DY. C.I.T.2(1), RAIPUR (CG) V. ABHISHEK ATLANI, RAIPUR (CG)

ITA 185/BIL/2014

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4175 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 21-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SINGH
• Assessee Lawyers: R B DOSHI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Business income; Loose papers; Document seized; Documents seized
• Section: 43CA; 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.185/RPR/2014 ASSESSMENT YEAR : 2006-07 DCIT- 2(1), RAIPUR (CG). VS. ABHISHEK ATLANI, ATLANI BUNGLOW, KHAMARDIH ROAD, SHANKAR NAGAR, RAIPUR (CG). PAN : AFRPA7301J (APPELLANT) (RESPONDENT) ITA NO.186/RPR/2014 ASSESSMENT YEAR : 2006-07 DCIT- 2(1), RAIPUR (CG). VS. SURESH ATLANI, ATLANI BUNGLOW, KHAMARDIH ROAD, SHANKAR NAGAR, RAIPUR (CG). PAN : AFIPA5299Q (APPELLANT) (RESPONDENT) ITA NO.314/RPR/2014 ASSESSMENT YEAR : 2006-07 DCIT- 2(1), RAIPUR (CG). VS. TARAL MODI, C/O. MODI SONS, MALVIYA ROAD, RAIPUR (CG). PAN : ADUPM8682K (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI R. K. SINGH, CIT-DR ASSESSEE BY : SHRI R. B. DOSHI, CA DATE OF HEARING : 08-08-2018 DATE OF PRONOUNCEMENT : 12-10-2018 2 ITA NOS.185, 186 & 314/RPR/2014 O R D E R PER R. K. PANDA, AM : ITA NOS.185 & 186/RPR/2014 FILED BY THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 23.05.2014 OF THE LD. CIT (A), RAIPUR (CG) RELATING TO ASSESSMENT YEAR 2006-07 RESPECTIVELY. ITA NO.314/R PR/2014 FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 27.08.2 014 OF THE LD. CIT(A), RAIPUR (CG) RELATING TO ASSESSMENT YEAR 2006-07. S INCE COMMON GROUNDS OF APPEAL HAVE BEEN TAKEN BY THE REVENUE IN ALL THESE THREE APPEALS, THEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP ITA NO.314/RPR/2014 IN THE CAS E OF TARAL MODI AS THE LEAD CASE. 2.1 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS AN INDIVIDUAL AND DERIVES INCOME FROM HOUSE PROPERTY, BUSINESS INCOME IN THE CAPACITY OF PARTNER AND INCOME FROM OTHER SOURCES. A SEARCH AND SEIZUR E ACTION U/S 132 OF THE I.T. ACT, 1961 WAS CONDUCTED ON THE BUSINESS PREMISES OF M/S. AARTI INFRASTRUCTURE & BUILDCON LTD., RESIDENTIAL PREMISES OF ITS DIRECT ORS AND THE RESIDENTIAL/BUSINESS PREMISES OF THE OTHER MEMBERS AND RELATED PERSONS/ CONCERNS IN THE ABOVE BUSINESS GROUP. THE MATERIAL S SEIZED FROM THE PERSONS COVERED UNDER SEARCH WERE EXAMINED AND THE RELEVANT PERSONS WERE ASKED TO 3 ITA NOS.185, 186 & 314/RPR/2014 FURNISH THEIR EXPLANATIONS UPON FINDINGS OF ASSETS AND ENTRIES MADE IN THE LOOSE PAPERS AND VARIOUS DISCREPANCIES FOUND IN ACCOUNTS/ DOCUMENTS. CERTAIN PAPERS WERE FOUND FROM THE ABOVE PREMISES WHEREIN THE NAME OF THE ASSESSEE WAS MENTIONED IN CERTAIN TRANSACTIONS OF LAND AND IN RE DISTRIBUTION OF SOME ASSETS ON DISSOCIATION OF THE ASSESSEE AND FEW OTHERS FROM TH E AFFAIRS OF M/S. AARTI INFRASTRUCTURE & BUILDCON LTD. IN THE COURSE OF VE RIFICATION OF THE DOCUMENTS SEIZED FROM THE RESIDENTIAL PREMISES OF SHRI KISHOR E ATLANI (NAMELY A PEN DRIVE) AND ALSO THE DOCUMENTS SEIZED FROM SHRI RAJESH ATLA NI, CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND, BASED ON WHIC H THE ASSESSING OFFICER ISSUED NOTICE U/S 153C TO THE ASSESSEE ON 12.09.201 2 AFTER RECORDING REASONS. SINCE THERE WAS NO COMPLIANCE TO THIS NOTICE, A NOT ICE U/S 142(1) WAS ISSUED ON 09.01.2013 AND A QUESTIONNAIRE WAS ALSO ISSUED SEPA RATELY. THE ASSESSEE SUBSEQUENTLY FILED THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 153C ON 12.03.2013 DECLARING TOTAL INCOME OF RS.3,74,960/-. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE IS RELATED TO ONE BUSINE SS CONCERN NAMELY M/S. AARTI INFRASTRUCTURE & BUILDCON LTD. WHICH IS A COMPANY E NGAGED IN CONSTRUCTION AND SALE OF FLATS/SHOPS, SALE OF LANDS AND EXECUTION OF GOVERNMENT CONTRACTS. THE ASSESSEE WAS A DIRECTOR OF SAID M/S. AARTI INFRASTR UCTURE & BUILDCON LIMITED THEN KNOWN AS M/S. AARTI BUILDCON PRIVATE LIMITED. BUT SUBSEQUENTLY THERE WAS A CHANGE IN THE HOLDING/CONTROLLING PATTERN OF THIS COMPANY AND THE 4 ITA NOS.185, 186 & 314/RPR/2014 ASSESSEE SEVERED HIMSELF FROM THE FUNCTIONING OF TH IS COMPANY. AT THE TIME OF CHANGE OF THE CONTROLLING PATTERN, AN AGREEMENT WAS EXECUTED BETWEEN VARIOUS PERSONS IN WHICH THE ASSESSEE WAS ALSO A PARTY. A COPY OF THE AGREEMENT WAS SEIZED FROM SHRI RAJESH ATLANI, WHO IS THE BROTHER OF THE ASSESSEE AND THIS AGREEMENT NARRATES TRANSACTION OF SALE OF LAND AND SHARING OF PROFIT OUT OF IT BY THE OUTGOING STAKE HOLDERS MENTIONED IN THE AGREEME NT. AS ALREADY MENTIONED EARLIER, THE ASSESSEE IS SPECIFIED TO BE THE BENEFI CIARIES FROM THIS DEVOLUTION OF THE PROFITS WORKED OUT AND INCLUDED IN THE AGREEMEN T. THE SAID COMPANY M/S. AARTI INFRASTRUCTURE & BUILDCON LIMITED WAS HAVING RECEIPTS FROM SALE OF LAND ALSO. IN THE ACCOUNTS FOR FINANCIAL YEAR 2007-08, THE SALE OF LANDS INCLUDE SALE OF LAND AT MOWA WHICH WAS SOLD FOR RS.3,53,52,000/- AN D INCLUDED IN THE ACCOUNTS OF HEAD-OFFICE. FROM ITS LEDGER ACCOUNT, IT WAS AL SO FOUND THAT A LAND WAS SOLD FOR RS.2,95,20,000/- ON 13/03/2008 TO ONE M/S. PURA NDAR PROMOTERS AND DEVELOPERS PRIVATE LIMITED VIDE SALE DEED ON THE SA ME DATE. A COPY OF THE SALE DEED WAS FOUND IN THE OFFICE PREMISES OF THE SAID C OMPANY AND SEIZED UNDER IDENTIFICATION MARK A/3/30 CONTAINING PAGES FROM 1 TO 197. AS PER THIS DOCUMENT, THE MARKET VALUE ADOPTED FOR STAMP DUTY C ALCULATION WAS RS.3,68,90,000/- WHEREAS THE SALE WAS REGISTERED AT MUCH LOWER AMOUNT OF RS.2,95,20,000/-. THE PAYMENT WAS MADE THROUGH ONE DEMAND DRAFT OF RS.1,80,00,000/- BEARING NUMBER 018122 DATED 18/01/ 2006 AND ONE CHEQUE OF RS.1,15,20,000/- BEARING NUMBER 864642 DATED 01/06/ 2006. THESE DETAILS WERE 5 ITA NOS.185, 186 & 314/RPR/2014 FOUND ENTERED IN THE SALE DEED ITSELF. THE PAYMENT S THROUGH ABOVE INSTRUMENTS WERE MADE MORE THAN 2 YEARS AGO, BUT THE SALE WAS R EGISTERED MUCH LATER. FURTHER, THE SALE CONSIDERATION WHICH WAS ADOPTED W AS ON A LOWER SIDE AS COMPARED TO THE STAMP DUTY VALUATION. THESE FINDING S MADE DURING THE COURSE OF SEARCH WAS ITSELF BEING PROBED WHEN AT PREMISES OF SHRI RAJESH ATLANI, A COPY OF AGREEMENTS RELATING TO SALE OF LAND AT MOWA WAS FOU ND. APART FROM THIS FROM THE RESIDENCE OF SHRI KISHORE ATLANI, ONE PENDRIVE WAS SEIZED IN WHICH ONE EXCEL FILE WAS PRESENT SHOWING DETAILS OF ONE LAND TRANSACTION. ON SUPERFICIAL EXAMINATION ABOVE THESE TRANSACTIONS ARE FOUND TO B E ONE AND THE SAME. 4. THE ASSESSING OFFICER, THEREFORE, ASKED THE ASSE SSEE TO EXPLAIN AS TO WHY THE ADDITION SHOULD NOT BE MADE IN THE HANDS OF THE ASSESSEE TO THE EXTENT OF RS.2,65,52,456/-. IT WAS EXPLAINED BY THE ASSESSEE THAT THE FUNDS TO THE EXTENT OF RS.12,00,00,000/- WERE TO BE RECEIVED BY HIM ALONG WITH OTHERS FROM M/S SUNCITY PROJECTS PRIVATE LIMITED AND INITIAL PAYMEN T OF RS.1,80,00,000/- WAS ALSO MADE. BUT SUBSEQUENTLY A SEVERANCE OF SOME DI RECTORS FROM THE ACTIVITIES OF THE COMPANY M/S. AARTI INFRASTRUCTURE AND BUILDC ON LIMITED WAS IMMINENT DUE TO WHICH THE OUTGOING DIRECTORS WERE TO BE PROV IDED WITH SOME LIQUIDITY. HE CONCLUDED BY STATING THAT THE COMPENSATION ALLOC ATED TO HIM WAS NEVER RECEIVED. 5. THE ASSESSING OFFICER HELD THAT THE EXPLANATION OFFERED IN THE ABOVE LETTER FAILS TO SATISFACTORILY EXPLAIN THAT THE ASSESSEE W AS NOT A BENEFICIARY OF THE 6 ITA NOS.185, 186 & 314/RPR/2014 SETTLEMENT WORKED OUT IN THE AGREEMENT. AT THE FIR ST PLACE THE ASSESSEE IS NOT IN A POSITION TO OUTRIGHT OBJECT THE VERACITY OF THE A GREEMENT SINCE IT CARRIES HIS SIGNATURE. THE ASSESSEE NEVER CLAIMED AND ALSO DID NOT PRODUCE ANY DOCUMENTARY EVIDENCE SUBSTANTIATING THAT THE AGREEM ENT WAS UNILATERALLY CANCELLED BY HIM IF IT WAS TO HAVE NO SIGNIFICANCE AS HAS BEEN CONTENTED BY THE ASSESSEE. THE ASSESSEE MAINLY RELIED ON TWO EVENTS SUBSEQUENT TO THE DATE OF THE AGREEMENT. ON THIS BASIS, ONE OF THE CONTENTIONS OF THE ASSESSEE THAT THE IMPUGNED LAND WAS SOLD TO M/S. SUNCITY PROJECTS LIM ITED FOR A LOWER AMOUNT AND IT PROVIDED FUNDS IN FORM OF INTER-CORPORATE LO ANS TO M/S. AARTI INFRASTRUCTURE & BUILDCON LIMITED. THIS ARGUMENT WA S ADVANCED BY THE COMPANY M/S. AARTI INFRASTRUCTURE & BUILDCON LIMITE D IN THEIR CASE BUT BY ITSELF IS NOT CONVINCING. THE FACT THAT THE IMPUGNED LAND WAS ULTIMATELY SOLD AND THAT VALUATION OF ITS PRICE FOR STAMP DUTY PURPOSES IS O N LOWER SIDE, DOES NOT PRECLUDE THE POSSIBILITY OF THE TRANSACTION TAKING PLACE IN THE MANNER & AMOUNT AS APPEARING FROM THE SEIZED DOCUMENTS. THUS THERE ARE UMPTEEN CASES WHERE THE ACTUAL SALE PRICE IS MUCH HIGHER THAN THE VALUATION FOR STAMP DUTY PURPOSES AND THIS IS A COMMON FEATURE IN TRANSACTIONS RELATING T O SALE OF LANDS. THE COMPANY ALSO CONTENDED THAT FUNDS REPRESENT INTER-CORPORATE TRANSFERS BUT CONSIDERING THE CIRCUMSTANCES IN TOTALITY THE ARGUMENT DOES NOT SUB STANTIATE THAT THE SALE OF THE LAND WAS DONE IN OTHER MANNER THAN AS APPEARING IN THE SEIZED DOCUMENT. HENCE 7 ITA NOS.185, 186 & 314/RPR/2014 THE ASSESSEE FAILED TO CLARIFY HIS POSITION FROM TH E ACCOUNTS VIS--VIS THE SITUATION APPEARING OUT OF THE EXECUTION OF THE ABO VE REFERRED AGREEMENT. 6. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE AGREEMENT CLEARLY VESTS WITH THE ASSESSEE THE RIGHT AND ENTITLEMENT FOR COM PENSATION FROM M/S. AARTI INFRASTRUCTURE & BUILDCON LIMITED EQUIVALENT TO RS. 2,61,50,496/- FROM THE REDISTRIBUTION OF VARIOUS ASSETS. THE ASSESSEE IS E NTITLED FOR THE ABOVE AMOUNT BEING HIS SHARE ON ACCOUNT OF COMPENSATION EQUIVALE NT TO RS.2,61,50,496/-, WHICH IS THE AMOUNT RECEIVABLE AS ON 31/0312006. IN ABSENCE OF ANY EXPLANATION FROM THE SIDE OF THE ASSESSEE, THE ASSESSING OFFICE R MADE ADDITION TO THE INCOME OF THE ASSESSEE BY INVOKING THE DEEMING PROVISION O F SECTION 69B OF INCOME TAX ACT, 1961. ACCORDING TO HIM, THE COMPENSATION RECEIVED REPRESENTS THE INVESTMENTS WHICH ARE NOT RECORDED IN THE ACCOUNTS OF HENCE BY VIRTUE OF THE DEEMING PROVISIONS, THE ADDITION OF RS.2,61,50,496/ - WAS MADE BY THE ASSESSING OFFICER TO THE INCOME OF THE ASSESSEE. 7. BEFORE THE LD. CIT(A), THE ASSESSEE MADE ELABORA TE SUBMISSIONS WHICH HAS BEEN SUMMARIZED BY THE LD. CIT(A) AND WHICH REA D AS UNDER :- (I) NO PART OF THE AGREEMENT DATED 01.04.2006 WAS EVER IMPLEMENTED BY ANY PARTY TO THE AGREEMENT AND IT IS NO MORE THAN A MOU WHICH HAS REMAINED UNIMPLEMENTED. (II) THAT THE AGREEMENT WAS SIGNED BY THE DIRECTORS OF AARTI INFRASTRUCTURE AND BUILDCON LTD. (OTHER THAN SHRI SURESH ATLANI) UNWIL LINGLY. THE IMMOVABLE PROPERTIES DESCRIBED IN PARA NO. 6 OF THE AGREEMENT WERE NEVER GIVEN/TRANSFERRED TO THE PERSON NAMED IN THE AGREEMENT. (III) SHRI SURESH ATLANI HAD FILED A CIVIL SUIT IN THE COURT OF LAW FOR RECOVERY OF CERTAIN AMOUNT, WHICH WAS LATER ON WITHDRAWN/TERMIN ATED BY ENTERING INTO A COMPROMISE DEAL IN LOK ADALAT. 8 ITA NOS.185, 186 & 314/RPR/2014 (IV) THE APPELLANT HAS RELIED UPON THE CIVIL SUIT F ILED BY SHRI SURESH ATLANI TO ESTABLISH THAT THE AGREEMENT WAS NEVER IMPLEMENTED. THE CONTENTS OF THE AGREEMENT DO NOT HAVE ANY IMPLICATION IN THE CASE OF APPELLAN T AND THERE IS NO MATERIAL/EVIDENCE ON RECORD THAT ANY PART OF THE AGREEMENT WAS ACTUAL LY CARRIED OUT. (V) THE AMOUNTS STATED TO HAVE BEEN RECEIVED FROM S UNCITY PROJECT PVT. LTD. ACTUALLY REPRESENT INTER CORPORATE LOANS GIVEN BY S UNCITY PROJECT PVT. LTD. (VI) THE CONTENTS OF THE PEN DRIVE ARE UNAUTHENTIC, UNRELIABLE AND DO NOT REPRESENT CORRECT STATE OF AFFAIRS. IN ABSENCE OF ANY CORROBO RATIVE MATERIAL, NO ADDITION COULD HAVE BEEN MADE. (VII) NEITHER THE COPY OF AGREEMENT DATED 01.04.200 6 NOR THE PEN DRIVE WAS FOUND FROM APPELLANT. NO EVIDENCE HAS BEEN BROUGHT ON REC ORD CORRELATING THE ALLEGATION OF AO. 8. BASED ON THE ARGUMENT ADVANCES BY THE ASSESSEE, THE LD. CIT(A) FOLLOWING HIS DECISION IN THE CASE OF M/S AARTI INF RASTRUCTURE & BUILDCON LTD. DELETED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER :- 6. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORD ER AND SUBMISSIONS OF THE APPELLANT. THE ADDITION HAS BEEN MADE BY THE AO HOL DING THAT AS PER THE AGREEMENT DATED 01.04.2006, THE APPELLANT WAS ENTITLED TO THE AMOUNT OF RS.2,61,50,496/-. A PERUSAL OF THE COPY OF AGREEMENT SHOWS THAT MAJOR A MOUNT IS COMPRISED OF SHARE OF APPELLANT IN THE ALLEGED UNDISCLOSED SALE CONSIDERA TION OF LAND SOLD BY AARTI INFRASTRUCTURE AND BUILDCON LTD. (HEREINAFTER REFER RED TO AS AIBL) TO SUNCITY PROJECT PVT. LTD. ON THE BASIS OF THIS VERY AGREEMENT, AN A DDITION OF RS.9,17,91,005/- WAS MADE BY THE AO AS UNDISCLOSED CAPITAL GAIN IN THE C ASE OF AIBL. THE ISSUE COVERED BY THIS GROUND OF APPEAL IS THUS IDENTICAL TO GROUND N O. 1 IN APPEAL NO. 30/13-14 IN THE CASE OF M/S AARTI INFRASTRUCTURE AND BUILDCON LTD. FOR AY 2008-09. THE SAID ASSESSEE HAD ALSO FILED AN APPEAL WHICH HAS BEEN DECIDED IN ASSESSEE'S FAVOUR VIDE ORDER DATED 13.08.2013. SINCE THE ISSUE COVERED IN THIS APPEAL IS ALREADY DECIDED IN THE ABOVE APPEAL, FOR THE REASONS DETAILED IN THE OPERATIVE P ART OF THE APPELLATE ORDER DT. 13.08.2013, WHICH HAVE BEEN REPRODUCED BELOW, THE A DDITION MADE IN THE INSTANT CASE IS DELETED. '6. 1 HAVE CAREFULLY GONE THROUGH THE ASSESSMENT OR DER AND WRITTEN SUBMISSIONS OF THE APPELLANT. IT IS NOT IN DISPUTE THAT THE APPELLANT HAD DISCLOSED THE SALE OF LAND AT MOWA UNDER QUESTION I N ITS BOOKS OF ACCOUNTS AS THE A.O. HAS ALSO RECORDED HIS FINDING OF FACT IN P ARA 2 OF THE ASSESSMENT ORDER. IT IS GATHERED THAT THE LAND WAS SOLD FOR RS .2,95,20,000/- ON 13.03.2008 TO M/S. PURANDAR PROMOTERS AND DEVELOPERS PRIVATE L IMITED THROUGH THE REGISTERED SALE DEED ON THE EVEN DATE. IT IS SEEN THAT AS PER REGISTERED SALE DEED, THE MARKET VALUE ADOPTED FOR STAMP DUTY PURPO SES WAS RS.3,68,90,000/-, HOWEVER, THE SALE CONSIDERATION WAS RS.2,95,20,000/ -; THAT THE PAYMENT WAS RECEIVED TWO YEARS BEFORE THE REGISTRY OF THE SALE DEED THROUGH ONE DEMAND DRAFT OF RS.1,80,00,000/- BEARING NUMBER 018122 DAT ED 18.01.2006 AND ONE 9 ITA NOS.185, 186 & 314/RPR/2014 CHEQUE OF RS. 1,15,20,000/- BEARING NUMBER 864642 D ATED 01.06.2006. THE ACTION OF THE A.O IS BASED ON THE INFORMATION GATHE RED AND INFERENCE DRAWN FROM THE FOLLOWING: A) AT ANOTHER PREMISES, WHICH IS A RESIDENTIAL PREM ISES OF BROTHER OF ONE OF THE PAST DIRECTOR IN THE APPELLANT COMPANY, A COPY OF A GREEMENTS RELATING TO SALE OF LAND AT MOWA WAS FOUND; B) THE SALE CONSIDERATION WAS MUCH LOWER THAN THE V ALUE ADOPTED FOR STAMP DUTY PURPOSES. C) FROM THE RESIDENCE OF THE SAME PERSON, NAMED SHR I KISHORE ATLANI, ONE PEN DRIVE WAS SEIZED IN WHICH ONE EXCEL FILE WAS PRESEN T SHOWING DETAILS OF ONE LAND TRANSACTION. 7. ACCORDING TO THE A.O. THE TRANSACTION ARE FOUND TO BE ONE AND THE SAME. THE A.O HAS ALSO REFERRED TO THE PEN DRIVE SE IZED FROM SHRI KISHORE ATLANI THAT CONTAINED ONE EXCEL FILE NAMED SUNCITY CONTENTS WHEREOF HAVE BEEN REPRODUCED BY THE A.O IN PARA 3 OF THE ASSESSM ENT ORDER. 8. FROM THE PERUSAL OF CONTENTS OF THE EXCEL FILE, 1 FIND THAT THE PAYMENT DETAILS, INTER ALIA, CONTAINS DETAILS OF CHEQUE NUM BERS VIDE WHICH PAYMENTS WERE MADE TO FOLLOWING PARTIES AS EXTRACTED HEREUND ER : PARTICULARS SQ.FT. RATE FOR SQ.FT. AMOUNT DATE CHEQUE NO. AMOUNT RECD. NAME COST OF PLOT 397741 305 121311005.00 20.01.2006 1812 2 18000000.00 AARTI BUILDCON PVT. LTD. (407741-10000 FOR CSEB) 05.06.2006 864496 10000000.00 RAJEEV AGRAWAL 13.06.2006 864642 11520000.00 AARTI BUILDCON PVT. LTD. 26.06.2006 864800 20000000.00 AARTI SPONGE PVT. LTD. 04.07.2006 865067 20000000.00 AARTI BUILDCON PVT. LTD. 29.07.2006 196882 20000000.00 AARTI BUILDCON PVT. LTD. TOTAL 99520000.00 9. IT IS AN UNDISPUTED FACT THAT THE RECEIPTS VIDE CHEQUE NO. 18122 FOR RS.1,80,00,000/- AND CHEQUE NO. 864642 FOR RS. 1,15 ,20,000/- STOOD ENCASHED AND CREDITED IN THE BANK ACCOUNT AND BOOKS OF ACCOU NTS OF THE APPELLANT. IT IS ALSO NOT IN DISPUTE THAT THE OTHER PAYMENT DETAILS MADE THROUGH CHEQUE WERE ALSO RECEIVED BY THE PERSONS NAMED IN THE TABLE. I HAVE CAREFULLY PERUSED PAGE NO. 26 TO 33, PAGE NO. 34 TO 50 AND PAGE NO.51 OF THE PAPER BOOK. I FIND THAT THE PAYMENTS THROUGH CHEQUE ARE DULY APPE ARING IN THE BOOKS OF ACCOUNTS OF THE PERSONS NAMED IN THE TABLE. I FIND THAT THE APPELLANT HAD REPAID RS.1.10 CRORES TO M/S SUNCITY PROJECT PVT. L TD. AND THE SUM OF RS.2,95,20,000/- WAS ADJUSTED AGAINST THE SALE CONS IDERATION OF THE LAND SOLD BY THE APPELLANT AT MOWA. IT IS ALSO SEEN THAT THE APPELLANT HAD REPAID THE SUM OF RS.2 CRORES TO THE SAID PARTY NAMELY SUNCITY PRO JECT PVT. LTD. THAT WAS RECEIVED AS UNSECURED LOAN BY THE APPELLANT. I ALSO FIND THAT M/S AARTI SPONGE 10 ITA NOS.185, 186 & 314/RPR/2014 & POWER (P) LTD. HAD REPAID THE SUM OF RS. 2 CRORES TO SUNCITY PROJECT PVT. LTD. SIMILARLY, MR. RAJEEV AGRAWAL AND MR. CHHAGAN LAL MUNDRA HAD ALSO REPAID SUM OF RS. 1 CRORE AND RS.1.50 CRORES RESPEC TIVELY TO SUN CITY PROJECT PVT. LTD. IT IS NOT THE CASE OF THE A. O. THAT PURA NDAR PROMOTERS & DEVELOPERS PVT. LTD., THE BUYER OF THE LAND HAD CONFIRMED HAVI NG PAID ANY AMOUNT OVER AND ABOVE THAT APPEARING IN THE REGISTERED SALE DEE D. IT TRANSPIRES THAT THE PERSONS NAMED IN THE TABLE HAVE SHOWN THE RECEIPTS AS UNSECURED LOAN. M/S AARTI SPONGE & POWER (P) LTD. IS ALSO AN ASSESSEE C OVERED UNDER THE SAME SEARCH ASSESSMENT PROCEEDINGS BEING A GROUP COMPANY , HOWEVER, IT IS NOT THE CASE OF THE A. O. THAT THE PAYMENT PARTICULARS APPE ARING IN COPY OF ACCOUNT OF SUNCITY PROJECT PVT. LTD. IN THE BOOKS OF M/S AARTI SPONGE & POWER (P) LTD. HAVE NOT BEEN RECEIVED BY SUNCITY PROJECT PVT. LTD. I FIND THAT THE SPECIFIC QUERIES WERE RAISED BY THE A.O. FROM THE APPELLANT AND MR. RAJEEV AGRAWAL. I FIND THAT, IN SPITE OF SPECIFIC REQUEST HAVING BEEN MADE BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO SEEK INFORM ATION FROM THE BUYER, THE REQUEST WAS NOT ACCEDED AND NO ENQUIRY WAS MADE BY THE A.O. TO SUPPORT HIS CONCLUSION. IT IS ALSO NOT THE CASE OF THE A.O. THA T THE BUYER HAD RECOGNIZED THE COST OF THE LAND I.E. ASSET AT RS.12,13,11,005/-. I T IS NOT THE CASE OF THE A. O. THAT THE ACTUAL SALES CONSIDERATION WAS AGREED BETW EEN THE APPELLANT AND THE BUYER AT RS.12,13,11,005/- AND NOT AT RS.2,95,00,00 0/- WHICH TRANSPIRED FROM THE 'AGREEMENT TO SALE' WHICH IS A COMMON PROCEDURE ADOPTED BY THE PARTIES TO PROTECT THEIR INTEREST. CONVERSELY, THE ACTION O F THE A.O DOES NOT DERIVE ANY STRENGTH FROM ANY SUCH 'AGREEMENT TO SALE '. THE A. O. HAS REFERRED TO THE AGREEMENT DATED 01.04.2006 WHEREIN SUM OF RS.10,33, 11,005/- IS APPEARING AS RECEIVABLE FROM SUNCITY PROJECT PVT. LTD AND SHARE OF PARTY NO.2 AND 3 IN THE SAID AGREEMENT. IT IS GATHERED THAT THE A.O. HAS DR AWN NEXUS BETWEEN THE SAID AGREEMENT BETWEEN THE DIRECTORS OF THE APPELLANT CO MPANY IN THEIR CAPACITY AS DIRECTORS AND ALSO IN THEIR INDIVIDUAL CAPACITY FOR DISTRIBUTION OF ASSETS OF THE COMPANIES. I HAVE PERUSED THE SAID AGREEMENT DATED 01.04.2006, FROM THE PERUSAL OF THE TABLE IN PARA 3 OF THE ASSESSMENT OR DER, IT IS CLEAR THAT THE FUNDS WERE RECEIVED FROM SUNCITY PROJECT PVT. LTD. AND ST OOD RECORDED IN THE BOOKS OF ACCOUNTS AS LOAN RECEIVED. IT IS SEEN THAT THE S AID AGREEMENT DATED 01.04.2006 NOWHERE DESCRIBES THE NATURE OF SUM OF R S.10,33,11,005/- RECEIVABLE FROM SUNCITY PROJECT PVT. LTD. A READING OF THE AGREEMENT SHOWS THAT IT IS AN ILLEGAL AGREEMENT, AS IT SPEAKS OF DI STRIBUTION OF ASSETS OF THE COMPANY IN AN ILLEGAL MANNER. SUCH AN AGREEMENT COU LD NOT HAVE BEEN RELIED UPON FOR THE PURPOSE OF MAKING ADDITION. THERE IS N O EVIDENCE ON RECORD THAT THE AGREEMENT WAS EVER IMPLEMENTED BY ANY OF THE PA RTY. IN MY CONSIDERED OPINION, THE AGREEMENT HAS NO EVIDENTIARY VALUE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. NO ADVERSITY COULD HAVE BEEN DRAWN ON THE BASIS OF THIS AGREEMENT. THERE WAS NO TRANSFER OF ANY ASSET WITH REFERENCE TO THIS AGREEMENT, GIVING RISE TO ANY CAPITAL GAIN. THE A. O. HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO REBUT THE SUBMISSION OF THE APPELLANT THAT THE SAID AGREEMENT DATED 01.04.2006 WAS NEVER EXECUTED, ON T HE CONTRARY, I DO FIND FORCE IN THE SUBMISSION OF THE APPELLANT THAT THE C OMPROMISE ENTERED INTO BETWEEN THE APPELLANT AND OTHER PARTIES VIDE ORDER OF THE LOK ADALAT DATED 20.06.2010 ITSELF SIGNIFIES THAT THE AGREEMENT WAS NEVER ACTED UPON BETWEEN THE PARTIES. I DO FIND FORCE IN THE SUBMISSION OF T HE APPELLANT THAT THE LAND WAS 11 ITA NOS.185, 186 & 314/RPR/2014 SOLD TO PURANDAR PROMOTERS AND DEVELOPERS PVT. LTD. , WHEREAS, THE PAYMENTS HAVE BEEN RECEIVED FROM SUNCITY PROJECT PVT. LTD. A S THERE IS NO LIFTING OF CORPORATE VEIL BETWEEN PURANDAR PROMOTERS AND DEVEL OPERS PVT. LTD. AND SUNCITY PROJECT PVT. LTD., THE RECEIPTS CANNOT BE S AID TO BE RECEIPT OF SALES CONSIDERATION AGAINST TRANSFER OF LAND. THE AGREEMENT DATED 01.04.2006 IS NOT THE AGREEMENT TO SELL THE PROPERTY IN QUESTION, BUT IT IS AN AGREEMENT HAVING REFERENCE TO SOME AMOUNT RECEIVABLE FROM SUNCITY PROJECT PVT. LTD. NEITHER T HE AGREEMENT NOR THE PEN DRIVE WAS FOUND FROM THE CONTROL AND POSSESSION OF THE APPELLANT AND ON THE CONTRARY, THESE WERE FOUND FROM THE BROTHER OF AN E X-DIRECTOR OF THE COMPANY. FOR THIS REASON, THE AGREEMENT AND THE SO CALLED CO NTENTS OF THE PEN DRIVE REQUIRES TO BE VIEWED AND RELIED UPON MORE CAUTIOUS LY. AS RIGHTLY CONTENDED BY THE APPELLANT, THE CONTENTS OF THE PEN DRIVE ARE ABSURD AND UNAUTHENTIC, BECAUSE IT RELATES TO THE ALLEGED SALE PRICE OF THE LAND WITH THE LOANS BY SEVERAL PERSONS. APART FROM THIS, NO CORROBORATIVE EVIDENCE , ENTRY IN ANY RECORDS, DOCUMENTS ETC. WAS FOUND DURING SEARCH. I FIND THAT THE CONCLUSION DRAWN BY THE A. O. IS NOT DERIVING ANY STRENGTH FROM THE ENQ UIRIES CONDUCTED BY THE A.O. FROM MR. KISHORE ATLANI I.E. THE PERSON FROM WHOSE POSSESSION THE PEN DRIVE WAS SEIZED. I AM CONVINCED THAT THE SUMS REFERRED B Y THE A.O REPRESENTS LOAN RECEIVED BY VARIOUS PERSONS OF THE GROUP AND OUT OF THE SUMS RECEIVED, LOANS HAVE BEEN REPAID ALSO BY THE PARTIES INCLUDING THE APPELLANT WHICH CANNOT BE CONSTRUED AS AN AFTERTHOUGHT AS THE REPAYMENTS WERE MADE MUCH EARLIER THAN THE SEARCH. 1 AM CONVINCED THAT THE SUMS DO NOT REP RESENT RECEIPT OF SALES CONSIDERATION TO THE TUNE OF RS.12,13,11,005/-. AS THE SUMS WERE REPAID, THERE IS NO QUESTION OF HOLDING THE SAME AS SALES CONSIDE RATION GIVING RISE TO CAPITAL GAIN. IT IS ONLY THE REAL INCOME WHICH GETS CHARGED AS INCOME UNDER THE INCOME-TAX ACT AS POINTED OUT BY THE HON'BLE SUPREM E COURT IN STATE BANK OF TRAVANCORE V. CIT (1986) 158 ITR 102 (SC) LATER SUP ERSEDED BY THE DECISION IN UCO BANK V. CIT (1999) 237 ITR 889 (SC) THE CONC EPT OF REAL INCOME HAS CERTAINLY TO BE APPLIED IN JUDGING WHAT THE ASSESSE E HAS RECEIVED IS INCOME OR NOT. EVEN IF A CREDIT ENTRY IS MADE IN THE ACCOUNT BOOKS, IT MAY WELL BE A HYPOTHETICAL INCOME. 1F IT IS NOT REAL INCOME, THE MERE ENTRY WOULD NOT CREATE LIABILITY. A LIABILITY TO TAX CAN ARISE ONLY WHEN, THERE IS A LEGAL RIGHT TO RECEIVE AS WAS POINTED OUT IN CIT V. THIAGARAJA CHETTY & CO . (1953) 24 ITR 525 (SC) AND MORVI INDUSTRIES LTD. V. CIT (1971) 82ITR 835 ( SC). 10. IN THE CASE OF CIT VS. SHOORJI VALLABHDAS & CO. (1962) 46 ITR 144 (SC) : TC39R. 737, HIDAYATULLAH, J. (AS HE THEN WAS ), SPEAKING FOR THE COURT, OBSERVED 'INCOME-TAX IS A LEVY ON INCOME. NO DOUBT, THE IT ACT TAKES INTO ACCOUNT TWO POINTS OF TIME AT WHICH THE LIABILITY T O TAX IS ATTRACTED, VIZ., THE ACCRUAL OF THE INCOME OR ITS RECEIPT; BUT THE SUBST ANCE OF THE MATTER IS THE INCOME. 1F INCOME DOES NOT RESULT AT ALL, THERE CAN NOT BE A TAX, EVEN THOUGH IN BOOK- KEEPING, AN ENTRY IS MADE ABOUT A 'HYPOTHETIC AL INCOME', WHICH DOES NOT MATERIALISE. WHERE INCOME HAS, IN FACT, BEEN RECEIV ED AND IS SUBSEQUENTLY GIVEN UP IN SUCH CIRCUMSTANCES THAT IT REMAINS THE INCOME OF THE RECIPIENT, EVEN THOUGH GIVEN UP, THE TAX MAY BE PAYABLE. WHERE , HOWEVER, THE INCOME CAN BE SAID NOT TO HAVE RESULTED AT ALL, THERE IS O BVIOUSLY NEITHER ACCRUAL NOR RECEIPT OF INCOME, EVEN THOUGH AN ENTRY TO THAT EFF ECT MIGHT, IN CERTAIN CIRCUMSTANCES, HAVE BEEN MADE IN THE BOOKS OF ACCOU NT. 12 ITA NOS.185, 186 & 314/RPR/2014 11.. IN THE CASE OF GODHRA ELECTRICITY CO. LTD. V. CIT (1997) 225 ITR 746 (SC) ENHANCED RATES SHOWN AS RECEIPT IN ACCOUNTS BU T NOT REALIZED DUE TO LITIGATION AND TAKEOVER OF THE COMPANY BY GOVERNMEN T WAS HELD BY THE SUPREME COURT AS NOT ACCRUING TO THE ASSESSEE ON RE AL INCOME BASIS IN THE FOLLOWING WORDS: 'THE QUESTION WHETHER THERE WAS RE AL ACCRUAL OF INCOME TO THE ASSESSEE-COMPANY IN RESPECT OF THE ENHANCED CHA RGES FOR SUPPLY OF ELECTRICITY HAS TO BE CONSIDERED BY TAKING THE PROB ABILITY OR IMPROBABILITY OF REALISATION IN A REALISTIC MANNER. IF THE MATTER IS CONSIDERED IN THIS LIGHT, IT IS NOT POSSIBLE TO HOLD THAT THERE WAS REAL ACCRUAL OF INCOME TO THE ASSESSEE- COMPANY IN RESPECT OF THE ENHANCED CHARGES FOR SUPP LY OF ELECTRICITY WHICH WERE ADDED BY THE ITO WHILE PASSING THE ASSESSMENT ORDERS IN RESPECT OF THE ASSESSMENT YEARS UNDER CONSIDERATION. THE AAC WAS R IGHT IN DELETING THE SAID ADDITION MADE BY THE ITO AND THE TRIBUNAL HAD RIGHT LY HELD THAT THE CLAIM AT THE INCREASED RATES AS MADE BY THE ASSESSEE-COMPANY ON THE BASIS OF WHICH NECESSARY ENTRIES WERE MADE REPRESENTED ONLY HYPOTH ETICAL INCOME AND THE IMPUGNED AMOUNTS AS BROUGHT TO TAX BY THE ITO DID N OT REPRESENT THE INCOME WHICH HAD REALLY ACCRUED TO THE ASSESSEE-COMPANY DU RING THE RELEVANT PREVIOUS YEARS. THE HIGH COURT, IN OUR OPINION WAS IN ERROR IN UPSETTING THE SAID VIEW OF THE TRIBUNAL.' 12. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE C ASE, AS ALSO DECISIONS CITED ABOVE, THE ADDITION MADE BY THE A.O. CANNOT B E SUSTAINED. HENCE, THE ADDITION IS DELETED.' 6.1 THE FINDINGS GIVEN IN THE ABOVE REFERRED APPEL LATE ORDER ARE APPLICABLE IN THE PRESENT APPEAL ALSO FOR THE REASON THAT THE ISSUE I NVOLVED IN BOTH THE APPEALS IS IDENTICAL. THE ADDITION HAS BEEN MADE IN THE HANDS OF APPELLANT BY THE A.O BASED ON THE CONTENTS OF AGREEMENT DT. 01.04.2006, WHICH WAS ALSO THE SUBJECT MATTER OF DISPUTE IN THE APPEAL OF AARTI INFRASTRUCTURE & BUILDCON LT D. A CLEAR FINDING HAS BEEN GIVEN IN THE ABOVE APPELLATE ORDER THAT THE AGREEMENT DT. 01 .04.2006 IS OF NO AVAIL FOR THE AO AS IT IS ILLEGAL, INVALID, UN-IMPLEMENTED AND NONE OF THE PARTY TO THE AGREEMENT EVER FULFILLED ITS PART OF THE AGREEMENT. WHEN NO UNDISC LOSED CAPITAL GAIN IS EARNED BY AARTI INFRASTRUCTURE & BUILDCON LTD. THERE IS NO QU ESTION OF APPELLANT GETTING ANY SHARE IN ALLEGED CAPITAL GAIN AND CONSEQUENTLY, THE ADDITION MADE IS NOT JUSTIFIED. 6.2 IN THE CASE OF SHRI SURESH ATLANI, AN ADDITION OF RS.1,43,31,504/- WAS MADE BY THE AO ON ACCOUNT OF THE ABOVE REFERRED AGREEMENT D T. 01.04.2006, AS THIS AMOUNT WAS STATED TO BE PAYABLE TO SHRI SURESH ATLANI IN T HE ABOVE REFERRED AGREEMENT. IN APPEAL NO.318/13-14 ORDER DT. 23.05.2014, THE ADDIT ION OF RS.1,43,31,504/- MADE IN THE CASE OF SHRI SURESH ATLANI HAS BEEN DELETED, FO R THE REASONS GIVEN IN THE APPELLATE ORDER PASSED IN THE CASE OF AARTI INFRASTRUCTURE & BUILDCON LTD. 6.3 I FIND THAT THE A.O HAD, IN PARA 3 OF THE ASSES SMENT ORDER, STATED THAT THE APPELLANT IS RELATED TO ONE BUSINESS CONCERN NAMED AARTI INFRASTRUCTURE & BUILDCON LTD., HOWEVER, THE A.O HAS NOT DEMONSTRATED THE NAT URE OF RELATIONSHIP OF THE APPELLANT WITH AARTI INFRASTRUCTURE & BUILDCON LTD. . IT IS SEEN THAT THE A.O. HAS REFERRED THE APPELLANT AS BROTHER OF SHRI RAJESH AT LANI, HOWEVER, SAID FINDING OF THE A.O. HAS BEEN FOUND TO BE FACTUALLY INCORRECT. IT I S ALSO SEEN THAT THE A.O. HIMSELF ACCEPTED THAT THE NAME OF THE APPELLANT DOES NOT FI GURE OUT ON ANY OFFICIAL PAPERS, UNDER SUCH CIRCUMSTANCES, IN MY CONSIDERED VIEW, TH E ONUS ON THE A.O. TO ESTABLISH 13 ITA NOS.185, 186 & 314/RPR/2014 THE NEXUS OF THE APPELLANT WITH AARTI INFRASTRUCTUR E & BUILDCON LTD. AND TRANSACTION GIVING RISE TO IMPUGNED CAPITAL GAIN WAS MUCH MORE. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND KEEPING IN VIEW FINDI NGS IN THE ABOVE REFERRED APPELLATE ORDERS DT. 13.08.2013 AND 23.05.2014, I AM CONVINCE D THAT THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.2,61,50,496/- AND THE SAME CA NNOT BE SUSTAINED. ACCORDINGLY, THE ADDITION OF RS.2,61,50,496/- MADE BY THE AO IS DELETED. 9. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S :- 1. WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,61,50,49 6/- MADE BY THE A.O. BY INVOKING SECTION 69B OF THE IT ACT, 1961? 2. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS BOTH IN LAW AND ON FACTS. 3. ANY OTHER GROUND THAT MAY BE ADDUCED AT THE TIME OF HEARING. 10. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET REFERRED TO THE DECISION OF THE TRIBUNAL IN THE CASE OF DCIT VS. M/S. AARTI INF RASTRUCTURE & BUILDCON LTD. VIDE ITA NO.30/RPR/2013 ORDER DATED 15.02.2018 FOR ASSESSMENT YEAR 2008-09 AND SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING A LL THE ASPECTS HAS DISMISSED THE APPEAL FILED BY THE REVENUE. SINCE IN THE INST ANT CASE ALSO THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE DOCUMENTS SEIZED FROM THE PREMISES OF M/S. AARTI INFRASTRUCTURE & BUILDCO N LTD. AND RELATED PERSONS, THEREFORE, THIS BEING A COVERED MATTER IN FAVOUR OF THE ASSESSEE THE GROUNDS RAISED BY THE REVENUE SHOULD BE DISMISSED. 11. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER. 14 ITA NOS.185, 186 & 314/RPR/2014 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THE ASSESSING OFFICER ON THE BASIS OF DOCUMENTS SEIZED FROM THE PREMISES OF M/S. AARTI INFRASTRUCTURE & BUILDCON LTD. AND ITS DIRECTORS WHICH WERE BELONGIN G TO THE ASSESSEE INITIATED PROCEEDINGS U/S 153C IN CASE OF THE ASSESSEE AND, T HEREAFTER, MADE ADDITION OF RS.2,61,50496/-. WHILE DOING SO, HE OBSERVED THAT THE ASSESSEE IS ENTITLED TO RECEIVE COMPENSATION EQUIVALENT TO 2,61,50,496/- WH ICH IS THE AMOUNT RECEIVABLE AS ON 31.03.2006. ACCORDING TO HIM, THE COMPENSATION RECEIVED REPRESENTS THE INVESTMENTS WHICH ARE NOT RECORDED I N THE BOOKS OF ACCOUNT OF THE ASSESSEE AND, THEREFORE, ARE HIT BY THE PROVISIONS OF SECTION 69B OF THE I.T. ACT. WE FIND THE LD. CIT(A) DELETED THE ADDITION ON THE GROUND THAT SIMILAR ADDITION HAS BEEN DELETED IN THE HANDS OF M/S. AARTI INFRAST RUCTURE & BUILDCON LTD.. FURTHER, THE ASSESSING OFFICER HAS NOT DEMONSTRATED THE NATURE OF RELATIONSHIP WITH THE ASSESSEE AND M/S. AARTI INFRASTRUCTURE & B UILDCON LTD.. SINCE THE NAME OF THE ASSESSEE DOES NOT FIGURE OUT IN ANY OFF ICIAL PAPER AND THE ASSESSING OFFICER DID NOT ESTABLISH THE NEXUS OF THE ASSESSEE WITH M/S. AARTI INFRASTRUCTURE & BUILDCON LTD., THE LD. CIT(A) DELETED THE ADDITIO N MADE BY THE ASSESSING OFFICER, THE REASONS OF WHICH ARE ALREADY REPRODUCE D IN THE PRECEDING PARAGRAPH. 13. WE FIND IDENTICAL ISSUE HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF M/S. AARTI INFRASTRUCTURE & BUILDCON LTD. (SUPRA). WE FIND THE TRIBUNAL UPHELD 15 ITA NOS.185, 186 & 314/RPR/2014 THE FINDINGS OF THE LD. CIT(A) AND DISMISSED THE AP PEAL FILED BY THE REVENUE BY OBSERVING AS UNDER :- 19. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED T HE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, A SEARCH & SEIZURE OPERATION WAS CONDUCTED ON 23.6.2010. ACCORDING TO THE ASSES SING OFFICER, DURING THE COURSE OF SEARCH IN THE PREMISES OF THE ASSESSEE, A SALE D EED WAS FOUND WHICH EVIDENCES SALE OF LAND SITUATED AT MOWA FOR RS.2,95,20,000/- BY TH E ASSESSEE TO M/S. PURANDAR PROMOTERS AND DEVELOPERS PRIVATE LIMITED ON 13.3.20 08. THE SAID SALE WAS DISCLOSED BY THE ASSESSEE IN ITS RETURN OF INCOME FOR THE YEA R UNDER CONSIDERATION AT RS.2,95,20,000/-. THE ASSESSING OFFICER FURTHER OBS ERVED THAT ON 23.6.2010, A SEARCH WAS CONDUCTED SIMULTANEOUSLY AT THE PREMISES OF SHR I SURESH ATLANI, EX. DIRECTOR OF THE ASSESSEE COMPANY. DURING THAT SEARCH, ONE PEN D RIVE WAS FOUND AND IN THAT PEN DRIVER ONE EXCEL SHEET WAS FOUND. IN THAT EXCESS-SH EET, ON THE LEFT HAND SIDE, DESCRIPTION OF THE VERY SAME LAND WHICH WAS SOLD BY THE REGISTERED DEED DATED 13.3.3008 FOR RS.2,95,20,000/- WAS MENTIONED AND IT S COST WAS STATED AT RS.12,13,11,005/- BEING 397741 SQ.FT @ RS.305/- PER SQ.FT. ON THE RIGHT HAND SIDE, AMOUNT RECEIVED FROM SUNCITY PROJECT (P) LTD., WAS STATED AT RS.12,05,20,000/- AND BALANCE TO RECEIVE WAS RS.7,91,005/-. THE AFORESAID RS.12,05,20,OOO/- WAS RECEIVED BY CHEQUE AS DETAILED HEREUNDER: NAME OF RECIPIENT DATE AMOUNT AARATI BUILDCON LTD. 20.1.2006 1,80,00,000.00 RAJEEV AGRAWAL 5.6.2006 10,00,00,000.00 VIMAL AGRAWAL 5.6.2006 20,00,00,000.00 AARATI BUILDCON LTD. 13.6.2006 11,52,00,000.00 AARATI SPONGE (P) LTD. 26.6.2006 20,00,00,000.00 CHHAGAN LAL MUNDRA 27.6.2006 10,00,00,000.00 AARATI BUILDCON LTD. 4.7.2006 11,00,00,000.00 12,05,20,000.00 20. FURTHER, DURING THE COURSE OF SEARCH AT THE RES IDENTIAL PREMISES OF SHRI SURESH ATLANI, ONE AGREEMENT MARKED AS LPS A-7/13 WAS ALSO FOUND. AS PER THE SAID AGREEMENT, SHRI SURESH ATLANI ALONGWITH HIS SON SHR I ABHISEK ATLANI AND TARAL MODI AGREED TO RELINQUISH THEIR RIGHT IN THE ASSESSEE CO MPANY W.E.F. 1.3.2006 FOR CERTAIN CONSIDERATION. THE CONSIDERATION, INTER ALIA, INCLU DED RS.10,33,11,005/- RECEIVABLE FROM M/S. SUNCITY PROJECT (P) LTD.,. AS PER THE SA ID AGREEMENT, OUT OF RS.10,33,11,005/- RECEIVABLE FROM SUNCITY PROJECT ( P) LTD., RS.2,84,10,526/- WAS TO BE RECEIVED BY SHRI SURESH ATLANI AND SHRI ABHISEK ATALANI AND RS.2,58,27,751/- WAS TO BE RECEIVED BY SHRI TARAL MODI. THUS, THE FIGURE OF RS.10,33,11,005/- IS CORROBORATED WITH THE EXCEL SHEET, WHEREIN, TOTAL A MOUNT WAS STATED AT RS.12,13,11,005/-, OUT OF WHICH, RS.1,80,00,000/- W AS ALREADY RECEIVED PRIOR TO THERTATE OF AGREEMENT. ON THE BASIS OF ABOVE DOCUME NTS, THE ASSESSING OFFICER INFERRED THAT THE LAND IN QUESTION WAS NOT SOLD FOR RS.2,95,20,000/- AS STATED IN THE REGISTERED SALE DEED BUT WAS ACTUALLY SOLD FOR RS.1 2,13,11,005/- AS REVEALED FROM THE 16 ITA NOS.185, 186 & 314/RPR/2014 SEIZED EXCEL SHEET ALONGWITH SEIZED AGREEMENT DATED 1.4.2006. THE ASSESSING OFFICER THEREFORE ADDED RS.9,17,91,005/- BEING SUPPRESSED S ALE PROCEEDS OF THE LAND IN QUESTION TO THE INCOME OF THE ASSESSEE FOR THE ASSE SSMENT YEAR 2008-09. 21. ON APPEAL, THE CIT(A) DELETED THE SAID ADDITION OF RS.9,17,91,005/-. AS PER THE CIT(A), THE AMOUNT RECEIVED FROM SUNCITY PROJEC T (P) LTD., INCLUDED LOANS ETC., WHICH WERE REPAID TO SUNCITY PROJECT (P) LTD., BY T HE RECIPIENTS BY CHEQUE MUCH BEFORE THE DATE OF SEARCH. THE ASSESSING OFFICER WA S NOT JUSTIFIED IN TREATING THE SAID AMOUNT AS ACTUAL SALE PROCEEDS OF THE LAND. THE AGR EEMENT DATED 1.4.2006 ALSO NOWHERE PROVIDES THAT RS.10,33,11,005/-, AMOUNT TO BE RECEIVED FROM SUNCITY PROJECT (P) LTD., WAS IN THE NATURE OF SALE PROCEED S OF LAND AT MOWA. ACCORDING TO HIM, ONLY REAL INCOME CAN BE BROUGHT TO TAX AS BECA USE THE AMOUNT RECEIVED FROM SUNCITY PROJECT (P) LTD. IN EXCESS OF RS.2,95,20,00 0/-WERE REPAID BACK AND NO REAL INCOME ACTUALLY ACCRUED OR RECEIVED BY THE ASSESSEE . 22. LD D.R. REITERATED THE FINDINGS OF THE ASSESSI NG OFFICER. 23. WE FIND THAT THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY SOLD ITS LAND SITUATED AT MOWA TO PURANDAR PROMOTER S AND DEVELOPERS PRIVATE LIMITED VIDE A REGISTERED SALE DEED DATED 13.3.2008 . AS PER THE SAID SALE DEED, THE CONSIDERATION FOR THE SAID LAND WAS RS.2,95,20,000 /- ONLY. THE STAMP DUTY VALUE OF THE SAID LAND WAS RS.3,68,90,000/- AT THE TIME OF E XECUTION OF SALE DEED. SECTION 43CA WAS INSERTED IN THE STATUTE BY THE FINANCE ACT 2013 W.E.F. 1.4.2014 AND, THEREFORE, NOT APPLICABLE IN THE ASSESSMENT YEAR UNDER APPEAL. NOW HERE IN THE COURSE OF SEARCH, ANY AGREEMENT FOR THE SAID SALE OF LAND IN QUESTION FOR AN AMOUNT OTHER THAN RS.2,95,20,000/- WAS FOUND. ON THE BASIS OF EXCEL S HEET CONTAINED IN THE PEN DRIVE, THE ASSESSING OFFICER INFERRED THAT THE ENTIRE AMOUNT O F RS.12,13,11,005/- RECEIVED/RECEIVABLE FROM SUNCITY PROJECT PVT. LTD., WAS ON ACCOUNT OF SALE OF THE LAND AT MOWA WHEREAS THE EXPLANATION OF THE ASSESSE E WAS THAT ON THE BASIS OF INFLATED AND PROJECTED VALUE OF THE LAND OF WHICH D EVELOPMENT WAS TO BE CARRIED OUT BY THE ASSESSEE AND ITS OTHER ASSOCIATES, THE SUNCI TY PROJECT (P) LTD., AGREED TO INVESTMENT RS.12,13,11,005/- WITH THE ASSESSEE AND ITS ASSOCIATES AS UNSECURED LOAN AND SHARE APPLICATION, ETC. FOR BECOMING A FUTURE P ARTNER IN THE DEVELOPMENT OF THE SAID LAND. HOWEVER, THIS DEAL COULD NOT BE MATERIAL IZED AND THE LOAN ETC RECEIVED FROM SUNCITY PROJECT (P) LTD., WAS RETURNED BACK TO THEM OR ADJUSTED AGAINST THE LAND IN AS IT IS POSITION. THE ASSESSEE STRONGLY URGED THAT IN NO POINT OF TIME SUNCITY PROJECT (P) LTD., OR PURANDAR PROMOTERS AND DEVELOP ERS PRIVATE LIMITED AGREED TO PURCHASE THE SAID LAND AT RS.12,13,11,005/- AND NEV ER EVER SUCH CONSIDERATION WAS RECEIVED BY THE ASSESSEE. IN VIEW OF THE ABOVE EXPL ANATION, WE FIND NO ERROR IN THE ORDER OF THE CIT(A). IN THE EXCEL SHEET CONTAINED I N THE SEIZED PEN DRIVE AGAINST THE AMOUNT OF RS.12,13,11,005/-, THE WORD STATED WAS 'C OST' AND NOT THE 'SALE VALUE' OF THE LAND. EVEN IN THE AGREEMENT DATED 1.4.2006, NOWHERE IT WAS STATED THAT RS.10,33,11,005/- RECEIVABLE FROM SUNCITY PROJECT P VT. LTD., WAS AGAINST THE SALE VALUE OF THE LAND IN QUESTION. THE EXPLANATION OF T HE ASSESSEE THAT IT WAS THE ESTIMATED COST AFTER THE DEVELOPMENT OF THE LAND AGAINST WHIC H M/S. SUNCITY PROJECT PVT. LTD., AGREED TO MAKE THE INVESTMENT BUT SUCH DEVELOPMENT NEVER TOOK PLACE CANNOT BE RULED OUT. RATHER THAT SEEMS TO BE MORE PLAUSIBLE AS THE AMOUNTS RECEIVED FROM SUNCITY PROJECT (P) LTD., WERE ALL THROUGH BANKING CHANNEL AND SAME WERE ALSO RETURNED BACK THROUGH BANKING CHANNEL BY THE RECIPIENTS OF THAT A MOUNT BEFORE THE DATE OF THE SEARCH. IN THE ABOVE CIRCUMSTANCES, WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH 17 ITA NOS.185, 186 & 314/RPR/2014 THE ORDER OF THE CIT(A). IT IS CONFIRMED AND THE GR OUND OF APPEAL OF THE REVENUE IS DISMISSED. 24. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. 14. SINCE THE ADDITION MADE BY THE ASSESSING OFFICE R IS ALSO BASED ON THE SAME AGREEMENT WHICH WAS FOUND FROM THE PREMISES OF M/S AARTI INFRASTRUCTURE & BUILDCON LTD. AND SINCE THE TRIBUNAL AFTER CONSID ERING THE VARIOUS SUBMISSIONS MADE BY BOTH THE SIDES HAS DISMISSED TH E APPEAL FILED BY THE REVENUE ON THIS ISSUE BY HOLDING THAT THE EXCEL SHE ET CONTAINING IN THE SEIZED PENDRIVE AGAINST THE AMOUNT OF RS.12,13,11,005/-, T HE WORD STATED WAS COST AND NOT THE SALE VALUE OF THE LAND AND THAT IN TH E AGREEMENT DATED 01.04.2006 NOWHERE IT WAS STATED THAT THE AMOUNT OF RS.10,33,1 1,005/- RECEIVABLE FROM SUNCITY PROJECT (P) LTD. WAS AGAINST THE SALE VALUE OF LAND IN QUESTION, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDI TION FOR THE YEAR UNDER CONSIDERATION IN THE HANDS OF THE ASSESSEE. ACCORD INGLY, THE ORDER OF THE LD. CIT(A) IS UPHELD AND THE GROUNDS RAISED BY THE REVE NUE ARE DISMISSED. ITA NO.185/RPR/2014 (ABHISHEK ATLANI): ITA NO.186/RPR/2014 (SURESH ATLANI) : 15. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUN DS RAISED BY THE REVENUE IN THE ABOVE TWO APPEALS ARE IDENTICAL TO THE GROUN DS IN ITA NO.314/RPR/2014 WHERE THE ADDITION WAS MADE BY THE ASSESSING OFFICE R ON THE BASIS OF THE SAME 18 ITA NOS.185, 186 & 314/RPR/2014 SEIZED DOCUMENTS AND THE LD. CIT(A) HAS DELETED THE ADDITION. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISED BY THE REV ENUE HAVE BEEN DISMISSED. FOLLOWING SIMILAR REASONING, THE GROUNDS RAISED BY THE REVENUE IN THE ABOVE TWO APPEALS ARE ALSO DISMISSED. 16. IN THE RESULT, ALL THE THREE APPEALS FILED BY T HE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH OCTOBER, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12-10-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., RAIPUR. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY ITAT, RAIPUR