RAJEEV RATAN SHUKLA, Jaipur V. ITO, Jaipur

ITA 678/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4995 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 24-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Assessee Lawyers: P K GARG
• Keywords: Gift; Additional evidence; Cost of acquisition; Corroborative evidences; Valuation report
• Section: 54

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 HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 678/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 SHRI RAJEEV RATAN SHUKLA C-63, LAL KOTHI MARG BAPU NAGAR, JAIPUR CUKE VS. THE ITO WARD- 4 (4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ADUPS 0339 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.K. GARG, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31/10/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-2, JAIPUR DATED 19-04-2016 FOR THE ASSESSM ENT YEAR 2011-12 RAISING THEREIN FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS GROSSLY ERRED IN ALLOWING BROK ERAGE EXPENSES @ 1% INSTEAD OF 2% ON THE GROUND THAT IT I S EXCESSIVE AND ONLY PART DETAILS ARE FILED. ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 2 2. THE LD. CIT(A) HAS FURTHER ERRED IN DISALLOWING THE COST OF ACQUISITION OF 222.22 SQ. Y ARDS AREA BY RS. 10,60,000/- STATING THAT THEY WERE NOT PROPE RLY PROVED NOR ANY FURTHER EVIDENCE FILED. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS REPRODUCED AS UNDER: - 3.1 THE RELEVANT EXTRACT OF THE ASSESSMENT ORDER IS AS UNDER: 'THE ASSESSEE HAS SHOWN FULL VALUE OF CONSIDERATION UNDER THE HEAD OF LONG TERM CAPITAL GAIN AT RS.38,00,000/- IN THE COM PUTATION SHEET. THE ASSESSEE HAS CLAIMED TRANSFER EXPENSES AT RS. 76,00 0/-. THE ASSESSEE WAS ASKED TO FURNISH DETAILS TRANSFER EXPENSES. THE ASS ESSEE HAS FURNISHED CONFIRMATION LETTER. THE ASSESSEE HAS FURNISHED PAR TLY DETAILS OF TRANSFER EXPENSES. THE ASSESSEE WAS ASKED TO EXPLAIN THE REA SONS AS TO WHY L/2 ND TRANSFER EXPENSES BE NOT DISALLOWED. I HAVE CONSIDERED THE ARGUMENTS OF THE ASSESSEE AND FIND THAT THE ASSESSEE HAS NOT FURNISHED SUPPORTING EVIDENCE IN T HIS REGARD I, THEREFORE, DISALLOW A SUM OF RS.36,000/- OUT OF TOTAL CLAIM OF RS. 76,000/-. THE ASSESSEE HAS CLAIMED COST OF ACQUISITION AT RS. 2,44,443/- INDEXING AMOUNT AT RS.17,37,990/-. THE ASSESSEE HAS CLAIMED COST OF IMPROVEMENT IN FY 90-91 ATRS.58,292/- INDEXING AMOUNT AT RS.227 ,723/- AND FURTHER CLAIMED COST OF IMPROVEMENT IN 2000-01 AT RS.68,213 /- INDEXING AMOUNT OF RS.119,457/-. THE ASSESSEE HAS SHOWN NET LONG TE RM CAPITAL GAIN AT RS.16,38,840/-. THE ASSESSEE WAS ASKED FURNISH DETA ILS ALONG WITH VALUATION REPORT OF COST OF ACQUISITION AND COST OF IMPROVEMENTS. THE ASSESSEE HAS FURNISHED VALUATION REPORT OF THE COST ACQUISITION AND COST OF IMPROVEMENTS IN 1990-91 AND 2000-01. IN SUPPORT, TH E ASSESSEE HAS ALSO FURNISHED DETAILS OF EXPENSE. I HAVE PERUSED THE VA LUATION REPORT AND FIND THAT THE VALUER HAS DETERMINED AT VALUE OF COST OF ACQUISITION AND COST OF IMPROVEMENTS. THE VALUATION REPORT WITH DETAILS FUR NISHED ARE EXAMINED AND PLACED ON RECORD. THE ASSESSEE HAS CLAIMED DEDUCTION U/S 54 AT RS.22, 10,000/-. THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF CONSTRUCTI ON WORK ALONG WITH VALUATION REPORT OF THE CONSTRUCTION OF HOUSE. THE ASSESSEE HAS FURNISHED ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 3 VALUATION REPORT AND SUPPORTING DETAILS AND HAS STA TED IN A WRITTEN REPLY DATED 14.03.2014 I HAVE CONSIDERED THE ARGUMENTS OF THE ASSESSEE AS WELL AS VALUATION REPORT ALONG-WITH DETAILS FURNISHED AND FIND THAT T HE COST OF CONSTRUCTION HAS BEEN DETERMINED AT RS.22,04,350/- BY THE VALUER . HENCE THE DEDUCTION U/S 54 IS ALLOWED AT RS. 22,04,350/-. THE DETAILS AS WELL AS VALUATION REPORT FURNISHED ARE EXAMINED AND PLACED ON FILES. 3.2 THE RELEVANT EXTRACT OF THE SUBMISSION OF THE A PPELLANT GIVEN AS UNDER: THE APPELLANT PAID BROKERAGE OF RS. 91200/- ON PUR CHASE OF PORTION OF 222.22 SQ. YDS AND RS. 152000/- ON SALE OF HOUSE. T HE LD. AO DISALLOWED THE V2 OF THE AMOUNT OF BROKERAGE EXPENSE ON THE GR OUND THAT IT IS EXCESSIVE. APPELLANT HAD SUBMITTED FOLLOWING REASONS IN SUPPOR T OF HIS CONTENTION: A. IN BIG CITIES LIKE JAIPUR, WITHOUT BROKER, PRO PERTY DEAL IS VERY DIFFICULT. B. IN ONE DEAL, GENERALLY THERE ARE MORE THAN ONE BROKERS. C. GENERAL RATE OF BROKERAGE IN THE MARKET IS 2%. THE APPELLANT HAD SUBMITTED THE CONFIRMATION STATEM ENTS FROM THE RESPECTIVE PARTIES TO WHOM THE COMMISSION HAD BEEN PAID IN SUPPORT OF HIS CONTENTION. THE LD. AO DISAGREED WITH BROKERAGE RAT E OF 2% AND ADDED 50% OF THE BROKERAGE PAID IN TAXABLE INCOME. THE LD . AO ALSO MENTIONED IN HIS ASSESSMENT ORDER THAT ASSESSEE HAS NOT FURNI SHED SUPPORTING EVIDENCE IN THIS REGARD. IT IS PERTINENT TO MENTION HERE THA T CONFIRMATION STATEMENTS DULY SIGNED WITH COMPLETE ADDRESS WERE DULY SUBMITT ED DURING ASSESSMENT PROCEEDINGS. THIS ACTION ON THE PART OF THE AO IS B AD IN LAW. 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSES SMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. A CLAIM OF BR OKERAGE AT THE RATE 2% AT RS.91,200/- HAS BEEN CLAIMED. THE ASSESSING O FFICER DISALLOWED THE SAME FINDING IT AS EXCESSIVE AND ONLY PART DETA ILS FILED. FURTHER, THE PAYMENTS ARE MADE BY CASH. THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IS SUSTAINED. THE GROUND OF APPEAL IS DISMI SSED. ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 4 CONCLUSIVELY, THE LD. CIT(A) CONFIRMED THE ACTION OF THE RELATING TO GROUND NO. 1 OF THE ASSESSEE. 2.2 DURING THE COURSE OF HEARING , THE LD. AR OF TH E ASSESSEE PRAYED FOR ALLOWANCE OF BROKERAGE EXPENSES PAID ON PURCHASE AN D SALE OF PROPERTY @ 2% INSTEAD OF 1% FOR WHICH THE ASSESSEE FILED THE W RITTEN SUBMISSION WHICH HAS BEEN TAKEN INTO CONSIDERATION. 2.3 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUT HORITIES. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS GROUND, IT IS NOTED TH AT THE ASSESSEE CLAIMED THE BROKERAGE @ 2% I.E. RS. 91,200/-. THE AO DISALL OWED HALF OF IT CONSIDERING THE SAME AS EXCESSIVE. AS PER DETAILS F ILED BY THE ASSESSEE, THERE IS A RECEIPT OF THE PAYMENT TO SHRI KALU RAM CHOUDHARY WITH FULL POSTAL ADDRESS. THE REVENUE HAS NOT VERIFIED THE CL AIM OF ASSESSEE FROM THE BROKER AND ONLY ON SUSPICION AND SURMISED DISAL LOWED THE CLAIM OF THE ASSESSEE. IT IS NOTED FROM THE WRITTEN SUBMISSI ON OF THE ASSESSEE THAT HE HAD PAID THE BROKERAGE @ 2% TO THE PARTY WHICH H AS BEEN ESTABLISHED FROM THE RECEIPT PRODUCED DULY SIGNED BY THE BROKER . HENCE, I DIRECT TO ALLOW THE BROKERAGE @ 2% OF THE ASSESSEE. THUS GROU ND NO. 1 OF THE ASSESSEE IS ALLOWED. ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 5 3.1 APROPOS GROUND NO. 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS REPRODUCED AS UNDER: - 2.1 THE RELEVANT EXTRACT OF THE ASSESSMENT ORDER IS AS UNDER: DURING THE YEAR, THE ASSESSEE HAS SOLD A HOUSE AT RS.76 LACS. DURING THE HEARING, THE ASSESSEE WAS ASKED TO FURNISH COPY OF SALE REGISTERED DEED AND FURNISH DETAILS OF CAPITAL GAIN. THE ASSESSEE HAS F URNISHED COPY OF SALE REGISTERED DEED AND ALSO FURNISHED COMPUTATION SHEE T OF CAPITAL GAIN. ON THE PERUSAL OF THE COMPUTATION SHEET THE ASSESSE E HAS SHOWN VALUE OF CONSIDERED AT RS.38 LACS IN THE HEAD OF SHORT TERM CAPITAL CLAIMING EXPENSES ON TRANSFER AT RS.76,000/- AND THE ASSESSEE HAS ALS O CLAIMED COST OF ACQUISITION AT RS. 45,60,000/- AND INCLUDED 2% OF B ROKERAGE AT RS.91,200/- SHOWING TOTAL COST OF ACQUISITION AT RS. 46,51,200/ -. THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF TRANSFER EXPENSES, BROKERAGE EXPENSES AND DETAILS OF COST OF ACQUISITION WITH COPY OF PURCHASE DEED. THE ASSESSEE HAS FURNISHED COPY OF PURCHASE AGREEMENT DEED AND FILED CONFIRMAT ION LETTER OF TRANSFER EXPENSES OF RS. 76,000/- AND BROKERAGE EXPENSES OF RS.91,200/-. THE ASSESSEE HAS FURNISHED PARTLY DETAILS OF TRANSFER E XPENSES AND BROKERAGE EXPENSES. THE ASSESSEE HAS FURNISHED PARTLY DETAILS OF TRANSFER EXPENSES AND BROKERAGE EXPENSES. THE ASSESSEE WAS ASKED TO EXPLA IN THE REASON AS TO WHY L/2 ND EXPENSES OUT OF TRANSFER EXPENSES AND OUT OF BROKE RAGE BE NOT DISALLOWED.. I HAVE CONSIDERED THE ARGUMENTS OF THE ASSESSEE AND FIND THAT THE ASSESSEE HAS NOT FURNISHED SUPPORTING EVIDENCE IN THIS REGAR D. I, THEREFORE, DISALLOW A SUM OF RS.38,000/- OUT OF TOTAL CLAIM OF RS.76,000/ . I ALSO DISALLOW A SUM OF RS.45,600/- OUT OF TOTAL BROKERAGE EXPENSES OF RS.9 1,200/-. ON PERUSAL OF PURCHASE AGREEMENT DEED IT IS FOUND T HAT THE ASSESSEE HAS MADE PAYMENTS IN CASH AT RS.13,60,000/- AND RS. 22, 00,000/- AND ALSO MADE PAYMENTS IN CHEQUE AT RS.8 LACS AND RS.2 LACS. THE ASSESSEE WAS ASKED TO FURNISH COPY OF BANK STATEMENT. THE ASSESSEE HAS FU RNISHED BANK ACCOUNTS. THE PAYMENTS MADE AT RS.8 LACS AND RS.2 LACS THROUG H CHEQUES ARE VERIFIED. THE ASSESSEE WAS ASKED TO EXPLAIN THE REASON THE SO URCE OF CASH PAYMENTS OF RS. 13,60,000/- AND RS. 22,00,000/- ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 6 I HAVE CONSIDERED THE ARGUMENTS FURNISHED BY THE AS SESSEE AND FIND THAT THE ASSESSEE HAS RECEIVED D.D. AMOUNTS OF RS.15 LACS FR OM SALE OF HOUSE AS PER REGISTERED SALE DEED AND THIS DD AMOUNT OF RS. 15 L ACS HAS BEEN DEPOSITED IN THE KOTAK BANK AND AFTER WITHDRAWING CASH OF RS. 15 LACS FROM THE KOTAK BANK, THIS CASH PAYMENT HAS BEEN MADE DIRECTLY TO T HE PARTY PURCHASER. THE ASSESSEE HAS ALSO FURNISHED CASH BOOK. I ALSO PERUS ED CASH BOOK FURNISHED BY THE ASSESSEE AND FIND THAT THESE TRANSACTIONS AR E MADE. THEREFORE, THE CONTENTION OF THE ASSESSEE REGARDING CASH PAYMENTS OF RS.15 LACS IS CORRECT AND THE SOURCE OF CASH PAYMENTS OF RS.15 LACS IS EX PLAINED. FURTHER EXPLANATION FURNISHED IN REGARD TO CASH PAYMENTS OF RS.13,60,000/- AND RS. 7,00,000/- (RS.22 LACS - RS.15 LACS), TOTALING TO R S.20,60,000/- ARE NOT JUSTIFIABLE. THE ASSESSEE HAS BEEN ASKED TO EXPLAIN THE REASONS AS TO WHY THE CLAIM OF COST OF INDEX OF RS. 20,60,000/- BE NOT DI SALLOWED AS THE CASH PAYMENTS ARE NOT VERIFIABLE.. I HAVE CONSIDERED THE ARGUMENTS OF THE ASSESSEE AND FIND THAT THE ASSESSEE HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCES IN THIS REGARD. THEREFORE, THE CREDIT IN COST OF ACQUISITION IN THE SHORT TERM CAP ITAL IS ALLOWABLE AT RS.25 LACS OUT OF TOTAL CLAIM OF COST OF INDEX AT RS. 45, 60,000/-. AND THE REMAINING COST OF INDEX CLAIMED AT RS. 20,60,000/- (RS. 45,60,000/- - RS. 25,00,000/-) IS DISALLOWED. I, THEREFORE, TREAT THE COST OF ACQUISITION AT RS.25,00,000/- LACS INSTEAD OF SHOWN AT RS. 45,60,0 00/-. 2.2 THE RELEVANT EXTRACT OF THE SUBMISSION OF THE A PPELLANT AS UNDER: AS MENTIONED IN THE BRIEF FACTS THAT APPELLANT HAD SOLD SOME PART OF HOUSE NO. C-63, MEASURING 444.44 SQ. YARDS AND RECE IVED RS. 76.00 LACS ON SALE OF ABOVE PORTION OF HOUSE AS FOLLOWS: S.NO. AMOUNT CASH/CHEQUE/DD NO. DATE A. 10,00,000.00 CASH 25-06-2009 B. 14,00,000.00 CHEQUE NO.080073 25-06-2009 C. 6,00,000.00 CHEQUE NO. 080074 25-06-2009 D. 5,00,000.00 CHEQUE NO. 080909 11-08-2009 E. 8,00,000.00 DD NO.050058 30-04-2010 F. 18,00,000.00 DD NO.0512826 08-05-2010 G. 15,00,000.00 DD NO.0512827 08-05-2010 ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 7 [COPY OF REGISTERED SALE DEED IS ENCLOSED AS PER AN NEXURE -2, PAGE- 3 TO 11] A ABOVE HOUSE WAS SOLD BY PURCHASING SOME PORTION OF PLOT FROM SMT. KAMLA GHIYA MEASURING 222.22 SQ. YDS FOR RS. 45.60 LACS. OUT OF RS. 7600000/- (RS. SEVENTY SIX LACS ON LY) RECEIVED THROUGH SALE OF HOUSE A SUM OF RS. 4560000/- (RS. F ORTY FIVE LACS SIXTY THOUSAND ONLY) HAS BEEN PAID TO SMT. KAMLA GH IYA AS FOLLOWS:- AS THE ASSESSEE HAD TO BUILD THE HOUSE FOR RESIDENT IAL PURPOSES AND HE HAD NO MONEY SO HE HAD TO SELL THE NORTH WEST PORTI ON. NORTH WEST PORTION ALONE COULD NOT HAVE BEEN SOLD WITHOUT THE PORTION POSSESSED BY SMT. KAMLA GHIYA BECAUSE NO APPROACHING ROAD WAS THERE WITH NORTH WEST PORTION, HENCE COMPROMISE WAS GOT MADE B Y BUYER SH. JOHRI LAI SODHANI AND MAXIMUM OF THE PAYMENTS WERE DIRECTLY MADE BY BUYER SH. JOHRI LAI SODHANI TO THE SELLER SMT. K AMLA GHIYA. [COPY OF PURCHASE AGREEMENT IS ENCLOSED AS PER ANNE XURE -5, PAGE- 31 TO 32] THE LD. AO DISALLOWED THE PURCHASE COST TO THE EXTE NT OF RS. 20.60 LACS ON THE GROUND THAT AMOUNT HAS BEEN PAID IN CAS H AND THE SAME IS NOT VERIFIABLE. THIS ACTION ON THE PART OF THE AO I S BAD IN LAW DUE TO FOLLOWING REASONS:- DETAILED CASH ACCOUNT WAS SUBMITTED FOR THE F. Y . 2010- 11 & THE SAME WAS CORRECT AND ACCEPTED BY THE LD. A O. [DETAILED CASH ACCOUNT AS PER ANNEXURE-3, PAGE- 12 TO 15 ] * LD. AO REJECTED RS. 10 LAC PAYMENT MADE TO SMT. KAMLA GHIYA BEING SELLER OF THE PLOT ON THE GROUND THAT THE SAME IS NOT VERIFIABLE. HERE WE WOULD LIKE TO STATE THAT RS. 10 LACS WERE RECEIVED FROM SH. JOHRI LAI SODHANI & SMT. RAJUL SODHANI ON 25/06 /2009 WHICH CAN BE VERIFIED FROM SALE DEED DATED 12/05/2010 ENCLOSE D AS PER ANNEXURE -2, PAGE- 3 TO 11 AND THE SAME WAS ACCEPTED BY SMT. KAMLA GHIYA, VERIFIABLE FROM AGREEMENT DATED 12/05/2010, COPY OF WHICH IS ENCLOSED HERE WITH AS PER ANNEXURE-5, PAGE- 31 TO 3 2. ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 8 * RS. 3.60 LAC WERE PAID FROM OWN SOURCES ON 25/06/2009 AND THE SAME WAS ACCEPTED BY SMT. KAMLA GHIYA, VERIFIABLE FROM AGREEMENT DATED 12/05/2010. * RS. 22 LACS WERE ACCEPTED BY THE SELLER SMT. KAM LA GHIYA ON 12/05/2010 AS VERIFIABLE FROM AGREEMENT DA TED 12/05/2010. OUT OF ABOVE, RS. 15 LAC HAS BEEN ACCEPTED BY THE L D. A.O. BUT CLAIM OF RS. 7 LAC WAS REJECTED ON THE GROUND THAT THE SA ME IS NOT VERIFIABLE. HERE WE WOULD LIKE TO STATE THAT RS. 7 LAC WAS GIVE N FROM CASH IN HAND AND THE SAME CAN BE VERIFIED FROM THE CASH STA TEMENT PROVIDED AS PER ANNEXURE-3, PAGE-12 TO 15. THE APPELLANT HAD SOLD SOME PART OF THE RESIDENTIAL HOUSE PROPERTY AND INVESTED THE SALE PROCEEDS IN CONSTRUCTION OF RESID ENTIAL HOUSE ON THE BALANCE PART OF THE PROPERTY. APPELLANT HAD CLAIMED EXEMPTION U/S 54 BUT THE LD. AO MENTIONED IN HIS ASSESSMENT ORDER EX EMPTION U/S 54F, WHICH APPEARS TO BE A CLERICAL MISTAKE. UNDER THE CIRCUMSTANCES, YOUR HONOR IS URGED TO KIN DLY CONSIDER THE ABOVE AND PASS APPROPRIATE ORDERS IN THE INTEREST O F JUSTICE. 2.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSES SMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. DURING THE RE LEVANT YEAR, THE ASSESSEE HAS SOLD A HOUSE AT RS.76,00,000/- AND DET AILS OF CAPITAL GAIN WERE FURNISHED. THE SALE OF HOUSE COMPRISED OF AN A REA OF 222 SQ. YARDS WHICH BELONGED TO THE ASSESSEE WHILE THE AREA OF 22 2 SQ. YARDS WAS PURCHASED BY THE ASSESSEE FROM SMT. KAMLA GHIYA BEF ORE SELLING THE ABOVE 444 SQ. YARDS OF HOUSE AT C-63. THE ASSESSEE THUS HAS RETURNED THE CAPITAL GAIN IN TWO PARTS - SHORT TERM CAPITAL GAIN RELATING TO THE PORTION PURCHASED FROM SMT. KAMLA GHIYA AND LONG TERM CAPIT AL GAIN RELATING TO THE PORTION OWNED BY IT. THE ASSESSING OFFICER DISALLOWED A PORTION OF COST OF ACQUISITION OUT OF THE AMOUNT PAID TO SMT. KAMLA GHIYA I.E. AS AGAINST RS.45,60,000/- CLAIMED BY THE APPELLANT, AN AMOUNT OF RS.25,00,000/- HAS BEEN ALLOWED AND THE BROKERAGE EXPENSES PAID HA VE BEEN RESTRICTED TO 1% INSTEAD OF 2%. THIS GROUND RELATES TO THE DISALLOWANCE OF RS.20,60 ,000/- PAID BY THE ASSESSEE TO SMT. KAMLA GHIYA IN CASH. ON PERUSA L OF THE PURCHASE ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 9 AGREEMENT, THE ASSESSING OFFICER FOUND, THAT THE CO NSIDERATION OF RS.45,60,000/- TO SMT. KAMLA GHIYA HAD BEEN MADE EN TIRELY IN CASH. THE DETAILS OF THE SAME WERE EXPLAINED BY THE ASSES SEE TO THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AND IT WA S ALSO SUBMITTED THAT THE LADY WAS A WIDOW AND NOT VERY EDUCATED AND HENC E INSISTED ON THE PAYMENT OF THE CONSIDERATION IN CASH. THE BREAKUP O F THE PAYMENTS WERE EXPLAINED AS FOLLOWS AS PER THE ASSESSMENT ORDER: (A) RS. 10 LACS IN CASH DIRECTLY RECEIVED FROM JOHR I LAL SODHANI & SMT. RAJUL SODHANI AND RS. 360000/- FROM OUR BOOKS ON 25/06/2009. (B) RS.8 LACS THROUGH CHQ. NO.050058 DATED 30/04/20 10 DIRECTLY RECEIVED FROM SH. JOHRI LAI SODHANI & SMT. RAJUL SO HANI. (C) RS. 2 LACS THROUGH CHQ. NO. 050072 DATED 10/05/ 2010 FROM OWN SOURCES. (D) RS.22 LACS CASH HAS BEEN PAID FROM FOLLOWING S OURCES: (I) RS. 15 LACS (RS. FIFTEEN LACS ONLY), CASH WITHD RAWN FROM OUR BANK KOTAK BANK THROUGH DEPOSITING SALE PROCEED S RECEIVED FROM JOHRI LAI SODHANI & SM. RAJUL SODHANI MENTIONED IN PART 1(G) ABOVE. (II) RS. 7 LACS (RS. SEVEN LACS ONLY) WERE GIVEN IN CASH THROUGH CASH GIFT FROM ASSESSEES WIFE & CASH IN HA ND. DETAILED CASH ACCOUNT STATEMENT HAS ALREADY BEEN SUBMITTED TO YOU R GOODSELF. OUT OF THE ABOVE, THE ASSESSING OFFICER ACCEPTED AN AMOUNT OF RS.25,00,000/- OUT OF WHICH RS. 15,00,000/- RELATED TO THE ITEM AT D(I) ABOVE AND REJECTED THE PAYMENTS MADE AT ITEMS A A ND D(II), TOTALLY TO AN AMOUNT OF RS.20,60,000/-. THE AMOUNT OF RS. 10,0 0,000/- PAID IN CASH DIRECTLY TO SMT. KAMLA GHIYA FROM CASH RECEIVE D FROM SHRI JOHRI LAI SODHANI AND SMT. RAJUL SODHANI, RS.3,60,000/- F ROM THE ALSO AVAILABLE IN BOOKS, RS.7,00,000/- RELATING TO CASH GIFTS FROM WIFE AND CASH IN HAND WERE NOT ACCEPTED BY THE ASSESSING OFF ICER. IN THE PRESENT PROCEEDINGS, THE AUTHORIZED REPRESENTATIVE HAS SUBM ITTED THAT RS.7,00,000/- WERE GIVEN IN CASH FROM CASH IN HAND AS ASSESSEE HAD RECEIVED CASH GIFT OF RS.9,33,000/- FROM BROTHER IN LAW AND RS.5,00,000/- FROM WIFE AND DETAILS OF THE SAME WER E FILED IN PAPER BOOK. FURTHER, A CONFIRMATION STATEMENT/CERTIFICATE REGARDING PAYMENT OF RS. 10,00,000/- TO SMT. KAMLA GHIYA DIRECTLY ON 25. 06.2009 BY SHIR ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 10 JOHRI LAI SODHANI WAS FILED AND SOUGHT TO BE ADMITT ED UNDER SECTION 46A OF THE I.T. ACT, 1961. THE SAME WAS ADMITTED AN D FORWARDED TO THE ASSESSING OFFICER FOR HIS COMMENTS. IN THE REMAND R EPORT RECEIVED, THE ASSESSING OFFICER HAS SIMPLY OBJECTED TO THE ADMISS ION OF ADDITIONAL EVIDENCE AND NO COMMENTS ON THE EVIDENCE HAVE BEEN FORWARDED. SINCE DURING THE ASSESSMENT ITSELF THE SUBMISSIONS REGARD ING THE PAYMENT IN CASH BY THE SODHANIS WAS MADE AND IT WAS PLEADED TH AT THE CONFIRMATION FROM THEM COULD NOT BE PRODUCED AS THE SAME COULD B E OBTAINED ONLY SUBSEQUENT TO THE ASSESSMENT, THE SAME HAS BEEN ADM ITTED. THIS FACT IS ALSO VERIFIABLE FROM THE REGISTERED SALE DEED AND A GREEMENT WITH SMT. KAMLA GHIYA. THUS, BASED ON THE EVIDENCES AS DISCUS SED ABOVE, THIS AMOUNT OF RS. 10,00,000/- PAID IN CASH FROM THE AMO UNT RECEIVED IN CASH FROM SHRI JOHRI LAI SODHANI AND SMT. RAJUL SODHANI, FOR WHICH CONFIRMATION HAS ALSO BEEN FILED, IS ACCEPTED. AS R EGARDS THE OTHER AMOUNTS, THE SAME WERE NOT PROPERLY PROVED BEFORE T HE ASSESSING OFFICER NOR ANY FURTHER EVIDENCES HAVE BEEN PRODUCE D BEFORE ME, HENCE, THE BALANCE AMOUNTS ARE NOT ACCEPTED. THUS, THE COS T OF ACQUISITION OF THE PORTION RELATING TO SHORT TERM CAPITAL GAIN WIL L BE RS.35,00,000/- INSTEAD OF RS.25,00,000/- CONSIDERED BY THE ASSESSI NG OFFICER. 3.2 DURING THE COURSE OF HEARING , THE LD. AR OF TH E ASSESSEE PRAYED THAT THE LD. CIT(A) ERRED IN DISALLOWING THE COST O F ACQUISITION OF 222.22 SQ. YARDS AREA BY RS. 10,60,000/- STATING THAT THEY WERE NOT PROPERLY PROVED NOR ANY FURTHER EVIDENCES WERE FILED FOR WHI CH THE LD. AR OF THE ASSESSEE FILED THE WRITTEN SUBMISSION WHICH HAS BEE N TAKEN INTO CONSIDERATION. 3.3 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUT HORITIES. 3.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORDS T HAT THE ASSESSEE HAD MADE TOTAL PAYMENTS FOR THE PROPERTY PURCHASED AS U NDER:- ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 11 S.N. DATE AMOUNT SOURCE WHETHER ALLOWED OR NOT BY AO 1. 25-06-09 10,00,000 DIRECTLY PAID TO SMT. KAMLA GHIYA BY SHRI JOHRI LAL SODHANI AND SMT. RAJUL SODHANI NOT ALLOWED 2. 25-06-09 3,60,000 OWN SOURCES NOT ALLOWED 3. 30-04-10 8,00,000 THROUGH CHEQUE RECEIVED FROM SHRI JOHRI LAL SODHANI AND SMT.RAJU SODHANI 4. 10-04-10 2,00,000 THROUGH CHEQUE RECEIVED FROM SHRI JOHRI LAL SODHANI AND SMT.RAJU SODHANI 5. 12-05-10 15,00,000 THROUGH CASH WITHDRAWN FROM BANK OUT OF THE AMOUNT RECEIVED FROM SMT. JOHRI LAL SODHARNI AND SMT.RAJUL SODHANI 6. 12-05-10 7,00,000 THROUGH CASH BALANCE LYING IN HAND AND CASH GIFT NOT ALLOWED TOTAL 45,60,000 THE ISSUE IN QUESTION IS RELATING TO DISALLOWANCE O F RS. 20,60,000/- PAID BY THE ASSESSEE TO SMT. KAMLA GHIYA IN CASH. IT IS FURTHER NOTED THAT THE LD. CIT(A) HAD ACCEPTED THE AMOUNT OF RS. 10.00 LAC S IN THE CASE OF SMT.KAMLA GHIYA WHO RECEIVED THE AMOUNT IN CASH FR OM SHRI JOHRI LAL SOHANI AND SMT.RAJUL SODANI. HOWEVER, THE LD. CIT(A ) CONCLUSIVELY OBSERVED THAT THE COST OF ACQUISITION OF THE PORTIO N RELATING TO SHORT TERM ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 12 CAPITAL GAIN WILL BE RS. 35.00 LACS INSTEAD OF RS. 25.00 LACS CONSIDERED BY THE AO. THE LD. CIT(A) HAD NOT ACCEPTED THE EXPL ANATION WITH REGARD TO RS. 3,60,000/- FROM OWN BOOKS AND RS. 7,00,000/ - CASH IN HAND AND CASH GIFT FROM BROTHER-IN-LAW. A COPY OF CASH BOOK IS PLACED ON RECORD FOR THE PERIOD FROM 01-04-2010 TO 31-03-2011 FROM WHERE THE AMOUNT OF RS. 3.60 LACS WAS PAID IS NOT SPECIFIED. FURTHER THE GI FT DEED HAS BEEN SUBMITTED FROM SHRI BRAJ KISHORE MISHRA S/O LATE SH RI RAM MISHRA R/O 1077, Y BLOCK, KIDWAI NAGAR, KANPUR (U.P.) SHOWING GIFT OF RS. 9.33 LACS ON VARIOUS DATES BUT IT IS NOT CLEAR AS TO HOW THE GIFTS WERE RECEIVED ON SIX OCCASIONS STARTING FROM 14-09-2009 TO 29-07- 2011 AND AS TO HOW ONE GIFT DEED WAS EXECUTED. HENCE, ALL THE FACTS RE LATING TO GIFTS RECEIVED REQUIRES VERIFICATION FROM THE BOOKS OF ACCOUNT OF THE ASSESSEE WELL AS FROM DONORS. THUS KEEPING IN VIEW THE ABOVE DELIBER ATIONS AND IN THE INTEREST OF JUSTICE AND EQUITY, I RESTORE THE ISSUE TO THE FILE OF THE AO TO DECIDE IT DE NOVO BY PROVIDING REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO SUBM IT ALL THE RELEVANT RECORDS TO THE ISSUE IN QUESTION BEFORE THE AO. THU S GROUND NO. 2 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 678/JP/2016 SHRI RAJEEV RATAN SHUKLA VS. ITO WARD- 4 (4), JAIPU R . 13 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31 /10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAJEEV RATAN SHUKLA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 4 (4), 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. 678/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR