M/s. Anjani Construction, Ahmedabad V. The ACIT.,Cent.Circle-1(2), Ahmedabad

CO 224/AHD/2011

• Counselvise Citation: [2014] 123 COUNSELVISE.COM (IT) 0133 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 30 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 10-12-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 20-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A L THAKKAR
• Assessee Lawyers: O P VAISHAV
• Keywords: Accommodation entries
• Section: 133A; 153A; 32; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFOR E SHRI SHAILENDRA KR. YADAV, J.M. & SHRI ANIL CHATURVEDI , A.M.) I. T (SS) . A. NO. 515 / AHD/ 20 1 1 & C.O. NO. 224/AHD/2011 (A SSESSMENT YEAR: 2004 - 05) ACIT, CENTRAL CIRCLE - 1(2), AHMEDABAD V/S M/S. ANJANI CONSTRUCTION, C/O L.G. THAKKAR, 1 ST FLOOR, KASHMIRA CHAMBERS, B/H OLD HIGH COURT, NAVRANGPURA, AHMEDABAD (APPELLANT) (RESPONDENT) M/S. ANJANI CONSTRUCTION, C/O L.G. THAKKAR, 1 ST FLOOR, KASHMIRA CHAMBERS, B/H OLD HIGH COURT, NAVRANGPURA, AHMEDABAD V/S ACIT, CENTRAL CIRCLE - 1(2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAIFA 8448E APPELLANT BY : SHRI O.P. VAISHAV, CIT/D.R. RESPONDENT BY : SHRI A.L. THAKKAR, A.R. ( )/ ORDER DATE OF HEARING : 10 - 12 - 2014 DATE OF PRONOUNCEMENT : 19 - 12 - 2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - I, AHMEDABAD DATED 30.06.2011 FOR A.Y. 2004 - 0 5 AND ASSESSEE HAS ALSO FILED C.O. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. IT (SS) A NO 515/A/2011 & C.O. NO 224/A/11 . A.Y. 2004 - 05 2 3. ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF CONSTRUCTION AND LAND DEVELOPMENT. A SEARCH OPERATION U/S. 132 OF THE AC T WAS CONDUCTED IN RADHE G ROUP OF CASES ON 04.08.2006. DURING THE COURSE OF SEARCH ACTION VARIOUS DOCUMENTS/BOOKS OF ACCOUNTS/OTHER VALUABLE ARTICLES AND THINGS WERE FOUND AND SEIZED FROM THE BUSINESS PREMISES OF RADHE G ROUP. THEREAFTER IN VIEW OF THE PROV ISIONS OF SECTION 153C OF THE ACT , PROCEEDINGS WERE INITIATED IN THE CASE OF ASSESSEE BY ISSUING NOTICE U/S. 153C R.W.S. 153A OF THE ACT ON 19.08.2008. A.O NOTED BY A.O THAT ASSESSEE DID NOT FILE ANY RETURN OF INCOME TILL THE DATE OF FRAMING OF ASSESSMENT. ON PERUSING THE DOCUMENTS S EIZED FROM THE OFFICE OF RADHE G ROUP IT WAS NOTICED THAT THE ASSESSEE CAME INTO EXISTENCE ON JULY, 2003 AND HAD ENTERED INTO AGREEMENT WITH SHRI ASHISH PATEL OF RADHE GROUP ON 08.07.2003 FOR CARRYING OUT THE CONTRACT WORK OF FIL LING AND LEVELING THE LAND NEAR SIRSAR, BHAVNAGAR AND FOR WHICH ASSESSEE HAD RAISED A BILL FOR RS. 15 LAC. ON PERUSAL OF THE BANK STATEMENT , A.O NOTICED THAT ON 16.03.2004 DEPOSIT OF RS. 15 L AC FROM ASHISH PATEL WAS WITHDRAWN IN CASH ON THE SAME DAY. HE F URTHER NOTED THAT THERE WAS NO EVIDENCE TO SHOW THAT THE AMOUNT THAT WAS WITHDRAWN BY THE ASSESSEE HAS BEEN UTILIZED FOR GENUINE PAYMENT TOWARDS LABOUR WORK. A.O WAS OF THE VIEW THAT WITHDRAWAL OF THE TOTAL AMOUNT IN CASH ON THE VERY SAME DAY OF DEPOSIT