ADDL CIT 7(2), MUMBAI V. RAKSHIT INVESTMENT P.LTD, MUMBAI

ITA 6423/MUM/2011

• Counselvise Citation: 642319914 RSA 2011
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-02-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 20-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRIJA DAYAL
• Assessee Lawyers: RAJESH S SHAH
• Keywords: Cost of acquisition; Reasonable cause; Revised return

Judgement Text

, MH MHMH MH INCOME TAX APPELLATE TRIBUNAL,MUMBAI - D BENCH. , LAT; XXZ LAT; XXZ LAT; XXZ LAT; XXZ BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SANJAY GA RG,JUDICIAL MEMBER /. ITA NO.6423/MUM/2011, ! ! ! ! / ASSESSMENT YEAR-2007-08 ACIT- 7(2), R.NO. 624, M.K.ROAD, MUMBAI-400020 VS M/S RAKSHIT INVESTMENT PVT. LTD. PREMISES NO.5, 3 RD FLOOR, SOUTH WING, 167 DR. ANNIE BESANT ROAD, WORLI, MUMBAI-400018 PAN:AAACR2951C ( '# / APPELLANT) ( $%'# / RESPONDENT) $%& /. C.O. NO. 162/MUM/2012, ! ! ! ! / ASSESSMENT YEAR 2007-08 M/S RAKSHIT INVESTMENT PVT. LTD. PREMISES NO.5, 3 RD FLOOR, SOUTH WING, 167 DR. ANNIE BESANT ROAD, WORLI, MUMBAI-400018 VS. ACIT- 7(2), R.NO. 624, M.K.ROAD, MUMBAI-400020 PAN: AAATM8274G ( '# / APPELLANT ) ( $%'# / RESPONDENT) ' ( / REVENUE BY : SHRI GIRIJA DAY AL )* ' ( / ASSESSEE BY : SHRI RAJESH S. SHAH ' '' ' *+ *+ *+ *+ / DATE OF HEARING : 27-02-2014 ,-! ' *+ / DATE OF PRONOUNCEMENT : 21-03-2014 , 1961 ' '' ' 254 )1( *.* *.* *.* *.* / / / / ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM : CHALLENGING THE ORDER DT.24.05.2011 OF THE CIT(A)-1 3,MUMBAI, ASSESSING OFFICER (AO) HAS FILED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN TREATING THE SALES CONSIDERATION OF LAND AT RS. 11,46,92,750/- AS AGAI NST RS. 15,71,00,000/- (RS. 11,46,92,750/- FOR LAND AND RS. 4,24,07,250/- FOR BUILDING ) FOR THE P URPOSE OF COMPUTATION OF LONG TERM CAPITAL GAINS IGNORING THE FACT THAT THE IMPUGNED PROPERTY WAS SOLD BY THE ASSESSEE AS PACKAGE DEAL AND THE PURCHASER WANTED TO DEVELOP THIS PROPERTY AFTER DEMOLITION OF THE BUILDING STANDING THEREON ? 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN TREATING THE SALES CONSIDERATION OF LAND AT RS. 11,46,92,750/- AND EXC LUDING THE SALE CONSIDERATION OF BUILDING OF RS. 4,24,07,250/- AS AGAINST THE TOTAL VALUE OF SALE CO NSIDERATION OF RS. 15,71,00,000/- FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAINS IGNORING THE FACT THAT THE BUILDING HAD NO VALUE AS IT WAS NOT GOING TO BE USED BY THE PURCHASER AND THUS THE ENTIRE SALE CONSIDERATION OF RS. 15,71,00,000/- BELONGED TO LAND ONLY? 3. THE LD. CIT(A)S ORDER IS PERVERSE IN LAW AND ON FA CTS AND DESERVES TO BE SET ASIDE. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE GROUNDS BE SE T ASIDE AND THAT OF THE AO RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND THAT MAY BE NECESSARY. 2 ITA NOS. 6423/MUM/2011 & C.O. 162/MUM/2012 M/S RAKSHIT INVESTMENT PVT. LTD. . ASSESSEE HAS FILED FOLLOWING GROUND IN THE CROSS OB JECTION (C.O.): BEING AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)13,MUMBAI (HEREIN - AFTER REFERRED TO AS CIT(A)) THE APPELLANT SUBMITS THESE GROUNDS OF CROSS OBJECTIONS TO THE APPEAL FILED BY ASSISTANT COMMISSIONER OF INCOME TAX- 7(2) ,EACH OF WHICH MAY PLEASE BE CONSIDERED WITHOUT PREJUDICE TO ONE ANOTHER: THE APPELLANT PLEADS BEFORE YOUR HONOUR TO CONDONE THE DELAY IN FILING OF THE CROSS OBJECTION DUE TO CIRCUMSTANCES. 2.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION IN RESPECT OF FOLLOWING EXPENDITURE IN CURRED IN RESPECT OF AND / OR IN CONNECTION WITH LAND & BUILDING TRANSFERRED, WHILE WORKING OUT CAPI TAL GAIN IN THE HANDS OF THE APPELLANT:-. A)A.Y. 2000-01 OTHER EXPENSES RS.54,9951- B)A.Y. 2001-02 OTHER EXPENSES RS.77,071/- C)A.Y. 2002-03 OTHER EXPENSES RS.18,000/- D)A.Y. 2002-03 LAND RELATED EXPENSES RS.3,00,000/- E)A.Y. 2002-03 MUN. DEVELOPMENT CHGS. RS.3,80,465/- F)A.Y. 2003-04 LAND RELATED EXPENSES RS.3,50,0001- G)A.Y. 2004-05 VARIOUS EXPENSES RS.8,01 803/- 3.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISALLOWING THE EXPENDITURE AS STATED IN GROUND NO.1, THOUGH TH E EXPENDITURE HAS BEEN CAPITALIZED IN EARLIER YEARS AND ACCEPTED. 4 . YOUR APPELLANT CRAVES LEAVE TO ADD, DELETE, WITHDRA W AND/OR MODIFY ANY/OR ALL THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF FINAL HEARING. C.O.WAS TIME BARRED BY FIVE DAYS.IN HIS AFFIDAVIT, MANAGING DIRECTOR OF THE COMPANY, HAS STATED THAT HE WAS NOT KEEPING WELL AND WAS SUFFERING VARI OUS DISEASES,THAT HE WAS REQUIRED TO GET CAMEO, THAT BECAUSE OF MEDICAL EMERGENCY APPEAL COU LD NOT BE FILED IN TIME. WE HAVE CONSIDERED THE AFFIDAVIT FILED BY THE DIRECTOR OF THE COMPANY AND ARE SATISFIED THAT THERE WAS REASONABLE CAUSE FOR NOT FILING THE C.O. IN TIME. THEREFORE, DELAY O F FIVE DAYS IS CONDONED. 2 .ASSESSEE-COMPANY, RUNNING A DEPARTMENTAL STORE, FI LED ITS RETURN ON 29.10.2007 DECLARING TOTAL INCOME AT RS. 7.45 CRORES.LATER ON A REVISED RETURN WAS FILED ON 14.07.2008,WHEREIN SAME INCOME WAS SHOWN,HOWEVER,IN THE STATEMENT,INCOME WAS SHOWN AT RS.5.18 CRORES.AO FINALISED THE ASSESS -MENT ON 30.10.2009 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 11.93 CRORES. 2.1 .EFFECTIVE GROUND OF APPEAL DEALS WITH COMPUTATION OF LONG TERM CAPITAL GAINS(LTCG). DURING THE ASSESSMENT PROCEEDINGS, AO FOUND THAT AS SESSEE HAD SHOWN LTCG IN RESPECT OF A PLOT OF LAND ON WHICH DEPARTMENTAL STORE WAS FUNCTIONING AT PUNE, THAT THE PLOT WAS PURCHASED BY MOU DATED 30.12.1999 FOR A CONSIDERATION OF RS.1.60 CRORES,THAT THE REGISTRATION TOOK PLACE ON 20.06.2000, THAT THE CONSTRUCTION OF THE DEPARTMENT AL STORE WAS OVER BY JANUARY 2004,THAT THE STORE FUNCTIONED FROM NOVEMBER, 2004 TO DECEMBER, 2 006,THAT ON 24.11.2006 A DEVELOPMENT AGREEMENT WAS ENTERED INTO WITH M/S. KASTURI RASHI ASSOCIATES (KRA) FOR A CONSIDERATION OF RS. 15.71 CRORES,THAT ASSESSEE HAD ALSO FILED A SUPPLEM ENTARY MOU DATED 21.12.2006,THAT AS PER THE SUPPLEMENTARY MOU ASSESSEE HAD RECEIVED RS. 11.46 C RORES FOR THE PLOT OF LAND AND RS. 4.24 CRORES FOR THE BUILDING, THAT THE SUPPLEMENTARY MOU WAS NOT REGISTERED, THAT AS PER DEVELOPMENT AGREEMENT DATED 24.11.2006 THE TRANSACTION WAS FOR LAND AND BUILDING WAS TO BE DEMOLISHED, THAT THE PROPERTY WAS TO BE DEVELOPED AS A RESIDENTIAL P ROPERTY. AS PER THE AO, VALUE OF THE BUILDING FOR KRA WAS NIL.HE ISSUED A SHOW-CAUSE NOTICE TO TH E ASSESSEE AND ASKED HIM AS TO WHY THE ENTIRE CONSIDERATION-15.71CRORES SHOULD NOT BE TREA TED AS CONSIDERATION FOR SALE OF LAND AS MENTIO -NED IN THE ORIGINAL AGREEMENT. VIDE ITS LETTER DAT ED 29.10.2009, ASSESSEE CLAIMED INDEXED COST OF ACQUISITION OF PLOT OF LAND AT RS. 3.70 CRORES.ON P ERUSAL OF THE BALANCE-SHEET AO FOUND THAT COST OF LAND WAS SHOWN AT RS. 2.40 CRORES AND BUILDING W AS VALUED AT RS. 2.59 CRORES, THAT THE ASSESSEE HAD CAPITALISED SEVERAL EXPENSES WITH THE COST OF L AND. AO HELD THAT REGISTRATION OF LAND TOOK PLACE IN FY.2000-01,THAT EXPENSES INCURRED AFTER THAT HAD TO BE TREATED AS A PART OF CONSTRUCTION OF DEPARTMENTAL STORE, THAT SAME COULD NOT BE TAKEN AS IMPROVEMENT OF LAND UNLESS THE EXPENDITURE 3 ITA NOS. 6423/MUM/2011 & C.O. 162/MUM/2012 M/S RAKSHIT INVESTMENT PVT. LTD. . DIRECTLY RESULTED IN INCREASE IN THE MARKET VALUE O F LAND. HE REQUIRED THE ASSESSEE VIDE HIS LETTER DATED 07.10.2009 AS TO WHY THE CLAIM OF EXPENSES NO T RELATED TO LAND SHOULD NOT BE EXCLUDED FOR ARRIVING AT THE INDEXED COST OF ACQUISITION. IN ITS REPLY ASSESSEE GAVE DETAILS AND EXPENDITURE INCURRED YEAR WISE AND WHICH WERE PART OF INDEXED V ALUE.AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND DISALLOWING THE CLAIMS OF THE EXPENSES INCURRED FOR TRANSFER/SALE OF LAND AO WORKED OUT THE LTCG AS UNDER: SALE CONSIDERATION RS. 15,71,00,000/- EXPENSES FOR TRANSFER RS. 49,70,306/- INDEXED COST OF ACQUISITION/IMPROVEMENT RS. 27, 77,95,426/- LONG TERM CAPITAL GAINS RS. 13,42,74,880/- 2.2. AGGRIEVED BY THE ORDER OF THE AO ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSE SSEE AND THE ASSESSMENT ORDER, HE HELD THAT PROPERTY IN QUESTION I.E. DEPARTMENTAL STORE CONSIS TED OF LAND AND BUILDING, THAT THE VALUE HAD TO BE ASSIGNED TO THE EXISTING BUILDING AS WELL AS TO THE LAND, THAT THERE WAS A SUPPLEMENTARY MEMORANDUM WHEREIN THE SALE CONSIDERATION FOR LAND AND BUILDING WAS STATED AT RS. 14.46 CRORES AND AT RS.4.24 CRORES RESPECTIVELY, THAT THE SUPPLE MENTARY AGREEMENT HAD NOT BEEN DISPROVED BY THE AO.HE REFERRED TO THE DEVELOPMENT AGREEMENT DAT ED 24.11.2006,SPECIALLY PART 1(F) AND HELD THAT IT COULD NOT BE SAID THAT SALE CONSIDERATION O F RS. 15.71 CRORES WAS FOR LAND ONLY,THAT THE SALE CONSIDERATION CONSISTED OF SALE OF LAND AND AS WELL AS BUILDING, THAT THE VALUATION WAS NOT CHALLENG -ED BY THE AO.ACCORDINGLY, FOR PURPOSE OF COMPUTATI ON OF LTCG IN RESPECT OF LAND SALE CONSIDERA -TION WAS TAKEN BY HIM AT RS.11,46,92,750/- 2.2.A. WITH REGARD TO CLAIM OF EXPENDITURE AMOUNTING TO RS . 77,071/- FAA HELD THAT ASSESSEE HAD NOT FURNISHED ANY DETAILS IN THIS REGARD.HE UPHELD THE DISALLOWANCE MADE BY THE AO.SIMILARLY, EXPENDITURE OF RS. 54,995/-CLAIMED TO HAVE BEEN INC URRED DURING THE YEAR 1999-2000. HE HELD THAT NO DETAILS WERE FILED BY THE ASSESSEE IN THIS REGAR D, THAT AO HAD RIGHTLY EXCLUDED THE AMOUNT FOR ARRIVING AT INDEXED COST.ABOUT THE EXPENSES OF RS. 18,000/-, RS. 3,00,000/- RS. 3,80,000/- HE HELD THAT ASSESSEE HAD NOT PRODUCED ANY EVIDENCE ABOUT I NCURRING EXPENDITURE OF RS. 18,000/-. HE FURTHER HELD THAT ASSESSEE HAD CLAIMED EXPENDITURE OF RS. 3,00,000/- INCURRED FOR BOUNDARY AND FENCING WORK, THAT AS PER THE ASSESSEE AMOUNT WAS P AID TO SKYLINE CONSTRUCTION, THAT THE AMOUNT DID NOT RELATE TO LAND COST, THAT LATER ON THE EXPE NDITURE WAS CLAIMED WAS AS COST OF IMPROVEMENT OF LAND.CONSIDERING THESE FACTS FAA HELD THAT CLAIM MADE BY THE ASSESSEE COULD NOT BE ALLOWED AS BOUNDARY WAS A PART OF BUILDING COST AND NOT A LAND COST.WITH REGARD TO RS. 3.80 LCAS, CLAIMED TO HAVE BEEN PAID IS MUNICIPAL DEVELOPMENT CHARGES. FA A HELD THAT ASSESSEE DID NOT FURNISHED ANY DETAILS IN THIS REGARD, THAT EXPENDITURE INCURRED W AS RELATED TO CONSTRUCTION OF DEPARTMENTAL STORE, THAT AO WAS JUSTIFIED IN DISALLOWING THE SAID EXPEN DITURE. 2.2.B. FAA FURTHER FOUND THAT ASSESSEE HAD CLAIMED RS. 3. 50 LACS FOR CONSTRUCTION OF BOUNDARY AND FENCING WORK.DISALLOWING THE EXPENDITURE HAS NOT IN CURRED AS PART OF BUILDING COST, HE CONFIRMED THE ORDER OF THE AO. ARGUMENTS OF THE FAA WERE SAME THAT WERE ADVANCED FOR DISALLOWING OF EXPENDITURE OF RS.3,00,000/-.OUT OF THE VARIOUS EXP ENDITURE CLAIMED TO HAVE BEEN INCURRED FOR THE AY.2004-05UNDER THE HEADS CARETAKERS FEES,CIVIL SUR VEY,STAMP DUTY CHARGES AND MUNICIPAL CHARGES FOR CUTTING TREES FOR CONSTRUCTION OF DEPAR TMENTAL STORE, ANNUAL MUNICIPAL TAX, OTHER EXPENSES ETC.,HE HELD THAT ASSESSEE WAS NOT ENTITLE D FOR ANY RELIEF, AS NO EVIDENCE WAS FILED OR THE EXPENDITURE WAS NOT RELATED TO IMPROVEMENT. 2.3. BEFORE US,DEPARTMENTAL REPRESENTATIVE(DR) SUBMITTED THAT ASSESSEE HAD PURCHASED PLOT OF LAND AND HAD CONSTRUCTED A DEPARTMENTAL STORE ON IT THAT BIFURCATION OF SALE CONSIDERATION WAS AFTERTHOUGHT, THAT THE ORIGINAL AGREEMENT WAS ONLY FOR SALE OF LAND, PURCHASER HAD PURCHASED LAND 4 ITA NOS. 6423/MUM/2011 & C.O. 162/MUM/2012 M/S RAKSHIT INVESTMENT PVT. LTD. . ONLY FOR CONSTRUCTION OF RESIDENTIAL UNITS, THAT MO NEY WAS PAID BY THE PURCHASER FOR LAND ONLY, THAT FOR THE PURCHASER VALUE OF THE BUILDING WAS NIL, TH AT SUBSEQUENT MOU WAS NOT REGISTERED, THAT THERE WAS NO EVIDENCE OF VALUATION OF BUILDING AT R S. 4.24 CRORES,THAT IN THE ORIGINAL AGREEMENT THERE WAS NO MENTION OF BIFURCATING THE SALE CONSID ERATION, THAT BUILDING WAS TO BE DEMOLISHED. AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT THERE WAS NO MENTION OF DEMOLITION OF STRUCTURE, THAT SHOPPING MALL WAS FUNCTION EVEN IN THE CALENDA R YEAR 2014,THAT THE ASSESSEE HAD SOLD THE BUILDING AND FACILITIES,THAT THERE WAS NO MENTION I N THE AGREEMENT OF CONSTRUCTION OF FLATS,ASSESSEE WAS NOT CONCERNED WITH THE PURPOSE FOR WHICH PURCHA SER HAD BOUGHT THE PROPERTY,THAT THE ASSESSEE HAD SOLD COMMERCIAL STRUCTURE.HE REFERRED TO PAGES 5,7,9,10,17,22 AND 27 OF THE PAPER BOOK(PB). 2.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE BASIC ISSUE TO BE DECIDED IN THE CASE IS ABOUT BIFURCATIO N OF VALUE OF THE PROPERTY SOLD.WE FIND THAT IN THE SUPPLEMENTARY MEMORANDUM BIFURCATION HAS BEEN S PECIFICALLY MENTIONED.PG.5 OF THE PB TALKS OF THE SAID PROPERTY AS UNDER: THE SUBJECT LAND TOGETHER WITH THE STRUCTURE STAND ING THEREON AND TOGETHER WITH ALL BENEFIT,PRIVIL - EGES,AND APPURTENANCES THERETO IS HEREINAFTER REFER RED TO AS THE SAID PROPERTY. FROM THE ABOVE IT IS CLEAR THAT THE TRANSACTION WAS FOR LAND AS WELL AS FOR THE STRUCTURE.SIMILARLY PG.7IS ABOUT LAND(7450SQ.MTS.)WITH THE EXISTING BU ILDING(2500SQ.MTS.).PAGE 9 AGAIN REFERS TO THE PHRASE SAID PROPERTY.IN PAGE 10 OF THE PB THERE IS MENTION OF BUILDING.CLEARLY NOWHERE IN THE ORIGINAL AGREEMENT IT IS MENTIONED THAT THE TRANSAC TION WAS ONLY FOR LAND AND NOT FOR THE BUILDING. WE FURTHER FIND THAT NOWHERE IN ANY OF THE DOCUMENT S,REFERRED TO IN THE ORDERS OF THE AO AND THE FAA,DEMOLITION OF THE STRUCTURE HAS BEEN MENTIONED. WE AGREE WITH THE ARGUMENT OF THE AR THAT EVEN IF THE PURCHASER WANTED TO DEMOLISH THE BUILDI NG IT WOULD NOT CHANGE THE NATURE OF THE TRANSACTION AS FAR AS THE ASSESSEE IS CONCERNED.FRO M THE DOCUMENTS RELIED UPON BY THE AR IT BECOMES CLEAR THAT THE ASSESSEE HAD SOLD BUILDING A LONG WITH THE LAND AND THE SALE PRICE INCLUDED THE PRICE OF THE PLOT OF LAND AS WELL AS OF THE BUI LDING.WE FIND THAT THE FAA HAS GIVEN A FINDING OF FACT,AFTER CONSIDERING THE DEVELOPMENT AGREEMENT OF 24.11.2011,THAT THE SALE CONSIDERATION CONSISTED OF TWO COMPONENTS-LAND AND BUILDING.DR WA S NOT ABLE TO CONTROVERT THE FINDING GIVEN BY THE FAA,WITH ANY DOCUMENTARY EVIDENCE.IN THESE C IRCUMSTANCES,CONSIDERING THE PECULIAR FACTS OF THE CASE UNDER APPEAL,WE ARE OF THE OPINION THAT ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL OR FACTUAL INFIRMITY.THEREFORE,CONFIRMING HIS ORDER WE DECIDE EFFECTIVE GROUND OF APPEAL AGAINST THE AO. C.O. NO. 162/MUM/2012-AY.2007-08: 3. IN THE CROSS OBJECTION MAIN GRIEVANCE OF THE ASSESS EE IS ABOUT CONFIRMATION OF THE ADDITION IN RESPECT OF CERTAIN EXPENDITURE INCURRED IN RESPECT OF AND/OR IN CONNECTION WITH LAND & BUILDING TRANSFERRED.ADDITIONS MADE BY THE AO WERE CHALLENGE D BEFORE THE FAA.WE HAVE DISCUSSED THE ORDER OF THE FAA AT PARAGRAPHS NO.2.2.A.AND 2.2.B. 3.1. BEFORE US,AR SUBMITTED THAT THE AO DID NOT ALLOW TH E EXPENDITURE INCURRED IN THE EARLIER YEARS ,THAT DISALLOWANCES MADE BY HIM WERE NOT AS PER LAW ,THAT HE WAS NOT AUTHORISED TO DISTURB THE VALUE OF THE ASSET ADOPTED FOR EARLIER YEARS,THAT T HE ASSESSEE HAD CAPITALISED THE EXPENDITURE IN EARLIER YEARS.DR SUPPORTED THE ORDERS OF THE FAA. 3.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT WHILE COMPUTING THE TAXABLE CAPITAL GAINS FAA HAD GIVEN F INDING OF FACTS ABOUT THE EXPENDITURE CLAIMED TO HAVE BEEN INCURRED BY THE ASSESSEE UNDER THE HEA D ACQUISITION/IMPROVEMENT OF THE ASSET.WHILE FINALISING THE DUE TAX LIABILITY OF THE -,FAA HAS T O TAKE INTO CONSIDERATION ALL THE FACTS THAT ARE AVAILABLE ON THE FILE.IT IS HIS DUTY THAT ONLY DUE TAX IS COLLECTED AND THE SOVEREIGN OR THE TAXPAYERS DO NOT SUFFER.FAA HAD TO DECIDE THE AMOUNT ELIGIBLE FOR COMPUTING CAPITAL GAINS.WHEN HE FOUND THAT THE ASSESSEE HAD NOT PRODUCED ANY EVIDENCE WIT H REGARD TO CERTAIN ITEMS OF EXPENDITURE,HE 5 ITA NOS. 6423/MUM/2011 & C.O. 162/MUM/2012 M/S RAKSHIT INVESTMENT PVT. LTD. . WAS BOUND TO HOLD THAT SAME COULD NOT BE ALLOWED FO R CALCULATING THE TAX LIABILITY OF THE ASSESSEE. IF THE ASSESSEE COULD NOT ADDUCE EVIDENCE IN SUPPOR T OF THE CLAIM OF INCURRING OF EXPENDITURE,THEN FAA WAS LEFT WITH NO OPTION BUT TO UPHOLD THE ORDER OF THE AO. THEREFORE,CONFIRMING HIS ORDER,WE DECIDE THE GROUNDS OF APPEAL,AGAINST THE A SSESSEE,RAISED BY IT IN THE CO. AS A RESULT,APPEAL FILED BY THE AO AND THE CO FILED BY THE ASSESSEE STAND DISMISSED. 1*2 )* + 3 4 5 )* $%& 6 7 * 89 ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST MARCH,2014 . / ' ,-! : 7 21 EKPZ EKPZ EKPZ EKPZ , 201 4 - ' . ; SD/- SD/- ( LAT; XXZ LAT; XXZ LAT; XXZ LAT; XXZ / SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, 7 /DATE: 21.03.2014. SK / / / / ' '' ' $*< $*< $*< $*< = ? , 4. THE CONCERNED CIT / > ? 5. DR D BENCH, ITAT, MUMBAI / <@. $* M MM MH HH H , . . . 6. GUARD FILE/ . 1 %<* %<* %<* %<* $* $*$* $* //TRUE COPY// / / BY ORDER, A / 8 DY./ASST. REGISTRAR , /ITAT, MUMBAI