TaxTMI 
TaxTMI 
2012 (9) TMI 789
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....llows:- The assessee is an individual. She is a distributor 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 assess....
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.... and re-compute the capital gains taking the indexed cost of acquisition on 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) un....
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....and other fittings and, thus, was not liable to be considered for working out CG on the sale of immovable 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 ....
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....entered into on 21.12.1998 and as per clause 14 of the said agreement, the assessee claims that the possession 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 a....
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....of ELECTRO HOUSE (supra) and also in the case of MALABAR INDUSTRIES CO (supra) fully covers the situation, no further need to discuss 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 be....
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.... the interest of the Revenue and, therefore, while the Commissioner was justified in exercising the jurisdiction under section 263 of the Act, the Tribunal was definitely not justified in interfering with this order of the commissioner in its appellate jurisdiction." 7.4 With regard to the additional consideration received for equipments and other fittings, though the assessee had stated that adequate proof was furnished while claiming deduction towards the addition to the building etc., we find that the learned CIT had explicitly pointed out in his impugned order to the effect that neither the details have been furnished during the course of assessment proceedings nor verified by the AO with regard to the nature and details of improvements and additions made. During the course of hearing, the learned AR furnished in the shape of a paper book, among others, a copy of letter alleged to have been written to the AO (courtesy: Pages 10 - 13 PB). However, the assessee had not produced any evidence such as an acknowledgement for having filed such a letter before the AO. Moreover, at a glimpse of the said letter (on page 2), it has been observed under the caption: "10. Detail....