2018 (3) TMI 1340 - AT - Income Tax

Computation of capital gains - STCG - claim of deduction of brokerage and legal expenses - improvement expenses - AO concluded that the said exps. were to be generally by the buyer and there was no proof of the exps. borne by the buyer. The appellant submits that the AO has failed to appreciate the understanding between the appellant and the buyer apart from the explanation that the same were incurred normally in cash and the same be deducted from the sale consideration in case they are paid initially by the purchaser. - Similarly as regards the dalali expenses there was no documentary proof. Held that - Any claim made by the appellant which was not substantiated with any concrete proof. Such expenses cannot be allowed u/s.48 of Income Tax Act. - Decided against the assessee.

Summary

Issues Involved:
1. Legality of assessment orders under section 143(3) read with section 153A in absence of incriminating material.
2. Adequacy of opportunity provided by AO and failure to issue show-cause notice.
3. Disallowance of interest expenses on borrowings for acquisition of rented property.
4. Confirmation of disallowance of depreciation on motor car.
5. Treatment of profit from land trading activity.
6. Disallowance of brokerage and cost of improvement in computation of capital gains.
7. Levy of interest under sections 234A, 234B, 234C & 234D.
8. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Legality of Assessment Orders under Section 143(3) read with Section 153A:
The appellant contended that the assessments were framed in absence of any incriminating material found during the search. The Commissioner of Income Tax (Appeals) [CIT(A)] confirmed the assessment orders. However, the appellant did not press these grounds during the hearing, leading to their dismissal as not pressed.

2. Adequacy of Opportunity and Failure to Issue Show-Cause Notice:
The appellant argued that the Assessing Officer (AO) did not provide adequate opportunity and failed to issue a show-cause notice before making modifications in the return of income, which vitiates the assessment proceedings. These grounds were also not pressed by the appellant and were dismissed.

3. Disallowance of Interest Expenses on Borrowings for Acquisition of Rented Property:
The AO disallowed the interest expenses claimed by the appellant on borrowings from Axis Bank for acquiring a rented property, citing lack of documentary evidence. The CIT(A) confirmed this disallowance. However, the Tribunal found the appellant's explanation and supporting documents satisfactory and allowed the interest expenses under section 24(b) of the Income Tax Act.

4. Confirmation of Disallowance of Depreciation on Motor Car:
The AO disallowed the depreciation claimed on a motor car, treating the profit from land trading activity as 'income from other sources' instead of 'business income.' The CIT(A) upheld this disallowance. The Tribunal, however, was convinced by the appellant's contention that the motor car was used for business purposes and allowed the depreciation under section 32(1) of the Act.

5. Treatment of Profit from Land Trading Activity:
The AO treated the profit from land trading as 'income from other sources' rather than 'business income,' leading to disallowance of depreciation on the motor car. The Tribunal accepted the appellant's argument that the frequent and regular transactions of trading in land constituted a business activity, thereby allowing the depreciation on the motor car.

6. Disallowance of Brokerage and Cost of Improvement in Computation of Capital Gains:
The AO disallowed brokerage expenses and cost of improvement claimed by the appellant in computing long-term and short-term capital gains, citing lack of documentary proof. The Tribunal partially allowed the appellant's claim, directing the AO to calculate 50% of the cost of improvement and give effect to it, while dismissing the claim for brokerage expenses due to insufficient proof.

7. Levy of Interest under Sections 234A, 234B, 234C & 234D:
The appellant contested the levy of interest under these sections. The Tribunal noted that the interest is consequential and should be calculated as per law by the AO.

8. Initiation of Penalty Proceedings under Section 271(1)(c):
The appellant challenged the initiation of penalty proceedings under section 271(1)(c). The Tribunal deemed these grounds premature and did not adjudicate them.

Conclusion:
The appeals for the assessment years 2009-10, 2010-11, and 2012-13 were allowed, while the appeal for the assessment year 2011-12 was partly allowed. The Tribunal provided relief on several grounds, including the allowance of interest expenses, depreciation on motor car, and partial allowance of cost of improvement. The issues of levy of interest and initiation of penalty proceedings were deemed consequential and premature, respectively.