TMI Blog2022 (11) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ntant Member For the Assessee : Shri Ketan H. Shah, A.R with Shri Aman Shah, A.R For the Revenue : Shri Atul Pandey, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-10, Ahmedabad, dated 27/03/2018 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2014-15. 2. The assessee has raised the following grounds of appeal: 1. The Learned CIT(A) erred in law and on facts in confirming addition of 8,92,000/- made by the learned A.O. by disallowing assessee's claim of Mattipuran Leveling Expenses. The addition confirmed by the learned CIT(A) deserves to be deleted. The same be deleted now, 2. The Learned CIT(A) erred in law and on facts in passing the order on the date on which notice of further hearing was given and adjournment was also granted and submission were made which were not considered. 3. The Learned CIT(A) has erred in not properly appreciating the facts, various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide opportunity to the assessee fixed cross examination date as on 18-11-2016 but on appointed date Shri Natubhai did not turn up. However, the assessee turned up and in support of his claim furnished copy of bill dated 09-01-2014 along with copy of bank statement showing payment of Rs. 4 lakh and 4.92 lakh dated 15-05-2014 and 21-05-2015. 5.1 However the AO disagreed with the contention of the assessee by holding that the so called payee has denied to have done any land leveling work. The AO further found that assessee before issuing cheque in favour of Shri Natubhai received amount from firm GDP Infra world. Therefore, the AO was of the view that the M/s GDP Infra World to evade from TDS compliance for plastering work contract given the color of mattipuran and routed the payment through partner s account. Thus, the AO disallowed the assessee s claim of mattipran leveling expenses and added to the short term capital gain. 6. The aggrieved assessee preferred an appeal before the learned CIT-A. The assessee before the ld. CIT-A submitted that disallowance was made merely on the basis of statement of Shri Natubhai which was recorded in connection with partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s Partnership firm, by not deducting the Tax at Source from the payment of contract payment paid to the mason for the work of plotting and plastering after the purchase of the land on 29/01/2014 and also give the colour of Matti Puran work and to claim deduction of the amount to that extent from the Capital Gain in the case of Partners. Similar amount of Rs. 8,92,000/-was also claimed as deduction by the other co-owner of the land and partner of GDP Infraword, Shri Gaurang R. Vyas, under the head Renovation Expenses from his share of Capital Gain. (PAN: AATPV5186H ITO, Ward- 2. Gandhinagar). Thus, both owners of the land in question, had together claimed deduction of Rs.17,84,000/-towards the expenses for Matti puran (Earth filling/Renovation expenses). The same modus operand! is adopted in the case of other partner Shri Gaurang Ravindrakumar Vyas also. 2.8. From the above discussion, it is clear that The assessee has wrongly claimed earth filling charges by forged as deposed by Shri Natubhai K. Koradia in his statement u/s. 131 of the Act. The appellant has prepared bogus receipts for payment of Shri Koradia by giving contradictory dates for the issue of cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings had made an addition of Rs.8,92,000/- on account of SYCG since the appellant could not establish the genuineness of mattipuram i.e earth filling expense claimed. The AO had recorded a statement of Sh Koradia, a mason, in this regard who said he had not carried out any earth-filling work for GDP Infraworld for the period under consideration. However, during the remand proceedings, the AO gave an opportunity of cross examination of Sh Koradia to the appellant. He also stated that during the assessment proceedings he was asked whether he had carried out any such work for GDP Infraworld, to which he had answered in the negative. 11.1 Form the above there is no ambiguity to the fact that the genuineness of the land filling expenses has been accepted by the learned CIT(A) in the case of co-owner. Therefore, in my considered view when, the short term capital gain and expenses claimed by the co-owner has been accepted, then the assessee cannot be treated indifferently. In this regard I find support and guidance from the order of coordinate bench of this tribunal in case of M. Ambalal Desai v. ITO [IT Appeal No. 1870 (AHD.) of 2015, dated 7-1-2021 wherein it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 4,16,314. Indexed cost as per section 48 of the Act is worked out at Rs. 24,22,947/-. As per stamp duty authority the assessee's share being 6.25% of sale value in the property comes to Rs. 25,56,310/-. Thus capital gain comes to Rs. 1,33,363/-, which was taxable in the hands of the assessee. The capital gain of Rs. 1,33,363 has now been shown by the assessee in the Return of Income filed in response to notice u/s 148 of the Act. However, the assessee has not declared suo moto Long Term Capital Gain as he has not filed return of Income. The assessee has consciously not filed return of income to avoid payment of tax. Therefore, Penalty proceedings u/s. 271(1)(c) of the Act are initiated on this issue for concealment of income. 10. We have noted that identical worded assessment order was passed in other co-owner case i. e. Smt. Prabhaben Harshadrai Desai, relevant part of the assessment order is extracted below;: 3. On perusal of records and details submitted by the assessee it was found that the assessee was co-owner having share of 6.25% in the property sold for Rs. 2,00,00,001/- on 19-1-2009 situated at Survey No. 86, Lunsikui, Navsari. Value of property ..... X X X X Extracts X X X X X X X X Extracts X X X X
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