Shri Manishaben Virendra Thaker, Baroda V. The Dy. Commissioner of Income Tax, Central Circle-2(4), Ahmedabad

CO 50/AHD/2019

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1119 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 3 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-07-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-06-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 07-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H. PHANI RAJU
• Keywords: Document seized; Principle of natural justice; Additional evidence; Documents seized
• Section: 32; 147; 132; 10; 90; 11; 143(3); 142(1); 153A; 143(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA RAGHUNATH KAMBLE, JUDICAL MEMBER & SHRI NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER I.T( SS) .A. No. 15/ Ahd/2018 A/ W. CROSS OBJEC TI ON No. 50/Ahd/2019 (िनधाᭅरण वषᭅ िनधाᭅरण वषᭅ िनधाᭅरण वषᭅ िनधाᭅरण वषᭅ / Assess ment Year : 2011-12) De pu ty C o mmi ss io ner o f In co me T ax Ce ntr al C ir cle -2 (4 ), Ah me da bad M a ni sh ab en V ire nd ra Th ak er C/ 21, A mb ic a Du pl ex, Ins id e Vr in da van To wn sh ip M aka ra n d D es ai Ro ad, R ac e Co ur se Cir cl e Bar od a, G uj ara t 38 00 07 बनाम बनामबनाम बनाम/ V s . & M a ni sh ab en V ire nd ra Th ak er C/ 21, A mb ic a Du pl ex, Ins id e Vr in da van To wn sh ip M aka ra n d D es ai Ro ad, R ac e Co ur se Cir cl e Bar od a, G uj ara t 38 00 07 De pu ty C o mmi ss io ner o f In co me T ax Ce ntr al C ir cle -2 (4 ), Ah me da bad ᭭थायी लेखा सं./जीआइआर सं./P A N / G IR N o . : A D M P T 0 4 7 0 E (Appellant/Cross Objector) . . (Respondent) Assessee by : Shri Sunil Maloo, A.R. Revenue by : Shri H. Phani Raju, CIT.DR D a t e o f H e a r i n g 25/06/2024 D a t e o f P r o n o u n c e m e n t 08/07/2024 O R D E R PER SHRI NARENDRA PRASAD SINHA, AM: This appeal is filed b y the Revenue against the order of the Co mmissioner of Inco me Tax ( Appeals), Gandhinagar, (in short IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 2 – ‘the CI T( A) ’) dated 27.10.2017 arising in the order of the Assessing Officer (in short ‘the AO’) passed under S ection 143(3)/144 r.w.s 153A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for the A.Y. 2011-12. The assessee has also filed a cross objec tion in this case. 2. The brief facts of the case are that a search operation under Section 132 of the Act was conducted in India Green Reality Group on 15.03.2013, in which the a ssessee was also c overed. A notice under Section 153A of the Act was issued on 26.09.2014 requiring the assessee to file return of inco me for A.Y. 2007-08 to 2012-13 within 30 da ys, but no return was filed within the stipulated date. The assess ment was co mpleted under Section 143(3)/144 r.w.s. 153A of the Act o n 17.02.2015 at total income of Rs.2,66,00,130/- and an addition of Rs.2,58,82,312/- was made on account of unexplained investme nt in land on the basis of the seized documents. 3. Aggrieved with the order of the AO, the assessee had filed an appeal before the First Appellate Authority, which was decided vide the impugned order. The addition as made by the AO was sustained to the extent of Rs.7,80,312/- only. In addition, the CIT( A) also esti mated co mmission income of the assessee at Rs.5,17,646/- and the aggregate addition was restricted to Rs.12,97,958/-. IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 3 – 4. Now, the Revenue is in appeal before us and the assessee has filed a cross objection. 5. The following grounds of appeal has been taken in this appeal by the Rev enue: “ 1 . O n t h e f a c t s a n d i n t h e c i r c u m s t a n c e s o f t h e c as e a n d i n l a w , t h e L d . C I T ( A ) h a s f a i l e d t o a p p r e c i a t e t h e f a c t s b r o u gh t a b o u t b y t h e A s s e s s i n g O f f i c e r i n h i s a s s e s s m e n t o r d e r a s w e l l as t h e o b j e c t i o n s r a i s e d i n t h e r e m a n d r e p o r t a n d h a s a d m i t t e d t h e a dd i t i o n a l e v i d e n c e s . 