Appeal details
Counselvise Citation
[2014] 124 COUNSELVISE.COM (IT) 7413 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 2 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
31-12-2014
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
17-12-2014
Assessment Year
2006-2007
Appeal Filed On
22-10-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . ITA. NO. 1878/AHD/2012 (ASSESSMENT YEAR:2006-07) INCOME-TAX OFFICER, WARD-2, PALANPUR APPELLA NT VS. SHRI JITENDRAKUMAR SHANTILAL SHETH CHANDRALOK SOCIETY, BEHIND COLONY, AT-DEESA-385535, TAL.DEESA, DIST.-BANASKANTHA (NG) RESPONDENT & C.O. NO. 199/AHD/2012 (ASSESSMENT YEAR:2006-07) SHRI JITENDRAKUMAR SHANTILAL SHETH CHANDRALOK SOCIETY, BEHIND COLONY, AT-DEESA-385535, TAL.DEESA, DIST.-BANASKANTHA (NG) APPELLANT VS. INCOME-TAX OFFICER, WARD-2, PALANPUR RESPONDENT PAN: AIIPS8024J I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 2 & ITA. NO. 1892/AHD/2012 (ASSESSMENT YEAR:2006-07) INCOME-TAX OFFICER, WARD-3, PALANPUR APPELLA NT VS. ANTARBA V VAGHELA RAJGADHI, DARBAR GADH, AT.-THARAD, DIST.-BANASKANTHA RESPONDEN T & C.O. NO. 200/AHD/2012 (ASSESSMENT YEAR:2006-07) ANTARBA V VAGHELA RAJGADHI, DARBAR GADH, AT.-THARAD, DIST.-BANASKANTHA APPELLANT VS. INCOME-TAX OFFICER, WARD-3, PALANPUR RESPONDENT PAN: ALOPV9159N & ITA. NO. 1893/AHD/2012 (ASSESSMENT YEAR:2006-07) INCOME-TAX OFFICER, WARD-3, PALANPUR APPELLA NT VS. I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 3 PRAVINSINH V VAGHELA NR. SENAT MATA MANDIR, RAJGADHI, AT.-THARAD, DIST.-BANASKANTHA RESPONDENT & C.O. NO. 201/AHD/2012 (ASSESSMENT YEAR:2006-07) PRAVINSINH V VAGHELA NR. SENAT MATA MANDIR, RAJGADHI, AT.-THARAD, DIST.-BANASKANTHA APPELLA NT VS. INCOME-TAX OFFICER, WARD-3, PALANPUR RESPONDENT PAN: ALPPV2286B & ITA. NO. 1894/AHD/2012 (ASSESSMENT YEAR:2006-07) INCOME-TAX OFFICER, WARD-3, PALANPUR APPELLA NT VS. MIDHUSINHJI V VAGHELA NR. SENAT MATA MANDIR, RAJGADHI, AT.-THARAD, DIST.-BANASKANTHA RESPONDENT & I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 4 C.O. NO. 202/AHD/2012 (ASSESSMENT YEAR:2006-07) MIDHUSINHJI V VAGHELA NR. SENAT MATA MANDIR, RAJGADHI, AT.-THARAD, DIST.-BANASKANTHA APPELLA NT VS. INCOME-TAX OFFICER, WARD-3, PALANPUR RESPONDENT PAN: ALPPV2287A & ITA. NO. 1895/AHD/2012 (ASSESSMENT YEAR:2004-05) INCOME-TAX OFFICER, WARD-3, PALANPUR APPELLA NT VS. JAYESHKUMAR R PATEL ARJANPURA, PO. RANAVAV, TAL.- VAV, DIST.-BANASKANTHA RESPONDENT & C.O. NO. 203/AHD/2012 (ASSESSMENT YEAR:2004-05) JAYESHKUMAR R PATEL ARJANPURA, PO. RANAVAV, TAL.- VAV, DIST.-BANASKANTHA APPE LLANT I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 5 VS. INCOME-TAX OFFICER, WARD-3, PALANPUR RESPONDENT PAN: AKMPB2591H / BY REVENUE :SHRI ROOP CHAND, SR. D.R. / BY ASSESSEE : SHRI U. S. BHATI, A.R. /DATE OF HEARING :17.12.2014 !' /DATE OF PRONOUNCEMENT :31.12.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: SINCE, ALL THESE REVENUES APPEALS AND ASSESSEES C ROSS OBJECTIONS ARE ARISING OUT FROM THE ORDERS OF CIT(A )-XX, AHMEDABAD, DATED 01.06.2012, SO THEY ARE BEING DISP OSED OF BY COMMON ORDER FOR SAKE OF CONVENIENCE. 2. IN ITA NO. 1878/AHD/2012, REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XX, AHMADABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.17,82,750/- MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT IN LAND. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMADABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 6 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . COMMISSIONER OF INCOME-TAX (APPEALS) - XX, AHMADABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2.1 IN CROSS OBJECTION NO. 199/AHD/2012, ASSESSEE H AS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE LD. A.O. IN INITIATING PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 DESPITE THE FACT THAT THER E WAS NO MATERIAL BEFORE THE LD. A.O. TO ARRIVE AT REASONABLE BELIEF FOR ESCAPEMENT OF INCOME. HE HAS FURTHER ERRED IN LAW AND ON FACTS IN CONCLUDING THA T THE LD. A.O. OBSERVED DUE PROCEDURE OF LAW WHILE RE - OPENING THE ASSESSMENT. 