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Income Tax Appellate Tribunal, “SMC”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM
आदेश / O R D E R PER R.C.SHARMA (A.M):
This is an appeal filed by assessee against the order of CIT(A)-50, Mumbai dated 20/03/2017 for A.Y.2007-08 in the matter of order passed u/s. 153 r.w.s. 143(3) of the IT Act. 2.The following grounds have been taken by the assessee:- Ground No. 1 : On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in not admitting the additional evidence filed by the appellant. The appellant prays that the said additional evidence may please be admitted. Ground No. 2 : On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in confirming the action of A.O. in not allowing the appellant's claim for indexed cost of acquisition . The appellant Ms. Geeta Nadkarni prays that the learned A.O. may please be directed to allow indexation on cost of acquisition. Ground No. 3: On the facts and in the circumstances of the case and in law, the Hon'ble C1T(A) erred in confirming the action of A.O. in disallowing the appellant's claim for deduction u/s.54 of the Act. The appellant prays that the said disallowance may please be deleted. The appellant craves leave to add, to alter, or to amend any of the grounds of appeal mentioned hereinabove.
Rival contentions have been heard and record perused. Facts in brief are that during the previous year relevant to assessment year 2007-08 under consideration, the assessee has sold one house property for Rs.4.50,000/-. This property was purchased during financial year 2001-02 for Rs.2,00,000/-. The long term capital gain accordingly works out as under: Lone Term Capital Gains Sales Consideration 4,50,000 Less Indexed Cost of flat purchased in F.Y 2001-02 (-)2,43,662 (2,00,000 x 519/426) Net Gains 2,06,338
3. The assessee had purchased a new property for Rs.17.00 Lacs and was accordingly claimed exemption of u/s 54 of the Act resulting in Nil capital gains. The total income of assessee being below taxable limits, no return of income was filed by assessee. In the search of Unity Realty Group, the assessee alongwith her husband (CFO of the group), were Ms. Geeta Nadkarni also searched. In response to notice u/s. 153A return of income was filed wherein NIL capital gains as detailed above was offered to tax. In assessment that followed, Assessing Officer asked for purchase and sale documents which could not be provided at that point of time. The A.O. disallowed the indexation as well as claim of exemption u/s 54 on the ground that documents related to purchase and sale of property have not been filed.
From the record, I found that documents, purchase/sale deed of the immovable property could not be produced before Assessing Officer because after the search these were not traceable. On this premise, in appellate proceedings, application under Rule 46A was filed the moment the documents were located. It was claimed to be a sufficient cause to which the appellate authority did not agree and rejected assessee’s application for additional evidence. The CIT (Appeals) has, rejecting the application, observed as under: "6.5.1 I have considered the contentions of the AR for admission of the new evidence. Inability to trace out evidence (sale deed) cannot be treated as sufficient cause for failure to produce the evidence before the AO. In my view only causes which are external in nature and therefore beyond assessee's control can be treated as sufficient. Therefore the additional evidence cannot be admitted." 5. I do not find any merit in the action of CIT(A). In view of following the judicial pronouncements, I restore the matter back to the file of the CIT(A) for considering the additional evidence and for deciding on merit after giving due opportunity to the assessee. a. Jagbir Singh vs. ITO (1987) 23 ITD 15 .
Ms. Geeta Nadkarni b. Abhay Kumar Shroff vs. ITO (1997) 63 ITD 144 c. Jagannath Prasad Kanhaiya Lal Vs. CIT (1988) 171 ITR 596 d. Deep Chand Kothan vs. CIT (1988) 171 ITR 381 e. Controller of Estate Duty vs. Narasamma (1980) 125 ITR 196 6. In the result, appeal is allowed for statistical purposes.