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2017 (7) TMI 910 - ITAT DELHICapital gain - CIT(A) accepting the cost of construction of the property on sale of which the assessee has shown capital gain - Held that:- It is not in doubt that whatever is sold by the assessee is a three-storey building with basement for which the land was acquired in 1983 and 1994, construction was completed in September 2002 and occupation certificate obtained in February 2003. Therefore, it cannot be said that the assessee has not incurred any cost of construction for construction of a three-storey building. Further, also it cannot also be substituted by the estimated cost of construction based on some valuation report as facts cannot be replaced by opinion. In view of this, we do not approve the finding of the Ld. CIT (A). As finding is given by the Ld. CIT appeal that entire expenditure for construction was done by cheque withdrawals from non-resident bank account of the assessee the whole issue of granting the cost of improvement as deduction to the assessee is set aside to the file of the Ld. CIT(A) with a direction to grant deduction of actual cost of construction by making verification of the various payments made for the construction of the property from that bank account. Needless to say that proper opportunity of hearing may be granted to the assessee to substantiate the amount of expenditure incurred by issue of cheques from his non-resident bank account and also opportunity to ld AO Addition u/s 68 - Held that:- We do not agree with the order of the Ld. CIT (A) in deleting the whole addition of ₹ 2.68 crores on account of money received from his wife. Furthermore the Ld. CIT (A) also has given a wrong finding that she is an income tax assessee, in fact she has filed her last return of income for assessment year 2005 – 06 and not for assessment year 2008 – 09 which is the impugned assessment year. In the result, we agree with the finding of the Ld. CIT appeal in deleting the addition of on account of loan from Mrs. Poonam Singh wife of the assessee except the sum of ₹ 25 Lacs which is deposited in cash by her in her bank account for which the assessee has not given any source of income in cash in her hand in India. Therefore we set aside the issue of examination of the sources of this ₹ 25 Lakhs which is deposited by her in bank account for onward lending to her husband as he has not given any finding on this sum despite written submission made by assessee before him about the same. Further with respect to the unsecured loan from Mrs. Starex educational society and M/s direction importers and exporters private limited, it was noted by the Ld. CIT appeal that these 2 parties have in fact not even the loan to the assessee but has taken loan from the assessee and therefore the provisions of section 68 do not apply to transactions with these 2 parties. The Ld. departmental representative also could not point out any error in the fact that these are the parties to whom the assessee has given loan. In view of this with respect to starex import and export private limited and starex educational society, we confirm the finding of the Ld. CIT (A) in deleting the addition under section 68 of the income tax act.
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