SHRI ASHOK KUMAR DUSAD, JAIPUR V. INCOME TAX OFFICER, WARD-7-2, JAIPUR

MA 57/JPR/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9209 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-08-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2); 90

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM M.A. NO. 57/JP/2020 (ARISING OUT OF ITA NO. 383/JP/2019) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2010-11 SH. ASHOK KUMAR DUSAD 36, PRAHLAD COLONY, AIRPORT CIRCLE, TONK ROAD, JAIPUR CUKE VS. ITO, WARD-7(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAYPD6823G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : MISS. CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 16/10/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 06/01/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINAT E BENCH IN ITA NO. 383/JP/2019 DATED 07/07/2020. 2. IN ITS MISC. APPLICATION, THE ASSESSEE HAS SUBMI TTED AS UNDER:- 1. THE APPLICANT BEGS TO SUBMIT THAT THE ORDER GIV ING RISE TO THE PRESENT MISCELLANEOUS APPLICATION WAS RECEIVED ON 1 4.07.2020. 2. IN THIS APPEAL ASSESSEE HAS CHALLENGED THE ORDER OF LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF INDEXED CO ST OF M.A. NO. 57/JP/2020 SH. ASHOK KUMAR DUSAD, JAIPUR VS. ITO, WARD 7(2 ), JAIPUR 2 IMPROVEMENT OF RS.4,18,500/- CLAIMED BY THE ASSESSE E ON SALE OF PLOTS, THEREBY COMPUTING THE LONG TERM CAPITAL GAIN AT RS.4,17,235/- AS AGAINST LONG TERM CAPITAL LOSS OF RS. 1,265/- COMPUTED BY THE ASSESSEE. 3. THE HON'BLE ITAT AT PARA 6 OF THE ORDER HELD THA T IN THE SALE DEED EXECUTED BY THE ASSESSEE THE DESCRIPTION OF TH E PROPERTY SOLD IS SHOWN AS RESIDENTIAL PLOT AND THE SITE PLAN ATTA CHED WITH THE SALE DEED ALSO DEPICTS THE PLOT OF LAND AND DOESN'T SHOW ANY CONSTRUCTED AREA THEREON. BUT AT THE SAME TIME THER E IS AVERMENT TOWARDS THE END OF THE SAID SALE DEED THAT IN THE P LOT SO SOLD THERE IS CONSTRUCTED AREA OF 900 SQ FEET. THUS, THERE IS INCONSISTENCY IN THE SALE DEED SO EXECUTED SO FAR AS THE EXACT DESCR IPTION OF THE PROPERTY IS CONCERNED. FURTHER, WHERE CONSTRUCTED A REA OF 900 SQ FEET CONSTITUTED 75% OF PLOT OF LAND MEASURING 133. 33 SQ YARDS EQUIVALENT TO 1200 SQ FEET SO SOLD, IT IS UNCLEAR W HY THE DESCRIPTION OF THE PROPERTY HAS BEEN SHOWN IN THE SALE DEED AS PLOT OF LAND ONLY AND NOT AS A PLOT OF LAND WITH CONSTRUCTION TH EREON. ACCORDINGLY, THE HON'BLE ITAT CONFIRMED THE DISALLO WANCE. 4. IN GIVING THE ABOVE FINDING, A MISTAKE APPARENT ON RECORD HAS CREPT IN AS MUCH AS AT PG 2 OF THE SALE DEED IT IS CLEARLY MENTIONED THAT ASSESSEE HAS SOLD THE PLOT ALONG WIT H THE CONSTRUCTION THEREON, DOOR, WINDOWS, FITTINGS, ELEC TRICITY & WATER CONNECTION. FURTHER IN THE SITE PLAN ATTACHED WITH THE SALE DEED THE TOTAL AREA OF THE PROPERTY SOLD IS MENTIONED AT 111 .47 SQ. MT. AND COVERED AREA AT 900 SQ. FT. IN SUPPORT OF THE SAME THE AGREEMENT WITH THE CONTRACTOR REGARDING CONSTRUCTION AND HIS AFFIDAVIT IS ALSO FILED. THUS, THE FACT OF CONSTRUCTION IS PROVED FRO M THE SALE DEED AND THE SITE PLAN ATTACHED THERETO. HENCE, INFERENC E DRAWN BY M.A. NO. 57/JP/2020 SH. ASHOK KUMAR DUSAD, JAIPUR VS. ITO, WARD 7(2 ), JAIPUR 3 HON'BLE ITAT THAT THE SALE DEED AND SITE PLAN ATTAC HED THERETO DOESN'T SHOW ANY CONSTRUCTED AREA THEREON IS A MIST AKE APPARENT ON RECORD. 5. IN VIEW OF ABOVE, IT IS REQUESTED TO KINDLY PASS THE APPROPRIATE ORDER U/S 254 OF THE IT ACT TO RECTIFY THE MISTAKE APPARENT ON RECORD AND OBLIGE. 3. THE LD DR IS HEARD WHO HAS RELIED ON THE FINDING S OF THE TRIBUNAL AND SUBMITTED THAT THE FINDINGS HAVE BEEN ARRIVED A T AFTER APPRECIATING ALL THE RELEVANT FACTS AND CIRCUMSTANCES OF THE CAS E AND THE MISC. APPLICATION SO FILED BY THE ASSESSEE DESERVE TO BE DISMISSED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE ORDER PASSED BY T HE COORDINATE BENCH AND ITS RELEVANT FINDING WHICH READ AS UNDER: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE OWNS A P LOT OF LAND MEASURING 200 SQ YARDS AND A PART OF THE SAID PLOT MEASURING 133.33 SQ YARDS, HAS BEEN SOLD DURING THE YEAR. ON PERUSAL OF THE SALE DEED SO EXECUTED BY THE ASSESSEE, THE DESCRIPT ION OF THE PROPERTY SOLD IS SHOWN AS RESIDENTIAL PLOT NO. 10 P LOT NO.10, BAJRANG NAGAR, VILLAGE- CHA GETOR, TEHSIL-SANGANER, DISTRICT JAIPUR AND EVEN THE SITE PLAN ATTACHED WITH THE SALE DEED DEPICTS THE PLOT OF LAND AND DOESNT SHOW ANY CONSTRUCTED AREA THERE ON. AT THE SAME TIME, THERE IS AVERMENT TOWARDS THE END OF THE SAID SALE DEED THAT IN THE PLOT SO SOLD, THERE IS CONSTRUCTED AREA OF 900 SQ FEET. WE THEREFORE FIND INCONSISTENCY IN THE SALE DEED SO EXECUTED SO FAR AS THE EXACT DESCRIPTION OF THE PROPERTY IS CONCERNED. SECONDLY, WHERE CONSTRUCTED AREA OF 900 SQ FEET CON STITUTED 75% M.A. NO. 57/JP/2020 SH. ASHOK KUMAR DUSAD, JAIPUR VS. ITO, WARD 7(2 ), JAIPUR 4 OF PLOT OF LAND MEASURING 133.33 SQ YARDS EQUIVALEN T TO 1200 SQ FEET SO SOLD, IT IS UNCLEAR WHY THE DESCRIPTION OF THE PROPERTY HAS BEEN SHOWN IN THE SALE DEED AS PLOT OF LAND ONLY AN D NOT AS A PLOT OF LAND WITH CONSTRUCTION THEREON. FURTHER, THERE I S NOTHING ON RECORD IN TERMS OF BUYERS CONFIRMATION/AFFIDAVIT O R PHOTOGRAPHS OF THE PROPERTY AT THE TIME OF SALE WHICH CAN CORROBOR ATE THAT WHAT HAS BEEN PURCHASED/SOLD IS NOT JUST A PLOT OF LAND BUT A PLOT OF LAND ALONG WITH CONSTRUCTION THEREON. THEREFORE, THE CL AIM OF THE ASSESSEE THAT OUT OF 1200 SQ FEET OF PLOT OF LAND, THERE IS CONSTRUCTION OF 900 SQ FEET AND WHAT HAS THEREFORE BEEN SOLD IS A PLOT OF LAND ALONG WITH CONSTRUCTION THEREON CANNOT BE ACCEPTED. THE AGREEMENT WITH THE CONTRACTOR DATED 30.04.2009 AND SUBSEQUENT AFFIDAVIT OF THE CONTRACTOR DATED 23.10. 2017 THEREFORE DOESNT INSPIRE ANY CONFIDENCE AND CANNOT BE ACCEPT ED. UNLESS THE ASSESSEE IS ABLE TO DEMONSTRATE WITH VERIFIABLE EVI DENCE THAT THERE WAS ACTUAL CONSTRUCTION ON THE PROPERTY SO SOLD, TH ESE AGREEMENT AND AFFIDAVIT CANNOT COME TO THE AID OF THE ASSESSE E. THE AGREEMENT IS ONLY AN UNDERSTANDING BETWEEN THE TWO PARTIES TO CARRY OUT CERTAIN WORK AND THEREFORE, MERELY REFLEC T AN INTENTION AND UNDERSTANDING BETWEEN THE TWO PARTIES AND CANNO T THEREFORE BE RELIED TO SUPPORT THE ACTUAL CONSTRUCTION ON THE PART OF THE PLOT OF LAND SO SOLD BY THE ASSESSEE. THE SUBSEQUENT AF FIDAVIT TALKS ABOUT PERIOD STARTING 4.5.2009 AND ENDING ON 31.12. 2009 DURING WHICH THE WORK WAS CARRIED ON AND WE FIND THAT THE SALE DEED HAS THEREAFTER BEEN EXECUTED IN LESS THAN A MONTH ON 18 .01.2010. FIRSTLY, WE FIND IT UNUSUAL THAT CONSTRUCTION OF 90 0 SQ FEET AS SO CLAIMED BY THE ASSESSEE HAS TAKEN AROUND EIGHT MONT HS TIME TO CONSTRUCT AND THEREAFTER, AS SOON AS CONSTRUCTION W AS COMPLETED, THE ASSESSEE HAS SOLD THE PROPERTY IN LESS THAN A M ONTH. IF THE M.A. NO. 57/JP/2020 SH. ASHOK KUMAR DUSAD, JAIPUR VS. ITO, WARD 7(2 ), JAIPUR 5 INTENTION OF BOTH THE PARTIES WAS TO SELL AND PURCH ASE A CONSTRUCTED PROPERTY, IN SUCH A SCENARIO, THE DESCR IPTION OF THE PROPERTY SO STATED IN THE SALE DEED SHOULD HAVE BEE N A CONSTRUCTED PROPERTY INSTEAD OF A PLOT OF LAND. FURTHER, WHAT STOPS THE ASSESSEE IN SUBMITTING THE AFFIDAVIT OF BUYER AND T HE PHOTOGRAPHS OF THE PROPERTY IN SUPPORT OF ITS CLAIM RATHER THAN MERELY RELYING ON A THIRD PARTY AVERMENTS. THEREFORE, THE THIRD PART Y AVERMENTS CAN COME TO THE AID OF THE ASSESSEE ONCE IT IS PROVED T HAT THERE WAS ACTUAL CONSTRUCTION AND THEN, IN SUPPORT OF COST OF CONSTRUCTION, SUCH AVERMENTS MAY BE EXAMINED ALONG WITH PROOF OF ACTUAL PAYMENT WHICH AGAIN IS ABSENT IN THE INSTANT CASE. IN LIGHT OF AFORESAID DISCUSSIONS, WE ARE OF THE CONSIDERED VIE W THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE NECESSARY ONUS PLACED ON HIM IN SUPPORT OF HIS CLAIM OF CONSTRUCTION ON THE PROP ERTY AT THE TIME OF SALE AND COST OF CONSTRUCTION AS SO CLAIMED HAS THEREFORE RIGHTLY BEEN REJECTED BY THE LOWER AUTHORITIES AND THE MATT ER IS DECIDED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE. 5. THE COORDINATE BENCH HAS DULY CONSIDERED THE CO NTENTS OF THE SALE DEED AND EVEN WHERE DESCRIPTION OF THE PROPERTY AT PAGE 2 OF THE SALE DEED IS TAKEN INTO CONSIDERATION, WE FIND THAT THE SAME WILL NOT LEAD TO ANY CHANGE OR IMPACT THE OUTCOME OR THE FINDINGS OF THE COORDINATE BENCH WHERE IT WAS HELD THAT THERE WAS INCONSISTENC Y IN THE SALE DEED SO EXECUTED AS FAR AS THE EXACT DESCRIPTION OF THE PRO PERTY IS CONCERNED. FURTHER, WE FIND THAT THE DECISION OF THE COORDINAT E BENCH IS NOT BASED SOLELY ON REVIEW OF THE SALE DEED BUT IT HAS TAKEN INTO CONSIDERATION THE AGREEMENT WITH THE CONTRACTOR DATED 30.04.2009 AND SUBSEQUENT AFFIDAVIT OF THE CONTRACTOR DATED 23.10.2017 AND HA S THEREAFTER ARRIVED AT ITS FINDINGS THAT, GIVEN THE INCONSISTENCY IN THE D ESCRIPTION OF THE M.A. NO. 57/JP/2020 SH. ASHOK KUMAR DUSAD, JAIPUR VS. ITO, WARD 7(2 ), JAIPUR 6 PROPERTY IN THE SALE DEED AND IN ABSENCE OF ANY COR ROBORATION IN TERMS OF BUYERS CONFIRMATION/AFFIDAVIT OR PHOTOGRAPHS OF TH E PROPERTY AT THE TIME OF SALE WHICH CAN DEMONSTRATE THAT WHAT HAS BEEN SO LD IS NOT JUST A PLOT OF LAND BUT A PLOT OF LAND ALONG WITH CONSTRUCTION THEREON, THE ASSESSEE HAS FAILED TO DISCHARGE THE NECESSARY ONUS PLACED O N HIM IN SUPPORT OF HIS CLAIM OF CONSTRUCTION ON THE PROPERTY AT THE TI ME OF SALE AND COST OF CONSTRUCTION AS SO CLAIMED HAS THEREFORE RIGHTLY BE EN REJECTED BY THE LOWER AUTHORITIES. WE THEREFORE DONOT FIND ANY BA SIS TO INTEREFERE WITH THE FINDINGS OF THE COORDINATE BENCH WITHIN THE WEL L-LAID DOWN LIMITED JURISDICTION U/S 254(2) OF THE ACT. IN THE RESULT, MISCELLANEOUS APPLICATION SO FILED B Y THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/01/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/01/2021. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. ASHOK KUMAR DUSAD, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD -7(2), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 57/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR