ITO 5(1)(1), MUMBAI V. AKANSHA HOMES P.LTD, MUMBAI

ITA 1077/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7577 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 02-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice; Additional evidence; Cost of acquisition; Condonation of delay
• Section: 69C; 143(3); 133(6); 131; 68

Judgement Text

I.T.A. NO.1077/MUM/2016 1 A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.1077/MUM/2016 ( / ASSESSMENT YEAR: 2010 - 11 ) ITO 5(1)(1) R.NO. 570, 5 TH FLOOR, AAYAKAR BHAVAN, M.K ROAD, MUMBAI 400020 / V. AKANSHA HOMES P. LTD, AMBIKA NIWAS, CHS, OPP. 8 NO. SOCIETY , NEAR GANESH MANDIR, VERSOVA , MUMBAI 400053 ./ PAN : AAHCA2510K ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY : SHRI. RAJAT MITTAL , DR ASSESSEE BY: NONE / DATE OF HEARING : 28 - 03 - 2018 / DATE OF PRONOUNCEMENT : 1 6 - 04 - 2018 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE R EVENUE, BEING ITA NO. 1077/MUM/2016 FOR ASSESSMENT YEAR 2010 - 11 IS DIRECTED AGAINST THE APPELLATE ORDER DATED 25.11.2015 PASSED BY LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 10 , MUMBAI (HEREINAFTER CALLED 'THE CIT (A) ') , THE APPELLATE PROCEEDINGS HAVE ARISEN BEFORE LEARNED CIT(A) AGAINST THE ASSESSMENT ORDER DATED 05 - 03 - 2013 PASSED BY LEARN ED ASSESSING OFFICE ( HEREINAFTER CALLED THE AO) U/S 143(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED 'THE ACT') FOR ASSESSMENT YEAR 2010 - 11 . 2. THE G ROUNDS OF APPEAL RAISED BY THE R EVEN U E IN THE MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED 'THE TRIBUNAL') READ AS UNDER - I.T.A. NO.1077/MUM/2016 2 '1 (A). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN HOLDING THAT THE SOURCES OF THE INVESTMENT MADE BY THE ASSESSEE TOWARDS PURCHASE OF FOUR RESIDENTIAL FLATS ARE FULLY SUBSTANTIATED. 1 (B). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1,37,71,100 / - MADE BY THE ASSESSING OFFICER U/S 68/69C WITHOUT APPRECIATING THAT THE ASSESSEE HAD FILED TO ESTABLISH THE GENUINENESS OF THE LOANS TAKEN FROM THREE PARTIES AND ALSO THE CREDITWORTHINESS OF THE THREE PARTIES TO ADVANCE THE LOAN TO THE ASSESSEE COMPANY. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE ORDER OF THE AO BE RESTORE D. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD ANY OTHER GROUNDS WHICH MAY BE NECESSARY.' 3. THE ASSESSEE FILED ITS RETURN OF INCOME IN WHICH BUSINESS WAS DECLARED TO BE OF BUILDERS BUT LATER DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, THE ASSESSEE FILED LETTER STATING THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF INVESTMENT IN RESIDENTIAL AND COMMERCIAL PROPERTIES . THE ASSESSEE HAD SHOWN STOCK - IN - PROGRESS OF RS.1,37,71,100/ - IN THE RETURN OF INCOME FILED WITH REVENUE. THE SAID STOCK - IN - PROGRESS WAS SHOWN IN PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FILED WITH REVENUE. THE ASSESSEE DURING ASSESSMENT PROCEEDINGS SUBMITTED THAT IT INVESTED RS. 1,37,71,100/ - TOWARDS PURCHASE OF FOUR RESIDENTIAL FLATS SITUATED AT NEBULA EMPR ESS, CTS NO. F/1533, 5 TH ROAD, KHAR(W), MUMBAI WHICH COMPRISED PURCHASE COST OF RS. 1,12,00,000/ - AND STAMP DUTY AND REGISTRATION COST OF RS. 25,71,100/ - . THESE FLATS WERE REFLECTED IN AIR INFORMATION WITH REVENUE. THESE FLATS WERE PURCHASED BY ASSESSEE FROM GURUNANAK DEVELOPERS INDIA P. LTD., THE DETAILS OF WHICH WAS SUBMITTED BY ASSESSEE AS UNDER: - SR.NO. FLAT NO. DATE OF AGREEMENT AGREEMENT VALUE STAMP DUTY & REGISTRATION . TOTAL 1 901 30.12.09 28,00,000/ - 6,42,775/ - 34,42,775/ - 2 902 30.12.2009 28,00,000/ - 6,42,775/ - 34,42,775/ - 3 1001 30.12.2009 28,00,000/ - 6,42,7757 - 34,42,775/ - 4 1002 30.12.2009 28,00,000/ - 6,42 /: 775/ - 34,42,775/ - I.T.A. NO.1077/MUM/2016 3 THESE FOUR FLATS WERE SHOWN BY THE ASSESSEE AS CLOSING WORK - IN - PROGRESS INSTEAD OF INVESTMENTS WHICH WAS LATER CORRECTED BY THE ASSESSEE BY FILING REVISED STATEMENT OF ACCOUNT . THE INFORMATION WAS CAPTURED BY THE REVENUE FROM THE AIR INFORMATION WHEREIN THE DATE AND VALUE OF TRANSACTIO N REPORTED WAS 22/2/2010 OF RS. 1,26,02,500/ - WHEREIN FOUR ENTRIES WERE IN RESPECT OF 4 FLATS 30/12/2009 OF RS. 28,00,000/ - EACH PURCHASES AND AGAIN 1/1/2010 OF RS. 1,26,02,500/ - 4 ENTRIES IN RESPECT OF 4 FLATS . THESE INFORMATION CAPTURED FROM AIR WAS FURN ISHED BY AO TO THE ASSESSEE. THE ASSESSEE EXPRESSED ITS INABILITY TO RECONCILE THE ENTRIES. THE AO MADE ENQUIRIES FROM THE JT. - SUB - R EGISTRAR , SUBURBAN MAHARASHTRA, BANDRA BY ISSUING NOTICE U/S. 133(6) DATED 29 - 10 - 2002 FROM WHERE THE REGISTRATION DATA WAS GENERATED. T HE REGISTRAR SUBMITTED THAT THE FLAT REGISTRATION WAS ENTERED ON 01.01.2010 BUT WHEN SOME DISCREPANCY WAS NOTED IN THE STAMP DUTY , THE REGISTRATION WAS CANCELLED ON THE SAME DATE. IT WAS ALSO STATED BY SUB - R EGISTRAR THAT THE STAMP DUTY PAID PER FLAT WAS RS. 30,700/ - INSTEAD OF RS. 6,13,075/ - PER FLAT AND ASSESSEE TRIED TO EVADE STAMP DUTY BY PAYING RS. 30,700/ - INSTEAD OF RS. 6,13,075/ - PER FLAT. IT WAS ALSO OBSERVED BY THE AO FROM THIS INFORMATION THAT THE MARKET VALUE OF EACH FLAT WAS RS. 1,26,02,500/ - INSTEAD OF RS. 28,00,000/ - AS DECLARED BY THE ASSESSEE. O N BEING ASKED BY THE AO ABOUT SOURCES OF MAKING INVESTMENT IN THESE FLATS , THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD OBTAINED LOAN OF RS. 1,40,74,000/ - FROM DIRECTORS AND SHAREHOL DERS. THE ASSESSEE SUBMITTED THAT ASSESSEE HAS DUE TO OVERSIGHT SHOWN THE FLATS WRONGLY AS CLOSING WORK - IN - PROGRESS AND ALSO THE ASSESSEE SUBMITTED THAT IT SHOWED LOANS OF RS. 1,40,74,000/ - AS SUNDRY CREDITORS WRONGLY WHICH WERE CORRECTED IN THE REVISED ST ATEMENT OF ACCOUNTS . THE ASSESSEE FILED RECASTED BALANCE SHEET AS AT 31 - 3 - 2011 AND 31 - 3 - 2012. N OTICES U/S. 133(6) WERE ISSUED BY AO TO GURUNANAK DEVELOPERS INDIA P. LTD., WHICH WAS RETURNED BY THE POSTAL AUTHORITY WITH THE REMARKS LEFT . O N BEING ASKED BY THE AO , THE ASSE SSEE SUBMITTED THAT THE BUILDER GURUNANAK DEVELOPERS INDIA PRIVATE LIMITED IS ABSCONDING. THE AO OBSERVED FROM THE DETAILS OF UNSECURED LOANS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAS RAISED LOANS FROM THE FOLLOWING PERSONS: TOTAL 1,37,71,100/ - I.T.A. NO.1077/MUM/2016 4 I) JAYESH HIRLAL GOTHI RS. 12,00,000/ - II) RAMESH H. PATE L (ONE OF THE DIRECTOR) RS. 72, 74,000/ - III) DINESH K. PATEL (ONE OF THE DIRECTOR) RS. 56 , 00,000/ - RS. 1,40,74,000/ - THE AO DOUBTED THE SOURCES OF THE FUND RAISED BY THE ASSESSEE TO MAKE INVESTMENT IN THESE FOUR FLATS . ON PERUSAL OF THE LENDERS BANK STATEMENTS, IT WAS OBSERVED BY THE AO THAT IMMEDIATELY BEFORE GIVING LOANS TO THE ASSESSEE, THE LENDERS RECEIVED CREDITS IN THEIR BANK ACCOUNT OF EQUIVALENT AMOU NT LENT TO THE ASSESSEE FROM THIRD PARTIES. THE AO HELD THAT THESE ARE COLOURABLE DEVICES AND AS THE ASSESSEE COULD NOT PRODUCED GENUINENESS OF TH E TRANSACTIONS AND CIRCUITOUS ROUTE HAD BEEN ADOPTED B Y THE ASSESSEE TOWARD INTRODUCING HIS OWN BLACK MONEY I N THE GARB OF UNSECURED LOANS . THE NOTICES U/S. 133(6) SENT TO THE BUILDER GURUNANAK DEVELOPERS INDIA P. LTD. ALSO RET URNED UNSERVED AS THE BUILDER WAS ABSCONDING . THE AO DEPUTED INSPECTOR TO FIND ABOUT DETAILS OF THE BUILDER BUT THE INSPECTOR REPORTED THAT THERE IS NO SUCH BUILDER AT THE GIVEN ADDRESS. THE AO CALLED FOR THE FOLLOWING INFORMATION FROM THE ASSESSEE AS TO THE SOURCES OF THE FUND: - I) COPY OF RETURN OF INCOM E, COMPUTATION OF INCOME, P&L A/ C AND BALANCE SHEET FOR A.Y. 2010 - 11 OF R EAL GOLD HOMES PVT. LTD. II) COPY OF RETURN OF INCOME, COMPUTATION OF INCOME, P&L A/C AND BALANCE SHEET FOR A.Y.2010 - 11 OF ASTHA DEVELOPERS PVT. LTD. III) SHAREHOLDING PATTERN OF AKANSHA HOMES PVT. LTD. AND REAL GOLD HOMES PVT. LTD. AND GOLDEN HOMES PVT. LTD. IV) COPY OF RETURN OF INCOME, COMPUTATION OF INCOME, P&L A/C & BALANCE SHEET FOR A.Y.2010 - 11 OF GOLDEN HOMES PVT. LTD., YOUR SISTER CONCERN. THE ASSESSEE IN REPLY SUBMITTED FOLLOWING DETAILS: - 1. RE AL GOLD HOME MART PVT. LTD.: PAN: AAECR0836N SHAREHOLDING PATTEN A) SHRI RAJESH H. GOTHI 5,000/ - SHARES OF RS. 10/~ EACH B) SHRI JAYESH H.GOTHI 5,000/ - SHARES OF RS. 10/ - EACH AND ALSO FURNISHED COPY OF BALANCE SHEET AND P&L A/C FOR THE YEAR ENDED 31.3.2010. ON PERUSAL OF THE SAID BALANCE SHEET, IT IS NOTICED THAT THE SAID COMPANY HAS SHOWN SHARE CAPITAL OF RS.1,00,000/ - , CLOSING WIP OF RS.70,80,739/ - AND HAS TAKEN UNSECURED LOAN FROM OTHER COMPANIES OF RS.41,21,670/ - . THE ACTIVITIES O F THIS COMPANY IS ALMOST SIMILAR TO THAT OF THE ASSESSEE COMPANY IN TERMS OF FLOW OF FUNDS. 