MR.VISHAL BATRA,`LUDHIANA vs. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1, LUDHIANA
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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
Per Dr. M. L. Meena, AM:
The captioned appeal is filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-5, Ludhiana dated 28.04.2021 in respect of Assessment Year: 2015-16.
2 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT 2. The assessee has raised the following grounds of appeal:
“1. That the Learned Commissioner of Income Tax (Appeals) has erred in law and facts of the Case by sustaining an addition amounting to Rs. 18,82,729/- under the head “Income from Short Term Capital Gains”.
That, out of the above amount of Rs. 18,82,729/-, the Learned Commissioner of Income Tax (Appeals) has erred in not considering an amount of Rs. 4,00,000/- as “Cost of Improvement” in calculating the above said “Short Term Capital Gain”.
That, out of the above amount of Rs. 18,82,729/-, the Learned Commissioner of Income Tax (Appeals) has erred in not considering an amount of Rs. 14,82,729/- either as “Cost of Acquisition/Improvement” or as “Expenditure wholly & exclusively in connection with transfer of asset” in calculating the above said “Short Term Capital Gain”.
That the above disallowance made in the case of the Appellant is against the facts and circumstances of the Case.
That the Appellant craves leave to add or amend any grounds of appeal later during the course of Appellate Proceedings.”
None attended for the assessee. The adjournment application filed by
the assessee is rejected being devoid of merits. The appellant assessee
has been granted as many as seven opportunities of being heard to make
submission in support of the ground of appeal filed before the Tribunal.
Considering the small addition of Rs.18,82,729/- made under the head
income from short term capital gain as “Cost of improvement and transfer
expenses being not considered as “Expenditure wholly & exclusively in
3 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT connection with transfer of asset.” Therefore, it was decided to hear the ld.
DR, perused the material facts and adjudicates the appeal on merits of the
case.
Briefly facts are that the assessment u/s153A r.w.s. 144 was
passed consequent to a search u/s 132 was conducted in this
case on 27.12.2017.In response to the notice u/s 153A, no return
has been filed. Subsequently, notice u/s 142 along with
questionnaire to appear on04.10.2019, however on the said date
neither the assessee attended nor filed any reply. Thereafter, on
26.11.2019, a show-cause notice was issued to the assessee for
filing the reply, but on the said date, since no reply was filed by
the assessee. Consequently, the assessment was passed u/s
144 after taking into account all the material on record by the AO
to the best of his judgment and knowledgewith an addition of Rs.
18,82,729/- on account of disallowance of expenses claimed as cost
of improvement and expenditure on transfer relating to Short Term
Capital Gain.
In appeal, the learned CIT (A) has confirmed the addition by
observing as under:
4 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT The facts of the case, basis of addition/disallowance made by AO and the arguments of the AR during the course of appellate proceedings have been considered. The AR has submitted that the appellant purchased a residential house in the previous year and sold the same during the year under consideration. It is further submitted that the interest paid on the residential house sold has beencapitalized and included in the cost of asset and accordingly, calculated the Short TermCapitalGain on which tax has been paid. It is however relevant to mention, here that no documents have been filed during the appellate proceedings in support of claim regarding the deduction of Rs. 18,82,729/-. In the remand report, the AO has mentioned that the assessee submitted the detail of interest paid on home loan claimed as expenditure incurred on transfer but failed to furnish any document relating to the cost of improvement of Rs. 4,00,000/-. It is relevant to mention here that the interest paid on housing loan cannot be said to be expenditure incurred wholly & exclusively in connection with transfer. The housing loan was taken for acquisition of the property and interest on the same is allowable as a deduction under Section 24 of the Income Tax Act out of the rental income, if any, earned by the assessee but it cannot be said to be expenditure in connection with transfer. The expenditure in connection with transfer will include the expense made at the time of sale of the property by the assessee. It is argued by the AR during the appellate proceedings that the loan was taken for purchase of property and contended that hence the interest on loan form part of eligible deduction u/s 48 of the Income Tax Act, 1961 out of sale consideration for the purpose of computation of capital gains. However, the arguments of the AR are not found acceptable since as per Section 48 only the amounts of 'expenditures incurred wholly and exclusively in connection with the transfer' and 'the cost of the acquisition of the assets and cost of any improvement thereto' are allowable as deduction out of 'sale consideration'. Undoubtedly the 'interest on loan' cannot be said to the expenditure incurred wholly and exclusively in connection with such transfer. Further, these cannot be said to the cost of acquisition because the cost of acquisition means the amount paid to the seller by the buyer (i.e. the assessee) at the time of purchase of the property by the assessee. Also the interest paid is not 'cost of improvement' because the value of the property has not increased on account of the interest paid by the assessee. The interest on loan amount relates to mode of arrangement of finance for acquisition of property and is an eligible deduction as per Section 24 of the IT Act, 1961 under the head 'income from house property'. However, this is not an allowable deduction under the head 'capital gains’ as claimed by the assessee under the garb of Expenditure on Transfer'. Therefore,
5 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT in view of the clear cut provision providing for deduction of the Interest amount out of rental income, and there being no provision for deduction of this amount out of capital gains, the claim of the assessee regarding deduction of Rs. 14,82,729/- is rejected. Also, regarding the deduction of Rs4,00,000/-as 'cost of improvement', the AO in remand report has clearly mentioned that the assessee failed to furnish any document relating to this amount. Hence, this claim is also liable to be rejected. In view of the above discussion, the addition of Rs.18,82,729/- made by the AO is found sustainable as per law and hence confirmed.
The assessee has contended in ground of appeal that the Learned
Commissioner of Income Tax (Appeals) has erred in law and facts of the
Case by sustaining an addition amounting to Rs. 18,82,729/- under the
head “Income from Short Term Capital Gains”; that he has not considered
an amount of Rs. 4,00,000/- as “Cost of Improvement” and amount of Rs.
14,82,729/- either as “Cost of Acquisition/Improvement” or as “Expenditure
wholly & exclusively in connection with transfer of asset” in calculating the
above said “Short Term Capital Gain”. Thus, he argued that disallowance
made and confirmed in the case of the Appellant is against the facts and
circumstances of the Case.
After hearing the learned DR, perusal of the impugned order and
considering the return submissions filed by the appellant, we find that the
Ld. CIT (A) has facts confirmed the action of Ld. AO in making an addition
of Rs. 18,82,729/- under the head “Income from Short Term Capital
6 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT Gains”.The appellant submitted before the CIT(A) that the interest paid on
the residential house sold has been capitalized and included in the cost of
asset and accordingly, calculated the Short Term Capital Gain on which tax
has been paid. It is however noted by the CIT(A) that no documents have
been filed during the appellate proceedings in support of claim regarding
the deduction of Rs. 18,82,729/-. Even in the remand report, the AO has
mentioned that the assessee submitted the detail of interest paid on home
loan claimed as expenditure incurred on transfer but failed to furnish any
document relating to the cost of improvement of Rs. 4,00,000/-. In our view,
the CIT(A) has been justified in observing that It is relevant to mention here
that the interest paid on housing loan cannot be said to be expenditure
incurred wholly & exclusively in connection with transfer. As per the
provisions of the Income Tax Act, interest on the housing loan taken for
acquisition of the property is allowable as a deduction under Section 24 of
the Income Tax Act out of the rental income, if any, earned by the
assessee but it cannot be said to be expenditure in connection with transfer
of an asset. In our view, the expenditure in connection with transfer will
include the expense made at the time of sale of the property by the
assessee.
7 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT 8. It was argued by the AR during the appellate proceedings before the
CIT(A) that the loan was taken for purchase of property and contended that
hence the interest on loan form part of eligible deduction u/s 48 of the
Income Tax Act, 1961 out of sale consideration for the purpose of
computation of capital gains. However, the arguments of the AR are was
not found acceptable since as per Section 48 only the amounts of
'expenditures incurred wholly and exclusively in connection with the
transfer' and 'the cost of the acquisition of the assets and cost of any
improvement thereto' are allowable as deduction out of 'sale consideration'.
Undoubtedly the 'interest on loan' cannot be said to the expenditure
incurred wholly and exclusively in connection with such transfer. Further, it
cannot be said to be the cost of acquisition because the cost of acquisition
means the amount paid to the seller by the buyer (i.e. the assessee) at the
time of purchase of the property by the assessee. Also the interest paid is
not 'cost of improvement' because the value of the property has not
increased on account of the interest paid by the assessee. The interest on
loan amount relates to mode of arrangement of finance for acquisition of
property and is an eligible deduction as per Section 24 of the IT Act, 1961
under the head 'income from house property'. In view of that matter, there
8 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT being a clear provision providing for deduction of the interest amount out of
rental income, and there being no provision for deduction of this amount
out of capital gains, the claim of the assessee regarding deduction of Rs.
14,82,729/- is rightly rejected by the CIT(A). As regards to the claim of the
deduction of Rs. 4,00,000/- as 'cost of improvement', it was categorically
mentioned by the AO in remand report that the assessee failed to furnish
any documentary evidence relating to this amount. Therefore, this claim
was liable to be rejected.
In view of the above discussion, we find no infirmity or perversity in
the order of the Ld. CIT(A) to the facts on record and therefore, the
impugned order confirming the addition of Rs.18,82,729/- made by the AO
is upheld.
In the result, the appeal of the assessee is dismissed.
Order pronounced in the open court on 31.08.2023
Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS* Copy of the order forwarded to: (1)The Appellant: (2) The Respondent: (3) The CIT(Appeals)
9 ITA No.54/Asr/2021 Vishal Batrav. Dy. CIT (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order
