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TMI Blog2019 (5) TMI 1708X X X X Extracts X X X X X X X X Extracts X X X X ..... n not allowing claim of Interest u/s. 24 (b) from the date of payment and has allowed it from the date of the agreement. Interest claim has to be allowed from the date of payment and not from the agreement date. We request your Honor to kindly allow the claim of interest from the date of payment. 2. Brief facts of the case are that the assessee is a company and allegedly engaged in the business of leasing out of property, filed its return of income for Assessment Year 2008-09 on 30.09.2018 declaring total income at Rs. 3,22,161/-. The return of income was selected for scrutiny. The Assessing Officer while passing the assessment order besides the other addition/disallowance disallowed the business los of Rs. 9,08,549/- and deduction on interest under section 24(b). On appeal before the ld. CIT(A), both the addition/disallowances were confirmed. Therefore, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us. 3. We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Department Representative (DR) for the revenue and perused the material available on record. Ground No.1 relates to disallowance of busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.01.2013 stated that the new business venture undertaken by assessee was with reference to new project for consideration and sale. The assessee-company is in the real estate business since 1995 and the Director and staff have good knowledge of real estate business. The assessee decided to purchase new plot with intention of making construction on this plots and thereafter, either sale or leased the said unit. In this connection, the assessee incurred expenses. The assessee-company did not receive any response from new business and continued the same. The explanation furnished by assessee was again not accepted by Assessing Officer holding that no supporting evidence is furnished by assessee. The Assessing Officer concluded that assessee has not furnished any evidence to prove that assessee carried out any new business activity during the year despite issuing various show-cause notices as the assessee has not supporting evidence to prove the claim of business activities. The assessee has already allowed the deduction under section 24(a) which covers all the expenses for earning the rental income. Hence, the Assessing Officer disallowed the claim of business loss. 7. The ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed funds and the assessee is entitled for interest from the date of borrowing. The ld. AR of the assessee further submits that the ownership of the property is not a criteria for claiming deduction under section 24(b). 11. On the other hand, the ld. DR for the revenue supported the order of lower authorities. It was submitted that the assessee acquired property on the last date of Financial Year as per agreement dated 31.03.2008. As there was no existence of property with the assessee, therefore, no borrowed loans were attributed to this property during the relevant Financial Year. 12. We have considered the rival submission of the parties and have gone through the orders of authorities below. During the assessment, the Assessing Officer noted that assessee acquired a part of Dhanwatay House on the last date of Financial Year i.e. on 31.03.2008. The assessee was asked to explain as to why the interest expenses for whole year were claimed. The assessee filed its reply dated 18.02.2013. In the reply, the assessee stated that the agreement dated 31.03.2008 was executed after a term of the deal was completed. The assessee has paid advances towards the acquisition prior to the exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent i.e. on 14.02.2008. In the result, this ground of appeal is allowed. 14. In the result, appeal of the assessee is partly allowed. In ITA No. 2859/Mum/2016 for A.Y. 2012-13 15. The assessee has raised the following grounds of appeal: 1. On the facts and the circumstances of the case and in law, the ld. CIT (A)- 10 has erred in law and on the facts and in the circumstances of the case and in the law, the ld. CIT(A) & Ld. AO has erred in determining capital gains of Rs. 61,68,015/- as against the NIL returned by the appellant. 16. Brief facts of the case are that during the assessment proceeding for the year under consideration, the Assessing Officer noted that from the statement of investment in the balance-sheet as on 31.03.2011, the assessee has shown Rs. 9.63 Crore as investment in property. It was further noted that on 31.03.2012, the assessee has shown Rs. 5.46 Crore as investment in property. There being a deduction in value of property, the assessee was asked to explain the fact. The assessee vide reply dated 29.04.2014 stated that during the year, the assessee surrendered part of the property which was purchased from Vedant Property P. Ltd. back to Vedant Prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 = Rs. 42,55,520/- 9,21,00,000 Therefore, the proportionate interest of Rs. 42,55,520/- is allowed to be capitalized to the value of the property of 41.704 Pies. Considering the above the cost of acquisition of the property 41.704 Pies is treated at Rs. 4,35,55,520/- (3,93,00,000 + 42,55,520). In this respect the capital gain on account of transfer/surrender of the property is calculated as under; Sale consideration (amount received on account of transfer) Rs. 4,97,23,535 Less: cost of acquisition Rs. 4,35,55,520 Capital gain Rs. 61,68,015/-" 18. On appeal before the ld. CIT(A), the action of Assessing Officer was confirmed. The ld. CIT(A) while confirming the action of assessing officer concluded that the assessee has not furnished the copy of agreement or any document in respect of transfer of property. Therefore, on the basis of receipt of substantial payment on account of surrender/transfer part of property, it is considered that property was transferred within the period of three years; hence, capital gain was rightly treated as Short Term Capital Gain. Further, aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f details of investment in acquisition of property, the Assessing Officer calculated the capital gain of Rs. 61,68,015/- and treated the same as Short Term Capital Gain in absence of any documentary evidence regarding transfer/surrender of the property. Before the ld. CIT(A), the assessee again not furnished any documentary evidence in respect of transfer/surrender of property. The ld. CIT(A) confirmed the action of Assessing Officer holding that in absence of any documentary evidence and on the basis of receipt on substantial payment, the transfer was within the period of three years. The ld. AR of the assessee vehemently argued before us that variation is only on account of capitalization of interest. Before us, the assessee failed to disclose the date of acquisition of different share of Dhanwatay House in earlier Assessment Year i.e. 2008-09, 2009-10 or 2010-11. In absence of any documentary evidence, we are unable to convince ourselves about the allowance of capitalization of interest for Assessment Year 2010-11 & 2011-12. In the result, ground of appeal raised by assessee is dismissed. 22. In the result, appeal of the assessee is dismissed. Order pronounced in the open co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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