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TMI Blog2013 (6) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land. Thus it is to be opined that the CIT (Appeal) had no evidence before him to hold that the sum of Rs.21,98,141/- was received by the assessee from the joint venture without deducting the cost of the land, and therefore, the CIT (Appeal) had no jurisdiction to set aside the order of the Assessing Officer. The Tribunal without going into the matter dismissed the appeal relying on the judgment of Kaumudini Narayan Dalal (2000 (12) TMI 101 - SUPREME Court) which had no manner of application to the facts and circumstances of the case. In favour of revenue. - ITAT No. 16 of 2013, G.A. No.182 of 2013 - - - Dated:- 3-4-2013 - Girish Chandra Gupta And Tarun Kumar Das,JJ. For the Appellant : Mr. R. Sinha, Advocate For the Respondent : Mr. R. Bharadwaj, Advocate ORDER The Court : The only issue which arises in this appeal is whether the order upholding deletion, of addition of Rs.21,98,141/- made by the Assessing Officer, is perverse ? The facts and circumstances of the case, briefly stated, are as follows. The assessee-respondent was a joint owner of premises No.106/A, S.N. Banerjee Road. He had, to be precise, 1/3rd interest therein. He entered into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal was dismissed. Mr. Sinha, learned Advocate appearing for the appellant submitted that the judgments cited by the learned Tribunal have no manner of application to the facts and circumstances of the case. The appellate authority allowed the appeal of the assessee without going into the facts and circumstances of the case; without application of mind and without any evidence on record. He drew our attention to the order of the appellate authority allowing the appeal of the assessee. From paragraph 3.3 of the judgment delivered by the appellate authority, it appears that the appellate authority had relied upon an earlier appellate judgment passed in the case of Smt. Sarojrani Bansal wherein the factual matrix was as follows: It is also apparent that the AO has not disputed the fact that the surplus of Rs.21,98,141/- received by the appellant being 1/3rd share from M/s. Tivoli Finvest was arrived without deducting the market value of the land. Once the AO was satisfied that the surplus of Rs.21,98,141/- was without debiting the cost of land, on which building was constructed, then as per the provisions of the Act, to arrive at the business profit or business loss, the cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligatory on the part of the assessee, if he wanted to dispute the view advanced by the Assessing Officer, to appear and to produce appropriate evidence to refute the prima facie view of the Assessing Officer. Mr. Sinha contented that it was a prima facie view because the Assessing Officer gave an opportunity to the assessee to appear and to make his submission and to produce documentary evidence so that any other view could be arrived at. The assessee did not avail himself of the opportunity, and therefore, the Assessing Officer was justified in making the aforesaid addition which was deleted by the CIT (Appeal) without any reason and merely on the basis of the appellate judgment in the case of Smt. Sarojrani Bansal which had no similarity whatsoever. It may be that in the case of Smt. Sarojrani Bansal, contented Mr. Sinha, the Assessing Officer was not vigilant or that he recorded his satisfaction erroneously. But that does not mean that another Assessing Officer in the case of another assessment of another assessee will be precluded from applying his mind. He, therefore, contented that the order passed by the CIT (Appeal) is otherwise than on the basis of any evidence and was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treatment. The third submission advanced by Mr. Bharadwaj is therefore rejected. The contention that the Assessing Officer after having accepted the sum of Rs.26,61,394/- for taxation on account of capital gain was obliged to allow the fair market value of the land assessed at Rs.43,11,000/- as an expenditure of the business has not impressed us. The submission that the Assessing Officer was obliged to do so under section 45(2) of the Income Tax Act is altogether without any merit. Under Section 45(2) of the Act the fair market value of the asset on the day of conversion is deemed to have been received or accrued as a result of the transfer. Therefore, the same was offered for taxation. The further contention that the fair market value was not in fact realised from the joint venture was a question of fact, which could only have been established by producing the books of accounts of the joint venture which the assessee did not produce or cause to be produced. The submission that it was not possible or it was not within the power of the assessee to produce the books of account of the joint venture is equally without any merit. In the agreement quoted above constituents of the jo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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