2 . O n t h e f a c t s a n d i n t h e c i r c u m s t a n c e s o f t h e c as e a n d i n l a w , t h e L d . C I T ( A ) h a s e r r e d i n l a w a n d / o r o n f a c t s i n r e s tr i c t i n g t h e a d d i t i o n m a d e o n a c c o u n t o f u n e x p l a i n e d i n v e s t m e n t i n i m m o v a b l e p r o p e r t y o f R s . 2 , 5 8 , 8 2 , 3 1 2 / - t o R s . 1 2 , 9 7 , 9 5 8 / - 3 . O n t h e f a c t s a n d i n t h e c i r c u m s t a n c e s o f t h e c as e a n d i n l a w , t h e L d . C I T ( A ) o u g h t t o h a v e u p h e l d t h e o r d e r o f t h e A .Ο. 4 . I t i s , t h e r e f o r e , p r a y e d t h a t t h e o r d e r o f t h e L d . C I T ( A ) b e s e t a s i d e a n d t h a t o f t h e A . O . b e r e s t o r e d t o t h e a b o v e e x t e nt . ” 6. In the Cross Objec tion, the assessee has raised the following grounds: “ 1 . O n t h e f a c t s a n d i n t h e c i r c u m s t a n c e s o f t h e c as e , t h e l e a r n e d C I T ( A ) e r r e d i n c o n f i r m i n g a d d i t i o n t o t h e e x t e n t of R s . 7 , 8 0 , 3 1 2 o n t h e a l l e g e d g r o u n d o f u n e x p l a i n e d p a y m e n t t o w a r ds l a n d . 2 . O n t h e f a c t s a n d i n t h e c i r c u m s t a n c e s o f t h e c a se , t h e l e a r n e d C I T ( A ) e r r e d i n f u r t h e r d i r e c t i n g t h e A s s e s s i n g O f fi c e r t o m a k e a d d i t i o n o f R s . 5 , 1 7 , 6 4 6 o n t h e a s s u m p t i o n t h a t t h e R e s p o n d e n t m u s t h a v e e a r n e d c o m m i s s i o n a t t h e r a t e o f 2 % o n t he l a n d v a l u e . 3 . T h e r e s p o n d e n t c r a v e s l e a v e t o a d d , a l t e r , a m e n d a n d / o r w i t h d r a w a n y g r o u n d o r g r o u n d s o f c r o s s o b j e c t i o n s e i t h e r b ef o r e o r d u r i n g t h e c o u r s e o f h e a r i n g o f t h e s a m e . ” IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 4 – 7. In the course of hearing, an additional ground was raised by the assessee in the Cross Ob jection which is as under: “ T h e A s s e s s i n g O f f i c e r e r r e d i n p a s s i n g t h e A s s e s s me n t O r d e r u / s 1 4 3 ( 3 ) / 1 4 4 r . w . s . 1 5 3 A o f t h e I n c o m e T a x A c t , 1 9 6 1 o n 1 7 . 0 2 . 2 0 1 5 f o r t h e A s s e s s m e n t Y e a r 2 0 1 0 - 1 1 a s n o n o t i c e i f a n y h a s e v e r b e e n i s s u e d o r t o h a v e b e e n s e r v e d u / s 1 4 3 ( 2 ) o f t h e I n c o m e T a x A ct , 1 9 6 1 ” 8. Shri H. Phani R a ju, CI T- DR appearing for the Revenue submitted that the Ld . CIT(A) was not correct in rest ricting the addition of Rs.2,58,82,312/- made by the AO on account of unexplained invest ment to Rs.12,97,958/- only on the basis of additional evidences ad mitted in the course of appeal proceeding. The Ld. CIT-DR raised strong objection to the admission of additional evidence and contended that the assessee had not explained as to wh y this additional evidence could not be submitted before the AO in the course of assess ment proceedings. He explained that addition was mad e on the basis of the seized documents, which was cop y of ‘bana khat’ and sale dee d and was rightly made in th e hands of the assessee as she was the buye r of the property. Acc ording to the Ld. DR, the Ld. CI T(A) had grossly err ed in merel y rel ying on the contention of the assessee that all the funds f or purchase of property was provided b y India Green Re alt y Pvt. Ltd. ( ‘IGR PL’) 9. Per Contra, Shri S unil Maloo, Ld. C ounsel for the assessee supported the order of the Ld. CI T(A). He sub mitted that the assessee was onl y a na me-lender of t he Co mpan y I GRPL and the property was purchased in her na me for the reaso n that no IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 5 – agricultural propert y can be purchased by the co mpany. He explained that entire pa yment for th e acquisition of the propert y was made b y IGR PL and the land was also handed over to the co mpan y for development thereof. F urther that the cash pa yment made b y the co mp any for purchase o f this land was also added in the hands of the co mpan y. 10. As r egarding grounds raised in the C ross Obje ction, Ld . AR stated that Ground No.1 was only balancing figure and was, therefore, not pressed. As regarding Ground No.2, the Ld. AR submitted that no addition of co mmission income was made b y the AO and, theref ore, the Ld. CI T( A) was not corr ect in making addition in respect of co mmission inco me of the asse ssee. The Ld. AR also pressed the additional legal ground taken by the assessee and submitted that no notice under Section 143(2) of the Act was issued by the AO and, therefore, the assessment co mpleted under Section 153A/143(3)/144 of the Act was illegal. 11. In re joinder, the Ld. CI T.DR sub mitted that the assessee had not filed any return of inco me in res ponse to notice under Section 153A of the Act. Therefore, there was no question of issue of any notice under Section 143(2) of the Act. He further submitted that the AO had alread y issued notice under Section 142(1) of the Act on 03.12.2014 and the return was filed by the asse ssee much later on 13.01.2015 which cannot be considered as return in response to notice under Section 153A of the Act. The Ld . IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 6 – CIT.DR also relie d upon the decision of ITAT Allahabad in the case of AC IT vs. Sunshine Infraestate (P) Ltd. [139 taxmann.com 60 (Allahabad - Trib.) (TM)] in support of his contention that no notice in Section 143(2) of the Act was r equired to be issued in the proceedings under Section 153A of the Act and more so in the case where t he return was no t filed in r esponse to 153A notice. 12. We have carefull y considered the rival submissions. In order to ad judicate the grounds taken b y the Revenue as well as by the assessee in the cross appeal, it will be necessar y to exa mine the evidences based on which the addition wa s made b y the AO in this case. The relevant fa cts which led to this addition are as under: i. In the course of search at the premises of Shri Vinod Mahasukhlal Thaker, one banakhat dated 19.10.2010 was found and seized. This banakhat was between Shri Vin od Mahasukhlal Tha ker as purchaser and Dhirajbhai L. Vargia & Shri Jitendrakumar S . Mehta, as seller of agricultural land of Surve y No. 10/1 and 10/2 at Sas an, Junagadh. As per t his document 5.23 hectares of land was agreed to be sold @ Rs.8,01,000/- per Bigha and the total sale consideration was Rs.2,58,82,312/-. An a mount of Rs.61 Lakhs was paid at the time of this banakhat and the balance a mount o f Rs .1,97,82,312/- was to be paid by 05/02/2011 and thereafter final de ed was to be ma de. IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 7 – This banakhat wa s dul y signed b y all the concerne d parties and also notarized with Govern ment notar y. ii. During search, another banakhat dated 10.02.2011 was found for the sale of sa me land and between the sa me parties. As per this document, an a mount of Rs.1,41,51,000/- was paid b y the p urchaser till the date of this banakhat i.e. b y 10.02.2011 (including an amount of Rs.11,51,000/- through demand draft da ted 04.02.2011) and balance a mount of Rs.1,17,31,312/- was to be paid by 15.02.2011. iii. A cop y of sale dee d dated 14.02.2011 in respect of above land was also found during search. The sale deed was made between Shr i Jitenderkumar S . Mehta as seller and S mt . Manishaben Virender Thaker ( sister-in-law of Shri Virender Thaker) as buyer for a consideration of Rs.11,51,000/-. iv. On the basis of above documents, the AO concluded that the actual purchase price of the property was Rs.2,58,82,312/- as mentioned in the two banakhats. As the purchase price of Rs.11,51,000/- as mentioned in the sale deed was paid through de mand draft, which matche d with the de mand draft pa yment a s mentioned in the banakhat, the AO concluded that the balance a mount o f Rs.2,47,31,312/- was paid in cash for acquisition of this IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 8 – property. As the assessee was un able to explain the source of investme nt in the purchase of this land, the AO treated the entire invest ment of Rs.2,58,82,312/- as unexplained and accordingly made the addition in the hands of the assessee. v. The assessee