TMI Blog2007 (8) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 3. The Ld. D.R. reiterated the contents of the ground that Ld. CIT(A) has erred in not allowing proper opportunity of being heard to the Assessing Officer while adjudicating the first appeal. 4. The Ld. A.R. on the other hand submitted that the present ground No. 1 is nothing but misconception of facts since a perusal of very first page of the impugned first appellate order will make it clear that the attendance of the then Assessing Officer Shri M. Vijay, ITO, Ward-2(2), Kota has been mentioned against the column present for department . He submitted further that there apart the perusal of last paragraph of page No. 8 of the first appellate order will make1 it clear that ample opportunities were given to the Assessing Officer Complete copies of additional evidences were also submitted to the Assessing Officer for his comments. Thus, it is clear that the Assessing Officer had attended the first appellate proceedings in person and not only he had filed his written submission but had also advanced his arguments before the first appellate authority. 5. Considering the above facts as it is evident from first appellate order that Assessing Officer was afforded with adequate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluation report in connection with the sale of property as under : Description of the Property Value as per valuation report (Rs.) Value as computed by assessee as per acquisition and improvement thereof (Rs.) Plot and construction on ground floor 3,11,000 12,62,660 Construction on first floor 1,84,000 5,97,632 Total 18,60,292 10. Thus the total cost of investment (indexed was reported by the value at ₹ 18,60,292. The assessee accordingly had not shown income against the sale of property in his return of income. The Assessing Officer observed that the indexed cost indicates the prevalent market value, but in reality in the market, the prevalent value is more than the indexed value, because of element of profit is also included in the market price. The Assessing Officer observed further that in fact sale price of above property has been ₹ 12,00,000. The Assessing Officer did not agree with the explanation of the assessee that since the indexe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in the balance sheet of M/s. Prem Chand Thawardas, Kota as an assets and thus the assessee had rightly shown withdrawals for construction from his capital accounts (page No. 25 26 of the paper book) in the books of the aforesaid proprietary concern of the various years as per details mentioned at page No. 11 of the first appellate order. 12. The Ld. A.R. submitted that cost of acquisition consisted of the cost of plot at ₹ 14,279 evidenced by the registered sale deed (page Nos. 74 to 84 of the paper book) and the assessee had opted for adoption of the fair market value as on 1-4-1981, which stood as ₹ 1,21,000 as estimated by the valuer (page No. 70 and the indexed cost, ICA thereof was at ₹ 4,91,260) and the construction cost for ground floor and first floor of ₹ 1,34,659 and ₹ 66,206 respectively indexed i.e., ICI at ₹ 7,61,752. Thus, the total indexed cos: on the date of sale came to ₹ 12,53,012 as against the sale price of ₹ 12,00,000 resulting in NIL long term capital gain. 13. The Ld. A.R. submitted that the assessee had supported its claim by various evidences being the copies of the capital accounts (page Nos. 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT v. Raja Narendra [1994] 210 ITR 250 (Raj.); Jt. CIT v. Mohan Sukhani [IT Appeal No. 540 (JP) of 1999]; K.S. Apparels (P.) Ltd. [IT Appeal Nos. 421 and 471 (JP) of 2005]. 14. After considering the arguments advanced by the parties in view of the orders of the lower authorities, material available on the record and the decisions relied upon by them, we find substance in the above submissions of the Ld. A.R. that the Ld. CIT(A) under the facts and circumstances of the case has rightly deleted the addition of ₹ 18,60,292 on account of short term capital gain with direction to the Assessing Officer to accept computation of NIL long term capital gain declared by the assessee. From the first appellate order page No. 8 9 it appears that in support of its claim the assessee before the Ld. CIT(A) had furnished copy of permission letter and Map from Nagar Nigam, wherein permission for the construction of house property was granted on 14-12-1973 and in support approved map from Nagar Parishad, Kota was also filed. The Ld. CIT(A) under provisions of Rule 46A of the Income-tax Rules, had given an opportunity to the Assessing Officer to comment upon the acceptance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much as assessee is 71 years old and assessed since assessment year 1963-64, which was unfortunately ignored by the Assessing Officer on imaginations and not a fair deal with a senior citizen. u The Assessing Officer denied the very existence of the subjected capital assets by saying that there is no cost. u The Assessing Officer taxed the entire sale proceeds as against the gain only (i.e., sale proceeds less cost) on mere imaginations. He cited Chiranjee Lal Tank Shyam Parwani Party v. Union of India 26 TW 273 (Raj.). 15. The first appellate order is comprehensive and reasoned one and the basis on which he has delete the addition, as discussed above, we concur with. The first appellate order on the issue is thus uphold. The ground No. 3 of the appeal is thus rejected. 16. In result appeal is dismissed. CO NO. 81/JP/2004 17. The first appellate order has been objected by the assessee on the following basis that the Ld. CIT(A) has erred in sustaining : (1)the disallowance of expenses on different heads as under inspite of complete details filed from audited accounts : ₹ 20,000 disallowed towards salary and bonus, ₹ 36,720 towards brokerage ..... X X X X Extracts X X X X X X X X Extracts X X X X
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