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TMI Blog2018 (12) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... had sold FSI of 15,000 sq. ft. in 1986, the TMC definitely would have deducted the area of 15,000 sq. ft. from the total plot area while sanctioning FSI on the plot of land sold by the assessee. If the assessee claims that it has sold FSI of 15,000 sq. ft in the year 1986, the onus is entirely on the assessee to prove such facts through cogent evidence. The assessee has failed to discharge such onus. When the assessee is not in a position to furnish any cogent evidence to prove its claim of sale of FSI of 15,000 sq. ft., such claim cannot be accepted on mere face value. When the assessee has failed to prove its claim at the stage of departmental proceedings as well as before us by furnishing any cogent documentary evidence, we do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 - - - Dated:- 19-9-2018 - Shri Saktijit Dey, Judicial Member And Shri Manoj Kumar Aggarwal, Accountant Member For the Appellant : Shri K Gopal For the Respondent : Shri Rajeev Gubgotra ORDER PER SAKTIJIT DEY, JUDICIAL MEMBER This is an appeal by the assessee against order, dated 30.09.2016, of learned CIT(A)-14, Mumbai for the assessment year 2007-08. 2. Ground no.1 is general in nature and does not require adjudication. 3. Ground nos. 2 3 are in respect of disallowance of deduction claimed of ₹ 57,15,400/- towards market value of Floor Space Index (FSI) sold prior to the sale of land and building. Briefly, facts relating to this issue are the assessee company is a manufacturer and dealer in chemi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of 15,000 sq. ft. @ ₹ 20/- per sq. ft. It was submitted, on completion of the said transaction, payment of ₹ 3,00,000/- was received in the bank account. It was submitted, as per the said agreement, it was specifically agreed that the assessee will not be allowed to use the plot of land admeasuring 1,394 sq. mts. equivalent to 15,000 sq. ft FSI out of the total land admeasuring 2750 sq. ft. Thus, it was submitted, while computing capital gain, the market value of FSI of 15,000 sq. ft. as on 14.06.2006 amounting to ₹ 57,15,400/- should have been reduced from the market value of ₹ 1,04,55,000/- determined by the DVO. The Assessing Officer after considering submissions of the assessee did not find merit in them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.1986 addressed to M/s. Rajashri Builders, a copy of which is placed at page 10 of the Paper-book. He submitted, though, the ITAT had directed the Assessing Officer to meet all the objections of the assessee, however, the Assessing Officer has not complied to such directions. Thus, he submitted, assessee s claim of deduction with regard to sale of FSI of 15,000 sq. ft. should be examined by the Assessing Officer. 5. The learned DR strongly opposing the contentions of the assessee submitted that in course of assessment proceedings in pursuance to the directions of the Tribunal, the assessee has not filed any fresh evidence or brought to the notice of the Assessing Officer any fresh fact to demonstrate that FSI of 15,000 sq. ft was actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, the assessee has failed to discharge such onus. Moreover, on perusal of letter dated 04.10.2010 filed before the DVO, it is noticed, the assessee has submitted that though to their belief FSI of 15,000 sq. ft. sold by the assessee to Narendra Silk Mills has been utilised by M/s. Rajashri Builders, which has constructed Rajashri Industrial Estate in the adjacent plot land, however, the assessee did not have any documentary evidence to prove such fact. When the assessee is not in a position to furnish any cogent evidence to prove its claim of sale of FSI of 15,000 sq. ft., such claim cannot be accepted on mere face value. In these circumstances, when the assessee has failed to prove its claim at the stage of departmental proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of ₹ 2,58,011/- being the scrap value of factory shed. It is the claim of the assessee that since no amount was received by the assessee towards scrap value of factory shed, it cannot be added. Same also is the argument of the assessee with regard to the addition of ₹ 3,00,000/- towards sale value of furniture and fixtures as raised in ground no.7. 10. We have considered rival submissions and perused material on record. As could be seen from the facts emanating from record, assessee itself has credited aforesaid amounts to the Profit Loss account. Therefore, as a natural corollary the amounts were required to be offered as income, unless, the assessee through proper evidence proves that it has not received such inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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