M/s. Medhbhuti Complex Pvt. Ltd., Ahmedabad V. The ITO, Ward-2(1)(4), Ahmedabad

CO 76/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9135 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 09-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 09-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 271(1)(c)

Judgement Text

- , - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIPKUMAR KEDIA, ACCOUNTANT MEMBER SR. NO. ITA NO./ASSTT.YEAR APPELLANT RESPONDENT 1-2 ITA NO.765/AHD/2017 WITH CO NO.73/AHD/2017 ASSTT.YEAR 2008-09 M/S.MAITRIK BUILDCON P.LTD. GANESH CORPORATE HOUSE 100 FT. HEBTATPUR THALTEJ ROAD NR.SOLA BRIDGE, OFF: S.G.HIGHWAY AHMEDABAD. PAN : AADCM 2570 M ITO, WARD- 2(1)(4) AHMEDABAD. 3-4 ITA NO.766/AHD/2017 WITH CO NO.74/AHD/2017 ASSTT.YEAR 2008-09 M/S.MADHUJ REALITY P.LTD. PAN : AADCM 2568 F ITO, WARD- 2(1)(4) AHMEDABAD. 5-6 ITA NO.767/AHD/2017 WITH CO NO.75/AHD/2017 ASSTT.YEAR 2008-09 M/S.MARTAND ESTATE P.LTD. PAN : AADCM 2572 K ITO, WARD- 2(1)(4) AHMEDABAD. 7-8 ITA NO.768/AHD/2017 WITH CO NO.76/AHD/2017 ASSTT.YEAR 2008-09 M/S.MEDHBHUTI COMPLEX P.LTD. PAN : AADCM 2569 E ITO, WARD- 2(1)(4) AHMEDABAD. REVENUE BY : SMT.SMITI SAMANT, SR.DR ASSESSEE BY : MS. NUPUR SHAH, AR / DATE OF HEARING : 08/07/2019 / DATE OF PRONOUNCEMENT: 9/07/2019 !' / O R D E R PER BENCH: THESE ARE FOUR APPEALS BY THE REVENUE AGAINST SEPAR ATE ORDERS OF THE LD.CIT(A)-4, AHMEDABAD OF EVEN DATED I.E. ITA NO.765/AHD/2017 AND 3 OTHERS 2 18.1.2017 IN THE CASES OF THE ABOVE FOUR ASSESSEES. ON RECEIPT OF NOTICE ON THE APPEALS OF THE REVENUE, ASSESSEE HAVE ALSO FILED RESPECTIVE CROSS OBJECTIONS AS NUMBERED IN THE CAUS E TITLE. SINCE IN ALL THESE APPEALS AND COS COMMON ISSUE IS INVOLV ED, ALL OF THEM ARE DISPOSED OF BY THIS SINGLE ORDER. 2. GROUNDS RAISED BY THE REVENUE IN ALL THESE APPEA LS ARE IDENTICALLY WORDED EXCEPT VARIATION IN QUANTUM OF P ENALTY. SOLE GRIEVANCE OF THE REVENUE IN THESE APPEALS IS THAT T HE LD.CIT(A) HAS ERRED IN DELETING PENALTY IMPOSED BY THE AO UND ER SECTION 271(1)(C) OF THE INCOME TAX ACT. THE QUANTUM OF PE NALTY IMPOSED BY THE AO AND DELETED BY THE CIT(A) QUA EACH ASSESSEE IS AS UNDER: I) M/S.MAITRIK BUILDCON P.LTD. : RS.48,60,580/- II) M/S.MADHUJ REALTY P.LTD. : RS.48,77,680/- III) M/S.MARTAND ESTATE P.LTD. : RS.39,71,510/- IV) M/S.MEDHBHUTI COMPLEX P.LTD. : RS.53,66,180/- 3. AS WE OBSERVED ABOVE, FACTS ON ALL THESE CASES A RE IDENTICAL AND ORDERS OF THE LD.CIT(A) UNDER CHALLENGE ARE ALS O VERBATIM SAME EXCEPT CHANGE IN THE AMOUNTS OF PENALTY. THER EFORE, WE TAKE THE FACTS AS STATED IN THE CASE OF M/S.MAITRIK BUILDCON P.LTD., IN ITA NO.765/AHD/2017 FOR THE SAKE OF CONVENIENCE. 4. LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET S UBMITTED THAT THE LD.CIT(A) HAS DELETED THE PENALTY ON THE GROUND THAT ADDITIONS MADE BY THE AO ON WHICH THIS PENALTY HAS BEEN LEVIE D STANDS DELETED BY THE ITAT, AND THEREFORE, PENALTY IS NOT IMPOSABLE. THE ITA NO.765/AHD/2017 AND 3 OTHERS 3 LD.DR WAS UNABLE TO DISPUTE THIS CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE. 5. IT EMERGES OUT FROM THE RECORD THAT AN ADDITION OF RS.2,14,50,039/- WAS MADE TO THE TOTAL INCOME OF TH E ASSESSEE ON GROUND THAT THE ASSESSEE HAS RECEIVED CASH ON SALE OF LAND. THIS WAS PROPORTIONATE SHARE. IT FURTHER EMERGES OUT TH AT THE ASSESSEE-GROUP HAS RECEIVED RS.15.07 CRORES AS ON-M ONEY OUT OF WHICH PROPORTIONATE SHARE OF THE ASSESSEE WAS RS.2, 14,50,039/-. THIS ADDITION WAS DELETED BY THE TRIBUNAL VIDE ORDE R 12.5.2016. THE LD.CIT(A) HAS REPRODUCED THE FINDING OF THE TRI BUNAL IN PARA 5.1 OF THE IMPUGNED ORDER. IT READS AS UNDER: 'IN THIS BACKGROUND, WE FIND THAT THE ADDITION HAS BEEN MADE ON THE ALLEGATION THAT THE ASSESSEE-GROUP HAS RECEIVED RS. 15.07 CRORES AS DISCUSSED ABOVE AS ON-MONEY FRO M SALE OF LAND IN QUESTION FROM CCPL. AS DISCUSSED ABOVE, IN THE CASE OF DR. KEYUR PARIKH AND OTHERS IN IT(SS)A NOS. 604/AHD/2011, IT HAS BEEN HELD BY THE ITAT THAT THE RE WAS NO EVIDENCE IN POSSESSION OF REVENUE:; TO HOLD THAT THE ASSESSEE MADE UNEXPLAINED INVESTMENTS TOWARDS THE PURCHASE OF LAND IN QUESTION. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE ON BEHALF OF THE REVENUE. SINCE TH E ASSESSEE IS A RECIPIENT IN RESPECT OF THE SAME PROP ERTY AND IT HAS BEEN HELD BY ITAT THAT IN CASE OF PURCHASER NO UNEXPLAINED INVESTMENT HAS BEEN MADE IN RESPECT OF SAID PROPERTY AS DISCUSSED ABOVE. SO, THE ADDITION ON RE CEIVING ON-MONEY IN QUESTION IN THE HANDS OF THE ASSESSEE-G ROUP ARE NOT JUSTIFIED UNLESS THERE IS EVIDENCE ON THE ISSUE IN FAVOUR OF REVENUE WHICH IS MISSING IN THIS CASE. MOREOVER, REVENUE AUTHORITIES IGNORED THE FACT THAT ONE OF COMMON DIR ECTORS OF ASSESSEE COMPANIES, NAMELY -MR. SHEKHAR PATEL HAD CATEGORICALLY DENIED HAVING RECEIVED CASH AMOUNT ON THE SALE OF LAND IN QUESTION. REVENUE HAS IGNORED THE SAME W HICH IS NOT JUSTIFIED. ASSESSEES HAVE NOT BEEN PROVIDED CRO SS EXAMINATION OF PERSON WHO IS ALLEGED TO HAVE MADE P AYMENT OF CASH OF RS. 15.07 CRORES TO THE ASSESSEES WHICH IS AGAIN NOT JUSTIFIED. TAKING ALL THE FACTS AND CIRCUMSTANC ES OF THE ITA NO.765/AHD/2017 AND 3 OTHERS 4 CASE, THE ADDITION MADE BY THE REVENUE IN ALL THESE GROUPS ALLEGED TO BE RECEIVED FROM CCPL DOES NOT SURVIVE A ND SAME IS DIRECTED TO BE DELETED. THIS TAKE CARE OF MAIN O FF ON MONEY IN LAND DEAL IN CASES OF ALL THESE ASSESSEE O F THIS GROUP.' 6. WE FIND THAT SUB-CLAUSE (III) OF SECTION 271(1)( C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEM PLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, PAYABLE BY HIM, WHICH SHALL NOT BE LESS THAN , BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF CONCEALMENT OF INCOME OR FURNISHING OF IN ACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIF ICATION OF THE PENALTY IS DEPENDED UPON THE ADDITION MADE TO THE I NCOME OF THE ASSESSEE. IN THE PRESENT CASE, THE ADDITION HAS BE EN DELETED BY THE TRIBUNAL VIDE ORDER DATED 12.5.2016 CITED SUPRA , AND THEREFORE PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS NOT LIMB TO STAND. THE LD.CIT(A) HAS RIGHTLY CANCELLED THE PENALTY, WH ICH WE CONFIRM AND THE GROUND OF THE REVENUE CHALLENGING IMPUGNED PENALTY IS REJECTED. THIS OBSERVATION AND FINDINGS OF OUR ARE ALSO EQUALLY APPLICABLE TO THE CASES OF OTHER THREE ASSESSEES. THEREFORE, APPEALS OF THE REVENUE IN ALL THE CASES ARE DISMISS ED. 7. NOW COMING TO THE CROSS OBJECTIONS FILED BY THE ASSESSEES, WE DO NOT FIND ANY MERIT IN THE CO, BECAUSE SUB-SEC TION 4 OF SECTION 253 AUTHORIZES THE RESPONDENT TO FILE CO AG AINST ANY PART OF ORDER IMPUGNED IN THE APPEAL. IN THE PRESENT CO , THE ASSESSEE HAS NOT SHOWN ITS GRIEVANCES AGAINST ANY PART OF TH E CIT(A)S ORDER; IN OTHER WORDS, CROSS-OBJECTOR HAS TO DEMONS TRATE HIS GRIEVANCE AGAINST ANY PART OF THE IMPUGNED ORDER. A PERUSAL OF THE GROUNDS TAKEN IN THE CO IT NOWHERE REVEALS ANY SPECIFIC ITA NO.765/AHD/2017 AND 3 OTHERS 5 GRIEVANCE OF THE ASSESSEE; ALL GROUNDS ARE IN SUPPO RT OF ORDER OF THE LD.CIT(A). THEREFORE, COS OF THE ASSESSEES ARE NOT MAINTAINABLE. 8. IN VIEW OF THE ABOVE DISCUSSION, ALL APPEALS OF THE REVENUE AS WELL AS COS OF THE ASSESSEES, ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 9 TH JULY, 2019. SD/- SD/- (PRADIPKUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER