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TMI Blog2015 (8) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court in the case of Goetze India Ltd. vs. CIT (2006 (3) TMI 75 - SUPREME Court). The ld. CIT(A) has coterminous power and whatever additional evidences submitted by the assessee before him had not been adjudicated proper perspective and in legal framework as no application for filing of additional evidence had been referred by him and no finding had been given by the ld. CIT(A) that these evidences are required to decide the basic cause of the assessee. Therefore, in the interest of justice, we set aside the issue to the file of the AO to decide it de novo by providing reasonable opportunity of being heard to the assessee. - Decided in favour of revenue for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 Brief facts of the case are that the assessee filed its return of income on 2-07-2009 declaring total income at ₹ 5,70,916/-. The assessee had income from house property. The case of the assessee was scrutinized u/s 143(3) of the Act. During the course of assessment proceedings, vide query letter dated 15-02-2011, the assessee was required to furnish the details of transactions of immovable property covered under AIR information. No such information was furnished by the assessee. It was gathered that the assessee had sold a house property situated at Krishna Tower, Dhuleshwar Garden, C-Scheme, Jaipur on 26- 04-2008 for ₹ 75,72,988/-. The AO gave reasonable opportunity of being heard to the assessee on this issue and asked to calculate the capital gain arising on sale of the property which has not been shown in the return. The assessee furnished the copy of the sale deed dated 28-04- 2008 and also computed the capital gain at nil after making the claim of indexed cost of acquisition and improvement. As per sale deed dated 28- 04-2008, the assessee alongwith co-owner Smt. Shashi Gajaria had sold a portion measuring 2670 sq. Ft situated at III floor of Krishna Tower, Dh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit the original sale agreement on the pretext that same was not available. Therefore, the AO proposed to disallow the indexed cost acquisition in the year 1980. The assessee submitted reply vide letter dated 22-11-2011 which has been reproduced by the AO at pages 4 and 5 of the assessment order. The AO after considering the assessee's reply concluded as under:- ''8.2……… (i) First of all, the so called 'Vikray Anuband'' photocopy of which has been filed, is undated. It is not known when it was written and such a paper has no locus standi and the same is not enforceable in the eye of law. (ii) The so-called sale agreement is also not witnessed by anyone as the space meant witnesses has been left blank. Such a document has no evidentiary value. (iii) The description of the property given in the so called sale agreement is Plot No. 56 (Chappan), Dhuleshwar Garden, Jaipur which is incorrect. (iv) There is no evidence with the assessee to show that the said property was in its possession except the copy of undated, un-witnessed and unregistered document, which is not acceptable. (v) The so called sale agreement is not registered with the Registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE SELLER. AND NOW THE BUYER HAS BECOME ABSOLUTE OWNER OF THE SOLD OUT PART OF IMMOVABLE PROPERTY INSTEAD OF THE SELLER AND THE BUYER IS ALL CAPABLE TO USE AND UTILIZE IT IN THE MANNER AS THE BUYER WISH. THE SOLD OUT PART OF THE SAID PROPERTY ALSO CONSISTS OF ALL RIGHTS, INTERESTS EASEMENT TO BE VESTED IN THE BUYER. Further, the registered sale deed in respect of the other 1/4th part of sold property dated 29-11-1997 also specifies that ''And whereas the seller has desired to sell out undivided 1/4th part of the said immovable property described herein below in schedule -1 for the sale price of ₹ 4,95,500/- (Rs. Four Lac Ninety Five Thousand Five hundred only) And whereas the buyer has paid the total sale consideration of ₹ 4,95,000/- /- (Rs. Four Lac Ninety Five Thousand Five hundred only) to the seller in the mode and manner as follows:- (ii) (i) of ₹ 4,95,000/- /- (Rs. Four Lac Ninety Five Thousand Five hundred only) has been received bythe seller from the buyer vide cheque no. 384889 dated 27-1-1997, Canara Bank, M. I. Road Branch, Jaipur at the time of execution of this sale deed of sale deed before the Sub-Registrar, Jaipur City. In this way, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed will be shared by both the parties according their respective share and in case developer obtains permission for additional area, fee charges shall be borne by both the coITA owners and the developer in proportion of 53% and 47% respectively. The agreement further specifies that the developer shall bear the cost incurred in installing transformer and electric connections in the ratio of 53% and 47% respectively. As per the details filed before the AO on the basis of bills/ vouchers, the expenditure was incurred as under:- F. Y. Expenditure as per bills produced and placed on file Amount 53% attributable to both the coowners ½ share of assessee 2002-03 Land conversion and other charges paid to JDA municipality ₹ 87959 ₹ 475706 ₹ 237853 2003-04 Electric installation exp ₹ 274385 ₹ 145424 ₹ 72712 2004-05 Transformer installation exp ₹ 134961 ₹ 71529 ₹ 35764 ₹ 1306905 ₹ 692659 ₹ 346329 The expenditure had been incurred for the whole complex built by the developer out of which only a portion measuring 2670 sq. Ft situated in 3rd floor has now been sold by the assessee and the co-ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the AO to delete the addition of ₹ 37,86,495/- made by him on account of Long term capital gain. 2.3 Now the Revenue is before wherein the ld. DR argued that the ld. CIT(A) has accepted the assessee's evidences without allowing any opportunity to the AO and decided the case in favour of the assessee. The ld. DR submitted that it is a fact on record that the assessee had not produced original sale agreement before the AO. It is also a fact that the assessee had not disclosed this transaction in the return. The AO on the basis of AIR information has issued the show cause notice to the assessee. Thereafter he claimed that there is no taxable capital gain in case of the assessee. In this case, whatever evidences were filed by the assessee before the ld. CIT(A) the same were not considered legally as the assessee has not given any application of additional evidence before the ld. CIT(A) under Rule 46A of the Income tax Rules and the ld. CIT(A) has also not passed any order for admitting the additional evidence for disposal of this appeal which goes to the root cause of the case. Thus the ld. DR prayed that the matter may be set aside to the file of the AO. 2.4 During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee and her co-owner. Rather the actual fact as is evident form the sale deed is that, the entire constructed complex shall be divided between assessee including her coowner and the developer company in the ratio of 53:47% and thus Basement, ground floor and 1st floor were shared by the parties I the said ratio whereas, second floor was kept by developer and IIIrd floor was kept by assessee and her co-owner. However, in this arrangement, the ratio of distribution essentially remained static at 53:47% It is submitted that all these facts were brushed aside by the AO and he went on to disallow the deduction of cost of acquisition as claimed by assessee. Nevertheless, during the course of appellate proceedings before ld. CIT(A), all these facts alongwith relevant evidences (already submitted before AO) were submitted before ld. CIT(A) and all the allegations of AO were established as baseless before the ld. CIT(A) who after perusing them carefully passed a very reasoned order, acknowledging them all the above mentioned facts in light of settled law regarding Section 2(47) r. W. S. 45/58 of the I. T. Act and thereby deleted the addition made by the AO.'' 2.5 The ld. AR of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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