furnished additional evidences before the Ld. C IT( A) , which was for warded to the AO for t he re mand report. It was explained that the agricultural land was acquired b y t he assessee at the instance of IGRP L and the entire fun ds were provided by the said co mpa ny because IGRPL being compan y couldn’t have acquired the agricultural land in its own na me. It was sub mitted that the de mand draft a mount for this property was also given by IGR PL a nd the entire transaction was recorded in the books of account of IGRP L. The assessee furth er submitted that the possession of the land was already given to IGRP L to develop the land as per their require ment. It was further sub mitted that si milar other transactions were carried out for IGRP L and total addition of Rs.32.90 crore on accou nt of acquisition of land was made i n the hands of t he IGR PL. It wa s contended that since the entire trans action was o wned up by IGR PL, no addition was called for in the hands of the assessee. IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 9 – vi. In the re mand rep ort, the AO object ed to the ad mission of additional evidences and contended that the evidences produced by the assessee were no t reliable. The Ld. CIT( A), however , ad mitted the add itional evidences on the ground that those were relevant to compute the real income of the asse ssee. 13. The Ld. CI T(A) after considering the submission of the assessee restricted the addition as made b y the AO to the extent of Rs. 7,80,312/- o nly and also made an addition of Rs.5,17,616/- on account of co mmission inco me. The Ld . CIT(A) has given the following findings in his order: “ 1 2 . 1 I t i s p e r t i n e n t t o n o t e t h a t d u r i n g t h e c o u r se o f s e a r c h a t t h e p r e m i s e s o f I G R P L , d e t a i l s o f a c q u i s i t i o n o f l a n d at v a r i o u s p l a c e s w e r e f o u n d i n l a p t o p a n d i t w a s o b s e r v e d t h a t a g g r e g a t e c a s h p a y m e n t m a d e b y I G R P L t o w a r d s a c q u i s i t i o n o f s u c h l a n d i s R s 3 2 .9 0 c r o r e a n d s u c h d e t a i l s a r e a l s o p a r t o f a s s e s s m e n t o r d e r s o f s a i d c o m p a n y . T h e A O h a s a l r e a d y m a d e s e p a r a t e a d d i t i o n o f R s 3 2 . 9 0 c r o r e t ow a r d s l a n d i n t h e h a n d s o f I G R P L I t i s o b s e r v e d t h a t i n t h e c a s e o f IG R P L , a p p e l l a n t h a s e x p l a i n e d t h a t s o u r c e s o f s u c h p a y m e n t i s o u t o f b oo k i n g a m o u n t r e c e i v e d i n c a s h a n d c a s h r e c e i v e d f r o m s h r o f f a n d o n t h a t ba s i s , I G R P L h a s a l s o s u b m i t t e d c a s h f l o w s t a t e m e n t . D u r i n g t h e c o u r s e o f a p p e l l a t e h e a r i n g . A R s o f a p p el l a n t h a v e d r a w n a t t e n t i o n t h a t s a i d d e t a i l s o f R s 3 2 . 9 0 c r o r e a s f o u n d i n l a p t o p i n c l u d e s p a y m e n t o f R a 2 , 3 9 , 5 1 , 0 0 0 t o w a r d s f o u r s u rv e y n u m b e r s o f l a n d a t S a s a n w h i c h a r e s u b j e c t m a t t e r o f p r e s e n t a s s e s sm e n t o r d e r a n d s u c h a m o u n t a s r e f l e c t e d i n l o o s e s h e e t f o u n d d u r i n g t h e c o u r s e o f s e a r c h i s R s 2 , 3 9 , 5 1 . 0 0 0 . S i n c e t h i s p a y m e n t h a s a l r e a d y b e e n a d d e d b y t h e A O i n t h e a s s e s s m e n t o f I G R P L , t h e s a m e c a n n o t b e m a d e i n t h e h a n d s o f t h e a p p e l l a n t e s p e c i a l l y w h e n i t h a s b e e n a c c e p t e d t h a t t h e m o n e y f o r t h e s e i n v e s t m e n t s h a v e c o m e f r o m I G R P L E v e n c a s h f l o w s t at e m e n t s u b m i t t e d b y a p p e l l a n t i n t h e c a s e o f I G R P L i n c l u d e s a b o v e l an d t r a n s a c t i o n s a n d d u r i n g t h e c o u r s e o f a p p e l l a t e p r o c e e d i n g s , a p p e l l an t h a s s u b m i t t e d e x t r a c t e d f u n d f l o w s t a t e m e n t c o n t a i n i n g s u r v e y n u mb e r , a m o u n t , d a t e IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 10 – e t c p e r t a i n i n g t o l a n d a c q u i r e d b y a p p e l l a n t a t t h e i n s t a n c e o f I G R P L i n c u r r e n t a s s e s s m e n t y e a r a n d s a m e i s a l r e a d y r e p r o d uc e d h e r e i n a b o v e . T h e s a i d d e t a i l s c l e a r l y s u p p o r t t h e c o n t e n t i o n o f a p p e l l a n t t h a t p a y m e n t t o w a r d s a c q u i s i t i o n o f l a n d a r e m a d e b y I G R P L a n d su c h p a y m e n t i s a l r e a d y s u b j e c t m a t t e r o f a d d i t i o n i n t h e c a s e o f IG R P L & S h r i V i n o d T h a k k a r , h i s h u s b a n d . I t h a s f u r t h e r b e e n e x p l a i n e d b y t h e a p p e l l a n t t h a t a n a m o u n t o f R s 1 1 , 5 1 , 0 0 0 b e i n g c h e q u e p a y m e n t w a s m a d e b y t h e IG R P L o n 0 4 / 0 2 / 1 1 w h i c h i s d u l y r e f l e c t e d i n t h e b o o k s o f a c c o u n t s o f t h e I G R P L . E v e n A O h a s m a d e t h e a d d i t i o n o n a c c o u n t o f R s . 1 1 , 5 1 , 0 0 0 / - o f c h e q u e p a y m e n t m a d e b y I G R P L H o w e v e r , s i n c e t h e p a y m e n t s t o t h e e xt e n t o f R s . 2 , 5 1 , 0 2 , 0 0 0 / - ( 2 , 3 9 , 5 1 , 0 0 0 + 1 1 , 5 1 , 0 0 0 ) h a s a l r e a d y b e e n e x p l a i n e d b y I G R P L , t h e a d d i t i o n f o r t h e s a m e c a n n o t b e m a d e i n t h e h a n d s o f t h e a p p e l l a n t . H o w e v e r , e v e n a f t e r g i v i n g t h e b e n e f i t of t h e s e t w o e n t r i e s , s t i l l t h e r e i s a b a l a n c i n g f i g u r e l e s h o r t f a l l i n th e a m o u n t b y R s . 7 , 8 0 , 3 1 2 / - w h i c h r e m a i n s u n e x p l a i n e d b y t h e a p p e l l a nt . T h e r e f o r e , t h e u n e x p l a i n e d i n v e s t m e n t t o t h e e x t e n t o f R s 7 , 8 0 , 3 1 2/ - i s c o n f i r m e d a n d t h e b a l a n c e a m o u n t o f R s . 2 , 5 1 , 0 2 . 0 0 0 / - i s d e l e t e d . T h e a p p e l l a n t g e t s t h e r e l i e f t o t h i s e x t e n t . H o w e v e r , i t i s o b s e r v e d t h a t a p p e l l a n t h a s a c t e d a t t h e i n s t a n c e s o f a p p e l l a n t a n d i t i s n o t p o s s i b l e t o a p p e l l a n t w ou l d n o t h a v e e a r n e d a n y c o m m i s s i o n t o w a r d s s u c h t r a n s a c t i o n h e n c e r e a s on a b l e c o m m i s s i o n o r r e m u n e r a t i o n n e e d t o b e e s t i m a t e d i n p r e s e n t c a se I t i s p e r t i n e n t t o n o t e t h a t i n t h e c a s e o f A m i t a v a D . S a m a n t a , o n e o f t h e g r o u p c a s e s , i t w a s f o u n d t h a t s a i d p e r s o n h a s a c q u i r e d a g r i c u l t u r al l a n d o n b e h a l f o f I G R P L i n A . Y . 2 0 1 2 - 1 3 f o r R s 2 , 4 4 , 8 0 , 2 0 0 . T h e d o c u me n t s r e l a t i n g t o s u c h p u r c h a s e w e r e f o u n d d u r i n g s u r v e y p r o c e e d i n g s i n t h e c a s e o f I G R P L , C a l c u t t a I t i s a l s o o b s e r v e d t h a t s t a t e m e n t o f s a i d p e r s o n w a s r e c o r d e d u n d e r S e c t i o n 1 3 2 o n 5 t h A p r i l , 2 0 1 3 w h e r ei n i n r e p l y t o q u e s t i o n N o . 1 0 h e h a s s t a t e d t h a t s o u r c e o f i n v e s tm e n t i n p r o p e r t y i s b y I G R P L f o r w h i c h h e h a s r e c e i v e d R s . 4 t o 5 l a k h s a s r e m u n e r a t i o n w h i c h w o r k s o u t t o a p p r o x i m a t e l y 2 % o f t o t a l l a n d v a l u e he n c e r e a s o n a b l e c o m m i s s i o n o f 2 % o f l a n d v a l u e i s e s t i m a t e d i n p r e se n t c a s e b a s e d u p o n s e i z e d m a t e r i a l f o u n d d u r i n g t h e c o u r s e o f s e a r c h . T h u s , c o m m i s s i o n i n c o m e i s e s t i m a t e d a t R s . 5 , 1 7 , 6 4 6 b e i n g 2 % o f t o ta l p a y m e n t o f R s 2 . 5 8 . 8 2 . 3 1 2 . T h u s , a g g r e g a t e a d d i t i o n m a d e b y A O f or R s 2 , 5 8 , 8 2 , 3 1 2 i s r e s t r i c t e d t o R s . 1 2 , 9 7 , 9 5 8 ( 5 , 1 7 , 6 4 5 b e i n g c o m m i s s io n r e c e i p t + 7 , 8 0 , 3 1 2 b e i n g u n e x p l a i n e d p a y m e n t t o w a r d s l a n d ) . T h e r e l a t ed g r o u n d o f a p p e a l i s p a r t l y a l l o w e d . ” IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 11 – 14. We have care fully considered the facts of the cas e. As regarding objection to ad mission of additional evidences b y the Ld. CI T( A) , it is the prerogative of the CIT(A) to ad mit additional evidences if the y are found necessar y to deter mine the issues as involved in the appeal. The Revenue can’t challenge the right of the CIT( A) to ad mit such evidences. The onl y relevant consideration would be whether the Ld. CI T( A) had allowed an opportunity to the AO to exa mine those additional evidences or not. It is found that the Ld. CI T(A) had forwarded the additional evidences to the AO and called for the re mand report. Thus the additional evidences were not ad mitt ed at the back of t he AO and without allowing an opportunity to the AO. In view of t hese facts we don’t find an y merit in the obje ction of the Revenue to the ad mission of additional evidences. The ground taken by the Revenue in this regard is, therefore, dismissed. 15. On merits, it is f ound that the name of the assessee was nowhere appearing in the two bana khats dated 19.10.2020 and 10.02.2011, based on which the cost of acquisition of propert y has been arrived at Rs.2,58,82,312/- and accordingly a ddition has been made in the hands of the assessee. The only evidence before the AO regarding acquisition of the property b y the as sessee was the sale deed dated 14.02.2011 in which the cost of acquisition of the propert y was mentioned as Rs.11,51,000/- only. Further, the fact that the payment of Rs.11,51,000/- for acquisition of this property was mad e b y the de mand draft made b y I GR PL has also IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 12 – not been disputed. Thus, fro m the documents as ava ilable on record, there c a nnot be any do ubt that the assessee S mt . Manishaben Virendra Thaker was o nly a ‘bena midar ’ or ‘na me- lender’ of the property and the actual investment was made b y the Co mpan y IGR PL. This fa ct has b een ad mitted b y the assessee as well as b y I GR PL. Therefore , this was a fit case t o initiate proceeding under “THE PROHIBITION OF BENAMI PROPERTY TRANSACTIONS ACT, 1988”. 16. The Ld. CI T( A) has given a categorical finding that aggregate cash payment made b y I GRP L towards ac quisition of various land was Rs.32.90 crores; which included the cash payment of Rs.2,3 9,51,000/- towards four surve y nu mb ers of land at Sasan, which were the subject mat ter of the present assessment order in the cas e of the assesse e. Thus, the ad dition of Rs.2,39,51,000/- was alread y made in the hands of the IGR PL towards acquisition of this land which was part of the total addition of Rs.32.90 crores made i n the case of the Co mpan y. This fact has not been disputed by the Revenue. The contention of the Ld . C IT. DR was that the addition made in the case of co mpan y is still pending adjudication before the respective CIT( A). Be that as it ma y, there i s no denial to the fact that addition to the extent of Rs.2,39,51,000/- was already made in the hands of the Co mpan y. In fact , no addition for an y cash payment could have been made in th e hands of the asse ssee as no such evidence in respect of the assessee was found in the course IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 13 – of search. The Ld. CIT( A) a fter considering the cash and de mand draft pa yment ma de by IGR PL has confir med the a ddition of balance difference a mount of Rs.7,80,312/- in the hands of the assessee. We do not find anything wrong with the order of the Ld. CIT(A) . Looking into the totality of the fact s and the evidences on record, the addition of Rs.7,80,312/- re stricted in the hands of the a ssessee is upheld and the grounds taken in this regard b y the Revenue as well as b y the assessee in the CO, are dismissed. 17. The Ld. CIT( A) has also considered the other evidences found during the s earch and esti mate d the co mmission income of the assessee @ 2% of the total payment towards land consideration. In the case of another person Amitava D. Sa manta, one of the group case, who was utilized for acquisition of land in a si milar manner, co mmission @ 2% of total land value was paid. Accordingly, co mmission inco me o f 2% was esti mat ed in the hands of the assessee by the Ld. CIT( A) on that basis. The objection of the assessee that no such addition was made b y the AO is irrelevant. When the AO had made addition for entire sale consideration by treating it as unexplained, there was no necessity to make an y addition for co mmission income . It was the Ld. CI T( A) who considered the sub mission of the assessee that she was only a na me-lender for acquisition of land on behalf of the Co mpan y an d only thereafter t he require ment of estimating the co mmission inco me arose. After all, nobody will indulge in IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 14 – such activity of n a me -lending without deriving an y income or consideration. Therefore, the esti mation of commission income as made b y the Ld . CIT(A) is confirmed and the ground taken b y the assessee in the CO against this addition is rejected. It will not be out of place to mention that identical issue was involved in the case of DC IT vs. Hetalben Patel, which was decided by the Co- ordinate Bench of Tribunal in IT(SS)A No. 6/Ahd/2018 dated 22.03.2023, where in this Tribunal while confirming the deletion of addition on account of unexplained investme nt towards acquisition of land, had upheld the esti mation of commission income @ 2 %. In that case also the propert y was ac quired on behalf of the sa me co mpan y, IGR PL. 18. As r egarding the additional legal ground taken by the assessee in the C O, it is found that n o return under S ec tion 153A of the Act was fil ed in response to the notice dated 26.09.2014 within the time of 30 da ys as stipulated in the said notice. Further, the ti me li mit for furnishing the return was not extended by the AO. The AO had alread y issued a notice u/s 142(1) of the Act on 03.12.2014. The return filed by the assessee on 13.01.2015 about a month pri or to co mpletion o f assess ment was, therefore, not a valid return filed in response to notice under Section 153A of the Act. Henc e, there was no r equire ment for issue of an y notice under Section 143(2) of the Act. In fact it was held in the case of Sunshine Infraestate (P.) Ltd (supra) that issuance of notice under IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 15 – section 143(2) was not a mandatory jurisdictional requirement for making assessment under section 153A. To reproduce from the said order: 6.2 Section 153A of the Act, at the relevant time, opens with a non- obstante clause, inter alia, qua section 147 and provides that when a person is searched after the specified date, the AO shall: "(a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b) ..... and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139". Section 153A(1)(b) states that the AO shall: "assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made". The first proviso to section 153A(1) also says that "the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years". On going through the mandate of section 153A, it gets clear that once a notice is issued to the assessee requiring him to furnish his return in respect of each assessment year falling within six assessment years referred to in clause (b), the assessment has to mandatorily take place. The position can be compared with a regular assessment u/s 143(3) etc., which takes place in both the circumstances of the assessee having furnished or not furnished its return of income. If a return is already filed, the assessment can be espoused straight away and completed. On the other hand, if no return has been filed, then firstly, a return has to be called for by issuing notice u/s 142(2)(i). It is only when the return is either suo motu filed or in response to notice u/s 142(1)(i) that the case becomes ripe for undergoing assessment. Thereafter, a notice u/s 143(2) is required to be issued if the AO 'considers it necessary or expedient to ensure that the assessee has not understated the income' in the return. The point to be noted is that making assessment of all the returns filed is not necessary. It is only in some of the returns where the AO considers it necessary or expedient to ensure that the assessee has not understated the income, that he takes up the assessment after first, acquiring jurisdiction by issuing notice u/s 143(2). It, therefore, follows that whereas the filing of return by the assessees having income chargeable to tax etc. is essential, but making the assessment of such returns is not essential under law. Only in such cases where the AO considers it necessary to ensure that the assessee has not understated his income etc. that he takes up assessment, which is done by firstly acquiring jurisdiction on issuing notice u/s 143(2) of the Act. If the AO does not consider necessary or expedient etc., he need not make an assessment, in which case no notice u/s 143(2) would IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 16 – be required. Thus, it follows that notice u/s 143(2) gives jurisdiction to the AO to take up assessment. On the other hand, section 153A gets triggered for making assessment in case of search or requisition. Such assessments have to be mandatorily made by the AO whether or not he considers necessary to expedient to ensure that the assessee has not understated the income. There is no choice with the AO except to make the assessments of the prescribed six assessment years. Once the assessments are to be mandatorily made in search cases, unlike the regular cases giving choice to the AO to make assessment only on considering it necessary or expedient, there is no requirement of acquiring any jurisdiction to do so by firstly issuing notice u/s 143(2). The very factum of search confers jurisdiction on the AO to make assessment under section 153A of the Act. 19. The jurisdiction to undertake the assessment in this case was assu med b y t he AO b y issue of notice u/s 153A of the Act. The provision of section 153A of the Act does not mandate issue of an y notice u/s 143(2) and there is no specific provision in the Act requiring the assessment u/s 153A to be made aft er issuing notice u/s 143(2). In the absence of an y procedural requirement for issue of notice u/s 143(2) in 153A proceeding, the ground taken by the asses see that no such notice was issued, is otiose. It was held by the Hon’ble Madras High Court in the case of B Kubendran vs. DC IT (126 tax mann.com 107) that it would suffice that in framing an assessment under section 153A, due regard must be given to the principles of natural justice, which requirement will stand satisfied either by issuance of notice under section 143(2) or a questionnaire under section 142(1). The p rinciple of natural justice was alre ady satisfied in this case by issue of notice u/s 142(1) along with the questionnaire by the AO. In view of above facts and the judicial precedence the additional ground taken by the assessee in respect of issue of notice u/s 143(2) of the Act is dis missed. IT(SS)A No. 15/Ahd/2018 [Shri Manishaben. Virendra Thaker] A.Y. 2011-12 - 17 – 20. In the result, appeal preferred b y the Revenue as well as the CO of the assessee, both are dis mis sed. This Order pronounced on 08/07/2024 Sd/- Sd/- (SUCHITRA RAGHUNATH KAMBLE) (NARENDRA PRASAD SINHA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 08/07/2024 S. K. SINHA True Copy आदेश कᳱ ᮧितिलिप अᮕेिषत आदेश कᳱ ᮧितिलिप अᮕेिषतआदेश कᳱ ᮧितिलिप अᮕेिषत आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant 2. ᮧ᭜यथᱮ / The Respondent. 3. संबंिधत आयकर आयुᲦ / Concerned CIT 4. आयकर आयुᲦ(अपील) / The CIT(A)- 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाडᭅ फाईल / Guard file. आदेशानुसार आदेशानुसारआदेशानुसार आदेशानुसार/ BY ORDER, उप उपउप उप/सहायक पंजीकार सहायक पंजीकारसहायक पंजीकार सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय आयकर अपीलीय आयकर अपीलीय आयकर अपीलीय अिधकरण अिधकरणअिधकरण अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद / ITAT, Ahmedabad