2. IN REPLY TO COPY OF RETURN OF INCOME OF ASTHA DEVELOPERS P. LTD. - THE AS SESSEE STATES THAT, ' DURING TH E F.Y. 2009 - 10 , PAYMENT OF RS. 1,01,500/ - IS MADE BY JAY ESH HIRALAL GOTHI BY CHEQUE DATED 19.11.2009 ON HIS SAVINGS A/C NO. 08770100017680 WITH UCO BANK I.T.A. NO.1077/MUM/2016 5 TO AASHTA DEVELOPERS & INVESTMENT. THIS PAYMENT IS MADE TOWARDS REIMBURSEMENT OF EXPENSES INCURRED BY AASHTA DEVELOPER & INVESTMENT PROP, DILIP S. KASAT WHO IS ASSESSED TO TAX UNDER PAN : AACPK7896C. ASSESSEE HAS NO BUSINESS TRANSACTION WITH ASTHA DEVELOPERS & INVESTMENT. 3. IN REPLY TO COPY OF RETURN OF INCOME AND BALANCE SHEET OF GOLDEN HOMES PVT. LTD. ASSESSEE'S SISTER CONCERN, THE ASSESSEE REPLIED STATING THAT ' IN THE LETTER BEARING NO. 394/2012 DATED 15/10/2012, AT SR. NO, 4, THE DETAILS OF SISTER CONCERN THROUGH OVERSIGHT ARE TYPED AS GOLDEN HOME PVT. LTD. INSTEAD OF THE CORRECT NAME OF REAL GOLD HOME MART. PVT. LTD. THE ASSESSE E WAS ASKED BY AO TO PRODUCE THE PARTIES CONCERNED BUT THE ASSESSEE FAILED TO PRODUCE THE PARTIES AND ALSO IN THE OPINION OF THE AO THE ASSESSEE ALSO COULD NOT RECONCILE THE DIFFERENCE BETWEEN THE MARKET VALUE OF THE PROPERTY OF RS. 1,26,02,500/ - ADOPTED BY SUB - REGISTRAR AND REGISTERED VALUE OF PROPERTY OF EACH FLAT OF RS. 28,00,000/ - . THE AO HELD THAT THE ASSESSEE WAS UNABLE TO PROVE THE GENUINENESS OF TRANSACTION AND IDENTITY W.R.T. FOUR FLATS PURCHASED BY THE ASSESSEE AND THE AO TREATED THE ENTIRE AMO UNT OF RS. 1,37,71,100/ - AS UNEXPLAINED INVESTMENT U/S. 69/69C , VIDE ASSES SMENT ORDER DATED 05 - 03 - 2013 PASSED U/S 143(3). 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 05 - 03 - 2013 PASSED U/S 143(3) , T HE ASSESSEE FILED FIRST APPEAL BEFORE THE LEARNED CIT( A ) , WHO ACCEPTED THE CONTENTION S OF THE AS SESSEE ON THIS ISSUE VIDE APPELLATE ORDER DATED 25 - 11 - 2015 PASSED BY LEARNED CIT(A). 5 . AGGRIEVED BY THE APPELLATE ORDER DATED 25 - 11 - 2015 PASSED BY LEARNED CIT(A), THE R EVENUE HAS COME IN AN APPEAL BEFORE THE TRIBUNAL . N ONE APPEARED ON BEHALF OF THE ASSESSEE . WE HAVE OBSERVED THAT IT IS STATED IN THE ORDER SHEET THAT THE REVENU E HAS FILED AN APPEAL ON 02.03.2016 AND THE LD. CIT - A HAS PASSED APPELLATE ORDER ON 25.11.2015 IN FORM NO. 36 AN D THERE IS A DELAY OF 38 DAYS IN FILING THIS APPEAL WHILE NO CONDONATION OF DELAY APPLICATION HAS BEEN FILED BY REVENUE . I T IS MENTIONED IN FORM NO. 36 THAT THE APPELLATE ORDER PASSED BY LEARNED CIT(A) WAS RECEIVED ON 25.11.2015 RATHER THE SAME WAS THE D