TMI Blog2018 (12) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... ences filed vis-à-vis earlier explanation of cost of improvement, we feel it appropriate to restore the issue in dispute involved in the appeal to the file of the Ld. Assessing Officer for deciding afresh - Decided in favour of assessee for statistical purposes. - ITA No.5248/Del/2014 - - - Dated:- 14-12-2018 - SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER For The Appellant : Sh. Rajiv Saxena Sh. Ajit Kr. Jha, Advocates For The Respondent : Sh. B.S. Rajpurohit, Sr. DR ORDER PER O.P. KANT, AM: This appeal by the assessee is directed against order dated 29/08/2014 passed by the Ld. Commissioner of Income-tax (Appeals)-Ghaziabad [in short the Ld. CIT(A) ] for assessment year 2009-10, raising following grounds: 1. In confirming the addition of ₹ 5637567/- made by the Ld. AO in the total income of the assessee on the ground of erroneous claim of Cost of Improvement under Income From Capital Gain , without giving the proper opportunity of being heard. 2. That the appellant may be allowed to add, alter, deleted, or amend any ground of appeal if considered necessary at the time of hearing of appeal. 2. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee before the Assessing Officer and thus the assessment was completed after allowing the cost of improvement of ₹ 4,63,610/-alongwith indexation and capital gain of ₹ 56,37,567/- was worked out and added to the income is under: Cost of sale consideration Indexed Cost of acquisition Rs.79,85,000/- ( 681884X582/259=1532264) Indexed cost of improvement (-) Rs.15,32,264/- ( 463610 X 582/331 = 815169) (-) Rs.8,15,169/- Rs.56,37,567/- 5. Against the order of the Assessing Officer, the assessee filed appeal before the Ld. CIT(A) however no compliance was made by the assessee before the Ld. CIT(A) though several opportunities were given to the assessee. The Ld. CIT(A) in impugned order has reproduced a table of the dates on which assessee did not attend the appellate proceedings before the Ld. CIT(A) in first round of the proceedings. For ready reference said para of the order of the Ld. CIT(A) in first round of the proceedings is reproduced as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,15,980 Removing the garbage, cleaning of plot, digging and again refilling the plot and repairing certain cracks of the boundary wall 8. However, the assessee failed to produce any supporting voucher of expenditure. The Ld. CIT(A) in Para -6 of the impugned order has specifically mentioned this fact is under: 6. The counsel for the appellant categorically stated as per note sheet entry dated 29.08.2014 that he cannot produce any supporting details or vouchers in support of his claim. 9. In view of the failure on the part of the assessee in furnishing any documentary evidence in support of the cost of improvement claimed in even second-round of the proceedings before the Ld. CIT(A), he confirmed the addition observing as under: 7. Having carefully considered facts and circumstances of the case, I decide the appeal as under:- It is seen that the appellant has not been able to substantiate the claim of expenditure of ₹ 34,16,120/- out of total cost of improvement claimed at ₹ 38,79,/30/-. The matter having travelled to Hon ble ATAT and despite reasonable opportunity having been provided to the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose the dispute and according to which the assessee paid ₹ 14,75,000 by 31/03/1998 and ₹ 16,88,750 by 31/03/1999 to the buyers. (iv) In respect of the amount of ₹ 7,15,980/- the assessee has claimed that same was incurred for development of boundary wall and rooms etc. 12. To support this explanation of cost of improvement the assessee has filed following documents as additional evidences: (i) A Copy of agreement between the assessee and (a) Shri Satish Kumar village- Shahjahapur (UP) (b) Sh. shahabuddin son of Sh Sikander Khan , Etawa (UP). (Placed on page 12 to 13 of the paper book). (ii) A Settlement deed between the assessee and the above parties ( placed on page 14 to 15 of the paper book.) (iii) A Copy of the settlement application filed before the police station in charge, Link Road, Sahihabab ( Gaziabad)( placed on page 16 of the paper book) (iv) A Copy of receipt and confirmation from the buyers ( placed on page 17 of the paper book). 13. The assessee also produced original copy of the above documents for perusal of the bench. 14. In view of the applications filed under Rule 29 of the ITAT Rules by the assessee, the Ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the parties of the appeal, the Ld. Counsel relied on the decision of the Hon ble Delhi High Court in the case of Commissioner of Income Tax vs. Text Hundred India Private Limited reported in (2013) 351 ITR 57 (delhi.). 16. On the contrary, the Ld. DR submitted that assessee had been provided ample opportunity by the Assessing Officer as well as by the Ld. CIT(A), however no supporting evidences were filed before the lower authorities. The Ld. DR submitted that before the Ld. CIT(A) the assessee claimed that improvement expenses were incurred on filing and leveling of plot etc., whereas now the assessee has taken summersault and claiming altogether a new story of making agreement for sale of plot and cancellation. He submitted that in most of the cases to explain cash deposits, tax payer resort to this kind of unsubstantiated explanation. According to him, the documents produced as additional evidence do not seem genuine and need forensic investigation. The Ld. DR objected for admission of the additional evidences relying on following decisions: 1. Jawahar Lal Jain (HUF) Vs. CIT, P H High Court, 2014 [2015] 59 taxmann.com 374 (Punjab Haryana) 2. Shivangi Steel (P.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence as it stands, some inherent lacuna or defect becomes apparent to the Appellate Court coming in its way to pronounce judgment, the expression to enable it to pronounce judgment can be invoked. Reference is not to pronounce any judgment or judgment in a particular way, but is to pronounce its judgment satisfactory to the mind of Court delivering it. The provision does not apply where with existing evidence on record the Appellate Court can pronounce a satisfactory judgment. It is also apparent that the requirement of the Court to enable it to pronounce judgment cannot refer to pronouncement of judgment in one way or the other but is only to the extent whether satisfactory pronouncement of judgment on the basis of material on record is possible..... 18. The Hon ble court has laid down that the Tribunal may admit additional evidences if the same are necessary to do substantial justice in the matter. In the instant case before us the assessee has produced original copies of the agreement to show the willingness to prosecute the appeal. We are of the opinion that if there is some truth in the story of the assessee of the agreement for sale of plots and subsequent settlemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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