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TMI Blog2018 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... a claim to be admissible, the same is required to be verified and for that matter the onus is on the assessee to produce necessary evidence to justify the incurrence of the impugned expenditure, especially considering the fact that in the instant year complete payment for the expenditure has not been made. The Remand Report of the Assessing Officer, which has been reproduced by the CIT(A) also brings out that the attempt to issue summons to the party did not fructify as Mr. Nelson A. D’cruz was not available at the given address. Considering the entirety of facts and circumstances of the case, in our view, it would be in the fitness of thing that this aspect is required to be examined by the Assessing Officer afresh and for that matter the onus shall be on the assessee to justify the incurrence of the impugned expenditure on levelling and construction of boundary wall on the land in question. - ITA No. 5414/Mum/2015 - - - Dated:- 28-2-2018 - Shri G. S. Pannu, Accountant Member And Shri Sandeep Gosain , Judicial Member Appellant by : S/Shri B.V.Jhaveri/A.N.Shah Respondent by : Shri Suman Kumar ORDER Per G. S. Pannu, A. M. The captioned appeal filed by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of Rule 46A of the Income Tax Rules, 1962. On that basis the CIT(A) came to conclude that the consideration of ₹ 3,75,00,000/- was received by the assessee on sale of an immovable property but according to him the same was not a capital asset and, therefore, he disagreed with the assessee that the profit on sale of such property is assessable under the head capital gain . Instead, CIT(A) concluded that the profit on sale of property was assessable as business income . Concurrently, the CIT(A) also observed that if in further appellate proceedings, the property in question was to be treated as a capital asset , the provisions of section 50C of the Act would be triggered and he directed the Assessing Officer to recompute the capital gain, after considering the provisions of section 50C of the Act, if such a need arises. On the aspect of computation of capital gains, the CIT(A) disagreed with the assessee with regard to his claim for expenses of ₹ 75,23,333/- as cost of improvement, as according to him, the assessee had failed to establish the incurrence of such expenditure. In this background, now the assessee is in appeal before us. 5. The first and foremost p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd material led by the assessee before the CIT(A), copies of which have been placed in the Paper Book before us, also reveal that the plot of land sold during the year was a part of the four plots, which admeasured in total 4648.70 sq.mtrs. It is factually emerging that the four plots admeasuring 4648.70 sq.mtrs devolved on the assessee after the death of his father in February, 1987 as a consequence of the automatic dissolution of the partnership firm M/s. Ram co., in which his father was a partner. To further straighten the record, it is noted that the share of assessee s father devolved on his wife, two sons and four daughters, and it was only by way of Deed of Release registered on 16/1/2008, that assessee obtained complete ownership of the plot of land from the other coinheritors. Be that as it may, the question for consideration is as to what is the nature of the asset in the hands of the assessee whether it is a capital asset or stock-in-trade . The expression capital asset has been defined in section 2(14) of the Act; and, shorn of other details, so far as it is relevant for our purpose, the definition prescribes that a capital asset means property of any kind held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade. In fact, at the time of hearing, the Ld.Representative for the assessee explained that only one plot admeasuring 966.40 sq.ft. out of the four plots of land totalling to 4648.70 sq.mts., has been sold in this year. It has been explained that the other three plots were sold by the assessee in assessment year 2008-09 for a total consideration of ₹ 4,07,76,687/- and the gain arising there-from was declared as capital gain and the same has also been accepted by the Assessing Officer while framing an assessment under section 143(3) of the Act dated 30/11/2009. In this context our attention has been drawn to pages 66 -76 of the Paper Book, wherein are placed the computation of total income, copy of the income tax return filed and the assessment order passed by the Assessing Officer for assessment year 2008-09. At pages 77 to 107 of the Paper Book are also placed sale agreements evidencing sale of other three plots of land in assessment year 2008-09. Thus in assessment year 2008-09 the land devolved on the assessee from his father has already been accepted as a capital asset . The entire conspectus of facts on record also bring out that there is nothing to suggest that assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied the claim of deduction. 8. Before us, the Ld. Representative for the assessee pointed out that the discrepancy noted by the Assessing Officer in the Remand Report was adequately explained before the CIT(A). It is explained that during the year under consideration, assessee had paid only an amount of ₹ 30,00,000/- to Mr. Nelson A. D cruz and, therefore, the claim of the Assessing Officer that the gross receipts reported by Mr. Nelson A. D cruz did not include the payment made by the assessee is wrong. It was pointed out that there is no requirement on the part of the assessee to deduct TDS on the payment made to Mr. Nelson A. D cruz. It has been explained that for such reason the name of the assessee was also not appearing in the details of TDS as downloaded from the system. In any case, the Ld.Representative for the assessee pointed out that a confirmation from the said party was filed before the CIT(A) and there was no repudiation to the same. 9. On the other hand, the Ld. Departmental Representative has relied upon the order of the CIT(A), which we have already detailed above, therefore, the same is not being repeated for the sake of brevity. 10. We have car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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