Smt. Hemlata Khandelwal, Jaipur V. Income Tax Officer, Ward-7(2), Jaipur

ITA 879/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5165 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA JCIT DHK
• Assessee Lawyers: S R SHARMA
• Keywords: Cost of acquisition; Valuation report
• Section: 148

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 JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA , ACCOUNTANT MEMBER VK;DJ VIHY LA -@ ITA NO. 879/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 SMT. HEMLATA KHANDELWAL, 10A, RAM NAGAR-H, EXTENSION, SODALA, JAIPUR. CUKE VS. I.T.O., WARD 7(2), JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AZYPK 6204 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.R. SHARMA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/08/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/10/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A)-3, JAIPUR DATED 09/05/2018 FOR THE A.Y. 2009-10 IN THE MATTER OF ORDER PASSED U/S 147/143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). GROUNDS TAKEN BY THE ASSESSEE READS AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN CONFIRMING ADDITION TO THE EXTENT OF RS. 4,92,000/- MADE BY THE A.O. TO THE DECLARED SHORT TERM CAPITAL GAIN ON SALE OF FLATS BY CONFIRMING DISALLOWANCE TO THE EXTENT OF 12% OF THE DECLARED COST OF ACQUISITION/CONSTRUCTION. ITA 879/JP/2018 SMT. HEMLATA KHANDELWAL VS ITO 2 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD HOUSE PROPERTY AND IN RESPONSE TO NOTICE U/S 148 OF THE ACT, FILED RETURN AT AN INCOME OF RS. 3,05,403/-. THE A.O. COMPLETED ASSESSMENT ON TOTAL INCOME OF RS 11,25,403/- BY MAKING ADDITION OF RS. 8,20,000/- IN DECLARED SHORT TERM CAPITAL GAIN BY DISALLOWING 20% OUT OF COST OF CONSTRUCTION OF RS. 41,00,000/- CLAIMED BY HER WHILE COMPUTING SHORT TERM CAPITAL GAIN AT RS. 2,42,404/-. THE PRESENT APPEAL AGAINST THE SAID ASSESSMENT ORDER AND AGAINST DISALLOWANCE OF RS. 8,20,000/- OUT OF COST OF CONSTRUCTION CLAIMED BY ASSESSEE. 3. FROM THE RECORD, I FOUND THAT FOR CONSTRUCTION OF FLATS THE ASSESSEE ENTERED INTO AN AGREEMENT SHRI SOHAN LAL AND SMT. MANPHOOL DEVI, COPY OF AGREEMENT WAS FILED BEFORE THE LOWER AUTHORITIES. HOWEVER, THE ASSESSEE DID NOT KEEP THE RECORD OF EXPENSES. ENTIRE PAYMENT TO DEVELOPER WAS MADE BY ACCOUNT PAYEE CHEQUE. COPY OF BANK STATEMENT WAS ALSO FILED. IN SUPPORT OF COST OF CONSTRUCTION, THE ASSESSEE HAS ALSO FILED VALUATION REPORT OF THE REGISTERED VALUER FOR VERIFICATION OF THE CONSTRUCTION COST. SINCE THE CONSTRUCTION WAS CARRIED OUT THROUGH DEVELOPER, THE ASSESSEE HAS NOT OBTAINED BILLS AND VOUCHERS RELATING TO CONSTRUCTION COST. KEEPING IN VIEW THE FACT THAT COST OF CONSTRUCTION WAS ITA 879/JP/2018 SMT. HEMLATA KHANDELWAL VS ITO 3 SUBMITTED BY THE VALUATION REPORT OF REGISTERED VALUER, WHICH WAS NOT CONTROVERTED BY THE A.O. AND MOREOVER PAYMENT FOR ALL THE EXPENSES WERE MADE THROUGH ACCOUNT PAYEE CHEQUE, THEREFORE, THERE IS NO JUSTIFICATION FOR DISALLOWANCE OF 20% OF COST OF CONSTRUCTION. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES, I RESTRICT THE DISALLOWANCE TO THE EXTENT OF 5%. I DIRECT ACCORDINGLY. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER, 2019 SD/- JES'K LH 'KEKZ ( RAMESH C SHARMA ) YS[KK LNL; @ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH OCTOBER, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. HEMLATA KHANDELWAL, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 7(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 879/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR