GEETA NADKARNI,MUMBAI vs. ASST CIT CEN 45, MUMBAI

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

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 .