TaxTMI 
TaxTMI 
2012 (9) TMI 789
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....stributor for Indane Gas. The assessee had furnished return of income for the assessment year under consideration, admitting a total income of Rs.4,44,800/-. The assessment was initially processed u/s 143 (1) of the Act and, subsequently, concluded u/s 143(3) of the Act on 22.12.2008, determining her total income at Rs.3.49 lakhs and Long Term Capital Gains [LTCG] of Rs.1.26 lakhs. Subsequently, on a perusal of the relevant records, the learned CIT had noticed the following certain omissions/commissions, among others, committed by the AO while concluding the assessment: (i) The indexed cost of acquisition of the subject property has been wrongly worked out and, thus, the indexed cost of acquisition requires to be re-calculated on the entire cost of asset relating to the AY 2001-02 ; & (ii) That the addition of Rs.3,35,800/- to the building has been shown, but, neither details of equipments and other fittings were called for to examine as to whether such equipment and other fittings fall under capital asset and nature of additions made to work out CG etc., 4. After due consideration of the submission made by the assessee in compliance to a notice u/s 263 of the Act, the learned ....
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.... the entire cost of the asset to the year 2001-02 only...................." 4.3. Addition to building of Rs.3,35,800/- and sale consideration of Rs.11,00,000/- received: The assessee had shown Rs.11 lakhs towards sale consideration of equipments and other fittings and has added the same to the sale consideration of Rs.42,00,000/- received for the property whereas no details of the same has been furnished during the course of assessment proceedings nor has the same been verified by the assessing officer. The assessee has also shown addition to building of Rs.3,35,800/- and has included the same for computation of capital gains. Details of equipments and other fittings, and details of addition to building of Rs.3,35,800/- were not verified at the time of assessment though it was required to be examined whether such equipments and other fitting fall under capital asset and nature of additions made to work out capital gains. In the written submission now made the assessee has only furnished the copy of the letter filed before the AO during the course of assessment proceedings wherein at para 10(d) under the caption 'improvement and additions' a sum of Rs.3,35,800/- is shown and has....
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....ovable property; - That the CIT ought to have appreciated that the deduction towards the addition to the building while computing the Capital Gains was rightly claimed for which adequate proof was furnished; - That the CIT ought to have accepted the explanation/evidence furnished thereby refraining from directing the AO to revise the cost for the purpose of computation of LTCG by applying cost inflation index and setting aside the assessment for consideration of additional consideration for Capital Gains and also allowance of cost towards improvement of building. 6. On the other hand, the learned D R contented that the learned CIT was fully justified in directing the AO to redo the assessment afresh to the effect that (i) the indexed cost of the subject property was wrongly calculated on the entire cost of asset; (ii) that the assessee had shown addition to building of Rs.3.35 lakhs and had included the same for computation of Capital Gains. However, in the absence of details of equipments and other fittings etc., the same has been accepted by the AO. To facilitate the AO to pass an order afresh after verifying the details referred to in his impugned order under dispute, the ori....
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....of the property had been delivered to the purchaser with the said agreement. However, according to the learned CIT, the evidences produced before the AO during the course of assessment proceedings by way of a sale deed dated 7.9.2001 [source: Page 4 of CIT's order] which exhibits a different theory. For appreciation of facts, clause 9 of the said sale deed (at page 23) goes like this: "9. The purchaser may now enter upon and take possession the schedule property and enjoy the same without any let or any claims being advanced thereto by the Vendor or any person claiming under him or on his behalf or in trust for him and he will fully indemnify the purchaser..." Thus, the above sale deed dated 7.9.2001 makes it abundantly clear that the assessee was actually put in possession of the subject property only on 7.9.2001 and not in the FY 1998-99 itself as claimed by the assessee. In essence, the subject property was transferred and the assessee was put in possession of the said asset only on 7.9.2001. The above conclusive documentary evidence has not been rebutted by the assessee. The assessee's contention referred above doesn't command any face value in lieu of Explanation (iii) to s.....
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....iscuss with any greater elaboration on the view expressed by the Bombay and the Delhi High Courts. 24. In the present situation, the Commissioner having only directed the assessing authority to compute it or re-compute it and make it explicit as to the entitlement of the assessee, an order of this nature, in fact, could not have been contended as detrimental to the interest of the assessee, as it was always open to the assessee to justify the claim in terms of double taxation avoidance agreements. In a situation of this nature, we are also of the opinion that it was not a case which warranted interference by the Tribunal, more so for setting aside the order of the Commissioner and for ensuring that the order passed by the assessing authority was left intact. 25. One should bear in mind that a relief which is required to be given to any litigant in any given case should be commensurate to the gravity of the situation, to the needs and necessity of the situation and warranting such relief and with reference to the governing statutory provisions. Just because the Tribunal has appellate jurisdiction over the orders passed by the Commissioner, it does not mean that the Tribunal should....