ATE OF THE APPELLATE ORDER PASSED BY LEARNED CIT(A) . HOWEVER, IN THE AUTHORISATION MEMO SI G N ED BY LD. SHRI. SUMAN T SINHA, PRINCIPAL COMMISSIONER OF INCOME TAX - 5 , IT IS CLEARLY MENTIONED THAT THE APPELLATE ORDER OF LEARNED CIT(A) WAS RECEIVED ON 04 - 01 - 201 6 AND LAST DATE OF FILING APPEAL IS 03 - 03 - 2016 , WHI CH IS REPRODUCED HERE UNDER: - OFFICE OF THE I.T.A. NO.1077/MUM/2016 6 PR. COMMISSIONER OF INCOME TAX - 5, MUMBAI ROOM NO, 559, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020. TELEPHONE NO. : 022 - 22015670 NO.PR.CIT - 5/HQ/JUDL./CIT(A)/ 175/15 - 16_____________D ATE : - 29. 02.2016 AUTHORISATION MEMO I HEREBY DIRECT THE ASSESSING OFFICER I.E. ITO - 5(1)(1), MUMBAI TO FILE AN APPEAL TO THE APPELLATE TRIBUNAL, MUMBAI AGAINST THE ORDER DATED 25.11.2015 PASSED BY THE CIT(A) - 10, MUMBAI IN APPEAL NO. CIT(A) - 10/ITO 5(1)(1)/31/2013 - 14 FOR THE ASSESSMENT YEAR 2 010 - 2011 IN THE CASE OF M/S. AKANSHA HOMES PVT. LTD. HAVING PAN - AAHCA2510K ON THE FOLLOWING GROUNDS: L(A). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN HOLDING THAT THE SOURCES OF THE INVESTMENT MADE BY THE ASSESSEE TOWARDS PURCHASE OF FOUR RESIDENTIAL FLATS ARE FULLY SUBSTANTIATED. L(B). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1,37,71,100/ - MADE BY THE ASSESSING OFFICER U/S 68 / 69C WITHOUT APPRECIATING THAT THE ASSESSEE HAD FAILED TO ESTABLISH THE GENUINENESS OF THE LOANS TAKEN FROM THREE PARTIES AND ALSO THE CREDITWORTHINESS OF THE THREE PARTIES TO ADVANCE THE LOAN TO THE ASSESSEE COMPANY. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE ORDER OF THE AO BE RESTORED. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD ANY OTHER GROUNDS WHICH MAY BE NECESSARY. A COPY OF CIT(A)'S ORDER WAS RECEIVED BY ME ON 04.01.2016. LAST DATE FOR FILING APPEAL IS 03.03.2016 . HOWEVE R, APPEAL SHOULD BE FILED IMMEDIATELY. SD/ - SEAL OF THE DEPARTMENT (SUMANT SINHA) PRINCIPAL COMMISSIONER OF INCOME TAX - 5, MUMBAI. TO: - ITO - 5(1)(1) , MUMBA I: IF THERE IS ANY CHANGE IN THE JURISDICTION OVER THIS CASE IT SHOULD BE BROUGHT TO THE NOTICE OF THIS OFFICE IMMEDIATELY. THE COPY OF THE ACKNOWLEDGEMENT OF FILING APPEAL INDICATING THE APPEAL NUMBER AND DATE OF FILING THE APPEAL SHOULD BE SUBMITTED TO T HIS OFFICE IMMEDIATELY AFTER FILING THE APPEAL. COPY TO: - 1. THE CIT(A) - 10, MUMBAI. 2. THE ADDL. CIT, RANGE - 5 (L), MUMBAI. I.T.A. NO.1077/MUM/2016 7 3. THE C.R.O. O/O. C.I.T.(DR), ITAT ADMN. MUMBAI. (MAHADEVAN A. M.K.) DCIT(JUDICIAL) TO PR.CIT - 5, MUMBAI. THUS, IN THE AUTHORISATION MEMO IT IS CLEARLY STATED THAT THE COPY OF LEARNED CIT - A APPELLATE ORDER DATED 25 - 11 - 2015 WERE RECEIVED BY PRINCIPAL COMMISSIONER OF INCOME TAX - 5, MUMBAI ON 04.01.2016 A ND LAST DATE FOR FILING APPEAL IS 03.03.2016. THUS , AS COULD BE SEEN FROM THE RECORDS, THE REVENUE HAS FILED THIS APPEAL ON 02.03.2016 WHICH IS WITHIN THE TIME STIPULATED IN STATUTE, HOWEVER IN COLUMN NO. 11 OF FORM NO 36 IT IS INADVERTENTLY STATED THAT THE DATE OF THE COMMUNICATION OF THE APPELLATE ORD ER OF LEARNED CIT - A IS 25.11.2015 WHICH IN - FACT IS THE DATE OF PASSING OF THE APPELLATE ORDER BY LEARNED CIT - A - 10 , MUMBAI . THESE FACTS WERE BROUGHT TO OUR NOTICE BY LD. DR WHO SUBMITTED THAT THERE IS NO DELAY IN FILING OF THIS APPEAL BY REVENUE . T HUS KE EPING IN VIEW AN INADVERTENT MISTAKE IN FORM NO. 36 , WE ARE OF THE CONSIDER ED VIEW THAT THERE IS NO DELAY IN FILING OF THIS APPEAL BY THE R EVENUE WITH TRIBUNAL AND WE HOLD THAT THE APPEAL WAS FILED IN TIME BY REVENUE WITH TRIBUNAL AND THE SAID APPEAL ST OOD ADMITTED . NOW , WE PROCEED TO ADJUDICATE THIS APPEAL ON MERITS. THE ASSESSEE HAD PURCHASE D FOUR FLATS FROM GURUNANAK DEVELOPERS INDIA P. LTD. , SITUATED AT NEBULA EMPRESS, CTS NO. F/1533, 5 TH ROAD, KHAR(W), MUMBAI WHICH COMPRISED PURCHASE COST OF RS. 1,12,00,000/ - AND STAMP DUTY AND REGISTRATION COST OF RS. 25,71,100/ - . , DETAIL ED HERE UNDER: - SR.NO. FLAT NO. DATE OF AGREEMENT AGREEMENT VALUE STAMP DUTY®ITN. TOTAL 1 901 30.12.09 28,00,0007 - 6,42,775/ - 34,42,775/ - 2 902 30.12.2009 28,00,0007 - 6,42,775/ - 34,42,775/ - 3 1001 30.12.2009 28,00,000/ - 6,42,775/ - 34,42,7757 - 4 1002 30.12.2009 28,00,000/ - 6,42 /: 775/ - 34,42,775/ - TOTAL 1,37,71,100/ - I.T.A. NO.1077/MUM/2016 8 FOR MAKING PAYMENTS TOWARDS TOTAL CONSIDERATION INCLUDING STAMP DUTY AND REGISTRATION CHARGES AGGREGATING TO RS. 1,37,71,100/ - , THE ASSESSEE HAS SHOWN FOLLOWING SOURCES OF FUNDS BEING RECEIVED AS LOANS FROM FOLLOWING PARTIES: - I) JAYESH HIRLAL GOTHI RS. 12,00,000/ - II) RAMES H H. PATEL (ONE OF THE DIRECTOR) RS. 72,74,000/ - III) DINESH K. PATEL (ONE OF THE DIRECTOR) RS. 5600,000/ - RS. 1,40,74,000/ - THE INFORMATION WAS CAPTURED BY AO FROM AIR INFORMATION SUBMITTED BY SUB - REGISTRAR, SUBURBAN, BANDRA AND AO MADE ENQU IRES WITH SUB - R EGISTRAR U/S. 133(6) AND THE SUB - R EGISTRAR IN REPLY STATED THAT THESE WERE FLATS WERE REGISTERED IN FAVOUR OF THE ASSESSEE ON 01.01.2010 BUT LATER THE REGISTRATION WAS CANCELLED BECAUSE THERE WAS UNDER PAYMENT OF STAMP DUTY WHEREIN THE ACTUA L STAMP DUTY WORK OUT TO RS. 6,13,075/ - PER FLAT INSTEAD OF RS. 30,700/ - PER FLAT AS WAS PAID BY THE ASSESSEE. THIS WORKED OUT TO THE MARKET VALUE OF EACH FLAT TO BE RS. 1,26,02,500/ - PER FLAT BUT THE SAME WAS SOUGHT TO BE REGISTERED AT THE VALUE OF RS. 28,00,000/ - PER FLAT . LATER, THE FLATS WERE REGISTERED IN FAVOUR OF THE ASSESSEE BY SUB - REGISTRAR AT VALUE OF RS. 28,00,000/ - PER FLAT AND FULL STAMP DUTY WAS PAID BY THE ASSESSEE