE YEAR UNDE R CONSIDERATION, THE ASSESSEE HAS TRANSFERRED TWO PLOTS OF LANDS BEARING PLOT NO. N-70(83), HANUMAN VATIKA-II, HEERAPURA, AJMER ROAD, JAIPUR A ND PLOT NO.N- 69(76), HANUMAN VATIKA-II, HEERAPURA, AJMER ROAD, J AIPUR VIDE TWO AGREEMENTS TO SELL DATED 17-05-2002. IT APPEARS THA T THE STAMP DUTY AUTHORITY TOOK UP THIS MATTER FOR THE PURPOSE OF LE VYING STAMP DUTY AS THESE AGREEMENTS TO SELL WERE NOT REGISTERED WITH T HE SUB-REGISTRAR AND NO STAMP DUTY WAS PAID. THEREFORE, THIS INFORMATION WA S FORWARDED BY THE SUB-REGISTRAR TO INCOME TAX AUTHORITY. IN THE RETUR N OF INCOME, THE ASSESSEE HAS SHOWN THE SALE CONSIDERATION OF IMMOVA BLE PROPERTIES AT RS. 26.00 LACS AND AFTER CLAIMING INDEXED COST AS WELL AS DEDUCTION U/S 54F THE ASSESSEE HAS SHOWN INCOME FROM CAPITAL GAIN AT RS. 1,93,215/-. THE AO HAS RECORDED THE REASONS FOR REOPENING OF THE AS SESSMENT AS UNDER:- INFORMATION HAS BEEN RECEIVED FROM DIT(I&CI), RAJ ASTHAN, JAIPUR THAT THE ASSESSEE HAS SOLD THE IMMOVABLE PRO PERTY SITUATED AT PLOT NO. N-70(83), HANUMAN WATIKA-II, HEERAPURA, AJMER ROAD AND PLOT NO. N- ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 7 69(76), HANUMAN WATIKA-II, HEERAPURA,AJMER ROAD, JA IPUR FOR RS.NIL/- ON 03-05-2008 TO SHRI JAI PRAKASH S/O NORANG LAL, D-92 , JAIPUR. THE SUB- REGISTRAR, JAIPUR HAS ADOPTED THE SALE CONSIDERATIO N OF PROPERTY SOLD AT RS. 26,57,797/- STAMP DUTY PURPOSES. AS PER I.T. ACT, 1 961, THE HIGHER OF TWO VALUES IS TO BE ADOPTED FOR PURPOSES OF CALCULATION OF CAPITAL GAIN. AFTER TAKING PRIOR APPROVAL FROM PR. CIT I,JAIPUR NOTICE U/S 133(6) WAS SENT TO THE ASSESSEE FOR ASCERTAINING TH E TAXABILITY OF CAPITAL GAIN INCOME ON ABOVE TRANSACTION. THE LETTER SENT TO THE ASSESSEE AND IN RESPONSE TO THAT THE ASSESSEE HAS FILED REPLY IN THIS OFFICE. F ROM THE RECORD OF THIS OFFICE, IT IS SEEN THAT THE ASSESSEE HAS FILED HIS RETURN OF I NCOME ON 24-03-2010. THE ASSESSEE HAS TAKEN INDEXED COST AND CLAIMED DEDUCTI ON U/S 54F OF RS. 24,04,500/- FOR WHICH NO EVIDENCE ARE FURNISHED. TH EREFORE, THE TAXABILITY OF ABOVE TRANSACTIONS COULD NOT BE ASCERTAINED. IN VIEW OF ABOVE, I HAVE REASON TO BELIEVE THAT THE INCOME TO THE EXTENT OF RS. 26,57,797/- HAS ESCAPED ASSESSMEN T WITHIN THE MEANING OF SECTION 147 OF THE I.T. ACT, 1961. THEREFORE, IT IS A FIT CASE FOR ISSUANCE OF NOTICE U/S 148 OF I.T. ACT, 1961. IN VIEW OF THE ABOVE REASONS, IT IS REQUESTED THAT NECESSARY APPROVAL AS LAID DOWN UNDER SUB SECTION 2(2) OF THE SECTION 151 OF THE ACT, 1961 MAY KINDLY BE ACCORDED. IT IS MANIFEST FROM THE REASONS RECORDED BY THE AO THAT THE AO HAD RECEIVED INFORMATION FROM DIT (I&CI) REGARDING TRAN SFER OF THE IMMOVABLE PROPERTIES IN QUESTION BY THE ASSESSEE. F URTHER AS PER THE SAID INFORMATION, THE SALE CONSIDERATION WAS GIVEN AS NI L WHEREAS THE SUB- REGISTRAR HAS ADOPTED THE VALUE FOR STAMP DUTY PURP OSES AT RS. 26,57,797/-. THESE FACTS SHOW THAT NO STAMP DUTY WA S PAID BY THE PARTIES AT THE TIME OF THIS TRANSFER BECAUSE THE AGREEMENT TO SALE WAS NOT REGISTERED WITH THE SUB-REGISTRAR. SUBSEQUENTLY, TH E SUB-REGISTRAR VALUED THESE PROPERTIES AT RS. 26,57,797/-FOR THE PURPOSE OF STAMP DUTY. THESE ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 8 FACTS ARE NOT IN DISPUTE. THE AO THEN ISSUED NOTICE U/S 133(6) OF THE ACT TO THE ASSESSEE FOR ASCERTAINING THE FACTS ABOUT T HE TAXABILITY OF CAPITAL GAIN. IN REPLY, THE ASSESSEE HAS CLAIMED THAT HE HA S FILED THE RETURN OF INCOME AND SHOWN THIS TRANSACTION BUT CLAIMED DEDUC TION U/S 54F AS WELL AS INDEXED COST. THE REPLY OF THE ASSESSEE IS VERY BRIEF AND NOT WITH THE DETAILS OF THE DEDUCTION U/S 54F. FURTHER THE ASSES SEE HAS NOT FURNISHED ANY EVIDENCE DURING THE SAID ENQUIRY CONDUCTED BY T HE AO PRIOR TO RECORDING THE REASONS. THEREFORE, THE ASSESSEE, DES PITE THE ENQUIRY CONDUCTED BY THE AO, HAS NOT DISCLOSED THE FACTS RE GARDING THE INVESTMENT MADE BY HIM FOR PURCHASE OR CONSTRUCTION OF THE NEW RESIDENTIAL HOUSE. THIS FACT INDICATES THAT THE ASSESSEE HAS MADE THIS CLAIM WITHOUT ANY SUPPORTING EVIDENCE AND EVEN DURING REASSESSMENT PR OCEEDINGS THE ASSESSEE COULD NOT PRODUCE THE DOCUMENTARY EVIDENCE TO THE SATISFACTION OF THE AO AND THE CLAIM OF THE ASSESSEE U/S 54F OF THE ACT WAS REJECTED. THE ASSESSEE ALSO CLAIMED INDEXED COST OF ACQUISITI ON OF THESE PLOTS OF LANDS BY TAKING THE DATE OF ACQUISITION AS F.Y. 199 7-98. THE ASSESSEE HAS CLAIMED DURING THE REASSESSMENT PROCEEDINGS THAT TH ESE TWO PLOTS OF LANDS WERE ALLOTTED TO THE ASSESSEE BY JAI AMBER COOPERAT IVE HOUSING SOCIETY LTD. ON 8-06-1997. THE ASSESSEE HAS PRODUCED THE AL LOTMENT/ TRANSFER ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 9 CERTIFICATES OF THE SOCIETY AT PAGES 18 TO 21 OF AS SESSEE'S PAPER BOOK. ON BARE READING OF THESE CERTIFICATES, IT IS NOTED THA T IN THE YEAR 1997, THE ASSESSEE WAS LESS THAN 13 YEARS OLD. THE DATE OF B IRTH OF THE ASSESSEE IS 27-10-1984 AND THEREFORE, AS ON THE DATE OF ALLOTME NT, THE ASSESSEE WAS LESS THAN 13 YEARS OLD AND HE CANNOT BE THE MEMBER OF THE COOPERATIVE HOUSING SOCIETY EXCEPT IN EXTRAORDINARY CIRCUMSTANC ES OF INHERITANCE OR SUCCESSION. THEREFORE, THE GENUINENESS OF THE CLAIM OF THE ASSESSEE OF INDEXED COST IS HIGHLY DOUBTFUL. THE DOCUMENTS PROD UCED BY THE ASSESSEE APPEAR TO BE NON-GENUINE. THE LD. CIT(A) HAS REJECT ED THE OBJECTION RAISED BY THE ASSESSEE AGAINST REOPENING OF THE ASS ESSMENT IN PARA 3.1.2 AS UNDER:- 3.1.2. DETERMINATION (I) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE A PPELLANT, ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. IT IS NOTED THAT IN THE REASONS RECORDED BY THE AO FOR INITIATI NG PROCEEDINGS U/S 147 OF THE ACT, IT HAS BEEN STATED THAT THE APP ELLANT HAS CLAIMED DEDUCTION U/S 54F OF THE ACT AT RS. 23,76,3 91/- IN ITS RETURN OF INCOME FILED ON 24.03.2010, FOR WHICH NO EVIDENCE WAS FURNISHED EVEN IN ITS REPLY TO NOTICE ISSUED BY THE AO U/S 133(6) OF THE ACT AND THEREFORE, THE AO HAD REASON TO BELI EVE THAT INCOME HAS ESCAPED ASSESSMENT.I DO NOT FIND ANY MER IT IN THE SUBMISSIONS OF THE APPELLANT AS REPRODUCED ABOVE. I T IS TO BE NOTED THAT AT THE TIME OF INITIATION OF PROCEEDINGS U/S 147 OF THE ACT, THE AO IS NOT REQUIRED TO PROVE THAT THE INCOM E HAD ESCAPED ASSESSMENT AND IT IS SUFFICIENT THAT THE ASSESSING OFFICER HAD CAUSE OR JUSTIFICATION TO KNOW OR SUPPOSE THAT INCO ME HAD ESCAPED ASSESSMENT. ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 10 (II) IT MAY BE MENTIONED THAT IN THE CASE OF SHUMAN A SEN VS CIT, REPORTED IN 2012-TIOL-895-HC-DEL-IT, IT WAS HELD B Y THE HON'BLE HIGH COURT OF DELHI THAT: 'IT IS WELL-SETTLED THAT THE REASONS RECORDED U/S 1 48(2) SHOULD BE BASED ON CREDIBLE MATERIAL WHICH SHOULD H AVE A LIVE LINK OR NEXUS WITH THE BELIEF THAT THERE WAS ESCAPEMENT OF INCOME. AT THE STAGE OF RECORDING THE REASONS AND ISSUING NOTICE U/S 148, IT IS ONLY A PR IMA FACIE BELIEF OR TENTATIVE OPINION THAT NEEDS TO BE FORMED BY THE AO. HE IS NOT AT THAT STAGE REQUIRED TO MAKE AN ASSESSMENT OR RECORD FIRM OR FINAL CONCLUSIONS. THE BELIEF SHOULD HOWEVER BE HELD IN GOOD FAITH AND OBJECTIVEL Y; IT CANNOT BE A MERE PRETENCE. THE MATERIAL ON THE BASI S OF WHICH THE AO FORMS THE BELIEF SHOULD NOT BE MERE GO SSIP OR RUMOUR. IT SHOULD NOT BE A BARE SUSPICION. THE RELEVANCY OF THE REASONS IS JUSTIFIABLE; THEIR ADEQ UACY OR SUFFICIENCY IS NOT. '(EMPHASIS SUPPLIED) (III) IT MAY BE MENTIONED THAT THE PROCEEDINGS U/S 147 OF THE ACT IN THE INSTANT CASE UNDER CONSIDERATION WAS INI TIATED BY THE AO ON THE BASIS OF REPORT RECEIVED FROM THE OFFICE OF DIT (MCI), JAIPUR AND IN THE CASE OF ANKIT AGROCHEM (P. ) LTD. VS JCIT [2018] 89 TAXMANN.COM 45 (RAJASTHAN), IT WAS HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT OF RAJASTHAN THAT THE PROCEEDINGS INITIATED U/S 147 OF THE ACT ON THE BAS IS OF REPORT RECEIVED FROM DIT (INV.) WERE VALID. THE RELEVANT E XTRACTS ARE BEING REPRODUCED AS UNDER: AS PER EXPLANATION 2(B) TO SECTION 147, WHERE A RE TURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS UNDERSTATED THE INCOME OR HAS CLAIMED THE EXCESSIVE LOSS, DEDUCTION,ALLOWANCE OR RELIEF IN THE RETURN, THE SA ME IS DEEMED TO BE CASE WHERE INCOME CHARGEABLE TO TAX HAS ESCAP ED ASSESSMENT. [PARA 13] IN THE INSTANT CASE, A PERUSAL OF THE REASONS RECOR DED BY THE ASSESSING OFFICER FOR ISSUING NOTICE UNDER SECTION 148 REVEALS THAT DURING THE ASSESSMENT PROCEEDINGS IT W AS NOTICED THAT THE ASSESSEE HAD RECEIVED SHARE APPLICATION MO NEY FROM SEVERAL ENTITIES WHICH WAS UTILISED DURING THE YEAR AND SUBSEQUENTLY RETURNED IN FINANCIAL YEAR 201314. THA T APART, ON FURTHER EXAMINATION OF CERTAIN INFORMATION RECEI VED FROM ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 11 THE DIRECTORATE OF INVESTIGATION, WHICH HAD CARRIED THE INVESTIGATION IN THE CASE OF THE ENTITIES, DETAILS WHEREOF HAS BEEN SET OUT IN THE REASONS RECORDED, IT WAS ASCERT AINED THAT THOSE ENTITIES WHICH WERE COMPANIES WITH NO REAL BU SINESS AND ARE ONLY ENGAGED IN BUSINESS OF PROVIDING ACCOMMODATION ENTRIES OF BOGUS NATURE TO BENEFICIAR Y CONCERNS WHICH WAS FURTHER CONFIRMED BY THE DIRECTORS/DUMMY DIRECTORS/KEY PERSONS OF THE SAID E NTITIES IN THEIR RESPECTIVE STATEMENTS. THUS, ON THE BASIS OF THE MATERIAL ON RECORD, ASSESSING OFFICER OPINED THAT THE APPELL ANT COMPANY HAS RECEIVED AND UTILISED THE SHARE APPLICA TION MONEY RECEIVED FROM BOGUS SOURCES LACKING GENUINENE SS, CREDITWORTHINESS, GENUINE IDENTITY, WHICH FALL WITH IN THE PURVIEW OF SECTION 68. [PARA 14] IT IS TRUE THAT THE REASONS RECORDED OR THE MATERIA L AVAILABLE ON RECORD MUST HAVE NEXUS TO THE SUBJECTIVE OPINION FORMED BY THE ASSESSING OFFICER REGARDING THE ESCAPEMENT O F THE INCOME BUT THEN, WHILE RECORDING THE REASONS FOR BE LIEF FORMED, THE ASSESSING OFFICER IS NOT REQUIRED TO FI NALLY ASCERTAIN THE FACTUM OF ESCAPEMENT OF THE TAX AND I T IS SUFFICIENT THAT THE ASSESSING OFFICER HAD CAUSE OR JUSTIFICATION TO KNOW OR SUPPOSE THAT INCOME HAD ESCAPED ASSESSME NT. IT IS ALSO WELL SETTLED THE SUFFICIENCY AND ADEQUACY OF T HE REASONS WHICH HAVE LED TO FORMATION OF A BELIEF BY THE ASSE SSING OFFICER THAT THE INCOME HAS ESCAPED THE ASSESSMENT CANNOT BE EXAMINED BY THE COURT. [PARA 16]' (IV) IT MAY BE MENTIONED THAT THE COURTS CANNOT LOO K INTO THE SUFFICIENCY OF THE REASONS RECORDED BY THE AO FOR R EOPENING THE ASSESSMENT U/S 147 OF THE ACT. RELIANCE IS PLAC ED ON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF RAYMO ND WOOLLEN MILLS LTD. VS ITO [1999] 236 ITR 34 (SC), W HEREIN IT WAS HELD BY THEIR LORDSHIP THAT: IN THIS CASE, WE DO NOT HAVE TO GIVE A FINAL DECIS ION AS TO WHETHER THERE IS SUPPRESSION OF MATERIAL FACTS BY T HE ASSESSEE OR NOT. WE HAVE ONLY TO SEE WHETHER THERE WAS PRIMA FACIE SOME MATERIAL ON THE BASIS OF WHICH THE DEPARTMENT COULD REOPEN THE CASE. THE SUFFICIENCY O R CORRECTNESS OF THE MATERIAL IS NOT A THING TO BE CO NSIDERED AT THIS STAGE. WE ARE OF THE VIEW THAT THE COURT CANNO T STRIKE DOWN THE REOPENING OF THE CASE IN THE FACTS OF THIS CASE. IT WILL BE OPEN TO THE ASSESSEE TO PROVE THAT THE ASSU MPTION OF ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 12 FACTS MADE IN THE NOTICE WAS ERRONEOUS. THE ASSESSE E MAY ALSO PROVE THAT NO NEW FACTS CAME TO THE KNOWLEDGE OF THE INCOME-TAX OFFICER AFTER COMPLETION OF THE ASSESSME NT PROCEEDING. WE ARE NOT EXPRESSING ANY OPINION ON TH E MERITS OF THE CASE. THE QUESTIONS OF FACT AND LAW A RE LEFT OPEN TO BE INVESTIGATED AND DECIDED BY THE ASSESSIN G AUTHORITY. THE APPELLANT WILL BE ENTITLED TO TAKE A LL THE POINTS BEFORE THE ASSESSING AUTHORITY. THE APPEALS ARE DISMISSED.' (V) FURTHER, IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD. [2007] 291 ITR 500 (SC), IT WAS H ELD BY THE HON'BLE APEX COURT THAT IF THE AO, FOR WHATEVER REASON, HAS REASON TO BELIEVE THAT INCOME HAS ESCAP ED ASSESSMENT, IT CONFERS JURISDICTION TO RE-OPEN THE ASSESSMENT. IT IS A FACT THAT NO ASSESSMENT WAS MAD E EARLIER U/S 143(3)/144 OF THE ACT IN THE CASE OF TH E APPELLANT, THEREFORE, THE RATIO IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD. (SUPRA) APPL IES SQUARELY TO THE FACTS OF THE INSTANT CASE UNDER CONSIDERATION. (VI) THEREFORE, IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD THAT THE AO WAS JUSTIFIED IN REOPENING THE CASE OF THE APPELLANT FOR THE YEAR UNDER CONSIDERATION U/S L47 OF THE ACT AND WAS HAVING REASON TO BELIEVE THAT INCOME HAD ES CAPED ASSESSMENT. HENCE, THIS GROUND OF APPEAL IS HEREBY REJECTED. THERE IS NO QUARREL ON THE POINT THAT AT THE TIME O F REOPENING OF THE ASSESSMENT, IT IS REQUIRED FOR FORMATION OF BELIEF BASED ON THE REASONS RECORDED BY THE AO. ONCE THERE IS A DIRECT NEXUS BE TWEEN THE REASONS RECORDED BY THE AO AND FORMATION OF BELIEF THEN QUA NTUM OF INCOME FINALLY LIABLE TO BE ASSESSED IS ONLY THE SECONDARY ASPECT AND NOT FORMING THE PRIMARY CONDITION TO CONSTITUTE A TANGIBLE MATE RIAL FOR FORMATION OF ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 13 BELIEF. ONCE THE AO HAS BROUGHT ON RECORD THE FACTS AND REASONS TO FORM THE BELIEF THAT INCOME IS ASSESSABLE TO TAX ON ACCO UNT OF CAPITAL GAIN THEN THE QUANTUM OF THE INCOME FINALLY COMPUTED IS NOT A MATERIAL ASPECT AT THE STAGE OF INITIATION OF PROCEEDINGS U/S 147/148 OF T HE ACT. THEREFORE, THE OBJECTION RAISED BY THE ASSESSEE REGARDING THE CORR ECT AMOUNT OF CAPITAL GAIN AS RECORDED IN THE REASONS CANNOT BE A GROUND FOR QUASHING THE PROCEEDINGS U/S 147/148 OF THE ACT WHEN THE AO HAS SHOWN THE RELEVANCE BETWEEN THE REASONS RECORDED AND THE FORMATION OF B ELIEF ON THE SUBJECT MATTER AND THE SOURCE OF INCOME WHICH HAS ESCAPED A SSESSMENT. THEREFORE, THE DECISIONS RELIED BY THE LD.AR OF THE ASSESSEE ARE NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. WHEN T HE REASONS ARE ITSELF SELF-EXPLANATORY AND SPEAKING THE LINK BETWEEN THE MATERIAL AND THE FORMATION OF BELIEF THEN THE APPROVING AUTHORITY I. E. PR. CIT IS NOT REQUIRED FURTHER TO SUPPLEMENT THE REASONS TO BELIE VE AS RECORDED BY THE AO. HENCE, IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A). THUS GROUND NO. 1 AND 2 OF THE ASSESSEE ARE DISMISSED. ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 14 3.1 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 3. THEREFORE, THE SAME IS DI SMISSED BEING NOT PRESSED. 4.1 THE GROUND NO. 4 OF THE ASSESSEE IS REGARDING D ISALLOWANCE OF DEDUCTION U/S 54F OF THE ACT. 4.2 THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE AO HAS DENIED THE CLAIM OF DEDUCTION U/S 54F OF THE ACT ON THE GROUND THAT THE PROPERTY WHICH WAS CLAIMED TO BE RECONSTRUCTED/ RENOVATED WA S NOT OWNED BY THE ASSESSEE WHEREAS THE ASSESSEE HAS FILED THE MOU SHO WING THAT PROPERTY IS A HUF PROPERTY AND IT IS A RESIDENTIAL HOUSE OF ASS ESSEE'S FAMILY WHICH WAS RECONSTRUCTED BY UTILIZING THE SALE CONSIDERATI ON IN QUESTION. THUS THE LD.AR OF THE ASSESSEE SUBMITTED THAT WHEN THE ASSES SEE HAS INVESTED THE SALE CONSIDERATION IN THE CONSTRUCTION OF RESIDENTI AL HOUSE WHICH IS ANCESTRAL PROPERTY THEN SUCH INVESTMENT IS ELIGIBLE FOR DEDUCTION U/S 54F OF THE ACT. THE LD.AR OF THE ASSESSEE FURTHER SUBMI TTED THAT AO HAS ALSO REJECTED THE CLAIM OF CONSTRUCTION MADE ON THE PROP ERTY AND THE RECEIPTS PRODUCED BY THE ASSESSEE WERE HELD TO BE BOGUS. THE LD.AR OF THE ASSESSEE CONTENDED THAT THE ASSESSEE WAS RESIDING I N THE RESIDENTIAL HOUSE SITUATED AT 116/1, HARI MARG, CIVIL LINES, JAIPUR, SINCE HIS BIRTH. SUCH ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 15 RESIDENTIAL HOUSE IS AN ANCESTRAL PROPERTY OF THE F ATHER OF THE ASSESSEE AND HIS FATHER INHERITED THE SAID PROPERTY THROUGH WILL . THE SAID WILL WAS ALSO GOT PROBATED THROUGH COURT AND THEREFORE, THERE IS NO DISPUTE REGARDING THE OWNERSHIP OF THE PROPERTY INHERITED BY THE FATH ER OF THE ASSESSEE THROUGH WILL. THE LD.AR OF THE ASSESSEE FURTHER SUB MITTED THAT THE ASSESSEE PRODUCED THE DOCUMENTARY EVIDENCES OF THE RECONSTRUCTION OF THE OLD HOUSE WHICH INCLUDES THE ESTIMATES OF THE ARCHI TECT, GIVING THE DETAILS OF COST OF CONSTRUCTION. THE FATHER OF THE ASSESSEE DECIDED TO HAND OVER THE CONSTRUCTION WORK TO ONE SHRI RAGHAV CHOUDHARY, ARCHITECT. HOWEVER, THE MATERIAL WAS TO BE SUPPLIED BY THE OWN ER. THE LD.AR OF THE ASSESSEE REFERRED TO VARIOUS DOCUMENTARY EVIDENCES WHICH INCLUDE MOU WITH THE ARCHITECT, AFFIDAVIT OF THE NEIGHBOUR, PHO TOGRAPH OF THE PROPERTY, NOTICE BY THE LOCAL AUTHORITY, PURCHASE BILLS OF MA TERIAL, CONTRACT FOR ELEVATOR, CERTIFICATE BY THE VALUER. THUS THE LD.AR OF THE ASSESSEE SUBMITTED THAT IT IS A MATTER OF CLOSE FAMILY RELAT ION LIKE FATHER AND SON AND THEREFORE, NO FORMAL AGREEMENT WAS EXECUTED WIT H THE ARCHITECT BY THE ASSESSEE AS IT WAS IN THE NAME OF THE FATHER OF THE ASSESSEE. THUS THE LD.AR OF THE ASSESSEE SUBMITTED THAT WHEN THE ASSES SEE HAS INVESTED THE MONEY IN THE CONSTRUCTION OF HOUSE THEN THE DEDUCTI ON U/S 54F IS ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 16 ALLOWABLE TO THE ASSESSEE. IN SUPPORT OF HIS CONTEN TIONS, THE LD.AR OF THE ASSESSEE RELIED ON THE FOLLOWING DECISISONS:- (I) SHRI GANESH CHAWLA VS ACIT (ITA NO452/JP/2017 DATED 25-01-2018), ITAT JAIPUR BENCH (II) SMT. KALAVATHY SUNDARAM VS ITO (ITA NO.3187/CHNY/2016 DATED 07-09-2018), ITAT CHENNAI BENCH THE LD.AR OF THE ASSESSEE ALSO REFERRED TO THE ADDI TIONAL EVIDENCES WHICH HAS BEEN FILED BEFORE THIS TRIBUNAL DURING THE APPE LLATE PROCEEDINGS AND SUBMITTED THAT THE SAID EVIDENCES MAY BE ADMITTED U NDER RULE 29 OF ITAT RULES, 1963. THESE ADDITIONAL EVIDENCES ARE REGARDI NG THE OWNERSHIP OF THE ASSESSEE AS WELL AS EXPENDITURE INCURRED BY THE ASSESSEE FOR CONSTRUCTION OF THE HOUSE. 4.3 ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THA T THE AO HAS DULY EXAMINED THE ARCHITECT AS WELL AS FATHER OF THE ASS ESSEE AND NOTED THAT RESIDENTIAL HOUSE IN QUESTION IS NOT OWNED BY THE A SSESSEE BUT IT IS THE PROPERTY OF ASSESSEE'S FATHER WHO HAS ENTERED INTO A MOU WITH THE CONTRACTOR / ARCHITECT FOR CONSTRUCTION OF THE HOUS E. THEREFORE, THE ASSESSEE HAS NOT PRODUCED ANY DOCUMENTARY EVIDENCES TO PROVE THAT ASSESSEE HAS CONSTRUCTED THE RESIDENTIAL HOUSE IN Q UESTION. THUS THE LD. DR HAS SUBMITTED THAT WHEN THE ASSESSEE HAS FAILED TO ESTABLISH THE ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 17 INVESTMENT OF THE SALE CONSIDERATION IN CONSTRUCTIO N OF NEW HOUSE THEN THE CLAIM OF DEDUCTION U/S 54F IS NOT ALLOWABLE. THE LD . DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 4.4 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIALS AVAILABLE ON RECORD. THOUGH THE ASSESSEE HAS CLAIMED DEDUCTION U/S 54F OF THE ACT OF RS. 23,76,391/- AS THE SAID A MOUNT WAS STATED TO BE INCURRED IN CONSTRUCTION OF RESIDENTIAL HOUSE SITUA TED AT 116/1, HARI MARG, CIVIL LINES, JAIPUR HOWEVER, THE ASSESSEE HIMSELF H AS EXPLAINED THAT THE SAID HOUSE IS OWNED BY HIS FATHER WHO INHERITED THE SAME THROUGH WILL AND THERE IS A PROBATE ORDER FROM THE COURT. ONCE T HE COURT HAS ISSUED THE PROBATE CERTIFICATE OF THE WILL THEN WILL CANNOT BE QUESTIONED TILL THE SAID ORDER IS SET ASIDE OR REVERSED. HOWEVER, THE OWNERS HIP OF THE HOUSE THROUGH WILL BY THE FATHER OF THE ASSESSEE PROVES T HE FACT THAT SUCH RESIDENTIAL HOUSE IS EXCLUSIVELY OWNED BY THE FATHE R OF THE ASSESSEE AND NOT A HUF PROPERTY. THE ASSESSEE HAS NO RIGHT OR SH ARE IN THE SAID HOUSE. THE ASSESSEE CLAIMED THAT HE HAS INVESTED THE MONEY IN THE CONSTRUCTION OF SAID HOUSE. HOWEVER, THE ENTIRE DOCUMENTS PRODUC ED BY THE ASSESSEE SHOWS THAT THERE WAS A MOU BETWEEN THE FATHER OF TH E ASSESSEE AND ARCHITECT WHO TOOK THE CONTRACT OF CONSTRUCTION OF THE HOUSE. ONCE THE ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 18 SAID HOUSE WAS GOT CONSTRUCTED UNDER MOU BETWEEN TH E FATHER OF THE ASSESSEE AND THE ARCHITECT THEN IN THE ABSENCE OF A NY OTHER DOCUMENTARY EVIDENCE TO SHOW THAT SAID CONSTRUCTION WAS FINANCE D BY THE ASSESSEE, THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTED. THE LD. C IT(A) HAS CONSIDERED THIS ISSUE IN PARA 3.4.2 AS UNDER:- 3.4.2 DETERMINATION (I) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE A PPELLANT, ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT HAS CLAIMED A DEDUCTION OF RS. 23,76,391/ - U/S 54F OF THE ACT ON ACCOUNT OF CONSTRUCTION IN THE NEW HOUSE PROPERTY W HICH WAS NOT ALLOWED BY THE AO BY OBSERVING THAT THE APPELLANT WAS NEITHER THE OWNER OF THE PROPERTY NOR COULD PROVE THE CONSTRUCTION OF A RESIDENTIAL H OUSE AS CLAIMED BY IT. (II) DURING THE APPELLATE