KARTIKEYA KILACHAND, MUMBAI v. ACIT CIR 15(1), MUMBAI

ITA 1999/MUM/2012 | 2004-2005
Pronouncement Date: 21-10-2016 | Result: Partly Allowed

Appeal Details

RSA Number 199919914 RSA 2012
Assessee PAN ALXPL2089F
Bench Mumbai
Appeal Number ITA 1999/MUM/2012
Duration Of Justice 4 year(s) 6 month(s) 25 day(s)
Appellant KARTIKEYA KILACHAND, MUMBAI
Respondent ACIT CIR 15(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-10-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 21-10-2016
Date Of Final Hearing 17-05-2016
Next Hearing Date 17-05-2016
Assessment Year 2004-2005
Appeal Filed On 26-03-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI B R BASKARAN ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA JUDICIAL MEMBER ITA NO. : 1999 /MUM/20 1 2 (ASSESSMENT YEAR: 200 4 - 0 5 ) SHRI KARTIKEYA KILACHAND FIONIKA BASEMENT 59 - B WALKESHWAR ROAD MUMBAI - 400 006 PAN: ALXPL 2089 F VS ACIT CIR 15(1) MATRU MANDIR 1 ST FLOOR GRANT ROAD MUMBAI - 400 007 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S C TIWARI RESPONDENT BY : SHRI A RAMCHANDRAN /DATE OF HEARING : 0 3 - 0 8 - 201 6 / DATE OF PRO NOUNCEMENT : 21 - 10 - 2016 ORDER : PER AMIT SHUKLA J M: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 1 9 .0 1 .201 2 PASSED BY LD. CIT (A PPEALS ) - 26 MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) FOR THE ASSESSMENT YEAR 200 4 - 0 5. IN THE G ROUNDS OF APPEAL THE ASSESSEE HAS RAISED FOLLOWING GROUNDS : - 1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW LEARNED CIT (A) HAS ERRED IN HOLD ING THAT THE CAPITAL LOSS ON TRANSFER OF RIGHT TO ACQUIRE THE FLAT IS REQUIRED TO BE CONSIDERED IN THE APPELLANTS ASSESSMENT FOR ASSESSMENT YEAR 2003 - 04. 2 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW LEARNED CIT(A ) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF THE APPELLANTS CLAIM OF CAPITAL LOSS OF RS.28 28 213/ - MADE BY THE ASSESSING OFFICER. 3. THAT IN THE ALTERNATIVE AND WITHOUT PREJUDICE LEARNED CIT(A) HAS ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO ALLOW THE APPELLANTS CLAIM OF CAPITAL LOSS IN THE ASSESSMENT OF THE APPELLANT FOR ASSESSMENT YEAR 2003 - 04. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW LEARNED CIT(A) HAS ERRED IN NOT DECIDING THE ADDITIONAL GROUNDS OF AP PEAL RAISED BY THE APPELLANT VIDE ITS LETTER DATED 14.05.2009 WHICH WAS FILED IN THE OFFICE OF CIT(A) PM THE SAME DAY. 5. ALL THE ABOVE GROUNDS OF APPEAL ARE INDEPENDENT AND WITHOUT PREJUDICE TO EACH OTHER. 6. THE ASSESSING OFFICERS ORDER BEING CONTRARY TO LAW EVIDENCE AND FACTS OF THE CASE MAY KINDLY BE SET ASIDE AMENDED OR MODIFIED IN THE LIGHT OF THE GROUNDS ENUMERATED ABOVE. 7. THE APPELLANT CRAVES LEAVE TO RESERVE TO HIMSELF THE RIGHT TO ADD TO ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL AT OR B EFORE THE TIME OF HEARING AND TO PRODUCE SUCH FURTHER EVIDENCES DOCUMENTS AND PAPERS AS MAY BE NECESSARY. 