2.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN DISMISSING GROUND NOS. 1 TO 4 RAISED BEFORE HIM WITHOUT APPRECIATING THEM IN PROPER CONTEXT. 3. ON THE BASIS OF INFORMATION RECEIVED FROM DCIT, CENTRAL CIRCLE, ASSESSING OFFICER RECORDED REASONS FOR REOP ENING THE ASSESSMENT. REOPENING WAS DONE ON 25.03.2011 I.E. WITHIN SIX YEARS FROM THE END OF ASSESSMENT ORDER. ACCORDING TO INFORMATION, THERE IS ESCAPEMENT OF INCOME. AFTER REOPENING THE ASSESSMENT AS DISCUSSED ABOVE, ASSESSING OFFICE R MADE ADDITION OF RS.17,82,750/- U/S. 69 AS UNEXPLAINED I NVESTMENT ON ACCOUNT OF ALLEGED PAYMENT OF ON MONEY BY ASSESS EE FOR PROPERTY TRANSACTION IN QUESTION. I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 7 3.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY, WHEREIN STAND OF ASSESSEE BY WAY OF WRITTEN SUBMISS ION IS AS UNDER: 'A CERTIFIED COPY OF THE ASSESSMENT ORDER PASSED BY THE A.O. IN THE CASE OF SHRI. MAVJIBHAI (MAGANBHAI DESAI, DEESA AND ALSO A COPY OF THE ENGLISH TRANSITION OF THE STATEM ENT OF SHRI. MAVJIBHAI M. DESAI, RECORDED BY THE ADIT, MEH SANA IN THE YEAR 2007, ARE ENCLOSED HEREWITH FOR YOUR KIND PERUSAL. THEREFORE, IN CONTINUATION OF OUR EARLIER SUBMISSIO NS IN EACH OF THESE CASES, FOLLOWING FURTHER SUBMISSIONS, WHICH ARE COMMON TO ALL THESE MATTERS PENDING BEFORE YOUR HONOUR, ARE MADE FOR YOUR KIND CONSIDERATION; (1) IT WOULD BE SEEN FROM THE STATEMENT OF SHRI. MA VJIBHAI M. DESAI, RECORDED BY THE ADIT, MEHSANA IN THE YEAR 2007 THAT THERE IS ABSOLUTELY NO WORD ABOUT THE DISCLOSU RE MADE BY SHRI. MAVJIBHAI M. DESAI. THE DETAILS OF THAT DISCLOSURE ARE ALSO NOT AVAILABLE. IT WOULD ALSO BE EVIDENT FR OM THE STATEMENT OF SHRI. MAVJIBHAI M. DESAI THAT HE HAD V ARIOUS TRANSACTIONS IN LAND IN RESPECT OF WHICH HE HAD REC EIVED COMMISSION IN THE CAPACITY OF A COMMISSION AGENT. F OR YOUR KIND INFORMATION, WE ARE REPRODUCING BELOW THE QUESTION AND ANSWER NUMBER 18 OF THE STATEMENT OF S HRI MAVJIBHAI M DESAI DATED 29/03/2007. '' Q.18. WE ARE SHOWING YOU PAGE NO. 26 OF ANNEXURE A-5, AND ALSO THE BACK SIDE OF THIS VERY PAGE, WHICH WAS SEIZED FROM YOUR OFFICE AT SARGAM COMPLEX. PLEASE EXPLAIN THE ACCOUNTS WRITTEN ON THIS PAGE? ANS. THE NOTING ON PAGE NO. 26 AND IT'S BACK SIDE I S IN RESPECT OF A LAND AT THARAD. THERE ARE OTHER NOTING S ON BACK SIDE OF PAGE NO. 28, SO ALSO ON PAGE NO. 29 IN RESP ECT OF LAND AT THARAD, WHICH WAS PURCHASED FOR A CONSIDERATION OF 74 TO 75 LAKHS. THERE ARE 4 PARTNERS IN THIS LAND AND THE REGISTERED DOCUMENT WAS MADE FOR RS. 20 LAKHS. THE DETAILS OF PARTNERS IN THE SAID LAND ARE GIVEN AS UNDER:- (1) MAVJIBHAI M. DESAI.- SELF 25% SHARE (2) SHETH JITENDRAKUMAR SHANTILAL, 25% SHARE CHANDRALOK SOCIETY, DEESA.. (3) MAHESHBHAI P. PATEL & SHAILESH P PATEL, 25% SHA RE THARAD CHAR RASTA, THARAD. (4) PRAVINBHAI ODHAVJI MISTRY, I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 8 'VAISHALI' CINEMA, NADIAD... 25% SHARE SOME PORTION OF THIS LAND HAD BEEN SOLD. (2) ON PAGE 4 OF THE ASSESSMENT ORDER FOR THE A.YR. 2007-08 IN THE CASE OF SHRI. MAVJIBHAI M. DESAI THERE IS A MENTION OF INVESTMENT OF RS. 12,46,500/- IN LAND AT THARAD, SU RVEY NOS, 191 AND 192 AND AGAINST SURVEY NO. 191 AND 192 AN AMOUNT OF RS. 17,82,750/- HAS BEEN SHOWN AGAINST TH AT COLUMN. (3) IT MAY ALSO BE POINTED OUT THAT THERE IS NO MEN TION OF NAME OF ANY PARTY, EITHER PURCHASER OR SELLER IN TH E ASSESSMENT ORDER NOR THERE IS ANY MENTION OF THESE DETAILS IN THE SEIZED PAPERS NOS. 26 TO 29, COPIES OF WHICH ARE ENCLOSED WITH THESE SUBMISSIONS FOR YOUR KIND PERUS AL. ALTHOUGH THE A.O. HAS REFERRED TO PAGE NO. 26 IN TH E ASSESSMENT ORDER THERE IS ABSOLUTELY NO NAME OR AMO UNT WHICH COULD BE CO-RELATED TO ANY OF THE APPELLANTS IN THIS GROUP OF CASES. (4) IT MAY ONCE AGAIN BE SUBMITTED THAT ALTHOUGH TH E STATEMENT OF SHRI. MAVJIBHAI M. DESAI WAS RECORDED IN THE YEAR 2007, THE DEPARTMENT COULD NOT INITIATE ANY AC TION AGAINST ANY OF THESE APPELLANTS FOR WANT OF CATEGOR ICAL EVIDENCE AGAINST THEM. THIS IS PRECISELY THE REASON WHY THE NOTICES U/S 148 WERE ISSUED IN ALL THESE CASES AFTE R ABOUT 4 YEARS I.E. IN THE YEAR 2011. EVEN AS ON TODAY THERE IS NO EVIDENCE AGAINST THESE APPELLANTS -EITHER IN RESPEC T OF THEIR PAYING ON MONEY IN THE LAND TRANSACTIONS OR IN RESP ECT OF THEIR RECEIVING 'ON MONEY' IN THE TRANSACTION OF SA LE OF THEIR LAND TO SHRI. MAVJIBHAI M. DESAI AND OTHERS, AS HAS BEEN ALLEGED BY SHRI. MAVJIBHAI M. DESAI IN HIS STATEMEN T. IN THE ABSENCE OF ANY CLINCHING EVIDENCE THE DEPARTMENT CO ULD NOT INITIATE ANY PROCEEDINGS IN ALL THESE CASES AND THE ACTION U/S 147 HAS BEEN TAKEN ONLY WHEN THE MATTER WAS GET TING BARRED BY LIMITATION. (5) IT MAY ONCE AGAIN BE POINTED OUT THAT THE DEPAR TMENT DID NOT THINK IS FIT OR NECESSARY TO CAUSE ANY ENQU IRY IN RESPECT OF THE APPELLANTS BEFORE YOUR HONOUR PRIOR TO MARCH, 2011 AND EVEN THEIR STATEMENTS WERE NOT RECORDED BE FORE THE ISSUANCE OF NOTICES U/S 148 OF THE ACT IN THEIR CASES. THE STATEMENTS WERE RECORDED JUST BEFORE A MONTH OF PASSING THE IMPUGNED ASSESSMENT ORDERS IN ALL THESE CASES. THE DENIAL OF RECEIVING OR PAYING ANY 'ON MONEY' RE CORDED IN I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 9 THE STATEMENT OF EVERY PERSON HAS ALREADY BEEN BROU GHT TO YOUR KIND NOTICE IN THE SUBMISSIONS IN EACH OF THES E CASES. THEREFORE, THE SAME IS NOT REPEATED HERE. (6) THERE IS PASSING REMARK IN THE STATEMENT OF SH RI. MAVJIBHAI M. DESAI IN RESPECT OF S.NO. 191 & 192 WH ICH WAS STALED TO BE PURCHASED BY SMT. ANTARBA V. VAGHELA, PRAVINSINHJI V. VAGHELA & LATE SHRI MIDHUSINHJI V. VAGH ELA BUT THERE IS NO MENTION OF THE NAMES OF THE ORIGINA L OWNERS OF THIS LAND AT S.NO. 191 & 192. EVEN THE STATEMENT OF SHRI JITENDRA S. SHETH WAS NOT RECORDED AT ALL. (7) WE HAVE ALREADY POINTED OUT AT VARIOUS PLACES T HAT ALTHOUGH EACH ONE OF THE APPELLANTS HAD REQUESTED T HE A.O. TO GRANT HIM AN OPPORTUNITY TO CROSS-EXAMINE SHRI. MAVJIBHAI M. DESAI, AS EARLY AS JUNE, 2011, WHILE COMMUNICATING THEIR OBJECTIONS TO THE ACTION INITIA TED U/S 147 OF THE ACT IN THEIR CASES, THE A.O. DID NOT ACC EDE TO THAT REQUEST TILL DECEMBER, 2011, WHEN THE ASSESSMENT WA S TO GET BARRED BY LIMITATIONS. THIS FACT IS RATHER RELE VANT IN SO FAR AS THE INITIATION OF THE PROCEEDINGS U/S 147 OF THE ACT IN EACH OF THESE CASES, PARTICULARLY WHEN THERE WAS AB SOLUTELY NO EVIDENCE AGAINST ANY ONE OF THEM IN THE FORM OF SEIZED MATERIAL, SEIZED FROM THE PREMISES OF SHRI. MAVJIBH AI M. DESAI AND ALSO THE BALD STATEMENT OF SHRI. MAVJIBHA I M. DESAI, RELIED UPON BY THE ASSESSING OFFICER IN ALL THESE CASES, FOR INITIATING PROCEEDINGS U/S 147 AND FOR M AKING THE IMPUGNED ADDITIONS IN ALL THESE CASES OF THE APPELL ANTS BEFORE YOUR HONOUR. (8) THE QUESTIONS AND ANSWERS IN THE STATEMENT OF S HRI. MAVJIBHAI M. DESAI CANNOT TIE SAID TO BE SUFFICIENT TO UPHOLD THE IMPUGNED ADDITIONS MADE BY THE A. O. IN THE CAS ES OF ALL THESE APPELLANTS. (9) ALTHOUGH THE APPELLANT HAD REQUESTED THE A.O. T O SUPPLY THEM A COPY OF THE STATEMENT OF SHRI MAVJIBHAI M. D ESAI AND ALSO THE COPIES OF LOOSE PAPERS SEIZED FROM HIS PREMISES, IN THEIR APPLICATION FILED IN JUNE, 2011 AND AGAIN REMINDED SEPTEMBER, 2011, THE SAME WERE SUPPLIED UNDER LETTE R DATED 26.12.2011 BY THE ASSESSING OFFICER AND FINALIZED T HE ASSESSMENT ON 29.12.2011. 3. IN VIEW OF THE ABOVE FACTS OF THE CASE OF THE AP PELLANT BEFORE YOUR HONOUR, IT IS SUBMITTED THAT THE APPEAL MAY KINDLY BE ALLOWED.' I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 10 HAVING CONSIDERED THE SAME, CIT(A) GRANTED RELIEF T O THE ASSESSEE. 3.2 SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF RE VENUE INTER ALIA SUBMITTING THAT CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.17,82,750/- MADE ON ACCOUNT OF U NDISCLOSED INVESTMENT IN LAND. ACCORDINGLY, ORDER OF CIT(A) B E SET ASIDE AND THAT OF ORDER OF ASSESSING OFFICER BE RESTORED. ON OTHER HAND, LD. AUTHORIZED REPRESENTATIVE SUPPORTED THE O RDER OF CIT(A) AND REQUESTED TO UPHOLD THE SAME. 3.3 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT INFORMATION WAS RECEIVED FROM CENTRAL CIRCLE, ACCORDING TO WHICH, DURING COURSE OF SEARCH AND SURVEY OPERATIONS CARRIED OUT IN CASE OF SHRI MAVJIBHAI M. DESAI (HEREINAFTER REFERRED TO AS SHRI MAVJIBHAI), IT WAS STATED THAT HE HAD PURCHASED LAND BEARING SURVEY NOS.191/2 & 192 A T THARAD. LAND WAS PURCHASED JOINTLY BY 4 PERSONS, I NCLUDING ASSESSEE AS AGAINST CONSIDERATION OF RS.20 LAKHS. ACCORDING TO ASSESSING OFFICER ON THE BASIS OF SEARCH, IT WAS FO UND BY HIM THAT ACTUAL CONSIDERATION PAID WAS RS. 75 LAKHS. A COPY OF THE SAID STATEMENT WITH REGARD TO THE SAME WAS FURNISHE D TO ASSESSEE; OPPORTUNITY OF CROSS EXAMINATION WAS ALSO PROVIDED TO ASSESSEE AND ASSESSEES EXPLANATION WAS NOT FOUN D ACCEPTABLE BY ASSESSING OFFICER. ACCORDINGLY, IMPU GNED ADDITION WAS MADE TOWARDS THE SHARE OF ASSESSEE ON ACCOUNT OF ON MONEY PAID FOR PURCHASE OF PROPERTY IN QUESTION. THE STAND OF ASSESSEE HAS BEEN THAT FREE ENGLISH TRANSLATION OF THE I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 11 STATEMENT OF SHRI MAVJIBHAI AND CERTIFIED COPY OF T HE ASSESSMENT ORDER IN HIS CASE WERE BEING ENCLOSED. ACCORDING TO WHICH, IT WAS SUBMITTED THAT SHRI MAVJIBHAI DID NOT MAKE ANY DISCLOSURE OF THE ON MONEY IN QUESTION; IN HIS STATEMENT ONLY QUESTION ON THE ISSUE WAS QUESTION AND ANSWER NO.18; NOWHERE IN THE DOCUMENTS REFERRED TO IN THE SAID QU ESTION THERE WAS ANY MENTION OF ON MONEY PAYMENT; HIS STAT EMENT WAS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. ACC ORDING TO ASSESSING OFFICER, ASSESSEE WAS PRESENT ON THE DATE S OF CROSS EXAMINATION I.E. 05-12-2011 AND 09-12-2011, BUT SHR I MAVJIBHAI DID NOT APPEAR ON THOSE DATES AND SINCE T HERE WAS NO EVIDENCE SUPPORTING PAYMENT OF ON MONEY WAS NOT JUSTIFIED ACCORDING TO ASSESSEE. IN THIS BACKGROUND, CIT(A) OBSERVED THAT ONLY BASIS ON WHICH IMPUGNED ADDITION WAS MADE WAS ANSWER NO. 18 OF THE STATEMENT RECORDED FROM SHRI M AVJIBHAI ON 29.03.2007. SAID MAVJIBHAI WAS NOT EVEN CLEAR O N THE EXACT QUANTUM OF THE CONSIDERATION. FROM HIS REPLY, IT WAS FOUND THAT TOTAL CONSIDERATION WAS RS.74 OR RS.75 LAKHS. THIS STATEMENT WAS NOT SUPPORTED BY ANY EVIDENCE IN THE FORM OF BANAKHAT, DATES AND MODE OF PAYMENT OF ALLEGED ON M ONEY, NAMES OF PERSONS TO WHOM THE ON MONEY WAS PAID ETC. IRRESPECTIVE OF HIS ACCEPTING THE SAID AMOUNT AS UN DISCLOSED INCOME IN HIS HANDS OR NOT, NOT EVEN A SHARED OF EV IDENCE IS ON RECORD TO SUGGEST THAT ASSESSEE PAID ANY ON MONEY T OWARDS THE PURCHASE OF SAID PROPERTIES. IN ASSESSMENT ORDER, ASSESSING OFFICER DID NOT MAKE ANY ATTEMPT THAT ON MONEY WAS PAID BY ASSESSEE. MERE STATEMENT OF A THIRD PARTY COULD NO T BE THE I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 12 BASIS FOR MAKING ADDITION. APART FROM THIS, IN ASS ESSMENT PROCEEDING AT THE INSTANCE OF BENCH, CROSS EXAMINAT ION WAS DIRECTED TO BE CONDUCTED BY BENCH INTER ALIA NOTHING WAS FOUND ON RECORD TO SUGGEST THAT ASSESSEE HAS MADE PAYMENT OF ON MONEY IN THE INVESTMENT IN LAND IN QUESTION. UNDER FACTS AND CIRCUMSTANCES, SAME HAS BEEN RIGHTLY DELETED BY CIT (A). WE UPHOLD THE SAME. 4. NOW WE TAKE CROSS OBJECTION NO. 199/AHD/2012, FI LED BY ASSESSEE. 4.1 IN VIEW OF OUR DECISION IN REVENUES APPEAL IN ITA NO. 1878/AHD/2012, THE ISSUE RAISED BY WAY OF CROSS OBJ ECTION GOES ACADEMIC. SAME IS DISMISSED BEING ACADEMIC SA ME MAY BE AGITATED AS AND WHEN SITUATION ARISES. 5. AS A RESULT, THIS APPEAL OF REVENUE AND CORRESPO NDING CROSS OBJECTION OF ASSESSEE ARE DISMISSED. 6. IN ITA NO. 1892/AHD/2012, REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XX, AHMADABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.24,52,765/- MADE ON ACCOUNT OF UNDISCLOSED INCOME ON THE LAND TRANSACTION. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMADABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . COMMISSIONER OF INCOME-TAX (APPEALS) - XX, I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 13 AHMADABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 6.1 IN CROSS OBJECTION NO. 200/AHD/2012, ASSESSEE H AS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE LD. A.O. IN INITIATING PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 DESPITE THE FACT THAT THER E WAS NO MATERIAL BEFORE THE LD. A.O. TO ARRIVE AT REASONABLE BELIEF FOR ESCAPEMENT OF INCOME. HE HAS FURTHER ERRED IN LAW AND ON FACTS IN CONCLUDING THA T THE LD. A.O. OBSERVED DUE PROCEDURE OF LAW WHILE RE - OPENING THE ASSESSMENT. 2.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) FURTHER ERRED IN LAW AND ON FACTS IN DISMISSING FOLLOWING GROUND NO. 2 RAISED BEFORE HIM: THE LD. A.O. FURTHER ERRED IN LAW AND ON FACTS IN COMPLETING THE ASSESSMENT U/S 143(3) R.W.S.147, WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE APPELLANT TO THE INITIATION OF THE PROCEEDINGS U/S 147 OF THE ACT, BEFORE PROCEEDING FURTHER AND COMPLETIN G THE ASSESSMENT HASTILY WITHOUT AFFORDING FAIR AND REASONABLE OPPORTUNITY TO THE APPELLANT ALTHOUGH HE HAS ASKED FOR AN OPPORTUNITY TO CROSS-EXAMINE SHRI MAVJIBHAI DESAI, ON THE BASIS OF WHOSE STATEMENT, THIS ACTION U/S 147 OF THE ACT WAS INITIATED BY THE A.O. AS PER THE REASONS RECORDED U/S 148(2) OF THE ACT. 7. ASSESSING OFFICER MADE ADDITION OF RS.24,52,765/ - AFTER REOPENING THE CASE OF RS.24,52,765/- ON ACCOUNT OF UNDISCLOSED INCOME FROM LAND TRANSACTION, WHICH WER E DELETED BY CIT(A). SAME HAS BEEN OPPOSED BEFORE US INTER A LIA STATING I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 14 THAT CIT(A) WAS NOT JUSTIFIED IN DELETING ADDITION OF RS.24,52,765/- MADE ON ACCOUNT OF UNDISCLOSED INCOM E FROM LAND TRANSACTION. ACCORDINGLY, ORDER OF CIT(A) BE SET ASIDE AND THAT OF ORDER OF ASSESSING OFFICER BE RESTORED. ON OTHER HAND, LD. AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER O F CIT(A) ON THIS ISSUE. 7.1 AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATER IAL ON RECORD, AS STATED EARLIER WE FIND THAT ONLY BASIS O N WHICH IMPUGNED ADDITION WAS MADE WAS ANSWER NO. 18 OF THE STATEMENT RECORDED FROM SHRI MAVJIBHAI ON 29.03.200 7 AS DISCUSSED IN PARA 3 TO 3.3 IN CASE OF ITA NO.1878/A HD/2012 SAID MAVJIBHAI WAS NOT EVEN CLEAR ON THE EXACT QUAN TUM OF THE CONSIDERATION. THIS STATEMENT WAS NOT SUPPORTED BY ANY EVIDENCE IN THE FORM OF BANAKHAT, DATES AND MODE OF PAYMENT WITH REGARDS TO ON MONEY RECEIVED. EVEN THERE WAS NO MENTION OF ASSESSEES NAME IN STATEMENT OF SHRI MAVJIBHAI. ASSESSING OFFICER FAILED TO MAKE ANY EFFORTS TO GO BEYOND THE STATEMENT GIVEN BY SHRI MAVJIBHAI (FOR WHATEVER REASONS BEST KNOWN TO HIM) TO JUSTIFY THE ALLEGATION THAT ON MONEY WAS PA ID TO ASSESSEE. MERE STATEMENT OF A THIRD PARTY COULD NOT BE THE BASIS FOR MAKING ADDITION IN ABSENCE OF ANY CORROBO RATIVE EVIDENCE. ASSESSEE IS AGRICULTURALIST AND WAS NOT FILING RETURNS OF INCOME. FOR THE YEAR UNDER CONSIDERATION, RETUR N OF INCOME WAS FILED IN RESPONSE TO NOTICE U/S. 148 ADMITTING ONLY AGRICULTURAL INCOME. THE IMMOVABLE PROPERTY UNDER CONSIDERATION IS AGRICULTURAL LAND AND THERE IS NOT HING ON I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 15 RECORD TO SUGGEST THAT AGRICULTURAL LAND SOLD WAS CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) AND HENCE LIABL E TO CAPITAL GAINS. IN VIEW OF ABOVE DISCUSSION, CIT(A) WAS JUS TIFIED IN DELETING ADDITION IN QUESTION. THIS FINDING OF CIT (A) GET STRENGTH FROM THE REMAND REPORT CALLED IN THIS REGA RD BY ITAT AS DISCUSSED IN PARA 3 OF THIS ORDER. ACCORDINGLY, WE UPHOLD THE SAME. 8. NOW WE TAKE CROSS OBJECTION NO. 200/AHD/2012, FI LED BY ASSESSEE. 8.1 THE CROSS OBJECTION HAS BEEN RAISED BY ASSESSEE . IN THIS REGARD, THERE IS NOTHING TO SUPPORT THE ISSUE RAISE D IN C.O., SO, IT GOES ACADEMIC. THEREFORE, SAME IS BEING DISMISS ED WITH PREJUDICE TO ITS MERIT. SAME CAN BE AGITATED AS AN D WHEN IT IS REQUIRED. 9. AS A RESULT, BOTH APPEAL OF REVENUE AND CROSS OB JECTION OF ASSESSEE ARE DISMISSED. 10. IN ITA NO. 1893/AHD/2012, REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XX, AHMADABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.24,52,765/- MADE ON ACCOUNT OF UNDISCLOSED INCOME ON THE LAND TRANSACTION. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 16 AHMADABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . COMMISSIONER OF INCOME-TAX (APPEALS) - XX, AHMADABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 10.1 IN CROSS OBJECTION NO. 201/AHD/2012, ASSESSEE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE LD. A.O. IN INITIATING PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 DESPITE THE FACT THAT THER E WAS NO MATERIAL BEFORE THE LD. A.O. TO ARRIVE AT REASONABLE BELIEF FOR ESCAPEMENT OF INCOME. HE HAS FURTHER ERRED IN LAW AND ON FACTS IN CONCLUDING THA T THE LD. A.O. OBSERVED DUE PROCEDURE OF LAW WHILE RE - OPENING THE ASSESSMENT. 2.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) FURTHER ERRED IN LAW AND ON FACTS IN DISMISSING FOLLOWING GROUND NO. 2 RAISED BEFORE HIM: THE LD. A.O. FURTHER ERRED IN LAW AND ON FACTS IN COMPLETING THE ASSESSMENT U/S 143(3) R.W.S.147, WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE APPELLANT TO THE INITIATION OF THE PROCEEDINGS U/S 147 OF THE ACT, BEFORE PROCEEDING FURTHER AND COMPLETIN G THE ASSESSMENT HASTILY WITHOUT AFFORDING FAIR AND REASONABLE OPPORTUNITY TO THE APPELLANT ALTHOUGH HE HAS ASKED FOR AN OPPORTUNITY TO CROSS-EXAMINE SHRI MAVJIBHAI DESAI, ON THE BASIS OF WHOSE STATEMENT, THIS ACTION U/S 147 OF THE ACT WAS INITIATED BY THE A.O. AS PER THE REASONS RECORDED U/S 148(2) OF THE ACT. I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 17 11. ISSUE IN THIS APPEAL IS IDENTICAL TO THAT OF IT A NO. 1892/AHD/2012 FOR A.Y. 2006-07. FACTS BEING SIMILA R AS DISCUSSED IN PARA 7 & 7.1 OF ITA NO. 19892/AHD/2012 , SO FOLLOWING SAME REASONING, WE ARE NOT INCLINED TO IN TERFERE IN THE FINDING OF CIT(A) WHO HAS RIGHTLY DELETED ADDITION OF RS.24,52,765/- MADE ON ACCOUNT OF UNDISCLOSED INCOM E FROM LAND TRANSACTION IN QUESTION. SAME IS UPHELD AND T HE ISSUE RAISED BY WAY OF CROSS OBJECTION GOES ACADEMIC. SO , SAME IS DISMISSED BEING ACADEMIC AND SAME MAY BE AGITATED A S AND WHEN SITUATION ARISES FOR THE SAME. 12. IN RESULT, BOTH REVENUES APPEAL AND CROSS OBJE CTION OF ASSESSEE ARE DISMISSED. 13. IN ITA NO. 1895/AHD/2012, REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XX, AHMADABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10,90,000/- MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT IN LAND. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMADABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . COMMISSIONER OF INCOME-TAX (APPEALS) - XX, AHMADABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 13.1 IN CROSS OBJECTION NO. 203/AHD/2012, ASSESSEE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 18 1.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) E RRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE LD. A.O. IN INITIATING PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 DESPITE THE FACT THAT THER E WAS NO MATERIAL BEFORE THE LD. A.O. TO ARRIVE AT REASONABLE BELIEF FOR ESCAPEMENT OF INCOME. HE HAS FURTHER ERRED IN LAW AND ON FACTS IN CONCLUDING THA T THE LD. A.O. OBSERVED DUE PROCEDURE OF LAW WHILE RE - OPENING THE ASSESSMENT. 2.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) FURTHER ERRED IN LAW AND ON FACTS IN DISMISSING FOLLOWING GROUND NO. 2 RAISED BEFORE HIM: THE LD. A.O. FURTHER ERRED IN LAW AND ON FACTS IN COMPLETING THE ASSESSMENT U/S 143(3) R.W.S.147, WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE APPELLANT TO THE INITIATION OF THE PROCEEDINGS U/S 147 OF THE ACT, BEFORE PROCEEDING FURTHER AND COMPLETIN G THE ASSESSMENT HASTILY WITHOUT AFFORDING FAIR AND REASONABLE OPPORTUNITY TO THE APPELLANT ALTHOUGH HE HAS ASKED FOR AN OPPORTUNITY TO CROSS-EXAMINE SHRI MAVJIBHAI DESAI, ON THE BASIS OF WHOSE STATEMENT, THIS ACTION U/S 147 OF THE ACT WAS INITIATED BY THE A.O. AS PER THE REASONS RECORDED U/S 148(2) OF THE ACT. 14. ASSESSING OFFICER MADE ADDITION OF RS.10,90,000 /- AFTER REOPENING THE MATTER, WHICH WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY WHO HAS DELETED THE ADDITION IN QUESTION. SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENU E INTER ALIA STATING THAT CIT(A) WAS NOT JUSTIFIED IN DELET ING ADDITION IN QUESTION. ACCORDINGLY, SAME SHOULD BE SET ASIDE AN D THAT OF ASSESSING OFFICER BE RESTORED. ON OTHER HAND, LD. AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A). I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 19 14.1 AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATE RIAL ON RECORD, WE FIND THAT ASSESSING OFFICER HAD RECEIVED INFORMATION FROM CENTRAL CIRCLE; ACCORDING TO WHICH, DURING COU RSE OF SEARCH AND SURVEY OPERATIONS CARRIED OUT IN CASE OF SHRI MAVJIBHAI INTER ALIA STATED TO HAVE RECEIVED DALALI ON TRANSFER OF LAND NO. 108 AT THARAD. THE LAND WAS ALLEGED TO BE PURCHASED BY ASSESSEE AS AGAINST THE CONSIDERATION OF RS.1.6 LACS AS PER REGISTERED SALE DEED WHILE ACTUAL CONSIDERATION WAS ALLEGED TO BE RS.12.5 LACS. A COPY OF SAID STATEMENT WAS FURN ISHED TO ASSESSEE, OPPORTUNITY OF CROSS EXAMINATION WAS ALSO PROVIDED AND ASSESSEES EXPLANATION WAS NOT FOUND ACCEPTABLE . SO, IMPUGNED ADDITION WAS MADE TOWARDS ON MONEY PAID FO R PURCHASE OF PROPERTY BY ASSESSING OFFICER. 14.2 IN FIRST APPEAL, THE STAND OF ASSESSEE HAS BEE N THAT SHRI MAVJIBHAI IN HIS STATEMENT DID NOT MAKE ANY DISCLOS URE OF ON MONEY IN QUESTION; IN HIS STATEMENT THE ONLY QUESTI ON ON THE ISSUE WAS QUESTION AND ANSWER NO.20; NOWHERE IN THE DOCUMENTS REFERRED TO IN SAID QUESTION THERE WAS AN Y MENTION OF ON MONEY PAYMENT; STATEMENT OF SHRI MAVJIBHAI WA S NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE AS MENTIONED BY ASSESSING OFFICER IN PARA 8 OF IMPUGNED ASSESSMENT ORDER. MOREOVER, ASSESSEE WAS PRESENT ON THE DATES OF CROS S EXAMINATION I.E. 05.12.2011 AND 09.12.2011 BUT SHRI MAVJIBHAI DID NOT APPEAR ON THOSE DTES AND SINCE TH ERE WAS NO EVIDENCE SUPPORTING PAYMENT OF ON MONEY, IMPUGNED A DDITION WAS NOT JUSTIFIED. HAVING CONSIDERED THE SAME, CIT (A) OBSERVED I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 20 THAT ONLY BASIS ON WHICH IMPUGNED ADDITION WAS MADE WAS ANSWER NO.20 OF STATEMENT RECORDED FROM SHRI MAVJIB HAI ON 29.03.2007. THE SAID STATEMENT OF SHRI MAVJIBHAI W AS NOT SUPPORTED BY ANY EVIDENCE IN THE FORM OF BANAKHAT, DATES AND MODE OF PAYMENT OF ALLEGED ON MONEY, NAMES OF PERSO NS TO WHOM THE ON MONEY WAS PAID ETC. IRRESPECTIVE OF HIS ACCEPTING THE SAID AMOUNT AS UNDISCLOSED INCOME IN HIS HANDS OR NOT. EVEN, THERE IS NOTHING ON RECORD THAT ASSESSEE WAS PAID ON MONEY OUT OF SAID TRANSACTION OF LAND. ASSESSING OF FICER DID NOT MAKE ANY ATTEMPT TO GO BEYOND THE STATEMENT GIVEN B Y SHRI MAVJIBHAI (FOR WHATEVER REASONS BEST KNOWN TO HIM) TO SUBSTANTIATE THE ALLEGATION THAT ON MONEY WAS PAID BY ASSESSEE. MERE STATEMENT OF A THIRD PARTY COULD NO T BE THE BASIS FOR MAKING ADDITION IN ABSENCE OF ANY CORROBO RATIVE EVIDENCE. ACCORDINGLY, CIT(A) WAS JUSTIFIED IN DEL ETING ADDITION. THIS VIEW GETS STRENGTH FROM REMAND REPORT CALLED B Y ITAT AS DISCUSSED IN PARA 3 OF THIS ORDER. SAME IS UPHELD. THE ISSUE RAISED BY WAY OF CROSS OBJECTION GOES ACADEMIC. SO , SAME IS DISMISSED BEING ACADEMIC IN LIGHT OF OUR FINDING ON MERIT IN REVENUES APPEAL AS DISCUSSED ABOVE. HOWEVER, ASSE SSEE IS AT LIBERTY TO RAISE THE SAME AS AND WHEN SITUATION ARI SES FOR THE SAME. 15. AS A RESULT, REVENUES APPEAL AS WELL AS ASSESS EES CROSS OBJECTION ARE DISMISSED AS DISCUSSED ABOVE. 16. IN ITA NO. 1894/AHD/2012, REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 21 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XX, AHMADABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.22,43,765/- MADE ON ACCOUNT OF UNDISCLOSED INCOME ON THE LAND TRANSACTION. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMADABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . COMMISSIONER OF INCOME-TAX (APPEALS) - XX, AHMADABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 16.1 IN CROSS OBJECTION NO. 202/AHD/2012, ASSESSEE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1.0 THE ISSUE OF NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 WAS BAD IN LAW BECAUSE IT WAS ISSUED IN THE NAME OF SHRI MIDHUSINHJI V. VAGHELA, WHO HAD EXPIRED ON 30 TH SEPTEMBER, 2006. IN VIEW OF THE ABOVE ALL SUBSEQUENT PROCEEDINGS WOULD BECOME UNLAWFUL AND THEREFORE, NOT SUBSTANTIATE IN LAW. 2.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN PASSING THE APPELLATE ORDER IN THE NAME OF DECEASED SHRI MIDHUSINHJI V. VAGHELA THOUGH THE APPEAL BEFORE HIM WAS FILED BY THE L/H O F DECEASED SMT. SURAJKUVARBA M. VAGHELA. 3.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE LD. A.O. IN INITIATING PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 DESPITE THE FACT THAT THER E WAS NO MATERIAL BEFORE THE LD. A.O. TO ARRIVE AT REASONABLE BELIEF FOR ESCAPEMENT OF INCOME. HE HAS FURTHER ERRED IN LAW AND ON FACTS IN CONCLUDING THA T THE LD. A.O. OBSERVED DUE PROCEDURE OF LAW WHILE RE - OPENING THE ASSESSMENT. I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 22 4.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE LD. A.O. UNDER PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT, 1961 DESPITE THE FACT THAT THERE WAS NO MATERIAL BEFORE THE LD. A.O.; TO ARRIVE AT REASONAB LE BELIEF FOR ESCAPEMENT OF INCOME. HE HAS FURTHER ERRED IN LAW AND ON FACTS IN CONCLUDING THAT THE LD . A.O. OBSERVED DUE PROCEDURE OF LAW WHILE RE-OPENING THE ASSESSMENT. 5.0 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) FURTHER ERRED IN LAW AND ON FACTS IN DISMISSING FOLLOWING GROUND NO. 2 RAISED BEFORE HIM: THE LD. A.O. FURTHER ERRED IN LAW AND ON FACTS IN COMPLETING THE ASSESSMENT U/S 143(3) R.W.S.147, WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE APPELLANT TO THE INITIATION OF THE PROCEEDINGS U/S 147 OF THE ACT, BEFORE PROCEEDING FURTHER AND COMPLETIN G THE ASSESSMENT HASTILY WITHOUT AFFORDING FAIR AND REASONABLE OPPORTUNITY TO THE APPELLANT ALTHOUGH HE HAS ASKED FOR AN OPPORTUNITY TO CROSS-EXAMINE SHRI MAVJIBHAI DESAI, ON THE BASIS OF WHOSE STATEMENT, THIS ACTION U/S 147 OF THE ACT WAS INITIATED BY THE A.O. AS PER THE REASONS RECORDED U/S 148(2) OF THE ACT. 17. AT THE OUTSET OF HEARING, LD. AUTHORIZED REPRES ENTATIVE POINTED OUT THAT THIS APPEAL HAS BEEN FILED BY REVE NUE AGAINST DECEASED PERSON IN SPITE OF THE FACT THAT REVENUE W ERE AWARE OF DEATH OF ASSESSEE IN QUESTION WHICH IS EVIDENT FROM APPEAL MEMO FILED BEFORE CIT(A), INTER ALIA MENTIONED THAT APPEAL WAS FILED BY ASSESSEE THROUGH LEGAL HEIRS. AGREEING TO THE CONTENTION OF ASSESSEE, WE ARE OF THE VIEW THAT APP EAL AGAINST DEAD PERSON IS NOT MAINTAINABLE AS DISCUSSED ABOVE. HOWEVER, I.T.A. NOS. 1878 & 1892 TO 1895/AHD/2012 & C. O. NO. 199 TO 203/AHD/2012 FOR A.YS. 2006-07 & 04-05 (ITO VS. DIFFERENT ASSESSEES) PAGE 23 REVENUE IS AT LIBERTY TO RECTIFY ITS MISTAKE AS PER LAW WITHIN REASONABLE TIME. 18. CROSS OBJECTION FILED BY ASSESSEE BY RAISING P RELIMINARY ISSUE ON REOPENING GOES ACADEMIC IN VIEW OF DISMISS AL OF REVENUES APPEAL ON TECHNICAL GROUND AS DISCUSSED A BOVE. 19. IN RESULT, REVENUES APPEALS AS WELL AS ASSESSE ES CROSS OBJECTIONS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 31 ST DAY OF DECEMBER, 2014. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA # # # # %& %& %& %& '&' '&' '&' '&' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. ,, - / CONCERNED CIT 4. -- / CIT (A) 5. &12 %, , / DR, ITAT, AHMEDABAD 6. 256 78 / GUARD FILE. BY ORDER / # , 9/ , , ;
