TMI Blog2016 (11) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... as raised additional grounds before the learned CIT(A) which were not admitted by the ld. CIT(A) and rejected at the threshold and hence consequently not adjudicated while framing appellate order dated 23.05.2014. In our considered view and in the interest of justice , these additional grounds raised by the assessee before the learned CIT(A) need to be admitted as they rise from the order of the AO and the matter is to be set aside and restored to the file of the learned CIT(A) for adjudication of these issue’s raised in these additional grounds on merit , after considering the evidences/explanations filed by the assessee . - I .T.A. No. 5134/Mum/2014 - - - Dated:- 8-11-2016 - SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : None For The Revenue : Shri A. Ramachandran ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee, being ITA No. 5134/Mum/2014, is directed against the appellate order dated 23rd May, 2014 passed by learned Commissioner of Income Tax (Appeals)- 28, Mumbai (hereinafter called the CIT(A) ), for the assessment year 2007-08, the appellate proceedings before the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 90% share in the proposed flat and was claiming carried forward of loss of ₹ 1,30,633/- as long term capital loss on sale of the said flat. The assessee s wife was Director of a company Mosaic Advertising and Marketing Private Limited , which was registered at the residence address of the assessee and she was receiving salary income from the said company , while assessee has a salary income of ₹ 9,55,700/- from MNC and her wife net salary income was ₹ 2,37,500/- . The A.O. observed that the ratio of ownership declared by the assessee and his wife did not match their income, hence, notice was issued u/s 142(1) of the Act to show cause that why only 10% of the capital gains/loss was declared by the assessee , while claiming that 90% of the flat was owned by wife Mrs. Malini Rao, which fact is not borne out from the sale agreements nor from the purchase agreements of the flat as well nor from the HDFC loan account statement. The assessee did not submit legible copies of bank statement of wife to prove that payments for the purchase of flat has been made through the wife s bank account and source of funding the said payments for flat by the wife. It was observed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the ld. CIT(A), the assessee contested the additions made by the A.O. The assessee has also raised additional ground before the ld. CIT(A) which reads as under: 1. On the facts and circumstances of the case and in law, the A.O. erred in assessing the entire short term capital gains/loss in the hands of the appellant as against his proportionate share of 10% declared by the appellant. 2. On the facts and circumstances of the case and in law, the A.O. erred in not allowing the cost of improvement by the appellant amounting to ₹ 7,44,000/- in computing the capital gain/loss. These additional grounds were not admitted by the ld. CIT(A) and were rejected at threshold as not being purely legal in nature and do not arise from the original grounds of appeal filed. The ld. CIT(A) observed that the assessee has not made substantial investment in the flat nor has obtained a domain over the flat from the date of letter of allotment issued by the builder, hence, the property cannot be said to have been purchased on the date of letter of allotment and the A.O. has correctly concluded that the property was purchased by the assessee on the date of agreement of sale i.e. 30th D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer took place and in case of construction of a house, the benefit is available if the investment is made within three years from the date of the transfer. 2. The Board had occasion to examine as to whether the acquisition of a flat by an allottee under the Self-Financing Scheme (SFS) of the D.D.A. amounts to purchase or is construction by the D.D.A. on behalf of the allottee. Under the SFS of the D.D.A., the allotment letter is issued on payment of the first instalment of the cost of construction. The allotment is final unless it is cancelled or the allottee withdraws from the scheme. The allotment is cancelled only under exceptional circumstances. The allottee gets title to the property on the issuance of the allotment letter and the payment of instalments is only a follow-up action and taking the delivery of possession is only a formality. If there is a failure on the part of the D.D.A. to deliver the possession of the flat after completing the construction, the remedy for the allottee is to file a suit for recovery of possession. 3. The Board have been advised that under the above circumstances, the inference that can be drawn is that the, D.D.A. takes up the constr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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