SH OWED THAT NO EXPENSE WHATSOEVER HAS BEEN INCURRED AND THE AMOUNT HAS BEEN WITHDRAWN TO BE GIVEN BACK TO SHRI ASHISH PATEL. A.O ALSO NOTED THAT IN THE STATEMENT OF ASHISH P ATEL WHICH WAS RECORDED U/S. 132(4) OF THE ACT, H E HAD ACCEPTED THAT THE PAYMENTS MAD E TO VARIOUS CONCERNS ON ACCOUNT OF DEVELOPMENT EXPENSES WER E ACTUALLY WITHDRAWN IN CASH. A.O WAS THEREFORE OF THE VIEW THAT SINCE NO DEVELOPMENT WORK HAS BEEN CARRIED OUT BY THE ASSESSEE , WHICH PROVED THAT NO EXPENSES HAS BEEN INCURRED BY THE ASSESSEE AND MONEY WITHDRAW N HAS GONE TO SHRI ASHISH PATEL. A.O THEREFORE CONSIDERED THAT THE AMOUNT OF RS. 15 LAC RECEIVED BY THE ASSESSEE TO BE AN UNDISCLOSED INCOME AND ACCORDINGLY ADDED TO THE INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIE D THE MATTER BEFORE CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND FOLLOWING HIS OWN DECISION IN THE CASE OF DEVI IT (SS) A NO 515/A/2011 & C.O. NO 224/A/11 . A.Y. 2004 - 05 3 DURGA CONSTRUCTION FOR A.Y. 04 - 05 RESTRICTED THE DISALLOWANCE AT 5% OF THE RECEIPTS BY HOLDING AS UNDER: - 11. I HAVE CAREFU LLY CONSIDERED THE FACTS OF THE CASE, SUBMISSIONS OF THE APPELLANT AND THE ASSESSMENT ORDER. IT IS OBSERVED THAT ON IDENTICAL FACTS IN THE RADHE GROUP CASES IN THE CASE OF DEVI DURGA CONSTRUCTION FOR A.Y. 2004 - 05, MY PREDECESSOR HAS RESTRICTED DISALLOWANCE OF 5% OF THE TOTAL RECEIPTS BY HOLDING AS UNDER: - 8. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT. THE UNCONTROVERTED FACTS OF THE CASE ARE THAT A SEARCH ACTION U/S. 1 32 OF THE INCOME - TAX ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF APPELLAN T : ON 04.08.2006. SEARCH ACTION ON THE RADHE GROUP OF CASES WAS ALSO CONDUCTED. DURING THE SEARCH PROCEEDINGS CONDUCTED AT THE RADHE GROUP OF CASES, IT WAS DISCOVERED THAT SHRI ASHISH PATEL OF RADHE GROUP OF CASES HAS BEEN APPOINTED BY THE 'SAHARA GROUP' O F LUCKNOW FOR ACTING AS MEDIATOR / NEGOTIATOR FOR ACQUISITION OF THE LAND BY 'SAHARA GROUP'. THE USUAL METHODOLOGY ADOPTED WAS THAT THE SAHARA GROUP ENTERED INTO SEPARATE MOU WITH MEDIATORS / NEGOTIATORS FOR NEGOTIATING WITH ORIGINAL LAND OWNERS (FARM ERS) AND PROCUREMENT OF BANAKHAT (LAND PURCHASE DOCUMENTS). THE 'SAHARA GROUP ' OF LUCKNOW USED TO SEND CHEQUES / DDS TO SHRI ASHISH PATEL FOR PURCHASE OF LAND AT DIFFERENT CITIES. ON RECEIPT OF SUCH CHEQUES / DDS, SHRI ASHISH PATEL OR AGENTS WOULD PAY A PART O F THE AMOUNT RECEIVED FROM THE SAHARA GROUP TO THE ORIGINAL LAND OWNERS AND THE SALE OF THE LAND DOCUMENTS WOULD BE REGISTERED IN THE NAME OF SAHARA GROUP. THE BALANCE AMOUNT WHICH FORMED SUBSTANTIAL PORTION OF THE MONEY RECEIVED FROM SAHARA GROUP, WOULD B E CLAIMED AS EITHER LAND DEVELOPMENT EXPENSES OR BANAKHAT EXPENSES. IN ORDER TO CLAIM THE DEVELOPMENT EXPENSES ON LAND PURCHASED THROUGH SHRI ASHISH PATEL (OF RADHE GROUP), CERTAIN CONCERNS WERE CREATED AND THEY WERE PAID, DEVELOPMENT CHARGES IN HUGE AMOUN TS THROUGH CHEQUES AND SUBSEQUENTLY, THE CASH