2. THE SOLE DISPUTE THUS REVOLVES AROUND THE DISALLOWANCE OF CLAIM OF CAPITAL LOSS OF RS.28 28 213/ - AND COST OF INDEXATION . 3 BRIEF FACTS QUA THE ISSUE INVOLVED ARE THAT ASSESSEE IS AN INDIVIDUAL AND HA D DECLARED LONG - TERM - CAPITAL LOSS OF RS.28 28 213/ - ON SALE OF GURGAON HOUSE (FLAT) WHICH WAS BOOKED WITH A BUILDER M/S MALIBU ESTATES PVT . LTD NEW DELHI WAY BACK IN THE FINANCIAL YEAR 1995 - 96. THE COMPUTATION OF LONG - TERM - CAPITAL LOSS WAS SHOWN IN THE FOLLOWING MANNER: - 3 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 SALE CONSIDERATION RS. 22 61 258 LESS: INDEXED COST: FINANCIAL YEAR AMT. PAID INDEX INDEXED COST 1995 - 96 1 49 600 281 2 46 494 1996 - 97 10 82 748 305 16 43 647 1997 - 98 7 87 270 331 11 01 227 1998 - 99 3 91 820 351 5 16 845 2003 - 04 15 81 258 463 15 81 258 50 89 471 TOTAL 39 92 686 50 89 471 ( - )28 28 213 THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD SHOWN SALE REC EIPTS OF RS.22 61 258/ - WHEREAS THE PAYMENT FOR THE ACQUISITION OF ABOVE FLAT WAS STATED TO BE RS.24 11 438/ - . FROM THE PERUSAL OF THE RECORDS HE FURTHER NOTED THAT THERE WAS A LETTER DAT ED 05.06.2003 WRITTEN BY THE ASSESSEE TO THE BUILDER STATING THAT FULL AMOUNT OF RS.24 11 438/ - HAS BEEN RECEIVED BY HIM FROM THE BUILDER . IN RESPONSE TO THE SHOW CAUSE NOTICE BY THE ASSESSING OFFICER THE ASSESSEE SUBMITTED THAT HE HAS BROUGHT ONE NOMINE E FOR PURCHASING THE FLAT AND HE HAS RECEIVED ONLY SUM OF RS.6 80 000/ - FOR SURRENDER ING HIS RIGHT AND INTEREST IN THE FLAT AND NOMINEE PAID RS. 15 81 258/ - TO THE BUILDER ON HIS BEHALF AND THUS THERE WAS LOSS OF RS.17 31 438/ - . THE ASSESSEE HAD FILED HIS SWORN AFFIDAVIT IN SUPPORT OF RECEIPT OF RS.6 80 000/ - . THE ASSESSING OFFICER ON THE BASIS OF DETAILS FURNISHED BY THE ASSESSEE AS WELL AS MATERIAL PLACED ON RECORDS OBSERVED THAT: - ( I ) LONG - TERM - CAPITAL LOSS OF RS. 28 28 213/ - WAS ON ACCOUNT OF SURRENDER OF RI GHT TO PURCHASE FLAT NO.1004 BUILDING NO.4 MALIBU TOWNE GURGAON HARAYANA WHICH WAS BOOKED BY THE ASSESSEE IN THE F.Y. 1995 - 96 ; ( II ) ASSESSEE HAD PAID SUMS AGGREGATING RS.24 11 438/ - TO THE BUILDER M/S MALIBU ESTATE 4 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 PVT LTD BETWEEN 04.08.1995 TO 24.11.1997 AGAINST THE COST OF THE ABOVE FLAT OF RS.39 92 696/ - ; ( III ) THE FLAT HAS BEEN TRANSFERRED TO ASSESSEES NOMINEE BROUGHT BY HIM DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR 2004 - 05; ( IV ) THE PAYMENT OF RS.24 11 438/ - WAS INDEXED BY THE ASSESSEE AND THE LOSS OF RS.17 31 438/ - WAS THEREBY INCREASED TO RS.28 28 213/ - AND THE SAME WAS SET OFF AGAINST THE CAPITAL GAIN EARNED BY THE ASSESSEE IN THIS YEAR ; ( V ) THE AGREEMENT FOR THE PURCHASE OF THE FLAT REVEALS THAT THERE WERE TWO OPTIONS FOR THE PURCHASER IN CASE IF HE CHANGES HIS MIND FOR NOT PURCHASING THE FLAT AFTER PART PAYMENT OR HE WANTS TO SELL IT ON HIS OWN. THE FIRST OPTION WAS TO CANCEL THE AGREEMENT ON WHICH PURCHASER HA D TO FOREGO THE EARNEST MONEY PAID BY HIM AT THE TIME OF ENTERING INTO THE AGREEMENT WITH THE BUILDER WHICH HERE IN THIS CASE WAS RS.1 49 600/ - ONLY; AND SECOND OPTION WAS TO BRING NOMINEE IN HIS PLACE AND REQUEST THE BUILDER TO SUBSTITUTE HIS OWNERSHIP/RIGHTS OF THE ASSESSEE TO THE NOMINEE. HOWEVER THE ACCEPTANCE OF THE ASSESSEES REQU EST FOR NOMINEE WAS UPON THE SOLE DISCRETION OF THE BUILDER. HERE IN THIS CASE THE ASSESSEE HAS CHOSEN FOR SECOND OPTION. THE ASSESSING OFFICER THEN REQUIRED THE ASSESSEE TO JUSTIFY THAT HE HAS ONLY RECEIVED RS.6 80 000/ - FROM THE NOMINEE WHEN THERE IS A SPECIFIC LETTER DATED 05.06.2003 WRITTEN TO THE BUILDER WHEREIN THE ASSESSEE HAS CATEGORICALLY ADMITTED THAT HE HAS RECEIVED SUM OF RS.24 11 428/ - WHICH 5 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 WAS EXACT AMOUNT PAID AGAINST THE FLAT BY THE ASSESSEE . IN RESPONSE TO THE SAID QUERY THE ASSESSE E STATED THAT HE HAS NOT ACTUALLY RECEIVED ANY AMOUNT OVER AND ABOVE SUM OF RS.6 80 000/ - FROM THE NOMINEE AND THE LETTER WAS WRITTEN TO THE BUILDER AS A STANDARD FORMAT PROVIDED BY THEM SOLELY WITH A VIEW TO FACILITATE THE TRANSFER OF HIS RIGHT FOR THE PU RCHASE OF THE SAID FLAT TO THE NOMINEE . HOWEVER THE ASSESSING OFFICER REJECTED THE ASSESSEES EXPLANATION ON THE GROUND THAT FIRSTLY IF THE ASSESSEE HAS RECEIVED LESS AMOUNT THEN WHY WOULD HE ADMIT IN WRITING THAT HE HAS RECEIVED FULL AMOUNT OF RS.24 11 428/ - FOR SURRENDERING THE RIGHT AND THEREBY INCURRING HUGE LOSS ; AND SECONDLY IN CASE OF CANCELLATION OF THE AGREEMENT THE ASSESSEE WOULD HAVE LOST ONLY THE EARNEST MONEY OF RS.1 49 600/ - AND NOT AN AMOUNT OF RS.17 31 438/ - . 4. THEREAFTER THE ASS ESSING OFFICER FURTHER PROCEEDED TO DISALLOW THE INDEXATION ALSO ON THE GROUND THAT NEITHER THE TOTAL COST OF THE FLAT WAS PAID BY THE ASSESSEE NOR THE POSSESSION OF THE ABOVE FLAT WAS GIVEN TO HIM BY THE BUILDER AND NOR IT WAS SOLD BY HIM TO ANY THIRD PA RTY BY WAY OF ANY SALE AGREEMENT. THE ASSESSING OFFICER OBSERVED THAT THE COST OF ACQUISITION OF THE ASSET CAN BE INDEXED AND NOT ANY ADVANCE PAID BY A PERSON AND IN ASSESSEES CASE NEITHER THE TOTAL COST OF THE ASSET WAS PAID BY THE ASSESSEE NOR ANY C O N VEYANCE DEED WAS PREPARED AND REGISTERED FOR THE TRANSFER OF THE FLAT AND HENCE IT CANNOT BE SAID THAT FLAT WAS ACTUALLY ACQUIRED BY HIM. ACCORDINGLY HE DISALLOWED THE ENTIRE CLAIM OF CAPITAL LOSS AS CLAIMED BY THE ASSESSEE. 6 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 5. THE LD. CIT(A) HAS CO NFIRMED THE ACTION OF THE ASSESSING OFFICER AFTER CONSIDERING THE ASSESSEES SUBMISSION AS WELL AS MATERIAL ON RECORD AFTER OBSERVING AND HOLDING AS UNDER: 3.2 I HAVE CAREFULLY CONSIDERED THE FINDINGS OF THE AO THE SUBMISSIONS OF THE APPELLANT AS WELL AS PERUSED THE AGREEMENT/CORRESPONDENCE BETWEEN THE APPELLANT BUILDER AND THE NOMINEE OF THE APPELLANT TO WHOM THE COMPLETE FLAT IN QUESTION WAS TRANSFERRED BY THE APPELLANT. BESIDES THE VARIOUS OBSERVATIONS OF THE AO FOR DISALLOWING THE CLAIM OF CAPITAL LO SS OF THE APPELLANT IT IS ALSO NOTED THAT VIDE AGREEMENT DATED 01.03.2003 THE RIGHT/INTEREST OF THE APPELLANT IN THE SAID PROPERTY H AD DIMINISHED THEREFORE UNDER THESE CIRCUMSTANCES EVEN IF IT IS HELD THAT THERE WAS ACTUALLY ANY GENUINE LOSS TO THE APP ELLANT IT HAD OCCURRED AND COULD HAVE BEEN CLAIMED ONLY IN AY 2003 - 04 AND NOT IN THE CURRENT YEAR. FURTHER THE OBSERVATION OF THE AO THAT AS PER THE CANCELLATION AGREEMENT LETTER DATED 05.06.2003 THE APPELLANT HAS ADMITTED THAT HE HAS RECEIVED THE FULL AMOUNT OF RS.24 11 428/ - CAN ALSO NOT BE BRUSHED ASIDE BECAUSE NO EDUCATED PERSON WILL ISSUE SUCH RECEIPTS WITHOUT ACTUALLY RECEIVING THE AMOUNT. IN THIS REGARD THE CLAIM OF THE APPELLANT THAT IT WAS ONLY A FORMALITY WHICH WAS NECESSARY FOR CANCELLATI ON OF THE CONTRACT WITH THE BUILDER DOES NOT APPEAR CORRECT BECAUSE THE FLAT FOR WHICH THE APPELLANT HAS ALREADY PAID RS.24 11 428/ - IN VARIOUS INSTALLMENTS CANNOT BE THROWN AWAY AT SUCH A LOW PRICE OF RS.68 LAKH S ONLY UNLESS THE PERSON TO WHOM HE WANTS TO GIFT SOMETHING WITHOUT PROPER CONSIDERATION. IN THAT CASE ALSO IT BECOMES A DUBIOUS TRANSACTION FROM THE POINT OF VIEW OF CLAIMING THE CAPITAL LOSS ON SUCH A 7 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 DEAL WHEN THE SOLE CONSIDERATION IS GROSSLY REDUCED FOR THE OTHERWISE THAN THE BUSINESS REASO NS OF COMMERCIAL EXPEDIENCY. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND FOR THE REASONS STATED ABOVE I AGREE WITH THE FINDINGS OF THE AO THAT THE CAPITAL LOSS CLAIMED BY THE APPELLANT IS NOT ALLOWABLE. ACCORDINGLY THIS GROUND OF APPEAL IS DISMISSED. 6. BEFORE US THE LD. COUNSEL SHRI S C TIWARI FIRST OF ALL SUBMITTED THAT THE ASSESSEES CLAIM FOR LONG - TERM - CAPITAL LOSS CANNOT BE DENIED FIRST OF ALL FOR THE REASON THAT THE ASSESSEE HAD ACQUIRED RIGHT IN THE FLAT BY VIRTUE OF AN AGREEMENT WITH THE BUILDER AND ON THE BASIS OF THE SAID AGREEMENT THE ASSESSEE HAD ALSO MADE SUBSTANTIAL PAYMENTS TO THE BUILDER FOR THE PURCHASE /ACQUISITION OF THE FLAT. HENCE BY VIRTUE OF THIS AGREEMENT THE ASSESSEE HAS ALSO ACQUIRED THE RIGHT IN THE IMMOVABLE PROPERTY AND THAT RIGHT COULD NOT HAVE BEEN EXERCISED B THE ASSESSEE IN ANY MANNER. IN SUPORT HE STRONGLY RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V VIJAY FLEXIBLE CONTAINERS REPORTED IN [1990] 186 ITR 693 AN D CIT V TATA SERVICES LTD. REPORTED IN [1980] 122 ITR 594. ON THE SECOND ASPECT OF QUANTUM OF CAPITAL LOSS H E SUBMITTED THAT MUCH EMPHASIS HAS BEEN LAID DOWN BY THE ASSESSING OFFICER AND BY THE CIT(A) ON THE LETTER DATED 05.06.2003 WRITTEN BY THE ASSESSE E TO THE BUILDER THAT HE HAS RECEIVED SUM OF RS.24 11 458/ - ON THE CANCELLATION OF THE FLAT. HE SUBMITTED THAT THIS LETTER WAS MERELY A FORMALITY TO FACILITATE THE PASSING OVER THE RIGHT AS A OWNER TO THE NOMINEE BROUGHT BY THE ASSESSEE ON THE SAID FLAT. THE ASSESSEE HAD ONLY RECEIVED SUM OF RS.6.8 LAKHS FROM THE NOMINEE AND HENCE THERE WAS A ACTUAL LOSS INCURRED TO THE 8 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 ASSESSEE . HE FURTHER SUBMITTED THAT LD. CIT(A)S OBSERVATION THAT LOSS OR GAIN PERTAINS TO AY 2003 - 04 IS ALSO NOT CORRECT BECAUSE THE AGRE EMENT TO SALE IS DATED 24.04.2003 AND THEREFORE LOSS IF AT ALL HAS TO BE COMPUTED ONLY IN THE ASSESSMENT YEAR 2004 - 05. IN SUPPORT HE DREW OUR ATTENTION TO THE COPY OF AGREEMENT DATED 24 TH APRIL 2003 APPEARING IN PAPER BOOK PAGES 23 ONWARDS. THUS NOT ON LY IT IS A CASE OF TRANSFER OF A CAPITAL ASSET BUT ALSO ON THE FACTS OF THE CASE THE LOSS AS INCURRED ON TRANSFER OF ASSET HAS TO BE ALLOWED . 7. ON THE OTHER HAND LD. DR STRONGLY RELIED UPON THE ORDER OF THE CIT(A) AND SUBMITTED THAT ONCE THE ASSESSEE HAS HIMSELF RECEIVED SUM OF RS.24 11 458 FROM THE BUILDER PLUS SUM OF RS.6.80 LAKHS FROM THE NOMINEE THEN THE PROPERTY HAS BEEN ACTUALLY SOLD FOR RS. 30 91 458/ - . THIS ALSO MAKES SENSE ALSO BECAUSE WHY WOULD ASSESSEE AFTER PAYING THE COST OF RS.24 11 458 W ILL TRANSFER THE FLAT ONLY FOR RS.6 80 000/ - . THUS THE LONG - TERM - CAPITAL - GAIN HAS TO BE ASSESSED AFTER CONSIDERING THE AMOUNT RECEIVED BY THE ASSESSEE INCLUDING RS.24.11 LAKHS AND RS.6.80 LAKHS. AS REGARDS THAT THERE IS NO TRANSFER OF ASSET AT ALL HE REL IED HEAVILY UPON THE ORDER OF THE AO AS THE LD CIT(A) HAS NOT DEALT UPON THIS ISSUE MUCH ALTERNATIVELY S O FAR AS CLAIM OF INDEXATION ON RS. 30 91 458/ - (I.E. RS.24 11 458 + RS. 6 80 000) IS CONCERNED HE SUBMITTED THAT THE MATTER NEEDS TO GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER WORKING OF INDEXATION. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS AS WELL AS MATERIAL REFERRED TO BEFORE US. THE ASSESSING OFFICER FIRST OF ALL HELD THA T THE QUANTUM OF CAPITAL LOSS CLAIMED BY THE 9 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 ASSESSEE AT RS.28 28 213/ - IS NOT GENUINE ; AND SECONDLY THERE IS NO TRANSFER OF ANY CAPITAL ASSET BECAUSE THE ASSESSEE HAS MERELY GIVEN AN ADVANCE TO THE BUILDER FOR THE PURCHASE OF THE FLAT THEREFORE THERE M AY NOT BE A CASE OF TRANSFER OF AN CAPITAL ASSET AT ALL LEAVE ALONE THE WORKING OF COST OF INDEXATION. THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER THOUGH HE HAS NOT GIVE N ANY COGENT FINDING ON THE ISSUE OF INDEXATION RATHER HIS ENTIR E FINDING IS ON THE POINT THAT THE ASSESSEE HAS RECEIVED FULL AMOUNT OF RS.24 11 428/ - FROM THE BUILDER WHICH IS BASED ON THE LETTER DATED 05.06.2003. 9. FROM THE PERUSAL OF THE RECORDS IT IS SEEN THAT THE ASSESSEE HAD ENTERED INTO BUYERS AGREEMENT WI TH THE BUILDER M/S MALIBU ESTATE PVT . LTD IN THE YEAR 19 9 5 (WITHOUT THERE BEING ANY SPECIFIC DATE MENTIONED IN THE SAID AGREEMENT ) THE COPY OF WHICH IS APPEARING FROM PAGES 1 TO 11 OF THE PAPER BOOK ALONG WITH ANNEXURE S RELATING TO SCHEDULE OF PAYMENT AND VARIOUS SPECIFICATIONS. THE ENTIRE CONSIDERATION TO BE PAID FOR THE PURCHASE OF THE SAID FLAT WAS AGREED AT RS.39 72 839/ - WHICH WAS TO BE GIVEN IN VARIOUS INSTALLMENTS AS PER THE SCHEDULE. AT THE TIME OF THE SAID AGREEMENT THE ASSESSEE HAD PAID SUM OF RS .1 49 600/ - . AS NOTED BY THE AUTHORITIES BELOW DURING THE PERIOD 04.08.1995 TO 24.11.1997. THE ASSESSEE HAD PAID SUM OF RS.24 11 438/ - TO THE BUILDER . THE ASSESSEE LATER ON BROUGHT ONE NOMINEE MRS. K A UL TO WHOM THE RIGHTS IN THE FLAT WERE ASSIGNED. THERE AFTER THE ASSESSEE HAD WRITTEN A LETTER DATED 05.06.2003 TO THE BUILDER STATING THAT HE HAS RECEIVED FULL AMOUNT OF RS.24 11 428/ - FROM THE BUILDER AFTER NOMINEE WAS BEEN BROUGHT BY THE ASSESSEE. THIS LETTER IS BEEN STATED TO BE MERE FORMALITY AND A PIECE OF PAPER WITH NOT 10 SHRI KARTIKEYA KILACHAND ITA 1999 /MUM/ 201 2 MUCH SIGNIFICANCE AND ONLY FOR SMOOTH TRANSFER OF THE RIGHT IN THE FLAT TO THE NOMINEE. WE ARE UNABLE TO APPREHEND OR APPRECIATE AS TO WHY THE AS SESSEE WILL WRITE SUCH A LETTER TO THE BUILDER ADMITTING THAT HE HAS ACTUALLY RECEIVED SUM O F RS.24 11 438/ - (WHICH IS THE EXACT AMOUNT STATED TO HAVE BEEN PAID TO THE BUILDER I.E. RS.24 11 438/ - ) WHEN ONLY SUM OF RS.6 80 000/ - HAS BEEN RECEIVED BY HIM FROM THE NOMINEE TOWARDS THE ACQUISITION OF THE FLAT. WE AGREE WITH T H E OBSERVATIONS OF THE ASSESSING OFFICER AND THE LD. CIT(A) THAT WHY WOULD A PERSON WHO HAS PAID A SUM OF RS.24 11 438/ - WILL TRANSFER HIS RIGHT IN THE ASSET FOR PALTRY SUM OF RS.6.80 LAKHS AND THEREBY INCURRING A N ACTUAL LOSS OF RS.17 31 438/ - WHEN ASSESSEE HAD THE OPTION TO SU RRENDER THE FLAT BACK TO THE BUILDER WITH FORFEITURE OF EARNEST AMOUNT OF RS. 1 49 600/ - . F OR PROVING THAT THE SAID LETTER WRITTEN BY THE ASSESSEE TO THE BUILDER WAS MERE FORMALITY AND ASSESSEE HAS NOT RECEIVED THE ENTIRE AMOUNT BACK NEEDS TO BE REBUTTED B Y WAY OF SOME MATERIAL OR EVIDENCE OTHERWISE WHAT IS APPARENT FROM THE RECORD HAS TO BE ACCEPTED THAT IS ASSESSEE HAS RECEIVED THE SAID AMOUNT FROM THE BUILDER. THUS THE ASSESSEES PLEA THAT THE AMOUNT OF RS.24 11 438/ - HAS NOT BEEN RECEIVED FROM THE BUILDER IS DEVOID OF ANY MERITS AND IS COMPLETELY UNSUBSTANTIATED WHICH CANNO T BE UPHELD AT ALL. RATHER THERE APPEARS TO BE SOME MERIT IN THE CONTENTION OF THE LD. DR THAT THE ASSESSEE HAD RECEIVED FURTHER SUM OF RS.6 80 000/ - FROM THE NOMINEE WHICH IS OVE R AND ABOVE THE AMOUNT RECEIVED FROM THE BUILDER. HOWEVER WE ARE NOT ENTERING INTO THIS ASPECT BECAUSE IT IS NEITHER THE CASE OF THE AO NOR THAT OF CIT(A) THAT THIS AMOUNT OF RS.6 80 000/ - IS OVER AND ABOVE RS.24 11 438/ - AS THIS ASPECT HAS NOT BEEN COMME NTED UPON BY EITHER BY THE ASSESSING OFFICER OR BY