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TMI Blog2014 (7) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... identifying customers to settling the deal and getting the documents registered - MD is not a related party to the assessee and the genuineness of the transaction - if the assessee had incurred expenditure @ 4% for paying fees to a professional entity, then there was no justification in partly disallowing it - FAA had rightly allowed the appeal of the assessee – Decided against Assessee. - ITA No. 6010/Mum/2012 - - - Dated:- 25-6-2014 - Sh. D. Manmohan And Rajendra,JJ. For the Petitioner : Cpt. Pradeep Shaurya Arya For the Respondent : Shri P. B. Chhapgar ORDER Per Rajendra, AM. Challenging the order dt. 25. 07. 2012 of the CIT(A)-27, Mumbai, Assessing officer(AO)has raised following Grounds of Appeal : 1. Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in deleting the disallowance of brokerage fees paid to M/s Megha Developers to the tune of ₹ 52, 05, 082/-. 2. Whether on the facts and circumstances of the case and in law, the ld. CIT(A) erred by merely accepting the assessee s contention that reference to Shiv Mahal palace in the bills issued by M/s Megha Developers was only to mail all the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighly excessive and unreasonable, that MD had stated in their respective bills about the property situated at Sim village, that the local inquiries revealed that the Shiv Mahal Palace, Old Padra Road, Baroda, and land bearing Survey No. 86 (part) admeasuring 3, 000 sq. mts. were situated in the Sim of Village Jetalpur, Taluka and district Baroda were two different properties, that the said properties were at least 3 kilometers away from each other, that capital gains were being shown from only one property, that charges paid for the other property were also claimed as deduction at the time of computation of capital gains, that the expenditure had not been incurred Wholly and exclusively in connection with such transfer, that it could not be allowed as deduction, that the assessee s explanation towards its being reasonable was also not substantiated by any supporting instance. Fianlly, he allowed an expenditure of ₹ 20, 00, 000/- under the head brokerage expenses and disallowed the balance amount of ₹ 52, 05, 082/- from the computation of the capital gains. AO further found that the assessee had incurred and deducted an expenditure of ₹ 72, 05, 082/- as broker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hal Palace, that the reference to the Shiv Mahal Palace in the bills issued by the MD was not given only to mail all the documents to the assessee s present address at Baroda, that there was only one property which was sold and the services of MD were utilised thereof. A map of the land sold referred to as banakhat was placed on record. It is further submitted that MD had rendered the various services to the assessee, including finding a financially sound party with impeccable references who would buy the property which was up for sale and handling the paperwork / documentation in connection with the sale. After considering the submissions of the assessee and the assessment order, he held that the impugned charges were paid in respect of only one property and not for two different properties as noted by the AO in his assessment order, that the property Shiv Mahal Palace was not part of the intended sale nor it was put for sale during the year under consideration, that the services were rendered by MD only in respect of the impugned property and not otherwise, that the assessee had furnished a detailed list of services rendered by MD. that from the details placed on record it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of such a vital piece of information what prevented him from confronting the assessee with the said fact. Taking a unilateral decision, without affording a reasonable opportunity to the assessee to rebut the allegation, is a clear and blatant violation of principles of natural justice. We find that the FAA has given a undisputable finding that only one property was sold during the year under appeal. We find that he had access to a map of the land sold. So, after considering the facts available on record if he reached at the conclusion that only one property was sold then it has to held that his order does not suffer from any legal infirmity. A glance at the sale deed clearly show that the transaction was about a plot of land and about the property called Shiv Mahal. In these circumstances, we are of the opinion that the stand taken by the AO about sale of two properties is totally baseless. Thererfore, confirming the order of the FAA we decide Ground no. 2 against the AO. As far as payment to MD is concerned, we find that the AO has held that the expenditure was unreasonable and excess and had to be partly allowed. We are unable to understand as to what was the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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