WAS WITHDRAWN FROM THE BANK ACCOUNTS OF THESE CONCERNS. THESE CONCERNS, IN TURN, CLAIMED BOGUS EXPENSES, ALTHOUGH NO WORK WAS ACTUALLY CARRIED OUT FOR DEVELOPMENT OF LAND. THESE FACTS ARE ALSO APPARENT FROM THE STATEMENT OF SHRI ASHISH PATEL, WHICH HAS BEEN REPRODUCED BY THE ASSESSING OFFICER, AT PAGE NO. 7 OF THE ASSESSMENT ORDER. THE RELEVANT Q.NO.8 AND ANSWER OF STATEMENT OF SHRI ASHISH PATEL, RECORDED ON 29.09.2006, READS AS UNDER: - 'Q.8 DURING SEARCH OPERAT ION ON 04.08.2006, AT 7 SEVEN SCHEMES OF SAHARA CITY HOMES, PHOTOGRAPHY AND VIDEOGRAPLIY OF THE SITES WAS TAKEN AND THE STATEMENT OF NUMBER OF PERSONS WERE ALSO TAKEN FROM THE SAME IT WAS PROVED THAT NO LAND DEVELOPMENT ETC. OF THE ABOVE SITES HAS TAKEN PL ACE. YOU HAVE ALSO ACCEPTED THE S AME IN THIS STATEMENT THAT ALL THE FOUR CONCERNS, ALLEGEDLY ENGAGED IN LAND DEVELOPMENT ACTIVITY, I.E. RANA PROJECTS, DEVI DURGA, L.R. CONSTRUCTION AND ANJANI CONSTRUCTION, HAW RECEIVED THE CHEQUES, JUST TO GIVE THE CASH FR OM THEIR ACCOUNTS, TO PAY - THE SAME TO THE FARMERS, LOCAL BROKERS, AND A DVISOR OF SAHARA INDIA, SHRI SUN DERLAL. IN THIS WAY, DO YOU ACCEPT THAT ENTIRE SCHEME OF LAND DEVELOPMENT WAS NOTHING BUT A MEANS OF WITHDRAWING CASH AMOUNTS FROM THE ACCOUNT OF LAND DE VELOPER ENTITIES. A.8 ALL THE ABOVE MENTIONED 4 CONCERNS, I.E. RANA PROJECTS, DEVI DURGA, L.R. CONSTRUCTION AND ANJANI CONSTRUCTION, ALL WERE INTRODUCED TO ME BY SHRI SUDERLALJI WHICH I HAVE STALED EARLIER ALSO. WHATEVER PAYMENTS HAVE BEEN MADE TO THESE CO NCERNS, HAVE BEEN WITHDRAWN IN CASH ON BEHALF OF SAHARA AND HAVE BEEN USED AS PER INSTRUCTIONS OF SAHARA. THIS WORK HAS BEEN DONE BY THESE FOUR CONCERNS AFTER TAKING COMMISSION @ 1.5%. THUS IT IS CLEAR THAT THIS SCHEME OF SHOWING THE BILLS WAS THAT OF SHRI SUNDERLALJI AND ALL THE SCHEMES OF NOT DOING REAL LAND DEVELOPMENT, ISSUING THE BILLS, MAKING THE CASH PAYMENTS, ETC. WERE THE DESIGNS OF SHRI SUDERLALJI.' 9. FROM THE AFOREMENTIONED FACTS, IT IS APPARENT THAT THE ROLE OF THE APPELLANT IS ONLY 'HAVALA GIVER' I.E. GIVING ACCOMMODATION ENTRIES IN THE WHOLE SEQUENCE OF TRANSACTIONS. THE APPELLANT IS AN ENTITY CREATED FOR THE PURPOSE OF A SIPHONING AWAY SUBSTANTIAL AMOUNT OF FUNDS RECEIVED FROM 'SAHARA GROUP' UNDER THE GUISE OF DEVELOPMENT EXPENSES. IN FACT , APPELLANT HAS NOT CARRIED OUT ANY CIVIL CONSTRUCTION ACTIVITY OR DEVELOPMENT ACTIVITY ON THE LANDS PROCURED BY 'SAH ARA GROUP'. THE APPELLANT FIRM I S MERELY A PAPER ENTITY AND IN FACT , IT HAS NOT CARRIED OUT ANY WORK. THE APPELLANT IS RECEIVING SOME COMMI SSION FOR PROVIDING ACCOMMODATION ENTRIES IN THE WHOLE SCHEME OR ARRANGEMENTS. IN SUCH ARRANGEMENTS, THE ENTIRE RECEIPTS COULD NOT BE TAXABLE PROFITS OF ANY ENTITY. I N SUCH CIRCUMSTANCES, THE COMPUT ATION .OF TOTAL TAXABLE INCOME ON THE BASIS OF TOTAL DEPOS ITS DISCOVERED IN THE BANK ACCOUNTS I.E. THE TOTAL AMOUNT RECEIVED BY THE APPELLANT FROM SHRI ASHISH PATEL AND HIS GROUP, IS NOT CONSIDERED JUSTIFIED. 10. IN THE STATEMENT, THE APPELLANT AS WELL AS SHRI ASHISH PATEL OF RADHE GROUP, IT HAS BEEN CLAIMED THAT THE APPELLANT WAS ENTITLED FOR THE COMMISSION @L.5% OF THE BILLS RAISED BY HIM. HOWEVER, I AM OF THE OPINION THAI THE APPELLANT MUST HAVE EARNED SOMETHING MORE THAN WHAT HAS BEEN ADMITTED. IN SUCH 'HAVALA TRANSACTIONS', THE NORMAL COMMISSIONS CHARGED BY H AVALA GIVER IS ABOUT 5% OF VALUE OF SUCH TRANSACTIONS. CONSIDERING THE FACTS IN TOTALITY, THE ASSESSING OFFICER IS DIRECTED TO COMPUTE THE TOTAL TAXABLE INCOME OF THE APPELLANT IN THE YEAR UNDER CONSIDERATION @5% OF THE TOTAL AMOUNTS RECEIVED FROM SHRI ASH ISH PATEL (OR HIS GROUP) DURING THE YEAR UNDER CONSIDERATION; IT (SS) A NO 515/A/2011 & C.O. NO 224/A/11 . A.Y. 2004 - 05 4 4. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN GIVING RELIEF OF 95% OR ADDITION OF RS . 15,00,000/ - I.E. RS. 14,25,00/ - MADE ON ACCOUNT OF UNDISCLOSED INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT TO HAVE, UPHELD THE ORDER OF THE A.O. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASID E AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 5. ON THE OTHER HAND IN THE C.O OF THE ASSESSEE READS AS UNDER: - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN PASSING AN EX - PARTE OR DER U/S.153C RWS.153A(L)(B) RWS.144 OF THE INCOME TAX ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITIONS MERELY ON SURMISES AND CONJECT URE AND WITHOUT ANY BASIS. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF RS.75,0007/ - @ 5% OF THE TOTAL AMOUNT OF BILLS ISSUED ON AN ESTIMATE BASIS & WITHOUT ANY OTHER EVIDENCES AND MATERIAL TO SUPP ORT THE ESTIMATION 4. ALTERNATIVELY, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE FACT THAT THE RESPONDENT FIRM HAS RECEIVED IN CASH ONLY COMMISSION @1.5% OF THE TOTAL AMOUNT BILLS ISSUED AFTER DEDUCTION OF TDS WHICH FORMS PAR T OF THE COMMISSION. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN REJECTING THE BOOKS OF ACCOUNTS OF THE FIRM U/S. 145(3) OF THE L.T.ACT. 1961 WITHOUT POINTING OUT ANY SPECIFIC DEFECT OR DI SCREPANCY THEREIN. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE FACT THAT THE ASSESSING OFFICER, WHILE COMPUTING THE TOTAL INCOME OF THE RESPONDENT, HAS NOT CONSIDERED ALL THE EVIDENCES, STATEMENTS, AFFIDAVITS, MATERIAL AND OTHER INFORMATION GATHERED U/SS. 132 AND/OR 133A OF THE ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SEARCH PROCEEDINGS & POST SEARCH PERIOD, ASSESSMENT PERIOD AS WELL AS THAT FORMING PART OF THE SEIZED RECORDS ETC. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE FACT THAT THE ASSESSING OFFICER HAS NOT CONSIDERED THE FACT THAT THE AMOUNT OF TOTAL RECEIPTS FOR THE DEVELOPMENT OF THE LAND ETC. HAS BEEN WITHDRAWN ON THE SAME OR NEXT DAY AND GIVEN BACK TO SHRI ASHISH PATEL WHI CH CAN BE VERIFIED FROM THE EVIDENCES FOUND FROM THE SEARCH PROCEEDINGS & DULY ACCEPTED BY SHRI ASHISH PATEL . 8. THE RESPONDENT SUBMITS THAT THE APPROPRIATE SET OFF OF THE INCOME/ADDITIONS/EXPENSES ETC. MAY KINDLY BE GIVEN, IN CASE THE ADDITIONS /DISALLOWANC ES OF THE SAME IF MADE AND CONFIRMED BY THE I.T. AUTHORITIES FINALLY IN THE HANDS OF EITHER RADHE GROUP, ASHISH PATEL, M/S. SAHARA INDIA COMMERCIAL CORPORATION LIMITED (SICCL), OR ALL THE FOUR PARTNERSHIP FIRMS AND THEIR PARTNERS INCLUDING THEM IN THEIR IN DIVIDUAL CAPACITIES INTER SE. 9. THE RESPONDENT CRAVES LEAVE TO ADD, ALTER, DELETE, AMEND OR MODIFY ANY OF THE GROUND OF APPEAL ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF APPEAL 6. BEFORE US, BOTH THE PARTIES SUBMITTED THAT THE GROUNDS OF REVENUE AND C.O ARE INTERCONNECTED. WE THEREFORE PROCEED TO DISPOSE OF BOTH TOGETHER. IT (SS) A NO 515/A/2011 & C.O. NO 224/A/11 . A.Y. 2004 - 05 5 7. BEFORE US, AT THE OUTSET THE LD. A.R. SUBMITTED THA T CIT(A) HAD FOLLOWED THE DECISION OF HIS PREDECESSOR IN THE CASE OF DEVI DURGA CONSTRUCTION. AGAINST THE ORDER OF C IT(A) IN THE CASE OF DEVI DURGA CONSTRUCTION , ASSESSEE AS WELL AS REVENUE HAD PREFERRED APPEAL BEFORE HON BLE TRIBUNAL. HON BLE TRIBUNAL VIDE ORDER DATED 11.07.2014 IN IT(SS)A NO. 181TO 187/A/2011 & IT(SS)A NOS. 102 TO 109/A/2011 HAS DECIDED THE ISSUE. HE SUBMITTED THAT SINCE THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE ARE IDENTICAL TO THAT OF DEVI DURGA CONSTRUCTION , THE VIEW TAKEN BY THE H ON BLE TRIBUNAL IN THE CASE DEVI DURGA CONSTRUCTION BE TAKEN IN THE CASE OF ASSESSEE AS WELL . HE ALSO PLAC ED ON RECORD, THE COPY OF THE AFORESAID DECISION OF TRIBUNAL. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT CIT(A) WHILE DECIDING THE ISSUE HAD FOLLOWED HIS OWN DECISION IN THE CASE OF DEVI DU RGA CONSTRUCTION FOR A.Y. 04 - 05. T HE CO - ORDINATE BENCH OF TRIBUNAL WHILE DECIDING THE APPEAL IN CASE OF DEVI DURGA CONSTRUCTI ON FOR A.Y. 04 - 05 IN IT(SS)A NOS. 181 TO 187/AHD/2011 & IT(SS)A NOS.102 TO 109/AHD/2011 HAD GRA NTED PARTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: - 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE UNDISPUTED FACTS ARE THAT A SEARCH ACTION U/S.132 OF THE INCOME - TAX ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF APPEL LANT AND RADHE GROUP. ON THE BASIS OF SEARCH PROCEEDINGS AT RADHE GROUP IT WAS DISCOVERED THAT SHRI ASHISH PATEL OF RADHE GROUP WAS APPOINTED BY THE 'SAHARA GROUP' OF LUCKNOW FOR ACTING AS MEDIATOR / NEGOTIATOR FOR ACQUISITION OF THE LAND BY 'SAHARA GROUP' . IT WAS FOUND THAT OUT OF THE MONEY RECEIVED FROM 'SAHARA GROUP' FOR PURCHASE OF LAND, SHRI ASHISH PATEL OR AGENTS WOULD PAY A PART OF THE AMOUNT RECEIVED TO THE ORIGINAL LAND OWNERS AND THE SALE OF THE LAND DOCUMENTS WOULD BE REGISTERED IN THE NAME OF SA HARA GROUP AND THE SUBSTANTIAL AMOUNT WOULD BE CLAIMED AS EITHER LAND DEVELOPMENT EXPENSES OR BANAKHAT EXPENSES. IN ORDER TO CLAIM THE DEVELOPMENT EXPENSES ON LAND PURCHASED THROUGH SHRI ASHISH PATEL (OF RADHE GROUP), CERTAIN CONCERNS (INCLUDING THE ASSESSEE) WERE CREATED AND THEY WERE PAID, DEVELOPMENT CHARGES IN HUGE AMOUNTS THROUGH CHEQUES AND SUBSEQUENTLY, THE CASH WAS WITHDRAWN FROM THE BANK ACCOUNTS OF THESE CONCERNS. THESE CONCERNS, IN TURN, CLAIMED BOGUS EXPENSES, ALTHOUGH NO WORK WAS ACTUALLY CARRIED OUT FOR DEVELOPMENT OF LAND. WE FIND THAT CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE MATERIAL ON RECORD HAS GIVEN A FINDING OF FACT THAT THE ROLE OF ASSESSEE WAS TO GIVE ACCOMMODATION ENTRIES AND IT WAS ONLY A 'HA WALA GIVER' CREATED FOR THE PURPOSE OF SIPHONING AWAY SUBSTANTIAL AMOUNT OF FUNDS UNDER THE GUISE OF DEVELOPMENT EXPENSES. HE HAS FURTHER GIVEN A FINDING THAT ASSESSEE HAS NOT CARRIED OUT ANY CIVIL CONSTRUCTION ACTIVITY OR THE DEVELOPMENT ACTIVITY ON THE L ANDS PROCURED BY SAHARA GROUPS. THE ASSESSEE WAS RECEIVING SOME COMMISSION FOR PROVIDING ACCOMMODATION ENTRIES. HE HAS ALSO NOTED THAT ASSESSEE AS WELL AS SHRI ASHISH PATEL OF RADHE GROUP HAD CLAIMED THAT ASSESSEE WAS ENTITLED FOR COMMISSION AT 1.5% O F THE BILLS RAISED. BEFORE US, NO MATERIAL HAS BEEN BROUGHT ON RECORD BY EITHER OF THE PARTIES TO CONTROVERT THE AFORESAID FINDINGS OF CIT(A). WE ALSO FIND THAT CIT(A) HAS CONCLUDED IT (SS) A NO 515/A/2011 & C.O. NO 224/A/11 . A.Y. 2004 - 05 6 THAT ASSESSEE MUST HAVE EARNED SOMETHING MORE THAT WAS ADMITTED DURING T HE SEARCH PROCEEDINGS AND THE ASSESSEE WAS A HAWALA GIVER AND IN SUCH HAWALA TRANSACTIONS, THE NORMAL COMMISSION CHARGED BY HAWAIA WAS 5% OF THE VALUE OF SUCH TRANSACTIONS. WE FIND THAT CIT(A) HAS NOT BROUGHT ON RECORD ANY MATERIAL TO ARRIVE AT THE BASIS F OR WORKING OUT THE COMMISSION AT 5% AND AT THE SAME TIME THE ASSESSEE AND THE REVENUE HAS ALSO NOT BROUGHT ON RECORD ANY MATERIAL TO SUPPORT THEIR RESPECTIVE CONTENTIONS. IN VIEW OF THE AFORESAID AND CONSIDERING THE TOTALITY OF THE FACTS, WE ARE OF THE VIE W THAT THE ENDS OF JUSTICE SHALL BE MET IF AN ESTIMATION OF INCOME EARNED BY THE ASSESSEE IS MADE IN THE PRESENT CASE. WE ARE OF THE VIEW THAT AN ESTIMATE OF 2.5% OF THE TOTAL AMOUNT RECEIPTS RECEIVED BY THE ASSESSEE WOULD MEET THE ENDS OF JUSTICE. WE THUS DIRECT ACCORDINGLY AND THUS THESE GROUNDS OF THE ASSESSEE AND REVENUE ARE PARTLY ALLOWED. 9. SINCE THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF DEVI DURGA (SUPRA) , WE FOR SIMILAR REASONS AS GIVEN WHILE DECIDING THE APPEAL OF DEVI DURGA CONSTRUCTION (S UPRA) AND FOR SIMILAR REASONS HO LD THAT AN ESTI MATE OF 2.5% OF RS. 15 LACS RECEIVED BY THE ASSE SSEE BE CONSIDERED AS INCOME. W E THUS DIRECT ACCORDINGLY. 10. IN THE RESULT, THE APPEAL OF REVENUE AND C.O OF THE ASSESSEE ARE PARTLY ALLOWED . THE OTHER GROUNDS OF C.O OF ASSESSEE WERE NOT SERIOUSLY PRESSED AND THEREFORE DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE AND C.O OF ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 19 - 12 - 201 4 . SD/ - SD/ - (SHAILE NDRA KR. YADAV ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2 . THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD