Anil Talwar, Chandigarh V. ACIT, CC-II, Chandigarh

MA 78/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6413 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 26-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANKUR ALIA
• Keywords: Business expenditure; Document seized; Documents seized

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH , ! . #.. . $ , &' ! BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM M.A. NOS. 78 TO 82/CHD/2018 IN ITA NOS. 586 TO590/CHD/2013 / A.YS : 2005-06 TO 2009-10 SHRI ANIL TALWAR, S/O SHRI S.P.TALWAR, # SCF 14-15, SECTOR 22D, CHANDIGARH. VS THE ACIT, CENTRAL CIRCLE, CHANDIGARH. PAN N O. PAN :AAPPT2603R / APPELLANT / RESPONDENT / ASSESSEE BY : SHRI VED JAIN / REVENUE BY : SHRI ANKUR ALIA, SR. DR ! / DATE OF HEARING : 16.11.2018 '#$% ! / DATE OF PRONOUNCEMENT : 16.01.2019 &( / ORDER BY THE PRESENT MISCELLANEOUS APPLICATIONS U/S 254(2) OF THE INCOME TAX ACT FILED BY THE ASSESSEE RECTIFICATIONS IN THE CONSOLIDA TED ORDER DATED 8 TH FEB.,2018 IN ITA 586 TO 590/CHD/2013 PERTAINS TO 2005-06 TO 200 9-10 ASSESSMENT YEARS IS SOUGHT. 2. ADDRESSING THE APPLICATION FILED, THE LD. AR INVITING ATTENT ION TO PARAGRAPH 3 TO 5 OF THE SAME SUBMITTED THAT WHILE ADJUD ICATING UPON THE ISSUE OF ESTIMATED ADDITION ON ACCOUNT OF GYM EQUIPMENT ET C., THE ITAT TOOK NOTE OF THE FACT THAT THE ASSESSING OFFICER HAD MAD E AN ESTIMATED ADDITION OF RS. 25 LACS. REFERRING TO PARAGRAPH 27 OF THE IM PUGNED ORDER IT WAS SUBMITTED THAT IT WAS NOTED THAT THE CIT-A HAS GR ANTED PART RELIEF AND REDUCED THE ESTIMATED ADDITION TO 12 LAKH. THESE FACTS, IT WAS SUBMITTED, WERE CORRECTLY NOTED. REFERRING TO THE ORDER IT WAS SUB MITTED THAT TAKING NOTE OF THE ASSESSEES SUBMISSIONS AND AGREEING WITH THE SAME, THE ITAT IN THE ORDER PASSED CONSIDERED IN UNAMBIGUOUS TERMS THAT THE ESTIMATE WAS TOO HIGH. THUS, AFTER SO CONCLUDING, THE ESTIMATED ADDITION SUSTAINE D WAS OF RS. 18 LACS. THUS, IT WAS HIS SUBMISSION THAT THERE APPEA RS TO BE A TYPOGRAPHICAL ERROR IN THE ORDER SUSTAINING THE ADDITIONS OF RS. 18 LAKH M.A. 78 TO82/CHD/2018 PAGE 2 OF 7 AFTER CONSIDERING THE ESTIMATE OF RS. 12 LAKH BY THE CIT (A) AS VERY HIGH. IT WAS HIS SUBMISSION THAT HE IS NOT ARGUING THAT THE ESTIMA TE OF RS. 1 LAKH IS REASONABLE INSTEAD OF RS. 8 LAKH. IT WAS HIS SUBMISSION THAT IN ALL FAIRNESS IN THE CIRCUMSTANCES, THE FIGURE 1 MAY BE A TYPO AND T HE ESTIMATED ADDITION OF RS. 8 LAKH WAS PROBABLY BEING CONSIDERED. 3. THE RELEVANT PARAS OF THE MA RELIED UPON ARE REPRODUCED HERE UNDER : 3. IN PARA 12.27 ON PAGE 54, ON THE ISSUE OF THE ADDIT ION ON ACCOUNT OF GYM EQUIPMENT ,YOUR HONOURS HAVE HELD AS UNDER: '12.27. ADDRESSING THE ADDITION FOR GYM EQUIPMENT O N ACCOUNT OF WHICH ADDITION TO THE EXTENT OF RS. 25 LAKH HAS BEEN MADE BY THE ASSESSIN G OFFICER WHICH HAS BEEN REDUCED BY THE CIT-A TO THE EXTENT OF 12 LAKH THE LD. AR IN THE COURSE OF THE ARGUMENTS HAS INVITED ATTENTION TO THE SPECIFIC ITEMS MENTIONED I N THE INVENTORY PREPARED WHICH WOULD SHOW THAT THE EQUIPMENT CONSISTS OF BENCH PRESS SPA CE, LEG EXTENSION, JOGGER, TREADMILL, LAT PULL, CHEST PRESS ETC. NOTING THE ARGUMENTS THAT THESE ARE ROUTINE GYM EQUIPMENT AND COST OF 12 LACS IS TOO HIGH WE HOLD T HAT THE ESTIMATED ADDITION OF RS. 18 LAKH WOULD ADDRESS THE ARGUMENTS ADVANCED. WE NOTE THAT NOTHING HAS BEEN BROUGHT TO OUR NOTICE BY THE REVENUE TO JUSTIFY THE ESTIMATE OF THE AO OR THE. CIT-A WHEREAS THE LD. AR HAS INSISTED THAT COST OF THE SP ECIFIC GYM EQUIPMENTS WOULD NOT EXCEED RS. 4 TO 5 LACS AND PRINTED EVIDENCE IN REGA RD THERETO WAS STATED TO BE READILY AVAILABLE IN THE PUBLIC DOMAIN. SINCE THE SAID EVID ENCE HAS ALSO NOT BEEN FILED NOR MADE AVAILABLE ON RECORD THE ABOVE ESTIMATE IT IS CONSID ERED WOULD BE FAIR AND JUST CONSIDERING THE SUBMISSIONS AND THE FACTS ON R ECORD. THE SAME IS DIRECTED TO BE INCLUDED IN THE EXPENDITURE INCURRED IN 2008-09 FINANCIAL YEAR (2009 -10 A. Y.) FOR THE REASON THAT IT IS A C OST WHICH WOULD BE INCURRED AT THE FINAL STAGES.' 4. ON GOING THROUGH THE ABOVE PARA.YOUR HONOUR WILL N OTICE THAT IN THIS CASE THE AO HAS MADE ADDITION OF RS. 25 LAKH ON ACCOUNT OF THE GYM EQUIPMENT. THE CIT(A) HAS REDUCED IT TO RS. 12 LAKH. YOUR HONOUR HAVE TAK EN NOTE OF THE ARGUMENT OF THE AR AND AFTER TAKING NOTE HAVE HELD THAT COST OF 12 LACS IS TOO HIGH AND THEREAFTER HAVE HELD THAT ESTIMATED ADDITION OF RS. 18 LACS WOULD ADDRESS THE ARGUMENT ADVANCED (BY THE AR). THUS, THERE IS A TYP OGRAPHICAL ERROR WHEREBY RS. 18 LACS HAS BEEN INADVERTENTLY MENTIONED AS AGA INST RS. 8 LACS. 5. IN PARA 12.23, ON PAGE 53, YOUR HONOURS HAVE DEAL T WITH THE ISSUE OF THE SEIZED DOCUMENTS TOTALING RS. 56,81,0047- REGARDING SAN ITARY, ELECTRICAL, ELECTRONIC EXPENDITURE ETC. THE RELEVANT PARA 12.23 IS AS UNDE R: '12.23 ADDRESSING THE SEIZED DOCUMENTS FOUND AND CO NFRONTED TO MR. HARPAL SINGH OF M/S SP CONSTRUCTION TOTALING RS. 56 ,87,0047- WE NOTE THAT THE ASSESSEE HAS CLAIMED THAT IT IS INCLUDED I N ITS WORKING HOWEVER NOTING THAT SOME OF THE DOCUMENTS REFER TO SANITARY , ELECTRICAL ELECTRONICS ETC. IN THE ABSENCE OF ANY JUSTIFICATIO N FOR ITS DELETION SAME IS DIRECTED TO BE INCLUDED IN THE COST OF THE SAID PREMISES IN F.Y 2008-09 (A.Y. 2009-10). WHILE COMING TO THE SAID CO NCLUSION WE ARE GUIDED BY THE FACT THAT THESE APPEAR TO BE EXPENSES FOR FURNISHING OF THE CONSTRUCTED PREMISES HENCE EXPENSES RELATABLE T O THE FINAL STAGES'. 4. THE LD. SR.DR MR. ANKUR ALIA AGREED THAT THERE APPE ARED TO BE A TYPOGRAPHICAL ERROR AS AFTER CONSIDERING THE CIT(A)S ESTIM ATE OF RS. 12 LAKH AS VERY HIGH, RS. 18 LAKH ADMITTEDLY COULD NOT BE CONSIDE RED. IT WAS HIS SUBMISSION THATSINCE THERE IS A FIGURE OF RS. 1 LAKH MENTION ED THERE, THEN THE TYPOGRAPHICAL ERROR MAY BE THAT THE ITAT SOUGHT T O SUSTAIN THE ADDITION TO THE EXTENT OF RS. 10 LAKH AND NOT RS. 8 LAKH AS PROPOSED BY THE LD. AR .. M.A. 78 TO82/CHD/2018 PAGE 3 OF 7 5. THE LD. AR IN REPLY SUBMITTED THAT PHONETICALLY THERE COULD BE A MISTAKE BETWEEN RS. 8 LAKH AND RS. 18 LAKH AND THERE IS NO CO-RELATION WITH RS. 10 LAKH HOWEVER IT WAS HIS SUBMISSION THAT ADMITTE DLY THERE IS A TYPOGRAPHICAL ERROR. 6. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATER IAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SUBMISSIONS OF THE P ARTIES BEFORE THE BENCH AND ON GOING THROUGH THE RECORD, WE AGREE THAT THERE IS A TYPOGRAPHICAL ERROR IN THE MENTIONING OF THE FIGURE OF RS. 1 8 LAKH WHEN ADMITTEDLY THE ESTIMATE OF THE CIT(A) AT RS. 12 LAKH WAS BEING CONSIDERED TO BE TOO HIGH. WE NOTE THAT THERE APPEARS TO BE A TYPOG RAPHICAL ERROR WHERE INSTEAD OF STRIKING O, THE NUMBER 8 APPEARS TO HAVE BEEN TYPED. ACCORDINGLY, THE SAME IS RECTIFIED AND THE ADDITION SUSTAINE D IS TO THE EXTENT OF RS.10 LAKH. SAID ORDER WAS PRONOUNCED IN THE COURT AT THE TIME OF HEARING ITSELF. 7. INVITING ATTENTION TO THE NEXT MISTAKE IN THE AFOREMEN TIONED ORDER, PARAS 5 TO 9 OF THE SAME WERE REFERRED TO BY THE LD. AR, ON THE BASIS OF WHICH IT WAS HIS SUBMISSION THAT THE ADDITION SUSTAINED TO THE EXTENT OF RS. 56,81,000/- IN THE PECULIAR FACTS WAS NOT WARRANTED. FOR READY REFERENCE RELEVANT SUBMISSIONS OF THE ASSESSEE ARE EXTRACTED HEREUNDER : 5. IN PARA 12.23, ON PAGE 53, YOUR HONOURS HAVE DEA LT WITH THE ISSUE OF THE SEIZED DOCUMENTS TOTALING RS. 56,81,0047- REGARDING SAN ITARY, ELECTRICAL, ELECTRONIC EXPENDITURE ETC. THE RELEVANT PARA 12.23 IS AS UNDE R: '12.23 ADDRESSING THE SEIZED DOCUMENTS FOUND AND CO NFRONTED TO MR. HARPAL SINGH OF M/S SP CONSTRUCTION TOTALING RS. 56 ,87,0047- WE NOTE THAT THE ASSESSEE HAS CLAIMED THAT IT IS INCLUDED I N ITS WORKING HOWEVER NOTING THAT SOME OF THE DOCUMENTS REFER TO SANITARY , ELECTRICAL ELECTRONICS ETC. IN THE ABSENCE OF ANY JUSTIFICATIO N FOR ITS DELETION SAME IS DIRECTED TO BE INCLUDED IN THE COST OF THE SAID PREMISES IN F.Y 2008-09 (A.Y. 2009-10). WHILE COMING TO THE SAID CO NCLUSION WE ARE GUIDED BY THE FACT THAT THESE APPEAR TO BE EXPENSES FOR FURNISHING OF THE CONSTRUCTED PREMISES HENCE EXPENSES RELATABLE T O THE FINAL STAGES'. 6. THE SUBMISSION OF THE AR ON THIS ISSUE HAS BEEN TAKEN NOTE IN PARA 8.5 ON PAGE 30 OF THE ORDER WHICH READS AS UNDER: '8.5 ADDRESSING THE SCANNED DOCUMENTS REPRODUCED IN THE ASSESSMENT ORDER PERTAINING TO THE FURNISHING AND FLOORING ETC IT WA S SUBMITTED THAT THE DEPARTMENT HAS LOST SIGHT OF THE FACT THAT IT IS TH E ISSUE OF CONSTRUCTION WHICH WAS BEING CONSIDERED THE CONSTRUCTION IT WAS SUBMITTED ADMITTEDLY STOOD MAJORLY CONCLUDED IN THE FIRST FEW YEARS. THE DOCUMENTS RELIED UPON AND REFERRED TO IN THE ASSESSMENT ORDER IT WAS SUBM ITTED ITSELF DEMONSTRATES THIS FACT AND TOTAL AT BEST TO RS. 56,87,00047- THA T ALSO HAVE BEEN INCLUDED IN THE COST OF CONSTRUCTION. SIMILARLY THE FURNISHING EXPENSES OF THE ASSESSEE'S WIFE SMT. NEENA TALWAR PERTAINING TO CURTAINS ETC. ITSELF ARE OF THE LAST YEAR AND TOTAL OF RS. 6,74,5297- AND COULD NOT HAVE BEEN THE BASIS FOR GENERAL OVERALL ADDITION IN ALL THE YEARS.' 7. AS REGARDS THE ADDITION OF RS. 56,81,004/- SUSTAINE D BY YOUR HONOUR IN PARA 12.23, THE SUBMISSION OF THE AR WAS THAT IT HAS BEE N INCLUDED IN THE COST OF M.A. 78 TO82/CHD/2018 PAGE 4 OF 7 CONSTRUCTION AND HENCE ADVERSE INFERENCE ON THIS AC COUNT IS UNCALLED FOR, IN VIEW OF THE FACT THAT THE DEPARTMENT VALUER HAS CARRIED OUT THE VALUATION. YOUR HONOURS HAVE SUSTAINED ADDITION OF RS. 56,81,004/- ASSUMING THAT THESE ARE EXPENDITURE ON FURNISHING, WHEREAS THE FACT AS PER THE SEIZED DOCUMENTS MADE PART OF THE ASSESSMENT ORDER BY THE AO AT PAGES 23- 36 CLEARLY DEMONSTRATES THAT ONLY RS. 4,36,000/- PERTAINS TO FURNISHING AND THE REST PERTAINS TO CONSTRUCTION AND HENCE NO INDEPENDENT ADDITION ON THIS ACCOUNT C AN BE MADE WHEN A VALUATION HAS BEEN CARRIED OUT BY THE DVO. IT IS A MATTER OF RECORD THAT THE DEPARTMENT VALUATION OFFICER HAS ESTIMATED THE COST OF CONSTRUCTION AT RS. 2,41,42,000/- AS AGAINST COST OF CONSTRUCTION DECLA RED BY THE ASSESSEE AT RS. 2,23,92,375/-. THUS, THE COST OF CONSTRUCTION ESTIM ATED BY THE DEPARTMENT VALUATION OFFICER HAS TAKEN CARE OF ALL THE EXPENDI TURE ON CONSTRUCTION INCLUDING THE EXPENDITURE STATED IN THE SEIZED DOCUMENTS. 8. FURTHER, AS REGARD RS. 4,36,000/- ON ACCOUNT OF SEI ZED DOCUMENTS IN RESPECT OF ELECTRONIC ITEMS, WHEN INDEPENDENTLY ADDITION ON AC COUNT OF ELECTRONIC ITEMS HAVE BEEN CONSIDERED SEPARATELY IN PARA 12.28 ON PA GE 54 OF YOUR HONOUR'S ORDER, THE ADDITIONAL ADDITION ON THE BASIS OF SEIZ ED DOCUMENTS IS A MISTAKE APPARENT FROM RECORD. 9. THUS, THERE IS A MISTAKE IN CONSIDERING THIS AMOUNT OF RS. 56,81,004/- AS EXPENDITURE BEYOND WHAT HAS BEEN SEPARATELY CONSIDE RED AND THEREBY SUSTAINING THIS ADDITION OVER AND ABOVE THE INDIVIDUAL ADDITIO NS SUSTAINED BY YOUR HONOUR. 8. THE LD. SR. DR RELIED UPON THE ORDER. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. ON GOING THROUGH THE CHART FILED BY THE ASSES SEE WHICH IS ADDRESSED BY THE DEPARTMENT ALSO, WE NOTE THAT IN T HE FACE OF THE FINDINGS OF THE ITAT WHICH HAVE BEEN RECORDED AND ADDRES SED IN THE AFOREMENTIONED PARAS BY THE ASSESSEE, WE FIND THAT TO TH E EXTENT OF RS. 52 LAKH ODD WHICH CONSTITUTED THE RECORDS OF THE DIARIES MAIN TAINED BY HITESHI BEDI WE FIND THAT THE ARGUMENTS THAT THE ADDIT ION TO THE EXTENT OF RS. 4,36,000/- HAS BEEN WRONGLY INCLUDED APPEARS TO BE CORRECT THE LD. SR.DR WAS SPECIFICALLY REQUIRED TO ADDRESS THIS ASPECT. ON CONSIDERING THE FACTS AND THE ORDER IN TOTALITY, HE AGREED THAT THE INCLUS ION YET AGAIN OF THE STATED AMOUNT DOES APPEAR TO BE A REPEAT. WE FIND THA T ON THE BASIS OF SCANNED DOCUMENTS, ADDITION HAS BEEN MADE. WE ALSO NOT E THAT ADDITIONS HAVE BEEN MADE ON ACCOUNT OF FURNISHINGS AND ELECTRONIC ITEMS ETC. ADDITIONS HAVING BEEN MADE SEPARATELY OF THE ELECTRONICS, ELECTRIC ITEMS OR FURNISHING PERTAINING OF SOME OTHER YEAR AND THAT TOO OF T HE WIFE HAVE ALSO BEEN CONSIDERED. ACCORDINGLY, IN THE CIRCUMSTANCES THE M ISTAKE IN RE- INCLUDING THE AMOUNT OF RS. 4,36,000/- AGAIN IS A MISTAKE WHICH POSITION O F FACT IS NOT DISPUTED BY THE REVENUE ALSO. THE PRAYER OF THE ASSESSEE IN THE FACE OF THESE FACTS TO THE SAID EXTENT IS ALLOWED. 10. ADDRESSING THE NEXT MISTAKE THE LD. AR INVITING ATTE NTION TO PARAS 10 AND 11 OF THE IMPUGNED ORDER REQUESTED FOR RELIEF ON THE GROUNDS OF OLD M.A. 78 TO82/CHD/2018 PAGE 5 OF 7 FURNITURE. IT WAS HIS SUBMISSION THAT THE BENEFIT OF OLD FURNIT URE SHOULD HAVE BEEN ALLOWED. IN THE FACE OF THE RECORD IT WAS HIS SU BMISSION THAT THERE APPEARS TO BE A MISTAKE IN DENYING THE BENEFIT. 11. THE LD. CIT-DR HAS BEEN HEARD. 12. RELEVANT PARAS 9 TO 10 ARE REPRODUCED HEREUNDER FOR READY R EFERENCE : 10. YOUR HONOURS, IN PARA 12.14 HAVE HELD THAT AO W AS NOT CORRECT IN NOT GIVING CREDENCE TO THE ASSESSEE'S EXPLANATION REGARDING OLD FURNITU RE BEING USED BY HIM. THE RELEVANT PARA READS AS UNDER. 12.14 IN THE SAID BACKGROUND WE ALSO DEEM IT APPROP RIATE TO ADDRESS CERTAIN RELEVANT FACTS WHICH APPEAR TO HAVE BEEN IGNORED/AL TERNATELY NOT GIVEN ADEQUATE CREDENCE TO BY THE TAX AUTHORITIES FIRST A ND FOREMOST OF WHICH BEING THE TAXPAYER HAS CONSISTENTLY STATED THAT THE FURNITURE AND FITTINGS ETC FROM THE EARLIER RESIDENCE OF THE ASSESSEE HAD ALSO BEEN INCLUDED IN THE NEW PREMISES. THE NEW PREMISES HAVE BEEN PHOTOGRAPHED AND VIDEO RECORDED .THE SAID ARGUMENT HAS OUT RIGHTLY BEEN DISCARDED BY THE ASSESSING OFFICER WIT HOUT ASSIGNING ANY REASON WHATSOEVER. WE ARE OF THE VIEW THAT THE CLAIM PUT F ORTH BY THE TAXPAYER IS NOT A FAR- FETCHED IMPOSSIBLE STAND EVEN IF THE PREMISES HAVE BEEN PHOTOGRAPHED AND VIDEO RECORDED. NO DOUBT THE PREMISES APPEAR TO BE WELL F URNISHED HOWEVER THIS FACT ALONE CANNOT LEAD TO THE CONCLUSION THAT THE EXPLANATION OFFERED DOES NOT HAVE ANY CREDENCE WHATSOEVER. IT IS NOT THE CASE OF THE TAX AUTHORITIES THAT THE TAX PAYER WAS LIVING IN IMPOVERISHED CIRCUMSTANCES PRIOR TO THE C ONSTRUCTION OF THIS HOUSE AND ONLY ON ACCOUNT OF WINNING A JACKPOT/A LOTTERY ETC. THE CIR CUMSTANCES OF THE TAXPAYER HAVE CHANGED DRAMATICALLY. THE FACT THAT SUCH A SUBMISSI ON WAS ADVANCED IS EVIDENT FROM THE FOLLOWING DISCUSSION IN THE ASSESSMENT ORDER IT SELF EXTRACTED FROM UNNUMBERED PAGE 13 OF THE ASSESSMENT ORDER: E) THE CONTENTION OF THE ASSESSEE THAT THE ENTIRE O LD FURNITURE AND FIXTURE WAS GOT RENOVATED / REPAIRED BY USING THE SCRAP MATERIAL LE FT OUT OF CONSTRUCTION IS NOT CORRECT ALL THE OLD FURNITURE AND FIXTURES WERE LEFT AT H. NO. 149, SECTOR-8 CHANDIGARH WHERE THE ASSESSEE USED TO LIVE BEFORE SHIFTING TO H. NO. 346 , SECTOR- 9, CHANDIGARH. 13. ON GOING THROUGH THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE PRAYER OF THE ASSESSEE CANNOT BE ALLOWED. IT IS SEEN TH AT WHILE ARRIVING AT A CONCLUSION, WE HAVE TAKEN THE FACTS INTO CONSIDERATION. T HE ARGUMENTS THAT OLD FURNITURE WAS AVAILABLE TO THE ASSESSEE HAVE BEE N DULY NOTED IN PARA 12.14 AND TO THE EXTENT RELIEF WAS MAINTAINABLE ON TH E BASIS OF RECORD, IT HAS BEEN GRANTED IN PARA 12.32. THE FACT THAT THESE WERE CROSS APPEALS OF THE ASSESSEE AND THE REVENUE NEEDS TO BE CONSIDERE D WHEREIN THE ESTIMATED ADDITION OF RS. 1,88,50,000/- WAS REDUCED TO RS. 5 1 LAKH BY THE CIT(A). THE CONCLUSION HAS BEEN ARRIVED AT BY US ONLY AFT ER TAKING ALL THE RELATED FACTS, EVIDENCES, ARGUMENTS ETC. ON RECORD. ACCORD INGLY, ON A CONSIDERATION OF THE OVERALL FACTUAL MATRIX FOR THE REASON S GIVEN HEREINABOVE, WE DECLINE TO INTERFERE WITH THE ORDER AS THE SAID ACTION WOULD TANTAMOUNT TO A REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE. M.A. 78 TO82/CHD/2018 PAGE 6 OF 7 14. THE LD. AR INVITING ATTENTION TO PARAS 12 TO 14 OF THE APPLICATION PRAYS FOR FURTHER RELIEF ON THE GROUNDS OF AVAILABILITY OF SALVA GE AND CONSTRUCTION MATERIAL ETC. AVAILABLE TO THE ASSESSEE. 15. THE LD. SR.DR RELIES UPON THE ORDER. 16. THE RELEVANT PARAS 11 TO 14 ARE REPRODUCED HEREUNDER : 11. YOUR HONOURS AFTER RECORDING ABOVE FINDINGS HOWEVER WHILE ESTIMATING THE COST OF FURNITURE IN PARA 12.32 HAS GIVEN CREDIT OF COST OF FURNITURE OF RS 7,74,591 ON ACCOUNT OF VALUE OF CUP BOARDS TAKEN INTO CONSIDERA TION BY DVO BUT INADVERTENTLY NOT GIVEN CREDIT OF SUCH OLD FURNITURE. NOT ALLOWIN G CREDIT OF OLD FURNITURE THUS IS A MISTAKE APPARENT FROM RECORD LIABLE FOR RECTIFICATI ON. 12. YOUR HONOUR, FURTHER IN PARA 12.16 PAGE 49 HAVE H ELD THAT THE TAX AUTHORITIES WERE NOT JUSTIFIED IN IGNORING THE CONTENTION OF TH E ASSESSEE REGARDING ITS CLAIM OF EXISTENCE OF THE BOUNDARY WALL AND GATE AND WHICH W ERE CLAIMED TO HAVE BEEN REPAIRED AND RETAINED, CONSEQUENTLY THE AVAILABILIT Y AND THE REUSE OF THE SALVAGE OF THE DEMOLISHED EXISTING PREMISES WHICH HAS BEEN USED IN THE NEW CONSTRUCTION. THE RELEVANT PARA 12.16 READS AS UNDE R: '12.16 WE FURTHER TAKE NOTE OF THE FACT THAT THE TA X AUTHORITIES HAVE NOT GIVEN ANY CREDENCE TO THE CLAIM OF THE EXISTENCE OF BOUNDARY WALL AND GATE WHICH WERE CLAIMED TO HAVE BEEN REPAIRED AND RETAIN ED CONSEQUENTLY THE AVAILABILITY AND THE REUSE OF THE SALVAGE OF THE DE MOLISHED EXISTING PREMISES WHICH HAS BEEN CLAIMED AS HAVING BEEN USED IN THE NEW CONSTRUCTION HAS NOT BEEN ACCEPTED. THE ASSESSING O FFICER HAS REFUSED TO ACCEPT THIS CLAIM AND IN THE CHALLENGE POSED BEFORE THE CIT-A BENEFIT OF THIS CLAIM HAS BEEN DENIED TO THE ASSESSEE ON THE REASON ING THAT THE EVIDENCE IN SUPPORT THEREOF COULD NOT BE FILED. IN THE FACTS OF THE PRESENT CASE IT NEEDS TO BE KEPT IN MIND THAT AS PER LAW THE ASSESSEE WAS NOT R EQUIRED TO MAINTAIN THE DETAILS OF THE EXPENDITURE INCURRED FOR THE CONSTRU CTION OF THE HOUSE AS IT WAS NOT A BUSINESS EXPENDITURE OF THE ASSESSEE WHIC H WAS BEING CLAIMED HOWEVER THIS A/SO DOES NOT MEAN THAT ANY AND EVERY CLAIM OF THE TAXPAYER PUT FORTH HAS TO BE NECESSARILY DISCARDED UNDER LAW ON THE GROUNDS THAT THE HIGHEST POSSIBLE ACCEPTABLE EVIDEN CES ARE NOT AVAILABLE BECAUSE THE FACT REMAINS THAT THE ASSESSEE WAS NOT REQUIRED TO RETAIN THE SAME. NO DOUBT THE ONUS IS UPON THE TAXPAYER IN THE PECULIAR FACTS OF THE PRESENT CASE TO EXPLAIN THE EXPENDITURE THE ASS ESSEE AS PER RECORD HAS PUT FORTH ITS CLAIM WHATEVER MAYBE IT'S WORTH . THI S SPECIFIC CLAIM IS SUPPORTED BY AN AFFIDAVIT OF THE ASSESSEE AND EVEN IN THE STATEMENTS RECORDED OF MR HARPAL SINGH OF M/S SP CONSTRUCTION AND MR. HITESH BED; EMPLOYEE OF ASSESSEE'S FIRM WHICH HAVE BEEN EX TRACTED IN THE ASSESSMENT ORDER AND FORM PART OF THE PRESENT ORDER WE NOTE THAT THIS .CLAIM HAS BEEN CONSISTENTLY SUPPORTED BY THESE TWO PERSONS ALSO. IN THESE PECULIAR FACTS AND CIRCUMSTANCES THE SAID CLAIM CAN NOT BE OUT RIGHTLY DISCARDED.' 13. YOUR HONOURS HAVING GIVEN THE ABOVE CATEGORICAL FIN DING, NO BENEFIT / CREDIT OF THE SAME HAS BEEN GIVEN WHILE SUSTAINING THE VARIOUS AD DITIONS. IN THIS REGARD, IT MAY BE RELEVANT TO POINT OUT THAT THE DVO IN ITS REPORT AT PB. PG. 179 HAS ALSO CLEARLY STATED IN THE LETTER ADDRESSED TO THE AO. THE RELEV ANT OBSERVATION OF THE DVO AT THE BOTTOM OF THE LETTER READS AS UNDER: 'RELIEF ON ACCOUNT OF THE SALVAGE VALUE OF EXISTING STRUCTURE BE ACCOUNTED FOR AT YOUR END PLEASE.' 14. AFTER ALLOWING THE ABOVE CREDIT THERE WILL BE NO DIFFERENCE IN THE COST OF CONSTRUCTION ESTIMATED BY THE DVO AND THE COST OF C ONSTRUCTION DECLARED BY THE ASSESSEE AND HENCE THE ADDITION OF RS. 17,49,625/- SUSTAINED ON THIS ACCOUNT NEED TO BE DELETED . 15.LT IS SUBMITTED THAT ABOVE STATED ARE THE MISTAK ES APPARENT FROM RECORD AND HENCE LIABLE FOR RECTIFICATION UNDER SECTION 254(2) OF TH E ACT. M.A. 78 TO82/CHD/2018 PAGE 7 OF 7 16.ACCORDINGLY, IT IS PRAYED THAT YOUR HONOUR MAY P ASS APPROPRIATE ORDER AS YOUR HONOUR MAY DEEM FIT RECTIFYING THE ABOVE MISTAKES. 17. WE FIND ON GOING THROUGH THE MATERIAL AVAILABLE ON RECOR D THAT THE PRAYER AS REQUESTED ON BEHALF OF THE ASSESSEE IS NOT MA INTAINABLE. WE FIND THAT THE RELEVANT FACTS HAVE ALL BEEN TAKEN INTO CONSIDE RATION BEFORE THE PASSING OF THE ORDER. REASONS HAVE BEEN GIVEN FOR DENYIN G RELIEF AND TO THE EXTENT RELIEF ON FACTS WAS CONSIDERED TO BE MAINTAINABLE UN DER LAW IN THE ESTIMATES ARRIVED AT, IT HAS BEEN GIVEN. ACCORDINGLY, IN TH E ABSENCE OF ANY SPECIFIC MISTAKE, WE DECLINE TO INTERFERE ON THIS GROUND AS WE FIND IT HAS BEEN FACTORED INTO THE COST OF CONSTRUCTION. 18. SINCE IDENTICAL MISCELLANEOUS APPLICATIONS HAVE BEEN FILED IN EACH OF THE FIVE YEARS, THEY STAND DECIDED IN TERMS OF THE ABOVE ORDER. 19. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY TH E ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.01. 2019. SD/- SD/- ( . #.. . $ ) ( ) (DR. B.R.R. KUMAR) (DIVA SINGH) &' !/ ACCOUNTANT MEMBER * !/ JUDICIAL MEMBER + , #' () *) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. + / CIT 4. + ( )/ THE CIT(A) 5. ),- . , . , /01-2 / DR, ITAT, CHANDIGARH 6. -1 3 / GUARD FILE #' / BY ORDER, 4 5 / ASSISTANT REGISTRAR