2023 (6) TMI 1285 - AT - Income Tax

Unexplained investments made by the payment in cash - assessee could not specifically explain the source of making payment to Sh. Jagat Bhushan Batra - HELD THAT - AR had placed on record a copy of the assessment order framed in the hands of Sh. Rameshwar Havelia u/s 153A(1)(b) r.w.s.143(3) by DCIT, Central, Circle, Dehradun (who is the same officer assessing the assessee also), wherein, the AO of Sh. Rameshwar Havelia had categorically stated that it is Sh. Rameshwar Havelia, who had made cash payment of Rs. 1 crore to Sh. Jagat Bhushan Batra. Hence, the receipt of money in cash by the assessee from Sh. Rameshwar Havelia is proved beyond doubt by the orders of the Income Tax Department itself. Hence, the source for making payment to Sh. Jagat Bhushan Batra of Rs. 1 crore in cash stands clearly proved and explained. Hence, in our considered opinion, there cannot be any unexplained investment made by the assessee in the sum of Rs. 1 crore in the facts and circumstances of the instant case. Since the search assessment order of Sh. Rameshwar Havelia for assessment year 2015-16 could not be placed on record by the assessee before the CIT(A) as it was obtained by him after passing of order of learned CIT(A), this fact could not be addressed by the assessee before the learned CIT(A). These are only orders of the Income Tax Department, which clearly shows a divergent stand taken by the very same AO for the very same assessment year for two different assessees on the very same transaction. Hence, we direct the learned AO to delete the addition made in the sum of Rs. 1 crore paid in cash to Sh. Jagat Bhushan Batra. Decided in favour of assessee. Capital gain computation - denial of deduction on account of cost of acquisition and expenses incurred in connection with transfer of property - HELD THAT - A sum as paid by the assessee to Sh. Sandeep Kumar towards demarcation of land would be construed as cost of improvement eligible for deduction while computing capital gains. Further, the commission payment to Sh. Sandeep Kumar for sale of two plots is to be construed as expenses incurred in connection with transfer and eligible for deduction while computing capital gains. Payment as commission to Smt. Rajni Aswal for sale of third plot, we find that the assessee has placed on record the confirmation from Rajni Aswal together with her income tax return and computation of total income evidencing the fact of offering the commission income in her hands. These documents are enclosed - We hold that this commission payment is to be construed as expenses incurred in connection with transfer of land and accordingly eligible for deduction while computing capital gains. Thus out of the total disallowance made by the AO while computing capital gains expenses incurred for performing Puja of the land as this has got nothing to do with the property and cannot be construed as an expenses incurred in connection with the transfer of the property and sum paid to a civil contractor, Sh. Sandip Kumar from whom the work of demarcation and construction of partition for three plots sold was carried out need to be disallowed and remaining amounts should be allowed as deduction while computing capital gains.

Summary

Issues involved:
- Assessment year 2015-16: Whether addition of Rs. 1 crore as unexplained investments made in cash was justified.
- Assessment year 2016-17: Whether deduction on cost of acquisition and expenses related to property transfer was correctly denied.

Assessment year 2015-16:
- The Appellate Tribunal considered the addition of Rs. 1 crore as unexplained investments made in cash to Sh. Jagat Bhushan Batra. The documents found during a search operation indicated agreements and payments made by the assessee.
- The Tribunal noted that while the cheque portion of the payment was deleted by the CIT(A) due to non-encashment, the cash payment of Rs. 1 crore was confirmed as an addition since the source was not explained by the assessee.
- However, the Tribunal referred to the assessment order of another individual involved, Sh. Rameshwar Havelia, where it was stated that he made the cash payment to Sh. Jagat Bhushan Batra. This evidence proved the source of the cash payment, leading the Tribunal to direct the deletion of the Rs. 1 crore addition.

Assessment year 2016-17:
- The issue revolved around the denial of deduction for various expenses related to the transfer of property while computing short-term capital gains.
- The Tribunal found that certain expenses like registration charges, mutation fees, legal counsel fees, and civil contractor payments were directly related to the property transfer and thus eligible for deduction.
- However, expenses like puja costs and commissions unrelated to the property transfer were not considered eligible for deduction.
- The Tribunal analyzed each expense in detail, considering the evidence provided by the assessee, and allowed deductions for most expenses while disallowing a portion that was not directly linked to the property transfer.
- Ultimately, the Tribunal partly allowed the appeal for assessment year 2016-17, granting relief to the assessee on the grounds of deduction for valid expenses incurred during the property transfer process.

Conclusion:
- The Appellate Tribunal, in its judgment dated 28th June 2023, allowed the appeal for assessment year 2015-16 and partly allowed the appeal for assessment year 2016-17, based on the merits of the issues raised regarding unexplained investments and deductions related to property transfer expenses.