Kailash Chand Garg, Kota vs Assessee

Kailash Chand Garg, Kota vs Assessee on 13 February, 2015 vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM vk;dj vihy la-@ITA No. 688/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2006-07 Kailash Chand Garg cuke The ITO Thru: Legal Heir Smt. Vs. Ward- 2 (2) Manju W/o deceased Kota assessee Prop.: Garg Sari Centre, Kota LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AABPG 6896 J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri C.M. Birla, CA jktLo dh vksj ls@ Revenue by :Shri Ajay Malik Sr. DR. lquokbZ dh rkjh[k@ Date of Hearing : 03/12/2014 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 13/02/2015 vkns'k@ ORDER PER R.P. TOLANI, JM This is an appeal filed by the assessee against the order of the ld. CIT(A)-Kota dated 06-07-2012 for the assessment year 2006-07 wherein the ground as raised and modified by the assessee is as under. ''That under the facts and circumstances of the case ld. CIT(A) erred in confirming deduction of cost of plot 2 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . together with cost of improvement thereon and its indexation benefit from Long term capital gain of Rs. 14,89,520/-.'' 1. Brief facts of the case are that the assessee disclosed capital gain on sale of plot for Rs. 11,41,000/- on which Long term capital gain were offered after deducting the cost of acquisition, improvement and indexation benefits.

Ld. AO asked for the explanation regarding the cost of acquisition and the stamp circle rate / stamp value of the property, which was found to be at Rs. 14,89,520/- and consequent applicability of Section 50C thereon. The assessee furnished following reply. ''(A) the appellant purchased semi constructed plot with unfinished boundary wall in the name of his sister Smt. Manju Dhanka during F.Y. 1991-92 from Shri Arum Kumar Gupta, 28/430, Gumanpura Kota, vide agreement dated 14-09-1991. Details of expenses incurred in F.Y. 1991-92 were as under:- (B) (i) lease rent payment made to Rajasthan Housing Rs. 8,300/- Board. (ii) Stamp expenses for getting registration from Rs. 22,998/- Rajasthan Housing Board. (iii) Payment made to Sh Arun Kumar Gupta (Vendor) Rs.1,98,811/- (iv) Stamp expenses on 09-03-1992 Rs. 23,635/- (v) Registration expenses on 10-03-1992 Rs. 17,496/- (vi) Expenses incurred on getting boundary wall Rs. 29,051- repaired. Total Rs. 2,97311/- 3 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . (a) F.Y. 1991-92 Rs. 2,97,311/-. This is evident from zerox copy of deed of purchase of plot, copy whereof has been furnished by me vide annexure A of letter dated 02-06-2008.

In my said letter it has been very categorically mentioned by me that it is from my undisclosed income. I submit if at all it is taxable it is in A.Y. 1992-93 which is time barred.'' 1.1 Apropos applicability of Section 50C, the assessee gave an ambivalent reply as under: ''Letter dated 25-07- 2008 - It is true that stamp duty authorities is consonance to provision of Section 54 have estimated market value of property for determination of stamp duty at Rs. 14,89,520/- and therefore, provision of Section 50C of I.T. Act, 1961 are applicable on me. However, I submit that as this property was in name of my sister Manju Dhanuka who was my benami and as I was worrying that she or her relations may trouble me and therefore, I had sold the property in whatever price I could get under these circumstances I submit provisions of Section 50C may not be attracted. I may also submit that as I had disclosed all these facts voluntary even if I am subject to additional capital gain penalty u/s 271(1)( c) should not be attracted on me. Letter dated 02-12-2008 - During assessment proceedings vide para 4 of my letter dated 24-07-2008, I myself have submitted that value determined by stamp duty authorities for the purpose of stamp duty levy is Rs. 14,89,520/-.

However, I had advanced strong reasoning that why consideration received by me at Rs. 11,41,000/- be not interfered. I retreat the same and request your honour not to disturb the sale consideration. '' 4 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . 1.2 On verification of facts and enquiries in this behalf ld. AO observed as under:- B) Investment of Rs. 2,97,311/- were neither appearing in regular books of account nor shown in financial statements to ROI for Asstt. Year 1992-93. 1.3 During F.Y. 2002-03 appellant spent Rs. 77,726/- on boundary wall replacement which is appearing in his balance sheet appended to ROI for assessment year 2003-04, however further details of Rs. 77,726/- is not available. It is appearing in balance sheet for assessment year 2004-05 and 2005-06 also. 1.4 During F.Y. 2004-05 appellant spent Rs. 39,400/- details are as under:- (i) Lease money paid to Rajasthan Housing Rs. 12,500 Board vide R.No.7935 dtd 15-03-05 (ii) Lease money paid to Rajasthan Housing Rs. 12,500 Board vide R.N. 8014 dtd 16-03-05 (iii) Lease money paid to Rajasthan Housing Rs. 12,500 Board vide R.N.

8047 dtd 18-03-05 (iv) Lease money paid to Rajasthan Housing Rs. 1,897 Board vide R.N. 8066 dtd 18-03-05 A sum of Rs. 39,400/- is appearing in books of account and financial statements appended to ROI for assessment year 2005-06'' 1.3 The AO further observed as under:- 'fu/kkZfjrh }kjk izLrqr tokc dk v/;;u fd;k x;k rFkk miyC/k lk{;ks]a izek.kksa ,oa rF;ksa dks ns[kus ds ckn bl ekeys esa fuEu rF; izkIr gksrs gSa %& 5 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . 1- bl lEiw.kZ foØ; jkf'k dks mijksDrkuqlkj bl o"kZ Hkh v?kksf"kr vk; ekuk tk jgk gSa D;ksfa d fu/kkZfjrh ftl o"kZ esa v?kksf"kr fofu;ksx djuk crk jgk gS mldk mlds ikl dksbZ ekU; nLrkosth lcwr ekStnw ugh gS ftlls fd og ;g lkfcr dj lds fd mlus ;g v?kksf"kr fofu;ksx mlh o"kZ esa fd;k gSa A 2- blds vykok tks fofu;ksx fofRr; o"kZ 2002&03 esa :-77726@& rFkk fofRr; o"kZ 2004&05 :-39400@& gksuk crk;k gS] bls fu/kkZfjrh us viuh cSy'sa k 'khV esa :- 77726@& dks IykV ,Mokal ds uke ls fn[kk;k gSa A ml cSy'sa k 'khV esa ;g ugh n'kkZ;k x;k gS fd fd;k x;k fofu;ksx flQZ IykWV ds fy, gS A lkFk gh fu/kkZfjrh bl lEcU/k esa dksbZ nLrkosth lcwr Hkh is'k ugh dj ik;k gS A vr% fu/kkZfjrh dk dFku ekuus ;ksX; ugh gSa A blh izdkj buds HkkbZ dh ifRu }kjk fofRr; o"kZ 2004&05 esa :-39400@& dj fofu;ksx djuk crk;k gS ftlds fy, ,usDpj&lh lcwr ds :i esa izLrqr fd;k gSa A bl ,usDpj lh dks ns[kus ij cSy'sa k 'khV esa ^^Due from Smt.Manju Dhanuja" ds uke :-40256@& lEifRr i{k esa n'kkZ j[ks gS ftlls dgh Hkh ;g lkfcr ugh gksrk gS fd ;g jkf'k bl csps x;s IykWV esa fofu;ksx dh gS A ;g ckr fu/kkZfjrh ds dFku o rF;ksa esa fojks/kkHkkl gh n'kkZrh gS A 3- fu/kkZfjrh }kjk bl IykWV ds lkSns dh jkf'k dks blh o"kZ v?kksf"kr fofu;ksx dgrs gq;s fn[kk;k gS tks fd fu/kkZfjrh dh ea'kk dks n'kkZrk gS A ;fn ;gh fofu;ksx fu/kkZfjrh }kjk fiNys o"kksZ esa gh fn[kk;k gqvk gksrk rks fu/kkZfjrh dk nkok Lohdkj ;ksX; gksrk A pwWafd rF; blds foijhr gS] vr% fu/kkZfjrh ds bl nkos dks fujLr fd;k tkrk gS fd fofu;ksx iwoZorhZ o"kksZ esa fd;k x;k gSa A 4- ;fn fu/kkZfjrh ls xyrh gks gh xbZ vkSj mls bldk izk;f'pr djuk gh Fkk rks mls bl v?kksf"kr fofu;ksx dks foHkkx dh ohMhvkbZ,l 97 ;kstuk ds le; ?kksf"kr dj fn;k tkuk pkfg, Fkk tks fd ugh fd;k x;k gSa A 5- fu/kkZfjrh 'kq: ls gh izkQ s 's kuy ds :Ik esa ,d lhfu;j pkVZM ,dkmUVs.V dh lsok,Wa ysrk jgk gS A ,sls esa mldk ;g dguk fd mls izko/kkuksa dh tkudkjh ugh gS lR; izrhr ugh gksrk gS A tcfd lHkh lanfHkZr cSyUs 'k 'khVl~ dh izfof"V;kWa mldh ns[kjs[k esa rS;kj dh xbZ gS rFkk mUgsa fu/kkZfjrh us vius gLrk{kj ls lR;kfir fd;k gS A 6- fu/kkZfjrh ds dFkukuqlkj budh cgu Jherh eUtw /kkuqdk xEHkhj :i ls chekj ¼dksek es½a gS fdUrq bldk dksbZ lcwr izLrqr ugh fd;k x;k A pwWfa d fu/kkZfjrh us v?kksf"kr fofu;ksx ds ekeys esa lgh rF; ugh crk;s gSa ] vr% ;g Hkh lEHko gS fd ;g dFku Hkh fu/kkZfjrh dk lR; ugha gksa A 6 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota .

7- fu/kkZfjrh }kjk le;≤ ij fnukad 03-06-2008] 25-07-2008 ,oa 02-12-2008 dks izLrqr tokc esa Lo;a us v?kksf"kr fofu;ksx Lohdkj fd;k gS ,sls esa bl IykV dh fcØh dh jkf'k dks fu;fer ?kksf"kr L=ksr ls vk; dSls ekuh tk ldrh gS 8- pwWfa d fu/kkZfjrh us mijksDr jkf'k izFke ckj pkyw fofRr; o"kZ dh ys[kk iqLrdksa esa iwWt a h [kkrs ds vuqlkj n'kkZ;h gS rFkk iwoZorhZ fuos'kksa dh ?kks"k.kk fdlh Hkh fofRr; o"kZ esa leqfpr ,oa ekU; rjhds ls ugh dh gS] vr% vk;dj izko/kkuksa ds vuqlkj iwoZorhZ v?kksf"kr fuos'k dk lek;kstu ugh fn;k tk ldrk gS A lkFk ngh v?kksf"kr vk; ds isVs mijksDr ifjfLFkfr;ksa esa fu/kkZfjrh dks bUMsDls'ku dk ykHk Hkh ugh fn;k tk ldrk ,oa fu/kkZfjrh dk ;g nkok Hkh rnuqlkj [kkfjt fd;k tkrk gS A ;gkWa ij ekuuh; loksZP; U;k;ky; }kjk Medowell na d Co. Limited Vs Commercial Tax Office (154 ITR 148) esa fn;k x;k fu.kZ; rFkk ekuuh; cEcbZ mPp U;k;ky; }kjk Smt.Nayna tara G.Agarwal Vs Commisis oner of Income Tax (207 ITR 639) esa fn;s x;s fu.kZ;ksa dks /;ku esa j[kk x;k gS tks fuEu gS %& 1.4 In view of the material, facts and judicial precedents, ld. AO held it to be a colourable transaction and applied the ratio of Hon'ble Supreme Court in the case of Mcdowell and Co. Ltd. vs. Commercial Tax Officer , 154 ITR 148 which has been relied on in the case of Hon'ble Mumbai High Court in the case of Smt. Nayantara G. Agarwal vs. CIT , 207 ITR 639 by holding as under. ''While considering device to avoid tax, it is not to ask whether the provision should be construed literally or liberally, nor whether the transaction is not unreal and not prohibited by the statute but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it.

It is up to the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and to consider whether the situation created by the devices could be related to the existing legislation with the aid of emergence 7 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . techniques of interpretation to expose the devices for what they really are and to refuse to give judicial benediction . The Courts in such a case should not lay undue emphasis on the language of each individual document as that is not determinative of the controversy. What is really necessary to be considered in such cases is the true nature and effect of the transaction.'' 1.5 In conclusion ld. AO held that stamp / circle rate value of the property i.e. Rs. 14,89,520/- was income from other sources which accordingly was added to the income of the assessee. 2. Aggrieved, the assessee preferred first appeal before the ld. CIT(A) who held this amount to be in nature of Long term capital gain and not in the nature of income from other sources. However the expenditure towards cost of acquisition, improvement and benefits of indexation as claimed by the assessee were denied in view of overriding proviso of Section 69C of the Act by following observations. ''Before me the assessee did not dispute application of Section 50C .

Accordingly, the action of Assessing Officer in taking full value of consideration at Rs. 14,89,520/- is upheld. Now dispute remains regarding assessee's claim for allowing following expenses:- ''Cost of purchase of plot incurred during F.Y. 1991-92 Rs. 297311/- and its index cost at Rs. 7,42,530 Cost of boundary wall incurred during F.Y. 2002-03 Rs. 77726/- and in index cost at Rs. 86,420 8 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . Lease Rent payment of Rs. 39400/ in F.Y. 2004-05 and its index cost at Rs. 4,07,905 total index cost Rs. 8,69,745'' These items are deal hereunder:- (i) Cost of purchase Rs. 2,97,311/- Before Assessing Officer the assessee submitted that the above expenditure was incurred in following manner:- ''Investment of Rs. 2,97,311/- in F.Y. 1991-92 represents payment of Rs. 1,95,811/- to Shri Arun Kumar Gupta, Vendor of the plot, stamp cost Rs. 23,655/-, Registration expenses Rs. 17,496/- and further expenses of Rs. 60,349/- thereon. I may submit I had purchased the plot from my undisclosed income in name of my sister Smt. Manju Dhanuka'' In relation to expenses of Rs. 60,349/- (out of Rs. 2,97,311/-) the assessee submitted that these were incurred as under:- ''1. that expenses of Rs. 60,349/- incurred in the year 1991-92 includes as under:- (a) Rs. 22998/- being stamp expenses incurred for getting the registration from Housing Board in name of Arun Kumar Gupta Rs. 22,998/- (b) Payment made to Rajasthan Housing Board Rs. 8,300/- © Expenses incurred on getting repairs Rs. 29,051/- Rs. 60,349/- However, before me the expenses of Rs. 60,349/- were claimed to be incurred on construction of boundary wall.

Accordingly out of Rs. 27,937/- details in relation to Rs. 60,349/- were contradictory and cannot be accepted. 9 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . Out of remaining expenses, there was no evidence in relation to expenses of Rs. 17,496/-. The remaining expenditure cannot be treated as spent for purchase of plot, this expenditure comes to Rs. 2,19,466/- As per Section 48 , this expenditure is allowable as cost of acquisition. However, the Assessing Officer did not allow the expenses as entire expenses were admittedly undisclosed. In my opinion, in such cases Section 69C is directly applicable. For ready reference, the same is reproduced below:- ''Where in any financial year an assessee has incurred any expenditure and he offers no explanation about the source of such expenditure or part [Assessing] officer, satisfactory, the amount covered by such expenditure or part thereof, as the case may be deemed to be the income of the assessee for such financial year; Provided that, notwithstanding anything contained in any other provision of this Act, such unexplained expenditure which is deemed to be the income of the assessee shall not be allowed as a deduction under any head of income.'' The above unexplained expenditure of Rs. 2,19,466/- incurred by assessee was taxable u/s 69C in A.Y.92-93, the same was not taxed due to time baring provisions.

But the proviso to Section 69C is clearly applicable. As per Section 69C no unexplained expenditure shall be allowed as a deduction under any head of income. Accordingly it is held that no expenditure out of Rs. 297311/-is allowable against sale of plot by assessee. (ii) cost of boundary wall Rs. 77726/- (iii) cost of lease rent payment Rs. 40,795/- 10 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . For the reasons, given by Assessing Officer in his order (reproduced earlier), it is clear that assessee failed to substantiate the claim that these expenses were incurred from explained sources, the same were treated undisclosed expenditure. As held earlier such expenses are not allowable as per provisions of Section 69C . Accordingly, it is held that no expenditure can be allowed due to overriding effect of Section 69C of the I.T. Act. However, as the amount is taxed under the head capital gain Assessing Officer is directed to charge tax applicable for Long term capital gain. This ground of appeal is, therefore, partly allowed.'' 2.1 Thus as a result of appeal order and the income of the assessee was held as income from Long term capital gain liable to tax @ 20% in variance to AOs order hold the amount as Income from other sources taxable @ 30%.

3. Aggrieved, the assessee is in appeal before us on above ground. It is accepted and claimed by the assessee that though the property was purchased Benami and no cost of acquisition was shown in the books of account; nevertheless nothing can be held against the assessee as breach of law was committed in assessment year 1992-93 and subsequent years which are time barred and Revenue cannot reopen them. As per sec. 48 11 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . assessee is eligible to claim stipulated deduction, irrespective of their showing in the books, relevant deductions are allowable as per law. 3.1 Ld. Counsel for the assessee contends that ld. CIT (A) has accepted the fact that property in question was owned by the assessee albeit as Benami property, only the cost of acquisition, improvement and indexation has been denied as they are not reflected in the books of accounts. The revenue has not challenged the finding of ld. CIT(A) in respect of ownership and the asset being long terms benami property. Therefore, the issue about the assessee being Benami owner of the property in question is not in dispute.

3.2 Section 69C of the Act reads as under. ''69C Where in any financial year an assessee has incurred any expenditure and he offers no explanation about the source4 of such expenditure or part thereof, or the explanation, if any, offered by him is not, in the opinion of the [Assessing] Officer, satisfactory, the amount covered by such expenditure or part thereof, as the case may be deemed to be the income of the assessee for such financial year:] [Provided that, notwithstanding anything contained in any other provision of this Act, such unexplained expenditure which is deemed to be income of the assessee shall not be allowed as a deduction under any head of income.]'' 12 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . The ld. Counsel for the assessee contends that once section 50C is held to be applicable and the transaction is held to be long term capital gain, a finding which is not challenged by the revenue: in this eventuality the provisions of section 48 will be automatically applicable with necessary consequences are provided by sec 48. 3.3 It is contended that where in any financial year an assessee has incurred any expenditure and he offers no explanation about the source of such expenditure or part [Assessing] Officer, satisfactory, the amount covered by such expenditure or part thereof, as the case may be, may be deemed to be the income of the assessee for such financial year ; Provided that, notwithstanding anything contained in any other provision of this Act, such unexplained expenditure which is deemed to be the income of the assessee shall not be allowed as a deduction under any head of income.'' From plain reading of Section 69C it will be observed that ld.

CIT(A) has misdirected himself, as on one hand sale consideration of the property has been deemed at Rs. 14,89,520/- specifically applying sec. 50C as against Rs. 11,41,000/- disclosed by the appellant as Long term capital gains. Department has not preferred second appeal against this issue. Once provisions of Section 50C is applied, capital gain is supposed to be computed in consonance to provisions of Chapter IV-E and deduction u/s 13 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . 48 for the cost of acquisition and assets and cot of its improvement has to be deducted from sale consideration/ deemed sale consideration u/s 50C . Besides, indexed benefit u/s 48 is also to be given. 3.4 Both the lower authorities have not disputed investment of Rs. 195811/- + Rs. 23635/- = 219446/-, Ld. CIT(A) has wrongly taken it at Rs. 219466/-. Though the AO has not disputed investment of Rs. 22998+29051 = 60349 also but as in one submission before ld. CIT(A) it was stated to be Boundary wall whose construction expenses are borne by appellant. This mistake was however corrected before the AO vide letter dated 24-07-2008, which is reproduced by the AO in body of order.

The ld. CIT(A) further mentioned that evidence in relation to expenses of Rs. 17946/- is not available. In fact, it is appearing in purchase deed dated 10- 03-1992 ad AO also has not disputed it. The ld. CIT(A) has rejected claim of improvement Rs. 77726/- and Rs. 39400/- (it is wrongly mentioned by him Rs. 40795) on the reasoning that assessee fail to substantiate the claim that these expenses were incurred from explained sources. It is not true. Investment of Rs. 77726/- is verifiable from balance sheet of the appellate and Rs. 39400/- from balance sheet of Garg Sari Emporium. These are evident from PB 39 to 41 & 42 which were available with both 14 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . lower authorities. Besides, it is further supported with capital account for assessment year 2006-07 also. Moreover, once expenses are proved with evidence even if it is not from explained source the same is to be deducted. 3.5 The ld. Counsel for the assessee contends that once section 50C is to be held applicable and the asset and sale thereof is held to be long term capital gains, the provision of section 48 will be automatically applicable as necessary consequences are provided as under:- '' Section 48 .The income chargeable under the head 'capital gains' shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely:- (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) the cost of acquisition of the asset and the cost of any improvement thereto;'' 3.6 It is pleaded that what is important from the point of view of section 48 is the cost of acquisition and not, whether it was disclosed in the books of account or not.

Therefore, having held the assessee as owner of the property, the cost of acquisition and consequent benefits under section 48 are to be allowed to the assessee. 15 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . 4. The ld. DR on the other hand vehemently contends that the assessee is making brilliant attempt of admitting the violation of law in not disclosing the cost of property in his books, and dares to capitalize it by claiming the lawful benefits qua his unlawful acts. It is being brazenly asserted that that those assessments are barred by limitation and revenue can do nothing about it. Looking at the nefarious design, ld. AO added entire amount as taxable in the hands of the assessee as Income from other sources. Ld CIT(A) has confirmed the action albeit as long term capital gains taxable at a lower rate. Therefore, the Revenue did not file appeal against the order of the ld. CIT(A) as the amount was confirmed. 4.1 Adverting to the observation of the ld. CIT(A), it is contended that section 69C postulates that such expenditure which are not shown in the books of accounts should not be claimed for benefit under any other provision of the Act.

The assessee has accepted the finding that the cost of acquisition was unexplained expenditure of the assessee for assessment year 1996-97 consequently it is deemed income of the assessee for that year as for as sec. 69C is concerned; it so because proviso has an overriding effect being a non obstante clause. It is applicable at the time of claim of benefit by the assessee in this behalf. Consequently the 16 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . assessee's claim cannot go beyond the mandatory stipulation of proviso to Section 69C of the Act. Therefore by the operation of law itself the benefits can not be allowed as deduction under any head of income. Thus, the ld. CIT(A) has rightly held the cost of acquisition to be nil, resultantly no indexation will be allowable to the assessee. 4.2 Apropos the assessee's contention that the he had debited amounts of Rs.77,726/- and Rs.39,400/- from the balance sheet of the assessee in M/s. Garg Saree Emporium for assessment year 2004-05 and capital gain for assessment year assessment year 2006-07 has no basis. The only thing mentioned in balance sheet for assessment year 2004-05 is - 'plot advance' and it does not refer to any cost of improvement.

Similarly in account for assessment year 2006-07 again, the only reference is of - ''cost of plot transfer'' there is again no mention about cost of improvement or boundary wall construction. Thus the story is fabricated by the assessee as an afterthought to evade maximum tax by such unfounded claims. The assessee has acted in a very indiscreet manner by not disclosing the Benami property and without making any investment in the books of account towards improvement of this property. Assessee as is obvious is a clever person well versed with the intricacies of law. It is 17 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . unbelievable that he will dare to show expenditure of improvement for the property which is originally not disclosed in his earlier books at all. 4.3 It is contended that in empirical terms this is a fit case where the assessee's entire income in this behalf shall be treated as income from other sources. The materials available on record shows that the assessee has audacity to claim that though he has evaded taxes in past by not disclosing the cost of acquisition, nevertheless allow me all claims and no harm can be done by the Revenue for past years as assessments are by now time barred.

It is further pleaded that if such types of assessee's are allowed to go scot free, it will amount to travesty of justice. It will send totally a wrong message to the tax evaders. The order of the Ld. CIT(A) is relied on. 5. We have heard the rival contentions and perused the materials available on record. The case before us poses a peculiar situation where the assessee concedes that cost of acquisition is not disclosed in the books of account and at least the amount of Rs.77,726/- and Rs.39,400/- is disclosed in the books of account. The claims have no basis and assessee is trying to be maneuver in the trouble waters. We have perused the much touted relevant balance sheet and capital account of the 18 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . assessee. Only words written against this amount is plot advance which does not mean to be incurred towards construction of the boundary wall, it may be towards some other plot for which assessee is not coming clean. Besides the assessee is blowing hot and cold, in 1992-93 he has not shown cost of acquisition/purchase value of the alleged property in other years no direct evidence has been given except relying on some mischievous entries sometimes in balance sheet or in capital gain.

It is difficult to believe that this clever assessee will dare to show cost of improvement in books qua the property whose cost is not shown in the earlier books. Thus the assessee's contentions lack any type of sincerity or corroboration worth appealing to logic. We do not see any infirmity in the order of the ld. CIT(A) in invoking the overriding proviso to sec. 69C . As per assessee's own acceptance in A.Y. 1992-93, no cost of acquisition was disclosed in his books of accounts, therefore by deeming provisions of sec 69C the same is deemed to be unexplained expenditure of the assessee on which proviso to sec 69C of the Act has overriding effect. Assessee audacious claim may be right that nothing can be brought to tax as assessments for those years are now time barred, but the proviso expressly debars allowance of any benefit in this behalf. Having accepted 19 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . this proposition, the ld. CIT(A)'s order deserves to be upheld as the benefits of such unrecorded expenditure cannot be claimed by the assessee in any year by this overriding proviso.

As already mentioned apropos alternate contention of allowing the amount of Rs.77,726/- and Rs.39,400/-, we have already rejected the assessee's claim being without any basis and it digress from the issue. 6. There is another provision of law which denies any such benefit to assessee in the form of sec. 4 of THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988. Sec. 4 thereof reads as under: ''4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.'' This law was introduced as an overriding law as mentioned in sec. 3 to curb the pernicious practices of Benami Transaction and denying the benefits of enjoyment of Benami property to real owner.

Sec. 4(1) clearly 20 ITA No. 688/JP/2012 Shri Kailash Chand Garg vs. ITO, Ward- 2 (2), Kota . forbids any claim or action from real owner in respect of any Benami property. Thus assessee's claim for benefits u/s 48 are also denied by this specific and overriding law which is fully applicable to this case. Consequently the order of Ld. CIT(A) is upheld in toto. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on 1302/2015. Sd/- Sd/- ¼Vh-vkj-ehuk½ ¼vkj-ih-rksykuh½ (T.R. Meena) (R.P.Tolani) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 13th FEB, 2015 *Mishra vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Kailash Chand Garg (deceased) thru L/H Smt. Manju Garg W/o deceased assessee 2. izR;FkhZ@ The Respondent- The ITO, Ward- 2 (2), Kota 3. vk;dj vk;qDr¼vihy½@The CIT(A). 4. vk;dj vk;qDr@ CIT, Jaipur 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No.688/JP/2012) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar