LATE SHRI BALKRISHAN JOSHI (THROUGH LEGAL HEIR SHRI BHOOPENDRA JOSHI),INDORE vs. THE INCOME TAX OFFICER-5(1), INDORE, INDORE

आदेश / O R D E R

Per B.M. Biyani, A.M.:

Therefore, the impugned order was not communicated to assessee. It is only when the present counsel of assessee on going through e-proceeding tab of e-filing portal of department came across about the fact of passing of order by CIT(A) and advised the assessee to file next appeal to ITAT that the assessee became aware of impugned order. The assessee immediately paid appeal fee and arranged to file appeal. Therefore, the delay has occurred in such circumstance. Ld. AR very humbly submitted that there is no deliberate lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay of 63 days. Hence, a judicious view should be taken and the delay should be condoned. Ld. DR for revenue did not raise any objection and left the matter to the wisdom of Bench. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a sufficient cause for delay in filing present appeal. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09 Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice- oriented approach. Thus, taking into account the provision of section 253(5) and the decision of Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.

3. This is the 2nd round of litigation by assessee before us. The background facts are such that the assessee filed return of income for AY 2008-09 on 31.07.2008 declaring a total income of Rs. 4,13,910/- which included long-term capital gain of Rs. 3,61,414/- from sale of a residential house. The case was selected for scrutiny and the AO passed assessment- order computing long-term capital gain at Rs. 60,59,070/-. Aggrieved, the assessee went in first-appeal before CIT(A) but did not get success. The assessee filed next appeal being to ITAT, Indore which was decided by ITAT vide order dated 25.09.2017 remanding the case back to AO for deciding the issues afresh. The 1st round ended here.

Pursuant to ITAT’s order, the AO passed consequential assessment-order dated 14.09.2018 u/s 143(3)/254 assessing the long-term capital gain at Rs. 54,17,700/-. Still aggrieved by this consequential order, the assessee again filed first-appeal to CIT(A). The CIT(A) decided assessee’s appeal vide order dated 19.06.2023 granting part-relief. Now, the assessee has come in next appeal impugning the order dated 19.06.2023 passed by CIT(A).

Accordingly, 2nd round before us.

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09

4. The grounds raised by assessee are as under:

2. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the action of the Ld. AO in adopting fair market value as on 01.04.1981 to be Rs. 4,43,000/- on the basis of value worked by the DVO without computing FMV using reverse indexation method. 3. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the action of the Ld. AO in restricting the cost of improvement of house at Rs. 2,53,600/- as against cost of improvement claimed by the appellant of Rs. 15,24,870/-. Ground No. 1:

Those Ground No. 2, 3 and 4 remanded by ITAT do not involve the issue of illegality of reference. Further, the assessee has not raised the issue of illegality of reference even in the consequential proceeding undertaken by AO pursuant to ITAT’s order and this issue is nowhere emanating from AO’s consequential order also. Therefore, when this issue did not form part of remand made by ITAT, the assessee cannot claim it now in present appeal.

Ld. DR very forcefully prayed to reject this ground of assessee as non- maintainable.

“2. Ground nos. 1, 5 and 6 are general in nature, which require no adjudication”. Therefore, the issue of illegality of reference was not remanded by ITAT to the AO. The assessee did not file any Misc. Application against the order of ITAT which shows there was no grievance to assessee from ITAT’s order.

Thus, the issue closed at that stage. Needless to add here that there is no whisper on this issue in the consequential order passed by AO which shows the assessee has not raised this claim even before AO in consequential proceeding. Faced with this situation, we are afraid that we can allow this issue in this 2nd round when the issue stands already closed by Co-ordinate Bench in 1st round. Being so, we find merit in the submission of Ld. DR that the ground raised by assessee is not maintainable before us. Consequently, this ground is dismissed.

Ground No. 2:

Undisputedly, there is no such method prescribed in Income-tax Act, 1961.

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09 But the modus in this method is such that the present ‘sale-consideration’ of sold asset is divided by present inflation index and multiplied by inflation index as on 01.04.1981. During hearing, we have clearly indicated to Ld. AR that this method is the last resort when there is no other basis available for determination of FMV as on 01.04.1981. And in the present case, the AO has made a reference to DVO and the DVO has given a detailed working of his estimation (Page 135 of Paper-Book) and in Para 7.1 of his report (Page 133 of Paper-Book) the DVO has also mentioned the method of valuation adopted by him as “FMV by Collectors Guidelines for registration of immovable property”. Therefore, there is a good working done by DVO on the basis of a strong undisputable method. Hence, in this situation, the ‘reverse indexation method’ cannot be allowed. Ld. AR could not controvert this.

Consequently, we do not find any error in the order of AO in accepting FMV of Rs. 4,43,000/- reported by DVO. Accordingly, this ground is also dismissed.

Ground No. 3:

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09 8,95,000/-. The AO, however, rejected assessee’s claim fully. The assessee carried this issue before ITAT, Indore in 1st round by raising following ground:

“3. That on the facts and in the circumstances of the case, Ld. CIT(A) has erred in rejecting the claim of Rs. 8,95,000/- incurred towards cost of improvement of the house”. The ITAT, in order dated 25.09.2017, remanded this issue back to AO for adjudication afresh. While passing consequential order pursuant to ITAT’s direction, the AO allowed assessee’s claim at Rs. 2,53,650/- (consisting of Rs. 94,156/- incurred during FY 1989-90 + Rs. 1,59,494/- incurred during FY 1990-91). During appeal, the CIT(A) confirmed AO’s action.

AO’s order: “The assessee submitted the copy of paper book produced before the Hon'ble ITAT along with copies of capital account of the assessee for F.Y. 1989-90 and 1990-91 wherein amount of withdrawal of Rs. 94,156/- and withdrawal of Rs. 1,59,494/- was done for the house construction. Thus, evidentially assessee must have incurred expenses of improvement of house. Therefore, the cost of improvement in 90-91 will be adopted at Rs. 94,156/- and indexed value will be worked out as 94156 x 551/172 = 301627/-. The cost of improvement will be adopted in 1991-92 at Rs. 159494/- and indexed value will be adopted as 159494 x 554/182 = 482863/-. Thus, total cost of improvement will be adopted at Rs. 7,84,500/- that will be considered to work out long term capital gains. The claim of expenses incurred by family members of Rs. 6,41,370/- cannot be accepted as the assessee has not filed the adequate proof of expenditure and their copy of ITR in support of the claim.”

CIT(A)’s order: “3…….Regarding the cost of improvement, the appellant filed copy of capital account for the F.Y. 1990-91 wherein drawing for house construction was shown as Rs. 1,59,414/-. The appellant shown capital account for F.Y. 1989-90 wherein drawing were shown at Rs. 94,136/-. The appellant further claimed that Rs. 6,00,000/- were incurred by the firm and his family members and thus total cost of improvement was Rs. 8,95,000/- by the year 1993-94 and that should be accepted. The AO referred the matter to the DVO for ascertaining fair market value as on 01/04/1981. The DVO vide his report dated 08/12/2010 determined the cost of house as on 01/04/1981 at Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09

Rs.4,43,000/-. Regarding the cost of improvement, the DVO informed that the appellant has not produced any document or detail for scope of work. The AO therefore held that expenditure of Rs. 8,95,000/- was huge amount in F.Y. 1993-94 and it was not realistic that the appellant had not maintained any record of such investment. The AO therefore disallowed the claim of improvement of Rs. 8,95,000/- by the appellant…..The AO accepted the claim of withdrawal of Rs. 94,136/- and Rs. 1,59,494/- in F.Y. 1990-91 and 1991-92 respectively towards construction of the house and allowed this as cost of improvement after due indexation. However, the AO did not allow the remaining claim of appellant i.e. Rs. 8,95,000 (-) Rs. 94,136 (-) Rs. 1,59,494 = Rs. 6,41,370/- for want of adequate proof.

Now, the appellant submits that the appellant has provided entire details of expenses incurred towards improvement/construction of the residential house by him and his other family members in the course of the assessment proceedings. The appellant claims that major expenses were through family concern M/s. India Motor Cycle Agency. The appellant submits that he has submitted entire documents. The claim of the appellant is summarized as under:

S. Name of the Amount No person 1993-94 1994-95 Rs. 1989-90 1990-91 1991-92 1992-93

3,35,070 1. The appellant 94,136 1,59,494 81,440 2. Smt. Asha Joshi (Wife) 1,14,000 1,14,000

94136 2,24,494 1,42,240 15,24,870 1,14,000 9,50,000 Total

Facts on record and appellant’s submissions have been examined. It is to be noted that the cost of improvement claimed by the appellant at the time of assessment was only Rs. 8,95,000/-. The break-up of this expenses claimed as under:

F.Y. 1989-90 Rs. 94,136/- By appellant F.Y. 1990-91 Rs. 1,59,494/- By appellant By Firm and Family Members F.Y. 1990-91 Rs. 6,41,370/-

At the assessment stage of the first round, the appellant did not submit name of Firm or family members who have contributed balance of Rs. 6,41,370/- neither submitted any evidence regarding this expenditure or even evidence of withdrawal of this amount from any bank account by any of the family members of the said firm. Subsequently the appellant changed the stand and submitted that the balance amount of Rs. 6,41,370/- was not given by the firm rather 3 family members but no proof thereof was submitted. Now the appellant submits that total expenditure towards improvement/construction was not Rs. 8,95,000/- as claimed earlier rather Rs. 15,24,870/-. This claim is shared between appellant, his wife and two sons. The appellant now claims to have spent Rs. 3,35,070/- with additional Rs. 81,440/- being

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09 expenses in F.Y. 1991-92. Rs. 1,14,000/- is claimed to be spent by his wife in F.Y. 1993-94. Rs. 1,25,800/- is claimed to be spent by his son Shailendra Joshi in F.Y.1990-91 & 1991-92 and Rs. 9,50,000/- is claimed to be spent by his son Bhupendra Joshi in F.Y. 1994-95. Facts on record and appellant’s submissions have been examined. The appellant has been shifting his stand very frequently. Initially the claim was Rs. 8,95,000/- only which has now increased to Rs. 15,24,870/-. Initially the expenses were made by the appellant and a family firm and some unnamed family members. But later by affidavit firm name was withdrawn and 3 family members names were introduced. Proof of withdrawal from claimed account has not been submitted. Proof of expenditure made on construction/ improvement has not been submitted and therefore the additional claim of the appellant cannot be entertained. It is also to be kept in mind that we are dealing with the assessment of the appellant and therefore claim of improvement has to be restricted to the extent of expenses incurred by the appellant. In view of all the facts as enumerated above, I agree with the view adapted by the AO in his order u/s 143/254 dated 14.09.2018 allowing cost of improvement to the extent of withdrawal demonstrated by the appellant amounting to Rs. 2,53,630/- with indexation benefit thereon. Appellant’s appeal on these grounds is therefore dismissed.”

However, the assessee has escalated his claim to Rs. 15,24,870/- in consequential proceeding before AO which is very much wrong. He submitted that when the assessee’s claim itself was Rs. 8,95,000/- in the return of income and to that extent only ITAT remanded to AO, how could assessee claim cost at Rs. 15,24,800/- in 2nd round. He submitted that entertaining claim of Rs. 15,24,800/- by this Bench will go beyond what was remanded/adjudicated by Co-ordinate Bench in 1st round, therefore this Bench should restrict its examination and adjudication to the extent of Rs. 8,95,000/- only. Ld. AR for assessee could not make any plausible explanation to controvert this objection of Ld. DR. We found a strong merit in the objection of Ld. DR and therefore indicated to Ld. AR during the Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09 hearing itself that the assessee’s claim beyond Rs. 8,95,000/- is non- maintainable in present appeal before us.

