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2015 (12) TMI 352 - ITAT JAIPUR

2015 (12) TMI 352 - ITAT JAIPUR - TMI - Disallowance of deduction claimed u/s 54 - CIT(A) confirming disallowance of the cost of construction claimed in the computation of capital gains - Held that:- It is clear from the facts on records that sale deed which is an important document for transfer of property and the basis of transfer of property u/s 2(47) does not contain any reference to sell / transfer of any residential house or construction. Therefore, no legal inference can be drawn in favou .....

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guments of the ld. DR that there is no universal rule to provide cross-examination in each and every case, more so when evidence on record is palpable against the assessee. Even if the evidence of Surendra Kumar Sen is excluded, the evidence on record is clinched against the assessee. In view thereof, the cross examination of Shri Surendra Kumar Sen becomes irrelevant as sufficient material is on record even if the statement of vendee is ignored. In view thereof uphold the order of the lower aut .....

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. That on the facts and circumstances of the case, the ld. CIT(A)-II Jaipur is wrong, unjust and has erred in law in upholding of adoption of the stamp duty value of ₹ 8,68,230/- for the purpose of calculating the capital gain instead of actual selling price of ₹ 6.50 lacs which was the fair market value at the time of sale as claimed by the assessee without obtaining valuation of fair market value from Valuation Officer in spite of request by the assessee. 2. The ld. CIT(A)-II, Jaip .....

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e, only a plot of the of land was sold. However, in the computation of income, the assessee while offering capital gains thereon, claimed that he has incurred the cost of construction of ₹ 2.50 lacs for leveling of land, construction of boundary wall, one room, kitchen and lat bath, the work was completed on 31-01-2008. The AO during assessment proceedings inquired about the sale deed mentioning only sale of plot and asked the assessee to submit the details, evidence and sources for claim .....

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valid claims in this behalf and disallowed the claims of the assessee by following observations (a) There is enough evidences available on record to prove that there was no construction on the plot of land sold by the assessee which may be detailed as under:- (i) In para 2 at pages 5 of the registered sale deed dated 15-02-2008, it is clearly mentioned that there is no construction on this plot of land. Accordingly, the stamp duty and registration charges have been levied by the Sub- Registrar o .....

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impugned plot of land sold by the assessee . (b) The objection of ld. AR regarding the opportunity of cross examination of the buyer Shri Surendra Kumar Sen is not tenable. Copy of his statements were supplied to the assessee. He is the buyer of the plot sold by the assessee. His statements are supported with documentary evidence in the form of registered sale deed which has also been signed by the assessee. (c) Regarding application of Section 50C also, the submissions of ld. AR do not help the .....

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asset given in Section 2(14) of I.T. Act, Capital Asset means property of any kind held by an assessee …….. Thus the contention of capital assets also covers the lease right. This contention of ld. AR is unfounded and hence not acceptable. Therefore, the claim of alleged cost of construction and deduction u/s 54 was disallowed as property sold in question was not a residential house but only a plot of land. 3.2 Aggrieved, the assessee preferred first appeal before the ld. CIT(A) wh .....

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kitchen etc. Assessing Officer asked appellant to produce these persons for examination since the claim of construction was against the facts noted in sale deed. However, appellant did not produce these persons and therefore, the claims made in affidavit could not be confirmed Assessing Officer called the buyer of the property and examined him on oath. The buyer categorically denied any construction on the plot of land purchased by him. He even denied having boundary wall on the plot of land wh .....

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of appellant since appellant never asked for cross-examination of the buyer and therefore, AO could not have allowed such opportunity. By providing a copy of statement of the buyer, AO discharged his onus. If appellant disputed any part of the statement, he could have countered the same by necessary evidences or could have asked for cross examination. However, appellant did not do anything and therefore, the statement of the buyer together with sale deed are sufficient evidences to prove that t .....

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Shri Surendra Kumar Sen is not correct as AO has referred to such request in the assessment order. Therefore, the finding of the ld. CIT(A) is erroneous and opportunity of cross may be given to the assessee and the issue may be set aside. 3.4 On the other hands, the ld. DR contends that courts have held that there is no universal rule that in each and every case, the right of cross examination cannot be granted, it depends on the facts of that case. The assessee gave the names of the contractor .....

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lly unsubstantiated. The overwhelming evidences available on record demonstrated that no house was constructed. Once there is sufficient evidence on record to establish these facts against the assessee then there is no necessity of cross examination. Since the assessee failed to produce Moolchand, his affidavit has no evidentiary value. In view thereof, it is an established fact that no house was constructed by the assessee a false claim has been made to reduce the taxability and to somehow clai .....

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