Shri Jaswantlal K.Patel, Ahmedabad V. The ACIT.,(OSD),Circle-0, Ahmedabad

CO 111/AHD/2009

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2868 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 11 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 24-03-2017
• Assessment Year: misc
• Appeal Filed On: 05-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Unexplained expenditure; Loose papers; Document seized; Additional evidence; Corroborative evidences; Block assessment; Documents seized
• Section: 69C; 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NO. 325/AHD/2010 (BLOCK ASSST. FROM 01.04.1986 TO 21.01.1997) SHRI BHAGWANBHAI K PATEL 61, 62, MAYUR PARK SOCIETY, BAPUNAGAR, AHMEDABAD APPELLANT VS. ASST. CIT(OSD), CIRCLE 9, AHMEDABAD RESPONDENT & IT(SS)A NO. 465/AHD/2010 (BLOCK ASSST. FROM 01.04.1986 TO 21.01.1997) ASST. CIT(OSD), CIRCLE 9, AHMEDABAD APPELLANT VS. SHRI BHAGWANBHAI K PATEL 61, 62, MAYUR PARK SOCIETY, BAPUNAGAR, AHMEDABAD RESPONDENT PAN: ABAPP0653M & IT(SS)A NO. 326/AHD/2010 (BLOCK ASSST. FROM 01.04.1986 TO 21.01.1997) M/S. SHYAM GROUPS - 2 - SHRI ARVINDBHAI PRAGJIBHAI PATEL 57/58, MAYUR PARK SOCIETY, BAPUNAGAR, AHMEDABAD APPELLANT VS. THE DY. COMM. OF INCOME TAX (OSD), CIRCLE 9, AHMEDABAD RESPONDENT & IT(SS)A NO. 466/AHD/2010 (BLOCK ASSST. FROM 01.04.1986 TO 21.01.1997) ASST. CIT(OSD), CIRCLE 9, AHMEDABAD APPELLANT VS. SHRI ARVINDBHAI PRAGJIBHAI PATEL 57/58, MAYUR PARK SOCIETY, BAPUNAGAR, AHMEDABAD RESPONDENT PAN: ABAPP0656Q & IT(SS)A NO. 76/AHD/2010 & CROSS OBJECTION NO. 45/AHD/2013 (IN IT(SS)A NO. 34/AHD/2013) (BLOCK ASSST. FROM 01.04.1986 TO 21.01.1997) SHRI KALYANBHAI K PATEL G-8, S.K. COMPLEX, THAKKARBAPA NAGAR ROAD, BAPUNAGAR, AHMEDABAD APPELLANT/ CROSS OBJECTOR M/S. SHYAM GROUPS - 3 - VS. THE DY. COMM. OF INCOME TAX (OSD), CIRCLE 9, AHMEDABAD RESPONDENT & IT(SS)A NOS. 67/AH D/2010 & 34/AHD/2013 (BLOCK ASSST. FROM 01.04.1986 TO 21.01.1997) ASST. CIT(OSD)/D.C.I.T. (OSD), CIRCLE 9, AHMEDABAD APPELLANT VS. SHRI KALYANBHAI K PATEL G-8, S.K. COMPLEX, THAKKARBAPA NAGAR ROAD, BAPUNAGAR, AHMEDABAD RESPON DENT PAN: ABYPP8096Q & IT(SS)A NO. 139/AHD/2007 WITH CROSS OBJECTION NO. 111/AHD/2009 (BLOCK ASSST. FROM 01 .04.1986 TO 21.01.1997) ASST. CIT(OSD), CIRCLE 9, AHMEDABAD APPELLANT VS. SHRI JASWANTLAL K. PATEL SHYAM FARM BUNGALOWS, NR. BUS STAND, NR. POLICE BOOTH, M/S. SHYAM GROUPS - 4 - NAVA NIKOL NARODA ROAD, NIKOL, AHMEDABAD RESPONDENT / CROSS OBJECTOR PAN: ABTPP8098A /BY ASSESSEE : MR. ASEEM THAKKAR, A.R. /BY REVENUE : MR. S. L. MEENA, CIT(A) D.R. /DATE OF HEARING : 24.03.2017 /DATE OF PRONOUNCEMENT : 25.05.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS IS A BATCH OF TEN CASES PERTAINING TO FOUR DIF FERENT ASSESSEES S/SHRI BHAGWANBHAI K PATEL, ARVINDBHAI P PATEL, KALYANBHAI K PATEL AND JASWANTBHAI K PATEL. THE RELEVANT ASSESSMENT YEAR IN ALL THESE CASES IS BLOCK PERIOD FROM 01.04.1986 TO 21.01.1997. THE CIT(A)-X V, AHMEDABAD HAS EXERCISED LOWER APPELLATE JURISDICTION IN PASSING T HE ORDERS UNDER CHALLENGE IN THESE CASES. 2. FIRST ASSESSEE BHAGWANBHAI K PATEL IS INVOLVED I N TWO CASES I.E. HIS APPEAL IT(SS)A NO. 325 AND 465/AHD/2010 (REVENUES CROSS APPEAL) EMANATING FROM THE CIT(A)S ORDER IN APPEAL NO. CIT (A)- XV/DCIT/OSD/CIR.9/181/07-08 DATED 31.01.2008, IN PR OCEEDINGS U/S.158BC/245HA OF THE INCOME TAX ACT, 1961; IN SHO RT THE ACT. 3. SECOND ASSESSEE SHRI ARVINDBHAI P PATEL INVOLVES TWO CASES I.E. HIS APPEAL IT(SS)A NO.326 & 466/AHD/2010 (REVENUES CRO SS APPEAL) ARISING AGAINST THE CIT(A)S ORDER DATED 31.01.2008 IN CASE NO. CIT(A)- M/S. SHYAM GROUPS - 5 - XV/DCIT/OSD/CIR.9/185/07-08, IN PROCEEDINGS U/S.158 BC/245HA OF THE ACT. 4. THERE ARE TOTAL FOUR CASES PERTAINING TO THE THI RD ASSESSEE SHRI KALYANBHAI PATEL. HE AND REVENUE HAVE FILED CROSS APPEAL IT(SS)A NOS. 76 & 67/AHD/2010 AGAINST THE CIT(A)S ORDER DATED 31.0 1.2008 IN CASE NO. CIT(A)-XV/DCIT/OSD/CIR.9/189/07-08, IN PROCEEDINGS U/S. 158BC/ 143(3)/ 245HA OF THE ACT. THE REVENUES LATTER APPEAL IT(S S)A NO.34/AHD/2013 ALONGWITH ASSESSEES CROSS OBJECTION CO NO. 45/AHD/ 2013 THEREIN EMANATE AGAINST THE CIT(A)S ORDER DATED 03.10.2012 IN CASE NO. CIT(A)- XV/DCIT/OSD/CIR.9/95/10-11, IN PROCEEDINGS U/S.158B FA(2) R.W.S. 158BFA(3) OF THE ACT. 5. LAST ASSESSEE JASWANTLAL K PATEL IS A PARTY IN T WO CASES I.E. REVENUES APPEAL IT(SS)A NO. 139/AHD/2007 AND HIS CROSS OBJEC TION THEREIN CO NO.111/AHD/2009 ARISING FROM THE CIT(A)S ORDER DAT ED 06.07.2007 IN CASE NO. CIT(A)-XV/AC.CIR.9/221/06-07, IN PROCEEDINGS U/ S.158BC R.W.S. 158BD R.W.S. 143(3) AND 254 OF THE ACT. 6. BOTH THE LEARNED REPRESENTATIVES INFORM US AT TH E OUTSET THAT THE ABOVESTATED ASSESSEES SHRI BHAGWANBHAI AND KALYANBH AI ARE REAL BROTHERS. SHRI ARVINDBHAI C PATEL HEREINABOVE IS THEIR NEPHEW WHEREAS THE OTHER ASSESSEE SHRI JASWANTBHAI K PATEL IS SON OF SHRI KA LYANBHAI. FIRST ASSESSEE SHRI BHAGWANBHAI IS STATED TO BE A PARTNER IN M/S. SHYAM ORGANISERS , SHYAM CORPORATION AND SHYAM DEVELOPERS. HE ALONGWITH HIS BROTHER KALYANBHAI AND NEPHEW ARVINDBHAI ESTABLISHED M/S. SHREE SHYAM CONSTRUCTION COMPANY. THESE FOUR ASSESSEES SPLIT THEREAFTER. S HRI BHAGWANBHAI AND SHRI ARVINBHAI SET UP THREE FIRMS M/S. SHAYM ORGANISERS, SHAM CORPORATION AND M/S. SHYAM GROUPS - 6 - SHYAM DEVELOPERS. LATTER TWO ASSESSEES/FATHER SON DUO OF SHRI KALYANBHAI AND JASWANTBHAI ESTABLISHED M/S. SHYAM BUILDERS. 7. THE DEPARTMENT CARRIED OUT THE SEARCH IN QUESTIO N ON 21.01.1997 CULMINATING INITIATION OF THE IMPUGNED BLOCK ASSESS MENT PROCEEDINGS U/S.158BC R.W.S. 158BD IN RESPECTIVE CASES. THIS S EARCH ACTION INVOLVED SEIZURE OF CASH SUMS, KILOGRAMS OF SILVER, DUPLICAT E BOOKS OF ACCOUNTS, DIARIES, LOOSE PAPERS ETC. FROM DIFFERENT SEARCHED PLACES/ASSESSEES. SHRI BHAGWANBHAI AND ARVINDBHAI FILED PETITIONS BEFORE T HE INCOME TAX SETTLEMENT COMMISSION. THEY ATTACHED CASH FLOW/FUN D FLOW STATEMENTS WITH THEIR RESPECTIVE PETITIONS. THE SAID COMMISSION AB ATED THE SAME ON 22.10.2007 ON ACCOUNT OF NON PAYMENT OF INTEREST U/ S.245D(2D) ON ACCOUNT OF THE FACT THAT DELAYED PAYMENT OF TAXES HAD NOT B EEN MADE. MR. THAKKAR POINTS OUT THAT THE ASSESSEES HAD ALREADY PAID TAX AND INTEREST WHILST TAKING RECOURSE TO THE ABOVE SETTLEMENT REMEDY. HE FURTHE R INFORMS US THAT THE SETTLEMENT COMMISSION CONCLUDED M/S. SHYAM ORGANISE RS PETITION ON 09.02.2015 I.E. POST FACTO ALL CIT(A)S ORDERS SUBJ ECT MATTER OF CHALLENGE IN THE INSTANT BATCH OF APPEALS. THE SETTLEMENT COMMI SSION ALSO APPEARS TO HAVE SOUGHT DEPARTMENTS FIELD AUTHORITIES COMMENT S ON THE SAID ASSESSEES CASH FLOW STATEMENT AND WRITTEN SUBMISSIONS WHO CHO SE NOT TO DISPUTE CORRECTNESS THEREOF. THE SETTLEMENT COMMISSION THE N FINALIZED PROCEEDINGS IN M/S. SHYAM ORGANISERS CASE ON 09.02.2015. IT N OT ONLY ACCEPTED THE ABOVE CASH FLOW STATEMENT BUT ALSO THE ABOVE SEIZED DUPLICATE BOOKS OF ACCOUNT AS WELL. MR. THAKKAR SEEKS TO HIGHLIGHT TH E FACT THAT THE FIRST ASSESSEE MR. BHAGWANBHAI IS THE PERSON ADDRESSED AS KAKA WHO ACTED AS THE AUTHORIZED PERSON FOR THE LAND TRANSACTIONS IN QUES TION. HE STATED TO HAVE BEEN HANDED OVER ALL RECEIPTS FORMING PART OF THE C OMPREHENSIVE CASH FLOW STATEMENT FILED IN SETTLEMENT PROCEEDINGS HEREINABO VE. HE TAKES US TO SETTLEMENT PETITIONS FILED AT THE BEHEST OF FIVE AS SESSEES M/S. SHYAM M/S. SHYAM GROUPS - 7 - DEVELOPERS, SHYAM CORPORATION, BHAGWANBHAI, ARVINDB HAI AND KALYANBHAI (SUPRA) AT PAGE 4, FOUR ENTITIES M/S. SHYAM ORGANIS ERS, SHYAM DEVELOPERS, SHRI SHYAM CONSTRUCTION AND SHYAM CORPORATION AND T HEIR RESPECTIVE PROJECTS, NAMELY, SHYAM DARSHAN, SHAYM VIHAR, SHYAM PARK AND SHYAMAL PARK AT PAGE 5 OF SETTLEMENT COMMISSIONS ORDER. M R. THAKKARS PLEA THEREAFTER IS THAT THE SETTLEMENT COMMISSION ACCEPT ED HIS PLEA OF HAVING FILED A COMPREHENSIVE CASH FLOW STATEMENT OF THE ENTIRE G ROUP AS PREPARED ON THE BASIS OF DUPLICATE BOOKS OF ACCOUNTS. WE COME TO P ARA 3.7 PAGE 9 OF ITS ORDER TO THIS EFFECT READING AS UNDER: 3.7 IT WAS FURTHER ADDED THAT FOR COMPUTING THE AV AILABILITY OF CASH, A 'COMPREHENSIVE CASH FLOW STATEMENT' OF THE ENTIRE G ROUP HAD BEEN PREPARED ON THE BASIS OF THE DUPLICATE CASH BOOKS OF THE VARIOUS CO NCERNS FOUND DURING THE COURSE OF THE SEARCH. THE CASH FLOW STATEMENTS INCLUDE THE COLUMN 'RECEIPTS' WHICH ARE THE AMOUNTS HANDED OVER TO 'KAKAAND APPEAR IN THE DUPLICATE BOOKS OF ACCOUNTS. THE 'PAYMENTS' COLUMN REFERS TO THE DATE WISE PAYME NTS MADE TO THE LAND OWNERS FOR THE PURCHASE OF THE LAND AND DULY IDENTIFIED WI TH THE DIARIES FOUND DURING THE SEARCH. THE 'TRANSFER OUTWARD' COLUMN REFERS T O THE CASH AVAILABILITY WITH A PARTICULAR FIRM ON A PARTICULAR DATE AND WHICH IS AVAILABLE FOR MAKING INVESTMENTS IN LANDS. THE 'TRANSFER INWARD' REFERS TO THE AMOUNT RECEIVED INTERNALLY FROM ANOTHER FIRM IN THE GROUP FOR MAKIN G INVESTMENT IN LAND BY THAT PARTICULAR FIRM ON THE SPECIFIED DATE. WHEREVER TH ERE IS INSUFFICIENT CASH AVAILABLE FOR MAKING THE LAND PAYMENTS, THE DIFFERENTIAL AMOU NT HAS BEEN OFFERED BY WAY OF 'UNEXPLAINED INVESTMENTS' IN THE HANDS OF THE RESPE CTIVE FIRMS. THE CONSOLIDATED CASH FLOW STATEMENTS HAVE ALSO BEEN FURNISHED BEFOR E THE SETTLEMENT COMMISSION AS EARLY AS IN 2001-02. 8. THE ABOVE SETTLEMENT COMMISSIONS ORDER FURTHER INDICATES THAT IT SOUGHT FIELD AUTHORITIES VERIFICATION QUA CORRECTNE SS OF VARIOUS ISSUES RAISED AT ASSESSEES BEHEST AND ACCEPTED THE ABOVE COMPREHENS IVE CASH FLOW STATEMENT OF THE ENTIRE GROUP AS FOLLOWS: 5. THE CIT WAS DIRECTED BY THE COMMISSION VIDE ITS ORDER DATED 14.02.2005 TO VERIFY SOME ISSUES UNDER SECTION 245D(3) AND REPORT . THESE ISSUES FOR VERIFICATIONS ARE GIVEN AS UNDER:- (I) TO EXAMINE THE SEIZED NO. 2 BOOKS VIS-A-VIS NO, 1 BOOKS AS WELL AS SEIZED DIARY AND BANK ACCOUNTS AND ARRIVE AT THE GROSS AS WELL AS NET RECEIPT OF ALL THE CONCERNS, M/S. SHYAM GROUPS - 8 - (II) TO VERIFY THE CORRECTNESS OF THE CASH FLOW STA TEMENT AS PREPARED BY THE APPLICANTS VIS-A-VIS NO. 1 AND NO. 2 BOOKS OF ACCOU NTS AS WELL AS SEIZED BOOKS. (III) TO EXAMINE THE LAND TRANSACTIONS FROM THE BAN AKHAT AND ASCERTAIN THE AMOUNT OF CONCEALED INCOME FROM LAND TRANSACTIONS G IVING THE DETAILS OF LAND AGREEMENTS I. E. DATE, PLOT NO., ACTUAL COST AND DE CLARED COST IN RESPECT OF EACH LAND OF ALL THE CONCERNS AND TO GET LIST OF AGREEME NTS SHOWING HIGHER AMOUNTS PAYABLE THAN THE AMOUNT ENTERED IN THE BOOKS. (IV) TO VERIFY THE INVESTMENTS IN LANDS, NAME OF TH EIR CO-OWNERS AND THEIR RESPECTIVE SHARES AND SOURCE OF INVESTED FUND BY TH ESE PERSONS. (V) TO EXAMINE THE UTILIZATION OF WITHDRAWALS OF VA RIOUS PERSONS MADE IN ACQUISITIONS OF MOVABLE AND IMMOVABLE ASSETS, HOUSE HOLD EXPENSES, CAPITAL INTRODUCED IN FIRMS ETC. (VI) TO VERIFY THE APPLICANTS CLAIM OF SURPLUS FUN D OF ONE FIRM WAS UTILIZED FOR INVESTMENT IN LAND OF OTHER FIRM/FIRMS. 9. LEARNED SETTLEMENT COMMISSION THEREAFTER DECIDED M/S. SHYAM ORGANISERS PETITION IN ITS ORDER DATED 09.02.2015 READING AS UNDER: 7. DECISION WE HAVE CAREFULLY GONE THROUGH THE WRITTEN SUBMISSI ONS MADE AS WELL AS THE ARGUMENTS OF THE DEPARTMENT AND THE AR OF THE A PPLICANT. THE PRIME ALLEGATION OF THE CIT IS THAT THE BOOKING AMOUNTS RECEIVED FRO M THE MEMBERS AND NOTED IN THE DUPLICATE CASH BOOK ARE SEPARATE FROM THE AMOUNTS R ECORDED IN THE REGULAR BOOKS OF ACCOUNTS , BUT THE APPLICANT HAS MADE THE ANALYS IS OF THE DUPLICATE CASH BOOK WHICH CONTAINS THE COMPLETE DETAILS OF RECEIPTS AS WELL AS EXPENSES. THE RECEIPTS INCLUDED CASH, CHEQUES AS WELL AS LOANS AND ADVANCE S. THE EXPENSES INCLUDED PERSONAL WITHDRAWALS, LOANS RETURNED, CASH DEPOSITS IN BANKS, OTHER EXPENSES AND THE NET SURPLUS WAS GIVEN TO 'KAKA' FOR PURCHASE OF LAND. HENCE THE RECEIPTS DO NOT REPRESENT ONLY THE ON-MONEY BUT ALSO CHEQUES WH ICH ARE ACCOUNTED AND THE CHEQUES ALONG WITH A PART OF THE CASH HAVE BEEN TAK EN TO THE REGULAR CASH BOOKS. SHRI BHAWANDAS PATEL (KAKA) MAINTAINED A SEPARATE D IARY FOR THE RECEIPT OF NET SURPLUS FROM THE DIFFERENT ENTITIES WHICH ACCOUNTED FOR THE PAYMENT OF LAND PURCHASES. THE SUBMISSION OF THE APPLICANT THAT THE INCOME GENERATED FROM A PARTICULAR SCHEME WAS UTILIZED FOR THE PURCHASE OF LAND FOR ANOTHER SCHEME THEREBY INDULGING IN INTERMINGLING AND INTERLACING OF FUNDS HAS NOT BEEN ADVERSELY COMMENTED UPON BY THE DEPARTMENT. HENCE THE APPLIC ANT'S SUBMISSIONS THAT THE ROUGH CASH BOOK REVEALED THE ENTIRE RECEIPTS OF BOT H ON-MONEY AS WELL AS THE REGULAR BOOKING MONEY IS QUITE ACCEPTABLE. 7.1 THE APPLICANT HAS PREPARED A DETAILE D COMBINED FUND FLOW STATEMENT OF THE RECEIPTS AND EXPENDITURE CONTAINING THE NET SURPLUSES OF THE DIFFERENT ENTITIES, WHICH WAS PUT TO VERIFICATION IN THE PROC EEDINGS U/S 245D(3) AUTHORIZED M/S. SHYAM GROUPS - 9 - BY THE COMMISSION. THE VERY FACT THAT THE QUERRIES MADE BY THE AO HAVE BEEN MET BY THE APPLICANT AND NO FURTHER INFORMATION WAS CAL LED FOR, SHOWS THAT THE ACCURACY AND VERACITY OF THE CASH FLOW STATEMENT HA S NOT BEEN CHALLENGED BY THE DEPARTMENT. THE APPLICANT HAS ALSO ARRIVED AT THE O FFER OF ADDITIONAL INCOME AFTER CONSIDERING THE NET SURPLUS AND DISALLOWING THE PER SONAL WITHDRAWALS AS WELL AS THE INADMISSIBLES. THIS SEEMS TO BE IN ORDER. 7.2 AS REGARDS THE LAND PURCHASE PAYMENTS TOTAL ING TO RS.60 LAKHS, THOUGH THE CIT HAS SUGGESTED TO TREAT THE ENTIRE AMOUNT AS UNE XPLAINED INVESTMENT, THE APPLICANT HAS OFFERED RS.3,32,200/- AND RS.26.77,15 0/-WHICH WERE ALSO EXPLAINED AS SURPLUS OF THE GROUP AND DECLARED AS ADDITIONAL INCOME. FURTHER, AS STATED BY THE APPLICANT, THE PAYMENT COLUMNS IN THE CASH FLOW STATEMENT REVEAL THE LOAN PAYMENTS AS APPEARING IN THE SEIZED DIARIES AND WHE REVER THERE IS INSUFFICIENT CASH BALANCE, THE DEFICIT AMOUNTS HAVE BEEN OFFERED IN T HE HANDS OF THE RESPECTIVE FIRMS. SIMILARLY, WITH REGARD TO THE REFERENCE OF THE A.O. TO VARIOUS EXPENDITURES NOT ELIGIBLE FOR DEDUCTIONS, THE APPLICANT HAS OFFERED THEM AS ADDITIONAL INCOME. WE DO NOT FIND ANYTHING WRONG DONE BY THE APPLICANT. 7.3 WE ALSO FIND THAT THE INTERIM REPORT DATED 18-05-2005 SUBMITTED BY THE CIT IN RESPONSE TO THE PROCEEDINGS UNDER SECTION 245D(3 ) CAN BE TREATED AS THE FINAL REPORT, AS THE DEPARTMENT COULD NOT PRODUCE ANY SUC H COPY OR EVIDENCE OF A FINAL REPORT. IN THIS REPORT THE CIT HAS PRESUMED THAT TH E BOOKS SHOWING THE ACTUAL TRANSACTIONS ARE REGULAR BOOKS AND THE BOOKS WRITTE N TO BE PRODUCED BEFORE THE INCOME TAX DEPARTMENT ARE DUPLICATE BOOKS. THIS IS ACTUALLY A CONTRARY STAND TAKEN BY THE CIT. FURTHER, THE CIT (DR)'S ARGUMENTS OF SH OWING LESSER RECEIPTS FOR THE ASSESSMENT YEAR 1994-95 AND 1996-97 HAVE BEEN SUCCE SSFULLY COUNTERED BY THE APPLICANT AS THE ADDITIONAL RECEIPTS COMPUTED BY TH E APPLICANT AMOUNT TO MORE THAN THE SHORTFALL POINTED OUT BY THE CI.T (DR). 7.4 THE LEARNED CIT (DR) HAS ALSO OBJECTED TO THE C LAIM OF DEDUCTION OF RS. 1,24,97,975/-. THE AR OF THE APPLICANT EXPLAINED TH E CLAIM OF THE DEDUCTION AS CORRECTLY DONE WITH REFERENCE TO THE SEIZED BOOKS O F ACCOUNTS AND CONTENDED THAT WHATEVER AMOUNT WAS REFLECTED IN THE REGULAR BOOKS OF ACCOUNTS HAVE NOT BEEN CLAIMED. ONLY THE BALANCE AMOUNT OF RS. 1,24,97,975 /- HAS BEEN CLAIMED, WHICH WAS PUT TO VERIFICATION BY THE DEPARTMENT WITH THE ORIGINAL LAND OWNERS, WHO ADMITTED TO HAVE RECEIVED THE AMOUNTS AS WRITTEN IN THE DIARY. HENCE, WE DO NOT PROPOSE TO VIEW THE ISSUE ADVERSELY. 7.5 CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE APPLICANT HAS COME OUT CLEAN, WHICH IS EVI DENCED BY THE SEIZED MATERIALS. WE CONSIDER THE OFFER MADE BY THE APPLICANT AS FULL AND TRUE. THE ISSUES, THUS, GET SETTLED. 10. LEARNED DEPARTMENTAL REPRESENTATIVE RAISES A VE RY STRONG ARGUMENT THAT THESE ASSESSEES ARE NOT ENTITLED TO TAKE BENEF IT FROM THE ABOVE EXTRACTED SETTLEMENT COMMISSIONS ORDER OR FROM THE COMPREHEN SIVE CASH FLOW STATEMENT FILED THEREIN. WE FIND NO FORCE IN THIS PLEA AS A CO-ORDINATE BENCHS M/S. SHYAM GROUPS - 10 - DECISION DATED 29.07.2016 IN CASES OF OTHER GROUP E NTITIES M/S. SHYAM CORPORATION AND SHYAM DEVELOPERS (SUPRA) HAS ALREAD Y ACCEPTED THE VERACITY OF THE ABOVESTATED COMPREHENSIVE CASH FLOW STATEMEN T AS FOLLOWS: 6.1.3 MANNER IN WHICH THE DUPLICATE BOOKS OF ACCOU NTS ARE WRITTEN WAS EXPLAINED IN PG.27 TO 31 OF THE PAPER BOOK DATED 29.08.2012. COMPLETE RECEIPTS I.E. NO.L & II RECORDED IN THE DUPLICATE BOOKS OF ACCOUNTS. STATEM ENT SHOWING RECEIPTS BY CHEQUE RECORDED IN DUPLICATE BOOKS OF ACCOUNTS. (PG.255 TO 256 OF PB DATED 29.08.2012). FURTHERMORE, THE CASH DEPOSITED IN THE BANK AS PER THE NO.II IS DULY REFLECTED IN THE BANK STATEMENT WHICH INDICATES THE FLOW OF CASH IN THE REGULAR BOOKS OF ACCOUNTS. THE BALANCE SHEET DRAWN ON THE NO.II BOOK S AND PLACED ON PG.280 TO 285 OF THE PAPER BOOK DATED 29.08.2012 INDICATES TH E CASH DEPOSITED IN THE BANK ACCOUNT. CONFORMATION OF THE MEMBERS REGARDING THE BOOKING MONEY PAID TILL THE DATE OF SEARCH PLACED ON PG.270 TO 273 OF THE PAPER BOOK DATED 29.08.2012. THE MANNER IN WHICH THE INCOME HAS BEEN WORKED OUT HAS BEEN MENTIONED IN PG.27 OF THE PB DATED 29.08.2012. THE CREDIT SIDE OF THE DUP LICATE CASH BOOK INCLUDES THE BOOKING MONEY RECEIVED FROM THE MEMBERS (ACCOUNTED INCLUDING THAT RECEIVED BY CHEQUE AS WELL AS UNACCOUNTED), LOANS FROM GROUP CO NCERNS, MISCELLANEOUS INCOME ETC. THE DEBIT SIDE OF THE CASH BOOK INCLUDES THE P AYMENTS MADE TOWARDS VARIOUS EXPENSES, PERSONAL WITHDRAWALS, NON BUSINESS EXPEND ITURE, CASH DEPOSITED IN THE BANK ACCOUNT, REPAYMENT OF LOANS AND AMOUNT GIVEN T O 'KAKA'. THE AMOUNT GIVEN TO KAKA IS THE NET SURPLUS OF THE FIRM AFTER MEETIN G ALL THE EXPENDITURE. WHILE OFFERING ADDITIONAL INCOME BEFORE THE HON. INCOME T AX SETTLEMENT COMMISSION THESE AMOUNTS HANDED OVER TO KAKA HAVE BEEN CONSIDE RED AS INCOME AND THE PRIMA FACIE DISALLOWABLE EXPENSES AND PERSONAL WITH DRAWALS OF THE PARTNERS AS DEBITED IN THE DUPLICATE BOOKS OF ACCOUNTS HAVE BEE N ADDED BACK. OUT OF THE MONEY HANDED OVER TO KAKA THE LAND PAYMENTS HAVE BEEN MAD E BY HIM WHICH ARE RECORDED SEPARATELY IN THE DIARY. THIS DIARY CONTAI NED THE NOTINGS OF LAND PAYMENTS HAD ALSO BEEN FOUND AND SEIZED DURING THE COURSE OF SEARCH PROCEEDINGS. WHILE OFFERING ADDITIONAL INCOME BEFORE ITSC OUT OF THE TOTAL INCOME OFFERED THE CLAIM OF DEDUCTION FOR LAND EXPENSES HAVE BEEN MADE SINCE THE SAME IS NOT RECORDED IN THE DUPLICATE CASH BOOK MAINTAINED. GE NERALLY ONE FIRM DEVELOPS / CONSTRUCTS ONE PARTICULAR SCHEME. THE SCHEME DEVELO PED BY THE ASSESSEE IS 'SHYAMAL PARK' SCHEME. THE SURPLUS EARNED BY ONE FI RM WAS USED FOR PURCHASING LAND WHICH WAS SUBSEQUENTLY DEVELOPED BY ANOTHER FI RM. 6.1.4 TO EXPLAIN THE FLOW OF FUNDS A DETAILED CASH FLOW STATEMENT WAS ALSO PREPARED AND PRODUCED AT THE ASSESSMENT AND APPELLA TE STAGE. THE SAME WAS ALSO FURNISHED DURING THE COURSE OF HEARING BEFORE US. THE CASH FLOW STATEMENT CONTAINS DAY TO DAY FLOW OF CASH TRANSACTIONS. THE RECEIPT COLUMN IN THE CASH FLOW STATEMENT IS THE AMOUNT HANDED OVER TO KAKA AFTER M EETING ALL EXPENDITURE. THE PAYMENT COLUMN INDICATES THE DISBURSEMENTS MADE FOR THE PURCHASE OF LAND. THE DETAILS OF LAND PAYMENTS HAVE BEEN NOTED IN THE DIA RIES FOUND AND SEIZED FROM THE POSSESSION OF KAKA. THE 'TRANSFER INWARD' COLUMN IN DICATES THE DATE, AMOUNT AND FROM WHERE THE FUNDS HAVE BEEN RECEIVED FOR MAKING LAND PAYMENTS. THE 'TRANSFER OUTWARD' COLUMN INDICATES THE DATE, AMOUNT AND WHER E THE MONEY HAS BEEN GIVEN FOR MAKING LAND PAYMENTS BY OTHERS. THE BALANCE COL UMN INDICATES THE CASH AVAILABLE WITH THE RESPECTIVE FIRM. WHEREVER THE IN VESTMENT HAS BEEN MADE IN M/S. SHYAM GROUPS - 11 - EXCESS OF THE FUNDS AVAILABILITY THE BALANCE AMOUNT HAS BEEN OFFERED AS 'UNEXPLAINED INVESTMENT' IN THE HANDS OF THE ASSESS EE. THEREFORE, IN THE CASE OF THE ASSESSEE FIRM THE UNEXPLAINED INVESTMENT OF RS.11,3 4,092/- HAS BEEN OFFERED BY WAY OF ADDITIONAL TAX. AS STATED EARLIER WHILE OFF ERING ADDITIONAL INCOME BEFORE THE HON. INCOME TAX SETTLEMENT COMMISSIONS THE NET SURPLUS WAS THE AMOUNT GIVEN TO KAKA HAS BEEN CONSIDERED. THIS AMOUNT WAS ALSO IN ACCORDANCE WITH THE VERIFICATION DONE IN THE SPECIAL AUDIT REPORT. OUR ATTENTION WAS INVITED TO THE PAPER BOOK DATED 22.09.2015. THE ADDITIONAL INCOME OFFERED IS RS. 10,23,220/- WHICH INCLUDES NET SURPLUS OF RS.9.00 LACS AND WITH DRAWALS OF THE OTHER PARTNERS RS. 1,23,220/-. ATTENTION WAS INVITED TO PAGE 204 O F THE PAPER BOOK DATED 28.09.2012 WHICH CONTAINS THE NO.II BALANCE SHEET I N THE SPECIAL AUDIT REPORT. THE PARTNER DEBIT BALANCE ARE RS.10,23,220/- (9,00,000+ 1,23,220). THEREFORE, THE ACCURACY OF THE ADDITIONAL INCOME OFFERED COULD NOT BE DOUBLED AND WAS INFACT VERIFIABLE WITH THE SAR. 6.1.5 SIMILARLY, ATTENTION WAS INVITED TO PAGE 9C O F THE PB DATED 22.09.2015, THE ADDITION INCOME OFFERED COMPRISES OF NET SURP LUS (AMOUNT GIVEN TO KAKA) OF RS.41,19,000/- AND WITHDRAWALS BY PARTNERS RS.4,10, 000/-. THIS WAS VERIFIABLE WITH NO.II BALANCE SHEET PREPARED BY THE SPECIAL AU DIT REPORT AND APPEARING ON PG.229 OF THE PAPER BOOK DATED 29.08.2012. THE PART NERS DEBIT BALANCES AMOUNT TO 4.13 WHICH IS MORE OR LESS IN AGREEMENT WITH THE AD DITIONAL INCOME OFFERED BY THE ASSESSEE FIRM AND THAT TO SHRI BHAGWANBHAI K. PATEL (KAKA) WAS RS.41,19,000/- WHICH IS IN COMPLETE AGREEMENT. ATTENTION WAS INVI TED TO PAGE 9D OF THE PAPER BOOK DATED 22.09.2015 WHICH CONTAINS THE DETAILS OF ADDITIONAL INCOME OFFERED FOR THE BROKEN PERIOD 01.04.1996. THE NET SURPLUS (AMOU NT GIVEN TO KAKA) IS RS. 53,00,000/- AND WITHDRAWALS OF PARTNERS IS RS.3,65, 775/-. THE NO.II BALANCE AS PREPARED BY THE SPECIAL AUDITOR IS PLACED ON PG.249 OF THE PB DATED 29.08.2012 WHICH SHOWS THAT THE AMOUNTS AS APPEARING IN THE PA RTNERS ACCOUNTS ARE MORE OR LESS IN ACCORDANCE WITH THE ADDITIONAL INCOME OFFER ED. THEREFORE, THE ACCURACY AND VERACITY OF THE ADDITIONAL INCOME OFFERED BY THE AP PLICANT FIRM WAS ALSO VERIFIABLE WITH THE SPECIAL AUDIT REPORT. 6.1.6 THE MANNER OF COMPUTING UNDISCLOSED INCOME HA S BEEN ACCEPTED IN THE GROUP CONCERN M/S SHYAM ORGANIZERS BY THE ITSC. IN THE ORDER PASSED U S 245D(4) BY THE ITSC THE ACCURACY OF THE CASH FLOW S TATEMENT WAS ALSO ACCEPTED. 6.1.7 IN FACT, SEPARATE INQUIRY DIRECTED BY THE ITS C U/S 245D(3) OF THE ACT AND NO ADVERSE FINDING WAS REPORTED BY THE DEPARTMENT. TH E WRITTEN SUBMISSIONS DATED 25.11.2014 WERE CONFRONTED TO THE CIT-5, AHMEDABAD AND NO ADVERSE COMMENTS HAVE BEEN RECEIVED THEREON. IN VIEW OF ABOVE FACTU AL DISCUSSION, ENHANCING THE ADDITION MADE BY ASSESSING OFFICER FOR THE NET AS P ER AUDITED REPORT U/S.142(2A) OF THE ACT I.E. RS.35,31,530/- FOR A.Y. 1995-96, RS.62 ,49,885/- FOR A.Y. 1996-97 AND RS. 88,99,750/- FOR BROKEN PERIOD 01.04.1996 TO 21. 01.1997 IS NOT JUSTIFIED. SAME IS DIRECTED TO BE DELETED. 11 WE THEREFORE REJECT REVENUES HYPER TECHNICAL AR GUMENT SEEKING TO IGNORE THE ABOVESTATED COMPREHENSIVE CASH FLOW STAT EMENT. WE NOW PROCEED AHEAD TO DEAL WITH INSTANT BATCH OF CASES IN LIGHT OF THE ABOVESTATED M/S. SHYAM GROUPS - 12 - COMPREHENSIVE CASH FLOW STATEMENT INDICATING THE FI RST ASSESSEE SHRI BHAGWANBHAI WHO HAVE RECEIVED THE MONEY IN QUESTION PERTAINING TO VARIOUS PROJECTS FOR ACTING AS THEIR AUTHORIZED PERSONS IN ORDER TO EXECUTE THEIR LAND PURCHASES TRANSACTIONS. WE THUS TREAT HIS APPEAL A LONG WITH REVENUES CROSS CASE IT(SS)A NOS. 325 & 465/AHD/2010 FOR THE IMPUG NED BLOCK PERIOD AS THE LEAD CASES. 12. A PERUSAL OF THE ABOVE LEAD CROSS APPEALS INDIC ATES THAT ASSESSEE RAISES TOTAL FOURTEEN SUBSTANTIVE GROUNDS AS AGAINST SEVEN TEEN SUBSTANTIVE GROUNDS RAISED IN REVENUES APPEAL. THE ASSESSEES FIRST S UBSTANTIVE GROUND AND REVENUES FIRST TWO SUBSTANTIVE GROUNDS RAISE COMMO N ISSUE OF CORRECTNESS OF UNEXPLAINED INVESTMENT ADDITION OF RS. 2.09CRORES P ERTAINING TO VASTRAL LAND IN ASSESSMENT YEAR 1997-98 AS MADE BY THE ASSE SSING OFFICER AND RESTRICTED TO RS.1,41,12,826/- IN LOWER APPELLATE P ROCEEDINGS. THE ASSESSEE SEEKS TO DELETE THE ENTIRE ADDITION WHEREAS REVENUE STRONGLY SUPPORTS TO REVIVE THE SAME. 13. IT IS EVIDENT FROM THE CASE RECORD THAT THIS V ASTRAL LAND ADMEASURES 92500SQ.YARDS. THE DEPARTMENT FOUND/SEIZED THE REL EVANT BANAKHAT (ANNEXURE A-2/13) REVEALING THE ASSESSEE TO HAVE CO -PURCHASED THE ABOVESTATED LAND @RS.565/- PER SQ.YARD. TOTAL CONS IDERATION MONEY ACCORDINGLY CAME TO BE RS.5,22,62,500/-. THE DEPAR TMENT FOUND TOTAL CONSIDERATION MONEY PAID AS ON THE DATE OF SEARCH W AS RS.1.31CRORES ON BANAKHAT DATE 30.06.1996 FOLLOWED BY SUBSEQUENT PAY MENT OF RS.78LACS ON 01.11.1996 MADE AS CONFIRMED BY THE RESPECTIVE SELL ERS. THE ASSESSING OFFICERS ORDER IN ASSESSMENT DATED 28.01.1999 REJE CTED ASSESSEES EXPLANATION REGARDING SOURCE OF THIS AMOUNT OF RS.2 .09 CRORES TO CORRESPONDING WITHDRAWALS IN M/S. SHYAM GROUP FIRMS ACCOUNTS AS THEIR AUTHORIZED PERSON FOR LAND PURCHASES (SUPRA). HE Q UOTED ASSESSEES FAILURE IN M/S. SHYAM GROUPS - 13 - FILING THE RELEVANT CASH FLOW STATEMENT AS WELL AS RECONCILIATION OF THE RELEVANT FIGURES FOLLOWED BY ABSENCE OF THE SAID MO NEY ASSESSMENT IN THE OTHER ASSESSEE SHRI ARVINDBHAIS HANDS. THE ASSESS ING OFFICER FURTHER DECLINED ASSESSEES DEPOSITION IN SEARCH STATEMENT THAT HE WAS ONLY A CO- OWNER OF THIS VASTRAL LAND. ALL THIS RESULTED IN THE IMPUGNED ADDITION OF RS.2,09,00,000/-. 14. THE CIT(A)S ORDER GRANTS PART RELIEF TO ASSESS EE AS UNDER: 7. DURING THE COURSE OF APPELLATE PROCEEDINGS VIDE WRITTEN SUBMISSIONS AND ARGUMENTS THE LEARNED AR EMPHASIZED THAT ENTIRE RS. 2,09,00,000 CANNOT BE ADDED IN THE HANDS OF THE APPELLANT BECAUSE EVEN DURING T HE SEARCH HE HAD STATED THAT THIS LAND WAS PURCHASED INITIALLY IN EQUAL PARTNERSHIP W ITH ONE SHRI KANTIBHAI AND LATER OTHER CO OWNERS ALSO CAME IN. IT WAS EXPLAINED THAT CASH FOR INVESTMENT IN THE LA ND EVEN AT THE TIME OF SEARCH WAS EXPLAINED TO HAVE COME FROM DIFFERENT FIRMS OF SHYA M RBUP. THIS STAND WAS REITERATED DURING THE COURSE OF PRESENT APPELLATE P ROCEEDINGS AND IN ADDITION IT WAS STATED THAT ALREADY SURPLUS IN THE HANDS OF THE FIRMS IN OTHER WORDS UNDISCLOSED INCOME OF THE FIRMS WHICH HAD BEEN UTIL IZED FOR MAKING LAND PURCHASES BY THE APPELLANT AND OTHERS HAD BEEN OFFE RED FOR TAXATION BEFORE SETTLEMENT COMMISSION. THUS IT WAS STATED THAT ONLY 50% OF RS.2,09,00,000 CAN BE CONSIDERED IN THE HANDS OF THE APPELLANT WHICH COME S TO RS.1,04,50,000. SOURCE OF THIS WAS EXPLAINED AS UNDER VIDE SUBMISSION DATED 1 2.03.2009: DATE AMOUNT REMARKS 10.07.1996 25,96,313 FROM SHYAM ORGANISERS WHEREIN IT HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. THE A PPLICATION HAS BEEN ADMITTED BY THE SETTLEMENT COMMISSION AND IS PENDING FOR FINAL ORDERS. 1.11.1996 53,87,174 SALE PROCEEDS OF KATHWADA LAND WHICH HAVE BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION IN THE CASE OF THE APPELLANT AND ANOTHER KINGP IN OF SHYAM GROUP - ARVINDBHAI. 13,00,000 SURPLUS FROM SHYAM ORGANISERS WHICH HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. 4.12.1996 2,00,000 SURPLUS FROM SHYAM ORGANISERS WHICH HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. 4.12.1996 1,00,000 SURPLUS FROM SHYAM DEVELOPERS OFFERED AS UDI BEFORE SETTLEMENT COMMISSION, CONSEQUENT TO ABATEMENT OF APPLICATION BY THE ITSC THE SAME HAS BEEN ADDED IN THE BLOCK ORDER AND HAS BEEN CONFIRMED IN APPEAL VIDE ORDER DATED 8.10.2009. M/S. SHYAM GROUPS - 14 - 4,50,000 SURPLUS FROM SHYAM CORPORATION OFFERED AS UDI BEFORE SETTLEMENT COMMISSION, CONSEQUENT TO ABATEMENT OF APPLICATION BY THE ITSC THE SAME HAS BEEN ADDED IN THE BLOCK ORDER AND HAS BEEN CONFIRMED IN APPEAL BY CIT(A) XV VIDE ORDER DATED 11.9.2009. 1,00,33,487 IT WAS ARGUED THAT OUT OF RS.1,04,50,000 (SHARE OF BHAGWANBHAI) RS.1,00,33,487 STANDS EXPLAINED AS PER THE ABOVE CHART. THE BALANC E RS.4,16,513 (RS.1,04,50,000 - RS.1,00,33,487) WAS EXPLAINED TO HAVE BEEN COVERE D BY UDI DECLARED BEFORE SETTLEMENT COMMISSION OF RS.6,00,000 IN THE CASE OF THE APPELLANT. STATEMENT OF FACTS FILED BEFORE SETTLEMENT COMMISSI ON OF THE TWO KINGPINS OF SHYAM GROUP AND THE FIRMS WHERE THE APPELLANT IS A PARTNE R ARE ENCLOSED AS ANNEXURE-1 OF THIS ORDER. I) BHAGWANBHAI II) ARVINDBHAI III) SHYAM CONSTRUCTION COMPANY: : APPELLANT NOT A PARTNER IV) SHYAM CORPORATION :APPELLANT PARTNER BY 40% V) SHYAM DEVELOPERS :APPELLANT PARTNER BY 30% YI) SHYAM ORGANISORS :APPELLANT PARTNER BY 30% 9. INTERESTINGLY IN THE STATEMENT OF FACTS FILED BE FORE SETTLEMENT COMMISSION BY THE APPELLANT THE INVESTMENT IN VASTRAL LAND HAS BEEN EXPLAINED AS UNDER: FOR INVESTMENT IN VASTRAL LAND MEASURING 92500 SQ.Y DS IT HAS BEEN STATED THAT FOLLOWING AMOUNTS WERE INVESTED: AMOUNT DATE FROM SHYAM ORGANISORS UDI BEFORE SETTLEMENT COMMISSION 25,96,313 30.6.1996 RS.73,19,147 1.11.1996 RS.53,87,174 FROM SALE PROCEEDS OF KATHWADA LAND RS.13,00,000 FROM UDI OF SHYAM ORGANISORS RS.6,31,967 BALANCE OUT OF UNDISCLOSED SOURCES OF BHAGWANBHAI OUT OF WHICH HIS SHARE AMOUNTING TO RS.3,15,984 HAS BEEN OFFERED TO TAX BEFORE SETTLEMENT COMMISSION OTHER RS.3,15 ,984 TO BE ARVINDBHAI'S SHARE.. RS.14,00,000 24.12.1996 RS.4,50,000 WITHDRAWN FROM SHYAM CORPORATION RS.1,00,000 WITHDRAWN FRO M SHYAM DEVELOPERS AND RS. 2,00,000 WITHDRAWN FROM SHYAM ORGANISERS. BALANCE RS.6,50,000 HAS BEEN INFORMED INVESTED OUT OF UNDISCLOSED SOURCES OUT OF M/S. SHYAM GROUPS - 15 - WHICH BHAGWANBHAI'S SHARE HAS BEEN INFORMED TO BE RS.3,25,000, OTHER RS.3,25,000 TO BE ARVINDBHAI'S SHARE. THUS IN THE SOF TOTAL INVESTMENT OF RS. 1,13,15,460 (RS. 25,96,313 + RS.73,19,147 + RS.14,00,000) IN VASTRAL LAND WAS INFORMED BY THE APPELLANT, WHEREAS IN SUBMISSION DATED 12.3.2009 AMOUNT OF RS. 1,04,50,0 00 HAS BEEN CLAIMED AND EXPLAINED AS APPELLANT'S SHARE. 10. AFTER GOING THROUGH RIVAL SUBMISSIONS I AM UNAB LE TO AGREE THAT THE APPELLANT IS ACCOUNTABLE ABOUT THE SOURCE OF INVESTMENT OF JU ST RS. 1,04,50,000 OUT OF TOTAL INVESTMENT OF RS.2,09,00,000 BECAUSE THE SELLER OF LAND - UDAY BHATT - IN STATEMENT RECORDED ON 19.02.1997 STATED THAT HE RECEIVED RS.2 ,09,00,000 IN CASH FROM THE APPELLANT. THE NAME OF KANTIBHAI IS IN THE BANAKHAT , BUT THE ACTUAL INVESTMENT IN LAND HAS BEEN MADE BY THE KINGPIN OF SHYAM GROUP - SHRI BHAGWANBHAI - THE APPELLANT. INTERESTINGLY SHRI KANTIBHAI IS NOT PART NER IN ANY FIRM. AND HE IS NO MORE IN THIS WORLD. HENCE THE ARGUMENT OF THE ID. AR THAT INVESTMENT IS JUST RS. 1,04,50,000 IN VASTRAL LAND OF THE APPELLANT IS NOT FACTUALLY CORRECT, MOR E SO WHEN THE SELLER OF LAND HAS HIMSELF STATED THAT HE RECEIVED RS.2,09,00,000 FROM THE APPELLANT HIMSELF. THIS IS ALSO IMPORTANT TO POINT OUT THAT IN THE BLOCK ASSES SMENT ORDER DATED 26.12.2008 OF KANTIBHAI PASSED IN THE NAME OF HARSHAD K PATEL, HI S LEGAL HEIR U/S.158 BD R.W.S. 158BC NO SUCH INVESTMENT IN VASTRAL LAND HAS BEEN D ISCUSSED OR ADDED. 11. NOW IT IS TO BE SEEN HOW MUCH SET OFF ON ACCOUN T OF INVESTMENT IN LAND CAN THE APPELLANT CLAIM ON ACCOUNT OF UDI DECLARED BY T HE FIRMS BEFORE HON'BLE ITSC. IT IS IMPORTANT TO REMEMBER THAT THE STATEMENT OF F ACTS OF THE FIRMS SHOW THAT THE APPELLANT IS A PARTNER IN SHYAM ORGANISERS BY 30%, IN SHYAM CORPORATION BY 40% AND IN SHYAM DEVELOPERS BY 30%, WHILE HE IS NOT A PARTNER AT ALL IN SHYAM CONSTRUCTION COMPANY. THESE FIRMS HAVE CLAIMED HEAVY DEDUCTIONS ON ACCOUN T OF INVESTMENT IN LAND FROM THE UNDISCLOSED INCOME DECL ARED BEFORE SETTLEMENT COMMISSION. WHILE SHYAM ORQANISORS HAS CLAIMED A DE DUCTION OF RS. 1,24,97,975 ON ACCOUNT OF LAND INVESTMENT. SHVAM CORPORATION HA S CLAIMED DEDUCTION OF RS.35,02,778 AND SHVAM CONSTRUCTION COMPANY WHERE W IFE (MANGUBEN BHAGWANBHAI PATEN OF APPELLANT IS A PARTNER BV 33% DEDUCTION OF RS.1 9.36.000. IT IS AFTER REDUCING THESE AMOUNTS THAT TAX HAS BEE N PAID BY THE APPELLANT BEFORE SETTLEMENT COMMISSION. NOW ONCE AGAIN FROM THE INCOME DISCLOSED OF THE FIR MS IN THE TABLE ABOVE SET OFF OF UNEXPLAINED INVESTMENT / CASH PAYMENT FO R LAND PURCHASE HAS BEEN CLAIMED IN THE SUBMISSION DATED 12.3.2009, WHILE BU T FOR SHYAM ORGANISERS THE APPELLANT HAS NOT CLAIMED ANY DEDUCTION IN HIS SOF FROM ANY OTHER FIRM, BUT IN THE SUBMISSION DATED 12.3.2009 FRESH FIRMS HAVE BEEN IN CORPORATED. IN MY VIEW IF THIS PLEA OF THE APPELLANT IS ACCEPTED IT WOULD BE GIVIN G DOUBLE DEDUCTION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAND THAT IS ONCE TO THE FIRMS AND SECOND TIME TO THE KINGPIN - THE APPELLANT - SHRI BHAGWANBHAI. THEREFO RE THE SOURCE OF AMOUNTS SHOWN AS EXPLAINED FROM UDI OF THE FIRM SHYAM ORGAN IZERS IN THE SOF OF THE APPELLANT AND IN .THE SUBMISSION FROM THE FIRMS SHY AM DEVELOPERS AND SHYAM CORPORATION IS FOUND NOT EXPLAINED BECAUSE ALREADY HEAVY LAND INVESTMENT M/S. SHYAM GROUPS - 16 - DEDUCTION OF RS.1.24.97.975.HAS BEEN CLAIMED BY SHY AM ORGANISERS IN ITS UDI FILED BEFORE SETTLEMENT COMMISSION AND ALSO BY SHYA M CORPORATION OF RS.35,02,778. 12. HOWEVER SOURCE OF INVESTMENT OF RS.53,87,174 FR OM SALE PROCEEDS OF KATHWADA LAND IS ACCEPTED BECAUSE ADDITION OF THE S ALE PROCEEDS 50% EACH IN THE HANDS OF TWO KINGPINS - BHAGWANBHAI AND ARVIDNDBHAI - HAS BEEN MADE IN THE ORIGINAL BLOCK ASSESSMENT ORDERS AND IS BEING CONFI RMED IN THE APPELLATE ORDERS. 13. IT IS NOT DISPUTED THAT THE APPELLANT ACCEPTED DURING SEARCH THAT FOLLOWING CASH PAYMENTS WERE MADE FOR VASTRAL LAND: RS.1,31,00,000 WAS MADE ON 30.06.1996 AND RS. 78.00,000 WAS MADE ON 1.11.1996 TOTALLING TO RS. 2,09,00,000. OUT OF WHICH SOURCE OF RS.53,87,174 HAS BEEN SUCCES SFULLY EXPLAINED TO BE FROM KATHWADA LAND SALE. ALSO WITHDRAWALS FROM FIRMS OF RS. 14,00,000 IN THE SOF TABLE GIVEN ABOVE IS ACCEPTED AS EXPLAIN ED SOURCE OF INVESTMENT IN VASTRAL LAND BECAUSE BIGGER AMOUNTS HAVE BEEN DECLA RED IN THE SOF OF THE FIRMS AS PARTNERS WITHDRAWALS, AND ADDITION OF THIS AMO UNT IS ALSO DIRECTED TO BE DELETED, HOWEVER OUT OF RS.2,09,00,000 THE SO URCE OF BALANCE INVESTMENT OF RS.1.41.12.826 (RS.2.09.00.000 - RS.53.87.174 + RS. 14.00.000) IS NOT FOUND EXPLAINED AS PER REASONS DISCUSSED IN THE PRECEDING PARAS. THIS LEAVES BOTH PARTIES AGGRIEVED TO THE EXTENT OF THEIR RESPECTIVE PLEADINGS. 15. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO R IVAL SUBMISSIONS. THE ASSESSEES FIRST PLEA IS THAT BOTH THE LOWER AUTHOR ITIES HAVE ERRED IN HOLDING IN AS THE SOLE INVESTOR IN THIS VASTRAL LAND. THE R ELEVANT BANAKHAT IS DATED 15.06.1996 AT PAGES 415 TO 431 OF THE PAPER BOOK ST ATING PAYMENT OF RS.1.31CRORES FOLLOWED BY RS.78LACS AT PAGE 432; TO TALING TO RS.2.09CRORES. THE SAID BANAKHAT ADMITTEDLY REVEALS TO VENDEES INC LUDING ASSESSEE AND SHRI ASHVINBHAI. THE ASSESSEES SEARCH STATEMENT DATED 21.01.1997 AT PAGE 115 OF THE CASE RECORDS ALSO CLARIFIES HIMSELF TO BE NO T THE SOLE VENDEE SINCE TAKING VARIOUS OTHER NAMES S/SHRI KANTIBHAI, ASHVIN BHAI, BACHHUBHAI ETC. BOTH THE LOWER AUTHORITIES REJECT THE SAME AFTER PL ACING HEAVY RELIANCE UPON VENDORS CONFIRMATION OF HAVING RECEIVED THE ENTIRE AMOUNT FROM SHRI BHAGWANBHAI ONLY. WE OBSERVE IN THESE PECULIAR FAC TS THAT THEY HAVE ERRED IN M/S. SHYAM GROUPS - 17 - TAKING THE ASSESSEE AS THE SOLE INVESTOR GOING AGAI NST HIS SEARCH STATEMENT AS WELL AS THE RELEVANT TERMS OF BANAKHAT TO BE TAKEN AS CORRECT U/S. 292C OF THE ACT AS INSERTED BY THE FINANCE ACT, 2008 WITH RETRO SPECTIVE EFFECT FROM 01.10.1975. 16. IT FURTHER EMERGES FROM THE CASE RECORD THAT AS SESSEES CO-VENDEE ASHWINBHAI HAD DISCLOSED A SUM OF RS.72LACS FOR ACQ UISITION OF LANDS IN VDIS 1997 FOLLOWED BY PAYMENT OF TAXES THEREOF. HI S ASSESSMENT ORDER DATED 29.06.2001 PERTAINING TO THE VERY BLOCK PERIO D IN THIS REGARD IS AT PAGE 294. THE ASSESSING OFFICER THEREIN ASSESSES HIM QU A UNDISCLOSED INCOME OF RS.40,60,800/- PERTAINING TO THIS VASTRAL LAND IT SELF AT PAGE 307 AFTER TREATING HIM AS A CO-OWNER. THE OTHER CO-VENDEE SH RI BACHHUBHAI (SUPRA) ALSO MADE A SIMILAR DECLARATION UNDER THE VERY VDI S (PAGES 321 TO 340) WHEREIN PAGE 333 REVEALS HIS INVESTMENT IN THIS VA STRAL LAND. WE THEN NOTICE LAST VENDEE SHRI KANTIBHAIS AFFIDAVIT DATED 07.02.1997 SUPPORTING ASSESSEES PLEA QUA AN AMOUNT OF RS.47,31,300/- (PA GE 289) REGARDING VASTRAL LAND ONLY. IT IS THUS CLEAR THAT BOTH TH E LOWER AUTHORITIES BELOW HAVE ERRED IN TREATING THE ASSESSEE AS THE SOLE INV ESTOR TO THE TUNE OF RS.2.09 CRORES. 17. THIS LEAVES US WITH YET ANOTHER EQUALLY IMPORTA NT QUESTION SOURCE OF ASSESSEES INVESTMENTS IN THIS VASTRAL LAND. THE ASSESSEE PLEADED IN LOWER APPELLATE PROCEEDINGS TO HAVE INVESTED A SUM OF RS. 1,13,15,454/- WITH ABOVE CO-VENDEE ASHWINBHAI I.E. RS.25,96,313/-, RS.73,19, 141/- AND RS.14LACS AS ON 30.06.1996, 01.11.1996 AND 25.12.1996; RESPECTIV ELY. THIS FOLLOWED EXPLANATION OF THE REMAINING AMOUNT OF RS.26,85,075 /- IN CASE OF ASHWINBHAI IN VDIS (SUPRA) OUT OF RS.72LACS, RS.21, 68,171/- PERTAINING TO SHRI BACHHUBHAI AND RS.47,31,300/- RELATES TO SHRI KANTIBHAI; RESPECTIVELY. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUT E ALL THESE FACTS AND M/S. SHYAM GROUPS - 18 - FIGURES IN THE COURSE OF HEARING. WE WISH TO REPEA T HERE AT THIS STAGE THAT THE ASSESSEE HAD ALREADY DISCLOSED BEFORE SETTLEMENT CO MMISSION SOURCE OF THE ABOVE INVESTMENT OF RS.1,00,33,487/- AS EXTRACTED I N THE LOWER APPELLATE ORDER. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT HIS SETTLEMENT PETITION STANDS REJECTED. WE FIND NO FORCE IN THIS PLEA IN VIEW OF SECTION 245HA OF THE ACT WHEREIN SUBSECTION 3 ENVISAGES THA T SUCH KIND OF MATERIAL OR INFORMATION CAN BE TAKEN COGNIZANCE FOR THE PURP OSE OF ARRIVING AT APPROPRIATE CONCLUSION. WE ALSO EMPHASIZE THAT THE SETTLEMENT COMMISSION IN CASE OF M/S. SHYAM ORGANISERS AND THIS TRIBUNAL IN APPEALS PERTAINING TO SHAYM CORPORATION & SHYAM BILDERS HAVE ALREADY ACCE PTED THE FACT THAT ASSESSEE KAKA ACTED AS THEIR AUTHORIZED PERSON FO R LAND PURCHASE TRANSACTIONS. THIS CRUCIAL FACT HAS ATTAINED FINAL ITY AS OF NOW. SO IS THE CASE OF CASH FLOW STATEMENT DEPICTING THIS VASTRAL LAN D TO HAVE BEEN PURCHASED FROM OUTWARD FLOW OF FUNDS FROM THE RELEVANT ENTITI ES FOLLOWED BY INWARD FLOW IN CASE OF THE VERY LAND ACCOUNTS HEADS. LEAR NED CIT(A) IS FAIR ENOUGH IN THE ABOVE EXTRACTED PORTION THAT THE SAID FIRMS HAD CLAIMED HEAVY DEDUCTION. IN VIEW OF ALL THESE FACTS THAT THE ASS ESSEE AT THE MOST HAS FAILED TO EXPLAIN THE SOURCE OF THIS VASTRAL LAND INVOLVING INVESTMENT OF RS.2,09,00,000/- - RS.26,85,075/- (ASHWINBHAI) RS .21,68,171/- (BACHCHUBHAI) RS.47,31,300/- (KANTIBHAI) = RS.1,1 3,15,454/-. HIS SETTLEMENT PETITION HAS ALREADY EXPLAINED SOURCE OF RS.1,00,33,487/- (SUPRA) ON THE BASIS OF COMPREHENSIVE CASH FLOW STATEMENT A LREADY ACCEPTED IN SETTLEMENT COMMISSION AS WELL AS TRIBUNAL (SUPRA). ALL THIS LEAVES BEHIND A PALTRY SUM OF RS.12,81,967/-. HIS SHARE IS ADMITT EDLY 50% EQUAL TO SHRI ASHVIN BHAI. THIS RESULTS IN THE RELEVANT FIGURE O NCE AGAIN COMING DOWN TO RS.6,40,984/- WHICH IS THE RELEVANT SUM OF UNEXPLAI NED INVESTMENT PERTAINING TO THE VERY LAND ALREADY DISCLOSED IN SETTLEMENT PE TITION. WE THUS RESTRICT THE IMPUGNED ADDITION OF RS.2,09,00,000/- TO RS.6.40LAC S ONLY. THE ASSESSEES INSTANT SUBSTANTIVE GROUND IS PARTLY ACCEPTED WHERE AS THE REVENUES TWO M/S. SHYAM GROUPS - 19 - SUBSTANTIVE GROUNDS RAISING THE ISSUE OF UNEXPLAINE D INVESTMENT AS WELL CONSEQUENTIAL SALE PROFIT ADDITION (SUPRA) ARE DECL INED. 18. THE ASSESSEES SECOND SUBSTANTIVE GROUND ALONGW ITH REVENUES THIRD SUBSTANTIVE GROUND ALSO RAISE THE ISSUE OF CORRECTN ESS OF UNEXPLAINED INVESTMENT ADDITION IN UMIYA FARM LAND AMOUNTING TO RS.1,01,00,000/- SPREAD OVER IN ASSESSMENT YEARS 1996-97 AND 1997-98 . THIS ADDITION EMANATES FROM A BANAKHAT ANNEXURE A-2/4 SEIZED AND INVENTORIESED IN THE COURSE OF SEARCH PERTAINING TO 90000 SQ.YARDS. THIS BANAKHAT ALSO REVEALS THREE VENDEES S/SHRI BHIKUBHAI, ARVINDBHAI AND AJIT BHAI (BENAMIDARS). THE RELEVANT ADVANCE MONEY PAID WAS OF RS.1.01 CRORES O UT OF GROSS AMOUNT OF RS.2,70,90,000/-. THE VENDOR ALSO CONFIRMS THE ABO VE ADVANCE PAYMENT. THE ASSESSING OFFICER THEREFORE ADDED THE SAME IN A SSESSEES HANDS AS UNEXPLAINED INVESTMENTS AFTER REJECTING HIS VARIOUS PLEAS INTER ALIA CLAIMING SOURCE THEREOF TO SHAYM GROUP PROFITS, RELEVANT NOT INGS TO THIS EFFECT IN DUPLICATE CASH BOOK WHICH SHOULD DULY OFFERED AS IN COME ETC. 19. THE CIT(A) PARTLY UPHOLDS THE ABOVE ADDITIONS A S FOLLOWS: 15. UNEXPLAINED INVESTMENT IN UMIYA FARM LA ND OF RS.1,01,00,000 GROUND NO.17 AY 1996-97 RS.5,00,000 GROUND NO.25 AY 1997-98 RS.96,00,000 AS PER PARA 7 OF THE ASSESSMENT ORDER, THE AO ADDED RS.1,01,00,000 AS CASH PAID BY THE APPELLANT FOR PURCHASE OF LAND MEASURING 900 00 SQ. YARDS LOCATED AT VILLAGE MUTHIYA, DIST AHMEDABAD. THOUGH THE TOTAL CONSIDERATION FOR 90,000 SQ.YDS OF LAND AT THE RATE OF RS.301 WAS AS PER 'BANAKHAT' RS.2,70,90,000 BUT IN THE INTERES T OF JUSTICE THE AO TOOK FOLLOWING CASH PAYMENTS MADE TILL THE DATE OF SEARCH: RS. 5,00,000 WAS MADE ON 15.03.1996, RS.62,00,000 WAS MADE ON 30.9.1996 AND RS.34,00,000 ON VARIOUS DATES FROM 30.09.1996 TILL THE DATE OF SEARCH TOTALING TO RS.1,01,00,000. THIS ADDITION WAS MADE ON THE BASIS OF 'BANAKHAT' S EIZED FROM THE OFFICE OF SHYAM BUILDERS GROUP MARKED AS ANNEXURE A-2 /14 WHICH INF ORMED THAT THE SELLERS OF THE M/S. SHYAM GROUPS - 20 - LAND HAD RECEIVED RS.1,01,00,000 TILL THE DATE OF S EARCH. THIS FACT WAS CONFIRMED BY THE APPELLANT IN RESPONSE TO QUESTION NO.28 ASKE D ON THE DATE' OF SEARCH I.E. 21.1.1997 CASH PAYMENT WAS CONFIRMED BY PAGE NO.3 O F DIARY A - 2/10 SEIZED FROM THE OFFICE OF THE GROUP. THE ORDER IN PARA 7.6 MENT IONS THAT FOUR SELLERS OF THE LAND ALSO REAFFIRMED IN THEIR STATEMENTS RECORDED THAT T HEY HAD RECEIVED CASH PAYMENT OF RS.1,01,00,000 FROM THE APPELLANT. 16. DURING THE COURSE OF APPELLATE PROCEEDINGS, IT WAS ARGUED THAT THE ENTIRE RS.1,01,00,000 CANNOT BE ADDED IN THE HANDS OF THE APPELLANT. A TABLE GIVING SOURCE OF RS.73,94,370 FROM VARIOUS FIRMS WAS SUBMI TTED VIDE SUBMISSION DATED 12.3.2009 AND IS GIVEN BELOW: DATE AMOUNT REMARKS 15.03.1996 5,00,000 FROM SHYAM CORP ORATION WHEREIN IT HAS BEEN TAXED DURING THE BLOCK ASSESSMENT. 10.9.1996 10,00,000 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN TAXED DURING THE BLOCK ASSESSMENT. 30.9.1996 20,20,513 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFE RED AS UDI BEFORE SETTLEMENT COMMISSION. 5,64,410 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN TAXED DURING THE BLOCK ASSESSMENT. 2,51,000 FROM SHYAM DEVELOPERS WHEREIN IT HAS BEEN TAXED DURING THE BLOCK ASSESSMENT. 1,08,452 SALE PROCEEDS FROM KATHWADA LAND OFFERED BEFORE SETTLEMENT COMMISSION BY THE APPELLANT. 26.10.1996 8,00,000 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. 29.10.1996 3,45,626 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LAR GER AMOUNT HAS OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. 54,374 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. 30.10.1996 95,626 SURPLUS FROM SHYAM CORPORATION TAXED IN BLOCK ASSESSMENT. 2,00,000 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. M/S. SHYAM GROUPS - 21 - 1,04,374 SALE PROCEEDS FROM KATHWADA LAND OFFERED BEFORE SETTLEMENT COMMISSION BY THE APPELLANT. 24.12.1996 1,50,000 SURPLUS FROM SHYAM DEVELOPERS TAXED IN THE HANDS OF THE FIRM DURING THE BLOCK ASSESSMENT. 10,50,000 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. 1,50,000 SURPLUS FROM SHYAM CORPORATION TAXED IN BLOCK ASSESSMENT 73,94,375 IT WAS ARGUED THAT THE SOURCE OF ABOVE RS.73,94,375 WAS FROM INCOME OF FIRMS MENTIONED IN THE TABLE ABOVE AND THAT BALANCE RS.28 ,00,000 HAD ALREADY BEEN ADDED IN THE CASE OF SHRI KANTIBHAI PATEL IN THE BL OCK ASSESSMENT ORDER DATED 26.12.2008. 17. AFTER GOING THROUGH RIVAL SUBMISSIONS, IT IS SE EN THAT IN THE STATEMENT OF FACTS OF THE FIRM SHYAM ORGANISERS SUMMARY OF WHICH IS REPRO DUCED BELOW ALREADY RS.1,24,97,975 HAS BEEN REDUCED BY THE APPELLANT AS LAND INVESTMENT FROM UDI AND FROM SHYAM CORPORATION HEAVY DEDUCTION OF RS. 3 5,02,778 HAS BEEN TAKEN FROM THE UDI. 18. THE SUMMARY OF BOTH THESE FIRMS OF SOF IS GIVEN BELOW: STATEMENT OF FACTS OF SHYAM ORGANIZERS FILED BEFORE SETTLEMENT COMMISSION YEAR NARRATION SURRENDER BEFORE SETTLEMENT COMMISSION AY 1994-1995 UNEXPLAINED INVESTMENT IN PURCHASE OF LAND FOR THE SCHEME SHYAM DARSHAN RS. 33,22,850 AY 1995-1996 NET SURPLUS PARTNERS WITHDRAWALS DON ATION RS. 24,50,000 RS. 1,43,768 RS. 1,48,675 AY 1996-1997 NET SURPLUS PARTNERS WITHDRAWALS DONATION RS. 78,25,000 RS. 11,28,737 RS. 1,22,171 BROKEN PERIOD 1-4- 1996 - 21-1-1997 NET SURPLUS PARTNERS WITHDRAWALS DONATION RS.1,22,25,000 RS. 1135,047 RS. 58,580 TOTAL RS.2,89,82,133 M/S. SHYAM GROUPS - 22 - LESS AMOUNT PAID FOR LAND PURCHASED RS.1,24,97,975 RS.1,64,84,158 LESS INCOME AS PER BLOCK RETURN RS. 22,71,790 ADDITIONAL INCOME BEFORE SETTLEMENT COMMISSION RS.1, 42,12368 19. STATEMENT OF FACTS OF SHYAM CORPORATION FI LED BEFORE SETTLEMENT COMMISSION YEAR NARRATION SURRENDER BEFORE SETTLEMENT COMMISSION AY 1994-1995 UNACCOUNTED PURCHASE OF LAND LESS:SURPLUS FRONT SHYAM CONSTRUCTION RS. 19,03,201 RS. 7,74,109 RS. 11,34,090 AY 1995-96 NET SURPLUS PARTNERS WITHDRAWALS RS. 9,99,000 RS. 1,22,220 RS.10,223,220 AY 1996-97 NET SURPLUS PARTNERS WITHDRAWALS RS. 41,19,000 RS. 3,70,000 RS. 44,89,000 BROKEN PERIOD FROM 1-6- 1996 TO 21-1-1997 NET SURPLUS PARTNERS WITHDRAWALS RS. 53,00,000 RS. 3,21,775 RS. 56,21,775 TOTAL RS.1,22,68,087 LESS: AMOUNT PAID FOR LAND PURCHASE RS. 35,02,778 RS. 87,66,5,308 LESS INCOME AS PER BLOCK RETURN RS. 28,55,930 ADDITIONAL INCOME BEFORE SETTLEMENT COMMISSION RS. 59,09,378 20. THE ABOVE INCOME HAS BEEN ACCEPTED IN BLOCK ASS ESSMENTS OF THE FIRMS AND CONFIRMED IN APPEALS ALSO. THE QUESTION IS HOW CAN FROM THE SAME INCOME ANOTHER SET OFF ON ACCOUNT OF LAND INVESTMENT BE GIVEN ONCE TO THE FIRM AND SECOND TIME TO THE APPELLANT ? THIS CONTENTION OF SOURCE FROM FIRMS IS THUS NOT AC CEPTABLE AS IT HAS BEEN GIVEN IN A VAGUE MANNER. HOWEVER SALE PROCEEDS FROM KATHWADA LAND ARE ACCEPTED AS EXPLAINED SOURCE BECAUSE THEY HAVE BEEN DECLARED AS UDI BV THE TWO KINGPINS IN THEIR SOFS FILED BEFORE SETTLEMENT COMMISSION ALSO AND NO LAND INVESTMENT DEDUCTIONS HAVE BEEN CLAIMED FROM THIS INCOME. THIS IS ALSO IMPORTANT TO M/S. SHYAM GROUPS - 23 - REMEMBER THAT RS.28,00,000 WAS ACCEPTED GIVEN TO KA NTIBHAI BY THE APPELLANT AND THIS RS.28,00,000 IS PART OF AMOUNT PAID OF RS.1,01 ,00,000. REFERENCE IS INVITED TO THE BLOCK ASSESSMENT ORDER DATED 26.12.2008 PASSED IN THE CASE OF SHRI HARSHAD K PATEL, LEGAL HEIR OF LATE SH RI KANTIBHAI PATEL, WHEREIN RS.28,00,000 HAS BEEN ADDED ON THE BASIS OF STATEME NT OF BHAGWANBHAI PATEL. IN THE BLOCK ORDER OF KANTIBHAI REPLY OF BHAGWANBHAI G IVEN VIDE QUESTION NO.22 ASKED DURING SEARCH STATEMENT HAS BEEN REPRODUCED I N WHICH BHAGWANBHAI HAS CONFIRMED HAVING PAID RS.28,00,000 TO KANTIBHAI. IN MY VIEW NO ADDITION WAS WARRANTED IN THE HANDS OF KANTIBHAI WHO WORKED PRIM ARILY AS A BROKER AND WHO RECEIVED THIS AMOUNT FROM BHAQWANBHAI. IT IS BHAGWA NBHAI WHO SHOULD EXPLAIN THE SOURCE, WHEREAS INSTEAD OF EXPLAINING THE SOURC E IN THE APPELLATE PROCEEDINGS THE PLEA IS BEING TAKEN THAT THIS AMOUNT HAS ALREAD Y BEEN ADDED IN THE CASE OF KANTIBHAI AND HENCE NO ADDITION SHOULD BE MADE HERE . A COPY OF THIS ORDER IS BEING PASSED ON TO THE CIT(A)-XI WHERE KANTIBHAIS APPEAL IS PENDING. THEREFORE THE ADDITION OF UNEXPLAINED INVESTMENT IN UMIYA FARM LAND IS CONFIRMED DELETING THE SOURCE EXPLAINED FROM KATHWADA LAND SA LE RS.2,12,826 (RS.1,08,452 + 1,04,374) BALANCE ADDITION OF RS.98,87,174 (RS.1, 01,00,000-RS.2,12,826) IS UPHELD. 20. HEARD BOTH SIDES. WE NOTICE HEREIN AS WELL THA T THE ASSESSING OFFICER AS WELL AS THE CIT(A) ASSESS THE ENTIRE INVESTMENT AMOUNT IN ASSESSEES HANDS WHEREAS HIS SEARCH STATEMENT AT PAGES 118 TO 123 MA KES IT CLEAR THAT HE ALONGWITH OTHER ASSESSEE KANTIBHAI (SUPRA) HAD CO-P URCHASED THE LAND IN QUESTION AS PARTNERS. THE CIT(A)S FINDINGS TREATI NG THE SAID OTHER ASSESSEE AS A MERE COMMISSION AGENT ARE ACCORDINGLY REVERSED . SHRI KANTIBHAIS ACCOUNT STOOD DEBITED TO THE EXTENT OF RS.16LACS GI VING RISE TO ASSESSMENT OF UNDISCLOSED INCOME OF RS.28LACS IS THUS GRANTED CRE DIT QUA THE FORMER SUM. THE IMPUGNED ADDITION AMOUNT OF RS.1,01,00,000/- IS ACCORDINGLY REDUCED BY THE ABOVESTATED SUM OF RS.16LACS LEAVING BEHIND THE REMAINING FIGURE OF RS.85LACS ONLY. MR. THAKKAR TAKES US ONCE AGAIN TO ASSESSEES SEARCH STATEMENT AT PAGE 123 THAT SHRI BACHCHUBHAI WAS ALS O INCLUDED AS A PARTNER IN THE IMPUGNED PARCEL OF LAND WHO ALSO DECLARED THE V ERY INVESTMENT IN VDIS (SUPRA) ALONG WITH HIS SON SHRI AJIT B CHAUHAN. MR . THAKKARS CASE THEREFORE IS THAT THE SAID TWO ASSESSEES HAVE ALSO BEEN ASSESSED TO THE EXTENT OF RS.33.16LACS INVESTMENT AMOUNT INCLUDING THIS UM IYA LAND. ALL THESE FACTS GO UNREBUTTED FROM REVENUES END. COUPLED WI TH THIS, THE ASSESSEE HAS M/S. SHYAM GROUPS - 24 - ALREADY DISCLOSED IN HIS SETTLEMENT PETITION A SUM OF RS.73,94,375/- AS RECEIVED FROM SHYAM GROUP ENTITIES AS PER THEIR CAS H FLOW STATEMENT ACCEPTED IN SETTLEMENT COMMISSION AS WELL AS THIS TRIBUNAL ( SUPRA). WE THUS CONCLUDE THAT THE ASSESSEE HAS SUFFICIENTLY EXPLAINED SOURCE OF THE IMPUGNED INVESTMENT AMOUNT FOLLOWED BY HIS SETTLEMENT PETITI ON INDICATING DISCLOSURE OF RS.4,61,094/- IN THE IMPUGNED HEAD. WE ACCORDIN GLY RESTRICT THE IMPUGNED ADDITION TO THE EXTENT OF ASSESSEES DISCL OSURE IN A SETTLEMENT PETITION HEREINABOVE AND DELETE THE REMAINING ADDIT ION AMOUNT UNDER CHALLENGE. THE ASSESSEES SUBSTANTIVE GROUND IS AC CEPTED WHEREAS THAT RAISED AT REVENUES BEHEST FAILS. 21. ASSESSEES THIRD SUBSTANTIVE GROUND PLEADS THAT THE AUTHORITIES BELOW HAVE ERRED IN MAKING UNEXPLAINED INVESTMENT ADDITIO N OF RS.1,49,27,709/- PERTAINING TO NAVA NARODA LAND IN ASSESSMENT YEAR 1 997-98. WE NOTICE THAT THE CIT(A)S DISCUSSION RELEVANT TO THE INSTANT ISS UE READ AS UNDER: 23. UNEXPLAINED INVESTMENT IN LAND AT NAVA NARODA O F RS.1,49,27,709 AS PER PARA 9 OF THE ASSESSMENT ORDER, THE AO ADDED RS.1,49,27,729 AS CASH PAID BY THE APPELLANT FOR PURCHASE OF LAND MEASURING 420 00 SQ. YARDS LOCATED AT VILLAGE NARODA, DIST AHMEDABAD. CASH PAYMENT TILL THE DATE OF SEARCH OF RS.5,00,000 WAS MADE ON 3.4.1996, OF RS.98,00,000 WAS MADE ON 4.6.1996 AND RS.46,27,709 ON VARIOUS DATES TILL THE DATE OF SEARCH TOTALING TO RS. 1,49,27,709. THIS HA S BEEN DISPUTED IN THE FOLLOWING GROUND: GROUND NO.27 AY 1997-98 RS.1,49,27,709 THIS ADDITION WAS MADE ON THE BASIS OF 'BANAKHAT' S EIZED FROM THE OFFICE OF SHYAM GROUP OF BUILDERS MARKED AS ANNEXURE A-2/16 AND ON THE BASIS OF THE STATEMENT RECORDED OF THE APPELLANT DURING THE SEARCH. THIS C ASH PAYMENT PAID TO THE VENDORS OF LAND IS CORROBORATED BY PAGE 6 OF DIARY (A -2/10 ) SEIZED FROM OFFICE PREMISES. IN THE BLOCK ASSESSMENT ORDER IN PARA 9.6 THE AO HA S STATED THAT THREE PERSONS OUT OF 8 WHO SOLD THE. LAND CONFIRMED IN THE STATEMENTS RECORDED THAT THEY RECEIVED RS.1,49,27,709 FROM BHAGWAN K PATEL. IT HAS ALSO BE EN EMPHASIZED BY THE AO IN PARA 9.9.1 THAT THE APPELLANT CONFESSED IN THE STAT EMENT RECORDED DURING SEARCH THAT THE PURCHASERS MENTIONED IN THE 'BANAKHAT' WER E BENAMIDARS OF HIMSELF AND OTHERS. M/S. SHYAM GROUPS - 25 - 24. DURING THE COURSE OF APPELLATE PROCEEDINGS, IT WAS ARGUED THAT THE ENTIRE RS.1,49,27,709 CANNOT BE ADDED IN THE HANDS OF THE APPELLANT BECAUSE THERE ARE OTHER CO-OWNERS. VIDE PAGE 59 OF THE SUBMISSION DATED 12.3.2009 A TA BLE GIVING SOURCE OF RS.97,53,241 OF INVESTMENT MADE BY THE APPELLANT FR OM VARIOUS FIRMS WAS FURNISHED AND IS GIVEN BELOW: DATE AMOUNT REMARKS 3.4.1996 5,00,000 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN OFFERED BEFORE SETTLEMENT COMMISSION AND HAS BEEN TAXED IN THE BLOCK ASSESSMENT, AND CONFIRMED IN APPEAL VIDE ORDER DATED 11.9.2009. 22.4.1996 17,99,496 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN OFFERED BEFORE SETTLEMENT COMMISSION AND HAS BEEN TAXED IN THE BLOCK ASSESSMENT, AND CONFIRMED IN APPEAL VIDE ORDER DATED 11.9.2009. 7,00,594 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFERED AS TJDI BEFORE SETTLEMENT COMMISSION. THE APPLICATION HAS BEEN ADMITTED. 27.41996 20,00,000 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. THE APPLICATION HAS BEEN ADMITTED . 18.5.1996 8,46,850 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN OFFERED BEFORE SETTLEMENT COMMISSION AND HAS BEEN TAXED IN THE BLOCK ASSESSMENT, AND CONFIRMED II) APPEAL VIDE ORDER DATED 11.9.2009. 4.6.1996 38,740 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN OFFERED BEFORE SETTLEMENT COMMISSION AND HAS BEEN TAXED IN THE BLOCK ASSESSMENT, AND CONFIRMED IN APPEAL VIDE ORDER DATED 11.9.2009. 15.9.1996 25,67,651 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN OFFERED BEFORE SETTLEMENT COMMISSION AND HAS BEEN TAXED IN THE BLOCK ASSESSMENT, AND CONFIRMED IN APPEAL VIDE ORDER DATED 11.9.2009. M/S. SHYAM GROUPS - 26 - 11.12.1996 6,50,000 FROM SHYAM CORPORATION WHEREIN IT HAS BEEN OFFERED BEFORE SETTLEMENT COMMISSION AND HAS BEEN TAXED IN THE BLOCK ASSESSMENT, AND CONFIRMED IN APPEAL VIDE ORDER DATED 11.9.2009. 6,50,000 SURPLUS FROM SHYAM ORGANISERS WHEREIN A LARGER AMOUNT HAS BEEN OFFERED AS UDI BEFORE SETTLEMENT COMMISSION. THE APPLICATION HAS BEEN ADMITTED . 97,53,241 25. AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEE N THAT THE FIRMS MENTIONED IN THE TABLE ABOVE I.E. SHYAM ORGANISORS AND SHYAM CO RPORATION HAVE CLAIMED HEAVY DEDUCTIONS ON ACCOUNT OF INVESTMENT IN LAND FROM THE UNDISCLOSED INCOME DECLARED BEFORE SETTLEMENT COMMISSION. THE SUMM ARY OF STATEMENT OF FACTS OF SHYAM ORGANISERS IS AVAILABLE IN PARA 18 ABOVE AND THAT OF SHVAM CORPORATION IN PARA 10 ABOVE. WHILE SHVAM ORGANISORS HAS CLAIMED A DEDUCTION OF RS. 1,24,97,975 ON ACCOUNT OF LAND-INVESTMENT. SHVAM CO RPORATION HAS CLAIMED DEDUCTION OF RS.35,02,778. IT IS AFTER REDUCING THE SE AMOUNTS THAT TAX HAS BEEN PAID BV THE APPELLANT BEFORE SETTLEMENT COMMISSION. NOW ONCE AGAIN FROM THE INCOME DISCLOSED OF THE FIRMS IN THE TABLE ABOVE SE T OFF OF UNEXPLAINED INVESTMENT /CASH PAYMENT FOR LAND PURCHASE HAS BEEN CLAIMED IN THE SUBMISSION DATED 12.3.2009. IN MY VIEW IF THIS PLEA OF THE APPELLANT IS ACCEPTED IT WOULD AMOUNT TO GIVING DOUBLE DEDUCTION ON ACCOUNT OF UNEXPLAINED I NVESTMENT IN LAND THAT IS ONCE TO THE FIRMS AND SECOND TIME TO THE KINGPIN - THE A PPELLANT - SHRI BHAGWANBHAI. ALSO HOW CAN ANY DEDUCTION ON ACCOUNT OF INVESTMENT IN LAND BE GIVEN FROM INCOME ASSESSED IN THE BLOCK ASSESSMENT BECAUSE THI S HAS BEEN DISPUTED BY THE APPELLANT. EVEN IF THIS INCOME' IS CONFIRMED BY CIT (A) THEN TOO HOW CAN DEDUCTION BE ALLOWED TO THE APPELLANT ON ACCOUNT OF LAND IN VESTMENT BECAUSE THE INCOME SO ASSESSED IN ASSESSMENT OR APPELLATE ORDER IS NOT ACCEPTED BY THE APPELLANT. THEN HOW CAN DEDUCTION BE CLAIMED BY THE APPELLANT AND H OW CAN IT BE ALLOWED IN HIS INDIVIDUAL CAPACITY AS ALREADY LAND INVESTMENT DEDU CTIONS HAVE BEEN ALLOWED TO THE FIRMS. IF DEDUCTION IS ALLOWED TO THE APPELLANT PRACTICALLY THE INCOME DECLARED BY THE FIRMS BEFORE SETTLEMENT COMMISSION RE DUCES TO A NEGLIGIBLE AMOUNT BECAUSE ONCE DEDUCTION HAS BEEN CLAIMED BEFORE ARRI VING AT UDI AND AGAIN FURTHER DEDUCTION IS BEING CLAIMED FOR LAND INVESTM ENT FROM THE REDUCED UDI. THE DATES AND AMOUNTS GIVEN IN THE TABLE ABLE DO NOT IN ANY WAY TALLY WITH THE TWO CLEAR CUT DATES OF CASH PAYMENTS I.E. RS.5,00,000 P AID ON 3.4.1996 AND RS.98,00,000 PAID ON 4.6.1996. THEREFORE THE ADDIT ION OF RS.1,49,27,709 IN NAVA NARODA LAND PURCHASE BY THE APPELLANT IS CONFIRMED. 22. WE HAVE HEARD RIVAL SUBMISSIONS. IT IS EVIDENT FIRST OF ALL THAT THE CIT(A) HAS ADOPTED THE VERY REASONING AS IN PRECEDI NG ISSUES IN NOT TREATING M/S. SHYAM GROUP ENTITIES TO HAVE ADVANCED THE IMPU GNED SUM TO THE TUNE OF RS.97.53LACS FORMING PART OF THEIR SETTLEMENT PETIT ION INCLUDING CASH FLOW M/S. SHYAM GROUPS - 27 - STATEMENT TO THIS EFFECT. WE THUS ACCEPT ASSESSEE S ARGUMENTS BY ONCE AGAIN REITERATING SETTLEMENT COMMISSIONS AS WELL AS THIS TRIBUNALS FINDINGS EXTRACTED HEREINABOVE TO THE EXTENT OF INVESTMENT A MOUNT OF RS.97,53,241/-. WE FURTHER REITERATE THAT THE ASSESSEE AND HIS NEPH EW ARVINDBHAI (SUPRA) HAD BEEN HAVING EQUAL SHARE IN INVESTMENTS AS PER THEIR DUPLICATE BOOKS OF ACCOUNTS. COMING TO REMAINING ADDITION SUM OF RS.5 1,74,468/-, IT EMERGES FROM PAGE 273 OF THE PAPER BOOK THAT THE ASSESSING AUTHORITY IN KANTIBHAIS BLOCK ASSESSMENT HAS ACCEPTED ASSESSEES SEARCH STA TEMENT ATTRIBUTING SOURCE OF RS.13LACS QUA THE VERY LAND (SUPRA). WE THEREFO RE GRANT CREDIT TO THE EXTENT OF THIS INVESTMENT AMOUNT AS WELL. THE UNEX PLAINED AMOUNT THAT REMAINS NOW IS RS.38,74,468/- ONLY. IT IS FURTHER EVIDENT THAT SHRI BACHCHUBHAI AND HIS SON AJITBHAI HAVE ALSO DECLARED TO HAVE MADE INVESTMENTS IN THE IMPUGNED LAND UNDER VDIS (SUPRA) AT PAGE 324 OF THE PAPER BOOK. LEARNED DEPARTMENTAL REPRESENTATIVE FA ILS TO COTROVERT SAID INVESTMENTS TO THE TUNE OF RS.18,49,848/-. IT FURT HER EMERGES THAT THE ASSESSEE ALSO PRODUCED AFFIDAVIT / PROMISSIORY NOTE DATED 07.02.1997 AT THE BEHEST OF GOVERDHANBHAI AND 6OTHERS EXPLAINING SOUR CE OF RS.46LACS IN THIS PARCEL OF LAND. THIS AFFIDAVIT SEEMS TO HAVE BEEN FILED RIGHT BEFORE THE ADIT IMMEDIATELY AFTER SEARCH IN QUESTION DATED 21.01.19 97. THE SAME HAS GONE UNREBUTTED RIGHT IN THE COURSE OF BLOCK ASSESSMENT, ASSESSING OFFICERS REMAND REPORT SUBMITTED BEFORE THE CIT(A) AND IN LO WER APPELLATE PROCEEDINGS. WE CONCLUDE IN VIEW OF ALL THESE FACT S THAT THE ASSESSEE HAS SUFFICIENTLY EXPLAINED THE IMPUGNED INVESTMENT OF R S.1.47CRORES. THE RELEVANT ADDITION SUBJECT MATTER OF CHALLENGE IN TH E INSTANT GROUND IS THUS DELETED. 23. MR. ASEEM THAKKAR IS VERY FAIR IN NOT PRESSING ASSESSEES FOURTH SUBSTANTIVE GROUND CHALLENGING UNEXPLAINED INVESTME NT ADDITION OF RS.48000/- MADE IN RESPECT OF LANDS PURCHASED AT BA LAPUR AND BAVDA KEEPING M/S. SHYAM GROUPS - 28 - IN MIND SMALLNESS OF THE AMOUNT. THIS SUBSTANTIVE GROUND IS ACCORDINGLY REJECTED AS NOT PRESSED. 24. THE ASSESSEES FIFTH AND REVENUES SIXTH SUBSTA NTIVE GROUND CHALLENGE CORRECTNESS OF THE CIT(A)S ORDER RESTRICTING UNEXP LAINED INVESTMENT ADDITION OF RS.59,64,993/- TO RS.29,82,447/- @ 50% IN RESPEC T OF LANDS PURCHASED AT NARODA (KATHWADA) IN ASSESSMENT YEAR 1995-96. MR. THAKKAR SUBMITS THAT THE ASSESSEE HAS ALREADY ADMITTED A SUM OF RS.28LAC S IN HIS SETTLEMENT COMMISSION PETITION (SUPRA) WHICH IS NOT DISPUTED F ROM REVENUES SIDE. THE SUM IN QUESTION LEFT BEHIND IS THEREFORE RS.1,82,49 7/- ONLY. WE CONCLUDE IN THESE FACTS THAT THE ASSESSEE DESERVES TO BE ALLOWE D SET OFF OF THE ABOVESTATED REMAINING FIGURE IN VARIOUS ACCOUNTS FORMING SUBJEC T MATTER OF THE INSTANT LIS. WE THEREFORE PARTLY ALLOW BOTH PARTIES CORRESPONDI NG GROUNDS. 25. THE ASSESSEES SIXTH SUBSTANTIVE GROUND RAISES THE ISSUE OF CORRECTNESS OF UNEXPLAINED INVESTMENT ADDITION OF RS.22.64LACS MADE IN DHANSURA TALUKA (HILL STATION ROAD) IN ASSESSMENT YEAR 1997-98. TH E CIT(A)S FINDING UNDER CHALLENGE TO THIS EFFECT READ AS UNDER: 31. ADDITION OF RS.22,64.OOP ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAND AT DHANSURA. TALUKA (HILL STATION LAND) THIS ADDITION HAS BEEN MADE AS PER PARA 13 OF THE B LOCK ASSESSMENT ORDER. THIS WAS MADE ON THE BASIS OF DIARY MARKED - ANNEXURE A- 5 -FOUND FROM THE 'RESIDENCE OF THE APPELLANT AND THE STATEMENT RECORDED OF THE APPELLANT DURING SEARCH (PARA 13.2). IN PARA 13.6 THE AO HAS STATED THAT OUT OF T OTAL CONSIDERATION PAID FOR THIS LAND OF RS.32,00,000, RS.9.36 LACS WAS PAID BY SHRI KANTIBHAI AND BALANCE RS.22,64,000 WAS PAID BY THE APPELLANT TILL THE DAT E OF SEARCH. THIS HAS BEEN DISPUTED IN THE FOLLOWING GROUND: GROUND NO.29 1997-98 RS.22,64,000 DURING THE COURSE OF APPELLATE PROCEEDINGS IT WAS A RGUED THAT THE APPELLANT DID NOT HAVE ANYTHING TO DO WITH THIS LAND AND ALREADY ADDITION HAS BEEN MADE IN THE CASE OF BLOCK ASSESSMENT ORDER OF KANTIBHAI. M/S. SHYAM GROUPS - 29 - 32. AFTER GOING THROUGH THE RIVAL SUBMISSIONS, IT I S SEEN THAT THE APPELLANT HIMSELF ADMITTED IN THE STATEMENT RECORDED DURING SEARCH ON 21.01.1997 THAT LAND MEASURING 318 ACRES (HILL STATION LAND) WAS PURCHAS ED FOR A TOTAL CONSIDERATION OF RS.36.1 LACS, OUT OF WHICH RS.9.36 LACS WAS PAID TO THE APPELLANT BY KANTIBHAI WHICH WAS HANDED OVER TO THE SELLER SHRI IMTIAZBHAI . THIS WAS ALSO CONFIRMED DURING THE STATEMENT THAT TOTAL RS.32 LACS ON ACCOU NT OF THIS LAND HAD BEEN PAID TO SHRI IMTIAZBHAI IN CASH TILL THE DATE OF SEARCH. TH E BLOCK ASSESSMENT ORDER OF SHRI HARSHAD K PATEL LEGAL HEIR OF KANTIBHAI PATEL DATED 26.12.2008 SHOWS ADDITION OF ONLY RS.9,36,000 FOR AY 1997-98. THOUGH DURING THE COURSE OF APPELLATE PROCEEDINGS IT WAS ARGUED BY THE LD.AR THAT AFFIDAV IT OF HARSHAD K PATEL WAS SUBMITTED AT THE TIME OF BLOCK ASSESSMENT, BUT NO P ROOFS OF SUBMISSION OR COPY OF AFFIDAVIT WERE FURNISHED DURING THE COURSE OF APPEL LATE PROCEEDINGS. THE LD.AR COULD NOT PROVE THAT ANY AFFIDAVIT WAS FURNISHED AT ALL. THIS IS ALSO IMPORTANT TO REMEMBER THAT THE DIARY CONTAINING CASH PAYMENT WAS FOUND FROM THE RESIDENCE OF THE APPELLANT, THEREFORE, IN THE LIGHT OF THE EVIDE NCE AND STATEMENT OF THE APPELLANT HIMSELF THE ADDITION MADE BY THE AO IS CONFIRMED OF RS. 22,64,000. 26. WE HAVE HEARD RIVAL CONTENTIONS. THIS DHANSURA LAND ADMITTEDLY MEASURES 318ACRES @ RS.11,351/- PER ACRE; TOTALING TO RS.36.10LACS. THE ASSESSEES SEARCH STATEMENT AT PAGE 97 CLARIFIES SO URCE OF RS.9.36LACS TO SHRI KANTIBHAI AS A PARTNER. THIS AMOUNT ALREADY STANDS ASSESSED IN HIS HANDS (SUPRA). THE ASSESSING OFFICER HEREIN THEREFORE AS SESSEES THE BALANCE AMOUNT 22.64LACS AS UNEXPLAINED INVESTMENT. MR. TH AKKAR SEEKS TO INVITE OUR ATTENTION TO CASE RECORDS COMPRISING OF HARSHAD PATEL S/O SHRI KANITBHAI HEREINABOVES STATEMENT THAT THE LAND IN QUESTION D OES NOT BELONG TO THE ASSESSEE WHICH IS NOT STATED TO BE REBUTTED IN ASSE SSING OFFICERS REMAND REPORT FILED BEFORE THE CIT(A). WE FIND NO FORCE I N THIS TECHNICAL PLEA AS THAT WOULD MOUNT TO REVERSING ASSESSING OFFICERS FINDIN GS IN SHRI KANTIBHAIS CASE IN TREATING HIM AS THE SOLE INVESTOR INSTEAD O F THAT TO THE EXTENT OF RS.9.36LACS HEREINABOVE. WE FURTHER REITERATE THAT ASSESSEES SEARCH STATEMENT AT PAGE 97 ALSO PROJECTS HIMSELF TO BE A CO-PURCHASER. WE THUS DECLINE IN THE INSTANT SUBSTANTIVE GROUND. 27. THE ASSESSEES AND REVENUES SEVENTH SUBSTANTIV E GROUND PLEADS THAT THE CIT(A) HAS ERRED IN CONFIRMING UNEXPLAINED INVE STMENT ADDITION OF M/S. SHYAM GROUPS - 30 - RS.4,80,175/- @ 25% OF GROSS SUM OF RS.19,20,700/- PERTAINING TO MAHADEVNAGAR LANDS IN ASSESSMENT YEAR 1995-96. THE ASSESSING OFFICER INVOKED THE SAID ADDITION AFTER TAKING NOTE OF A BA NAKHAT INDICATING THE ASSESSEE, KANTIBHAI, ASHWINBHAI AND ANOTHER CO-VEND EE TO HAVE AGREED TO PURCHASE 25% SHARE EACH IN ABOVE LAND FOR RS.34,10, 410/- OUT OF WHICH ADVANCE AMOUNT OF RS.19,20,700/- STOOD PAID. THE A SSESSEE ADMITTEDLY COULD NOT CHALLENGE CORRECTNESS THEREOF BEFORE THE ASSESS ING OFFICER AS WELL AS CIT(A) WHO HAVE PROCEEDED TO MAKE THE IMPUGNED ADDI TION TO THE EXTENT OF 1/4 TH OF THE TOTAL ADVANCE AMOUNT. BOTH THE ASSESSEE AS WELL AS REVENUE FAIL TO REBUT THE ABOVE ASSESSMENT OF 1/4 TH AMOUNTS ASSESSMENT IN ASSESSEES HANDS AS UNEXPLAINED INVESTMENT. THIS SUBSTANTIVE GROUND IN ASSESSEES AS WELL AS REVENUES APPEAL IS ACCORDINGLY REJECTED. 28. THE ASSESSEES EIGHTH SUBSTANTIVE GROUND AVERS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN MAKING THE UNDISCLOSED PR OFIT ADDITION ON SALE OF MAHADEVNAGARS LAND IN ASSESSMENT YEAR 1996-97 TO T HE TUNE OF RS. 2,45,000/-. BOTH PARTIES INFORM US THAT THIS GROUN D IS CONSEQUENTIAL TO PRECEDING SUBSTANTIVE GROUND AS NO CHANGE IN FACTS IS INVOLVED HEREIN. WE THUS UPHOLD THE CIT(A)S FINDINGS UNDER CHALLENGE Q UA THE INSTANT SUBSTANTIVE GROUND. 29. THE ASSESSEES NINTH SUBSTANTIVE GROUND CHALLEN GES CORRECTNESS OF UNEXPLAINED INVESTMENT ADDITION OF RS.8,54,704/- I. E. RS.4LACS, RS.2.28LACS, RS.50,000/-, RS.66,666- AND RS.1,10,338/- PERTAININ G TO ASSESSMENT YEARS 1990-91 TO 1992-93, 1996-97 TO 1997-98; RESPECTIVEL Y REGARDING LAND BEARING SURVEY NO. 327 & 328/1, NIKOL ROAD. MR. THAKKAR IS VERY VERY FAIR IN INFORMING US THAT WE MUST CONFIRM THE IMPUGNED ADDI TION AS THE OTHER CO- OWNER SHRI KALYANBHAI HAS ALREADY ADMITTED THE SAME AS CORRECT IN HIS M/S. SHYAM GROUPS - 31 - SETTLEMENT PETITION. WE APPRECIATE THIS FAIR STAND AND CONFIRM THE IMPUGNED ADDITION AT THE SAME TIME. 30. THE ASSESSEES TENTH AND REVENUES EIGHTH SUBST ANTIVE GROUND PLEAD THAT THE CIT(A) HAS ERRED IN CONFIRMING UNEXPLAINED INVESTMENT ADDITION OF RS.4,87,98,000/- TO RS.21,95,665/-; ONLY IN ASSESSM ENT YEAR 1997-98 AFTER GIVING TELESCOPING BENEFIT OF AN AMOUNT OF RS. 4,58 ,04,335/- I.E. THE AMOUNT OF ADDITIONS CONFIRMED ON ACCOUNT OF UNEXPLAINED IN VESTMENTS IN LAND. 31. WE COME TO RELEVANT FACTS. THE ABOVESTATED SEA RCH LEAD TO SEIZURE OF PAGE 46 OF LOOSE PAPER FILED A-1. THE ASSESSEES S EARCH STATEMENT STATED THE SAME TO BE IN THE NATURE OF HIS PERSONAL UNACCOUNTE D INVESTMENTS WHEREIN 43.84 WOULD REPRESENT RS.43.84LACS AND SO ON. HE D EPOSED THAT ALL THE SAID FIGURES WERE NOWHERE REFLECTED IN ANY OF THE BOOKS. HE HOWEVER CLARIFIED IN THE COURSE OF ASSESSMENT TO BE IN THE NATURE OF ROU GH JOTTINGS BELONGING TO THE ENTIRE SHYAM GROUP. THE ASSESSING OFFICER STILL WE NT BY HIS SEARCH STATEMENT TO ADD THE ENTIRE AMOUNT OF RS.5.78CRORES AS UNEXPL AINED INVESTMENT. HE FURTHER GRANTED SET OFF OF KARNAVATI, UMIYA, VASTRA L LANDS (SUPRA) TOTALING TO CORRESPONDING FIGURES OF RS.90.02LACS THEREBY ADDIN G THE REMAINING AMOUNT OF RS.4,87,98,000/- IN QUESTION. 32. THE CIT(A) PARTLY CONFIRMS ASSESSING OFFICERS ACTION AS UNDER; 38. ADDITION OF RS.4.87.98.000 IN AY 1997-98 AS IN VESTMENT IN ASSETS THIS ADDITION HAS BEEN MADE AS PER PARA 16 OF THE B LOCK ASSESSMENT ORDER AND HAS BEEN DISPUTED IN THE FOLLOWING GROUND: GROUND NO.31 AY 1997-98 RS.4,87,98,000 DURING THE COURSE OF SEARCH PROCEEDINGS, A PAPER MA RKED AS PAGE 46 OF LOOSE PAPER FILE A-1 WAS SEIZED FROM THE RESIDENCE OF THE APPELLANT, IN WHICH DETAILS OF M/S. SHYAM GROUPS - 32 - PERSONAL UNACCOUNTED INVESTMENTS WERE NOTED BY THE APPELLANT IN HIS OWN HANDWRITING. IN PARA 16.5 THE AO HAS MENTIONED THAT THE TOTAL IN VESTMENTS AS PER PAGE 46 COME TO RS.5,78,00,000 WHICH INCLUDE FOLLOWING ITEMS ALS O: KARNAVATI RS.43.86LACS UMIYA RS.06.16LACS VASTRAL RS.40.00 LACS TOTAL RS.90.02 LACS THE AO REDUCED THE ABOVE AMOUNT FROM RS.5,78,00,000 STATING THAT SEPARATE ADDITIONS HAD BEEN MADE IN THE ORDER AND MADE ADDIT ION OF RS.4,87,98,000 (RS.5,78,00,000 - RS.90,02,000). 39. IT WAS ARGUED IN THE COUNTER COMMENTS DATED 29. 9.2009 THAT THE AMOUNTS MENTIONED IN LOOSE PAPER PAGE 46 WERE NOT JUST PERS ONAL INVESTMENTS OF THE APPELLANT BUT OF ENTIRE SHYAM GROUP. IT WAS STATED THAT AS UNDISCLOSED INCOME MORE OR LESS THE SAME AMOUNT I.E. RS. 4,62,50,180 H AS BEEN OFFERED BEFORE THE SETTLEMENT COMMISSION BY THE VARIOUS FIRMS OF SHYAM GROUP. IT WAS ALSO ARGUED THAT THE AMOUNTS MENTIONED IN TH E PAPER ARE NOT INVESTMENTS AS ON THE DATE OF THE SEARCH, FOR INSTANCE, INVESTMENT IN VASTRAL AS PER THIS PAPER IS MENTIONED JUST RS.40 LACS BUT, AS PER 'BANAKHAT' AN D STATEMENT OF THE APPELLANT, THE INVESTMENT IS MUCH HIGHER AS THE AO HAS ADDED RS.2. 09 CRORES ON ACCOUNT OF VASTRAL LAND IN THE SAME ORDER. 40. PAGE 46 OF SEIZED LOOSE PAPER FILE ANNEXURE A-1 ENGLISH TRANSLATION OF WHICH HAS GIVEN BY THE LD.AR IS REPRODUCED BELOW: PAGE 46 OF LOOSE PAPER FILE - ANNEXURE A-1 SEIZED F ROM THE RESIDENCE OF THE APPELLANT (ENGLISH TRANSLATION) KARNAVATI 43.86 UMIYA 646 VASTRAL 40.00 ARJANBHAI ODHAV 18.00 INVESTMENT IN LAND 108.02 EXPENSE IN HILL STATION 6.50 KANTIBHAI 3.00 IN HILL COMPANY 6.50 ARVINDBHAI 2.00 KESHUBHAI 2.00 ASHWINBHAI 10.00 VIRJIBHAI 35.00 VIRJIBHAI 1.50 R.K. 9.00 BIPINBHAI 5.00 KANJIBHAI 12.00 ASHOKKUMAR 25.00 BHANUBHAI 4.50 M/S. SHYAM GROUPS - 33 - RATILAL 1.00 AMOUNT 231.02 SAIJPUR BOGHA 195.00 NOT LEGIBLE IN GUJARATI 162.00 5:88.02 SUBMITTED BY A.R. SHRI ASEEM THAKKAR, C.A. 41. AFTER GOING THROUGH RIVAL SUBMISSIONS, IT IS SE EN THAT INVESTMENT IN LAND HAS BEEN MENTIONED IN THE TABLE ABOVE AS PER FOURTH ROW AT RS.1,08,02,000, WHEREAS AO HAS REDUCED JUST RS.92,02,000 FOR INVESTMENT OF LAND, THEREFORE IF RS. 1,08,02,000 IS REDUCED FROM RS.5,88,02,000, THE FIG URE COMES OF RS.4,80,00,000, WHICH IS TAKEN AS TOTAL OF AMOUNTS MENTIONED ON PAG E 46 REPRODUCED ABOVE INSTETAD OF RS.4,87,98,000 TAKEN BY THE AO. THEREFO RE DELETION OF RS.7,98,000 IS MADE FROM THE ADDITION OF RS.4,87,98,000. IT IS ALSO SEEN THAT THE AO HAS TAKEN THIS PAGE 46 AS AN ACCOUNT OF INVESTMENTS MADE BY THE APPELLANT IN HIS PERSONAL CAPACITY AS P ER THE APPELLANT'S OWN STATEMENT RECORDED DURING SEARCH AND REPRODUCED IN THE PARA 16.1 OF THE BLOCK ASSESSMENT ORDER. FOR THE SAKE OF CLARITY ONCE GAIN THE STATEMENT RECORDED DURING SEARCH IS REPRODUCED BELOW: 'Q.NO.26 PLEASE EXPLAIN PAGE NO.46 OF ANNEXURE A-1. IN WHOSE HANDWRITING THIS IS WRITTEN AND WHAT IS WRITTEN ON THIS. ANS . THIS PAGE IS WRITTEN IN MY OWN HANDWRITING. THIS GI VES DETAILS OF MY PERSONAL UNACCOUNTED INVESTMENTS. ALL THE AMOUNTS W RITTEN ON THIS PAGE ARE CODED. FOR EXAMPLE 43.84 MEANS 43.84 LAKHS, 6.16 ME ANS 6.16 LAKHS AND LIKEWISE. Q.NO.27 . WHETHER ANY OF THE INVESTMENT/ASSETS DESCRIBED IN P AGE NO.46 IS SHOWN IN ANY OF YOUR PERSONAL BOOKS OR FIRM'S BOOKS OF ACCOUNTS. ANS: NO ALL THE ASSETS MENTIONED ON THIS PAGE ARE NOT RE FLECTED IN MY PERSONAL OR ANY FIRM'S BOOKS OF ACCOUNTS BECAUSE ALL THESE A SSETS HAVE COME FROM MY UNACCOUNTED INVESTMENT. Q.29. IN REPLY TO YOUR EXPLANATION OF PAGE NO.46, YOU HAV E STATED THAT THE PAPER REPRESENTS UNACCOUNTED INVESTMENT IN ASSETS OF RS.5 78 LAKHS. HOW HAVE YOU EARNED THE INCOME FOR THESE INVESTMENTS. ANS: THE INCOME FOR INVESTMENT IN ASSETS OF RS.578 LAKHS HAS BEEN EARNED BY ME IN PERSONAL CAPACITY FROM MY BUSINESS OF CONSTRU CTION AND MY LAND BUSINESS. THIS DOES NOT GET REFLECTED IN ANY OF MY PERSONAL O R FIRM'S BOOKS OF ACCOUNTS.' IN THE LIGHT OF THE ABOVE CLEAR REPLY OF THE ASSESS EE DURING SEARCH THE PLEA TAKEN DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS A ND PRESENT APPELLATE PROCEEDINGS THAT THIS WAS FROM INCOME OF FIRMS IS N OT MAINTAINABLE. SIMILARLY FOR THE ALTERNATIVE ARGUMENT THAT THE AMO UNTS MAY BE LOANS, NO PROOFS WITH RESPECT TO THE NAMES APPEARING IN THE PAPER WE RE SUBMITTED. NO EVIDENCE OF ANY SORT WAS SUBMITTED AT THE TIME OF ASSESSMENT OR APPELLATE PROCEEDINGS, RATHER THE BURDEN WAS CAST UPON THE DEPARTMENT TO PROVE TH AT THIS WAS APPELLANT'S INCOME. THE PAPER IS IN THE HANDWRITING OF THE APPE LLANT, HE HAS CONFESSED THAT IT M/S. SHYAM GROUPS - 34 - CONTAINS HIS UNACCOUNTED INVESTMENTS. AS THE APPELL ANT IS ENGAGED IN BUYING OF LANDS THE INVESTMENTS WOULD BE TOWARDS LAND TRANSAC TIONS, THEREFORE OUT OF ADDITION OF RS.4,80,00,000 IN THE INTEREST OF JUSTI CE AMOUNT TOTALING TO RS.4,58,04,335, WHICH IS TOTAL OF ADDITIONS* CONFIR MED ON ACCOUNT OF UNEXPLAINED LAND INVESTMENTS IS TELESCOPED IN THE ADDITION OF R S.4,58,04,335 MADE ON ACCOUNT OF LAND INVESTMENTS. AND THE BALANCE RS.21,95,665 ( RS.4,80,00,000 - RS.4,58,04,335) IS UPHELD ON ACCOUNT OF UNEXPLAINED INVESTMENTS AS PER SEIZED PAGE 46 REPRODUCED ABOVE. ADDITIONS CONFIRMED ON ACCOUNT OF UNEXPLAINED LAND INVESTMENTS. ON ACCOUNT OF VASTRAL LAND : RS.1,41,12,826 ON ACCOUNT OF UMIYA FARM LAND : RS. 98,87,174 ON ACCOUNT OF NAVA NARODA LAND : RS. L, 49,27,709 ON ACCOUNT OF BALAPURBAVDA LAND : RS. 48,000 ON ACCOUNT OFPROFIT ON NARODA (KATHWADA LAND) : RS . 29,82,497 ON ACCOUNT OF HILL STATION ROAD : RS. 22,64,000 ON ACCOUNT OF L/4 TH SHARE IN MABADEV NAGAR LAND I.E.L/4 TH OF RS.19,29,7000: : RS. 4,82,425 PROFIT ON MAHADEV NAGAR : RS. 2,45,000 ON ACCOUNT OF NIKOL ROAD : RS. 8,54,704 RS.4,58,04,335 33. MR. THAKKAR STRONGLY ARGUES THAT THE LOWER AUTH ORITIES HAVE ERRED IN MAKING THE IMPUGNED ADDITION AFTER REJECTING ASSESS EES ADDITIONAL EVIDENCE AS WELL AS REJOINDER TO ASSESSING OFFICERS REMAND REPORT WHICH HAVE NOT BEEN CONSIDERED IN APPROPRIATE PERSPECTIVE. LEARNE D DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORT THE ASSESSING OFF ICERS ACTION MAKING THE IMPUGNED ADDITION ON THE BASIS OF ASSESSEES SEARCH STATEMENT. THERE IS NO DISPUTE THAT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAVE UNDERTAKEN ANY EXERCISE TO LINK ASSESSEES JOTTINGS IN QUESTIO N TO ANY ASSET CORRESPONDING THERETO. THEY HAVE SIMPLY GONE BY ASSESSEES SEARC H STATEMENT NOT SUPPORTED BY ANY EVIDENCE. WE THEREFORE QUOTE CBDTS CIRCULA R DATED 10.03.2003 ADVISING THE FIELD AUTHORITIES TO COLLECT EVIDENCE IN THE COURSE OF A SEARCH OR SURVEY RATHER THAN OBTAINING SUCH ADMISSIONS OF THE SEARCHED ASSESSEES. THERE IS FURTHER NO MATERIAL IN THE CASE FILE WHICH COULD INDICATE THE RELEVANT FIGURE OF RS.43.86 TO BE RS.43.86LACS. THE ASSESSEES SEA RCH STATEMENT SOUGH TO CLARIFY THE RELEVANT FIGURES WERE NOWHERE ENTERED I N BOOKS. THE CIT(A) STILL M/S. SHYAM GROUPS - 35 - CONSIDERED THE SAME FOR SET OFF PURPOSE (SUPRA) WIT HOUT CLEARLY ESTABLISHING EVEN A REMOTE NEXUS BETWEEN SHYAM GROUP LAND PURCHA SES AND THE ABOVESTATED FIGURES. HONBLE JURISDICTIONAL HIGH C OURTS JUDGMENT IN KAILASHBEN MANHARLAL CHOKSI VS. CIT (2010) 328 ITR 411 PERTAINING TO A SEARCH CONDUCTED ON 04.11.1988 I.E. MUCH EARLIER TO BOARDS CIRCULAR HEREINABOVE HOLDING THAT NO SUCH ADDITION IS TO BE MADE IN ABSENCE OF EVIDENCE COLLECTED DURING SEARCH SQUARELY APPLIES H ERE IN FACTS OF THE INSTANT CASE. WE THEREFORE DELETE THE ENTIRE ADDITION AMOU NT OF RS.5.78CRORES. THE ASSESSEES INSTANT SUBSTANTIVE GROUND SUCCEEDS WHER EAS THAT RAISED AT REVENUES BEHEST IS DECLINED. 34. THE ASSESSEES ELEVENTH SUBSTANTIVE GROUND CHAL LENGES ADDITION OF RS.60,000/- IN ASSESSMENT YEAR 1993-94 AND RS.2,29, 328/- OUT OF RS.2,80,33/- IN ASSESSMENT YEAR 1997-98 FOR ALLEGED UNEXPLAINED HOUSEHOLD EXPENDITURE AS MADE BY BOTH ASSESSING OFFICER AS WELL AS THE CIT(A ) AFTER ADOPTING ESTIMATION METHOD. WE FIND NO REASON TO CONCUR WIT H THE SAME ON A BASIC PREMISE THAT AN ADDITION IN THE COURSE OF A BLOCK A SSESSMENT IS TO BE MADE ONLY ON THE BASIS OF SPECIFIC EVIDENCE COLLECTED RA THER THAN ON ESTIMATION BASIS AS HELD IN HONBLE DELHI HIGH COURTS DECISIO N IN CIT VS. M/S. MITTAL CONSUL & CO. ITA NO.1277/2007 DECIDED ON 25.03.2011 . THE ABOVE TWO ADDITIONS ARE ACCORDINGLY DELETED. 35. ASSESSEES TWELVETH SUBSTANTIVE GROUND RAISES T HE ISSUE OF CORRECTNESS OF UNEXPLAINED EXPENDITURE / PAYMENT ADDITION OF RS .4LACS MADE TO SHRI KANTIBHAI IN ASSESSMENT YEAR 1996-97. MR. ASEEM TH AKKAR TAKES US TO PAPER BOOK PAGE 275 INDICATING THE VERY SUM TO HAVE BEEN ASSESSED IN THE HANDS OF SHRI KANTIBHAI WHICH GOES UNREBUTTED FROM REVENUES SIDE. WE FURTHER NOTICE AT THIS STAGE THAT THE CIT(A) HAS CONFIRMED ASSESSING OFFICERS ACTION AS FOLLOWS: M/S. SHYAM GROUPS - 36 - 50. ADDITION OF RS.4,00,000 AS UNACCOUNTED PAYM ENT TO KANTIBHAI IN AY 1996-97. THIS ADDITION HAS BEEN MADE AS PER PARA 25.4(E) OF THE BLOCK ASSESSMENT ORDER, ON PAGE 58 OF THE ORDER IT HAS BEEN STATED THAT RS.4,0 0,000 WAS PAID BY THE APPELLANT IN CASH TO KANTIBHAI FOR INTEREST AS PER PAGE NO.57 OF LOOSE PAPER FILE A/1 SEIZED FROM THE APPELLANT'S RESIDENCE, AND THIS WAS CONFIR MED IN THE STATEMENT (Q.NO.28) RECORDED DURING SEARCH OF THE APPELLANT. GROUND NO.22 AY 1996-97 RS.4,00,000 THROUGH THE COUNTER COMMENTS DATED 29.9.2009 FURNIS HED DURING THE COURSE OF APPELLATE PROCEEDINGS IT WAS ARGUED THAT THE ADDITI ON WAS UNJUSTIFIED BECAUSE ADDITION OF RS.2,09,00,000 HAD BEEN MADE IN THE HAN DS OF THE APPELLANT FOR INVESTMENT IN LAND, THAT THERE WERE OTHER CO-OWNERS , THAT THIS AMOUNT HAS BEEN ADDED IN THE BLOCK ASSESSMENT ORDER OF LATE SHRI KA NTIBHAI PATEL, THAT AFFIDAVIT OF KANTIBHAI HAD BEEN FURNISHED AT THE TIME OF ORIGINA L BLOCK ASSESSMENT AND THAT NO ADDITION U/S.69 COULD BE MADE BECAUSE PROVISO TO SE CTION 69 CAME INTO EFFECT FROM AY 1999-2000 WHILE THE PAYMENT WAS MADE EARLIER. AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEEN TH AT IN THE BLOCK ASSESSMENT ORDER DATED 26.12.2008 PASSED IN THE CASE OF SHRI KANTIBH AI PATEL THROUGH HIS LEGAL HEIR SHRI HARSHAD K PATEL THE ADDITION OF RS.4,00,000 HA D BEEN MADE, BUT THE NOTINGS ON PAGE 57 SHOW TWO PAYMENTS I.E. OF RS.3,00,000 ON 27.7.1995 AND RS. 1,00,000 ON 27.12.1995 WHICH ARE WITH RESPECT TO HILL STATIO N LAND AS OBVIOUS FROM THE ANSWER GIVEN BY THE APPELLANT IN RESPONSE TO Q.NO.2 8 IN THE STATEMENT RECORDED ON 21.1.1997. THEREFORE THE LD.AR'S CONTENTION THAT RS .2,09,00,000 HAS BEEN ADDED IS NOT TENABLE BECAUSE IT IS WITH RESPECT TO LAND AT V ASTRAL AND NOT WITH RESPECT TO THE HILL STATION LAND. THEREFORE THIS ADDITION IS CONFI RMED AS THE SOURCE HAS NOT BEEN PROPERLY EXPLAINED BY THE APPELLANT THOUGH THE PAYM ENT HAS BEEN CONCEDED DURING SEARCH STATEMENT. 36. WE COME TO ASSESSEES SEARCH STATEMENT DEPOSING THE IMPUGNED PAYMENT FOR HILL STATION LAND HAS GIVEN TO SHRI KAN TIBHAI WHICH IS TO BE TAKEN AS CORRECT U/S.132 (4) R.W.S. 292C OF THE ACT. WE THUS AGREE TO ASSESSEES SUBMISSION THAT SECTION 69C PROVISO INSERTED BY THE FINANCE ACT, 1998 W.E.F. 01.04.1999 STIPULATING DISALLOWANCE OF SUCH AN UNEX PLAINED EXPENDITURE DEEMED TO BE INCOME WOULD NOT BE RETROSPECTIVELY AP PLICABLE IN THE IMPUGNED ASSESSMENT YEAR 1996-97. WE ACCORDINGLY A CCEPT ASSESSEES INSTANT ALTERNATIVE PLEA AND DIRECT THE ASSESSING O FFICER TO DELETE THE IMPUGNED ADDITION. M/S. SHYAM GROUPS - 37 - 37. ASSESSEES NEXT SUBSTANTIVE GROUND CHALLENGES B OTH THE LOWER AUTHORITIES ACTION ADDING UNEXPLAINED CASH OF RS.2 .5LACS SEIZED IN THE COURSE OF SEARCH IN ASSESSMENT YEAR 1997-98. MR. THAKKAR STATES THAT THE ASSESSEE HAS ALREADY OFFERED THE SAME IN HIS CASH FLOW STATE MENT FILED BEFORE THE SETTLEMENT COMMISSION WHICH WAS UNREBUTTED FROM THE REVENUES SIDE. WE THEREFORE DELETE THE IMPUGNED ADDITION ON THIS SCOR E ALONE SINCE THE VERY AMOUNT STANDS OFFERED IN ASSESSEES SETTLEMENT PETI TION. 38. THE ASSESSEES FOURTEENTH AND LAST SUBSTANTIVE GROUND POSES CHALLENGE TO BOTH THE LOWER AUTHORITIES ACTION IN ADDING FIV E HEADS OF UNEXPLAINED EXPENDITURE / PAYMENTS OF RS.50,000/-, RS.2,08,637/ -, RS.2LACS, RS.8LACS AND RS.50,000/- (SUPRA). MR. THAKKAR IS VERY FAIR AGAI N IN NOT PRESSING FOR THE ABOVE TWO ADDITIONS OF RS.50,000/- EACH KEEPING IN MIND SMALLNESS OF THE AMOUNTS INVOLVED. WE THEREFORE UPHOLD THE SAME. 39. WE NOW ADVERT TO THE REMAINING FIRST HEAD OF RS .2,08,637/- PERTAINING TO PAYMENT FOR JEWELLERY OUT OF MONEY RECEIVED FROM SHRI ARVINDBHAI. WE FIND NO REASON TO INTERFERE WITH THE LEARNED CIT(A) S CONCLUSION THAT THERE IS NO EVIDENCE INDICATING SUCH A TRANSACTION. THIS AD DITION AMOUNT IS ACCORDINGLY CONFIRMED. 40. WE NOW COME TO REMAINING TWO ADDITIONS OF RS.2 LACS AND RS.8LACS; RESPECTIVELY CONFIRMED IN THE CIT(A)S ORDER READIN G AS UNDER: GROUND NO.39 AS PER PARA 25.4(G) 1997-98 RS.2,00,000 VIDE COUNTER COMMENTS IT WAS EXPLAINED AS PAYMENT OF BROKERAGE TO SHRI KANTIBHAI FROM MONEY RECEIVED FROM SHRI ARVINDBHAI. AFTER GOING THROUGH RIVAL SUBMISSIONS THE ADDITION IS CONFIRMED BECAUSE IN THE M/S. SHYAM GROUPS - 38 - BLOCK ASSESSMENT ORDER THIS BROKERAGE WAS EXPLAINED AS PAID TO SHRI ONE SHRI SURJITSINGH PRITSINGH PALWA FOR LAND WHEREAS AT REMAND REPORT STAGE THE PAYMENT IS INFORMED TO SHRI KANTIBHAI. I AM OF THE VIEW THAT THE PAYMENT MIGHT HAVE BEEN MADE TO ANY PERSON BUT THE SOURCE SHOULD HAVE BEEN PROPERLY EXPLAINED WHICH HAS NOT BEEN DONE, THEREFORE THE ADDITION IS CONFIRMED. GROUND NO.39 AS PER PARA 25.4(H) 1997-98 RS.8,00,000 IN THE COUNTER COMMENTS DATED 29.9.2009 IT HAS BEEN STATED THAT THE LD.AR RELIES ON COMMENTS IN COLUMN 21 ABOVE OF THE COUNTER COMMENTS, BUT IN THIS COLUMN COMMENTS ARE WITH RESPECT TO RS.4,00,000 ADDITION MADE BY THE AO AS INTEREST AMOUNT PAID TO SHRI KANTIBHAI. AFTER GOING THROUGH RIVAL SUBMISSIONS THE ADDITION IS CONFIRMED BECAUSE KANTIBHAI WAS INVOLVED IN BROKERAGE (AS CLEAR FROM THE BLOCK ASSESSMENT ORDER PASSED IN HIS CASE DATED 26.12.2008) AND BROKERAGE AMOUNT WOULD HAVE BEEN PAID BY THE APPELLANT TO HIM, THEREFORE THIS ADDITION IS CONFIRMED. 41. WE NOTICE HEREIN AS WELL THAT THE ASSESSING OFF ICER IN PAYEE/KANTIBHAIS ASSESSMENT ORDER AT PAGE 279 (SUP RA) HAS ALREADY ASSESSED HIM QUA AN AMOUNT OF RS.1.8LACS INSTEAD OF RS.2LACS AND RS.8LACS; RESPECTIVELY. WE THEREFORE RESTRICT THE IMPUGNED A DDITIONS TO THE EXTENT OF THE REMAINING SUM OF RS.20,000/- ONLY IN ORDER TO A VOID DOUBLE ADDITION. M/S. SHYAM GROUPS - 39 - THIS SUBSTANTIVE GROUND PARTLY SUCCEEDS. SO IS THE OUTCOME OF ASSESSEES APPEAL IT(SS)A NO.325/AHD/2010. 42. WE NOW COME TO REVENUES CROSS APPEAL. ITS REM AINING FOURTH SUBSTANTIVE GROUND PLEADS THAT THE CIT(A) HAS ERRED IN REVERSING ASSESSING OFFICERS FINDINGS MAKING ADDITION OF CASH PAYMENT OF RS.16LACS. TO SHRI KANITBHHAI IN ASSESSMENT YEAR 1997-98. MR. TAKES U S TO PAGE 272 OF THE PAPER BOOK INDICATING THE VERY SUM TO HAVE BEEN ASS ESSED IN SHRI KANTIBHAIS HANDS. WE THEREFORE SEE NO REASON TO INTERFERE WITH THE CIT(A)S CONCLUSION DELETING THE IMPUGNED ADDITION. 43. THE REVENUES FIFTH SUBSTANTIVE GROUND IS THAT THE CIT(A) HAS ERRED IN DELETING CASH PAYMENT ADDITION OF RS.13LACS MADE TO SHRI KANTIBHAI. THE ASSESSING OFFICER HAD MADE THE IMPUGNED ADDITION IN RESPECT OF NAVA NARODA LAND. LEARNED CIT(A) OBSERVES THAT THE SAME WOULD AMOUNT TO DOUBLE TAXATION AS THE ENTIRE INVESTMENT MADE ALREA DY STOOD ADDED IN ASSESSEES HANDS PERTAINING TO THE VERY LAND. THIS CRUCIAL FINDING ALREADY STANDS DEALT WITH IN ASSESSEES APPEAL HEREINABOVE. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THIS FACTUAL POSITI ON. THIS REVENUES SUBSTANTIVE GROUND IS DECLINED ACCORDINGLY. 44. THE REVENUES SIXTH SUBSTANTIVE GROUND RAISES T HE ISSUE OF UNDISCLOSED INVESTMENT OF RS.59,64,993/- MADE IN NARODA LANDS W HICH ALREADY STANDS DECIDED/PARTLY ACCEPTED IN ASSESSEES CORRESPONDING GROUND NO.5. WE FOLLOW THE VERY DISCUSSION HEREIN AS WELL TO DECLINE THE I NSTANT SUBSTANTIVE GROUND. 45. THE REVENUES SEVENTH SUBSTANTIVE GROUND RAISED THE ISSUE OF UNEXPLAINED INVESTMENT ADDITION OF RS.19,20,700/- P ERTAINING TO MAHADEVNAGARS LAND WHICH THE CIT(A) HAS RESTRICTED TO ONLY 25% IN M/S. SHYAM GROUPS - 40 - ASSESSEES HANDS TO THE EXTENT OF RS.4,80,175/-. T HERE IS NO DISPUTE THAT WE HAVE ALREADY UPHELD THE CIT(A)S ACTION IN ASSESSEE S SEVENTH SUBSTANTIVE GROUND. THIS REVENUES GROUND IS DECLINED ACCORDIN GLY. 46. THE REVENUES EIGHTH SUBSTANTIVE GROUND SEEKS T O REVIVE UNEXPLAINED INVESTMENT ADDITION OF RS.4,58,04,335/- AS MADE BY THE ASSESSING OFFICER ON THE BASIS OF ASSESSEES SEARCH STATEMENT AND LOOSE PAPERS WHICH WE HAVE ALREADY DELETED IN ASSESSEES SUBSTANTIVE GROUND NO .10. THE INSTANT GROUND IS ACCORDINGLY REJECTED. 47. THE REVENUES NINTH SUBSTANTIVE GROUND PLEADS T HAT THE CIT(A) HAS WRONGLY DELETED PROTECTIVE ADDITION OF RS.63,34,924 /- IN THE NATURE OF UNEXPLAINED CASH GIVEN TO SHRI ARVINDBHAI PATEL IN ASSESSMENT YEAR 1994-95. THE ASSESSEE TAKES US TO PARA 42 PAGE 28 OF THE CIT (A)S ORDER TO THIS EFFECT REFERRING TO SHRI ARVINDBHAI SEARCH STATEMENT THAT HE HAD IN FACT GIVEN THE MONEY TO SHRI BHAGWANBHAI / ASSESSEE. IT HAS ALREA DY COME ON RECORD THAT THE ASSESSING OFFICER HAS MADE A SUBSTANTIVE ADDITI ON IN SAID ASSESSEES HANDS. WE THUS FIND NO REASON TO INTERFERE WITH TH E CIT(A)S ORDER DELETING THE INSTANT PROTECTIVE ADDITION. 48. THE REVENUES TENTH SUBSTANTIVE GROUND SEEKS TO REVIVE UNEXPLAINED EXPENDITURE/PAYMENT ADDITION OF RS.25,001/- IN ASSE SSMENT YEAR 1994-95 PERTAINING TO FLAT BOOKING AT A/4, KUNJ APARTMENT I N ASSESSMENT YEAR 1994- 95. THE ASSESSING OFFICER MADE THE IMPUGNED ADDITI ON WHEREAS THE CIT(A) HAS DELETED THE SAME. IT HAS COME ON RECORD THAT O NE SHRI DHIRUBHAI HAS APPEARED TO FILE A CONFIRMATION REGARDING THE IMPUG NED FLAT BOOKING RIGHT FROM BLOCK ASSESSMENT AS WELL AS IN SETTLEMENT COMM ISSION. THE RELEVANT RECORD IS AT PAGE 448 TO 450 WHICH HAS NOT BEEN REB UTTED AT REVENUES INSTANCE. WE THEREFORE UPHOLD THE CIT(A)S FINDING S UNDER CHALLENGE. M/S. SHYAM GROUPS - 41 - 49. THE REVENUES ELEVENTH SUBSTANTIVE GROUND CHALL ENGES THE LOWER APPELLATES FINDINGS DELETING ADDITION OF RS.31,000 /- IN ASSESSMENT YEAR 1995- 96 ON ACCOUNT OF UNEXPLAINED EXPENDITURE/PAYMENT TO SHRI PRAVINBHAI AND SHRI DHIRUBHAI. THE CIT(A) OBSERVES ON THE BASIS O F CASE RECORDS THAT BOTH THESE PERSONS HAVE CONFIRMED THEIR SIGNATURES ON TH E LOOSE PAPERS FOUND IN THE COURSE OF SEARCH INDICATING THE TWO AMOUNTS OF RS.9000/- AND RS.22000/- RESPECTIVELY. LEARNED DEPARTMENTAL REPRESENTATIVE IS UNABLE TO DISPUTE CORRECTNESS THEREOF IN THE COURSE OF HEARING. WE T HEREFORE REJECT THE INSTANT SUBSTANTIVE GROUND. 50. THE REVENUES TWELFTH SUBSTANTIVE GROUND SEEKS TO REVIVE UNEXPLAINED EXPENDITURE / PAYMENT ADDITION OF RS.2,41,753/- AS MADE BY THE ASSESSING OFFICER AND DELETED IN LOWER APPELLATE PROCEEDINGS AS PERTAINING TO ASSESSMENT YEAR 1995-96. THE ASSESSING OFFICER HAD TREATED NOTING ON DIARY A-8 PAGES 5 & 6 TO MAKE THE IMPUGNED ADDITION AFTER CONCLUDING THAT THE AMOUNT IN QUESTION WAS USED FOR PURCHASE OF TRACTOR . THE CIT(A) OBSERVES THAT ASSESSEES SHARE OF WITHDRAWALS WORKED OUT OF RS.20,62,368/- FROM SHYAM GROUP FIRM IS SUFFICIENT TO COVER THE IMPUGNE D AMOUNT. THESE FACTS AND FIGURES HAVE NOT BEEN CONTROVERTED IN THE COURS E OF HEARING. WE THEREFORE REJECT THE REVENUES INSTANT SUBSTANTIVE GROUND AS WELL. 51. THE REVENUES THIRTEENTH SUBSTANTIVE GROUND CHA LLENGES THE CIT(A)S ORDER DELETING ADDITION OF RS.5LACS IN RESPECT OF U NEXPLAINED INVESTMENTS IN FDRS. IN ASSESSMENT YEAR 1996-97 AS MADE BY THE ASS ESSING OFFICER IN THE IMPUGNED BLOCK ASSESSMENT. LEARNED CIT(A) OBSERVES THAT THE ASSESSING OFFICER HAD MADE THE IMPUGNED ADDITION ON PROTECTIV E BASIS WHEREAS HIS SHARE OF WITHDRAWALS FROM THE TWO FIRMS M/S. SHYAM ORGANISERS AND SHYAM CONSTRUCTION CO. WHICH HAVE BEEN ASSESSED; HAS BEEN MUCH MORE THAN THE IMPUGNED SUM. WE AFFORDED SUFFICIENT OPPORTUNITY T O LEARNED DEPARTMENTAL M/S. SHYAM GROUPS - 42 - REPRESENTATIVE TO CONTROVERT THESE CRUCIAL FINDINGS . HE HOWEVER FAILS TO REBUT CORRECTNESS THEREOF. WE THUS CONCLUDE THAT THE CIT (A) HAS RIGHTLY DELETED THE IMPUGNED PROTECTIVE ADDITION. 52. THE REVENUES FOURTEENTH SUBSTANTIVE GROUND PLE ADS THAT THE CIT(A) HAS ERRED IN REVERSING ASSESSING OFFICERS ACTION M AKING ADDITION OF RS.2,07,20,284/- IN ASSESSMENT YEAR 1997-98 ON ACCO UNT OF CASH RECEIVED FROM VARIOUS PERSONS I.E. SHRI DILIPBHAI D SURATWAL A, DR. PIPALIA, S/SHRI BACHCHUBHAI, BHIKHUBHAI, MANNUBHAI AND BACHCHUBHAI K BRICSWALA INVOLVING RESPECTIVE SUMS OF RS.19LACS, RS.94,62,60 0/-, RS.22,74,162/-, RS.27,44,772/-, RS.20,53,125/- AND RS.22,55,625/-. THE ASSESSING OFFICER REFERRED TO CHART A-5 AS WELL AS OTHER SEIZED DOCUM ENT FOR MAKING THE IMPUGNED ADDITIONS. THE CIT(A) REVERSES THE SAME A FTER DETAILED DISCUSSIONS AS UNDER: GROUND & PARA NO. OF ASSTT.ORDER AY BASIS OF ADDITION REMARKS GROUND NO. 36 AS PER PARA 23.3(A) OF AO'S ORDER AY 1997-98 RS. 19,00,000 AS CASH RECEIVED FROM DILIPBHAI DEVRANBHAI SURATWALA AS PER PAGE 5 OF DIARY - A-5 SEIZED FROM THE APPELLANT'S RESIDENCE, BECAUSE HE WANTED TO ENTER AS A PARTNER IN PURCHASE OF LAND AT UMIYA FARM. VIDE COUNTER COMMENTS DATED 29.9.2009 IT WAS STATED THAT THIS VERY LAND OF 72,000 SQ.YDS. HAS BEEN ACCEPTED BY THE ASSESSING OFFICER AS UMIYA FARM LAND IN THE BLOCK ORDER AND APPELLANT'S INVESTMENT IN THE SAME OF RS.1, 01,00,000 HAS BEEN TAXED IN THE HANDS OF THE APPELLANT. IT HAS ALSO BEEN ARGUE THAT ADDRESS ETC.OF THIS PERSON WAS GIVEN AT THE TIME OF M/S. SHYAM GROUPS - 43 - ORIGINAL B LOCK ASSESSMENT PROCEEDINGS BUT NO CROSS VERIFICATIONS WERE MADE FROM HIM, AND THE ADDITION WAS MADE IGNORING THE CONTENTIONS OF THE APPELLANT THAT DEAL DID NOT MATERIALIZE. AFTER GOING THROUGH RIVAL SUBMISSIONS THE AO IS DIRECTED TO DELETE THE ADDITION AS THE AFOREMENTIONED CONTENTION OF THE APPELLANT IS FACTUALLY CORRECT, INVESTMENT IN UMIYA FARM LAND HAS BEEN TAXED IN THE HANDS OF THE APPELLANT IN THE BLOCK ASSESSMENT ORDER OF RS.1,01,00,000 AND HAS BEEN CONSIDERED IN THIS ORDER. GROUND NO. 36 AS PER PARA 23.3(B) OF AO'S ORDER RS.94,62,600 FROM DR. PIPALIA AS PER A-5 MENTIONED ABOVE WHO WAS INTERESTED IN PURCHASE OF LAND AT VASTRAL VIDE COUNTER COMMENTS DATED 29.09.2009 IT WAS STATED THAT THE LOOSE PAPER ON THE BASIS OF WHICH ADDITION HAS BEEN MADE MENTIONS ACCOUNTS OF DOCTORS. THE AO TREATED THIS AS INCOME OF THE APPELLANT BECAUSE CONFIRMATION FROM DR. PIPALIA WAS NOT FURNISHED, ALSO THE PROOF THAT THIS M/S. SHYAM GROUPS - 44 - AMOUNT WAS ACTUALLY RETURNED BACK TO THE DOCTOR. IT WAS ARGUED THAT THE APPELLANT DID NOT SELL ANY LAND OR DERIVED ANY PROFIT FROM A TRADING TRANSACTION, THAT THE APPELLANT HAD FURNISHED THE IDENTITY, TELEPHONE NUMBER AND DETAILED ADDRESS OF THIS PERSON DURING STATEMENT AT SEARCH. THAT THE ADDITION HAS BEEN MADE WITHOUT ANY CROSS VERIFICATIONS ON THE PART OF THE DEPARTMENT. AFTER GOING THROUGH RIVAL SUBMISSIONS I FIND THAT THE APPELLANTS INVESTMENT IN VASTRAL LAND HAS BEEN ADDED OF RS.2,09,00,000 BY THE AO AND HAS BEEN CONSIDERED IN THIS ORDER, THEREFORE THIS ADDITION OF RS.94,62,600 IS DIRECTED TO BE DELETED BECAUSE IT IS NOT WELL SUBSTANTIATED. GROUND NO. 36 AS PER PARA 23.3(C) OF AO'S ORDER -DO- RS.22,74,162 FROM SHRI BACHUBHAI FOR 25% SHARE IN VASTRAL LAND AS PER LOOSE PAPER FILE A- 1. VIDE COUNTER COMMENTS DATED 29.9.2009 IT WAS STATED THAT THERE WERE MULTIPLE ADDITIONS MADE OF THE SAME TRANSACTIONS BY THE AO. AFTER CONSIDERING THE ARGUMENTS GIVEN IN M/S. SHYAM GROUPS - 45 - THE COUNTER COMMENTS BY THE LD.AR THE AO IS DIRECTED TO DELETE THE ADDITION BECAUSE INVESTMENT IN VASTRAL LAND AT RS.2,09,00,000 HAS BEEN ADDED IN THE BLOCK ASSESSMENT ORDER AND HAS BEEN CONSIDERED IN THIS ORDER. GROUND NO. 36 AS PER PARA 23.3(D) OF AO'S ORDER -DO- RS.27,74,772 FROM SHRI BHIKUBHAI FOR 25% SHARE IN KARNAVATI LAND AS PER LOOSE PAPER FILE A-1. VIDE COUNTER COMMENTS DATED 29.9.2009 IT WAS STATED THAT THERE WERE MULTIPLE ADDITIONS MADE OF THE SAME TRANSACTIONS BY THE AO. AFTER CONSIDERING THE ARGUMENTS GIVEN IN THE COUNTER COMMENTS BY THE LD.AR THE AO IS DIRECTED TO DELETE THE ADDITION BECAUSE INVESTMENT IN 42000 SQ.YD. OF LAND IDENTIFIED AS NAVA NARODA LAND (EXPLANINED ALSO KNOWN AS KARNAVATI LAND) OF RS.1,49,27,709 WAS ADDED IN THE BLOCK ASSESSMENT ORDER AS UNEXPLAINED INVESTMENT OF THE APPELLANT. AND THIS ADDITION HAS BEEN CONSIDERED IN THIS ORDER, THEREFORE THE ADDITION HERE IS NOT WARRANTED. GROUND NO. 36 AS PER PARA 23.3(E) OF AO'S ORDER -DO- RS.20,53,125 FROM SHRI MANUBHAI G. PATEL FOR VIDE COUNTER COMMENTS DATED 29.9.2009 IT WAS M/S. SHYAM GROUPS - 46 - PARTNERSHIP FOR PURCHASE OF UMIYA FARM LAND AS PER DIARY A-2/10 SEIZED FROM OFFICE. STATED THAT THERE WERE MULTIPLE ADDITIONS MADE OF THE SAME TRANSACTIONS BY THE AO. AFTER CONSIDERING RIVAL SUBMISSIONS THE AO IS DIRECTED TO DELETE THE ADDITION BECAUSE INVESTMENT IN 42000 SQ.YD. OF LAND IDENTIFIED AS NAVA NARODA LAND (EXPLANINED ALSO KNOWN AS KARNAVATI LAND) OF RS.1,49,27,709 WAS ADDED IN THE BLOCK ASSESSMENT ORDER AS UNEXPLAINED INVESTMENT OF THE APPELLANT. AND THIS ADDITION HAS BEEN CONSIDERED IN THIS ORDER, THEREFORE THE ADDITION HERE IS NOT WARRANTED. GROUND NO. 36 AS PER PARA 23.3(F) OF AO'S ORDER -DO- RS.22,55,625 FROM SHRI BACHUBHAI KAILASH BRICKWALA FOR INVESTMENT OF HIS SHARE IN UMIYA FARM LAND AS PER DIARY A-2/10 SEIZED FROM OFFICE. VIDE COUNTER COMMENTS DATED 29.9.2009 IT WAS STATED THAT THERE WERE MULTIPLE ADDITIONS MADE OF THE SAME TRANSACTIONS BY THE AO. AFTER CONSIDERING THE ARGUMENTS GIVEN IN THE COUNTER COMMENTS BY THE LD.AR THE AO IS DIRECTED TO DELETE THE ADDITION BECAUSE INVESTMENT IN 40000 SQ.YD. OF UMIYA FARM LAND OF RS.1,01,00,000 WAS ADDED IN THE BLOCK ASSESSMENT M/S. SHYAM GROUPS - 47 - ORDER AS UNEXPLAINED INVESTMENT OF THE APPELLANT. AND THIS ADDITION HAS BEEN CONSIDERED IN THIS ORDER, THEREFORE THE ADDITION HERE IS NOT WARRANTED. 53. A PERUSAL OF THE ABOVE EXTRACTED FINDINGS INDIC ATE THAT ALL THIS AMOUNT PERTAIN TO ASSESSEES INVESTMENTS IN VARIOUS LANDS SITUATED AT VASTRAL, UMIYA FARMS, NAVA NARODA ETC. WHICH HAVE BEEN ALREADY AS SESSED FORMING SUBJECT MATTER OF ADJUDICATION IN PRECEDING PARAGRAPH. WE THEREFORE CONCLUDE THAT THE CIT(A) HAS RIGHTLY TREATED THE IMPUGNED ADDITIO N TO BE A CASE OF DOUBLE TAXATION OF THE VERY AMOUNT. WE FIND NO REASON TO INTERFERE IN HIS ABOVE EXTRACTED CONCLUSION. 54. REVENUES FIFTEENTH AND SIXTEENTH SUBSTANTIVE G ROUNDS SEEK TO REVIVE UNACCOUNTED CASH PAYMENT ADDITION OF RS.45,93,516/- AND RS.75,34,840/- MADE TO SHRI KANTIBHAI AND ASHWINBHAI IN ASSESSMENT YEAR 1997-98. WE NOTICE THAT THE CIT(A)S ORDER DELETING THE IMPUGNE D ADDITION DISCUSSES ASSESSMENT FINDING AND ASSESSEES CONTENTIONS AGAIN ST THE SAME AS FOLLOWS: 54. ADDITION ON ACCOUNT OF CASH PAYMENT OF RS.45,03,516 IN AY 1997-98 AND ALSO OF RS.75,34,840 IN AY 1997-98 GROUND NO.37(CASH PAID) AY 1997-98 RS.45,93,516 GROUND NO.38(CASH PAID AY 1997-98 RS.75,34,840 THIS ADDITION HAS BEEN MADE AS PER PARA 24 OF THE B LOCK ASSESSMENT ORDER. THE AO HAS NOTED THAT AS PER PAGE NO.1 OF DIARY A-4 THE AP PELLANT PAID RS.45,93,516 TO SHRI KANTIBHAI AND AS PER PAGE NO.4 OF DIARY A-5 TH E APPELLANT PAID RS.75,34,840 TO SHRI ASHWIN BABABHAI. THE EXPLANATION THAT THIS PAYMENT WAS MADE TO SHRI KANTIBHAI FOR LAND AT KARNAVATI FOR HANDING OVER TH E AMOUNT TO THE LAND OWNER AND THAT TO SHRI ASHWINBHAI BECAUSE HE WAS A PARTNE R IN THE LAND AT VASTRAL WAS NOT FOUND FULLY EXPLAINED / PROVED BY THE AO. M/S. SHYAM GROUPS - 48 - VIDE COUNTER COMMENTS DATED 29.9.2009 IT WAS STATED THAT RS.45,93,516 HAS BEEN ADDED IN THE HANDS OF LATE SHRI KANTIBHAI VIDE ORDE R DATED 26.12.2008 PASSED IN THE CASE OF HIS LEGAL HEIR SHRI HARSHAD K PATEL. 55. AFTER GOING THROUGH RIVAL SUBMISSIONS IN MY VIE W THE ADDITION OF THIS AMOUNT IS NOT JUSTIFIED IN THE HANDS OF SHRI KANTIB HAI BECAUSE THE APPELLANT HIMSELF HAS ACCEPTED DURING SEARCH THAT THIS AMOUNT WAS PAI D TO KANTIBHAI IN CASH BY HIM FOR THIS LAND, BUT IT IS SEEN THAT RS.1,49,27,709 A S INVESTMENT IN NAVA NARODA LAND HAS BEEN ADDED IN THE CASE OF THE APPELLANT AND HAS BEEN CONSIDERED IN PARA 23 ABOVE OF THIS ORDER, NOW PAYMENT OF RS.45,93,516 WO ULD AMOUNT TO DUPLICATION OF ADDITION AS ARGUED BY THE LD.AR. THE AO IS DIRECTED TO DELETE THE ADDITION. 56. VIDE COUNTER COMMENTS DATED 29.9.2009 IT WAS AR GUED THAT THE ENTIRE LAND INVESTMENT IN VASTRAL LAND HAS BEEN TREATED AS UDI OF THE APPELLANT INDIVIDUAL DESPITE THE FACT THAT THERE WERE VARIOUS CO-OWNERS, AND THAT THIS AMOUNTS TO MULTIPLE ADDITION ON THE SAME LAND. THIS CONTENTION OF THE APPELLANT IS IN ORDER. INVESTMENT IN VASTRAL LAND OF RS.2,09,00,000 HAS BE EN ADDED IN THE BLOCK ASSESSMENT ORDER AND HAS BEEN CONSIDERED IN PARA 6 ABOVE OF THIS ORDER, THEREFORE A SEPARATE ADDITION OF RS.75,34,840 IS NOT WARRANTE D. THE AO IS DIRECTED TO DELETE THE SAME. 55. WE AFFORDED AMPLE OPPORTUNITY TO LEARNED DEPART MENTAL REPRESENTATIVE TO CONTROVERT THE ABOVE EXTRACTED FI NDINGS REGARDING BOTH THESE HEADS THAT THE SAME PERTAIN TO NAVA NARODA AN D VASTRAL LANDS ALREADY FORMING SUBJECT MATTER OF ADDITION AS ADJUDICATED I N ASSESSEES APPEAL HEREINABOVE. THE REVENUE FAILS TO DISPUTE CORRECTN ESS THEREOF. WE ACCORDINGLY CONFIRM THE CIT(A)S FINDINGS QUA BOTH THESE GROUNDS RAISED AT REVENUES BEHEST. ITS CROSS APPEAL IT(SS)A NO.465/ AHD/2010 IS PARTLY ACCEPTED. 56. WE NOW PROCEED TO DEAL WITH THE OTHER ASSESSEE SHRI ARVINDBHAIS CASES INVOLVING IT(SS)A NO. 326 & 466 (REVENUES CR OSS APPEAL)/AHD/2010. WE NOTICE THAT THIS ASSESSEE RAISES EIGHT SUBSTANTI VE GROUNDS. HIS FIRST SUBSTANTIVE GROUND CHALLENGES BOTH THE LOWER AUTHOR ITIES ACTION MAKING UNEXPLAINED INVESTMENT ADDITIONS OF RS.1.52LACS AND RS.1.12LACS IN ASSESSMENT YEARS 1987-88 AND 1988-89; RESPECTIVELY MADE IN LAND BEARING SURVEY NO. 268A AND 268B AT NIKOL. MR. THAKKAR STA TES VERY FAIRLY THAT THE M/S. SHYAM GROUPS - 49 - ASSESSEE DOES NOT WISH TO PRESS FOR THE INSTANT SUB STANTIVE GROUND KEEPING IN MIND SMALLNESS OF THE AMOUNT INVOLVED. HE REITERAT ES ASSESSEES VERY STAND FOR SECOND SUBSTANTIVE GROUND CHALLENGING SIMILAR A DDITIONS IN ASSESSMENT YEARS 1990-91 TO 1992-93, 1996-97 TO 1997-98 AMOUNT ING TO RS.4LACS, RS.2.2LACS, RS.50,000/-, RS.66,666/- AND RS.1,11,03 8/-; RESPECTIVELY. THESE FIRST TWO SUBSTANTIVE GROUNDS ARE ACCORDINGLY DISMI SSED AS NOT PRESSED. 57. ASSESSEES THIRD SUBSTANTIVE GROUND PLEADS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN ADDING UNEXPLAINED CAPITA L CONTRIBUTION IN FIRMS OF RS.3.5LACS, RS.7.25LACS, RS.2LACS AND RS.63,34,924/ - IN ASSESSMENT YEARS 1989-90 TO 1991-92 AND 1994-95; RESPECTIVELY TOTALI NG TO RS.76,09,924/-. THE CIT(A)S FINDINGS UNDER CHALLENGE DISCUSS THE I SSUE AS FOLLOWS: 8. ADDITION OF UNEXPLAINED CAPITAL CONTRIBUTION IN FIRMS THE RELEVANT DISCUSSION HAS BEEN MADE IN PARA 6 OF THE BLOCK ASSESSMENT ORDER. THE AO HAS STATED THAT AS PER THE STATEMENT RECORDE D DURING SEARCH THE APPELLANT HAD MADE CONTRIBUTION TO THE CAPITAL OF THE FIRMS W HICH HAVE BEEN UTILIZED FOR MAKING OF THE PAYMENT OF THE LANDS BELONGING TO TH E FIRMS. THIS HAS BEEN DISPUTED IN THE FOLLOWING GROUNDS OF APPEAL. GROUND NO.5 AY 1989-90 RS.3,50,000 GROUND NO. 7 AY 1990-91 RS.7,25,000 GROUND NO. 9 AY 1991 -92 RS.2,00,000 GROUND NO. 13 AY 1994-95 RS.63,34,924 VIDE COUNTER COMMENTS DATED 14.2,2010 IT HAS BEEN S TATED THAT THE AO HAS PLACED BLIND RELIANCE ON THE STATEMENT RECORDED DURING SEA RCH AND HAS COMPLETELY IGNORED THE FACT THAT THE LAND INVESTMENTS WERE MAD E BY THE FIRMS AND THAT THE ALLEGED INVESTMENT IN LANDS HAVE BEEN TREATED AS UD I BEFORE SETTLEMENT COMMISSION IN THE HANDS OF VARIOUS FIRM OPERA TING IN THE GRO UP. AFTER GOING THROUGH RIVAL SUBMISSIONS I AM OF THE V IEW THAT THE ABOVE REPLY IS A GENERAL REPLY. IT HAS NOT BEEN SPECIFIED HOW MUCH A MOUNT HAS BEEN OFFERED BEFORE SETTLEMENT COMMISSION AS UDI ON ACCOUNT OF LAND INV ESTMENT BY WHICH FIRM IN WHICH THE APPELLANT IS A PARTNER. RATHER THE STATEM ENT OF FACTS OF SHYAM CONSTRUCTION COMPANY SHOWS NO UDI HAS BEEN OFFERED ON ACCOUNT OF LAND INVESTMENT. THE STATEMENT OF FACTS OF SHYAM CORPORA TION SHOWS THAT OUT OF UNDISCLOSED INCOME OFFERED AN AMOUNT OF RS.35,02,77 8 HAS BEEN TAKEN AS DEDUCTION FOR LAND PURCHASE IN THE INCOME OFFERED B EFORE SETTLEMENT COMMISSION. IN THE STATEMENT OF FACTS OF SHYAM ORGANISERS RS.33 ,22,850 HAS BEEN OFFERED FOR M/S. SHYAM GROUPS - 50 - TAX ON PURCHASE OF LAND, BUT IT HAS BEEN SPECIFIED THAT THE LAND WAS FOR THE SCHEME SHYAM PARK. INTERESTINGLY IN THE STATEMENT OF FACTS SUBMITTED TO HON'BLE SETTLEMENT COMMISSION, MUMBAI AND ADMITTED THERE IN THE CASE O F THE FIRM SHYAM ORGANISERS A TOTAL DEDUCTION OF RS. 1,24,97,975 HAS BEEN TAKEN AS AMOUNT PAID FOR LAND PURCHASE. NOTE: THE STATEMENT OF FACTS FILED BEFORE HON'BLE I TSC MUMBAI IN SHYAM GROUP OF CASES LISTED BELOW ARE ENCLOSED AS ANNXURE-1 OF THI S ORDER: I) SHRI BHAGWANBHAI KHODABHAI PATEL II) SHRI ARVINDBHAI PRAGJIBHAI PATEL III) SHYAM CONSTRUCTION COMPANY IV) SHYAM DEVELOPERS V) SHYAM CORPORATION VII) SHYAM ORGANISERS THUS THE ARGUMENT THAT AMOUNT ON LAND INVESTMENT HA S BEEN OFFERED BEFORE SETTLEMENT COMMISSION IS NOT CORRECT, RATHER THE FI RMS WHERE APPELLANT IS A PARTNER HAVE TAKEN DEDUCTION OF LAND INVESTMENTS FR OM THE UDI OFFERED. AND IN THE BLOCK ASSESSMENT ORDERS OF THE FIRMS PASSED BY THE AO IN DECEMBER 2007 AFTER THE CASES WERE ABATED BACK TO THE AO BY THE SETTLEM ENT COMMISSION THE INCOME DECLARED BEFORE SETTLEMENT COMMISSION HAS BEEN BROU GHT TO TAX, THUS GIVING LAND DEDUCTION TO THE FIRMS. THIS HAS BEEN CONFIRMED VIDE APPELLATE ORDERS PASSE D IN THE CASES OF THE FIRMS OF BY THIS OFFICE IN 2009. THEREFORE THE ADDITION MADE BY THE AO ON ACCOUNT OF CAPITAL CONTRIBUTION IN FIRMS SUMMARIZED IN THE TABLE ABOVE IN THIS PARA IS CONFI RMED BECAUSE INVESTMENT IN LAND HAS BEEN SOUGHT AS DEDUCTION FROM UDI DECLARED BEFO RE SETTLEMENT COMMISSION AS CLEAR FROM SOFS OF FIRMS ENCLOSED AS ANNEXURE 1 OF THIS ORDER. IT IS INCORRECT ON THE PART OF THE APPELLANT TO SAY THAT IT HAS BEEN O FFERED AS UDI BEFORE SETTLEMENT COMMISSION. IT IS ALSO IMPORTANT TO REMEMBER THAT I N THE SOF BEFORE SETTLEMENT COMMISSION THE APPELLANT HIMSELF-; (SOF OF THE APPE LLANT PART OF ANNEXURE 1 OF THIS ORDER) THE APPELLANT HAS OFFERED RS RS.3,15,98 4 + RS.3,25,000 AS UNEXPLAINED INVESTMENT IN VASTRAL LAND AND RS.4,61,094 FOR UMIY A FARM LAND. THIS ALSO JUSTIFIES THAT THERE WAS UNEXPLAINED CAPITAL CONTRI BUTION IN THE FIRMS BY THE APPELLANT, THEREFORE THE ADDITION SUMMARIZED IN THE TABLE ABOVE IS UPHELD, AND THE UDI ON ACCOUNT OF LAND INVESTMENTS DECLARED BY THE APPELLANT BEFORE SETTLEMENT COMMISSION IS TELESCOPED IN THE ADDITION MADE ABOVE . 58. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED ASS ESSEES SEARCH STATEMENT IN PAPER BOOK PAGE 182, FUND FLOW STATEME NT, ADDITIONAL SUBMISSIONS MADE BEFORE THE LOWER APPELLATE AUTHORI TY AND CONTENTS OF ASSESSING OFFICERS REMAND REPORT AT PAGE 381 PERTI NENT TO THE ISSUE IN HAND. THERE DOES NOT APPEAR TO BE ANY DISPUTE ABOUT ASSES SEES SEARCH STATEMENT ABOUT THE SUMS IN QUESTION. WE HAVE ALREADY DISCUS SED THE ISSUE AT LENGTH M/S. SHYAM GROUPS - 51 - ABOUT SUCH AN ADMISSION IN BHAGWANBHAIS CASE ADJUD ICATED IN PRECEDING PARAGRAPH IN VIEW OF CBDTS CIRCULAR AND HONBLE JU RISDICTIONAL HIGH COURTS DECISION. IT FLOWS THEREFROM THAT THERE HAS TO BE SOME EVIDENCE FORMING FOUNDATION OF AN ADDITION IN VIEW OF SUCH A SEARCH STATEMENT. IT IS EVIDENT THAT THERE IS NO SUCH EFFORT ON BOTH THE LOWER AUTH ORITIES PART BEFORE ARRIVING AT THE IMPUGNED CONCLUSION HOLDING THE ASSESSEE TO HAVE CONTRIBUTED THE IMPUGNED SEED CAPITAL IN GROUP FIRMS FOR LAND PURCH ASES. WE REITERATE THAT THERE ARE MULTIPLE SUCH FIRMS AS INDICATED IN BEGIN NING OF INSTANT ORDER. WE OPINE IN THIS PECULIAR FACTUAL BACKDROP THAT THE RE VENUE DOES NOT HAVE A CASE IN SUPPORT OF THE IMPUGNED ADDITION EITHER WAY I.E. IF IT IS ASSUMED THAT THE ASSESSEE HAD CONTRIBUTED TO ANY OF THE GROUP ENTITY S SEED CAPITAL, THEN THERE HAS TO BE SOME MATERIAL ABOUT IDENTITY OF THE SAID FIRM ALONGWITH PROOF OF LAND INVESTMENT. WE OBSERVE IN FACTS OF THE INSTAN T CASE THAT ALL THE GROUPS FIRMS (SUPRA) ALREADY STAND ASSESSED BEFORE THE SET TLEMENT COMMISSION AND THEIR CASES HAVE ALSO BEEN REACHED UP TO THIS TRIBU NAL. WE AFFORDED AMPLE OPPORTUNITY TO LEARNED DEPARTMENTAL REPRESENTATIVE TO TAKE US TO ANY OF THE GROUP TO PINPOINT THE IMPUGNED SEED CAPITAL AT A SL IGHTER PRETEXT. HE FAILED TO INDICATE ANY SUCH MATERIAL. WE THEREFORE HOLD THAT THE LOWER AUTHORITIES HAVE ERRED IN MAKING THE IMPUGNED SEED CAPITAL INVESTMEN T ADDITION. LEARNED DEPARTMENTAL REPRESENTATIVE THEN POINTED OUT THAT T HE ASSESSEE CAN BE PRESUME TO HAVE UTILIZED THE RELEVANT SUMS IN OTHER EVIDENCE. WE FIND NO FORCE IN THIS ALTERNATIVE PLEA AS WELL SINCE THAT WOULD AMOUNT TO IMPROVEMENT OF THE LOWER AUTHORITIES ORDERS ADDING THE IMPUGNE D SUM AS SEED CAPITAL ONLY INSTEAD OF THE SAME BEING UTILIZED ANYWHERE ELSE. WE THEREFORE ACCEPT ASSESSEES INSTANT SUBSTANTIVE GROUND. 59. ASSESSEES FOURTH SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF UNEXPLAINED INVESTMENT ADDITION /PROFIT ON SALE OF RS.29,82,497/- IN NARODA LAND TO BE CORRECTED AS KATHWADA LAND AS MADE BY BOTH THE LOWER M/S. SHYAM GROUPS - 52 - AUTHORITIES. MR. THAKKAR INFORMS US THAT THE ASSE SSEE HAS ALREADY ADMITTED ADDITIONAL INCOME OF RS.28LACS BEFORE SETTLEMENT CO MMISSION AND THEREFORE, THE INCOME LEFT BEHIND IS OF RS.1,82,497/- ONLY TO BE GRANTED SET OFF BENEFIT IN CASE OF VARIOUS ACCOUNTS AS DONE IN FIRST ASSESSEE SHRI BHAGVANBHAIS CASE. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUT E THIS FACTUAL POSITION. WE THEREFORE RESTRICT THE IMPUGNED ADDITION TO THE EXTENT OF RS.1,82,497/- ONLY SINCE THE ASSESSEE HAS ALREADY OFFERED A SUM O F RS.28LACS IN HIS SETTLEMENT PETITION. THE REMAINING AMOUNT IS DIREC TED TO BE ELIGIBLE FOR SET OFF IN VARIOUS ACCOUNTS. THIS SUBSTANTIVE GROUND I S PARTLY ACCEPTED. 60. THE ASSESSEES FIFTH SUBSTANTIVE GROUND PLEADS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN MAKING ADDITION OF RS.23L ACS FOR UNEXPLAINED INVESTMENT AND EXPENDITURE IN HOUSE U/S.69 R.W.S.15 8BB(2) OF THE ACT. MR. THAKKAR THEREAFTER REFERS TO ASSESSEES SIXTH SUBST ANTIVE GROUND IN THE NATURE OF A CONSEQUENTIAL PLEA THAT THE ASSESSING OFFICER AS WELL AS CIT(A) HAVE IGNORED THE FACT THAT THE RELEVANT WITHDRAWAL HAVE ALREADY BEEN TAXED SEPARATELY IN THE HANDS OF GROUP FIRMS. 61. WE HAVE HEARD BOTH THE PARTIES STRONGLY SUPPOR TING THEIR RESPECTIVE PLEADINGS AGAINST AND IN SUPPORT OF THE IMPUGNED AD DITION. IT IS EVIDENT THAT THE ASSESSEES RESIDENTIAL HOUSE IS NAMED MAYUR PA RK. MR. THAKKAR TAKES US TO PAGE 16 OF THE PAPER BOOK INDICATING ASSESSEE S WITHDRAWALS OF RS.70.42LACS OFFERED TO TAX BY THE SHYAM GROUP FIRM S BEFORE THE SETTLEMENT COMMISSION. IT HAS ALREADY COME ON RECORD THAT ALL THE GROUP FIRMS STAND ASSESSED QUA THE SAME. WE THEREFORE CONCLUDE ON TH E BASIS OF ASSESSEES DUPLICATE BOOKS PREPARED FORMING BASIS OF HIS SETTL EMENT PETITION CLEARLY INDICATING THE VERY RESIDENTIAL PROPERTY AND WITHDR AWALS THEREIN TO CONCLUDE THAT RE-ASSESSMENT OF THE VERY AMOUNT IN THE IMPUGN ED BLOCK ASSESSMENT IN M/S. SHYAM GROUPS - 53 - ADDITION TO THAT ALREADY DECLARED WOULD AMOUNT TO D OUBLE ADDITION. WE THEREFORE ACCEPT ASSESSEES SUBSTANTIVE GROUND ON T HIS SCORE ALONE. 62. ASSESSEES SEVENTH SUBSTANTIVE GROUND CHALLENGE S CORRECTNESS OF ADDITION OF RS.30,000/- FOR ALLEGED UNEXPLAINED CAS H IN ASSESSMENT YEAR 1997-98 AS MADE BY BOTH THE LOWER AUTHORITIES. MR. THAKKAR IS ONCE AGAIN VERY FAIR IN NOT PRESSING THE INSTANT GROUND KEEPIN G IN MIND SMALLNESS OF THE AMOUNT INVOLVED. THIS GROUND IS ACCORDINGLY DECLIN ED AS NOT PRESSED. 63. MR. THAKKAR LASTLY TAKES US TO ASSESSEES EIGHT H SUBSTANTIVE GROUND CHALLENGING THE ASSESSING OFFICER AS WELL CIT(A)S ACTION IN NOT GRANTING BASIC EXEMPTION AND DEDUCTIONS UNDER CHAPTER VI OF THE ACT IN ASSESSMENT YEARS 1987-88 TO 1989-90. HE ONCE AGAIN CLARIFIES THAT THE ASSESSEE NOR MORE WISHES TO PRESS THE SAME. WE THEREFORE DECLINE THE INSTANT SUBSTANTIVE GROUND AS WELL AS NOT PRESSED. THIS APPEAL IT(SS)A NO. 32 6/AHD/2010 IS PARTLY ACCEPTED. 64. THE REVENUES CROSS APPEAL IT(SS)A NO.466/AHD/2 010 RAISES TEN SUBSTANTIVE GROUNDS. ITS FIRST SUBSTANTIVE GROUND SEEKS TO REVIVE PROTECTIVE ADDITION OF RS.24,000/- MADE BY THE ASSESSING OFFIC ER IN RESPECT OF UNEXPLAINED INVESTMENT IN BALAPUR LAND. WE FIND TH AT WE HAVE ALREADY UPHELD SUBSTANTIVE ADDITION IN BHAGVANBHAIS CASE H EREINABOVE RAISING FOURTH SUBSTANTIVE GROUND WITH REGARD TO THE VERY LAND. T HIS SUBSTANTIVE GROUND IS ACCORDINGLY REJECTED. 65. THE REVENUES SECOND SUBSTANTIVE GROUND PLEADS THAT THE CIT(A) HAS ERRED IN DELETING PROTECTIVE ADDITION OF UNEXPLAINE D INVESTMENT OF RS.9,60,350/- MADE BY THE ASSESSING OFFICER AS PER TAINING TO MAHADEVNAGAR LANDS. LEARNED CIT(A) CONCLUDES IN PAGE 10 PARA 11 THAT THE ASSESSEE M/S. SHYAM GROUPS - 54 - ARVINDBHAI IS NOT A VENDEE WITH RESPECT TO THE AGRE EMENT IN QUESTION INVOLVING FOUR PARTIES PAYING ADVANCE AMOUNT OF RS. 19,20,700/-. MR. THAKKAR POINTS OUT THAT WE HAVE ALREADY CONFIRMED S UBSTANTIVE ADDITION IN GROUND NO.7 RAISED IN BHAGWANBHAIS CASE DECIDED IN PRECEDING PARAS. WE THEREFORE SEE NO REASON TO INTERFERE WITH THE CIT(A )S ACTION UNDER CHALLENGE DELETING THE IMPUGNED PROTECTIVE ADDITION. 66. THE REVENUES THIRD SUBSTANTIVE GROUND SEEKS TO REVIVE UNEXPLAINED PROFIT ON SALE OF MAHADEVNAGAR LANDS OF RS.1,22,500 /- AS MADE IN THE COURSE OF ASSESSMENT AND DELETED IN LOWER APPELLATE PROCEE DINGS. WE NOTICE HEREIN AS WELL THAT WE HAVE ALREADY CONFIRMED SUBSTANTIVE ADDITION UNDER THE VERY HEAD IN SUBSTANTIVE GROUND NO.8 IN BHAGWANBHAIS CA SE IN PRECEDING PARAGRAPHS. THE CIT(A)S FINDINGS UNDER CHALLENGE ARE ACCORDINGLY CONFIRMED SO AS TO AVOID DOUBLE ADDITION OF VERY AM OUNT. 67. WE PROCEED FURTHER TO NOTICE THAT REVENUES FOU RTH TO EIGHTH SUBSTANTIVE GROUND SEEK TO REVIVE PROTECTIVE ADDITI ONS OF UNEXPLAINED INVESTMENTS OF RS.50.50LACS MADE IN UMIYA FIRM IN A SSESSMENT YEAR 1996- 97, ADDITION OF RS.1,04,50,000/- PERTAINING TO VAST RAL LAND FOLLOWED BY PROFIT OF RS.16.51LACS ON RELINQUISHMENT OF SHARE, UNEXPLA INED INVESTMENT OF RS.74,63,855/- PERTAINING TO NAVA NARODA LAND, INVE STMENT OF RS.11.32LACS MADE IN DHANSURA LAND AND RS.1LAC INVESTED IN PURC HASE OF GUNTHA LAND; RESPECTIVELY AS MADE BY THE ASSESSING OFFICER AND D ELETED IN LOWER APPELLATE PROCEEDINGS. MR. THAKKAR FIRST OF ALL SUBMITS THAT THE CIT(A) HAS RIGHTLY HELD ALL THESE PROTECTIVE ADDITIONS AS A CASE OF DOUBLE TAXATION SINCE THE SAME HAVE BEEN SUBSTANTIVELY ADDED IN SHRI BHAGWANBHAI PATEL S CASE AS ADJUDICATED IN PRECEDING PARAGRAPHS. HE THEREAFTER POINTS OUT TH AT THE ASSESSEE ARVINDBHAI HAS ALSO OFFERED 50% OF THE ADDITION AMOUNTS PERTAI NING TO FOURTH AND FIFTH SUBSTANTIVE GROUND IN HIS SETTLEMENT COMMISSIONS P ETITION. HE THEN COMES M/S. SHYAM GROUPS - 55 - TO NAVA NARODA LAND ADDITION TO INDICATE THAT THE V ERY AMOUNT STANDS VERIFY AND ACCEPTED BY THE DEPARTMENTAL AUTHORITIES IN SET TLEMENT COMMISSION FOLLOWED BY ITS SUBSTANTIVE ASSESSMENT IN BHAGWANBH AIS HANDS. THE REVENUE IS FAIR ENOUGH IN NOT REBUTTING CORRECTNESS OF ALL THESE ASSERTIONS AS WELL AS CIT(A)S FINDINGS UNDER CHALLENGE. WE THER EFORE REJECT ALL THESE SUBSTANTIVE GROUNDS PERTAINING TO THE CORRESPONDING PROTECTIVE ADDITIONS. 68. THE REVENUES NINTH SUBSTANTIVE GROUND PLEADS T O RESTORE ASSESSING OFFICERS ACTION ADDING A SUM OF RS.3.25LACS ON ACC OUNT OF UNEXPLAINED HOUSEHOLD EXPENDITURE AND PERSONAL INVESTMENTS AS M ADE ON ESTIMATION BASIS. WE REITERATE OUR DISCUSSION WITH RESPECT TO SHRI BH AGWANBHAIS SUBSTANTIVE GROUND NO.11 ADJUDICATED HEREINABOVE THAT SUCH AN E STIMATION WITHOUT ANY SPECIFIC EVIDENCE IS NOT TO BE RESORTED IN A BLOCK ASSESSMENTS CASE. THE INSTANT SUBSTANTIVE GROUND IS ACCORDINGLY DECLINED. 69. THE REVENUES LAST SUBSTANTIVE GROUND CHALLENGE S THE CIT(A)S ORDER REVERSING ASSESSING OFFICER S ACTION MAKING ADDITI ON OF RS.1LAC ON ACCOUNT OF UNEXPLAINED INVESTMENT IN VALUABLES. THE ASSESS ING OFFICER MADE THE IMPUGNED ADDITION PERTAINING TO VARIOUS HOUSEHOLDS ITEMS SUCH AS CLOUR TV, AIR CONDITIONER, WASHING MACHINE, VACUUM CLEANER, M OTORCYCLE ETC. THE CIT(A) CONCLUDES THAT THESE VALUABLES CAN BE HELD T O BE FROM FIRMS WITHDRAWAL WHICH HAVE ALREADY BEEN ASSESSED IN THEI R HANDS. LEARNED DEPARTMENTAL REPRESENTATIVE IS UNABLE TO REBUT CORR ECTNESS THEREOF BY TAKING US TO THE SAID FIRMS ASSESSMENT ORDERS. WE THEREF ORE UPHOLD LEARNED CIT(A)S FINDINGS UNDER CHALLENGE. THE REVENUES I NSTANT SUBSTANTIVE GROUND AS WELL AS MAIN APPEAL IT(SS)A NO.466/AHD/20 10 FAIL. 70. NEXT COME FOUR CASES PERTAINING TO THE THIRD AS SESSEE SHRI KALYANBHAI PATEL. THIS ASSESSEE AND REVENUE INSTITUTE QUANTUM CROSS APPEALS IT(SS)A M/S. SHYAM GROUPS - 56 - NO. 76/AHD/2009 & 67/AHD/2010; RESPECTIVELY FOLLOWE D BY LATTERS PENALTY APPEAL IT(SS)A NO. 34/AHD/2013 & FORMERS CROSS OBJ ECTION THEREIN CO NO. 45/AHD/2013. 71. A PERUSAL OF THE ABOVE QUANTUM CROSS APPEALS RE VEALS THAT MANY OF THE GROUNDS RAISED THEREIN ARE INTERCONNECTED. THE ASS ESSEES FIRST SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF UNEXPLAINED INVEST MENT ADDITION IN NIKOL LAND IN ASSESSMENT YEARS 1990-91 TO 1992-93, 1996-9 7 & FROM 01.04.1996 TO 21.01.1997 INVOLVING SUMS OF RS.4LACS, RS.2.28LACS, RS.50,000/-, RS.66,666/- AND RS.1,11,038/- WHEREAS REVENUES SECOND SUBSTANT IVE GROUND SEEKS TO REVERSE CIT(A)S FINDINGS DELETING UNEXPLAINED INVE STMENT ADDITION IN THE VERY LANDS AMOUNTING TO RS.8,54,704/-. MR. THAKKAR STATES VERY FAIRLY THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE I NSTANT SUBSTANTIVE GROUND WHICH STANDS ON IDENTICAL FOOTING TO SUBSTANTIVE GR OUND NO.2 RAISED IN ARVINDBHAIS APPEAL HEREINABOVE. WE THEN FIND IN R EVENUES GRIEVANCE THAT THE CIT(A)S RECORDS A CATEGORIC FINDING THAT THE I MPUGNED SUM OF RS.8.4LACS ALREADY STANDS OFFERED BEFORE THE SETTLEMENT COMMIS SION AND THE ASSESSING OFFICER HAS MADE THE DOUBLE ADDITION THEREFORE. WE THUS FIND NO MERIT IN EITHER OF THE TWO GROUNDS. THE SAME ARE REJECTED. 72. THE ASSESSEES SECOND SUBSTANTIVE GROUND POSES CHALLENGE TO UNEXPLAINED INVESTMENT ADDITION OF RS.17,32,757/- C ONFIRMED IN THE LOWER APPELLATE PROCEEDINGS IN RESPECT OF ODHAV LAND IN A SSESSMENT YEAR 1996-97 WHEREAS THE REVENUE SEEKS TO RESTORE THE VERY UNEXP LAINED INVESTMENTS OF RS.76,000/-, RS.22.74LACS AND RS.5,41,243/- IN ASSE SSMENT YEARS 1995-96 TO 1997-98; RESPECTIVELY IN ITS THIRD SUBSTANTIVE GROU ND. THE CIT(A) DISCUSSES THE ISSUE IN DETAIL AS UNDER: 11. UNEXPLAINED INVESTMENT IN LAND AT ODHAV M/S. SHYAM GROUPS - 57 - THIS ADDITION HAS BEEN DISCUSSED IN PARA 5 OF THE B LOCK ASSESSMENT ORDER DATED 28.1.1999. THE ADDITION HAS BEEN MADE ON THE BASIS OF BANAKHAT DATED 31.12.94 FOUND AND SEIZED FROM THE RESIDENCE OF THE APPELLAN T, PERTAINING TO PURCHASE OF 1,12,500 SQ.YARDS OF LAND AT THE RATE OF RS.60 THUS TOTAL CONSIDERATION HAS BEEN WORKED OUT TO RS 67,50,000. THE SCHEDULE OF PAYMENT S IS ALSO MENTIONED IN THE BANAKHAT. TILL THE DATE OF SEARCH AN AMOUNT OF RS 3 8,51,000 HAD BEEN PAID FOR THIS LAND ON DIFFERENT DATES MENTIONED IN PARA 5.8 OF TH E ASSESSMENT ORDER, RS 6,83,889 COULD BE EXPLAINED BY THE APPELLANT TO HAVE BEEN WI THDRAWN FROM THE FIRM - M/S SHYAM BUILDERS - IN WHICH APPELLANT IS A PARTNER, A O ADDED THE BALANCE AMOUNT OF RS 31,67,191 AS UNEXPLAINED INVESTMENT U/S 69C . THE TABLE FROM THE BLOCK ASSESSMENT ORDER IN WHICH A COLUMN OF GROUNDS HAS BEEN ADDED IS REPRODUCED BELOW: 'DATE SCHEDULE AS PER BANAKHAT AMOUNT RS. AMOUNT DEBITED IN DUPLICATE BOOK (AMOUNT RS.) UNEXPLAINED INVESTMENT (AMOUNT RS.) GROUND OF APPEAL 31.12.94 1,51,000 75,000 76,000 GROUND NO. 9 ADDITION OF RS. 76,000 IN AY 1995-96. 30.5.95 10,00,000 76,000 9,24,000 GROUND NO. 12 ADDITION OF RS.22,74,000 IN AY.96-97. 31.8.95 4,50,000 - 4,50,000 30.11.95 4,50,000 - 4,50,000 28.2.96 4,50,000 - 4,50,000 31.5.96 4,50,000 4,43,574 (ON 12. 6.96 & 18.6.96) 6,426 31.8.96 4,50,000 89,235 3,60,765 GROUND NO. 17 ADDITION OF RS.8,17,191 IN AY. 97-98 30.11.96 4,50,000 - 4,50,000 TOTAL 38,51,000 6,83,809 31,67,191 12. DURING THE COURSE OF APPELLATE PROCEEDINGS VIDE WRITTEN SUBMISSION DATED 2.7.2009 A VERY INTERESTING STORY WAS TOLD THAT SON OF THE APPELLANT SHRI JASWANTLAL K. PATEL HAD ENTERED INTO AN AGREEMENT FOR THE PURC HASE OF LAND WITH THE ORIGINAL OWNERS OF HE LAND ONE JADHAV FAMILY, AND SHRI BHIKU BHAI PATEL ( BROTHER-IN-LAW OF THE APPELLANT) HAD ENTERED INTO AN AGREEMENT WITH T HE TILLERS OF THE LAND - JAYARAMBHAI CHUNARA , PAYMENTS HAD BEEN MADE TO THE OWNERS OF LAND AND THAT M/S. SHYAM GROUPS - 58 - THE AO HAS ERRONEOUSLY DRAWN A CONCLUSION THAT SON OF THE APPELLANT HAD ENTERED INTO AN AGREEMENT WITH THE TILLER (JAYARAMBHAI CHUN ARA ), IT WAS STATED THAT ON ACCOUNT OF DISPUTE OF LAND BETWEEN THE OWNERS AND T ILLER NUCLEAR TITLE HAS NOT BEEN OBTAINED AND THE MATTER IS PENDING WITH HIGH COURT. IT HAS BEEN STATED THAT THAT THE BANAKHAT DOES NOT BEAR NAME OR SIGNATURES OF THE APPELLANT, THAT THE ADDITION HAD BEEN MADE RELYING ON THE STATEMENT OF ONE BHIKHUBHAI. V. PATEL ONLY, THOUGH LATER THROUGH AN AFFIDAVIT HE HAS STATED THAT THE APPELLANT HAD NOTHING TO DO WITH THE LAND DEAL, THA T THE REMAND REPORT OF THE AO REITERATES WHAT HAS BEEN STATED IN THE BLOCK ASSESS MENT ORDER. IT WAS ALSO ARGUED THAT NO.II FUNDS FROM SHYAM BUIL DERS IN WHICH APPELLANT IS THE PARTNER WERE UTILIZED FOR PURCHASE OF THIS LAND AND THESE FUNDS HAD BEEN DECLARED BEFORE SETTLEMENT COMMISSION. 13. AFTER GOING THROUGH MATERIAL ON RECORD FOLLOWIN G POINTS EMERGE: (A) DURING THE COURSE OF ORIGINAL BLOCK ASSESSMENT PROCEEDINGS THE APPELLANT NOT JUST CONFIRMED THROUGH REPLY DATED 21.1.99 THAT THE SEIZED BANAKHAT PERTAINED TO ODHAV LAND BUT EXPLAINED THE SOURCE OF PAYMENTS MADE FOR PURCHASE OF THIS LAND TO THE EXTENT OF RS 6,83,809, NOW AFTER 10 YEARS DU RING THE COURSE OF PRESENT APPELLATE PROCEEDINGS HE IS TRYING HIS BEST TO SHOW THAT HE IS NOT IN ANY WAY INVOLVED IN THE LAND DEAL. THE SO CALLED AFFIDAVIT OF BHIKUBHAI HAS NOT BEEN FURNISHED IN ORIGINAL NEITHER A CERTIFIED COPY, SAM E IS THE CASE WITH THE SO CALLED AFFIDAVITS OF THE OWNERS OF LAND. AND THEREFORE THE STORY THAT KALYANBHAI HAS NOTHING TO DO WITH LAND IS NOT ESTABLISHED, JASWANT IS HIS SON AND BHIKUBHAI IS BROTHER-IN-LAW OF JASWANTBHAI. (B) ON ONE HAND THE APPELLANT IS STATING T HAT THE LAND IS DISPUTED. THE DISPUTE BEING BETWEEN THE OWNERS AND TILLER OF LAND - TILLER BEING JAYARAM CHUNARA - WHILE ON THE OTHER HAND APPELLANT IS SUBMITTING XEROX COPIES OF AFFIDAVITS OF OWNERS OF LAND STATIN G THAT THEY SOLD THE LAND TO JASWANTBHAI PATEL - SON OF THE APPELLANT AND RECEIV ED THE STATED AMOUNTS ON VARIOUS DATES. THUS TRYING TO ESTABLISH THAT BHIKUB HAI ENTERED INTO AN AGREEMENT WITH THE TILLER OF LAND - JAYARAM CHUNARA WHILE THE SON OF THE APPELLANT WITH THE OWNERS OF LAND. (C) HOWEVER DURING HEARING DATED 26.11.2009 THE ID. AR ARGUED THAT FUNDS FOR INVESTMENT IN ODHAV LAND WERE OBTAINED FROM THE NO. II BOOKS OF SHYAM BUILDERS, AND VIDE WRITTEN SUBMISSION STATED THAT THE DISCLOS URE MADE BY THE FIRM (SHYAM BUILDERS) BEFORE SETTLEMENT COMMISSION COVERS THE I NVESTMENTS OF WHICH ADDITIONS WERE MADE BY THE AO. VIDE WRITTEN SUBMISSION DATED 26.11.2009 FOLLOWING TABLE WAS GIVEN IN SUPPORT OF THE ARGUMENT: A.Y INCOME DISCLOSURE BY M/S SHYAM BUILDERS INVESTMENT MADE IN LAND 1995-1996 2,00,975 INVESTMENT IN LAND AT ODHAV RS.78,000/- M/S. SHYAM GROUPS - 59 - 1996-1997 27,06,214 INVESTMENT IN LAND AT ODHAV RS,22,74,000/-. INVESTMENT IN LAND AT RAIPUR- DEHGAMRS.1, 36,9997- 01-04-1996 TO 21-01-1997 50,56,433 INVESTMENT IN LAND AT ODHAV RS.8,17,191/- IT WAS ALSO STATED IN THE WRITTEN SUBMISSION THAT T HE DISCLOSURE MADE BY THE FIRM WAS AT A HIGHER AMOUNT THAN THE INVESTMENT MADE IN THE LAND AND SINCE THERE IS A DIRECT LINK BETWEEN THE TWO THE BENEFIT OF TELESCOP ING SHOULD BE GRANTED TO THE APPELLANT. 14. AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEE N THAT DIRECT LINK OF ANY DATES AND WITHDRAWALS FROM NO.II BOOKS OF SHYAM BUILDERS COULD NOT BE ESTABLISHED EITHER AT THE ASSESSMENT OR AT THE APPELLATE STAGE, HOWEVER IN THE INTEREST OF JUSTICE I AM OF THE VIEW THAT THIS IS A FACT THAT BEFORE HO N'BLE SETTLEMENT COMMISSION DISCLOSURE HAS BEEN MADE IN THE STATEMENT OF FACTS BY THE FIRM SHYAM BUILDERS ON ACCOUNT OF NO. II PROFITS EARNED. THE STATEMENT OF FACTS IS ENCLOSED AS ANNEXURE-2 OF THIS ORDER. THIS IS ALSO A FACT THAT KALYANBHAI IS A PARTNER IN THE FIRM AND NO INVESTMENT IN LANDS WOULD HAVE BEEN MADE FROM NO.II PROFITS ONLY, BUT |N THE FIRM SHYAM BUILDERS KALYANBHAI IS NOT THE ONLY PARTNER, THIS FIRM HAS FOUR PARTNERS: 1. PATEL JASWANTBHAI KALYANBHAI- 35% 2. PATEL KALYANBHAI KHODABHAI 20% 3. PATEL GIRISHBHAI KALYANBHAI 30% 4. PATEL NATNABEN JAWANTBHAI 15% AND THE BENEFIT OF TELESCOPING CANNOT BE THE MONOPO LY OF ONE PARTNER ( ONLY, THEREFORE IN THE INTEREST OF JUSTICE KALYANBHAI CAN BE GIVEN SET OFF OF INCOME DISCLOSED BY THE FIRM SHYAM BUILDERS BEFORE SETTLEM ENT COMMISSION TO THE EXTENT OF 20% OF THE DISCLOSURE BECAUSE HE IS PARTNER IN T HE RATIO OF 20% IN THE FIRM SHYAM BUILDERS. BY THIS LOGIC THE AO IS DIRECTED TO DELETE THE ADDITION MADE WITH RESPECT TO ODHAV LAND IN AY 1995-96 AND IN THE BROK EN PERIOD BECAUSE IT IS LESS THAN 20% AMOUNT WHICH COMES IN KALYANBHAI'S SHARE F ROM THE DISCLOSURE IN SHYAM BUILDERS REPRODUCED IN PARA 13 ABOVE. HOWEVER DISCLOSURE BY SHYAM BUILDERS IN AY 1996-97 IS OF RS. 27, 06, 214, 20% O F WHICH COMES TO RS. 5,41 ,243 WHEREAS THE ADDITION HAS BEEN MADE OF RS. 22,74,000 BY THE AO, THE AO IS DIRECTED TO DELETE RS. 5,41 ,243 OUT OF THIS ADDITION MADE I N AY 1996-97, THE ADDITION OF BALANCE AMOUNT OF RS. 17,32,757 (RS.22,74,000 RS. 5,41,243) IS UPHELD. 73. HEARD BOTH PARTIES. RELEVANT CASE RECORD PERUS ED. WE DO NOT FIND ANY MERIT IN ASSESSEES FIRST ARGUMENT THAT HE HAD NO C ONNECTION WHATSOEVER WITH THE LAND IN QUESTION AS ESTABLISHED IN THE CIT(A)S FINDINGS EXTRACTED IN PRECEDING PARAGRAPH. MR. THAKKAR THEN SUBMITS THAT THE LOWER APPELLATE M/S. SHYAM GROUPS - 60 - AUTHORITY HAS ERRED IN GRANTING CREDIT OF ONLY 20% IN CASE OF THE FIRM M/S. SHYAM BUILDERS INSTEAD OF 100%. WE FIND THIS ALTER NATIVE PLEA TO BE ACCEPTABLE SINCE THE LOWER AUTHORITY PARTICULARLY T HE CIT(A) HAS NOWHERE REBUTTED ASSESSEES CONTENTION SEEKING 100% CREDIT OF THE SAID ENTITY TO THE TUNE OF RS.27,06,214/- TURNING OUT TO BE MORE THAN THE INVESTMENT IN QUESTION OF RS.22.74LACS. NEITHER THE ASSESSING OFFICER NOR THE CIT(A) OBSERVE OR RECORD A FINDING THAT THE ASSESSEES PARTNERS IN TH E ABOVE FIRM HAVING ANYWHERE SUCCEEDED IN CLAIMING THEIR RESPECTIVE SHA RES. WE CONCLUDE IN THESE PECULIAR CIRCUMSTANCES THAT THE ASSESSEE DESE RVES TO BE GRANTED CREDIT OF THE IMPUGNED ENTIRE SUM IN THE HANDS OF THE ABOVE G ROUP FIRM. THIS IMPUGNED ADDITION IS ACCORDINGLY DELETED. THE REVE NUES THIRD SUBSTANTIVE GROUND IS THEREFORE DECLINED. 74. THE ASSESSEES THIRD AND FOURTH SUBSTANTIVE GRO UND CHALLENGE CORRECTNESS OF UNEXPLAINED INVESTMENT ADDITIONS OF RS.1LAC EACH PERTAINING TO JAYESH SCHOOL LAND IN ASSESSMENT YEAR 1997-98 AND R AIPUR LAND IN ASSESSMENT YEAR 1996-97; RESPECTIVELY. MR. THAKKAR IS AGAIN VERY FAIR IN SUBMITTING THAT THE ASSESSEE DOES NOT WISH TO PRESS FOR THE INSTANT GROUNDS PROVIDED HE IS GRANTED CONSEQUENTIAL TELESCOPING BE NEFIT WHEREVER NECESSARY IN COMPUTATION TO BE MADE AT ASSESSING OFFICERS EN D IN FURTHERANCE TO OUR INSTANT ADJUDICATION. LEARNED DEPARTMENTAL REPRESE NTATIVE DOES NOT DISPUTE THIS LIMITED PLEA. WE THEREFORE PARTLY ALLOW THESE TWO SUBSTANTIVE GROUNDS FOR STATISTICAL PURPOSES AND LEAVE IT OPEN FOR THE ASSESSING OFFICER TO FOLLOW CONSEQUENTIAL TELESCOPING IN COMPUTATION EXERCISE A S PRAYED HEREINABOVE. 75. THE ASSESSEES FIFTH SUBSTANTIVE GROUND PLEADS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN ADDING UNEXPLAINED HOUSEH OLD EXPENDITURE OF RS.72,000/-, RS.1.44 & 1.74LACS IN ASSESSMENT YEARS 1995-96 TO 1996-97 AND FROM 01.04.1996 TO 21.01.1997; RESPECTIVELY BY FOLL OWING ESTIMATION METHOD. M/S. SHYAM GROUPS - 61 - WE REFER TO OUR DISCUSSION ON THE VERY ISSUE IN PRE CEDING TWO ASSESSEES CASES TO CONCLUDE THAT SUCH AN ESTIMATION IS NOT OPEN IN THIS KIND OF BLOCK ASSESSMENT. THE IMPUGNED ADDITIONS ARE ACCORDINGLY DELETED. 76. THE ASSESSEES SIXTH AND LAST SUBSTANTIVE GROUN D CHALLENGES UNEXPLAINED INVESTMENT ADDITION OF RS.3LACS IN ASSE SSMENT YEAR 1997-98 RELATING TO HERO HONDA MOTOR CYCLE, KINETIC SCOOTER AND MAHINDRA JEEP; AS MADE BY THE ASSESSING OFFICER AND CONFIRMED IN LOWE R APPELLATE PROCEEDINGS. 77. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND ALSO P ERUSED THE RELEVANT RECORDS PERTAINING TO THE INSTANT ISSUE. WE NOTICE FIRST OF ALL FROM PAGES 27 TO 29 OF THE PAPER BOOK THAT THE ABOVESTATED KINETIC S COOTER PURCHASED HAS ALREADY BEEN REFLECTED IN REGULAR BOOKS OF M/S. SHY AM BUILDERS AS RECORDED IN BALANCE SHEET. WE FURTHER FIND THAT THE ABOVE M AHINDRA JEEP VEHICLE WAS TAKEN ON LOAN OBTAINED FROM M/S. SARASPUR NAGRIK CO -OPERATIVE BANK AND ITS RE-PAYMENT WAS DEBITED IN M/S. SHYAM BUILDERS BOOK S. COMING TO HERO HONDA MOTOR CYCLE, WE OBSERVE IN LARGER INTEREST OF JUSTICE THAT THE ASSESSEE MUST HAVE PURCHASED THE SAME FROM HIS WITHDRAWALS A ND ALSO IN VIEW OF THE ABOVE TELESCOPING DIRECTIONS WE FIND NO REASON TO C ONCUR WITH THE IMPUGNED ADDITION. THIS SUBSTANTIVE GROUND IS THEREFORE ACC EPTED. IT(SS)A NO.76/AHD/2009 PARTLY SUCCEEDS. 78. THE REVENUES QUANTUM APPEAL IT(SS)A NO. 67/AHD /2010 RAISES FIRST SUBSTANTIVE GROUND SEEKING TO RESTORE PROTECTIVE AD DITION OF UNEXPLAINED CASH GIVEN TO SHRI ARVINDBHAI P PATEL. THE CIT(A) RECOR DS A CLINCHING FINDING THAT THE LAND PURCHASE TRANSACTION IN QUESTION OF R S.19.36LACS HAD ALREADY BEEN CLAIMED BY M/S. SHYAM CONSTRUCTION CO. WHILST FILING ITS SETTLEMENT PETITION BEFORE THE ABOVE SETTLEMENT COMMISSION. L EARNED DEPARTMENTAL M/S. SHYAM GROUPS - 62 - REPRESENTATIVE FAILS TO REBUT CORRECTNESS THEREOF. THIS FIRST SUBSTANTIVE GROUND FAILS THEREFORE. 79. THE REVENUES FOURTH SUBSTANTIVE GROUND PLEADS THAT THE CIT(A) HAS ERRED IN DELETING UNEXPLAINED INVESTMENT ADDITION F OR JAYESH SCHOOL LAND AMOUNTING TO RS.7LACS AS UNDER: 15. UNEXPLAINED INVESTMENT IN JAYESH SCHOOL LAND OF RS 8,00,000 IN AY 97- 98 GROUND NO.18 THE ADDITION HAS BEEN MADE AS PER DISCUSSION GIVEN IN PARA 6 OF THE ASSESSMENT ORDER DATED 28.1.99. DURING THE COURSE OF PRESENT APPELLATE PROCEEDINGS VIDE SUBMISSION DATED 25.2.2009 IT WAS STATED THAT AS PER SEIZED BANACHIT HI DATED 21.7.95 (ANNEXURE A-5 OF SEIZED DOCUMENTS)TOTAL CONSIDERATION OF THE LAND WAS RS.36,00,000 OUT OF WHICH RS 28,00,000 HAD BEEN PAID FROM DUPLICATE SET OF BO OKS WITHDRAWALS WHICH HAD BEEN ACCEPTED BY THE AO AFTER VERIFICATION IT WAS F URTHER CONTENDED THAT THE AO IGNORED THAT PAYMENT OF RS 7,00,000 WAS RECORDED IN THE REGULAR BOOKS OF ACCOUNTS OF SHYAM BUILDERS AND BALANCE RS 1,00,000 WAS PAID FROM WITHDRAWALS MADE IN THE DUPLICATE SET OF BOOKS OF ACCOUNTS. IT WAS ALSO STATED THAT IN THE REMAND REPORT FACTUAL ASPECTS HAVE NOT BEEN CHALLEN GED BY THE AO. AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEEN TH AT RS.7,00,000 IN THE BREAK UP OF RS.3,50,000 HAS BEEN SHOWN UNDER THE HEAD LOANS AND ADVANCES- ON THE ASSET SIDE OF THE BALANCE SHEET FILED WITH THE REGULAR RE TURN OF SHYAM BUILDERS FOR AY 1996-97 ALONG WITH AUDIT REPORT. RS.3,50,000 EACH H AS BEEN SHOWN IN THE NAME OF THE TWO SELLERS OF LAND I.E. KAILASHBEN AMRUTLAL PR AJAPATI AND AMRUTLAL CHAGANLAL, COPIES OF THEIR ACCOUNTS SHOW PAYMENTS FROM AMCO BA NK THROUGH CHEQUES WERE MADE. THEREFORE THE AO IS DIRECTED TO DELETE THE AD DITION OF RS.7,00,000 OUT OF RS.8,00,000 ADDED. BALANCE RS.1,00,000 ADDITION IS UPHELD BECAUSE NO DIRECT LINK COULD BE ESTABLISHED BETWEEN THE PAYMENTS MADE FOR PURCHASE OF LAND AND WITHDRAWALS FROM SHYAM BUILDERS BY THE APPELLANT. 80. WE HAVE HEARD RIVAL SUBMISSIONS. IT EMANATES T HAT THE CIT(A) HAS ALREADY ACCEPTED ASSESSEES EXPLANATION STATING SOU RCE OF RS.3.5LACS UNDER THE HEAD LOANS AND ADVANCES ON ASSET SIDE OF THE BALA NCE SHEET PERTAINING TO M/S. SHYAM BUILDERS IN ASSESSMENT YEAR 1996-97 ALON G WITH AUDIT REPORT AND BALANCE RS.3.5LACS HAVE BEEN HELD TO BE RECEIVED FR OM KAILASHBEN AND AMRUTLAL. THE REVENUE FAILS TO REBUT THESE FINDING S BASED ON SPECIFIC M/S. SHYAM GROUPS - 63 - SUPPORTING EVIDENCE. WE THEREFORE FIND NO REASON T O INTERFERE IN ABOVE EXTRACTED LOWER APPELLATE CONCLUSION. 81. THE REVENUES FIFTH SUBSTANTIVE GROUND SEEKS TO RESTORE UNEXPLAINED CASH CREDIT ADDITION OF RS.8.5LACS AND RS.17LACS IN THE NAMES OF SHRI P. I. JAIN AND BABUBHAI NAGJIBHAI PATEL; RESPECTIVELY. THE CI T(A) OBSERVES THAT M/S. SHAYM BUILDERS HAS ALREADY OFFERED THE VERY SUMS AS ADDITIONAL INCOME IN ITS PETITION FILED BEFORE SETTLEMENT COMMISSION. WE THE REFORE FIND NO REASON TO RESTORE THE IMPUGNED DOUBLE ADDITION. 82. THE REVENUES SIXTH SUBSTANTIVE GROUND PLEADS T HAT THE CIT(A) HAS ERRED IN DELETING UNEXPLAINED INVESTMENT ADDITION O F RS.40,000/- IN A HERO HONDA MOTOR CYCLE. WE REPEAT THAT WE HAVE ALREADY DECIDED THE ISSUE IN ASSESSEES FAVOUR IN HIS CORRESPONDING GROUND NO.6. WE RELY UPON THE SAID DISCUSSION TO DECLINE THE INSTANT SUBSTANTIVE GROUN D. 83. THE REVENUES LAST SUBSTANTIVE GROUND SEEKS TO RESTORE UNEXPLAINED EXPENDITURE ADDITION OF RS.75,757/-. THE CIT(A) CO NCLUDES THAT THE ASSESSEE HAD SUFFICIENT WITHDRAWALS IN PAST TO JUSTIFY THE I MPUGNED EXPENDITURE. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO REFER TO THE RELEVANT WITHDRAWALS STATEMENT SO AS TO DISPUTE THE IMPUGNE D FINDING. WE THEREFORE REJECT REVENUES INSTANT SUBSTANTIVE GROUND AS WELL AS ITS APPEAL IT(SS)A NO. 67AHD/2010. 84. WE NOW ADVERT TO REVENUES PENALTY APPEAL IT(SS )A NO.34/AHD/2013 AND ASSESSEES CO THERETO NO. 45/AHD/2013. THE REV ENUE RAISES FOUR SUBSTANTIVE GROUNDS IN SEEKING TO REVIVE THE IMPUGN ED SECTION 158 BFA (2) PENALTIES PERTAINING TO UNEXPLAINED INVESTMENT LAND AT NIKOL OF RS.8,54,704/-, ADDITION OF RS.22.74 LACS, HOUSEHOLD EXPENDITURES O F RS.72,000/- , M/S. SHYAM GROUPS - 64 - RS.1.44LACS AND RS.1.74LACS AND UNEXPLAINED INVESTM ENTS OF RS.3LACS IN THREE VEHICLES. SUFFICE TO SAY, WE HAVE DELETED / DECIDE D ALL THE RELEVANT ISSUES IN ASSESSEES FAVOUR IN PRECEDING PARAGRAPH IN QUANTUM CROSS APPEAL (SUPRA). THE IMPUGNED PENALTIES HAVE NO LEGS TO STAND THEREF ORE. ALL THE REVENUES GROUNDS AS WELL AS THE INSTANT APPEAL IT(SS)A NO.34 /AHD/2013 FAIL. 85. THE ASSESSEES CO NO.42/AHD/2013 CHALLENGES THE CIT(A)S ACTION IN UPHOLDING ASSESSING OFFICERS ACTION IMPOSING SECTI ON 158BFA(2) PENALTIES ON AN AMOUNT OF RS.18,69,756/- RELEVANT TO UNDISCLO SED INVESTMENT IN ODHAV LAND AND REMAINING ADDITION OF RS.1,36,999/- PERTAI NING TO INVESTMENTS MADE IN NARODA LANDS. WE HAVE ADMITTEDLY DELETED THE FO RMER ADDITION PERTAINING TO ODHAV LAND INVESTMENT IN ASSESSEES QUANTUM APPE AL HEREINABOVE. THE CORRESPONDING PENALTIES UNDER CHALLENGE HAVE TO BE DELETED ON THIS COUNT ALONE. THE ASSESSEE HOWEVER FAILS TO EXPLAIN HIS B ONAFIDES REGARDING THE LATTER PENALTY ISSUE PERTAINING TO NARODA LAND INVE STMENTS. WE THEREFORE CONFIRM THE IMPUGNED PENALTY SINCE THERE IS NO EVID ENCE IN THE CASE FILE WHICH COULD MAKE US TO CONCLUDE THAT BOTH THE LOWER AUTHORITIES HAVE COMMITTED ANY ERROR IN IMPOSING THE IMPUGNED PENALT Y. THIS ASSESSEES CROSS OBJECTION CO. NO. 45/AHD/2013 PARTLY SUCCEEDS . 86. THIS LEAVES US WITH FOURTH AND THE LAST ASSESSE E INVOLVING TWO CASES I.E. REVENUES APPEAL IT(SS)A NO.139/AHD/2007 FOLLOWED B Y THE FORMERS CO NO.111/AHD/2009. THE REVENUES FIRST SUBSTANTIVE G ROUND IS THAT THE CIT(A) HAS ERRED IN DELETING PROTECTIVE ADDITIONS OF RS.19 .18LACS AND RS.15, 43,800/- SUBSTANTIVE ADDITION ON ACCOUNT OF UNEXPLAINED INVE STMENT IN MAHAVIRNAGAR LAND BY CONCLUDING AS UNDER: 3.1 IN ORDER TO DECIDE THE ISSUE, I HAVE CAREFULLY CONSIDERED THE VARIOUS ARGUMENTS PUT UP BY THE LD. AUTHORISED REPRESENTATI VE IN THIS REGARD AND HAVE ALSO PERUSED THE ASSESSMENT ORDER. WHILE THE APPELLANT O N THE ONE HAND IS DENYING HIS M/S. SHYAM GROUPS - 65 - INVOLVEMENT IN THE PURCHASE OF LAND MEASURING 738 S Q. YDS. BEARING PLOT NO. 22A, 23A, 24A AND 25A AT MAHAVIR NAGAR OUT RIGHTLY AND H AS ATTEMPTED TO ATTRIBUTE THE SALE TRANSACTION EXCLUSIVELY TO SHRI RATANLAL C AGR AWAL, SHRI RATANLAL AGRAWAL ON THE OTHER HAND WHILE ACCEPTING THE PAYMENT OF RS. 1 ,00,0007- AND OF RS.50,000/- MADE ON 27/12/1996 AND 11/1/1997 RESPECTIVELY IN RE SPECT OF THE SAME LAND HAS DENIED THE KNOWLEDGE OR EXISTENCE OF ANY SUCH BANAK HAL DATED 27/12/1996 FOUND FROM THE RESIDENCE OF THE APPELLANT. IN MY CONSI DERED OPINION, THE APPELLANT CANNOT DISPUTE THE MATERIAL FACT THAT THE BANA-CHIT THI DATED 27/12/1996 HAS BEEN FOUND IN HIS POSSESSION AND THEREFORE, THE PRESUMPT ION WOULD BE THAT THE BANAKHAT BELONGS THE APPELLANT AND ALL THE CONTENTS MENTIONE D IN THE SAID BANAKHAT ARE REQUIRED TO BE EXPLAINED BY HIM ONLY. THE APPELLAN T DURING THE COURSE OF HIS STATEMENT RECORDED U/S.133(1A) OF THE ACT ON 6/3/19 97 HAS HIMSELF ADMITTED THAT THE LAND AS IS MENTIONED IN THE BANAKHAT DATED 27/1 2/1996 WAS TO BE PURCHASED BY HIM ALONGWITH SHRI RATANLAL C AGRAWAL. HIS FATHER S HRI KALYANBHAI K. PATEL AFTER IDENTIFYING THE NOTINGS ON THE BANA-CHITTHI HAD ALS O CONFIRMED IN HIS STATEMENT THAT THE LAND UNDER CONSIDERATION WAS TO BE PURCHAS ED BY HIS SON ALONGWITH SHRI RATANLAL C AGRAWAL. THE DETAILS OF PAYMENTS MENTION ED ON THE SAID BANAKHAT ALSO INDICATE THAT A PART OF THE PAYMENT WAS MADE BY SHR I RATANLAL C AGRAWAL AND PART OF THE PAYMENT WAS MADE BY THE APPELLANT. ALL THESE FACTS ARE SUFFICIENT IN THEMSELVES TO PROVE THAT THE APPELLANT WAS EQUALLY INVOLVED IN THE PURCHASE TRANSACTION OF THE LAND AT MAHAVIR NAGAR ALONGWITH SHRI RATANLAL C AGRAWAL. IN THE BACKGROUND OF THESE FACTS, I AM NOT INCLINED TO ACCEPT ALL THE CONTENTIONS RAISED BY THE LD AUTHORISED REPRESENTATIVE SO AS TO ESTABL ISH THAT THE APPELLANT WAS NOWHERE INVOLVED IN THE SAID LAND DEAL. THE QUESTION NOW REMAINS TO BE DECIDED IS AS TO HOW MUCH INVESTMENT WAS ACTUALLY MADE BY THE APPELLANT. THE LD. ASSESSING O FFICER IN PARA 4.7 OF HIS ASSESSMENT ORDER HAS ALREADY HELD SHRI RATANLAL C A GRAWAL TO BE A PARTNER IN INVESTMENT TO THE EXTENT OF 50%. IN THE LIGHT OF SA ID FINDINGS OF THE ID. ASSESSING OFFICER, THERE APPEARS TO BE NO JUSTIFICATION FOR H IM TO MAKE PROTECTIVE ADDITION OF RS. 19,18,800/- IN THE HANDS OF THE APPELLANT WHICH NEEDS TO BE DELETED. IN SO FAR AS THE ADDITION OF RS. 19,18,800/- MADE I N THE HANDS OF THE APPELLANT ON SUBSTANTIVE BASIS IS CONCERNED, THERE IS NO DISCUSSION IN .THE ASSESSMENT ORDER AS TO WHERE FROM THE INVESTMENT OF RS. 19,18,800/- HAS BEEN PICKED UP BY THE LD. ASSESSING OFFICER. THE ASSESS ING OFFICER SEEMS TO HAVE PROCEEDED WITH THE ASSUMPTION THAT SINCE THE PURCHA SE RATE OF LAND OF RS. 5200/- PER SQ. YD. WAS MENTIONED IN THE BANAKHAT , THE SAM E RATE WHEN MULTIPLIED TO THE SIZE OF PLOT MEASURING 738 SQ. YDS. WOULD WORK OUT THE TOTAL INVESTMENT TO RS. 38,37,600/- AND 50% THEREOF BEING RS. 19,18,800/- W ILL FALL TO THE SHARE OF THE APPELLANT. THEREFORE IS HOWEVER, NO EVIDENCE BROUGH T ON RECORD TO SUBSTANTIATE THE CHARGE THAT THE PAYMENT OF RS. 38,37,600/- WAS ACTU ALLY MADE BY THE APPELLANT IN RESPECT OF THE SAID LAND BEFORE THE DATE OF SEARCH. THE ONLY EVIDENCE REGARDING THE PAYMENTS MADE IN RESPECT OF THE SAID LAND IS THE BA NAKHAT DATED 27/12/1996 SEIZED DURING THE SEARCH. IF WE GO BY THE DETAILS OF THE P AYMENTS MADE OR TO BE MADE AS PER THE BANAKHAT, THE APPELLANT WAS REQUIRED TO MAK E PART PAYMENT OF RS. 11,51,280/- BEING 30% OF THE TOTAL SALE TRANSACTION BEFORE 20/1/1997. AS AGAINST THE AGREED AMOUNT OF PAYMENT OF RS. 11,51,280/-, TH E ACTUAL PAYMENT OF RS. 1,00,001/-, RS. 2,50,000/- AND OF RS. 3 LACS ARE F OUND TO BE MADE ON 27/12/1996, 9/1/1997 AND 11/1/1997 RESPECTIVELY. THE CONTENTION OF THE LD. AUTHORISED M/S. SHYAM GROUPS - 66 - REPRESENTATIVE THAT DURING THE COURSE OF BLOCK ASSE SSMENT, ONLY THE UNDISCLOSED INCOME RELATING TO THE BLOCK PERIOD IS REQUIRED TO BE ASSESSED, IS FOUND TO BE LEGALLY CORRECT. THE HON'BLE MEMBERS OF THE ITAT AM RITSAR BENCH IN THE CASE OF MAJ. GEN (RETD.) KANWARJIT SINGH GILL L/H OF SMT. N ARINDER KAUR GILL (DECD.) VS. ACIT (2006) 101 TTJ (ASR.) 538 (SUPRA) HAVE LAID DO WN THAT ANY UNDISCLOSED ASSET ACQUIRED BY AN ASSESSEE PRIOR TO THE COMMENCEMENT O F THE BLOCK PERIOD CANNOT BE SUBJECT MATTER OF THE BLOCK ASSESSMENT UNDER CHAPTE R XIV-B. THE HON'BLE MEMBERS HAVE EVEN GONE TO THE EXTENT OF LAYING DOWN THAT AN Y UNDISCLOSED INCOME EVEN IF IT IS DECLARED IN THE RETURN FILED BY AN ASSESSEE FOR THE BLOCK PERIOD CANNOT BE CONSIDERED IF IT FALLS BEYOND THE BLOCK PERIOD. SIM ILARLY, THE ITAT, JODHPUR BENCH IN THE CASE OF MANGILAL REMESHWARLAL SONI (HUF) VS. ACIT (2004) 83 TTJ (JD.) 770 HAS HELD THAT ANY CAPITAL POSSESSED BY AN ASSES SEE PRIOR TO THE BLOCK PERIOD AS REVEALED FROM THE LEDGER FOUND AND SEIZED DURING TH E SEARCH COULD NOT BE TREATED AS UNDISCLOSED INCOME IN THE FIRST ASSESSMENT YEAR FOR THE BLOCK PERIOD. THE LAW IN THIS REGARD IS THUS VERY CLEAR. ONLY THE INCOME WHI CH CAN BE SAID TO BE UNDISCLOSED AS A RESULT OF SEARCH AND THE SAME FALLS WITHIN THE BLOCK PERIOD, CAN ONLY BE ADDED WHILE FRAMING THE BLOCK ASSESSMENT. IN THIS BACKGRO UND OF THE MATTER, THE EVIDENCE ON RECORD POINTS OUT ONLY TO THE PAYMENT OF RS. 6,5 0,001/- IN RESPECT OF THE LAND UNDER CONSIDERATION PRIOR TO THE DATE OF COMMENCEME NT OF THE SEARCH. SINCE THE LD. ASSESSING OFFICER HAS ACCEPTED THAT SHRI RATANLAL C AGRAWAL WAS A CONTRIBUTOR TO THE INVESTMENT TO THE EXTENT OF 50% SHARE, IT IMPLI ES THAT REST OF THE 50% PAYMENT WAS MADE BY THE APPELLANT. IT WILL BE RELEVANT TO M ENTION HERE THAT SHRI RATANLAL C AGRAWAL DURING THE COURSE OF HIS STAMEIT RECORDED U/S. 131(1 A) ON 18/12/2006 HAS ACCEPTED IN ANS. TO Q.NO. 11 THAT HE HAD GIVEN RS. 1,50,000/- IN CASH TO SHRI BABULAL PATEL IN RESPECT OF PLOTS NO. 22A, 23A, 24A AND 25A. / DURING THE COURSE OF CROSS EXAMINATION DONE BY THE LD. COUNSEL OF THE APPELLANT ON THE SAME DATE, SHRI AGRAWAL IN ANS. TO Q. NO.3 HAS AGAIN ADMITTED HAVING PAID RS. 1,50,000/- IN CASH TO SHRI BABUBHAI. SHRI AGRAWAL IN ANS. TO Q. NO. 5 HAS FURTHER CLARIFIED THAT RS. 1 LAC WAS GIVEN BY HIM ON 27/12/1996 AND RS. 50 ,000/- WAS GIVEN BY HIM ON 11/1/1997. THE CANDID ADMISSION OF SHRI RATANLAL C AGRAWAL ALSO ESTABLISHES THE FACT THAT HE WAS AN EQUAL CONTRIBUTOR TO THE INVEST MENT IN THE LAND. SINCE THE TOTAL INVESTMENTS IN THIS LAND PRIOR TO THE DATE OF SEARC H WAS OF RS. 6,50,001/-, THE APPELLANT'S SHARE BEING 50% THEREOF WOULD WORK OUT TO 3,75,000/-. ACCORDINGLY, THE SUBSTANTIVE ADDITION MADE AT RS. 19,18,800/- IS THUS REQUIRED TO BE CONFIRMED TO THE EXTENT OF RS. 3,75,000/-. THE APPELLANT WILL GET A RELIEF OF RS. 15,43,800/-. IT EMERGES THAT ASSESSEES THIRD SUBSTANTIVE GROUN D SEEKING TO DELETE THE REMAINING ADDITION OF RS.3.75LACS OF THE ABOVE LATTER ADDITION ALSO EMANATES FROM THE ABOVE EXTRACTED FINDINGS. 87. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO B OTH PARTIES GRIEVANCES. CASE FILE INDICATES THAT THE ASSESSING OFFICER HAD HIMSELF TREATED THE OTHER CO-VENDEE SHRI RATANLAL TO THE EXTENT OF HALF SHARE FOR MAKING SUBSTANTIVE ADDITION IN HIS CASE BEFORE TAKING RECO URSE TO THE IMPUGNED M/S. SHYAM GROUPS - 67 - PROTECTIVE ADDITION. WE THUS CONCLUDE THAT THE SAI D SUBSTANTIVE ADDITION BEING MADE IN CO-VENDEES HANDS LEAVES NO REQUIREME NT FOR THE IMPUGNED PROTECTIVE ADDITION. WE ACCORDINGLY ARE OF THE VIE W THAT THE CIT(A) HAS RIGHTLY DELETED THE SAME IN ABOVE EXTRACTED FINDING S. COMING TO SUBSTANTIVE ADDITION, THE REVENUE HAD ADMITTEDLY NOT RAISED ANY GROUND CHALLENGING THE CIT(A)S CONCLUSION REGARDING SCOPE OF A BLOCK ASSE SSMENT (SUPRA). THERE IS FURTHER NO EVIDENCE THAT THE ACTUAL AMOUNT PAID IN FACTS OF THE INSTANT CASE WAS MORE THAN RS.6.5LACS (SUPRA) OUT OF WHICH THE C IT(A) HAS RETAINED THE ADDITION IN QUESTION TO THE TUNE OF RS.3.25LACS IN ASSESSEES HANDS WHICH HAS BEEN WRONGLY INCORPORATED AS RS.3.75LACS. WE FURTH ER AFFORDED ADEQUATE OPPORTUNITY TO SHRI THAKKAR TO REBUT THE ABOVE AMOU NT OF RS.6.5LACS TO HAVE BEEN NOT ACTUALLY PAID. HIS ARGUMENTS FAILED TO CO NTROVERT THE SAME WITH THE HELP OF ANY COGENT EVIDENCE. WE THEREFORE UPHOLD A BOVE EXTRACTED CIT(A)S FINDINGS AND DECLINE THE INSTANT REVENUES AS WELL AS ASSESSEES SUBSTANTIVE GROUND. 88. THE REVENUES SECOND SUBSTANTIVE GROUND PLEADS THAT THE CIT(A) HAS ERRED IN REVERSING ASSESSING OFFICERS ACTION MAKIN G ADDITION OF RS.1,01,250/- ON ACCOUNT OF UNDISCLOSED INCOME UTIL IZED FOR REPAYMENT OF LOAN OBTAINED FOR PURCHASING A TATA SUMO CAR ALONGW ITH INITIAL INVESTMENT OF RS.30,000/- MADE AT THE TIME OF PURCHASE. THE ASSE SSEES FOURTH SUBSTANTIVE GROUND IN HIS CROSS OBJECTION SEEKS TO DELETE THE R EMAINING ADDITION CORRESPONDING TO THE ABOVE VEHICLE AS UPHELD TO THE TUNE OF RS.26,508/- IN LOWER APPELLATE ORDER. SUFFICE TO SAY, IT EMERGES THAT THE CIT(A) HAS DELETED THE FORMER ADDITION OF RS.1,01,250/- AFTER RECORDIN G A CATEGORIC FINDING THAT THE SAID REPAYMENT FAIL ON THE VERY DAY OF WITHDRAW AL OF EVEN AMOUNT I.E. 09.06.1995. THE LATTER WITHDRAWAL IN OTHER WORDS H AS BEEN TREATED AS SOURCE OF REPAYMENT. WE THUS FIND NO REASON TO CONCUR WIT H REVENUES GRIEVANCE PLEADED IN ITS SUBSTANTIVE GROUND. WE FURTHER PROC EED TO CONSIDER ASSESSEES M/S. SHYAM GROUPS - 68 - ARGUMENTS AND FIND THAT THE CIT(A) HAS CONFIRMED TH E IMPUGNED ADDITION OF RS.56,508/- TO THE TUNE OF RS.26,508/- AFTER GRANTI NG A VERY REASONABLE CREDIT OF RS.30,000/- OUT OF WITHDRAWALS OF RS.46,136/-. THE SAME IS FOUND TO BE VERY MUCH JUST AND APPROPRIATE IN FACTS AND CIRCUMS TANCES RELEVANT TO THE ISSUE. BOTH PARTIES THEREFORE FAIL IN THEIR RESPEC TIVE SUBSTANTIVE GROUNDS. 89. THE REVENUES LAST SUBSTANTIVE GROUND CHALLENGE S CORRECTNESS OF THE CIT(A)S ORDER DELETING PROTECTIVE ADDITION OF RS.1 ,29,48,750/- AND SUBSTANTIVE ADDITION OF RS.43,60,250/-; RESPECTIVEL Y IN RESPECT OF UNEXPLAINED INVESTMENT MADE IN NIKOL LAND AS UNDER: 9.1 I HAVE CAREFULLY CONSIDERED THE VARIOUS ARGUME NTS ADVANCED BY THE LD. AUTHORISED REPRESENTATIVE IN THIS REGARD AND HAVE P ERUSED THE ASSESSMENT ORDER. I AM INCLINED TO AGREE WITH THE CONTENTION OF THE L D. AUTHORISED REPRESENTATIVE THAT THE LD. ASSESSING OFFICER HAS ACCEPTED IN PRINCIPLE THAT THE INVESTMENT TO THE EXTENT OF 75% IN THE LAND AT NIKOL WAS MADE BY THE OTHER T HREE PARTNERS NAMELY SHRI VIRENDRA K BHADORIA, SHRI RAJUBHAI M DAGGA AND SHRI MAGANBHAI S. GUPTA HAVING 25% SHARE EACH. THE ID. ASSESSING OFFICER IN SUB-PARA 1 OF PARA 6.6 OF THE ASSESSMENT ORDER HAS RECORDED THE FINDINGS TO THE E FFECT THAT ON THE BASIS OF DOCUMENTARY EVIDENCE SEIZED DURING THE COURSE OF SE ARCH, IT HAS BEEN CLEARLY ESTABLISHED THAT THE LAND WAS PURCHASED BY THE ASSE SSEE ALONGWITH THREE OTHER PARTNERS. IN PARA 6.7 OF HIS ORDER, THE INVESTMENT OF THE ASSESSEE IN THE SAID LAND HAS BEEN HELD TO THE EXTENT OF 25% ONLY. IN THE BA CKGROUND OF THESE FINDINGS, THERE APPEARS TO BE NO JUSTIFICATION FOR THE ASSESSING OF FICER TO MAKE THE ADDITION OF RS. L,29,48,750/- BEING 75% IN THE HANDS OF THE APPELLA NT ON PROTECTIVE BASIS. ADDITION OF RS. 1,29,48,750/- IS THEREFORE, REQUI RED TO BE DELETED. THE LD. ASSESSING OFFICER HAS PROCEEDED TO MAKE ADD ITION OF RS. 43,60,250/- ON SUBSTANTIVE BASIS AS ACCORDING TO HI M, THE TOTAL INVESTMENT OF RS. 1,72,65,000/- CALCULATED ON THE BASIS OF 15000 SQ. YDS. TO BE MULTIPLIED BY RS. 11517- PER SQ. YD WAS MADE IN THE SAID LAND IN WHIC H THE SHARE OF THE APPELLANT BEING 25% COMES TO RS. 43,16,250/-. IN ORDER TO PRO VE HIS FINDINGS THAT UNEXPLAINED INVESTMENT OF RS. 43,16,250/- WAS MADE BY THE APPELLANT PRIOR TO THE DATE OF SEARCH, NO EVIDENCE OR ANY OTHER MATERIAL H AS BEEN BROUGHT ON RECORD. I HAVE ALREADY HELD WHILE DECIDING THE GROUND OF APPE AL NO 2 IN PARA 3.1 ABOVE THAT WHILE FRAMING THE BLOCK ASSESSMENT, ONLY THE U NDISCLOSED INCOME RELATING TO THE BLOCK PERIOD CAN BE ADDED AND THAT TOO ON THE B ASIS OF EVIDENCE EITHER FOUND DURING THE COURSE OF SEARCH OR DURING THE COURSE OF POST SEARCH INQUIRIES. THERE IS NO DISCUSSION IN THE ASSESSMENT ORDER WHICH MAY IND ICATE THAT THE APPELLANT HAS INVESTED UNDISCLOSED INCOME OF RS. 43,16,250/- IN T HE ACQUISITION OF THE SAID LAND MUCH LESS TO ALLEGE THAT THE SAME WAS MADE PRIOR TO THE DATE OF SEARCH. IN THE ABSENCE OF ANY SUCH EVIDENCE, THE INVESTMENT OF RS. 52 LACS AS IS ADMITTED BY THE M/S. SHYAM GROUPS - 69 - APPELLANT IN HIS STATEMENT RECORDED HAS TO BE MADE THE BASIS FOR WORKING OUT ANY UNEXPLAINED INVESTMENT PRIOR TO THE DATE OF SEARCH, ORDER TO PROVE THE SOURCE OF HIS SHARE OF INVESTMENT OF RS. 13 LACS BEING 25% OF RS. 52 LACS, THE APPELLANT HAS REFERRED TO THE WITHDRAWALS OF MONEY MADE BY FROM T HE DUPLICATE SET OF BOOKS OF ACCOUNTS OF M/S. SHYAM BUILDERS LYING SEIZED IN TH E CUSTODY OF THE DEPARTMENT. THE DUPLICATE SET OF BOOKS OF ACCOUNTS HAVE BEEN WR ITTEN ON DAY TO DAY BASIS AND IN A ROUTINE MANNER. THERE APPEARS TO BE NO REASON TO DISBELIEVE THE ENTRIES MADE IN THE SAID DUPLICATE SET OF BOOKS OF ACCOUNTS WHIC H WERE FOUND WRITTEN UPTO THE DATE OF SEARCH. THE FIRM M/S. SHYAM BUILDERS IN WHICH THE APPELLANT IS A PARTNER HAS INFACT DISCLOSED ADDITIONAL INCOME OF RS.L.28 CRORES ON THE BASIS OF THE SAID DUPLICATE BOOKS. THE CONTENTION OF THE APP ELLANT THAT HIS PART OF THE INVESTMENT IN THE LAND AT NIKOL HAS BEEN MADE OUT O F MONEY WITHDRAWN FROM THE DUPLICATE BOOKS OF ACCOUNTS OF THE FIRM M/S SHYAM, BUILDERS IS FOUND TO BE CORRECT AS THE ENTRIES OF WITHDRAWL OF CASH HAVE BEEN MADE ON DIFFERENT DATES WITH A SPECIFIC NARRATION OF NIKOL LAND. IT WAS THE DUTY O F THE ASSESSING OFFICER TO VERIFY THESE ENTRIES AS ARE APPEARING IN THE SEIZED BOOKS OF ACCOUNTS IN ORDER TO VERILY THEIR CONTENTION MADE IN THIS REGARD. HAD THE ASSES SING OFFICER MADE AN EFFORT TO VERIFY SUCH ENTRIES, THERE WAS NO NEED FOR HIM TO M AKE ANY ADDITION IN THE HANDS OF THE APPELLANT BECAUSE THE WITHDRAWL OF RS. 14,70,00 1/- MADE FROM THE FIRM M/S SHYAM BUILDERS IN WHICH THE APPELLANT WAS A PARTNER , WERE INFACT MORE THAN THE ADMITTED INVESTMENT OF RS. 13 LACS. THE ASSESSING O FFICER COULD ALSO INITIATE ACTION IN THE HANDS OF SHRI MAGANLAL S. GUPTA AND SHRI RAJ KUMAR M DAGA AS THEY HAD ALSO CONTRIBUTED RS. 8,53,000/- AND RS. 10,16,000/- RESPECTIVELY WHICH APPARENTLY APPEARS TO BE UNACCOUNTED. IT IS NOTICED FROM THE A SSESSMENT ORDER ITSELF THAT ADDITION OF RS. 43,16,250/- WAS MADE IN THE CASE OF SHRI VIRENDRA K BHADORIA ON THE BASIS OF HIS SHARE OF INVESTMENT WHICH WAS CONF IRMED TO THE EXTENT OF RS. 12,94,875/- BY THE CIT(A). NO ACTION SEEMS TO HAVE BEEN TAKEN IN THE CASE OF SHRI RAJBHAI M DAGA WHEREAS THERE IS A CLEAR EVIDENCE BY WAY OF SPECIFIC ENTRIES IN THE SEIZED BOOKS OF ACCOUNTS OF HIS HAVING MADE THE INV ESTMENT OF RS. 10,16,000/- IN THE NIKOL LAND. THE DIFFERENCE OF THE PAYMENT, ACCO RDING TO THE APPELLANT WAS MADE BY SHRI RAJUBHAI M DAGA DIRECTLY TO THE SELLERS. IT IS ALSO NOTICED THAT PROCEEDINGS INITIATE U/S. 158BD IN THE CASE OF SH MAGANLAL S. G UPTA HAVE BEEN DROPPED AND IT IS NOT COMING ON RECORDS WHETHER THE SOURCE OF HIS INVESTMENT TO THE EXTENT OF RS. 8,53,000/- AS IS APPEARING IN THE SEIZED BOOKS OF A CCOUNTS HAS BEEN EXAMINED IN HIS CASE OR NOT. ACCORDING TO THE APPELLANT, THE DI FFERENCE OF THE PAYMENT LIKE IN THE CASE OF RAJUBHAI WAS DIRECTLY MADE BY SHRI MAGANLAL S. GUPTA TO THE SELLERS OF THE LAND. IN THIS BACKGROUND OF THE MATTER, NO ADDITION WAS CALLED FOR IN SO FAR AS THE APPELLANT IS CONCERNED BECAUSE HE HAS ADEQUATELY EX PLAINED HIS SHARE OF INVESTMENT MADE PRIOR TO THE DATE OF SEARCH AS HAVI NG COME BY WAY OF WITHDRAWALS MADE FROM THE FIRM M/S. SHYAM BUILDERS. THE ASSESSI NG OFFICER HOWEVER, MAY CONSIDER THE POSSIBILITY OF TAKING THE APPROPRIATE ACTION IN THE CASE OF SHRI MAGANLAL S. GUPTA AND SHRI RAJKUMAR M DAGA ON THE B ASIS OF ENTRIES AS ARE APPEARING IN THE SEIZED BOOKS OF ACCOUNTS OF M/S. S HYAM BUILDERS. THE ADDITION OF RS. 43,16,250/- NEEDS TO BE DELETED. 90. WE FIRST COME TO THE ABOVESTATED PROTECTIVE ADD ITION. IT IS EVIDENT THAT THERE ARE TOTAL FOUR VENDEES PERTAINING TO THE SAID LAND INCLUDING THE ASSESSEE. WE THUS FIND NO REASON TO REVIVE THE IMPUGNED PROTE CTIVE ADDITION SOLELY M/S. SHYAM GROUPS - 70 - MADE IN ASSESSEES HANDS. LEARNED DEPARTMENTAL REP RESENTATIVE FURTHER FAILS TO DISPUTE THE CIT(A)S FINDINGS REGARDING SUBSTANT IVE ADDITION INTER ALIA ON THE LEGAL FACET OF A BLOCK ASSESSMENT ALIKE IN FIRS T SUBSTANTIVE GROUND (SUPRA), LINKING WITHDRAWALS TO GROUP ENTITIES TO THE TUNE O F RS.13LACS COMING TO 1/4 TH OF SEARCH STATEMENT AMOUNT OF RS.52LACS ETC. NOR I S THERE ANY EVIDENCE QUOTED AT REVENUES BEHEST INDICATING ANY ACTION TA KEN IN CASES OF OTHER PARTIES S/SHRI MAGANLAL ETC. WE THUS FIND NO REASO N TO RESTORE THE IMPUGNED SUBSTANTIVE ADDITION AS WELL. THE REVENUES INSTAN T GROUND AS WELL AS MAIN APPEAL IT(SS)A NO.139/AHD/2007 FAIL. 91. THIS LEAVES US WITH ASSESSEES FIRST TWO SUBSTA NTIVE GROUNDS IN HIS CROSS OBJECTION CHALLENGING LEGALITY OF THE IMPUGNED ASSE SSMENT PROCEEDINGS FRAMED ON 31.07.2001 ON THE GROUND OF LIMITATION AN D JURISDICTION OF THE ASSESSING OFFICER. MR. THAKKAR STATES AT THE BAR T HAT THESE TWO GROUNDS ARE NOT PRESSED ANY MORE. HE HAS ALSO MADE NECESSARY E NDORSEMENT WAY BACK ON 19.04.2012. WE THUS DECLINE ASSESSEES CROSS OBJEC TION CO NO.111/AHD/2009 AS WELL. 92. THE ASSESSING OFFICER(S) IN ALL THESE CASES IS DIRECTED TO FRAME CONSEQUENTIAL COMPUTATION IN LIGHT OF OUR ABOVE DET AILED FINDINGS. WE MAKE IT CLEAR BEFORE PARTING THAT OUR INSTANT ADJUDICATI ON WOULD NOT AMOUNT TO GRANTING RELIEF TO ANY OF THE FOUR ASSESSEES HEREIN ABOVE REDUCING THEIR INCOME IN VARIOUS HEADS DECLARED IN RESPECTIVE PETITIONS F ILED BEFORE THE SETTLEMENT COMMISSION (SUPRA). 93. WE QUOTE OUR ABOVE DETAILED DISCUSSION TO PARTL Y ACCEPT ASSESSEES APPEALS IT(SS)A NOS. 325, 326 & 76/AHD/2010 ALONGWI TH THE THIRD ASSESSEES CO NO.45/AHD/2013. REVENUES FIRST APPE AL IT(SS)A NO.465/AHD/2010 IS ALSO PARTLY ALLOWED. REVENUES REMAINING APPEALS M/S. SHYAM GROUPS - 71 - IT(SS)A NOS. 139/AHD/2007, 67 & 466/AHD/2010 & 34/ AHD/2013 ARE DISMISSED. FOURTH ASSESSEE SHRI JASWANTLAL K PATEL S CROSS OBJECTION CO NO.111/AHD/2009 IS ALSO DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF MAY, 2017.] SD/- SD/- ( MANISH BORAD ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 25/05/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0