The ACIT, Central Circle-2, Surat V. Shri Ketan N. Intwala, Surat

ITA 1547/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62965 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-08-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 15-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C S ANJAHA
• Assessee Lawyers: SAPNESH SHETH
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure; Opportunity of being heard; Question of law; Block assessment; Retraction
• Section: 143(3); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD BBENCH BEFORE SHRI G.C.GUPTA, VICE-PR ESIDENT AND SHRI A.K. GARODIA, AC COUNTANT MEMBER ITA NO.1547-1551/AHD/2009 & ITA NO.1553/AHD/2009 ASSESSMENT YEAR:2006-07 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT V/S. V/S. V/S. V/S. V/S. SHRI KETAN N INTWALA, 14, NAVKETAN, DIWALIBAUG, ATHWAGATE, SURAT [PAN NO. AABPI 1641N] SHRI NAYAN N INTWALA, 14, NAVKETAN, DIWALIBAUG, ATHWAGATE, SURAT PAN NO.AABPI 1639L SMT. IIAXIBEN NAGINBHAI INTWALA, 14, NAVKETAN, DIWALIBAUG, ATHWAGATE, SURAT [PAN NO.AABPI 1642R] SMT. SEEMABEN N INTWALA, 14, NAVKETAN, DIWALIBAUG, ATHWAGATE, SURAT [PAN NO.AAABI 8677H] SHRI NAGINBHAI J INTWALA, 14, NAVKETAN, DIWALIBIAUG, ATHWAGATE, SURAT [PAN NO.AABPP 1640P] SHRI SANJAY P MOVALIA, RITURAJ, 38, HARISHNAGAR I.T.A.NO.1547-51 & 1553 /AHD/2009 2 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT V/S. SOCIETY, NR. TAPSIL SOCIETY, VARACHHA ROAD, SURAT [PAN NO.AEBPM 8137R] / APPELLANT .. / RESPONDENT /ASSESSEE BY SHRI SAPNESH SHETH, AR /REVENUE BY SHRI C.S. ANJAHA, SR- DR / DATE OF HEARING 21-08-2012 ! / DATE OF PRONOUNCEMENT 24-09-2012 ' / ORDER PER A.K.GARODIA, ACCOUNTANT MEMBER:- ALL THESE SIX (6) APPEALS ARE FILED BY THE REVENUE AND OUT OF THIS, FIVE APPEALS ARE IN THE CASE OF SELLER OF PROPERTY AND THE REMAINING ONE APPEAL IS IN THE CASE OF ONE OF VARIOUS BUYERS OF T HE PROPERTY FOR THE ASSESSMENT YEAR (AY) 2006-07 IN ALL THE CASES. IN T HE CASE OF FIVE SELLER OF THE PROPERTY, THE IMPUGNED ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-II, AHMEDABAD (CIT(A) FOR SHORT) IS DAT ED 02-02-2009, WHEREAS IN THE CASE OF ONE BUYER, SHRI SANJAY P MOV ALIA, IMPUGNED ORDER OF LD. CIT(A)-II, AHMEDABAD IS DATED 23-02-2009. AL L THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IT WAS AGREED BY BOTH SIDES THAT THE APPEALS IN THE CASE OF FIVE SELLERS CAN BE DECIDED ON THE BASIS OF FACTS IN THE CASE OF ANY ONE CASE, I.T.A.NO.1547-51 & 1553 /AHD/2009 3 BECAUSE FACTS AND THE ORDERS OF AUTHORITIES BELOW A RE IDENTICAL IN ALL THE FIVE CASES. HENCE, WE PROCEED TO EXAMINE THE FACTS AND ARGUMENTS IN THE CASE OF SHRI KETAN N INTWALA IN ITA NO.1547/AHD/200 9. 3. THE GROUND RAISED BY THE REVENUE ARE AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INCOME FROM SALE OF LAND. THE LD. CIT(A) WHILE DELE TING THE ADDITION HAS FAILED TO APPRECIATE THE FACTS THAT TH E UNACCOUNTED INCOME OF THE ASSESSEE HAS BEEN ADMITTED BY HIM IN HIS STATEMENT DURING THE COURSE OF SEARCH PROCEEDINGS. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITIONS SPECIFICALLY WHEN THE ASSESSEE AND ENTIRE GROUP HAD SOLD THE LAND BELONGING TO HIM AND HIS FAMILY MEMBERS TO VARIOUS PERSONS AND THE UNACCOUNTED INCOME FROM THE SALE OF LAND HAD BEEN ADMITTED BY THE MAIN PERSON OF THE GROUP IN HIS ST ATEMENT ON OATH DURING THE COURSE OF SEARCH ACTION. 4. BRIEF FACTS TILL THE ASSESSMENT STAGE ARE NOTED BY THE LD. CIT(A) IN PARA-2 OF HIS ORDER, WHICH IS REPRODUCED BELOW:- 2. THE ONLY GROUND OF APPEAL IS AGAINST THE ADDITI ON OF RS.28,87,446/- AS ALLEGED UNDISCLOSED ON MONEY RECE IPT. DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS IN THE CASE OF JIVRAJ GROUP IT WAS NOTICED THAT SHRI NAGIN INTWALA AND HI S FAMILY MEMBERS HAS SOLD VARIOUS LANDS AT VILLAGE NIMLIAI A ND VAHATTHA, TAL. JALALPUR, DIST. NAVSARI. IN HIS STATEMENT SHRI NAGIN INTWALA HAS ADMITTED THAT THEY HAVE SOLD LAND AT THE RATE OF RS .54/- PER SQ. MTRS. HOWEVER, THE DOCUMENTS WAS MADE AT THE RATE OF RS.1 5/- ONLY. THUS THE ASSESSEE HAS EARNED ON MONEY OF RS.39/- PE R SQ. MTR. THE TOTAL ON MONEY RECEIVED WAS RS.1,40,15,818/- AND AG REED TO OFFER IT FOR TAXATION IN THE HANDS OF HIMSELF AND FAMILY MEM BERS AND PAID TAX ON THE SAME. IN THE CASE OF THE ASSESSEE ON MON EY RECEIVED COMES TO RS.28,87,446/-. HOWEVER,, IN HIS RETURN FI LED HE DID NOT OFFER THE ON MONEY AS INCOME. THE AO HAS ADDED THIS AS INCOME SAYING THAT THE STATEMENT GIVEN IS A APIECE OF EVID ENCE AND THERE IS I.T.A.NO.1547-51 & 1553 /AHD/2009 4 NOTHING ON RECORD TO SHOW THAT SHRI NAGTINBHAI INTW ALA WAS UNDER STRESS AND WAS NOT IN SOUND MENTAL CONDITION WHILE GIVING THE STATEMENT AND THERE WAS NO EVIDENCE OF FORCE OR HAR ASSMENT. 5. BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A), WHO DELETED THIS ADDITION AND NOW REVENUE I S IN APPEAL BEFORE US. 6. LD. DR OF THE REVENUE SUPPORTED THE ASSESSMENT O RDER. HE FURTHER SUBMITTED THAT IN THIS CASE, SEARCH WAS CARRIED OUT ON 07-03-2006 AND STATEMENT OF SHRI NAGINIBHAI INTWALA, ONE OF THE FA MILY MEMBERS WAS RECORDED U/S. 131 OF THE INCOME-TAX ACT, 1961 (THE ACT HEREINAFTER) ON 29-03-2006. HE ALSO SUBMITTED THAT COPY OF STATEMEN T IS AVAILABLE ON PAPER BOOK PAGE NO. 3 TO 12 AND RETURN OF INCOME WA S FILED BY THE ASSESSEE ON 14-12-2007. HE FURTHER SUBMITTED THAT O RDER OF LD. CIT(A) IS NOT SUSTAINABLE AND HIS ORDER SHOULD BE REVERSED AN D ORDER OF ASSESSING OFFICER (AO) SHOULD BE RESTORED. AS AGAINST THIS, L D. AR OF THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT(A). HE ALSO PLACED R ELIANCE ON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDE RED IN THE CASE OF KAILASHBEN MANHARLAL CHOKSHI V. CIT (2010) 328 ITR 411 (GUJ) AND ALSO THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT V. P.V. KALYANASUNDARAM (2007) 294 ITR 49 (SC). HE FURTHER SUBMITTED THAT ALTHOUGH ADDITION WAS MADE IN THE CASE OF ONE OF TH E BUYERS OF THE PROPERTY I.E., SHRI SANJAY P MOVALIA WHICH IS ALSO DELETED BY LD. CIT(A) FOR WHICH ALSO THE REVENUE IS IN APPEAL AND THE APP EAL IS FIXED TOGETHER BUT NO SUCH ADDITION WAS MADE IN THE HANDS OF ANY O THER BUYER. IN SUPPORT OF THIS CONTENTION, HE SUBMITTED THE COPY OF THE AS SESSMENT ORDER PASSED U/S. 143(3) BY THE AO OF SHRI HIMMATBHAI M KHENI FO R THE SAME ASSESSMENT YEAR I.E. A.Y. 2006-07 ON 12-12-2008 AND SUBMITTED THAT NO I.T.A.NO.1547-51 & 1553 /AHD/2009 5 ADDITION HAS BEEN MADE IN THAT CASE, AND IN THE CAS E OF REMAINING BUYERS, THERE WAS NO SCRUTINY ASSESSMENT AND ASSESSMENT WAS COMPLETED BY WAY OF INTIMATION ISSUED U/S. 143(1) OF THE ACT AND NO ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT WAS MADE IN THOSE CASES. HE FURTHER SUBMITTED THAT HIMMATBHAI M KHENI IS ALSO ONE OF THE BUYERS A S CAN BE SEEN ON PAGE-6 OF THE PAPER BOOK. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIE S BELOW AND THE JUDGMENTS CITED BY LD. AR OF THE ASSESSEE. WE FIND THAT THE ADDITION WAS MADE BY ASSESSING OFFICER ON THE BASIS OF STATEMENT OF SHRI NAGINIBHAI INTWALA U/S. 131 OF THE ACT RECORDED ON 29-03-2006 WHEREAS THE SEARCH WAS CARRIED OUT ON 07-03-2006. THE COPY OF THE STAT EMENT OF SHRI NAGINIBHAI INITWALA IS AVAILABLE ON PAGES 3 TO 12 O F THE PB. WE FIND THAT IN THIS STATEMENT, IN REPLY TO QUESTION NO.5 AS TO WHETHER THE SALE PRICE DISCLOSED BY THE ASSESSEE @ 15/- PER SQ. MTR. IS AS PER READY RECKONER OR MARKET RATE, IT WAS STATED IN REPLY THAT LAND WAS S OLD BY HIM AND HIS FAMILY MEMBERS ON MARKET RATE AND READY RECKONER RA TE. HE PRESENTED DEEDS OF SUCH SALE AND PURCHASE OF BLOCK. THEREAFTE R QUESTION NO.7 WAS POSED BEFORE HIM THAT WHY NOT ALL THESE PROPERTIES BE VALUED TO KNOW THE TRUE PRICE AND WHY NOT THE PURCHASER BE CALLED. IN REPLY TO THIS QUESTION NO.7, IT WAS STATED IN REPLY THAT SALE DEED OF ALL THESE PROPERTY WERE MADE AT LOW RATE WHICH IS LESS THAN MARKET RATE AND HE S TATED THAT KEEPING IN VIEW LEGAL PROVISIONS, IT HAS BEEN DECLARED THAT TH IS PROPERTY WAS SOLD @ 54/- PER SQ. MTR. IT WAS ALSO STATED IN THE STATEME NT THAT THIS RECEIPT OF ON- MONEY TO THE EXTENT OF RS.39/- SQ. MTR. WOULD BE DE CLARED IN THE RETURN OF INCOME AND INCOME TAX WILL BE PAID ACCORDINGLY. BUT WHEN THE RETURN OF INCOME WAS FILED OF THESE FIVE PERSONS, NO SUCH EXT RA INCOME WAS I.T.A.NO.1547-51 & 1553 /AHD/2009 6 DECLARED BY THESE PERSONS AND THE AO MADE ADDITION ON THE BASIS OF STATEMENT RECORDED U/S. 131 OF THE ACT BUT LD. CIT( A) HAS DELETED THIS ADDITION ON THIS BASIS THAT THERE IS NO CORROBORATI VE EVIDENCE FOR RECEIPT OF ON-MONEY AND THE SALE RATE DECLARED IS AS PER PRESC RIBED FOR STAMP DUTY AND NO OTHER EVIDENCE THAT MARKET RATE WAS HIGHER T HAN SALE DEED RATE WAS BROUGHT ON RECORD. LD. CIT(A) ALSO OBSERVED THAT IF STATEMENT WAS MADE U/S. 132(4) OF THE ACT, HE WOULD HAVE GIVEN A SPECI AL EVIDENTIARY VALUE. BEFORE US, LD. AR OF THE ASSESSEE HAS PLACED RELIAN CE ON TWO JUDGMENTS AS NOTED ABOVE. THE FIRST JUDGMENT CITED BY LD. AR OF THE ASSESSEE IS THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDE RED IN THE CASE OF KAILASHBEN MANHARLAL CHOKSHI (SUPRA). IN THIS CASE, THE STATEMENT OF THE ASSESSEE U/S. 132(4) WAS RECORDED AT MID-NIGHT AND UNDER THESE FACTS, IT WAS HELD BY HONBLE JURISDICTIONAL HIGH COURT THAT AS THE STATEMENT WAS MADE AT ODD HOURS, IT CANNOT BE CONSIDERED AS VOLUN TARY STATEMENT AND THEREFORE, ADDITION IS NOT JUSTIFIED. IN THE PRESEN T CASE, THE STATEMENT WAS RECORDED AFTER VARIOUS DAYS FROM THE DATE OF SEARCH AND IT WAS RECORDED AT 5 P.M. AND THEREFORE, THE SAME IS NOT RECORDED AT O DD HOURS. IN THAT CASE, RETRACTION WAS ALSO MADE BY THE ASSESSEE ALTHOUGH A FTER A LAPSE OF TWO MONTHS BUT IN THE PRESENT CASE, NO SUCH RETRACTION WAS MADE BY THE ASSESSEE AND ONLY IMPLIED RETRACTION IS THERE THAT NO SUCH INCOME WAS DECLARED IN THE RETURN OF INCOME FILED IN THE MONTH OF DECEMBER, 2007 I.E. AFTER ONE YEAR AND NINE MONTHS. CONSIDERING THESE F ACTS, WE ARE OF THE CONSIDERED OPINION THAT THIS JUDGMENT OF HONBLE JU RISDICTIONAL HIGH COURT IS OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. 8. THE SECOND JUDGMENT OF HONBLE APEX COURT CITED BY LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE IS RENDER ED IN THE CASE OF P.V. KALYANASUNDARAM (SUPRA). IN THIS CASE, THE ASSESSEE WAS A PURCHASER OF I.T.A.NO.1547-51 & 1553 /AHD/2009 7 THE PROPERTY AND THE STATEMENT WAS GIVEN BY THE SEL LER IN THAT CASE THAT HE HAS RECEIVED ON-MONEY. THIS STATEMENT OF SELLER WAS RETRACTED LATER BUT ON THE BASIS OF SUCH STATEMENT OF THE SELLER, ADDITION WAS MADE IN THE HANDS OF THE BUYER. THE ADDITION WAS DELETED BY LD. CIT(A ) IN THAT CASE AND SUCH ORDER OF LD. CIT(A) WAS APPROVED BY THE TRIBUN AL. ON FURTHER APPEAL, HONBLE HIGH COURT DISMISSED THE REVENUES APPEAL, IN LIMINE ON THIS BASIS THAT NO SUBSTANTIAL QUESTION OF LAW ARIS ES AND SUCH ORDER OF HONBLE HIGH COURT WAS CONFIRMED BY HONBLE APEX CO URT ALSO. IN OUR CONSIDERED OPINION, THIS JUDGMENT OF HONBLE APEX C OURT IS ALSO OF NO HELP TO THE ASSESSEE BECAUSE FACTS ARE DIFFERENT. 9. RELIANCE WAS ALSO PLACED ON A JUDGMENT OF HONBL E MADRAS HIGH COURT RENDERED IN THE CASE OF CIT V. K BHUVANENDRAN (2008) 303 ITR 235 (MAD). IN THIS CASE, FACTS ARE THAT THE ASSESSE E AND THE WIFE OF TWO SONS OF THE ASSESSEE PURCHASED COMMERCIAL COMPLEX F OR A SUM OF RS.34 LAKHS. IN A STATEMENT RECORDED DURING THE COURSE O F SEARCH, THE ASSESSEE STATED THAT A SUM OF RS.23 LAKH WAS PAID OVER AND A BOVE THE REGISTERED VALUE SHOWN IN THE DOCUMENT AND ALSO ADMITTED THAT THE SAME WOULD BE OFFERED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. LATER ON, THE ASSESSEE DID NOT OFFER THIS AMOUNT IN THE RETURN FOR THE BLO CK PERIOD IN VIEW OF SUBSEQUENT RETRACTION BY FILING AN AFFIDAVIT. BUT S TILL AN ADDITION OF RS.23 LAKHS WAS MADE AS UNDISCLOSED INCOME. THE SAME WAS DELETED BY TRIBUNAL BY HOLDING THAT THERE WAS NO MATERIAL EVEN DURING THE COURSE OF SEARCH AND STATEMENT RECORDED FROM ASSESSEE WAS SUB SEQUENTLY RETRACTED AND REBUTTED AND UNDER THESE FACTS IT WAS HELD BY T HE TRIBUNAL THAT NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT IN B LOCK ASSESSMENT BECAUSE THE STATEMENT IS NOT RELATABLE TO SEIZED MA TERIAL. IN THE PRESENT I.T.A.NO.1547-51 & 1553 /AHD/2009 8 CASE, THE ASSESSMENT IS NOT A BLOCK ASSESSMENT AND THEREFORE, THIS JUDGMENT IS ALSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. 10. AS PER ABOVE DISCUSSION, WE FIND THAT NONE OF T HE JUDGMENTS CITED BY LD. AR OF THE ASSESSEE IS APPLICABLE IN THE PRES ENT CASE BECAUSE THE FACTS ARE DIFFERENT BUT INSPITE OF THIS, WE HAVE TO EXAMINE THAT ADDITION MADE BY ASSESSING OFFICER IN THIS CASE IS VALID OR NOT. WE FIND THAT THE ADDITION MADE BY THE AO IS SIMPLY ON THE BASIS OF S TATEMENT RECORDED FROM ONE OF THE CO-OWNERS U/S. 131 OF THE ACT. FROM THE COPY OF THE STATEMENT WHICH IS AVAILABLE IN THE PAPER BOOK, WE FIND THAT INITIAL REPLY OF THE ASSESSEE IN REPLY TO QUESTION NO.5 WAS THIS THAT ALL THESE SELLS WERE MADE TO VARIOUS PARTIES ON MARKET AND RECKONER RATE AND IN SUPPORT OF THIS, HE SUBMITTED A COPY OF SALE DEED ETC. THEREAF TER AGAIN, ANOTHER QUESTION WAS RAISED I.E. QUESTION NO.7 IN WHICH, IT WAS STATED THAT SALE PRICE SHOWN IS MUCH LESS THAN MARKET RATE AND IT WA S ALSO STATED THAT WHY NOT ALL THESE PROPERTY SHOULD BE VALUED AND THE PUR CHASER BE CALLED. IN REPLY OF QUESTION NO.7, IT WAS STATED BY ONE OF THE CO-OWNERS WHOSE STATEMENT WAS RECORDED THAT PROPERTY WERE SOLD @ 54 /- PER SQ. MRT. AND IN THE SAME REPLY, IT WAS ALSO STATED THAT SELLER AND PURCHASER HAD DISPUTE AND THE BUYER HAD SENT GUNDAS TOO AND THREATENED THE SE LLER. HE ALSO STATED IN THE SAME REPLY THAT BECAUSE OF THIS, THE SELLERS WE RE IN TENSION AND SOLD ALL THIS LAND TO GET RID OF TENSION. WE FEEL THAT REPLY HAS TO BE CONSIDERED IN TOTO. THE FIRST IMPORTANT ASPECT OF THE REPLY IS TH IS, THAT IT WAS STATED BY THE PERSON WHOSE STATEMENT WAS RECORDED THAT THE SA LE DEED PRICE ARE AT MARKET RATE AND STAMP DUTY RATE. THEREAFTER IT WAS STATED BY THE DEPARTMENT IN QUESTION NO.7 THAT THE SALE PRICE ARE LESS THAN MARKET RATE WITHOUT SHOWING ANY BASIS OF STATING SO. IT WAS ALS O SAID IN THE QUESTION NO.7 THAT WHY THE PROPERTY SHOULD NOT BE VALUED AND WHY NOT THE BUYERS I.T.A.NO.1547-51 & 1553 /AHD/2009 9 SHOULD BE CALLED. THESE QUESTIONS, GIVE AN IMPRESSI ON THAT PRESSURE WAS APPLIED ON THE PERSON WHOSE STATEMENT WAS RECORDED. BECAUSE OF THIS REASON, IT CANNOT BE SAID THAT THE REPLY GIVEN TO T HESE QUESTIONS WERE VOLUNTARY REPLY. MOREOVER, EVEN IN THE REPLY, IT WA S POINTED OUT THAT BUYERS WERE THREATENING THE SELLERS BY SENDING GUND AS AND SELLERS WERE UNDER PRESSURE TO GET RID OF THIS PROPERTY UNDER VE RY TENSE CONDITIONS. THIS STATEMENT IN THE SAME REPLY CANNOT BE IGNORED. MOREOVER, THE AO HAS NOT BROUGHT ON RECORD EVEN AN IOTA OF EVIDENCE TO SHOW THAT THE MARKET RATE OR THE STAMP DUTY RATE WAS HIGHER THAN THE SALE PRICE AS PER THE SALE DEED. HENCE, IT IS SEEN THAT THE ALLEGATIO N IN QUESTION NO.7 THAT THE SALE PRICE AS PER SALE DEED IS MUCH LESS THAN T HE MARKET PRICE IS NEVER CORROBORATED BY BRINGING ANY COGENT MATERIAL AT ANY STAGE I.E., AT THE TIME OF OBTAINING STATEMENT OR AT THE ASSESSMENT STAGE O R EVEN BEFORE US. THIS IS ADMITTED POSITION THAT NO RETRACTION WAS MADE BY THE ASSESSEE. UNDER THIS FACTUAL POSITION, WE FEEL THAT THE SELLERS SHO ULD HAVE BEEN EXAMINED BY THE A.O. ALSO AND EFFORTS SHOULD HAVE BEEN MADE TO EXAMINE AS TO WHAT IS THE MARKET RATE IN THE SAME AREA IN THE SAME PER IOD. THE ORDER OF LD. CIT(A) IS VERY CRYPTIC. HENCE, WE SET ASIDE THE OR DER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR A FRESH DEC ISION BY WAY OF A SPEAKING ORDER. HE MAY OBTAIN REMAND REPORT FROM T HE A.O. ON THESE ASPECTS I.E. MARKET RATE, STATEMENT OF SELLERS ETC. AND THEREAFTER, HE WOULD DECIDE THE ISSUE BY WAY OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SID ES. THESE GROUNDS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, ALL THE FIVE APPEALS IN THE CASE OF SELLERS ARE ALLOWED FOR STATISTICAL PURPOSES. NOW, WE TAKE UP THE REMAINING APPEAL IN THE CASE OF ONE OF THE BUYERS I.E. ITA NO.1553/AHD/2009 I.E. IN THE CASE OF SH. SANJAY P MOVALIA. I.T.A.NO.1547-51 & 1553 /AHD/2009 10 12. THE GROUNDS RAISED BY REVENUE ARE AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED INVESTMENT ON PURCHASE OF LAND AT UMBRA TH. WHILE DELETING THIS ADDITION THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE SELLER OF THE LAND AND THE MAIN PERSO N OF THE INTWALA GROUP, IN HIS STATEMENT U/S. 132(4) OF THE I.T. ACT HAD ACCEPTED TO HAVE RECEIVED ON-MONEY ON SALE OF LAND. 2. THE LD. CIT(A) SHOULD HAVE APPRECIATED THE FACT THAT DURING THE COURSE OF SEARCH PROCEEDINGS THE MAIN PERSON OF INT WALA GROUP HAS IN HIS STATEMENT ACCEPTED THAT HE HAS RECEIVED ON-M ONEY ON THE SALE OF LAND. THEREFORE, IT IS ESTABLISHED THAT THE PURC HASER HAS PAID ON- MONEY, NOT DISCLOSED IN THE RETURN OF INCOME WHICH IS HIS UNACCOUNTED INVESTMENT. 13. REGARDING THIS APPEAL, LD. DR OF THE REVENUE SU PPORTED THE ASSESSMENT ORDER WHEREAS LD. AR OF THE ASSESSEE SUP PORTED THE ORDER OF LD. CIT(A). HE ALSO SUBMITTED THAT IT IS A WRONG ST ATEMENT IN THE GROUND OF REVENUES APPEAL THAT THE STATEMENT OF THE SELLE R WAS RECORDED U/S 132(4) OF THE ACT. HE SUBMITTED THAT SUCH STATEMENT OF THE SELLER WAS RECORDED U/S. 131 OF THE ACT. HE ALSO STATED THAT I N THE CASE OF REMAINING BUYERS, NO SUCH ADDITION WAS MADE ALTHOUGH IN ONE O F SUCH CASES, THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT. HE ALSO SUBMITTED THAT PRESENT ADDITION WAS ALSO MADE ON THE BASIS OF STAT EMENT OF THE SELLER ONLY AND NO OTHER COGENT MATERIAL WAS BROUGHT ON RECORD SHOWING THAT ON- MONEY WAS IN FACT PAID BY THE BUYER OF THE PROPERTY . HE ALSO SUBMITTED THAT NO COGENT MATERIAL WAS BROUGHT ON RECORD TO SH OW THAT THE MARKET RATE OR THE JANTRY RATE WAS HIGHER THAN THE RATE AS PER PURCHASE DEED. RELIANCE WAS PLACED ON THE DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS P V KALYANSUNDARAM AS REPORTED I N 294 ITR 49 (S.C.). I.T.A.NO.1547-51 & 1553 /AHD/2009 11 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIE S BELOW. WE FIND THAT THE ADDITION IN THIS CASE OF THE BUYER WAS ALSO MAD E ON THE BASIS OF STATEMENT OF ONE OF THE FAMILY MEMBER OF THE SELLER S. WE FIND THAT THE FACTS OF THE PRESENT CASE ARE ALMOST IDENTICAL TO T HE FACTS IN THE CASE OF CIT VS P V KALYANSUNDARAM (SUPRA). IN THAT CASE AL SO, ADDITION WAS MADE BY THE A.O. ON THE BASIS OF UNEXPLAINED INVEST MENT IN RESPECT OF PURCHASE OF CERTAIN LAND BY THE ASSESSEE AS A CONSI DERATION SHOWN IN THE SALE DEED EXECUTED THEREFORE. SUBSEQUENTLY, CERTAI N NOTES ON LOOSE SHEETS ALLEGEDLY WRITTEN BY THE ASSESSEE WERE FOUND AND WH EN CONFRONTED, THE ASSESSEE CONTENDED THAT HE COULD NOT REMEMBER AS TO WHY THE SAID NOTING HAS BEEN MADE BUT THE SELLER ADMITTED IN HIS STATEM ENT THAT HE RECEIVED SUBSTANTIAL CASH AMOUNT OVER AND ABOVE THE SALE DEE D AMOUNT ALTHOUGH SUCH STATEMENT WAS SUBSEQUENTLY RETRACTED BY THE VE NDOR. THE A.O. ADOPTED THE SAID GROSS FIGURE ADMITTED BY THE VENDE R AS ACTUAL SALE CONSIDERATION FOR THE PURPOSE OF ASSESSMENT AND MAD E ADDITION OF DIFFERENCE AS UNDISCLOSED INCOME. LD. CIT(A) DELET ED THE ADDITION ON THIS BASIS THAT THE VENDORS STATEMENT CANNOT BE RE LIED UPON. ON FURTHER APPEAL BY THE REVENUE, THE TRIBUNAL AS WELL AS HON BLE HIGH COURT DISMISSED THE APPEAL OF THE REVENUE. THE REVENUE F URTHER FILED APPEAL BEFORE HONBLE APEX COURT BUT THE HONBLE APEX COUR T HAS CONFIRMED THE JUDGEMENT OF HONBLE MADRAS HIGH COURT. IN THE PRESENT CASE ALSO, THE ADDITION IS MADE BY THE A.O. MERELY ON THE BASI S OF THE STATEMENT OF ONE OF THE FAMILY MEMBERS OF THE SELLER WITHOUT BRI NGING ANY OTHER INCRIMINATING MATERIAL ON RECORD. THE PRESENT CASE IS OF THE BUYER AND IN THE CASE OF CIT VS P V KALYANSUNDARAM (SUPRA) ALSO, THE ASSESSEE WAS A BUYER AND HENCE, BY RESPECTFULLY FOLLOWING THIS JUD GEMENT OF HONBLE I.T.A.NO.1547-51 & 1553 /AHD/2009 12 APEX COURT, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE. 15. IN THE RESULT, THE APPEAL OF THE REVENUE IN THE CASE OF BUYER IS DISMISSED. 16. IN THE COMBINED RESULT, ALL THE FIVE APPEALS OF THE REVENUE IN THE CASE OF SELLERS ARE ALLOWED FOR STATISTICAL PURPOSE AND THE REMAINING ONE APPEAL IN THE CASE OF BUYER IS DISMISSED. 17. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (G.C.GUPTA) (A.K. GARODIA) (VICE PRESIDENT) (ACCOUNTANT MEMBER) #$% - /09/2012 & ' DKP*/SP ' (() *) / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $$(+ , / CONCERNED CIT 4. , - / CIT (A) 5. )-. (((+ , (+! , & / DR, ITAT, AHMEDABAD 6. ./0 12 / GUARD FILE. BY ORDER/ ' , 3 / & $ (+! , & ' I.T.A.NO.1547-51 & 1553 /AHD/2009 13 STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 04/09 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 10/09 4) DATE OF CORRECTION 13/09 5) DATE OF FURTHER CORRECTION 20/09 6) DATE OF INITIAL SIGN BY MEMBERS 24/09/2012 7) ORDER UPLOADED ON 25/09/2012 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 25/09/12