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TMI Blog2023 (6) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... for assessment year 2015-16 could not be placed on record by the assessee before the CIT(A) as it was obtained by him after passing of order of learned CIT(A), this fact could not be addressed by the assessee before the learned CIT(A). These are only orders of the Income Tax Department, which clearly shows a divergent stand taken by the very same AO for the very same assessment year for two different assessees on the very same transaction. Hence, we direct the learned AO to delete the addition made in the sum of Rs. 1 crore paid in cash to Sh. Jagat Bhushan Batra. Decided in favour of assessee. Capital gain computation - denial of deduction on account of cost of acquisition and expenses incurred in connection with transfer of property - HELD THAT:- A sum as paid by the assessee to Sh. Sandeep Kumar towards demarcation of land would be construed as cost of improvement eligible for deduction while computing capital gains. Further, the commission payment to Sh. Sandeep Kumar for sale of two plots is to be construed as expenses incurred in connection with transfer and eligible for deduction while computing capital gains. Payment as commission to Smt. Rajni Aswal for sale of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notice under section 153C of the Act was issued to the assessee on 16.11.2017. The assessee in response to the said notice filed his return electronically on 15.12.2017 showing total income of Rs. 3,99,590/- and agricultural income of Rs. 3,91,526/-. Since the assessee had originally filed its return of income on 31.03.2016 declaring total income of Rs. 4,09,592/- (which was higher than the income disclosed in the 153C return), the learned AO considered the said income as the income of the assessee and proceeded to make further addition thereon. 4. The documents related to the assessee which were found in the course of search action of Sh. Rameshwar Havelia are as under: a. Agreement to sale dated 04.12.2014 entered by the assessee with Sh. Jagat Bhushan Batra for purchase of land consisting of 6520.33 Sq. meter, which is equivalent to 867 Bighas at the rate of Rs. 50,000/- per bigha, totaling to Rs. 4,33,50,000/- (hereinafter referred as A ) b. A partnership deed dated 05.12.2014 executed between the assessee and Sh. Rameshwar Havelia, having 50% share each. (hereinafter referred to as 'B') 5. With regard to the document referred in 'A' above, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) read with section 143(3) of the Act, dated 28.12.2018 for assessment year 2015-16 by DCIT, Central, Circle, Dehradun (who is the same officer assessing the assessee also), wherein, in para 7 of the said order, the Assessing Officer of Sh. Rameshwar Havelia had categorically stated that it is Sh. Rameshwar Havelia, who had made cash payment of Rs. 1 crore to Sh. Jagat Bhushan Batra. Hence, the receipt of money in cash by the assessee from Sh. Rameshwar Havelia is proved beyond doubt by the orders of the Income Tax Department itself. Hence, the source for making payment to Sh. Jagat Bhushan Batra of Rs. 1 crore in cash stands clearly proved and explained. Hence, in our considered opinion, there cannot be any unexplained investment made by the assessee in the sum of Rs. 1 crore in the facts and circumstances of the instant case. 8. Since the search assessment order of Sh. Rameshwar Havelia for assessment year 2015-16 could not be placed on record by the assessee before the learned CIT(A) as it was obtained by him after passing of order of learned CIT(A), this fact could not be addressed by the assessee before the learned CIT(A). In any case, these are only orders of the Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, the same is eligible for deduction while computing capital gains. 15. The assessee has paid legal counsel fees for drafting of registered deeds amounting to Rs. 5,100/-, which is a direct expenditure incurred in connection with transfer of property. Accordingly, the same is eligible for deduction while computing the capital gains. 16. The assessee has incurred a sum of Rs. 599/- for performing Puja of the land. This has got nothing to do with the property and cannot be construed as an expenses incurred in connection with the transfer of the property. Hence, it is not eligible for deduction while computing capital gains. 17. The assessee has paid a sum of Rs. 1,001/- to Sh. Pradip Joshi (Pandit) for performing puja on the said land. This has got nothing to do with the property and cannot be construed as expenses incurred in connection with transfer of the property. Accordingly, it is not eligible for deduction while computing capital gains. 18. The assessee has paid a sum of Rs. 1,77,590/- to a civil contractor, Sh. Sandip Kumar from whom the work of demarcation and construction of partition for three plots sold was carried out. In this regard, we find that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther with her income tax return and computation of total income evidencing the fact of offering the commission income in her hands. These documents are enclosed in pages 25 to 27 of the paper-book. We hold that this commission payment of Rs. 21,200/- is to be construed as expenses incurred in connection with transfer of land and accordingly eligible for deduction while computing capital gains. 21. In view of the aforesaid discussions, out of the total disallowance made by the learned AO in the sum of Rs. 2,81,620/- while computing capital gains, Rs. 1,600/- (Rs. 599 + Rs. 1,001) should be disallowed and remaining amounts should be allowed as deduction while computing capital gains. 22. Since, substantial relief has been granted to the assessee on merits, various other issues raised by the assessee on legal grounds need not be gone into and they are left open. Accordingly, the grounds raised by the assessee are partly allowed. 23. In the result, appeal of the assessee for assessment year 2016-17 is partly allowed. 24. To sum up, appeal for assessment year 2015-16 is allowed and appeal for assessment year 2016-17 is partly allowed. Order pronounced in Open Court on 28 ..... 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