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2015 (12) TMI 352

ecords 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 favour of the assessee on this issue. Despite the AOs insistence, assessee neither produced the contractor nor the supervisor to substantiate his version. Consequently, the assessee failed to discharge the burden cast on him to lead any credible evidence to support his plea about the plot and transfer of the same. Non-discharging of the burden to prove the eligibility of any claim will disentitle the assessee from availing the same.

Apropos claim of cross examination, f .....

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ld. CIT(A)-II, Jaipur is further wrong, unjust and has erred in law in confirming disallowance of the cost of construction of ₹ 2.50 lacs claimed in the computation of capital gains and also disallowance of deduction claimed u/s 54 available for residential property. 2.1 During the course of hearing, the ld. AR of the assessee has not pressed Ground No. 1. Therefore, the same is dismissed being not pressed. 3.1 Apropos Ground No. 2, brief facts are that as per the registered sale deed executed by the assessee, 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, cons .....

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there was no construction and hence the question of water electricity does not arise. (iii) As mentioned above in the statements recorded u/s 131 of the buyer Shri Surendra Kumar Sen on 14-12-2011, he categorically denied of there being any construction at all on the 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. .....

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y wall and room and 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 which clearly shows that appellant s claim of construction of house on the plot of land is false and consequently the claim of deduction u/s 54 is also incorrect. Assessing Officer provided copy of statement of buyer to the appellant .....

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t 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 contractors i.e. Shri Moolchand (contractor) and Shri Bhupendra Singh, Supervisor and claimed to have made payments through contractor; no evidence of TDS deducted on the contract amount has been given. Both of them were not produced before the AO to substantiate the affidavit. The sale deed is a registered document on the basis of which rights of immovable property are transferred and there no reference at all about alleged construction of house thereon. Therefore, the assertions of th .....

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f 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, I uphold the order of the lower authorities and reject the claim of the assessee for construction cost and deduction u/s 54Fof the Act. Thus the Ground No. 2 of the assessee is dismissed. 4.0 In the result, appeal of the assessee is dismissed Order pronounced in the open court on 29/09/2015 .....

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