Appeal Details
Counselvise Citation
[2024] 101 COUNSELVISE.COM (IT) 8801 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
8 year(s) 10 month(s) 2 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
08-02-2024
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
C
Next Hearing Date
16-01-2024
Assessment Year
2009-2010
Appeal Filed On
05-04-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH Before: Shri Waseem Ahmed, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member The A CI T, Ci rc l e- 9 , A hm e dab ad V s S hri G ha ns h yam P . Hi r para, B - 11, S u n G ol d A partm ent, Nr. V i dyanag ar S c h ool , Indi a C ol o ny R o ad, B apu nag ar, A hm eda bad- 3 800 24 P AN : AAL P H 22 49H R even u e R ep re sent ed : S hr i Ash ok Ku m ar S u th ar , S r . D.R. Ass esse e R ep r es ent ed : S h ri S . N. S op ar kar , S r . Ad voc ate T he DCI T, Ci rcl e-3 ( 3), A hm e dab ad V s S hri J aye s h Ravj i b hai D ob ari ya , 197, S hi v am B ungl ows, N ehr u P ark, Nr.S t ate B a nk of Indi a, O pp. V a str apu r Lak e, A hm eda bad- 3 800 15 P AN : AD IP D 20 85K S hri J a ye s h R av j i b hai Dobari ya, 197, S hi v am B u ngl o ws, Nehr u P a rk , Nr.S t a te B ank of Indi a , Op p. V as tr apu r L ak e, A hm e dab ad- 38 001 5 P AN : AD IP D 208 5K ( Ap p ell ant ) V s T he D CIT , Ci rcl e- 3( 3), A hm eda bad (R espon d en t) ITA No: 2955 & 1425/Ahd/2014 Assessment Years: 2008-09 & 2009-10 IT(SS)A No: 39/Ahd/2015 & C.O. No: 52/Ahd/2015 Assessment Year: 2009-10 I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 2 T he A CIT , Ci rcl e-7 ( 2), A hm e dab ad V s S hri R aj es h R am es hb hai P at el , 13/ 1 4, K ai l as h D ham S oc i et y, V i bh ag-I, Indi a C ol o ny R o ad, B apu nag ar, A hm eda bad- 3 800 24 P AN : AG NP P 152 6D S hri R aj e s h Rames hb hai P at el , 13/ 1 4, K ai l as h Dh am S oci et y, V i bha g-I, Indi a C ol on y R oad, B apun agar, A hm e dab ad- 38 002 4 P AN : AG NP P 152 6D ( Ap p ell ant ) V s T he A C IT, Ci rcl e- 7( 2), A hm eda bad (R espon d en t) T he A CIT , Ci rcl e-7 ( 2), A hm e dab ad V s S hri J agdi s h B hagwa nj i C ha ndar a na, P l ot N o. 77/ 1, V i kr am P a rk , O pp. B aj r ang A s hr am , Tha kk a r bap anag ar, A hm eda bad, Guj ar at P AN : ABM P C 3209 Q S hri J a gdi s h B h agwanj i C han dar an a, P l ot N o. 7 7/ 1, V i kr am P ark , Op p. B aj r a ng A s hr am , Thak k a rb apa naga r, A hm e dab ad, G uj a r at P AN : ABM P C3 209 Q ( Ap p ell ant ) V s T he A CI T, Ci rcl e- 7( 2), A hm eda bad (R espon d en t) IT(SS)A No: 41/Ahd/2015 & C.O. No: 51/Ahd/2015 Assessment Year: 2009-10 IT(SS)A No: 259/Ahd/2015 & C.O. No: 21/Ahd/2016 Assessment Year: 2009-10 I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 3 R even u e R ep re sent ed : S hr i K aml e sh M akw an a, CI T- DR Ass esse e R ep r es ent ed : S h ri Dhi r en S h ah, A. R . & M s. Nup ur S h ah, A. R. Date of hearing : 17-01-2024 Date of pronouncement : 09-02-2024 आदेश/ORDER PER BENCH:- These appeals are filed by the Revenue as against five different appellate orders passed by the Commissioner of Income Tax (Appeals), Ahmedabad arising out of separate assessment orders passed under sections 147, 153A & r.w.s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Years 2008-09 & 2009-10. Since common issue is involved in all these appeals and the respondent-assessees herein are Partners of the firm M/s. Vadsar Industrial Development Corporation (VIDC), the Revenue appeals and the Cross Objections filed by the assessees are disposed of by this common order. 2. ITA No. 1425/Ahd/2014 (Revenue’s appeal) relating to the Assessment Year 2009-10 is taken as the lead case. The brief facts of the case is that the assessee is a Partner in M/s. Vadsar Industrial Development Corporation (VIDC) which is engaged in development, construction of buildings, purchase and sale of lands and buildings. The Firm VIDC wanted to purchase lands for business, however the Non-Agricultural lands were very costly. Therefore the Firm decided to purchase agricultural lands which is cheaper compared to Non-Agricultural lands. But as per the Govt. I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 4 of Gujarat Revenue Rules, agricultural lands can be purchased only by agriculturists/farmers and not by any other persons. Therefore the Firm VIDC purchased agricultural lands in the name of its four Partners who are the farmers (remaining 3 Partners are not Farmers). The Firm VIDC made account payee cheques direct to the sellers of the lands and the same are reflected in the Sale Deeds registered during the A.Y. 2009-10 as follows: Sr. No. Block Nos. Date of Regd. Sale Consideration as per Sale Deeds Purchase deed in Name of Partners 1 Block Nos. 1212, 1220, 1233 Moti Bhoyan, Ta. Kalol 17/04/2008 46,29,440/- (i) Rajeshkumar Rameshbhai Patel (ii) Jayeshbhai Ravjibhai Dobariya (iii) Ghanshyambhai Popatbhai Hirpara (iv) Jagdishbhai Bhagwanbhai Chandarana 2 Block Nos. 1238, 1242, 1241,1246 Moti Bhoyan, Ta. Kalol 17/04/2008 20,45,400/- 3 Block Nos. 1239, 1240, 1243,1244, 1247,1249, 1250, 1251 Moti Bhoyan, Ta. Kalol 08/10/2008 92,00,000/- 4 Block No. 387 Santej, Ta. Kalol 28/07/2008 30,32,400/- 5 Block No. 391 Santej, Ta. Kalol 20/08/2008 47,09,100 6 Block Nos. 392, 395 Santej, Ta. Kalol 20/08/2008 73,13,400/- 7 Block Nos. 1571, 1572, 1573, Vasar, Ta. Kalol 20/08/2008 49,94,400 TOTAL 3,59,24,140 2.1. Thus the assessee claimed that the above agricultural lands were purchased in the name of four farmers only who are Partners of the Firm VIDC and not with the remaining three Partners of the Firm who are non-farmers. The above facts clearly prove that the I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 5 agricultural lands do not belong to the assessees herein but belong to the Partnership Firm VIDC. 3. On 23.05.2008, there was a search u/s. 132 of the Act in the case of Adi Avirath Group and one Shri Pareshbhai B. Patel. During the course of search, a loose paper marked as Page No. 72 & 73 of Annexure AS/5 was seized from the residence of Shri Pareshbhai B. Patel. On the said loose paper, various Block Numbers of agricultural lands were mentioned and certain figures in cash and cheques and rate of land per bigha is mentioned as Rs. 9 lakhs. It was noticed by the A.O. that few blocks mentioned in the said loose papers are said to be same as purchased by the Firm VIDC in the name of the four farmer Partners. On the basis of the loose paper seized in Annexure AS/5 more particularly at page nos. 72 & 73, the A.O. worked out the ratio of cash and cheque amount involved in the land transactions as under: Rs. 1,00,19,430/- By Cash Rs. 22, 26,300/- By Cheque A.O. worked out the ratio of cash payment against the cheque as “4.5:1” The A.O. held that these agricultural lands are purchased by assessee in his personal capacity & unexplained investment in these lands by him. A.O. worked out unaccounted cash payment involved in these blocks as under for the A.Y. 2008-09 Total Sale Price of land Of these blocks as per Rs. 1,58,74,840/- Registered Sale deeds Cash Ratio 4.5 : 1 Total cash involved Rs. 7,14,36,780/- (15874840 *4.5) ¼ share of assessee Rs. 1,78,59,195/- I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 6 It is also observed that during A.Y. 2009-10, Firm VIDC purchased other agricultural lands also bearing Block Nos. 387, 391, 392, 395, 1571, 1572 & 1573. These Block no. of land are written on loose page 73 Annexure AS/5. However A.O. was of the view that in respect of these Block No. also there was dealing of unaccounted cash payment since these lands are situated in same vicinity. Accordingly A.O. worked out unaccounted cash payment in respect of these land transactions also, as under for A.Y. 2009- 10. Total Sale price of land Of these blocks as per Rs. 1,00,49,300 Registered Sale deeds Cash Ratio 4.5 : 1 Total cash involved Rs. 9,02,21,850 (20049300 * 4.5) ¼ share of assessee Rs. 2,25,55,462 3.1 Thus A.O. made total addition of Rs.4,04,14,657/- (Rs.1,78,59,195/-+Rs.2,25,55,462/-) as unexplained investment in agricultural lands for the Asst. Years 2008-09 & 2009-10 and demanded taxes thereon. 4. Aggrieved against the reassessment orders, the assessee filed appeals before Commissioner of Income Tax (Appeals). The Ld. CIT(A) noted that the Sale Deeds though show the name of Farmer/ Partners, but the funds were provided by the Firm VIDC only and shown the same in its Books of Accounts. Further the above pieces of agricultural lands were reflected in the Balance Sheet of the Firm VIDC and also reflected in the Return of Income filed in ITR-5 that the lands belong to the Firm VIDC and not to the individual assessees/Partners. It is pertinent to state that the above piece of lands are not reflecting in the Balance Sheets of the individual assessees. This apart, the Firm VIDC sold some of these lands for Rs.5,07,86,150/- and the same is shown in the Profit and Loss I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 7 account of the Firm VIDC, on which business profit earned by the firm is offered for taxation for the A.Y. 2012-13. Thus taking into account the entire facts and circumstances of the case, the Ld. CIT(A) deleted the addition made by the Assessing Officer by observing as follows: “....6.3 I have gone through the assessment order of A.O., Paper Book Nos. 1 to 6 filed by A.R. of assessee and notings on loose paper 73 also. All facts of the case, evidences and the ratios decided by various Hon. Tribunals and High Courts have been considered. It is observed that different blocks of lands as mentioned above, found noted on page. 73 in fact do not belong to the Firm VIDC and not to the appellant and other co- buyers, Facts clearly reveal that all the 4 co buyers are name lenders only. The lands are agricultural lands and as per Govt. Rules, only farmer can purchase the agricultural land. A Firm is not a farmer and cannot purchase the land. The Firm VIDC which is a builder firm, & was in to purchase plots of lands, bought these agricultural lands in name of its farmer partners. It is common knowledge that the agricultural lands are cheaper than non agricultural lands. The sale deeds for pursue of these lands are executed in name of 4 farmer partners of the said firm, but total payment towards purchase consideration, stamp duty, registration fees, etc, is made by Firm VIDC by a/c payee cheques for cost, and by cash for expenses which are also found recorded in the bank account and books of accounts of the Firm and same are also found in the Balance Sheet of the Firm as at 31/03/2009 also It is also observed that the Firm VIDC is assessed to income tax at PAN No.AAGFV7597P, and its income tax returns have been filed regularly. It has been explained by the AR that in A.Y.2012-13, the Firm has sold some of these lands for Rs.5,07,86,510/- and same is shown in profit & loss account of the Firm on which business profit is earned and offered to tax. The sale of these lands is also reflected in ITR-5 for A.Y.2012-13. The sale consideration has been received by account payee cheque in the name of the Firm and found credited in bank account of the Firm. The sale price received is not routed through bank account of appellant and other co- owners. 6.4 Taking into account entire facts and circumstances it can be stated that page no.73 has no connection with the appellant because Block Nos. of lands mentioned on this page are belonging to the Firm and shown in the books of accounts of the firm. The Firm has shown sale of these lands and offered the gain as business profit in A.Y. 2012-13. 6.5 It is also noteworthy that the name of the appellant and other co buyers are not found recorded on page. 73. The payments by cash/cheque is also not found in the books of the appellant. Shree Pareshbhal B. Pate I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 8 from whom said page was seized has nowhere stated that these lands were sold to appellant been contended by the AR that the opportunity of cross examination of Sri Pareshbhai B.Patel was not allowed to appellant though it was specifically asked by him vide his letter dated 23/12/2011. The A.O has made the addition merely on the assumption making base of page 73 without pointing out any source of unaccounted investment by appellant. It is also submitted by the AR that appellant is not doing any construction activity on his own as proprietor of the Firm and therefore there is no source of any unaccounted income. 6.6 I have gone through court decisions relied by A.R. of the appellant such as (i) S.P.Goyal Vs DCIT 77TT (2002) (Mum)(TM) (ii) D.D.Malhan Vs DCIT 91 TTJ (2004) (Del) (iii) Pioneer Publicity Corporation & Other Vs DCIT 67 TTJ 471(2000)(Del) (iv) Gyankumar Agarwal (IND) Vs ACIT 146 TTJ 334 (2012) (Hyd). In case of S.P. Goyal Vs DCIT, Hon. Tribunal held that Loose sheet of paper torn out of a diary could not be construed as books for the purpose of s. 68 of the Act. The addition could not be made simply on the basis of certain notings on loose sheets of a diary without any corroborative evidences in the form of extra cash jewellery or investment outside the books. In the case of D.D. Malhan Vs DCIT, Hon. Delhi High Court held that a Paper containing jottings of certain figures even if seized from the possession of assessee would not come within the compass of the word "document and cannot be the basis for treating undisclosed income of the assessee. In this case of Pioneer Publicity Corporation & Other Vs DCIT, Hon. Delhi Tribunal held that no addition could be made simply on the basis of a noting on a visiting card found during search directing certain payment to the bearer of the card when there is nothing to establish that assessee paid the amount to said person. In case of Gyankumar Agarwal (IND) Vs ACIT, Hon Hyderabad Tribunal held that no addition can be made solely on the basis of seized handwritten note book/loose slips which are dumb documents. There being no other corroborative material. 6.7 Under the facts and circumstances of the case and law decided by Hon. Courts and Tribunals mentioned above I am of the considered view that, the addition made by AO in case of appellant for AY in question, of Rs. 4,04,14,657/- (Rs17859195/+Rs22555462/) is deleted and appellant gets relief to that extent. This ground of appeal is allowed. However the I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 9 issue of investment in land blocks on the basis of loose paper no 73 may be examined in the case of M/s. VIDC the firm in which the appellant and other co purchasers are partners.” 5. Aggrieved against the same, the Revenue is in appeal before us in ITA No.1425/Ahd/2014 for A.Y. 2009-10 raising the following Grounds of Appeal: 1) The Ld. Commissioner of Income-Tax (Appeals)-XV, Ahmedabad has erred in law and on facts in deleting the addition of Rs.4,04, 14,657/- made on account of unexplained investment in agricultural lands. 2) On the facts and in the circumstances of the case, the Ld. Commissioner of Income-Tax (Appeals)-II, Ahmedabad 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)-II, Ahmedabad may be set aside and that of the Assessing Officer be restored . 6. Ld. Sr. D.R. Shri Ashok Kumar Suthar appearing for the Revenue supported the order passed by the Assessing Officer and requested to uphold the same and the Ld. CIT(A) is not correct in deleting the above addition made by the Assessing Officer. 7. Per contra, Ld. Senior Advocate Shri S.N. Soparkar appearing for the assessee submitted that the loose paper seized is not belong to the assessee/Partners of the Firm and name of the Partnership Firm or its Partners name are not at all mentioned anywhere in the loose paper. These loose papers were seized by the department from Shri Pareshbhai B. Patel, who said to be a Real Estate Agent and he has no role with the present assessees or the Firm in buying the above agricultural lands. Further the cash amount mentioned in the seized paper for pertaining to the Assessment Year 2007-08. It is also not mentioning receipts of payments and the assessees had never given the statement recorded of Shri Pareshbhai B. Patel. I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 10 Following the same, the assessee could not cross-examine the owner of the loose paper seized. Further though the assessee Firm declared the above agricultural lands in its Balance Sheet and also sold some of the lands during the Assessment Year 2012-13 and paid appropriate taxes and copy of the ITR is very much available with the department. In the above circumstances, the Ld. CIT(A) deleted the addition made in the hands of the assessee with an observation, the Assessing Officer can examine to make such addition in the hands of the Firm M/s. VIDC and thus allowed the assessee’s appeal. 8. Ld. Senior Counsel also drawn out attention to the very same seized material namely Annexure AS/5 in Page Nos. 72 & 73, where similar additions made in the case of M/s. Sopan Industrial Infrastructure Park relating to the Assessment Year 2007-08 in ITA No. 495/Ahd/2016 and C.O. No. 53/Ahd/2016 dated 20.06.2018 wherein this Hon’ble Tribunal dismissed the Revenue appeal observing as follows: “....3. There was a search action carried out in the case of one land broker named Shri Pareshbhai Babubhai Patel on 23/05/2008. During the course of search proceedings, certain loose papers were found and seized vide Annexure-A-5, in which page-72 and 73 were found to be incriminating by the A.O. As per the A.O. the status indicates that the actual value of land transaction was @ Rs.9 lakhs per bigha, whereas the cheque payment for per bigha of land was Rs.1,05,35, 040/-The A.O. was- of the view that the difference between Rs.9,00,000/- and Rs.1,05,35,040/- was paid in cash for acquisition of land, being the unaccounted cash payment for the purchase of such land. The A.O. also pointed out that the assessment of two partners of the appellant firm were reopened' and assessed. But, since the land was acquired was in the name of the appellant, the addition was required to be made for unexplained cash payment in the hands of the appellant. The A.O., thus, made an addition of unexplained cash payment Rs.2,01,81,390/- for 34.79 bighas of land. The copy of the relevant page of seized material is also part of the assessment order, being at page no. 4 of this order by the AO. I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 11 4. Against the said order, assessee preferred first appeal before the ld. CIT(A) and ld. CIT(A) allowed the appeal of the assessee. 5. We have gone through the relevant record and in the impugned order. In this case a search was carried out in the case of Shri Pareshbhai Babubhai Patel, Land Broker on 23.05.2008. During the course of proceedings certain documents/loose paper were found and seized as per Annexure A-5 Pages 72 & 73. It was noticed from these pages that the following land transaction was carried out @ Rs.9,00,000/- per bigha and payment from bank made of Rs. 1,05,35,040/- and remaining in cash and therefore assessment of partners were re-opened and assessed. However, since the land pertains to assessee firm the same addition is require to be made in the case of assessee and a show cause notice was issued to the assessee and it is mentioned that you have purchased land admeasuring 34.79 Vigha at Rs.3,13,16,430/-. You are requested to explain how much of this consideration is paid by way of cheque. In response to the said notice, assessee stated that We have purchased such land at Jantri Price during the financial year 2006-07. There was no rate of Rs.900000/- per Vigha at which transaction for purchase of land was executed by other purchaser during the same tenure and denied that no cash payment have been made and same paper is part of assessment order. This paper is in Gujarati language and does not contain any signature and date and word cash is nowhere mentioned on this seized document. In the decision of CBI vs. V.C. Shukla Hon’ble Supreme Court has held that it is not permissible to assess the undisclosed income in the absence of any other evidence on arbitrary basis and loose sheets cannot be considered as a conclusive evidence to make any addition towards undisclosed income and it is further held that “file containing loose sheets of papers are not books” and hence entries therein are not admissible u/s. 34 of the Evidence Act. In our considered opinion, such document has to be corroborated by any evidence sustainable in the eyes of law. As we can see in these documents, no signature and parties name have been mentioned, therefore, in our considered opinion, ld. CIT(A) has passed detailed and reasoned order. Therefore, we are not incline to interfere in the order passed by the ld. CIT(A). 6. In the result, the appeal filed by the Revenue is dismissed.” 8.1. On further appeal by the Revenue before Jurisdictional High Court in Tax Appeal No. 1372 of 2018 dated 19.02.2019 in the case of M/s. Sopan Industrial Infrastructure Park, the Hon’ble High Court dismissed the Revenue appeal observing as follows: “....6. A perusal of the order passed by the Commissioner (Appeals) reveals that he, after appreciating the material on record, has found that in the present case, the document has been seized from the premises of a third person and it is not established that it is written by the assessee. The I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 12 transaction in the document is not self-speaking and that the allegation that cash has been paid is not coming out from the document. Moreover, the document does not contain the name of the assessee, nor does it contain the signature of either of the parties of the assessee firm or of the person searched upon, namely Shri Paresh B. Patel. Moreover, the word “cash” is nowhere mentioned on the seized document. The Commissioner (Appeals) has, accordingly, found that the conclusion by the Assessing Officer that the balance amount is paid by cash, appears to be conjecture or interpolation, and that this conclusion is not evident from the seized document and/or subsequent investigation done. In the light of the above findings recorded by him, the Commissioner (Appeals) was of the view that no adverse inference is possible to be drawn as cited by the Assessing Officer and accordingly, deleted the addition of Rs.2,07,81,390/-. ............................ 8. Thus, the Commissioner (Appeals) as well as the Tribunal have recorded concurrent findings of fact to the effect that the document in question does not contain any signature and date, and the word “cash” is nowhere mentioned on the seized document. Placing reliance upon the decision of the Supreme Court in the case of C.B.I. v. V.C. Shukla, the Tribunal has held that it is not permissible to assess the undisclosed income in the absence of any other evidence on arbitrary basis and that loose sheets, cannot be considered as conclusive evidence to make any addition towards undisclosed income. 9. This court is of the view that having regard to the facts as emerging from the record as well as the contents of the seized documents, there is nothing to connect the assessee with the contents thereof. The relied upon documents have not been seized from the assessee and on the basis of some noting made by a third party, no conclusion could be drawn that the same pertain to the assessee, more so, when the seized documents nowhere refer to the assessee. Having regard to the material on record, this court does not find any infirmity in the concurrent findings of fact recorded by the Tribunal after appreciating the material on record, so as to give rise to any question of law, much less, a substantial question of law warranting interference. 10. The appeal, therefore, fails and is, accordingly, summarily dismissed.” 8.2. Thus the Ld. Senior Counsel pleaded that the Revenue appeal is liable to be dismissed. 9. We have given our thoughtful consideration and perused the materials available on record including the Paper Books and case laws filed by the parties. On careful perusal of the same, more I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 13 particularly, the seized loose paper namely Annexure-AS/5 in Page No. 72 & 73, the entries made therein does not refer any name of the parties, but the name of Pareshbhai B. Patel only referred and in Page No. 73 some entries relating to cash transactions referred therein which are as follows: “Cash Date Cheque 5,00,000/- 31/08/06 22,26,300/- -- 2,26,300/- 5,50,000/- 02/09/06 29,00,000/- 22/09/06 10,50,000/- 26/09/06 25,00,000/- 07/10/06 15,00,000/- 20/10/06 10,19,430/- 07/12/06 1,00,19,430/- 1,00,19,430/- Cash 22,26,300/- Cheque” 9.1. From perusal of this loose paper in Page No. 73, the cash transactions are between 31.08.2006 to 17.12.2006 which pertaining to the Assessment Year 2007-08. Whereas the purchase of lands by the assessees in the name of the Firm were between 17.04.2008 to 08.10.2008 which is clearly falls under the Assessment Year 2009-10. However the Ld AO determined the cash and cheque ratio as 4.5 : 1 based on this seized loose sheets which has no relevance to the purchase of agricultural lands by the assessee in the name of its Partnership Firm VIDC. On perusal of the various Sale Deeds executed in the names of the assessees herein, the original land owners only executed the Sale Deed in favour of the assessee on behalf of the Firm VIDC and the Partnership Firm VIDC had made cheque payments to the sellers of I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 14 the land, which is reflecting in the various Sale deeds executed at the office of the Sub Registrar. Furthermore, the Partnership Firm VIDC sold few part of the lands during the Asst. Year 2012-13 for a consideration of Rs.5,07,86,510/- which is clearly shown in the Profit and Loss account of the firm as business profit and offered for taxation while filing the Return of Income in Form ITR-5. Further the sale consideration received by the Firm VIDC is reflected in its bank account. This apart the very same seized material is used by the department in the case of M/s. Sopan Industrial Infrastructure Park relating to the Assessment Year 2007-08 wherein this Hon’ble Tribunal dismissed the Revenue appeal (cited supra) which is already extracted at Para 8 of this order. On further appeal by the Revenue before the Hon’ble Gujarat High Court in Tax Appeal No. 1372 of 2018 (cited supra), the Hon’ble High Court dismissed the Revenue appeal observing that there is nothing to connect the assessee with the contents of the seized material. Loose sheets was not seized from the assessee but on the basis of some noting made by a third party (Pareshbhai B. Patel). No conclusion could be drawn that the same pertains to the assessee namely Sopan Industrial Infrastructure Park and no conclusion could be drawn that the same pertains to the assessee, more so, when the seized documents nowhere referred to the assessee. Thus Hon’ble High Court found that there is no infirmity in the concurrent findings of the fact recorded by the Tribunal after appreciating the materials on record. Thus no substantial question of law warranting interference and the appeal filed by the Revenue was accordingly dismissed. I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 15 10. Respectfully following the above judicial precedents by the Jurisdictional High Court of Gujarat, we have no hesitation in confirming the order passed by the Ld. CIT(A) who was deleted the addition made by the Assessing Officer. Thus the grounds raised by the Revenue is devoid of merits and the same is liable to be dismissed. 11. In the result, the appeal filed by the Revenue is hereby dismissed. ITA No. 2955/Ahd/2014 relating to the Asst Year 2008-09. 12. The facts in this case is also identical with that of ITA No. 1425/Ahd/2014 except change in figures and the asst year. Therefore the ratio of the decision rendered in ITA No.1425/Ahd/ 2014 will be squarely applicable to the facts of the present case. Thus the appeal filed by the Revenue is hereby dismissed. IT(SS)A No. 39, 41, 259/Ahd/2015 filed by the Revenue and CONos.52, 51/Ahd/2015 & 21/Ahd/2016 filed by the Assessee: 13. These appeals are filed by the Revenue against the remaining three Partners namely Shri Jayesh Ravjibhai Dobariya, Shri Rajesh Rameshbhai Patel and Shri Jagdish Bhagwanji Chandarana. Corresponding Cross Objections filed by the above Assessees. The Grounds of Appeal raised by the Revenue in IT(SS)A No.41/ Ahd /2015 for A.Y. 2009-10 is as follows: I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 16 1. The Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.4,04,14.657/- made on account of unaccounted investment in land, despite material on record in support of the addition made by the AO 2. The Ld.CIT(A) has erred in law and on facts in holding that the land was owned by the firm M/s Vadsar Industrial Development Corporation and thereby deleting the made in the case of assessee partner, disregarding the registered purchase deed and detailed reasoning given in the assessment order. 3. The Ld.CIT (A) also failed to appreciate that though firm is a legal entity, it is not capable of taking any decisions on its own, but all the decisions relating to the running the affairs of the firm are taken by the partners and funds, whether accounted or unaccounted, are provided by the partners. 4 The Ld.CIT(A) has erred in law and on facts in deleting the addition despite his belief that such unexplained investment as mentioned in the seized document was in fact made (as mentioned in para 10 of the appellate order). 5. It is, therefore, prayed that the order of the CIT (A) be set aside and that of the A.O. be restored to the above extent. 13.1. The Grounds of Cross Objection filed by the Assessee reads as under: 1. The Learned Commissioner of Income Tax (Appeals)-12, Ahmedabad after going through the details and submissions of the respondent, as well as following the appellate order rendered in the case of Shri Ghanshyambhai P. Hirpara, one of the partners of the firm M/s Vadsar Industrial Development Corporation wherein the Ld. CIT (A) has already deleted the addition of Rs.4,04,14,657/- made in respect of unexplained investment in agricultural lands situated at Village Moti Bhoyan for A.Y 2009-10, has rightly deleted the addition of Rs. 4,04,14,657/- in the case of Respondent 2. Your Respondent craves right to add, amend, alter, modify, substitute or delete all or any of the above grounds of cross objection. 14. The Ld.CIT-DR Shri Kamlesh Makwana, appearing for the Revenue supported the order passed by the Assessing Officer. Per Contra, ld.counsel for the assessee Shri Dhiren Shah supported the order passed by the CIT(A) and submitted that issue is squarely I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 17 covered in another partner’s case; namely, Shri Ghanshyam P.Hirpara. 15. We have given our thoughtful consideration and perused the material and paper-book filed by the assessee. The additions made in the above cases are the remaining three Partners of the Firm VIDC wherein their respective 1/4 th shares made addition. For the detailed discussions, we have made in Paragraph No.9 of this order is squarely applicable to the facts of the present cases of the three assessees. Applying the same ratio, the appeals filed by the Revenue are devoid of merits and the same is liable to be dismissed. 16. The Cross Objections filed by the Assessees are in support of the order passed by the Ld. CIT(A). Therefore the same are also hereby dismissed. 17. In the consolidated result, the appeals filed by the Revenue are hereby dismissed and the Cross Objections filed by the Assessee are also dismissed. Order pronounced in the open court on 09-02-2024 (WASEEM AHMED) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 09/02/2024 I.T.A Nos. 2955, 1425/Ahd/2014 & ors. A.Ys. 2008-09 & 2009-10 Page No ACIT Vs. Shri Ghanshyam P. Hirpara and ors. 18 आदेश े / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, //True Copy// उप /सहायक पंजीकार आयकर पी य कर , हमदाबाद
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