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TMI Blog2018 (3) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... undra Upmanya, CIT-D. R. ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER : These are four appeals by the assessee against the order of the Commissioner of Income Tax (Appeals)-11, Ahmedabad, dated 15/03/2016, 15/03/2016, 10/03/2016 & 16/03/2016 for the Assessment Years (AYs) 2009-10, 2010-11, 2011-12 & 2012-13 respectively. 2. Since in all four appeals assessee are same and issues are common only amounts and assessment years are different. Therefore, for the sake of convenience, we would like to dispose of all four appeals by way of a common order. 3. First we take up ITA No.1678/Ahd/2016 for A.Y. 2009-10. Following Grounds has taken by the assessee in this appeal. "1. Ld. CIT (A) erred in law in confirming order of AO framing assessment u/s.143 (3) r w s 153A of the Act in absence of any incriminating material regarding any undisclosed income pertaining to the appellant found during the course of search. Ld. CIT (A) ought to have quashed the order being illegal, unlawful and therefore void ab initio. It be so held now. 2. Ld. CIT (A) erred in law and on facts in holding that AO granted adequate opportunity to the appellant by elaborately discussing grounds for rejection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble property. However, the AO concluded that the said exps. were to be generally by the buyer and there was no proof of the exps., borne by the buyer. The appellant submits that the AO has failed to appreciate the understanding between the appellant and the buyer, apart from the explanation that the same were incurred normally in cash and the same be deducted from the sale consideration in case, they are paid initially by the purchaser. Similarly, as regards the dalali exps, of ₹ 98,000/-, there was no documentary proof. 4.3 The AO also noticed that the appellant had claimed interest exps. of ₹ 1,69,442/- against property income without giving any details. The appellant by reply dated 10/03/2014 in response to the order sheet entry dated 03/03/2014 submitted that the interest was claimed in respect of borrowings used for the rented property situated at Mauyra Atria, Opp. Atithi Restaurant which was purchase out of loan taken from AXIS Bank, Law Garden branch and the copy of bank certificate was enclosed. However, the AO concluded that the books of accounts did not reflect AXIS bank account nor copy of said bank account was enclosed with the reply so that the explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment proceedings. 3. Ld. CIT (A) erred in law in and on facts confirming disallowance by AO of ₹ 10,91,728/- depreciation claimed on motor car. Ld. CIT(A) ought to have held depreciation as allowable u/s.32(1) of the Act on motor car used for the purpose of business of land trading and of the partnership firms. 4. Ld.CIT(A) erred in law and on facts in confirming action of AO treating profit from land trading activity as 'income from other sources' instead of 'income from business' and thereby disallowing depreciation on motor car. Ld. CIT(A) ought to have held profit from frequent & regular transaction of trading in land as 'business income' warranting to allowing depreciation on asset used for earning this income u/s.57(iii) of the Act. 5. Levy of interest u/s 234A, 234B, 234C & 234D of the Act is unjustified. 6. Initiation of penalty proceedings u/s 271 (1)(c) of the Act is unjustified." 12. So far ground nos.1 and 2 are concerned. Appellant did not want to press these grounds. Same are dismissed as not pressed. 13. So far ground nos. 3 & 4 with regard to confirmation of disallowance of ₹ 10,91,728/- for depreciation claimed on motor car are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural land LTCG was claimed only to extent of ₹ 1,22,99,290/-. 5. The ld. CIT(A) erred in law in and on facts confirming disallowance made by AO of cost of improvement of ₹ 9,60,000/- indexed at ₹ 20,82,093/- computing long term capital gain on sale of agricultural land at Makarba. Ld. CIT(A) ought to have allowed cost of improvement incurred and rightfully claimed on land purchased in 1995 by the appellant. 6. Ld. CIT(A) erred in law and on facts in not adjudicating contention raised without prejudice to above ground that total investment in new agricultural land to be considered as against which exemption is claimed. Thus even if the improvement cost is added, LTCG would still be computed considering total investment in new agricultural land. 7. Levy of interest u/s 234A, 234B, 234C & 234D of the Act is unjustified. 8. Initiation of penalty proceedings u/s 271 (1)(c) of the Act is unjustified." 18. So far ground nos.1 and 2 are concerned. Appellant did not want to press these grounds. Same are dismissed as not pressed. 19. So far ground nos. 3 & 4 with regard to LTCG/STCG are concerned. AO has discussed at Page No.2 & 3, Para 5 & 5.4 and P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 680/Ahd/2016 is partly allowed. 24. In the last we come to ITA No.1681/Ahd/2016 for Asst Year 2012-13: "1. Ld. CIT (A) erred in law in confirming order of AO framing assessment u/s.143 (3) r w s 153A of the Act in absence of any incriminating material regarding any undisclosed income pertaining to the appellant found during the course of search. Ld. CIT (A) ought to have quashed the order being illegal, unlawful and therefore void ab initio. It be so held now. 2. Ld. CIT (A) erred in law and on facts in holding that AO granted adequate opportunity to the appellant by elaborately discussing grounds for rejection of the claim in the order. Ld. CIT (A) failed to appreciate that failure to issue show-cause notice as regards the claims made in the return of income before any modification by AO vitiates the assessment proceedings. 3. Ld. CIT (A) erred in law in and on facts confirming disallowance by AO of ₹ 4,00,314/- depreciation claimed on motor car. Ld. CIT(A) ought to have held depreciation as allowable u/s.32(1) of the Act on motor car used for the purpose of business of land trading and of the partnership firms. 4. Ld.CIT(A) erred in law and on facts in confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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