2023 (4) TMI 328 - AT - Income Tax

Capital gain computation - Disallowance of relief claimed u/s 54 - disbelieving on a payment made to the contractor for acquisition/development of house property - contractor not found on the address by the inspector and thus the deduction was not considered - HELD THAT - We believe that once the name of the payee is appearing in the bank statement the identity of the payee is established at the time of payment. Merely, at the time of assessment the inspector did not find the payee on the address cannot be reason to disbelieve the claim of expenditure which are based on the independent evidence and the veracity of the same is not doubted by the revenue but there are certain observations of ld. CIT(A) The claim of the assessee is supported by the agreement, receipt and name appearing in the bank statement of the contractor. CIT(A) merely stated his comments and there is no controverted finding on the documents in the remand report and the contentions raised by the CIT(A) were not verified by the ld. AO nor the finding is appearing in the order of the CIT(A) that the ld. AO has commented on these documents. The assessee was not given an opportunity to refuted these allegations so made. Before us also except the findings of the CIT(A) there is no comment on the documents and its veracity of these documents and merely based on surmised and conjecture the claim which is supported by documents and the source of the payment made is not disbelieved the claim of the assessee cannot be disbelieved on the reason that as on the date of inspector visit during the pendency of the assessment at the given address the person not found. The reasons canvassed cannot be a base to disbelieve the claim which is supported by the various evidence placed on record - Claim of the assessee for an amount cannot be disbelieved and thus, we hold that the revenue has erred in not allowing the claim of the assessee and therefore, we direct the ld. AO to allow the claim of the assessee to the extent of the share of the assessee in this payment - Decided in favour of assessee. Not allowing the benefit paid for acquiring title in the land sold resulting into charging of capital gain at very high figure i.e. the substitution of stamp duty valuation - Considering the wider scope of section 48 while computing the capital gain the payment made in relation the property if at the first instance be considered as additional consideration and at the same the payment of the said amount to settle the property dispute be considered as the payment which is absolutely necessary to affect the transfer made by the assessee and shall be considered as expenditure to which is covered by the provision of section 48 and the judicial decision as cited above. In terms of these observations the ground no. 3 raised by the assessee is allowed.

Issues Involved:
1. Disallowance of relief claimed under Section 54 of the Income Tax Act for a sum of Rs. 4,11,790.
2. Non-appreciation of the Supreme Court judgment in CIT vs. B.C. Srinivasa Shetty.
3. Non-allowance of a sum of Rs. 70,00,000 paid for acquiring title in the land sold.
4. Residual ground to add, amend, or alter grounds of appeal.

Issue-wise Detailed Analysis:

1. Disallowance of Relief Claimed Under Section 54:
The assessee claimed a deduction under Section 54 by investing Rs. 38,29,810 in a new residential property, which included Rs. 6,20,000 paid to a contractor for constructing the first floor. The AO disallowed this claim based on discrepancies in the contractor's identity and the inability to trace the contractor. The CIT(A) upheld this disallowance, citing differences in signatures and untraceability of the contractor.

Upon appeal, the tribunal examined the evidence, including the agreement with the contractor, receipts, and bank statements showing payments. The tribunal concluded that the identity of the contractor was established through bank statements and other documents. Therefore, the tribunal directed the AO to allow the claim of Rs. 6,20,000 as part of the deduction under Section 54.

2. Non-appreciation of Supreme Court Judgment in CIT vs. B.C. Srinivasa Shetty:
This ground was not pressed by the assessee during the hearing and was subsequently dismissed.

3. Non-allowance of Sum Paid for Acquiring Title:
The assessee's father had taken possession of the land without legal title, which was later sold. The sale consideration was initially assessed at Rs. 1,20,00,000, but the stamp duty authority valued it at Rs. 1,94,19,827. The assessee argued that Rs. 70,00,000 paid to M/s. Jai Mahal Hotels Pvt. Ltd. to cure the title defect should be considered as part of the cost of acquisition.

The tribunal noted that the payment of Rs. 70,00,000 was made to settle a dispute regarding the title of the property and was necessary to effectuate the transfer. The tribunal referred to judicial precedents, including the case of Gopee Nath Paul & Sons vs. DCIT, which held that expenditures necessary to remove encumbrances and effectuate transfer are deductible under Section 48. The tribunal concluded that the payment of Rs. 70,00,000 was incurred wholly and exclusively in connection with the transfer and should be allowed as a deduction while computing capital gains.

4. Residual Ground:
This ground was not pressed by the assessee and was dismissed.

Conclusion:
The tribunal allowed the appeal partly, directing the AO to allow the claim of Rs. 6,20,000 under Section 54 and the deduction of Rs. 70,00,000 as part of the cost of acquisition under Section 48. The tribunal dismissed the grounds related to the Supreme Court judgment and the residual ground as they were not pressed by the assessee. The order was pronounced on 08/02/2023.

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