PROCEEDINGS, IT WAS SUBMI TTED BY THE APPELLANT THAT HIS FATHER SHRI MURARI LAL KHAIRARI HAD INHERI TED A RESIDENTIAL HOUSE SITUATED AT 116/1, HARI MARG, CIVIL LINES, JAIPUR F ROM HIS FATHER. THE APPELLANT AND HIS FATHER ENTERED INTO A MOU ON 20.1 0.2007 FOR CONSTRUCTION OF A RESIDENTIAL HOUSE AT 116/1, HARI MARG, CIVIL LINES, JAIPUR AFTER DEMOLISHING THE EXISTING HOUSE AND AS PER THE MOU, THE GROUND AND FIRST FLOOR WERE TO BE CONSTRUCTED BY TH E FATHER OF THE APPELLANT AND SECOND AND THIRD FLOOR WERE TO BE CON STRUCTED BY THE APPELLANT. IT WAS SUBMITTED BY THE APPELLANT THAT I T HAS CONSTRUCTED SECOND AND THIRD FLOOR WITH HIS OWN FUNDS AND THROUGH THE ABOVE REFERRED MOU, THESE FLOORS BELONG SOLELY AND EXCLUSIVELY TO THE A PPELLANT AND IN THE ABSENCE OF A REGISTERED DEED, THE ASSESSEE AT THE M OST COULD NOT BECOME A REGISTERED LEGAL OWNER BUT IN ANY CASE, IT WAS A BE NEFICIAL OWNER OF THE SECOND AND THIRD FLOOR. SHRI M.L. KHAIRARI, FATHER OF THE APPELLANT, HAS OBTAINED AN ESTIMATE DATED 12.10.2007 FROM THE ARCH ITECT, SHRI RAGHAV CHOUDHARY, WHO ESTIMATED THE COST OF CONSTRUCTION O F THE HOUSE (CONSISTING OF GROUND, FIRST, SECOND AND THIRD FLOO R) AT RS. 53,50,000/-. SHRI RAGHAV HAS CONSTRUCTED THE HOUSE INCLUDING THE SECOND AND THIRD FLOOR CLAIMED TO BE MADE BY THE APPELLANT FROM HIS OWN SOURCES, FOR WHICH IT HAS CLAIMED DEDUCTION U/S 54F OF THE ACT. (III) IT MAY BE MENTIONED THAT DURING THE ASSESSMEN T PROCEEDINGS, THE APPELLANT HAS FILED A RECEIPT DATED 31.08.2008 CLAI MED TO BE ISSUED BY SHRI RAGHAV CHOUDHARI WHEREIN, A SUM OF RS. 1 LAKH WAS STATED TO BE RECEIVED FROM SHRI ARPIT KHAIRARI, THE APPELLANT. I T ALSO STATED THEREIN ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 19 THAT IT HAS RECEIVED PREVIOUSLY A SUM OF RS. 23,04, 500/-AND WITH THE RECEIPT OF RS. 1 LAKH, IT HAS RECEIVED FULL AND FIN AL AMOUNT ON CONSTRUCTION OF SECOND AND THIRD FLOOR. HOWEVER, IN HIS STATEMENT RECORDED ON OATH ON 21.11.2016, RECORDED BY THE AO, SHRI RAGHAV CHOUDHARY HAS DENIED TO ISSUE THE ABOVE REFERRED RE CEIPT CLAIMED TO BE ISSUED BY HIM. IT WAS ALSO STATED BY SHRI RAGHAV THAT HE HAS CONSTRUCTED THE HOUSE OF SHRI M.L. KHAIRARI, FATHER OF THE APPELLANT AND HE HAS MADE AGREEMENT WITH SHRI M.L. KHAIRARI O NLY AND NOT WITH THE APPELLANT. IT IS NOTED THAT VIDE LETTER DATED 2 5.11.2016, AS REPRODUCED IN THE ASSESSMENT ORDER, A SHOW CAUSE NO TICE WAS ISSUED TO THE APPELLANT IN THIS REGARD WHEREIN A COPY OF THE STATEMENT OF SHRI RAGHAV CHOUDHARI WAS ALSO ENCLOSED, HOWEVER, NO COM PLIANCE WAS MADE TO THE ABOVE SHOW CAUSE NOTICE AND CONSEQUENTL Y, THE AO HAS DISALLOWED DEDUCTION U/S 54F OF THE ACT. (IV) DURING THE APPELLATE PROCEEDINGS, THE APPELLAN T HAS FILED AFFIDAVITS OF THE NEIGHBOURS SHRI YASHWANT SINGH AN D SHRI KISHOR SINGH AND THE PHOTOGRAPHS OF THE NEWLY CONSTRUCTED HOUSE AS ADDITIONAL EVIDENCE UNDER RULE 46A OF THE ACT BY ST ATING THAT SINCE, THE ASSESSMENT WAS MADE IN HASTE AND THEREFORE, IT COULD NOT HAVE PRODUCED THESE AFFIDAVITS BEFORE THE AO. THESE ADDI TIONAL EVIDENCES WERE ADMITTED UNDER RULE 46A OF THE I.T. RULES IN T HE INTEREST OF NATURAL JUSTICE. HOWEVER, IT IS NOTED THAT BOTH THE AFFIDAVITS ARE DATED 03.01.2018 AND IDENTICALLY WORDED AND IT WOULD BE A PPROPRIATE TO REPRODUCE HEREUNDER THE CONTENTS OF AFFIDAVITS OF S HRI YASHWANT SINGH AS UNDER:- 1 ;G FD ES MIJKSDR IRS IJ FINYS 40 O'KZ LS LIFJOKJ FU OKL DJ JGK GWWAA 2 ;G FD GEKJS IM+KSL DS EDKU UECJ 116@1] GJHEKXZ ES A JH EQJKJHYKYTH [KSJKM+H FUOKL DJRS GSA 3 ;G FD GEKJH TKUDKJH DS VUQLKJ BUGKSUS O'KZ 2008&0 9 ESA VIUK RHU EAFTY DK U;K EDKU CUK;K FKKA 4 ;G FD IZKIR TKUDKJH VUQLKJ MDR EDKU DK FUEKZ.K DJ US ESA HKWRY O IZFKE EAFTY DK [KPKZ JH EQJKJHYKYTH [KSJKM+ H US O F}RH; RFKK R`RH; RY DK [KPKZ MUDS IQ= JH VFIZR [KSJKM+H US LO; A DH VKENKUH LS FD;K FKKA (V) THE ABOVE AFFIDAVIT IS NOTHING BUT A SELF SERVI NG DOCUMENT AND THUS, NO COGNIZANCE COULD BE GIVEN TO IT AS IT IS BASED ON H EARSAY ONLY. I FAIL TO UNDERSTAND HOW A NEIGHBOR COULD STATE IN AN AFFIDAV IT THAT THE SECOND AND THIRD FLOOR WERE CONSTRUCTED BY THE APPELLANT FROM HIS OWN INCOME AND THAT ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 20 TOO AFTER A PERIOD OF ALMOST 9 YEARS. FURTHER, THE PHOTOGRAPHS SUBMITTED BY THE APPELLANT DO NOT SHOW THE DATES ON WHICH THESE PHOT OGRAPHS WERE TAKEN. THEREFORE, THESE ADDITIONAL EVIDENCES FILED BY THE APPELLANT ARE OF NO USE TO IT. SHRI RAGHAV CHOUDHARY HAS FILED THE DETAILS OF AMOU NT RECEIVED FOR THE PERIOD 02.10.2007 TO 04.08.2010 WHEREIN, THE TOTAL AMOUNT WAS SHOWN AT RS. 22,40,000/- ONLY WHICH COULD BE TAKEN AS THE PAYMEN TS MADE BY SHRI M.L. KHAIRARI FOR WHOM THE HOUSE WAS CONSTRUCTED BY SHRI RAGHAV CHOUDHARY. THE APPELLANT HAS FAILED TO BRING ON RECORD ANY EVI DENCE WHICH MAY ESTABLISH THAT IT HAS CONSTRUCTED THE SECOND AND THIRD FLOOR AT 1/116, HARI MARG, JAIPUR. IT MAY BE MENTIONED THAT THE ONUS WAS ON THE APPELL ANT TO PROVE THE DEDUCTION CLAIMED U/S 54F OF THE ACT WHICH, IT FAILED MISERAB LY. IN FACT, BESIDES THE ABOVE RECEIPT OF RS. 1 LAKH CLAIMED TO BE ISSUED BY SHRI RAGHAV CHOUDHARY, NO OTHER RECEIPT FOR MAKING THE PAYMENT ON EARLIER OCCASIONS WAS FURNISHED BY THE APPELLANT. THEREFORE , IN VIEW OF THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE AO WAS JUSTIFIED IN NOT ALLOWING DEDUCTION U/S 54F OF THE ACT AND HENCE, THE ACTION OF THE AO IS HEREBY UPHELD. EVEN IN THE ADDITIONAL EVIDENCES WHICH WERE SOUGHT TO BE FILED BY THE LD.AR OF THE ASSESSEE, THERE IS NOTHING TO SHOW THA T THE ASSESSEE HAS INVESTED THE MONEY IN THE CONSTRUCTION OF THE HOUSE . FURTHER, WHEN THE ASSESSEE HAS NO RIGHT IN THE HOUSE THEN EVEN IF IT IS FINANCED BY THE ASSESSEE THE OWNERSHIP OF THE PROPERTY WOULD NOT CH ANGE. ACCORDINGLY, THE ADDITIONAL EVIDENCES PRODUCED BY THE ARE NOT GO ING TO SUPPORT THE CLAIM BUT ONLY SUPPORT THE CLAIM OF OWNERSHIP OF T HE FATHER OF THE ASSESSEE. THE AFFIDAVIT WHICH HAS BEEN SOUGHT TO BE FILED BY THE ASSESSEE, COULD HAVE BEEN FILED BEFORE THE LOWER A UTHORITIES. AFTER A GAP OF ABOUT 12 YEARS, THE AFFIDAVIT FILED BY THE ASSES SEE CANNOT BE ACCEPTED, BEING AFTER THOUGH AND SELF SERVING. HENCE, IN VIEW OF THE FACTS AND ITA NO.613/JP/2018 SHRI ARPIT KHAIRARI VS ITO ,WARD-2(2), JAIPUR 21 CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERRO R OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A). THUS GROUND NO. 4 OF THE ASSESSEE IS DISMISSED. 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /03/ 2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/03/ 2020 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1 VIHYKFKHZ@ THE APPELLANT- SHRI ARPIT KHAIRARI, JAIPUR 2 IZR;FKHZ@ THE RESPONDENT- ITO, WARD- 2(2), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.613/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR