SHRI SHANKAR DAS SHAHJWANI, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 71/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7201 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 22-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Additional evidence; Cost of acquisition; Reasonable cause; Corroborative evidences; Capital Gains
• Section: 205; 143(2); 131; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC H A 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 VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 71/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2007-08 SMT. PARWATI DEVI (WIDOW), SHRI MANOJ KUMAR, MOHIT & JAI (SONS) L/H OF SHRI SHANKAR DAS SHAJWANI, C/O MUSKAN HONDA, TONK, CUKE VS. INCOME-TAX OFFICER, WARD-6(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABWPS5846D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI K. L. MOOLCHANDANI (AR) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/10/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 18/10/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE ON 22.01.2 018 AGAINST THE ORDER OF LD. CIT(A), AJMER DATED 17.07.2017. AT THE OUTSET, IT IS NOTED THAT THE APPELLANT HAS SINCE EXPIRED ON 18.01.2018. SUBSEQUENTLY, THE ASSE SSEE HAS FILED REVISED FORM NO. 36 ON 6.09.2019 DULY SIGNED BY LEGAL HEIRS OF THE ASSESSEE AND THE GROUNDS OF APPEAL TAKEN ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. AUTHORITIES BELOW HAVE FACTUALLY AND LEGALLY ERRED IN TURNING D OWN THE AFFIDAVIT OF SHRI VIJENDRA SINGH LODHI ON THE PLEA THAT THE WITNESS C OULD NOT BE PRODUCED IN PERSON FOR CROSS EXAMINATION. THE VIEW SO TAKEN IS CONTRARY TO THE PROVISIONS OF EVIDENCE ACT AND IS BAD IN LAW TO BE QUASHED IN LIMINE. 2 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. AO HAD FACTUALLY AND LEGALLY ERRED IN TAKING THE COST OF A CQUISITION OF THE PLOT SOLD AT NIL FIGURE WHILE COMPUTING THE LTCG. HOWEVER, THE L D. CIT(A) HAS DIRECTED THE AO TO TAKE SUCH COST OF ACQUISITION AT RS. 1 LAC PL US RS. 4201/- (MEMBERSHIP FEE AND CONVERSION CHARGE ETC.) FOR INDEXATION PURP OSES AND WORKING OUT THE LTCG WITHOUT ANY BASIS AND BY IGNORING THE AFFIDAVI T OF THE PURCHASER, CONFIRMING THEREIN THE SALE OF THE PROPERTY FOR RS. 18 LAC. THUS, THE WORKING OF THE LTCG IS BASED ON WRONG FOOTINGS AND DESERVES TO BE MODIFIED. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE SOLD AN IMMOVABLE PROPERTY SITUATED AT 6, LAKHANPURI, DURGAPURA, TONK ROAD, JAIPUR FOR A CONSIDERATION OF RS. 1,00,00,000/- AND THE SAID AMOUNT WAS FOUND DEPOSITED IN THE APPELLANTS BANK ACCOUNT. NOTICE U/S 148 WAS ISSUED TO THE ASSE SSEE ON 25.03.2014. HOWEVER, NO RETURN OF INCOME WAS FILED IN RESPONSE TO THE SA ID NOTICE. SUBSEQUENTLY, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A SHOW CAUSE WAS ISSUED TO THE ASSESSEE TO FILE HIS RETURN OF INCOME U/S 148 AND TO FILE ANY D OCUMENTARY EVIDENCE WITH REGARD ACQUISITION OF THE PROPERTY. HOWEVER, IN ABSENCE OF ANY RESPONSE FROM THE ASSESSEE, THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASS ESSMENT U/S 144 WHEREIN HE BROUGHT THE WHOLE OF THE SALE CONSIDERATION TO TAX UNDER THE HEAD LONG TERM CAPITAL GAINS WITHOUT ALLOWING ANY DEDUCTION FOR THE COST OF ACQUISITION. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE THE LD. CIT(A) AND SOUGHT PERMISSION TO FILE COPY OF THE AG REEMENT TO SALE UNDER RULE 46A WHICH WAS PERMITTED BY THE LD. CIT(A) AND THE REMAN D REPORT FROM THE ASSESSING OFFICER WAS CALLED FOR. AFTER CONSIDERING THE SUBMI SSIONS OF THE ASSESSEE AS WELL AS THE REMAND REPORT OF THE ASSESSING OFFICER, THE LD. CIT(A) HAS ALLOWED PART RELIEF TO THE ASSESSEE AND AGAINST THE SAID FINDING, THE ASSE SSEE IS IN APPEAL BEFORE US. 4. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE APPELLANT HAS EXPIRED ON 18.1.2018 AND HIS LEGAL HEIRS HAVE BEEN BROUGHT ON RECORD AND AS DIRECTED BY THE BENCH, THE REVISED FORM 36 DULY SIG NED BY THE LEGAL HEIRS NAMELY, SMT PARWATI DEVI, MANOJ KUMAR, MOHIT AND JAI HAS BE EN FILED. 3 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR 5. IT WAS FURTHER SUBMITTED BY THE LD AR THAT AS PE R AIR RECEIVED BY THE DEPARTMENT, DURING THE YEAR UNDER CONSIDERATION, TH E APPELLANT HAD SOLD A RESIDENTIAL PLOT OF RAJHANS COOPERATIVE HOUSING SOC IETY, JAIPUR FOR RS. ONE CRORE. ACCORDINGLY, HIS CASE WAS TAKEN UP FOR SCRUT INY U/S 143(2) OF THE ACT. THE APPELLANT BEING A LAYMEN AND IGNORANT ABOUT HIS LEG AL OBLIGATIONS WAS TOTALLY AT SEA AND UN-AWARE ABOUT THE IMPLICATIONS AND CONSEQU ENCES OF THE RE-ASSESSMENT PROCEEDINGS INITIATED U/S 147/148 OF THE ACT. ACCOR DINGLY, NO COMPLIANCE OF ANY OF THE STATUTORY NOTICES ISSUED TO HIM FROM TIME TO TI ME WITH THE QUERY LETTERS ETC. COULD BE MADE AS DISCUSSED IN THE BODY OF THE ASSES SMENT ORDER. ON ACCOUNT OF THE NON-COMPLIANCE OF VARIOUS NOTICES AND QUERY LETTERS , THE LD. AO HAD PROCEEDED TO PASS AN EX-PARTE ORDER U/S 144 OF THE ACT AND COMPU TED THE ENTIRE SALE CONSIDERATION OF RS. 1 CRORE AS CAPITAL GAIN AND TAXED THE SAME PLUS INCOME OF RS.1,27,598/- ALLEGEDLY EARNED FROM THE ADVANCES A S NOTED FROM HIS BANK STATEMENT. OBVIOUSLY THE INCOME SO DETERMINED UNDER SECTION 144 OF THE ACT WAS NOT FAIR AND REASONABLE AND WAS NOT LEGALLY MAINTAI NABLE; SO MUCH SO THAT THE CREDIT OF THE 'COST OF ACQUISITION' OF THE PROPERTY AND INDEXATION THEREON WAS NOT ALLOWED WHILE COMPUTING THE CAPITAL GAINS. LIKE-WIS E, AS SEEN FROM THE BANK STATEMENT ITSELF, THE MONEYS WERE ADVANCED AT THE E ND OF THE FINANCIAL YEAR COULD HARDLY YIELD ANY INTEREST INCOME. IN THE CIRCUMSTAN CES, THE ASSESSMENT ORDER SO PASSED U/S 144 OF THE ACT BY THE LD. AO ON 28.11.20 14 WAS ASSAILED BEFORE THE LD. CIT (A) ON THE BASIS OF ADDITIONAL EVIDENCES FILED UNDER RULE 46A OF IT RULES, 1962. THE ADDITIONAL EVIDENCES CONSISTED OF A COPY OF THE 'AGREEMENT TO SALE' OF THE SAID PROPERTY BY THE SELLER SHRI VIJENDERA SING H LODI, CERTIFYING THEREIN THAT THE COST OF ACQUISITION OF THE ASSET AT RS. 18 LAC. 6. IT WAS FURTHER SUBMITTED THAT IN THE APPEALLLATE PROCEEDINGS, THE LD. CIT (A) WAS PLEASED TO ADMIT SUCH ADDITIONAL EVIDENCES AND HAD OBTAINED REMAND REPORT FROM THE AO. IN THE REMAND REPORT, IT WAS IN FORMED BY THE LD. AO THAT THE AFFIDAVIT OF THE WITNESS WAS NOT LEGALLY MAINTAINAB LE AS THE WITNESS DID NOT ATTEND HIS OFFICE IN COMPLIANCE TO NOTICE ISSUED U/ S 131 OF THE ACT. IN COUNTER COMMENTS, IT WAS INFORMED BY THE APPELLANT VIDE LET TER DATED 15.6.2017 THAT THE 4 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR ALLEGED NON-COMPLIANCE ON THE PART OF THE WITNESS W AS NOT IN HIS 'NOTICE'. HAVING CONSIDERED THE MATERIAL ON THE RECORD AND THE REMAN D REPORT AND COUNTER- COMMENTS ETC., THE LD. CIT (A) HAD OPINED THAT THE COST OF ACQUISITION OF THE PROPERTY COULD NOT BE IGNORED WHILE WORKING OUT THE CAPITAL GAINS. THE LD. CIT (A) HAD ACCORDINGLY ESTIMATED THE COST OF ACQUISITI ON OF THE ASSET AT RS.1 LAC ON THE DATE OF PURCHASE I.E. ON 31.10.81 AND HAD DIREC TED THE AO TO ALLOW DEDUCTION OF RS. 1 LAC AFTER ALLOWING INDEXATION AS PER PROVISIONS OF LAW. 7. IT WAS FURTHER SUBMITTED THAT THE LD. CIT (A) WA S SATISFIED ABOUT THE PURCHASE OF THE PLOT BY THE APPELLANT IN 1981 AS EV IDENT FROM THE OFFICE RECORDS OF THE 'SOCIETY' AND FROM THE DETAILS OF RECEIPT NO . ETC. AS MENTIONED IN THE REGISTERED SALE DEED. THUS ACQUISITION OF THE PLOT BY THE APPELLANT IN THE YEAR 1981 IS AN ADMITTED FACT. THE ONLY POINT OF CONTENT ION IS THE `COST OF ACQUISITION' OF THE SAID PLOT. THE APPELLANT HAD SH OWN THE COST OF THIS PLOT AT RS.18 LAC AS PER AFFIDAVIT OF SHRI VIJENDRA SINGH L ODHI, WHO HAD SOLD THE PLOT TO THE APPELLANT IN THE YEAR 1981. THE AUTHORITIES BE LOW WERE HOWEVER NOT WILLING TO ACCEPT THE CONTENTS OF THE AFFIDAVIT OF WITNESS ON THE GROUND THAT THE WITNESS DID NOT ATTEND THE OFFICE IN PERSON TO CON FIRM THIS FACT. IN THE CIRCUMSTANCE, THE LD. CIT (A) HAD ESTIMATED THE COS T OF ACQUISITION OF THE PLOT AT RS. 1 LAC IN ABSENCE OF ANY MATERIAL BROUGHT ON RECORD. THUS THE ESTIMATED COST OF ACQUISITION AT RS. 1 LAC IS WITHOUT ANY BAS IS IN ABSENCE OF ANY SUPPORTING EVIDENCE OR DETAILS. FURTHER AS PER PROVISIONS OF E VIDENCE ACT, THE CONTENTS OF THE AFFIDAVIT OF THE WITNESS CANNOT BE RUBBISHED IN ABSENCE OF ANY CONTRADICTORY MATERIAL BROUGHT ON RECORD. IN THE CIRCUMSTANCES, T HE AFFIDAVIT OF THE WITNESS AS SUBMITTED BY THE APPELLANT CARRIED EVIDENTIARY V ALUE, WHICH SHOULD NOT BE SHELVED SUMMARILY ON THE PLEA THAT THE WITNESS DID NOT ATTEND THE OFFICE IN PERSON TO CONFIRM THIS FACT. MOREOVER THE SUMMONS W AS ISSUED BY THE LD. AO TO THE WITNESS DIRECTLY WITHOUT NOTICE OF THE AP PELLANT. IN THE CIRCUMSTANCES, THE APPELLANT COULD NOT ENSURE THE A TTENDANCE OF THE WITNESS IN COMPLIANCE TO THE SUMMONS ISSUED U/S 131 OF THE ACT. WHEN THE APPELLANT CAME TO KNOW ABOUT SUCH NON-ATTENDANCE BY THE WITNESS, HE 5 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR (APPELLANT) WAS SERIOUSLY ILL AND COULD NOT CONTACT THE WITNESS TO CONFIRM THIS FACT IN PERSON BEFORE THE DEPARTMENT. THUS THE APPELLANT WAS PREVENTED BY REASONABLE CAUSE FROM PRODUCING THE WI TNESS IN PERSON TO CONFIRM THIS FACT. THE LD. CIT (A) HAS HOWEVER FAIL ED TO APPRECIATE THIS FACT AND HAS TURNED DOWN THE CONTENTS OF THE AFFIDAVIT W ITHOUT APPRECIATING THE FACT THAT IN THE ABSENCE OF ANY CONTRARY MATERIAL B ROUGHT ON RECORD, THE AFFIDAVIT OF THE WITNESS CARRIES EVIDENTIARY VALUE AS PER EVIDENCE ACT AND SHOULD BE ACCEPTED IN SUPPORT OF THE COST OF ACQUIS ITION OF THE PLOT UNDER CONSIDERATION. IN THE CIRCUMSTANCES, THE FINDINGS O F THE LD. CIT (A) REGARDING ESTIMATED COST OF ACQUISITION ARE DEVOID OF MERITS AND DESERVES TO BE QUASHED. THE COST OF ACQUISITION OF THE SOLD ASSETS SHOULD BE TAKEN AS PER AFFIDAVIT OF THE WITNESS. 8. IT WAS FURTHER SUBMITTED BY THE LD AR THAT AFTE R THE DEMISE OF THE APPELLANT, THE LEGAL HEIRS OF THE APPELLANT WERE AP PROACHED TO PROCURE ANY OTHER COGNIZABLE EVIDENCE IN SUPPORT OF THE COST OF ACQUI SITION OF THE PLOT UNDER CONSIDERATION. THEY HAVE HOWEVER EXPRESSED THEIR TO TAL INABILITY TO ADDUCE ANY OTHER EVIDENCE IN THIS REGARD AS THE MATTER WAS ABO UT 38 YRS OLD. MORE-OVER ALL THE SONS OF THE APPELLANT HAD BEEN PUTTING UP SEPAR ATELY FOR A LONG TIME SO THEY DO NOT RECALL ANY OF THE DETAILS OF THIS TRANSACTIO N. THEY HAVE ALSO CONFIRMED THE FACT THAT THEY HAVE NOT INHERITED ANY ASSET FROM TH E DECEASED APPELLANT. 9. IT WAS ACCORDINGLY SUBMITTED BY THE LD AR THA T IN ABSENCE OF ANY CONTRADICTORY MATERIAL BROUGHT ON RECORD, THE AFFID AVIT OF THE WITNESS SHOULD BE ACCEPTED AS PER EVIDENCE ACT AND THE `CAPITAL GAIN' BE WORKED OUT ON THE BASIS OF THE COST OF ACQUISITION AS SHOWN IN SUCH AFFIDAVIT ONLY. ACCORDINGLY, THE ADDITION MADE AND CONFIRMED ON THE BASIS OF ARBITRARY AND ES TIMATED FIGURES OF RS. 1 LAC AS TAKEN BY THE LD. CIT(A) LAC DESERVES TO BE DELETED. 10. PER CONTRA, THE LD. DR SUBMITTED THAT THE PLOT MEASURES 205 SQ YARDS AND AS PER PURCHASE VALUE OF RS 18 LACS SUBMITTED BY THE A SSESSEE, IT COMES TO RS 8780/SQ YARD WHICH SEEMS EXCESSIVE AND UNBELIEVABLE AS PER RATES PREVALENT AT THAT TIME. 6 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR FURTHER, HE HAS RELIED ON THE FINDINGS OF THE ASSES SING OFFICER AS WELL AS LD. CIT(A) AND OUR REFERENCE WAS DRAWN TO THE FINDINGS OF THE LD. CIT(A) CONTAINED AT PARA 6.3 OF HIS ORDER WHICH IS REPRODUCED AS UNDER: 6.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER, STAT EMENT OF FACTS, GROUNDS OF APPEAL, WRITTEN SUBMISSION, REMAND REPOR T AND REJOINDER CAREFULLY. IT IS SEEN THAT THERE IS NO DISPUTE ABOUT THE AMOUN T OF SALES CONSIDERATION. THE PLOT OF LAND NO. S-6 IN LAKHANPURI SCHEME OF TH E RAJHANS COOPERATIVE SOCIETY LTD. WAS ADMITTEDLY SOLD BY THE APPELLANT F OR THE SALES CONSIDERATION OF RS. 1 CRORE. THIS FACT IS ALSO VERIFIABLE WITH T HE COPY OF REGISTERED SALE DEED DATED 01.02.2007 FILED BY THE APPELLANT. AS FAR AS THE COST OF THE ACQUISITION OF THE PLOT IS CONCERNED, DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE APPELLANT DID NOT FURNISH ANY EVIDENCE IN RESPECT O F ANY COST OF ACQUISITION CLAIMED TO HAVE BEEN PAID BY THE APPELLANT. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS FILED COPY OF AGREE MENT TO SALE BETWEEN THE APPELLANT AND SHRI VIJENDRA SINGH LODI. THE AGREEME NT IS NOT REGISTERED. THE AGREEMENT IS ALSO NOT EVEN NOTARIZED. IN THE COPY O F THE AGREEMENT GIVEN BY THE APPELLANT, THERE IS NO SIGNATURE OF BUYER OR SE LLER. IT IS SEEN FROM THE COPY OF AGREEMENT FILED BY THE APPELLANT THAT THE NON JU DICIAL STAMP PAPER OF RS. 100/- WAS PURCHASED ON 10.04.1979. THE APPELLANT HA S NOT PRODUCED EVEN THE ORIGINAL AGREEMENT TO SALE FOR VERIFICATION B EFORE THE AO EITHER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR REMAND PROCEEDI NGS. THE AO DURING THE COURSE OF REMAND PROCEEDINGS HAD ISSUED A LETTER DA TED 17.01.2017 TO THE APPELLANT AS UNDER:- PLEASE REFER TO THE APPELLATE PROCEEDINGS PENDING IN YOUR CASE FOR ASSTT YEAR 2007-08 BEFORE LD. CIT(A), AJMER (CAMP AT JAIPUR). 2. IT IS SEEN THAT YOU HAVE FILED A REQUEST BEFORE LD. CIT(A) AJMER (CAMP AT JAIPUR) FOR ADMITTING ADDITIONAL EVIDENCES U/R 4 6A OF THE I.T. RULES 1962. IN THIS REGARD, AFTER GOING THROUGH THE ASSESSMENT REC ORD, IT IS SEEN THAT DURING THE YEAR UNDER CONSIDERATION YOU HAD SOLD A LAND SI TUATED AT PLOT NO. S-6, LAKHANPURI SCHEME, DURGAPURA, TONK ROAD, JAIPUR FOR A CONSIDERATION OF RS. 7 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR 1.0 CRORE. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, YOU WERE PROVIDED ENOUGH OPPORTUNITIES ON MULTIPLE OCCASIONS TO EXPLA IN YOUR SIDE AND FURNISH EVIDENCES/DOCUMENTS IN RESPECT OF COST OF ACQUISITI ON. HOWEVER, YOU DID NOT PRODUCE ANYTHING IN SUPPORT OF COST OF ACQUISITION. AS A RESULT, WHOLE OF THE SALE CONSIDERATION WAS ADDED TOTAL INCOME AS CAPITA L GAIN INCOME. 3. NOW, A COPY OF AN AGREEMENT TO SELL IS SUBMITTED BY YOU BEFORE APPELLATE AUTHORITY AS PER WHICH YOU HAD PURCHASED THE AFOREMENTIONED PLOT OF LAND FOR RS. 18.00 LACS ON 10-04-1981 FROM SHRI VIJENDERA SINGH LODI. IN THIS REGARD, YOU ARE REQUESTED TO EXPLAIN / FURNISH THE FOLLOWING. (I) PLEASE EXPLAIN THE REASONS AND CIRCUMSTANCES AS TO WHY THE AGREEMENT TO SELL DATED 10-04-1981 WAS NOT PRODUCED DURING TH E COURSE OF ASSESSMENT PROCEEDINGS EVEN AFTER PROVIDING OPPORTUNITIES ON M ULTIPLE OCCASIONS. (II) PLEASE ALSO EXPLAIN AS TO WHERE FROM THE COPY OF AGREEMENT DATED 10- 04-1981 IS ARRANGED. FURNISH FILE DETAILED EXPLANAT ION IN THIS REGARD WITH COMPLETE FACTS. PLEASE PRODUCE THE ORIGINAL AGREEME NT FOR NECESSARY EXAMINATION AND VERIFICATION. (III) PLEASE STATE THE YEAR FROM WHICH YOU HAVE STA RTED FILING YOUR RETURN OF INCOME. PLEASE ALSO STATE THE NATURE OF BUSINESS AN D ANNUAL INCOMES OVER THE YEARS. (IV) IT IS SEEN THAT THE PURCHASE COST OF PLOT AS P ER AGREEMENT TO SELL IS RS. 18.00 LACS AND THE SAME WAS PAID IN CASH ON 10-04-1 091. THE PLOT MEASURES AROUND 205 SQ. YARDS LAND PER SQ. YARD COMES AT RS. 8780/- WHICH SEEMS EXCESSIVE/ UNBELIEVABLE AS PER RATES PREVALENT AT T HAT TIME. PLEASE EXPLAIN FURTHER THE PURCHASE COST OF RS. 18.00 WAS PAID IN CASH IN SINGLE INSTALMENT WHICH IS INCOMMENSURATE TO YOUR ANNUAL INCOME. PLE ASE EXPLAIN HOW THE SOURCE OF PURCHASE CONSIDERATION HAD BEEN ARRANGED. (V) IT IS SEEN THAT AS PER AGREEMENT TO SELL DATED 10-04-1081, THE PLOT WAS PURCHASED IN CASH FROM SHRI VIJENDRA SINGH LODI. TH E TRANSACTION BEING 8 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR EXECUTED IN CASH IS UNVERIFIABLE. PLEASE PRODUCE SH RI VIJENDRA SINGH FOR EXAMINATION. PLEASE ALSO FURNISH THE COPIES OF ALLO TMENT LETTER(S), RECIPT OF PAYMENT ETC. OF RAJ HANS COOPERATIVE HOUSING SOCIET Y (RECEIVED FROM SHRI VIJENDRA SINGH) (VI) PLEASE SATE THE NAME AND ADDRESS OF THE OWNER OF HOUSE SITUATED AT 1155, SANGHI JI KI GALI, CHAURA RASTA, JAIPUR. PLEA SE EXPLAIN YOUR RELATION WITH THE OWNER. PLEASE PRODUCE THE DOCUMENTS OF PURCHASE /OWNERSHIP. IF YOU ARE THE OWNER OF THE SAME. PLEASE PRODUCE THE DOCUMENTA RY EVIDENCE OF THE PURCHASE/OWNERSHIP. 4. YOUR REPLY/ SUBMISSION SHOULD REACH TO THIS OFFI CE ON OR BEFORE 25-01- 2017 FAILING WHICH THE REMAND REPORT WILL BE SENT O N THE BASIS OF MATERIAL AVAILABLE ON RECORD. KINDLY ENSURE COMPLIANCE. THE APPELLANT NEITHER ATTENDED THE PROCEEDINGS BEFO RE THE AO NOR DID HE FILE ANY EXPLANATION OR SUBMISSION BEFORE THE AO. DURING THE COURSE OF REMAND PROCEEDINGS, THE AO ALSO ISSUED SUMMONS U/S 131 TO SHRI VIJENDRA SINGH LODI BUT SHRI VIJENDRA SINGH LODI DID NOT ATTEND THE PRO CEEDINGS BEFORE THE AO. I AM OF THE CONCERNED VIEW THAT THE APPELLANT HAS FAI LED TO PROVE THE GENUINENESS OF THE COPY OF THE AGREEMENT TO SALES F ILED BY HIM. THEREFORE, THE COPY OF AGREEMENT TO SELL FILED BY THE APPELLAN T AS EVIDENCE TO SUBSTANTIATE HIS CLAIM THAT THE PLOT OF LAND WAS PU RCHASED BY HIM ON 10-04- 1981 FOR RS. 18 LACS, IS NOT ACCEPTED AS VALID EVID ENCE. FROM THE COPY OF REGISTERED SALE DEED FILED BY THE APPELLANT , IT IS SEEN THAT THE APPELLANT HAD PAID RS. 142/- ON 30-10-1981 TO THE RAJHANS COOPERA TIVE SOCIETY LTD. TOWARDS MEMBERSHIP FEE AND TRANSFER FEE. FURTHER, T HE APPELLANT IS ALSO SHOWN TO HAVE BEEN PAID CONVERSION CHARGES AND PENA LTY OF RS. 4,059/- ON11-03-1982 TO ZEA. THEREFORE, THE AO IS DIRECTED TO ALLOW DEDUCTION OF THESE PAYMENTS RS. 4201/- (RS. 142 +4059) TOWARDS C OST OF ACQUISITION OF THE PLOT AFTER ALLOWING INDEXATION AS PER THE PROVISION S OF THE ACT. FURTHER, I AM OF THE CONSIDERED VIEW THAT EVEN IF THE APPELLANT HAS FAILED TO FURNISH ANY VALID AND RELIABLE DOCUMENT IN SUPPORT OF ANY COST OF ACQ UISITION HAVING BEEN PAID 9 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR BY HIM, YET DEDUCTION IN RESPECT OF SOME REASONABLE AMOUNT OF COST OF ACQUISITION THAT MIGHT HAVE BEEN PAID BY HIM FOR PL OT NO. S-6 IN LAKHANPURI SCHEME. I AM OF THE VIEW THAT IT WOULD BE FAIR AND REASONABLE TO ESTIMATE THE COST OF ACQUISITION OF THE PLOT AS ON 30.10.1981 AT RS. 1 LAC. ACCORDING, THE AO IS DIRECTED TO ALLOW FURTHER DEDUCTION OF RS. 1 LAC TOWARDS COST OF ACQUISITION OF THE PLOT AFTER ALLOWING INDEXATION A S PER THE PROVISIONS OF THE ACT. THIS GROUND OF APPEAL IS DECIDED ACCORDINGLY. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THE LIMITED DISPUTE BEFORE US RELATES TO N ON-GRANT OF DEDUCTION FOR COST OF ACQUISITION IS RESPECT OF AN IMMOVABLE PROPERTY WHI CH HAS BEEN SOLD BY THE DECEASED ASSESSEE. IT IS NOT IN DISPUTE THAT THE P ROPERTY HAS BEEN PURCHASED BY THE ASSESSEE IN RAJHANS COOPERATIVE SOCIETY AND THE ASS ESSEE HAD SUBSEQUENTLY APPLIED FOR ITS MEMBERSHIP AND HAS PAID MEMBERSHIP FEES AND TRANSFER CHARGES IN THE YEAR 1981. IT IS THEREFORE NOT A CASE WHERE THE COST OF ACQUISITION CANNOT BE ASCERTAINED. ONCE THE SALE CONSIDERATION IS BROUGHT TO TAX, IT I S INCUMBENT ON PART OF THE ASSESSING OFFICER TO ALLOW THE DEDUCTION TOWARDS TH E COST OF ACQUISITION. IN SUPPORT OF HIS COST OF ACQUISITION OF RS 18 LACS, THE ASSES SEE HAS PRODUCED AN AGREEMENT TO SELL WHICH WAS ENTERED INTO WITH SHRI VIJENDRA SING H. GIVEN THAT SHRI VIJENDRA SINGH DIDNT APPEAR BEFORE THE ASSESSING OFFICER DURING T HE REMAND PROCEEDINGS AND THE FACT THAT PER SQ YARD COST SO SUBMITTED BY THE ASSE SSEE AT RS 8780/SQ YARD WAS FOUND EXCESSIVE AND UNREASONABL E, THE SAME WAS FOUND NOT ACCEPTABLE BY THE ASSESSING OFFICER, HOWEVER, NO AL TERNATIVE COST WAS DETERMINED BY THE ASSESSING OFFICER NOR MATTER WAS REFERRED TO TH E DVO. THE LD CIT(A) HAS GIVEN A FINDING THAT THE AGREEMENT TO SELL WAS NOT SIGNED BY THE BUYER AND THE SELLER, NOT REGISTERED AND ORIGINAL AGREEMENT WAS NOT SUBMITTED FOR VERIFICATION. AT THE SAME TIME, HE HELD THAT IT WOULD BE REASONABLE TO ESTIMA TE THE COST AT RS 1 LACS WHICH COMES TO RS 488/SQ YARDS. IN OUR VIEW, WHERE THE A SSESSING OFFICER DISPUTES THE VALUE SO SUBMITTED BY THE ASSESSEE, IT WOULD HAVE B EEN APPROPRIATE IF THE MATTER WAS REFERRED TO THE DVO FOR DETERMINATION OF THE FA IR MARKET VALUE AND THEN, IT WOULD HAVE PROVIDED AN APPROPRIATE BASIS FOR COMPAR ING WITH THE COST OF ACQUISITION SO SUBMITTED BY THE ASSESSEE. FURTHER, THE LD CIT( A) HAS NOT GIVEN ANY BASIS FOR 10 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR ESTIMATING THE COST OF ACQUISITION. THE LD AR HAS A LSO CONTENDED THAT SINCE THE ASSESSEE WAS INCAPACITATED DUE TO HIS ILL HEATH AND THE FACT THAT HE WAS NOT AWARE WHEN SHRI VIJENDRA SINGH LODHI WAS SUMMONED BY THE ASSESSING OFFICER, HE COULDNT TAKEN ANY ACTION TO ENSURE HIS ATTENDANCE. GIVEN T HE FACT THAT THE ASSESSEE HAS SINCE EXPIRED, THE AUTHENCITY OF THE AGREEMENT TO S ELL HAS NOT BEEN ESTABLISHED BEYOND REASONABLE DOUBTS BY THE ASSESSEE, HIS LEGAL HEIRS HAVE ALSO SHOWN THEIR INABILITY TO FURNISH ANY FURTHER EVIDENCE IN SUPPOR T OF COST OF ACQUISITION, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ARE OF THE VI EW THAT THE MATTER SHOULD BE REFERRED TO THE DVO TO ASCERTAIN THE COST OF ACQUIS ITION. IN THE RESULT, WE SET-ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WIT H A DIRECTION TO CALL THE REPORT OF THE VALUATION OFFICER FOR ASCERTAINING THE COST OF ACQU ISITION AND THEN DECIDE AS PER LAW. NEEDLESS TO SAY, THE ASSESSEE THROUGH HIS LEGAL HEI RS SHOULD BE GIVEN AN APPROPRIATE OPPORTUNITY. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18/10/201 9. SD/- SD/- FOT; IKY JKO FO E FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 18/10/2019 GANESH KUMAR VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. PARWATI DEVI (WIDOW), TONK 2. THE RESPONDENT ITO, WARD-6(4), JAIPUR 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 71/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 11 ITA NO. 71/JP/2018 SMT. PARWATI DEVI (WIDOW), T ONK VS. ITO, WARD-6(4), JAIPUR