Sh. Jasvinder Hans, Jalandhar V. The ACIT, Jalandhar

ITA 88/ASR/2012

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5723 (ITAT-AMRITSAR)
• Duration Of Justice: 6 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 07-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K SHARMA
• Assessee Lawyers: J S BHASIN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Search and seizure; Principle of natural justice; Fair market value
• Section: 143(3); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A NO. 88(ASR)/2012 ASSES SMENT YEAR: 2006-07 JASVINDER HANS, C/O M/S. ZOLOTO INDUSTRIES 11 TH MILESTONE, NAKODAR ROAD, LAMBRA, JALANDHAR-144026 [PAN:AANPH 3846C] VS. ASST. CIT RANGE-IV, JALANDHAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.S. BHASIN (ADV.) RESPONDENT BY: SH. P.K. SHARMA (DR) DATE OF HEARING: 28.02.2018 DATE OF PRONOUNCEMENT: 21.03.2018 ORDER PER SANJAY ARORA, A.M THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE ORD ER BY THE COMMISSIONER OF INCOME TAX (APPEALS), JALANDHAR [CIT(A) FOR SH ORT] DATED 16.12.2011, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING HIS ASSES SMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 19.12.2 008 FOR THE ASSESSMENT YEAR (AY) 2006-07. 2. THE APPEAL, HEARD IN THE FIRST INSTANCE ON 1 2.01.2014, IS UN-DISPOSED IN RESPECT OF ITS GROUNDS 1 TO 4 AND 8 INASMUCH AS THE TRIBUNA L RECALLED ITS ORDER U/S. 254(1) OF THE ACT DATED 28.02.2014 FOR DECIDING THE SAID G ROUNDS (VIDE ORDER U/S. 254(2) DATED 30.11.2017 IN MA NO. 61/ASR/2014), THE RELEVA NT PART OF WHICH WAS READ OUT DURING THE HEARING. THE SAID GROUNDS READ AS UNDER: ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 2 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND O N FACTS IN UPHOLDING THE ADDITION OF RS.1,00,000/- MADE BY AO BY INVOKING SECTION 50C, B Y SUBSTITUTING APPARENT CONSIDERATION OF RS.11 LACS BY THAT OF RS.12 LACS A DOPTED FOR STAMP DUTY, MORE SO WHEN ASSESSEE WAS NEVER CONFRONTED IN ASSESSMENT ON THIS ISSUE. 2. THAT THE LD. CIT(A) EVEN AFTER ACCEPTING THAT NO QUERY WAS RAISED BY AO TO RECOMPUTED CAPITAL GAIN, OUGHT TO HAVE DELETED THE ABOVE ADDITION ON THIS VERY PREMISE. 3. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRM ING THE DISALLOWANCE OF RS.42582/- CLAIMED AS EXPENSES INCURRED TO EARN COM MISSION INCOME OF RS.85,165/-, ON A PREMISE DIFFERENT FROM THE AO. 4. THAT AFTER HIMSELF HAVING ACCEPTED THAT ASSESSEE HAD WITHDRAWALS TO MEET THE IMPUGNED EXPENSES OF RS.42,582/-, THE LD. CIT(A) OU GHT TO HAVE ACCEPTED THE ASSESSEES CONTENTION TO DELETE THIS ADDITION. 8. THAT ALL THE ADDITIONS HAVING BEEN MADE BY T HE AO WITHOUT AFFORDING PROPER OPPORTUNITY, THE LD. CIT(A) EVEN AFTER CONCEDING ON THE ISSUE, ERRED IN STILL UPHOLDING THE ADDITIONS DISPUTED HEREINABOVE. INASMUCH AS GROUND 8 REFERS TO ALL THE GROUNDS, I.E ., INCLUDING QUA WHICH THERE HAS BEEN NO RECALL BY THE TRIBUNAL (BEING GROUNDS 5, 6 &7), CLARIFICATION REGARDING THE SCOPE OF GROUND 8 IN THE INSTANT PROCEEDINGS, WAS O BTAINED FROM THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASESSEES COUNSEL. HE CONC EDED TO GD. 8 (IN THE INSTANT PROCEEDINGS) BEING CONSIDERED AS IN RELATION ONLY T O GROUNDS 1 TO 4, WHICH IS ONLY FAIR AS THE OTHER GROUNDS DO NOT SURVIVE FOR CONSID ERATION. THE NEED FOR FILING AN AMENDED GD. 8 (OR ANOTHER IN LIEU THEREOF), WHICH I N FACT RAISES AN ARGUMENT WHICH COULD EVEN OTHERWISE BE ASSUMED BY THE ASSESSEE IN RELATION TO THE ISSUES ARISING, WAS ACCORDINGLY DISPENSED WITH. 3.1 CONTINUING FURTHER, GDS. 1 THRO 4, RAISE, AS A PPARENT, TWO ISSUES. THE FIRST ISSUE, THE LD. AR WOULD SUBMIT, IS THE NON-GRANT OF OPPORTUNITY BY THE ASSESSING OFFICER (AO) TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS PRIOR TO INVOKING SECTION 50C, WHICH READS AS UNDER: ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 3 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILD ING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREINAFTER IN THIS SECTION REFERRED TO AS THE ST AMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED SHALL, FOR THE PURPOSE S OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RE CEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTE D OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB -SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; (B) THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VALU ATION AUTHORITY UNDER SUB- SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF TH E CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MADE, THE PROVISION S OF SUB-SECTION (2), (3), (4), (5) AND (6) OF SECTION 16A CLAUSE (I) OF SUB-SECTION (1) AN D SUB-SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, S ECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT,1957 (27 OF 1957), SHALL, WITH NECES SARY MODIFICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A RE FERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT ACT MA DE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT ACT. EXPLANATION. - FOR THE PURPOSES OF THIS SECTION, VALUATION OFFI CER SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH -TAX ACT, 1957 (27 OF 1957). (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1), THE VALUE SO ADOPTED OR ASSESSED BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATI ON RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER. (EMPHASIS, THRO UGH ITALICS, OURS) THE TERMS OF SEC.50C, AS APPARENT, HE WOULD SUBMIT, ARE NOT ABSOLUTE, SO THAT THE AO WAS BOUND TO CONFRONT THE ASSESSEE BEFORE INVOKI NG SEC.50C, SUBSTITUTING THUS THE ACTUAL SALE CONSIDERATION (ON THE SALE OF A PLO T OF LAND BY THE ASSESSEE) OF RS.11 ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 4 LACS BY ITS STAMP VALUE OF RS.12 LACS (AS PER THE T RANSFER DOCUMENT), SATISFYING THUS THE PRINCIPLE OF NATURAL JUSTICE. 3.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD, ON THE OTHER HAND, RELY ON THE IMPUGNED ORDER, STATING THAT THE LD. CIT(A) HAD ELABORATELY DISCUSSED THE ISSUE AT HAND, READING OUT THE RELEVANT PART (PARAS 2.3 T O 2.5/PGS. 4-6), AND WHOSE ORDER HAS NOT AT ALL BEEN ADDRESSED BY THE ASSESSEE. THE MECHANISM FOR REFERRING THE MATTER TO THE VALUATION OFFICER (VO) FOR RESOLVING ANY DISPUTE AS TO VALUATION, WHERE SO, IS PROVIDED U/S. 50C(2). THE ASSESSEE IN THE PRESENT CASE, AS POINTED OUT BY THE LD. CIT(A), HAD MADE NO SUCH CLAIM BEFORE HI M FOR THE AO TO INITIATE AND FOLLOW THE PROCEDURE (FOR REFERENCE TO THE VO) U/S. 50C(2). 3.3 THE LD. AR WOULD, IN REJOINDER, STATE THAT IF T HAT WERE SO, I.E., SEC. 50C(1) COULD BE INVOKED BY THE AO ON HIS OWN OF COURSE O N ITS PRE-REQUISITE CONDITIONS BEING SATISFIED, WITHOUT REFERENCE TO THE ASSESSEE, WHERE WAS THE NEED TO ISSUE A NOTICE U/S. 143(2), AND THE AO COULD WELL EFFECT TH E IMPUGNED ADJUSTMENT U/S. 143(1)? THE VERY FACT THAT A NOTICE U/S. 143(2) HAD BEEN ISSUED IMPLIES THAT THE ASSESSEE IS TO BE CALLED UPON TO STATE HIS CASE WHE NEVER ANY ADJUSTMENT TO THE RETURNED INCOME IS TO BE MADE. IN FACT, THE LD. CIT (A) HIMSELF OBSERVES THAT IT WAS ADVISABLE FOR THE AO TO CONFRONT THE ASSESSEE IN TH E MATTER; POINTING TO PARA 2.4 OF HIS ORDER. FURTHER, THE TRIBUNAL HAS PER ITS DECISI ON IN RAHUL CONSTRUCTIONS V. DY. CIT [2010] 38 DTR 19 (PUNE), IN VIEW OF THE NOMINAL DIF FERENCE BETWEEN THE VALUE (AS PER THE DVOS REPORT), AND THAT PER THE S TAMP VALUATION, HELD THAT NO ADJUSTMENT IS CALLED FOR U/S. 50C. THE DIFFERENCE I N THE PRESENT CASE IS ALSO LESS THAN 10%. ON A QUERY BY THE BENCH AS TO IF THE ASSESSEE HAD, PER HIS RETURN, RAISED A CLAIM OF THE FAIR MARKET VALUE OF THE CAPITAL ASSET /S TRANSFERRED BEING LOWER THAN THE STAMP VALUE, HE REPLIED IN THE NEGATIVE. ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 5 4. WE HAVE HEARD BOTH THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEES CASE, WE ARE AFRAID TO SAY, IS WHOLL Y MISCONCEIVED, AND THE ARGUMENT/S ADVANCED BEFORE US, MISPLACED. THERE HAS BEEN NO VIOLATION OF EITHER THE PRINCIPLE OF NATURAL JUSTICE, I.E., AUDI ALTERM PARTEM , OR OF THE PROCEDURE LAID DOWN BY THE LAW, BY THE AO, AND WHICH IS PRECISELY WHAT THE IMPUGNED ORDER HOLDS. SEC.50C IS APPLICABLE, IN THE CIRCUMSTANCE D EFINED IN SEC. 50C(1), I.E., WHERE, AS IN THE PRESENT CASE, THERE IS TRANSFER A OF CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, AT A CONSIDERATION LOWER THAN THE STAMP VALUE, I.E., THE VALUE OF THE CAPITAL ASSET TRANSFERRED UNDER THE STAMP ACT, SO THAT, FOR THE PURPOSES OF SEC.48, STAMP VALUE SHALL BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ARISING AS A RESULT OF THE SAID TRANSFE R. SEC.48 PROVIDES FOR THE MODE OF COMPUTATION OF INCOME CHARGEABLE UNDER THE HEAD CA PITAL GAINS (SEC.45) ON THE TRANSFER OF A CAPITAL ASSET. SECTION 50C(1) ONLY SE EKS TO SUBSTITUTE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER (I.E., OF THE CAPITAL ASSET), WHICH IS THE STARTING POINT FOR THE COMPUTA TION U/S. 48, WITH THE STAMP VALUE, IN THE CIRCUMSTANCE SPECIFIED U/S. 50C(1), APPLICAB LE IN THE PRESENT CASE. IN SHORT, IN A CASE OF TRANSFER OF A CAPITAL ASSET, BEING LAN D OR BUILDING OR BOTH, SEC.48 IS TO BE READ ALONG WITH SEC.50C FOR COMPUTING THE CAPITAL G AINS CHARGEABLE U/S. 45. THE ASSESSEE, WHOSE RETURN IS TO BE IN TERMS OF THE LAW, OUGHT TO HAVE APPLIED S. 50C(1) HIMSELF, OR SPECIFICALLY STATE IN HIS RET URN THAT HE CONSIDERS SEC. 50C(1) AS NOT APPLICABLE AS THE CONDITIONS OF SEC.50C(2) ARE SATISFIED. THAT IS, IT IS AT THE ASSESSEES INSTANCE, CLAIMING THE FAIR MARKET VALUE (FMV) OF THE CAPITAL ASSET/S TRANSFERRED AS BEING, IN HIS VIEW, LOWER THAN THE S TAMP VALUE AND, FURTHER, THE STAMP VALUE/S BEING NOT UNDER DISPUTE, THAT THE ASSESSING OFFICER IS TO FOLLOW THE PROCEDURE FOR REFERENCE TO THE VALUATION OFFICER (V O) AS PRESCRIBED U/S. 50C(2). NO SUCH CLAIM STANDS PREFERRED EITHER PER THE RETUR N OF INCOME (AS ADMITTED BY THE ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 6 LD. COUNSEL BEFORE US) OR DURING THE ASSESSMENT PRO CEEDINGS. HOW, THEN, WE WONDER, IS THE AO IN THE WRONG? WHAT, THEN, WE WONDER IS THE PREJUDICE CAUSED TO THE ASSESSEE ? WHY, NO SUCH CLAIM STANDS MADE EVEN AT THE FIRST APPELLATE STAGE. HOW IS THE AO TO CONJURE UP THAT THE STAMP VALUE EX CEEDS THE FAIR MARKET VALUE IN THE ASSESSEES ESTIMATION AND THE STAMP VALUATION H AS NOT BEEN DISPUTED (UNDER THE STAMP ACT), AND WHICH WOULD BE, WHERE SO, WHOLLY PR ESUMPTUOUS ON HIS PART. IT IS ONLY WHERE SUCH A CLAIM IS MADE AND, FURTHER, THE S TAMP VALUE NOT OTHERWISE DISPUTED UNDER THE STAMP ACT (WHICH CONTAINS ELABOR ATE PROVISIONS FOR THE VALUATION OF IMMOVABLE PROPERTY, BASED ON A HOST OF FACTORS), SO THAT THE ASSESSEE THEREBY CONVEYS OF BEING PREJUDICED ON ACCOUNT OF S EC.50C BEING APPLICABLE, THAT THE AO, SO AS TO ADDRESS SUCH CLAIMED PREJUDICE, IS TO REFER THE MATTER - BEING TECHNICAL, FOR VALUATION TO THE VO. REFERENCE IN TH IS CONTEXT MAY ALSO BE MADE TO THE VARIOUS PROVISIONS OF THE WEALTH TAX ACT, 1957, MADE APPLICABLE TO THE PROCEDURE TO BE FOLLOWED. QUITE CLEARLY, WHERE THE STAMP VALUE IS DISPUTED, THE RESOLUTION OF THE SAID DISPUTE SHALL ITSELF REDRESS THE GRIEVANCE ON ACCOUNT OF APPLICATION OF STAMP VALUE. IN ITS ABSENCE, THE AO CANNOT PRESUME THE ASSESSEE TO BE PREJUDICED. THE LAW (ACT) THUS PROVIDES FOR AN I N-BUILT MECHANISM FOR THE REDRESSAL OF THE PREJUDICE CONTENDED TO BE CAUSED B Y THE SUBSTITUTION OF THE ACTUAL CONSIDERATION BY DEEMED CONSIDERATION, THUS, SAVING THE PROVISION FROM A CHARGE TO ITS VIRES . WE DRAW SUPPORT FROM A RECENT DECISION BY THE HON BLE BOMBAY HIGH COURT (IN MAHARAJ GARAGE & CO. V. CIT , IN ITA NO. 21 OF 2008, DATED 22/08/2017), WHEREIN IT STANDS HELD THAT NO UNIVERS AL PRINCIPLE WITH REGARD TO BEING HEARD IN THE MATTER CAN BE LAID DOWN, AND IT ALL DE PENDS UPON THE LANGUAGE OF THE PROVISION AND THE OBJECT AND PURPOSE OF IT. CONTINUING FURTHER, NO SUCH ADJUSTMENT, EVEN PRIMA FACIE (ON THE BASIS OF RETURN), COULD BE MADE U/S. 143(1) (REFER: ASST. CIT V. HOTEL BLUE MOON [2010] 321 ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 7 ITR 362 (SC). IN FACT, THE ASSESSEE COULD RAISE A C LAIM U/S. 50C(2), WHERE NOT RESERVED THROUGH HIS RETURN OF INCOME, ONLY IN THE VERIFICATION PROCEEDING U/S. 143(3), INITIATED UPON SERVICE OF NOTICE U/S. 143(2 ), ISSUE OF WHICH IS NOT UNDER QUESTION OR CHALLENGE. THE OBSERVATION BY THE LD. C IT(A) OF IT BEING ADVISABLE FOR THE AO TO CONFRONT THE ASSESSEE, IS, IN VIEW OF HIS CATEGORICAL FINDING OF THE AO BEING NOT OBLIGED TO DO SO UNDER LAW, WITHOUT ANY S IGNIFICANCE, AND IS MERELY AN OBITER DICTA , AND WOULD NOT OPERATE TO OVERRIDE THE EXPRESS P ROVISION OF LAW, NOTED AND DISCUSSED HEREINBEFORE. WE HAVE IN FACT FURTHER OBSERVED THAT IT IS FOR THE ASSESSEE TO EXERCISE THE RIGHT FOR SEEKING REFERENCE UNDER AND IN TERMS OF S EC. 50C(2), AND NO PRESUMPTION AS TO PREJUDICE (I.E., THE FAIR MARKET VALUE BEING LOWER THAT THE STAMP VALUE) BEING CAUSED IN THE ABSENCE OF ANY SUCH CLAIM (PER THE RE TURN OF INCOME OR DURING THE ASSESSMENT PROCEEDINGS) WOULD LIE. IN FACT, NO SUCH CLAIM STANDS PREFERRED EVEN IN THE APPELLATE PROCEEDINGS. FURTHER, THE DIFFERENCE ITSELF IS NOMINAL, AND WHICH IN FACT WOULD WORK BOTH WAYS, SO THAT, IF ANYTHING, TH E INFERENCE WOULD BE OF THE STAMP VALUE BEING REASONABLE. IRRESPECTIVE OF THE Q UANTUM OF DIFFERENCE (OR IN RATIO), WE MAY ADD, BEING DEEMED CONSIDERATION, IT WOULD, UNLESS CHALLENGED, HOLD. TRUE, VALUATION IS THE MATTER OF ESTIMATION, BUT TH E SAME IS ON SCIENTIFIC BASIS AND, BESIDES, HAS BEEN ACCORDED STATUTORY RECOGNITION U/ S. 50C(1) AND, FURTHER, COULD BE CHALLENGED (FOR ITS CORRECTNESS) BOTH UNDER THE STA MP ACT AS WELL AS, WHERE NOT DISPUTED THERE-UNDER, BEFORE THE VO, ADHERING TO TH E PRINCIPLES OF EQUITY AND FAIR PROCEDURE. THE ASSESSEES CASE IS WHOLLY WITHOUT ME RIT. BEFORE PARTING WITH THIS ORDER, WE MAY - OUR ORDER BEING APPEALABLE, ADD THAT IN CASE IT IS HELD OTHERWISE BY A HIGHER APPELLATE FORUM, SO THAT REFERENCE TO THE VO (BY THE AO) IS TO BE MADE DESPITE THE NON-SATISFACT ION OF THE CONDITIONS SET OUT IN SEC .50C(2)(A)/(B), THE MATTER FOR COMPLYING WITH T HE PROCEDURE U/S. 50C(2), SHALL ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 8 HAVE TO TRAVEL BACK TO THE FILE OF THE AO, I.E., TO THE STAGE WHERE THE IRREGULARITY HAS THEREFORE OCCURRED (REFER: GUDUTHUR BROS. V. ITO [1960] 40 ITR 298 (SC)). WE DECIDE ACCORDINGLY. 5. THE ONLY OTHER ISSUE IS IN RELATION TO THE DISAL LOWANCE OF THE CLAIM FOR EXPENDITURE (FOR RS. 42,582/-) TOWARD EARNING COMMI SSION INCOME, DISCLOSED AT RS.85,165/-. THE BASIS OF THE AOS DISALLOWANCE IS THE ABSENCE OF ADEQUATE WITHDRAWAL (OF CASH PER WHICH THE EXPENDITURE STA NDS PAID) BY THE ASSESSEE. THE ASSESSEE DID NOT FIND FAVOUR WITH THE LD. CIT(A) DE SPITE SHOWING AVAILABILITY OF ADEQUATE CASH IN THE ABSENCE OF SUBSTANTIATION OF E XPENDITURE, WHICH HAD NOT BEEN SPECIFIED, BUT CLAIMED AT AN AD HOC AMOUNT OF 50% OF THE COMMISSION EARNED, WHICH IS FROM A RELATED CONCERN (REFER PARA 4.2 OF THE IMPUGNED ORDER). 6. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE ASSESSEES CLAIM REMAINS WHOLLY UNSUBSTANTIATED. IN FACT, THE BASIS OF A CLAIM FOR EXPENDITURE IS TO BE OF INCURRING IT WHOLLY AND EXC LUSIVELY FOR THE PURPOSES TO THE ASSESSEES BUSINESS. BASING THE CLAIM FOR EXPENDITU RE ON THE BASIS OF INCOME EARNED BY THE ASSESSEE IS ITSELF ERRONEOUS IN-AS-MU CH AS INCURRING EXPENDITURE DOES NOT AUTOMATICALLY YIELD INCOME, MUCH LESS IN A DEFI NED SUM, SO THAT THE TWO VARIABLES ARE, PARTICULARLY IN TERMS OF QUANTUM, FA IRLY INDEPENDENT. NO BASIS FOR THE CLAIM, OR EVEN SPECIFICATION OF THE EXPENDITURE STA TED TO BE INCURRED, AS WELL AS THE CIRCUMSTANCES FOR INCURRING THE SAME, HAS BEEN MADE . UNDER THE CIRCUMSTANCES, TAKING A LENIENT VIEW OF THE MATTER, AND NOTING TH AT THE ASSESSEE MAY HAVE INCURRED EXPENDITURE ON TRAVEL, AS CLAIMED BY THE LD. AR BEF ORE US, WE RESTRICT THE ALLOWANCE OF THE EXPENDITURE TO RS.18,000, I.E., AT THE 1,500 /- PER MONTH, AND CONFIRM THE DISALLOWANCE OF THE BALANCE. WE DECIDE ACCORDINGLY. ITA NO.88 (ASR)/2012 (A.Y.2006- 07) JASVINDER HANS VS. ACIT 9 7. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MARC H 21, 2018 SD/- SD/- (N.K.CHOUDHRY) ( SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21.03.2018 /PK/PS. COPY OF THE ORDER FORWARDED TO: (1) SH. JASVINDER HANS, JALANDHAR (2) THE ASST. CIT, RANGE IV, JALANDHAR (3) THE CIT(A), JALANDHAR (4) THE CIT, CONCERNED (5) THE SR DR, I.T.A.T. TRUE COPY BY ORDER