“Facts on record and appellant’s submissions have been examined. The appellant has been shifting his stand very frequently. Initially the claim was Rs. 8,95,000/- only which has now increased to Rs. 15,24,870/-. Initially the expenses were made by the appellant and a family firm and some unnamed family members. But later by affidavit firm name was withdrawn and 3 family members names were introduced. Proof of withdrawal from claimed account has not been submitted. Proof of expenditure made on construction/ improvement has not been submitted and therefore the additional claim of the appellant cannot be entertained. It is also to be kept in mind that we are dealing with the assessment of the appellant and therefore claim of improvement has to be restricted to the extent of expenses incurred by the appellant. In view of all the facts as enumerated above, I agree with the view adapted by the AO in his order u/s 143/254 dated 14.09.2018 allowing cost of improvement to the extent of withdrawal demonstrated by the appellant amounting to Rs. 2,53,630/- with indexation benefit thereon. Appellant’s appeal on these grounds is therefore dismissed.” On a careful consideration, we are in agreement with the Ld. CIT(A) that the assessee has changed not only the quantum of cost but also the sources for incurring cost. The observation of CIT(A) is manifest from a simple point that the assessee filed following affidavit, duly solemnised on stamp, to the AO during 1st round to explain the source of Rs. 8,95,000/- of cost in para 3 and 4:

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09 If we compare these figures with the figures noted by CIT(A) in the Table, it is clearly discernible that the assessee has not only changed the total amount of claim but also the internal figures of sources/amounts of sources. Therefore, the CIT(A) is very much justified in giving no credence to assessee’s submission. In such a peculiar situation of changing facts/figures from time to time, we agree with the Ld. CIT(A)’s conclusion that the assessee can be given credit for the withdrawals declared by himself only and not by other persons. Ld. DR also contended in stronger terms that the Capital A/cs of family members are not evidence to show that the withdrawals shown by them were in fact utilised for improvement of the house sold by assessee and not for any other property. However, we find that even while giving benefit of assessee’s own withdrawals, the CIT(A) has made a mistake. Admittedly, the assessee has incurred cost of Rs. 94,136/- in FY 1989-90, Rs. 1,59,494/- in FY 1990-91 and Rs. 81,440/- in FY 1991- 92 but the CIT(A) has allowed deduction of first two items only and not allowed deduction of Rs. 81,440/- incurred by assessee during the FY 1991-

Hence, we allow claim of cost of Rs. 81,440/- incurred by assessee during the FY 1991-92 with indexation benefit in addition to what has already been allowed by AO and CIT(A).

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09

“…..Thus, long term capital gain will be worked out as under:

Date of acquisition 01/04/1976 Date of transfer 10/09/2007 Sale proceeds Rs. 85,00,000/- Less: Cost of acquisition as on 01.04.1981 443000 x 551/100 Rs. 24,40,930/- Cost of improvement in F.Y. 89-90 94156 x 551/172 = 3,01,627/- Cost of improvement in FY 90-91 159494 x 551/182 = 4,82,863/- Rs. 6,41,370/- Rs.30,82,300/-

Long Term Capital Gain Rs.54,17,700/ Ld. AR pointed out that the AO has made a mathematical mistake and allowed deduction of total indexed cost of improvement at Rs. 3,01,627/- (+)

4,82,863/- = Rs. 6,41,370/- whereas the total comes to Rs. 7,84,490/- Thus, there is an apparent mistake in the order of AO. We direct the AO to modify his assessment-order to remove this mistake and allow correct amount to assessee.

Late Shri Bal Krishna Joshi through L/H Shri Bhoopendra Joshi, Indore. AY 2008-09

Order pronounced in open court on 21.05.2024.