TaxTMI 
TaxTMI 
2014 (3) TMI 65
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....ulon India, this amount was lying for many years since 2003 and was simply transferred to account of appellant, in this year." 2. Apropos first ground, the facts, in brief are: The property in question i.e. house property bearing no. 51A, New Friends Colony, New Delhi originally belonged to one Smt. Bina Devi Golyan. Same was illegally sublet by the original tenant M/s Amin Chand Pyarelal to one Shri Anil Gupta, without the permission of Smt. Bina Devi. For eviction of this illegal occupant, Smt. Bina Devi instituted many legal proceedings since 1992 and vide order dated 18-12-2006, High Court finally passed the order evicting Mr. Gupta and the possession was restored to Smt. Bina Devi. Thereafter on 24-04-2007 (A.Y. 2008-09) she gifted the property to her daughter in law Smt. Shakuntla and grand daughter in law Smt. Smiti Golyan i.e. assessee. Both of them sold this property during the year in question for a sale consideration of Rs. 15 crores i.e. each got a share of Rs. 7.5 crores. The assessee thereafter filed her return of income offering 7,50,00,000/- under the head "Income from capital gains". While calculating the long term capital gains the assessee claimed following ex....
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....of the firm who are not easily traceable. On getting possession, it was found that Rs.3,65,315/- were payable and if this was not paid, electricity for property would had been disconnected, resulting in great drawback, encumbrances, on the property. The list of litigation which has occurred alongwith copies of petition for eviction filed in 1992, order dated 31.8.1995 of Hon'ble Delhi High Court orders dated 11.8.1999 of Smt. Asha Menon, Additional Rent Controller running into 32 pages, orders dated 13.4.2005 of Shri S.M Chopra, Additional Rent Controller and Hon'ble Delhi High Court orders dated18.12.2006 are attached. From this, it is clear that the litigation has dragged for 15 years and it travelled twice to Hon'ble Delhi High Court. During the above period, many of the lawyers and senior lawyers, munshis, clerks juniors etc. were engaged to file eviction' petitions, appeals etc. and defend various petitions for stay, petitions raising objections, counters, rejoinders, supplementary etc. In nut shell, the appellant had spent on:- 1.Court Fee 2.Court Expenses 3.Typing & Photostat 4.Certified copies of orders 5.Postage, courier, miscellaneous expens....
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.... disallowed the claim of the above expenses of Rs.l ,48,18,703/- u/s 48 on the ground that expenses of Rs. l,44,53,388/- on account of legal charges is neither related to transfer of the assets nor supported by any evidence and the electricity charges of Rs.3,65,315/- are not related to transfer of asset. A.O. recorded that even after giving sufficient time, the A/R failed to furnish supporting evidences. The A.O, however, accepted the cost of acquisition of the property after indexation at Rs.72.85 lakhs on the basis of the deed of purchase of the property produced by the A/R. The appellant submitted that the property was purchased by Bina Devi Golyan in the year 1989-90 and the property was under occupation of tenant. After eviction petitions filed in the court and fighting the case in the court for 15 years the possession of the property was taken from the tenant and expenses of Rs.2.16 crores after indexation was incurred by Bina Devi Golyan during the year 1992-93 to 2007 -08 to contest the case in different courts. The expenses were in the nature of court fee, court expenses, typing & photostat, certified copies of orders, postage, courier, miscellaneous expenses, fees of adv....
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.... Therefore, the Tribunal was justified in not deducting the amount in question while computing the capital gains. " In view of the above, as the expenses claimed are not supported by any head wise, year wise detail and documentary evidence, therefore, the claim of the appellant is not allowable merely on the basis of her own assertion. The appellant has failed to discharge the onus cast on her to prove that the expenses claimed are genuine. In order to claim that the expenditures are incurred in connection with transfer of capital asset, the burden of proving the necessary facts in that connection is on the assessee. Reliance is placed on the decisions of Hon'ble Supreme Court in the case of CIT Vs. Calcutta Agency Ltd. (SC) 19 ITR 91 and Lakshimaratan Cotton Mills Co. Ltd. Vs. CIT (SC) 73 ITR 634. In view of the above factual and legal position the claim of expenses of Rs.l ,44,53,388/- are not allowable to the appellant as incurred in connection with transfer of capital asset u/s 48.The A.O. is justified in disallowing the expenses claimed. 3.3.2 Regarding the electricity charges of Rs. 3,65,315/- the appellant submitted that on getting possession of the property it ....
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....nt continued with Nulon as deposit, subsequently this amount was gifted by Yash Golyan to his mother i.e. the assessee by way of entries I respective personal accounts in Nulon Ltd. In support thereof assessee submitted ledger account of M/s Vitir Chattels Pvt. Ltd. for the impugned year and the copies of a/cs from Nulon India Ltd. Ld. CIT(A) however did not accept the assessee's version and confirmed the addition by following observations: 4.3 ........... The submission of the appellant is found to be without any merit because no such explanation was furnished before the A.O. The A.O. gave ample opportunity to the appellant to file the particulars in respect of all unsecured loans during the assessment proceedings. The appellant submitted the particulars in respect of all the unsecured loans except the unsecured loans received form Yash Golyan. The version of the appellant in the appellate proceedings was never submitted before the A.O. Further, no confirmation and copy of I.T. return of Yash Golyan [or his natural guardian, when minor] since A.Y. 2004-05 to 2009-10 was filed to prove that the said share application many was already disclosed in the return already filed. Fu....
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....the said Anil Gupta wantonly did not pay the outstanding electricity charges which could have lead to disconnection and subject to the conditions of reconnection along with entire dues and relevant penalties, thus incurring of electricity expenses also became imperative for peaceful enjoyment of property. The assessee was thus compelled to make the payment as in the absence of electricity and water connection, use of the title of peaceful enjoyment was impaired. To perfect the title and usufruct of the property Smt. Beena Devi had to pay the outstanding electricity dues in this behalf. This is towards the improvement of the title and eligible for inclusion in cost of acquisition. Besides, on 4-7- 2007 Smt. Bina Devi filed a contempt of court petition against the said Anil Gupta for failing to pay the outstanding dues as directed by Hon'ble Delhi High Court, this also shows the genuineness of the claim. 3.2. As per provisions of sec. 48 of the I.T. Act in case of acquisition of the property by way of gift or inheritance the cost of acquisition of the property will be the same as in the hands of the original owner/ transferor/donor. The cost of acquisition includes the cost of....
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....M/s Vitir Chattels Pvt. Ltd. and Nulon India Ltd. was filed. This implies that ld. CIT(A) has accepted the fact that the amount came as opening balance of Yash Golyan in the account of M/s Vitir Chattels Pvt. Ltd. and its transfer to Nulon India Ltd. is not accepted as the transfer request letter was not filed. In related concerns the funds are transferred from one entity to another on oral instruction. Besides, when the credit and share application money is accepted in Nulon India, there is no justification on technical objection. It is pleaded that the assessee's onus for explanation of cash credit is primary in nature, which stands discharged. Thus, ld. CIT(A) failed to consider the issue properly, therefore, the addition should be deleted. 4. Ld. DR supported the order of lower authorities. 5. We have heard rival contentions and gone through the entire material available on record. Though detailed arguments are made by both the parties, we have mentioned them in brief, as we are inclined to set aside the matter back to the file of assessing officer for following reasons. (i) No cross verification from the returns or accounts of Smt. Beena Devi who was the original ....