AS P ER CIRCLE RATE ON VALUATION OF RS. 1,26,02,500/ - PER FLAT . THE ASSESSEE COULD NOT EXPLAIN THIS DIFFERENCE IN THE PURCHASE PRICE PER FLAT OF RS. 28,00,000/ - AND THE MARKET VALUE AS PER STAMP DUTY RATE OF RS. 1,26,02,500/ - PER FLAT . T HE AO WANTED TO MAKE EN QUIRES WITH THE BUILDER GURUNANAK DEVELOPERS INDIA P. LTD., BUT THE NOTICES U/S. 133(6) ISSUED TO BUILDER RETURNED UN - SERVED . THE BUILDER COULD NOT BE TRACED DESPITE INSPECTOR BEING DEPUTED BY LEARNED AO . THE ASSESSEE FURNISHED ADDITIONAL EVIDENCES DURING APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A) AND NEW ADDRESS OF THE BUILDER WAS FURNISHED. IT WAS INCUMBENT ON LEARNED CIT(A) TO HAVE CALLED FOR THE INFORMATION FROM THE BUILDER BY ISSUING NOTICES 133(6) OR SUMMONS U/S 131 AS TO IDENTIFY THE REASONS FOR SU CH VARIATIONS AS THE POWERS OF LEARNED CIT(A) IS CO - TERMINUS WITH THE POWERS OF THE AO . T HE AO ALSO WANTED TO MAKE FURTHER ENQUIRIES WITH RESPECT TO THE PERSONS WHO HAVE GIVEN LOAN TO THE ASSESSEE AND SOURCES THEREOF FROM WHERE THESE LOANS WERE GIVEN TO A SSESSEE BUT THE PARTIES WERE NOT PRODUCED BY THE ASSESSEE AND THE AO MADE THE ADDITION S ON THE GROUND THAT IDENTITY AND GENUINENESS COULD NOT BE PROVED. I.T.A. NO.1077/MUM/2016 9 THE LEARNED CIT - A ACCEPTED CONFIRMATIONS FILED BY THE ASSESSEE WITHOUT ANY VERIFICATION WHILE IT WAS I NCUMBENT ON HIM TO HAVE SATISFIED AFTER MAKING NECESSARY VERIFICATIONS / ENQUIRY ITSELF THAT THE ASSESSEE HAS NOT ADOPTED CIRCUITOUS ROUTE TO CHANNELIZE ITS OWN BLACK MONEY AS THE PAYMENTS MADE TO THE ASSESSEE BY LENDERS IS PRECEDED BY THE ENTRIES IN BANK ACCOUNT OF THE SIMILAR AMOUNTS AND FURTHER ENQUIRIES OUGHT TO HAD BEEN MADE BY LEARNED CIT(A) . U NDER THESE CIRCUMSTANCES , WE ARE OF THE CONSIDERED VIEW THAT THIS MATTER NEED TO BE RESTORED TO THE FILE OF THE AO FOR DENOVO ADJUDICATION OF THE ISSUES ON M ERITS IN ACCORDANCE WITH LAW AFTER MAKING PROPER AND NECESSARY ENQUIRIES /VERIFICATION S AND THE ASSESSEE BE DIRECTED T O PRODUCE NECESSARY DOCUMENTS /EVIDENCES IN SUPPORT OF ITS CONTENTIONS TO PROVE THE IDENTITY , CREDITWORTHINESS AND GENUINENESS OF THE SE TRANSACTION W.R.T. LOANS RAISED AND ALSO TO EXPLAIN VARIATION IN THE VALUATION OF THE FLATS BETWEEN AGREEMENT VALUE AND STAMP DUTY VALUATION BY AUTHORITIES . NEEDLESS TO SAY THAT THE AO SHALL PROVIDE PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW . WE ORDER ACCORDINGLY. 6 . IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 1 6 .04.2018 1 6 .04.2018 S D / - S D / - (JOGINDER SINGH ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 1 6 .04.2018 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH 6 . MASTER FILE I.T.A. NO.1077/MUM/2016 10 // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI