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TMI Blog2016 (2) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... rokerage was paid to four persons viz. (i)R. Muthu Kamatchi, (ii)K. Ganesan, (iii)K Muthiah and (iv) M. Selvam. As per the receipts, they admitted to have received a sum of Rs. 80,000/- each as brokerage in Sundaram Theatre sale transaction. The CIT(A) forwarded this information to the Assessing Officer and called for remand report. The Assessing Officer vide his remand report dated 11.1.2012 submitted that he has issued summons u/s 131 to all the four persons in their given addresses and the same were returned unserved by the postal authorities with the endorsement 'no such address'. Thereafter, an inspector of the Department was deputed to verify whether the persons concerned reside in the given address. It was revealed that no such persons or address were existed. In view of the above, the existence of the persons and claim of the expenses were found to be non-genuine by the Assessing Officer. Later, a copy of the remand report was forwarded to the assessee by the CIT(A) vide letter dated 23.1.2012. Once again, the assessee vide letter dated Nil submitted on 22.2.2012 reiterated the contentions that brokerage was actually paid and due to lapse of time and change of addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho has confirmed the receipt of Rs. 80,000/- as brokerage. Considering the factual position, the CIT(A) is justified in allowing the payment of Rs. 80,000/- as brokerage and disallowing the balance payment. He submitted that no interference in the order of the CIT(A) is called for. 6. We have considered the rival submissions and perused the material available on record. In this case, the claim of the assessee is that payment of Rs. 3,12,000/- towards brokerage on sale of M/s Sundaram Theatre. The said payment has been made to four persons viz. (i)R. Muthu Kamatchi, (ii)K. Ganesan, (iii)K Muthiah and (iv) M. Selvam. The Department summoned them by issuing notice u/s 131 of the Act. However, all the letters issued to the above persons returned unserved by the postal authorities with an endorsement 'no such address'. Later on, the Assessing Officer was able to trace only one Shri K. Ganesan who has given receipt for Rs. 80,000/- and the same was allowed by the Department. The other three persons cannot be traced and there is no iota of evidence to show that payments towards brokerage were made to them. The assessee is not able to place any material to show that the other thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. Under sec. 48 of the Income-tax Act, income chargeable under the head capital gains shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely - (i) Expenditure incurred wholly and exclusively in connection with such transfer (ii) The cost of acquisition of the asset and the cost of any improvement thereto. The contention of the assessee's representative is that the payment to Shri Rajan is an expenditure incurred wholly and exclusively in connection with the transfer of capital asset. However, as rightly pointed out by the ld. DR, the assessee is not able to point out any specific condition in the sale deed of the property to suggest the payment of Rs. 10 lakhs to Shri Rajan for vacating and handing over the peaceful possession of the property. Being so, in the absence of any such clause in the sale deed warranting payment of Rs. 10 lakhs to Shri Rajan, we are not in a position to appreciate the argument of the ld. Representative. Accordingly, this ground is rejected. 12. The next ground is with regard to disallowance of claim of the assessee in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities towards payment of EB dues as per court order should also be considered for arriving at correct taxable income. The buyer of the property Mr Shiek Dawood was summoned on 16.8.2011 through the notice dated 4.8.2011. Mr Sheik Dawood during his appearance before the undersigned on 23.8.2011 orally mentioned that he did not withhold Rs. 24,00,000/- from full sale consideration of Rs. 1,56,00,000/-. He promised to produce the details in his next appearance on 5.9.2011 and be available to make statement u/s 131. Mr. Sheikh Dawood did not appear on 5.9.2011. Two summons were issued on 30.09.2011 and 21.12.2011 to enforce attendance. But Mr Sheikh Dawood, though received the notices on both the occasions, failed to appear. Despite the telephonic reminders given by the inspector, he did not appear. Based on the material available in the file, there is no evidence to suggest that Rs. 24,00,000/- was withheld by Mr. Sheik Dawood. The Commissioner of Income Tax (Appeals) again directed the Assessing Officer through letter dated 22.2.2012 to personally examine Mr. Sheikh Dawood on the issues - status of deposit with Central Bank of India. Summons u/s 131 dated 21.3.2011 was served on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the capital asset and was deductible in computation of capital gain, the amount reimbursed by purchaser to assessee towards such claim constituted part of sale consideration but deductible while computing capital gains. We are fully in agreement with the above decision of the Jurisdictional High Court. If a precondition is in the sale deed to bear any expenditure relating to the transfer or any outstanding amount which was annexed to the property then payment of that amount has to be considered as cost incurred in relation to transfer of the said property. In the present case, in respect of giving repeated opportunity to the assessee by the lower authorities to place necessary evidence for bearing that expenditure by the assessee itself, the assessee failed and at all times given a very evasive reply. In such circumstances, we are not in a position to allow the claim of the assessee by following the above judgment. This ground of the assessee is also rejected. 19. In the result, the appeal filed by the assessee is dismissed. 20. Now coming to the Revenue's appeal I.T.A.No. 2187/ Mds/2012, the Revenue raised a ground that the CIT(A) erred in granting indexation claimed by t ..... 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