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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC-II’, NEW DELHI
Before: SMT. DIVA SINGH
O R D E R
PER DIVA SINGH, J.M. The present appeal has been filed by the assessee assailing the correctness of the order dated 16.12.2014 of the CIT(A)-11, New Delhi pertaining to 2007-08 assessment year wherein the additions of Rs.1,55,700/- and Rs.3,61,450/- have been sustained in appeal by the CIT(A). 2. The assessee represented through her husband addressing the second addition first submitted that the cash deposits of Rs.1,76,450/- and cheques of Rs.1,85,000/- which were received by the assessee from her husband and other family member s could not be filed as the bank statements of the husband’s accounts could not be obtained. Inviting attention to the impugned order it was submitted that it has been argued before the CIT(A) that the assessee’s husband was working as Assistant Commandant of CISF (Para-military Force, Ministry of Home Affairs) and from his savings of various dates, he has gifted these amounts to his wife. The said claim it was submitted has been supported by affidavits filed before the AO by the assessee and also her husband i.e. himself. It was submitted that without addressing these affidavits they have been discarded as self- serving documents. The Revenue it was submitted has insisted that the assessee produces evidences to confirm the transactions from Canara Bank, Green Park, Delhi for the specific period of the assessee’s husband i.e. Shri Vinod Sharda. It was submitted that the bank branch stated that since old records were maintained manually they were not readily available for the specific period. It was submitted that the assessee had requested 133(6). It was his submissions that in the circumstances, the issue may be restored to the CIT(A) for considering the facts and addressing the evidences.
Ld. Sr. DR stated that onus was upon the assessee to file the relevant evidences.
I have heard the rival submissions and perused the material available on record. I find that no doubt the records of the specific period in the Branch may have been maintained manually but that is no reason to accept that a duplicate copy of the passbook cannot be obtained. The assessee ideally ought to have filed an application to the Bank and on making a token payment as per fixed charges of the specific bank towards labour involved in providing a duplicate pass book should have filed it before the tax authorities. The submission that the bank refuses to provide a duplicate pass book as records were not readily available cannot be understood as a blanket refusal by the bank for all times to come. The evidence is capable of being obtained and can be filed as fresh evidence. The banks under the laws of the land cannot refuse the written request to provide duplicate pass book to an account holder or an erstwhile account holder on a token payment for charges towards labour involved and if they do so they become answerable to the charge of obstruction in justice delivery. The tax authorities too if so deemed necessary can requisition the said information from the respective bank in order to rebut the affidavits on record. However, for that first the contents of the affidavit need to be addressed. It is seen that the affidavits have been summarily discarded as self serving evidences without any iota of discussion. When a taxpayer is required to support a claim put forth by way of an affidavit, the affidavit is bound to be self-serving and this shortcoming per se cannot be said to detract from the correctness of the claim. It is also seen that the evidence deemed necessary is capable of being produced. Accordingly, considering the overall factual matrix, the impugned order is set-aside and the issue is restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law. Needless to say that an opportunity of being heard be provided to the assessee.
Addressing the first issue raised in Ground No.1, the assessee’s husband submitted that it pertains to an old property inherited by the assessee from her father about 50 to 60 years back on which construction was carried out at the cost of Rs.1,30,000/- before 1980 by the assessee’s father. The assessee inherited part of the residential property and sold her share treating the proportionate cost of construction of Rs.30,000/- as her cost of acquisition and after indexation it was submitted the cost of acquisition comes to Rs.1,55,700/-. It was submitted that the indexation claim was disallowed by the Assessing Officer on the ground that no documentary evidence was filed. Referring to the impugned order it was submitted that the CIT(A) has taken cognizance of collaboration agreement dated 16.05.2006 entered into by the assessee along with four other co-owners in respect of land at P-7A, Green Park Extn., New Delhi with M/s Sabharwal Developers and Promoters Ltd. for the development on the vacant plot after demolishing the existing structure. The claim of investment in property of Rs.16,96,000/- u/s 54 has been accepted by the Assessing Officer. The CIT(A held that the consideration was for development/sale of land “and not for two and a half storeyed building”. On a query, both the assessee’s husband as well as the ld. Sr.DR were unable to state as to the treatment given by the tax authorities to the issue in the hands of the remaining four co-owners. It is noticed even otherwise that the tax authorities’ agree that there was a two and a half storey building on the specific plot for which construction cost necessarily would have been there and which was demolished as only after that the land could have been developed. Thus since as per the view taken if only land was transferred then someone bore the cost of demolishing the standing building and on facts per se the claim cannot be outrightly disallowed. Accordingly for want of relevant discussion in the impugned order as well as the assessment order, accepting the common prayer of the parties that the issue may be restored to the file of the CIT(A), the issue raised in ground no.1 is also restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.
In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 06th January, 2017.