MEWALAL LAXMINARAYAN GUPTA, MUMBAI V. ITO 19(1)(1), MUMBAI

ITA 7501/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9673 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 03-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 20-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Keywords: Cost of acquisition
• Section: 143(3)

Judgement Text

ITA NO.7501/M/2013 MEWALAL LAXMINARAYAN GUPTA ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 7501/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) MEWALAL LAXMINARAYAN GUPTA FLAT NO.5, BHAGWAN CHS LTD 3 RD ROAD, KHAR MUMBAI 400 052 / VS. INCOME TAX OFFICER 19(1)(1) PIRAMAL CHAMBERS LALBAUG, PAREL MUMBAI-400 012 ./ ./PAN/GIR NO. AEOPG-9145-A ( ! /APPELLANT ) : ( '#! / RESPONDENT ) A SSESSEE BY : NONE RE VENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 04/09/2017 / DATE OF PRONOUNCEMENT : 08/09/2017 ITA NO.7501/M/2013 MEWALAL LAXMINARAYAN GUPTA ASSESSMENT YEAR 2009-10 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 ASSAILS THE ORDER OF THE LD. COMMISSIONER O F INCOME-TAX (APPEALS)- 30 [CIT(A)], MUMBAI DATED 26/09/2013 QUA CERTAIN ADDITIONS. NONE HAS APPEARED FOR ASSESSEE DESPITE NOTICE. LEFT WITH NO OPTION, WE PROCEED TO DISPOSE-OFF THE SAME ON THE BASIS OF MAT ERIAL AVAILABLE ON RECORD AND AFTER HEARING LD. DEPARTMENTAL REPRESENT ATIVE [DR]. 2. BRIEFLY STATED THE ASSESSEE BEING RESIDENT INDIVIDUAL DERIVING INCOME FROM HOUSE PROPERTY, BUSINESS, CAPITAL GAINS & OTHER SOURCES HAS BEEN ASSESSED FOR IMPUGNED AY U/S 143(3) ON 22/ 12/2011 AT RS.55,86,870/- AS AGAINST RETURNED INCOME OF RS.3,5 5,150/- FILED BY THE ASSESSEE ON 31/03/2010 WHICH WAS LATER REVISED ON 2 8/07/2010 TO RS.13,19,290/-. THE SUBJECT MATTER OF PRESENT APPEA L IS DISALLOWANCE OF INTEREST CLAIM OF THE ASSESSEE AND COMPUTATION OF L ONG TERM CAPITAL GAINS. 3. THE ASSESSEE REFLECTED LONG TERM CAPITAL GAIN ON SALE OF CERTAIN PROPERTY AT RS.7,78,443/- WHICH, DURING ASSESSMENT PROCEEDINGS, WAS RE-WORKED BY LD. AO AT RS.44,16,718/- SINCE CORREC T COST OF ACQUISITION WAS RS.38,62,500/- AS AGAINST RS.68,63,140/- TAKEN BY THE ASSESSEE. THE SECOND ADDITION PERTAINED TO INTEREST OF RS.6,2 9,310/- ON TERM LOAN CLAIMED BY THE ASSESSEE AGAINST INCOME FROM HOUSE PROPERTY SINCE THE ASSESSEE COULD NOT PROVIDE JUSTIFICATION / EVIDENCE S THAT THE BORROWED ITA NO.7501/M/2013 MEWALAL LAXMINARAYAN GUPTA ASSESSMENT YEAR 2009-10 3 AMOUNT WAS UTILIZED FOR THE PURPOSE OF ACQUIRING TH E RELEVANT HOUSE PROPERTIES. 4. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH PARTIAL SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 26/09/2 013 WHERE THE ASSESSEE CLAIMED THAT THE AMOUNT OF RS.1 LAC PAID T O THE BUILDER TOWARDS PARKING CHARGES WAS PART OF COST OF ACQUISITION. HOWEVER, THE SAME WAS REJECTED SINCE THE ASSESSEE COULD NOT SUBS TANTIATE THE SAME WITH EVIDENCES. THE INTEREST CLAIM OF RS.6,29,310/- WAS ALSO DISMISSED SINCE THE ASSESSEE COULD NOT ESTABLISH DIRECT NEXUS OF THE TERM LOAN WITH THE PURCHASE OF THREE HOUSE PROPERTIES WHICH WERE O FFERED UNDER THE HEAD INCOME FROM HOUSE PROPERTY . AGGRIEVED, THE ASSESSEE IS IN FUTHER APPEAL BEFORE US. 5. THE LD. DR PLACED RELIANCE ON THE FINDINGS OF LO WER AUTHORITIES. 6. HEARD AND PERUSED RELEVANT MATERIAL ON RECORD. W E FIND THE MATTER TO BE FACTUAL ONE. IT IS OBSERVED THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CASTED UPON HIM TO SUBSTANTIATE HIS CLAIM. THE ASSESSEE COULD NOT ESTABLISH THE NEXUS OF THE TERM LOAN WITH ACQUI SITION OF THREE HOUSE PROPERTIES OFFERED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THEREFORE, RIGHTLY BEEN DISALLOWED INTEREST CLAIM. WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) ON THIS ISSU E. 7. HOWEVER, WE FIND THAT THE ASSESSEE HAS PAID A SU M OF RS.1 LACS TO THE BUILDER THROUGH BANKING CHANNELS TOWARDS PARKIN G CHARGES. THEREFORE, WE DEEM IT FIT TO RESTORE THIS MATTER BA CK TO THE FILE OF LD. CIT(A) TO VERIFY THE FACT THAT WHETHER THE ASSESSEE GOT SEPARATE PARKING RIGHTS WHICH WERE CAPABLE OF BEING TRANSFERRED INDE PENDENTLY / ITA NO.7501/M/2013 MEWALAL LAXMINARAYAN GUPTA ASSESSMENT YEAR 2009-10 4 SEPARATELY. IF SO, THE SAME SHALL NOT FORM PART OF COST OF ACQUISITION AS RIGHTLY HELD BY LD.CIT(A) ELSE THE SAME SHALL CONST ITUTE COST OF ACQUISITION OF THE PROPERTY SUBJECT TO DOCUMENTARY EVIDENCES TO BE FURNISHED BY THE ASSESSEE IN THIS REGARD. 8. RESULTANTLY, THE ASSESSEE APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH SEPTEMBER, 2017. SD/- SD/- (MAHAVIR SINGH) (M ANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 08. 09.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. '%- , - , / DR, ITAT, MUMBAI 6. ./ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI