Shri Ashokkumar C.Modi, Himatnagar V. The A.CIT.,C.C.1(2), Ahmedabad

ITA 1973/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1281 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL H TALATI
• Keywords: Gift; Income from undisclosed sources; Principle of natural justice; Reasonable cause; Corroborative evidences
• Section: 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER SR. NO. ITA NO./ ASSTT.YEAR APPELLANT RESPONDENT 1. ITA NO.482/AHD/2012 ASSTT.YEAR 2008-09 SHRI SENDHABHAI M. DESAI C/O.SABERA HOTELS P.LTD. NR.RAMOSANA CHAR RASTA MEHSANA 84 001. PAN : AAWPD 3235 C DCIT, CENT.CIR.1(3) AHMEDABAD. 2. ITA NO.593/AHD/2013 ASSTT/YEAR 2009-10 - DO - ACIT, CENT.CIR.1(2) AHMEDABAD. 3 . ITA NO.2722/AHD/201 1 ASSTT.YEAR 2008-09 SHRI ASHOKBHAI C. MODI A/6, ANKUR SOCIETY MAHAVIR NAGAR HIMATNAGAR. PAN : AHDPM 4210 G 4 . ITA NO.3012/AHD/2011 ASSTT.YEAR 2008-09 RAJULBEN SHAILESH KUMAR DOSHI 19, MAHAVIRNAGAR SOCIETY HIMATNAGAR, AHMEDABAD. PAN : AFDPB 1669 N DCIT, CENT.CIR.1(1) AHMEDABAD. 5 . ITA NO.1974/AHD/2013 ASSTT.YEAR 2009-10 - DO - ACIT, CENT.CIR.1(2) AHMEDABAD. 6 . ITA NO.2723/AHD/2015 ASSTT.YEAR 2008-09 - DO - ITO, SK, WARD - 3 AHMEDABAD. 7 . ITA NO.1973/AHD/2013 ASSTT.YEAR 2009-10 ASHOKKUMAR C. MODI A/5, ANKUR SOCIETY MAHAVIRNAGAR, HIMATNAGAR DIST: SABARKANTHA. PAN : AHDPM 4210 G ACIT, CENT.CIR.1(2) AHMEDABAD. 8 . ITA NO.3011/AHD/2011 ASSTT.YEAR 2008-09 - DO DCIT, CENT.CIR.1(3) AHMEDABAD. 9 . ITA NO.483/AHD/2012 ASSTT.YEAR 2008-09 SHRI MAFATLAL V. PATEL VACHALI PATI, VILLAGE : BHANDU, TALUKA : VISNAGAR DIST. MEHSANA 384 001. PAN : BIHPP 4734 Q DCIT, CENT.CIR.1(3) AHMEDABAD. 10 . ITA NO.595/AHD/2013 ASSTT.YEAR 2009-10 SHRI MAFATLAL VIRCHANDDASBHAI PATEL VACHALI PATTI, VILL: BHANDU TAL: VISNAGAR, DIST. MEHSANA PAN : BIHPP 4734 Q ACIT, CENT.CIR.1(2) AHMEDABAD. 1 1 . ITA NO.484/AHD/2012 ASSTT.YEAR 2008-09 SHRI POPATLAL V. PATEL 11-B, SHREYAS SOCIETY ROTARY BHAVAN, OPP: JAIL DCIT, CENT.CIR.1(3) AHMEDABAD. ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 2 MEHSANA 384 001. 1 2 . ITA NO.594/AHD/2013 ASSTT.YEAR 2009-10 - DO - ACIT, CENT.CIR.1(2) AHMEDABAD. 1 3 . ITA NO.596/AHD/2013 ASSTT.YEAR 2009-10 SHRI MANIBHAI VIRCHANDBHAI PATEL APOLLO HOSPITAL NR. SARDAR HALL HIGHWAY ROAD, MEHSANA PAN : AHKPP 8276 C ACIT, CENT.CIR.1(1) AHMEDABAD. ASSESSEE BY : SHRI SUNIL H. TALATI, AR REVENUE BY : SHRI RAKESH JHA, SR.DR / DATE OF HEARING : 06/06/2016 / DATE OF PRONOUNCEMENT: 14/06/2016 / O R D E R THIS BUNCH OF 13 APPEALS OF DIFFERENT ASSESSEES CON TAIN COMMON ISSUES OF LAW AND FACTS, THEREFORE, HEARD THEM TOGETHER, A ND I DEEM IT APPROPRIATE TO DISPOSE OF THEM BY THIS COMMON ORDER. 2. ITA NO.2723/AHD/2015 AND 2722/AHD/2011 HAVE ARIS EN OUT OF THE PENALTY PROCEEDINGS INITIATED AGAINST ASSESSEES UND ER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. REST OF ELEVEN APPEALS AROSE FROM THE ASSESSMENT ORDERS PASSED UNDER SECTIONS 143(3)/144/153C OF THE INCOME TAX ACT. THOUGH THE FACTS ON ALL VITAL POINTS ARE COMMON, TH EREFORE, FOR THE FACILITY OF REFERENCE, I AM TAKING FACTS FROM ITA NO.482/AHD/20 12 AND 3012/AHD/2011 IN THE CASE OF SHRI SENDHABHAI DESAI AND RAJULABEN S. DOSHI. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE OPERATION WAS CARRIED OUT UNDER SECTION 132 OF THE INCOME TAX ACT ON THE PREMISES OF SHRI GANDAJI AMBARAM THAKOR @ MAKWANA AND OTHERS. SEARC H WAS CARRIED OUT ON 15.10.2008. DURING THE COURSE OF SEARCH, STATEMENT OF SHRI GANDAJI A. THAKOR, HIS SONS AND OTHER FAMILY MEMBERS WERE RECO RDED UNDER SECTION 132(4) OF THE INCOME TAX ACT. IN THEIR STATEMENT, THEY HAVE DISCLOSED THAT ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 3 LAND BEARING BLOCK NO.648 SITUATED IN REVENUE STATE AT VILLAGE ADALAJ, DIST. GANDHINAGAR WAS SOLD BY HIM VIDE SALE DEED EXECUTED ON 11.8.2008. THE SALE CONSIDERATION STATED IN THE SALE DEED WAS OF RS.53, 51,520/-. THE SIX APPELLANTS HERE IN NUMBERS HERE IN THESE APPEALS WE RE VENDEES. SHRI GANDAJI A. THAKOR HAS DISCLOSED THAT THE LAND WAS ACTUALLY SOLD FOR A CONSIDERATION OF RS.2.10 CRORES. HE DISCLOSED HOW THE SALE PROCEEDS WERE UTILIZED BY HIM. THE VENDEES I.E. APPELLANTS ARE THE RESIDENT OF BHA NDU, MEHSANA AND HIMATNAGAR. THEY HAVE BEEN FILING THE I.T. RETURN WITH I.T. AUTHORITY OF THEIR RESPECTIVE TOWN. SINCE INFORMATION CAME TO THE NOT ICE OF DEPARTMENT BY VIRTUE OF SEARCH, THEREFORE, JURISDICTION OVER THEM WAS TRANSFERRED TO ACIT/DCIT, CC-1 (3), AHMEDABAD BY PASSING AN ORDER U/S.127 OF THE INCOME TAX ACT. THIS ORDER WAS PASSED ON 26.3.2009 IN THE CASE OF SMT.RAJULBEN S.K. DOSHI. ON THE STRENGTH OF THE DISCLOSURE MADE BY VENDOR, THE LD.AO HAS HARBOURED A BELIEF THAT VENDEES MUST HAVE PAID MONE Y IN CASH, OVER AND ABOVE, THE SALE CONSIDERATION STATED IN THE SALE DE ED. IN OTHER WORDS, CASH CONSIDERATION WAS AGGREGATING TO RS.1.57 CRORES. S INCE SHRI GANDAJI A. THAKOR HAS MADE INVESTMENT OF RS.1,35,33,500/- IN T HE ACCOUNTING YEAR RELEVANT TO THE ASSTT.YEAR 2008-09, IT WAS CONSTRUE D BY THE AO THAT THIS MUCH OF THE CASH WAS PAID BY THE ASSESSEES IN THE ASSTT. YEAR 2008-09. HE FURTHER MADE INVESTMENT OF RS.20,66,500/- IN THE ACCOUNTING YEAR RELEVANT TO THE ASSTT.YEAR 2009-10. THEREFORE, THE AO CONSTRUED TH AT PAYMENT TO THIS EXPENDITURE WAS MADE BY THE ASSESSEES IN THE NEXT Y EAR. ACCORDINGLY, HE MADE ADDITION OF RS.1,35,33,500/- IN EQUAL SHARES I N THE HANDS OF THE APPELLANTS. THIS LEAD TO AN ADDITION OF RS.22,55,5 83/- IN THE ASSTT.YAR 2008- 09 IN EACH HAND. SIMILARLY, IN THE ASSTT.YAR 2009- 10, THE ADDITION CAME TO EACH HAND HAS BEEN WORKED OUT AT RS.3,44,417/-. APPEAL TO THE LD.CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. THE APPE AL OF MANIBHAI V. PATEL FOR ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 4 ASSTT.YEAR 2008-09 IS NOT LISTED BEFORE ME. THE LD .COUNSEL DOES NOT KNOW THE STATUS OF THE THAT. 4. IT WAS BROUGHT TO MY NOTICE THAT ITA NO.1974/AHD /2013 AND ITA NO.1973/AHD/2013 FILED BY RAJULABEN DOSHI AND ASHOK BHAI C. MODI WERE TIME BARRED BEFORE THE LD.CIT(A) BY FIVE AND HALF M ONTHS. THESE APPEALS HAVE BEEN DISMISSED BY THE LD.CIT(A) ON ACCOUNT OF BARRED BY LIMITATION. IN ORDER TO EXPLAIN THE DELAY, IT WAS CONTENDED BY THE ASSESSEE THAT THEY HAVE HANDED OVER THEIR INCOME-TAX PROCEEDINGS TO ONE A.B . SHAH & CO., CHARTERED ACCOUNTANTS ON RECEIPT OF ASSESSMENT ORDERS IN THE MONTH OF DECEMBER, 2011. THEY HAVE HANDED OVER THE ORDERS TO SHRI RAJEN MAHE SHCHANDRA DALVADI, WHO WAS WORKING AS CLERK IN THE FIRM OF A.B. SHAH & COM PANY. SHRI RAJEN M. DALVADI HAS PLACED THESE ASSESSMENT ORDERS WITH OTH ER RECORDS. WHEN OTHER PROCEEDINGS WERE GOING ON IT CAME TO THE NOTICE OF THE ASSESSEES THAT THEIR APPEALS WERE NOT FILED. THE ASSESSEES IMMEDIATELY GOT THE APPEAL FILED, BUT BY THE TIME, THEY WERE DELAYED BY FIVE-AND-HALF MONTHS . THE ASSESSEES HAVE MENTIONED THE FACT OF DELAY IN THE GROUNDS OF APPEA L AND PRAYED FOR CONDONATION OF DELAY. THE LD.CIT(A) HAS REJECTED T HE CONTENTIONS OF THE ASSESSEE ON THE GROUND THAT ALONG WITH THE APPEAL P APERS, THE ASSESSEES HAVE NOT FILED APPLICATION FOR CONDONATION OF DELAY. TH E AFFIDAVIT OF THE CLERK HAS BEEN FILED DURING THE APPEAL HEARING. THE LD.CIT(A ) WAS OF THE OPINION THAT THE APPLICATION IN PROPER FORMAT OUGHT TO HAVE BEEN FILED ALONG WITH APPEAL AND THE AFFIDAVIT SHOULD HAVE ALSO BEEN FILED AT TH AT POINT OF TIME. SINCE AFFIDAVIT WAS FILED ON 6.5.2013, DURING THE COURSE OF HEARING, THE LD.CIT(A) CONSTRUED AS IF NO REASONABLE CAUSE HAS BEEN DEMONS TRATED BY THE ASSESSEE. 5. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. I FIND THAT IN THE CASE OF SHRI SENDHABHAI DESAI, THE LD.CIT(A) HAS DECIDED THE APPEALS OF TWO PERSONS VI Z. POPATLAL V. PATEL AND ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 5 MAFATLAL V. PATEL. THESE PERSONS HAVE PURCHASED TH E ALLEGED AGRICULTURE LAND. THE ASSESSMENT ORDERS WERE PASSED EX PARTE UNDER SECTION 144. IN THE CASE OF RAJULBEN, IT HAS BEEN PLEADED THAT SHE HAS BEEN FIL ING THE RETURN REGULARLY AT HIMATNAGAR. SHE FILED COPIES OF I.T. RETURNS AND S UBMITTED THAT ACIT, AHMEDABAD HAD NO JURISDICTION OVER HER, THEREFORE, SHE DID NOT TAKE COGNIZANCE OF THE NOTICE. ACCORDING TO THE ASSESSE ES THE NOTICE FOR TRANSFER OF JURISDICTION U/S.127 WAS RECEIVED, BUT, THEREAFTER NO ORDER WAS RECEIVED. THUS, THIS IS THE BACKGROUND OF EXPARTE ASSESSMENT ORDERS. THE ISSUE ON MERIT, OTHERWISE, OPEN BEFORE THELD.CIT(A). FROM THE AFFI DAVIT OF SHRI RAJEN M. DALVADI, IT IS DISCERNIBLE THAT HE OWNED-UP RESPONS IBILITY OF NEGLIGENCE. HE HAS MISPLACED PAPERS IN OTHER FILES AND IT CAME TO THE NOTICE WHEN THE ASSESSEES HAVE MADE INQUIRY ABOUT THE STATUS OF THE APPEALS. THERE CANNOT BE ANY DELIBERATE ATTEMPT AT THE END OF THE ASSESSEES FOR FILING THEIR APPEALS AFTER EXPIRY OF LIMITATION, BECAUSE THAT TYPE OF STEP WOU LD NOT BRING ANY FAVOURABLE DECISION TO THEM. A TAX LIABILITY HAS BEEN PUT UPO N THEM. THEY WOULD LIKE TO GET THIS LIABILITY SET ASIDE BY APPROACHING HIGHER AUTHORITIES. THEREFORE, AFTER LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CAS E, I AM SATISFIED THAT THE ASSESSEES HAVE EXPLAINED THE DELAY IN FILING THE AP PEAL BELATEDLY BEFORE THE LD.CIT(A). I CONDONE THE DELAY IN FILING THE APPEA LS BEFORE THE LD.CIT(A). 6. ACCORDING TO THE PROCEDURAL NORMS, APPEALS DESER VE TO BE SET ASIDE TO THE FILE OF THE LD.CIT(A) FOR ADJUDICATION ON MERIT , BUT SINCE A COMMON ISSUE, WHICH IS SIMILAR ON MERIT, IS INVOLVED IN ALL OTHER APPEALS, WHERE ARGUMENTS HAVE BEEN ADVANCED BY THE LD.REPRESENTATIVES, I PRO CEED TO DECIDE THESE APPEALS ALSO ON MERIT HERE IN THE TRIBUNAL ITSELF. 7. ON MERIT WHILE IMPUGNING THE ORDERS OF THE LD.CI T(A), THE LD.COUNSEL FOR THE ASSESSEE RAISED TWO FOLD SUBMISSIONS. IN H IS FIRST FOLD OF SUBMISSIONS, HE POINTED OUT THAT VENDEES WERE RESIDING AT MEHSAN A AND HIMATNAGAR. THEY ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 6 HAVE PURCHASED LAND AT VILLAGE ADALAJ THROUGH BROKE R SHRI HARGOVANBHAI ISHWARBHAI DESAI WHO WAS RESIDING AT PETROL PUMP, A DALAJ AND SECOND BROKER IS DUDHAJI AJAJI THAKOR RESIDING AT ADALAJ. THESE BROKERS HAVE IDENTIFIED THE LAND, AND THEY HAVE APPRISED THE VENDORS TO ACCEPT SALE CONSIDERATION THROUGH ACCOUNT PAYEE CHEQUE. THE ASSESSEE HAVE PURCHASED THE LAND VIDE SALE DEED DATED 11.8.2008. THEY HAVE SUBMITTED THE DOCUMENTS FOR CHANGE OF MUTATION IN THEIR NAMES IN THE REVENUE RECORD. THE TALATI , ADALAJ GRAM PANCHAYAT HAS RECORDED THEIR NAMES AS PURCHASER AND OWNER OF THE LAND. HOWEVER, THIS ORDER DATED 27.7.2009 WAS CHALLENGED BY SHRI RJAESHBHAI J . DESAI AND SMT.ASHABEN BEFORE PRANT OFFICER, GANDHINAGAR. HE PASSED AN OR DER DATED 6.9.2010 DE- RECOGNIZING THE ENTRY PASSED BY THE TALATI AND DY.MAMLATDAR, GANDHINAGAR. THE DISPUTE WITH REGARD TO THE OWNERSHIP OF THE LAN D IS STILL PENDING AND THE NAME OF THE ASSESSEES HAVE NOT BEEN ENTERED INTO RE VENUE RECORD. THE LD.COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT PRIOR TO EXECUTION OF SALE DEED IN FAVOUR OF THE ASSESSEE, VENDOR SHRI GANDAJI THAKOR HAS SOLD ITS LAND TO THREE MORE PERSONS WITH THREE SEPARATE SALE DEEDS. THE DETAILS HAVE BEEN SUBMITTED AS UNDER: NAME OF THE PURCHASER DATE OF DOCUMENT REGN. NO. AMOUNT OF SALE HEMENDRA LILABHAI SHAH 27.09.2007 12062 57,28,350/- JAYANTIBHAI GUMAJI THAKOR 29.05.2008 9904 35,00,000/- RAJESHBHAI J. DESAI & OTHERS 08.10.2007 12445 61,00,000/- 8. THESE DATES WERE CLOSE TO THE PURCHASE DEED EXEC UTED IN FAVOUR OF THE ASSESSEE. THE LD.COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT THE LD.CIT(A) HAS MADE REFERENCE TO THE STATEMENT OF ALL THE FAMI LY MEMBERS OF SHRI GANDAJI A. THAKOR RECORDED UNDER SECTION 132(4) OF THE INCO ME TAX ACT. BUT NONE OF ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 7 THE VENDORS HAD MADE A MENTION OF NAME OF THE ASSES SEES. HE PARTICULARLY TOOK US THROUGH THE STATEMENT OF GANDAJI THAKOR AND JYANTIBHYAI G. THAKOR. HE FURTHER CONTENDED THAT IN THE CASE OF SENDHABHAI DESAI, THE ASSESSEE WROTE A LETTER TO THE DCIT ON 18.10.2010 REQUESTING FOR S UPPLY OF COMPLETE STATEMENT AS WELL AS CROSS-EXAMINATION OF SHRI GAND AJI THAKOR. COPY OF THIS APPLICATION HAS BEEN PLACED ON RECORD. THE LAST PA RAGRAPH OF THIS LETTER READS AS UNDER: .. I FURTHER SUBMIT THAT THE STATEMENT OF SHRI GANDAJI A. THAKOR GIVEN DURING SEARCH OPERATION AND GIVEN DURING POST SEARC H INQUIRY AND FACT NARRATED DURING ASSESSMENT PROCEEDINGS ARE GOING TO BE USED AGAINST ME AND AS PER THE PROVISIONS OF THE INCOME TAX ACT, THE ABOVE STATEMENTS AND FACTS CANNOT BE USED AGAINST ME WITH OUT GIVING COY OF THE SAME TO ME HENCE IT IS REQUESTED TO GIVE ME COP Y OF THE ABOVE STATEMENTS AND FACTS TO ME AT YOUR EARLIEST. I RES ERVE MY RIGHT TO CROSS- EXAMINE THE PERSON WHO HAS GIVEN MISLEADING INFORMA TION TO THE INCOME TAX DEPARTMENT AGAINST ME. I AM TRYING TO EXTEND MY FULL COOPERATION FOR COMPL ETION OF THE TIME BARRING ASSESSMENT AND I WILL REMAIN PRESENT WITHIN A DAY OR TWO. INCONVENIENCE CAUSED IS VERY MUCH REGRETTED. THANKING YOU, YOURS FAITHFULLY, SD/- SENDHABHAI MADANBHAI DESAI HE CONTENDED THAT OPPORTUNITY TO CROSS-EXAMINE WA S NOT GIVEN. ON THE STRENGTH OF HONBLE SUPREME COURT DECISION IN THE C ASE OF ANDAMAN TIMBER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE, KOLK ATA IN CIVIL APPEAL NO.4228 OF 2006, HE CONTENDED THAT THESE EVIDENCES OUGHT TO BE EXCLUDED FROM CONSIDERATION. COPY OF THE HONBLE SUPREME CO URT DECISION DATED ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 8 2.9.2015 HAS BEEN PLACED ON RECORD. RELEVANT PART OF THE JUDGMENT READS AS UNDER: ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CROS S-EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENT OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNT ED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED UPON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-EXAMINE, THE ADJUDIC ATING AUTHORITY DID NOT GRANT THIS OPPORTUNITY TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUD ICATING AUTHORITY HE HAS SPECIFICALLY MENTIONED THAT SUCH AN OPPORTUN ITY WAS SOUGHT BY THE ASSESSEE. HOWEVER, NO SUCH OPPORTUNITY WAS GRA NTED AND THE AFORESAID PLEA IS NOT EVEN DEALT WITH THE ADJUDICAT ING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJECTIO N OF THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED THAT CROSS- EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROU GHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION OF THE AP PELLANT THEMSELVES TO EXPLAIN AS TO WHY THEIR EX-FACTORY PRICES REMAIN STATIC. IT WAS NOT FOR THE TRIBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURP OSES THE APPELLANT WANTED TO CROSS-EXAMINE THOSE DEALERS AND WHAT EXTR ACTION THE APPELLANT WANTED FROM THEM. ACCORDINGLY, THE LD.COUNSEL FOR THE ASSESSEE CONTE NDED THAT THERE IS NO EVIDENCE WITH THE REVENUE WHICH CAN SUGGEST THAT TH E ASSESSEES HAVE MADE PAYMENTS, OVER AND ABOVE, ONE STATED IN THE SALE DE ED. 9. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORD ERS OF THE LD.CIT(A). HE CONTENDED THAT THE VENDORS ARE FARMERS. ONE SON OF THE VENDOR WAS AN AUTO-DRIVER. THEY HAVE NO OTHER SOURCE OF INCOME E XCEPT SALE OF LAND. THUS, AFTER EVALUATING THEIR SOCIAL BACKGROUND, THE LD.AO HAS RIGHTLY ARRIVED AT A CONCLUSION THAT WHATEVER MONEY CAME TO THEIR POSSES SION, IT CAME BY VIRTUE OF ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 9 SALE OF AGRICULTURE LAND. THE LD.AO HAS RIGHTLY DR AWN A STRONG INFERENCE OF THE PAYMENTS OF ON-MONEY IN CASH BY THE VENDEES TO THE VENDORS. 10. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. IT IS APTLY SAID THAT WHEN ANY EXPLANAT ION OR A DEFENCE OF AN ASSESSEE BASED ON NUMBER OF FACTS SUPPORTED BY EVID ENCE AND CIRCUMSTANCES REQUIRED CONSIDERATION WHETHER EXPLANATION IS SOUND OR NOT MUST BE DETERMINED NOT BY CONSIDERING THE WEIGHT TO BE ATTA CHED TO EACH SINGLE FACT IN ISOLATION BUT BY ASSESSING THE CUMULATIVE EFFECT OF ALL THE FACTS IN THEIR SETTING AS A WHOLE. TO THE REVENUE THERE IS A STRONG PROVO CATION FOR DRAWING INFERENCE ON THE BASIS OF BACKGROUND OF THE VENDORS . BUT, BEFORE DRAWING SUCH CLINCHING INFERENCE, THE LD.AO FAILED TO APPRE CIATE THE OVERALL CIRCUMSTANCES. THE LD.CIT(A) HAS MADE REFERENCE TO THE STATEMENT OF FIVE PERSONS MADE UNDER SECTION 132(4) OF THE INCOME TAX ACT. THESE PERSONS ARE SHRI GANDAJI AMBARAM THAKOR, RANJITBHAI VECHATJI TH JAKOR, DINESHJI V. THAKOR, SAJJANBEN V. THAKOR AND JAYANTIBHAI G. THAK OR. THEIR STATEMENTS HAVE BEEN RECORDED ON 15.10.2008. IT IS ALSO PERTI NENT TO MENTION THAT IN THE SALE DEED EXECUTED ON 11.8.2008, SHRI GANDAJI A. TH AKOR WAS THE MAIN VENDOR. THEREAFTER, OTHER PERSONS HAVE PUT THEIR S IGNATURES AS CONFIRMING PARTIES. THE CONFIRMING PARTIES ARE VINABEN, HARKH ABEN AND GEETABEN DAUGHTERS OF GADAJI AMBARAM. IF WE LOOK ON THE NAM ES OF THE PERSONS, WHOSE STATEMENTS HAVE BEEN REFERRED BY THE LD.CIT(A ), THEN IT WOULD REVEAL THAT OUT OF FIVE PERSONS, THREE ARE NOT VENDORS OF THE ASSESSEE VIZ. RANJIBHAI V. THAKOR, DINESHJI V. THAKOR AND SMT.SAJJANBEN V.THAK OR. THEY WERE NOT SIGNATORIES OF THE SALE DEED EVEN AS A CONFIRMING P ARTIES. THEN, OUT OF FIVE PERSONS, WHOSE STATEMENTS HAVE BEEN REFERRED, ONE I S VENDOR VIZ. SHRI GANDAJI A. THAKOR AND OTHER ONE SHRI JAYANTIBHAI G. THAKOR WHO HAD ACTED ON BEHALF OF GANDAJI THAKOR. HE IS THE SON OF GANDAJIS SIST ER. NOW LET US EVALUATE ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 10 THEIR STATEMENT REPRODUCED BY THE LD.CIT(A) IN THE CASE OF SENDHABHAI M. DESAI. Q.1 GIVE INTRODUCTION ABOUT YOURSELF A.1 MY NAME IS SHRI JAYANTIBHAI G. THAKORE AND I STUDY TILL S.S.C. I AM 42 YEARS OLD. I LIVE AT ADALAJ Q.2 WHAT YOUR SOURCE OF INCOME ? A.2 I HAVE SMALL RESTAURANT NAMED CHANDI- CHAMUNDA OF TEA-BREAK FAST AT SABARMATI ADALAJ Q.3 DO YOU KNOW GANDAJI AMAJI ? HOW YOU RELATED TO HIM? A.3 GANDAJI AMAJI IS MY UNCLE (MOTHERS SISTERS HUSBAND) (MASA) Q.4 SHRI GANDABHAI AMJIBHAI THAKOR, SENDAHAJI GANDABHAI THAKORE AND SAJANBEN VECHATJI HAD SOLD THE LAND OF KALOL GANDHINAGAR APPROACH ROAD. WHAT YOU KNOW ABOUT IT. A.4 THE LAND OF KALOL GANDHINAGAR APPROACH ROAD WAS SOLD BY ME. I HAD RECEIVED BROKERAGE FOR THAT. Q.5 IN WHICH AMOUNT THAT AND WAS SOLD ? A.5 THAT LAND WAS SOLD IN AMOUNT RS.2,10,00,000 Q.6 HOW THIS PAYMENT WAS DONE OF RS.2,10,00,000 AND TO WHOM THIS LAND YOU SOLD ? A.6 GANDABHAI AMAJIBHAI THAKORE SOLD THE LAND OF KALOL GANDHINAGAR APPROACH ROAD TO BHAVANSINH JALAMSINH CHAMPAT. MY NAME WAS TAKEN FOR THIS TRANSACTION AND I GOT COMMISSION FOR THAT. PARTICULARS AMOUNT BANAKHAT CASH 7,00,000 CASH AT THE TIME OF DASTAVEJ 35,00,000 GIVEN BY 6 (SIX) CHEQUES 53,00,000 BALANCE CASH 1,15,00,00 ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 11 THESE SIX CHEQUES WERE GIVEN BY BHAVAN SINGH TO THE PERSON TO WHOM THE LAND HAS SOLD. EACH CHEQUE AMOUNT OF RS.8,91,120/-. THE REMAINING CASH WAS GIVEN TO BHAVAN SINGH TOME AND I HAVE GIVEN THIS CASH TO GANDABHAI THAKORE. Q.7. THE LAND OF KALOL GANDHINAGAR APPROACH ROAD WHICH WAS PURCHASED BY YOUR NAME BY SAYING OF BHAVANINSGH CHAMPAVAT. WHAT YOU DO WITH THIS LAND ? A.7. BHAVANSINGH CHAMPAVAT SOLD THE LAND OF KALOL GANDHINAGAR APPROACH ROAD WHICH WAS PURCHASED BY MY NAME, TO OTHER 6 PEOPLE. Q.8. HOW GANDABHAI THAKORE SPENT THIS AMOUNT OF RS.2,10,00,000. DO YOU KNOW ABOUT IT ? A.8 YES I KNOW ABOUT IT. THIS AMOUNT IS AS FOLLOWING: LIC INVESTMENT BY MARKET PLANT SCHEME OF 4 PERSON 1,12,00,000 13 VIGHA LAND PURCHASED BY GANDABHAI FROM KHUSHALDASBHAI 13,00,000 POST OFFICE A/C BYNAME OF 4 PERSON (SENDHAJI, MINABEN, RAJITBHAI) 10,95,000 BUILD NEW HOUSE AND TWO TEMPLE 11,00,000 GIVEN TO TWO DAUGHTER 2,00,000 ONE CHEQUE RETURN FROM 6 CHECK 8,97,920/- STATEMENT OF GANDABHAI A. THAKORE Q.1 GIVE YOUR FULL INTRODUCTION ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 12 A.2 MY NAME IS GANDARAM AMBARAM THAKOR. AGE : 62 YEARS, EDUCATION: 5 TH STANDARD, ADDRESS: MAHADEV VAS ADALAJ. Q.2 WHAT IS YOUR SOURCE OF INCOME ? A.2 I MOSTLY EARN BY FARMING AND INCOME OF BUFALOS MILK. Q.3 GIVE ME INTRODUCTION ABOUT YOUR FAMILY. A.3 MY FAMILY MEMBER INCLUDES FOLLOWING MEMBERS: MY SON SENDHAJI, SISTER-IN-LAW MINABEN, THEIR TWO CHILDREN AND GITABEN IS LIVING WITH HER DAUGHT. Q.4 WHETHER YOU SOLD ANY LAND IN THE YEAR 2008 ? IF YOU SOLD, TO WHOM AND IN WHICH AMOUNT YOU SOLD THAT LAN D ? & HOW THE PAYMENT WAS MADE ? A.4 YES. IN THE YEAR 2008, I SOLD LAND OF KALOL- GANDHIANGAR APPROACH ROAD TO MR. BHAVANSINGH JALAMSINH CHAMPAVAT AT AN AMOUNT OF RS.210,00,000/- AND THE PAYMENT MADE AS FOLLOWING: BANAKHAT CASH 700,000 CASH AT THE TIME OF DASTAVEJ 35,00,000 GIVEN BY 6 (SIX) CHEQUES 53,50,000 BALANCE CASH 114,50,000 THESE SIX CHEQUES WERE GIVEN BY BHAVANSINH TO THE PERSON TO WHOM THE LAND HAS SOLD. EACH CHEQUE AMOUNT TO RS.891,920/-. THE REMAINING CASH WAS GIVEN TO BHAVANSINGHT TO JAYANTIBHAI G. THAKOR (MY SISTERS SON) AND JAYANTIBHAI G. THAKOR HAS GIVEN T HIS CASH TO ME. Q.5 HOW YOU SPEND THIS 2,10,00,000 ? GIVE DETAILS A BOUT IT. A.5 I INVEST THIS AMOUNT BY TAKING LIC OF 4 PERSONS 1,12,00,000 ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 13 1. PURCHASE LAND 13 VIGHA FORM GANDABHAI K. PATEL AND VITHALKBHAI G. PATEL OF RS.13,00,000/- 2. OPEN POST OFFICE ACCOUNT OF SENDHAJI, MINABEN AND RANJIT OF RS.10,95,000/- 3. MADE NEW HOUSE AND 2 TEMPLE RS.11,00,000 4. GIVE GIFT TO 2 DAUGHTER RS.2,00,000 5. 1 CHECK WAS RETURNED FROM THE 6 CHEQUE RS.8,91,920/- 6. BANK BALANCE RS.32,59,000/- TOTAL 1,90,45,920/- THE REMAINING AMOUNT I DONT KNOW WHERE I SPENT. Q.6 DO YOU FILE INCOME TAX RETURN ? HAVE YOU PAID T HE I.T. RETURN OF RS.2,10,00,000/- ? A.6 NO, I HAVENT PAID ANY I.T. RETURN. I HAVENT PAID RETURN ON RS.2,10,00,000/- Q.7 IF YOU HAVENT PAY ANY RETURN ON THE AMOUNT 2,10,00,000/- THEN AMOUNT SHOULD NOT BE UNACCOUNTED INCOME ? A.7. I HAVENT PAY RETURN ON RS.2,10,00,000 AND I D ECLARE IT TO BE UNACCOUNTED INCOME AND I READY TO PAY RETU RN ON IT. Q.8. ARE YOU KEEPING BOOKS ? A.8 NO, I NEVER KEEP BOOKS. Q.9 DO YOU KNOW THAT THE LAND (KALOL GANDINAGAR APPROACH ROAD) WHICH YOU SOLD. FROM THAT 8 K.M. RADIUS LAND COME UNDER THE MUNICIPAL PROPERTY ? A.9 YES, I KNOW THT 8 K.M. RADIUS LAND COMES IN MUN ICIPAL PROPERTY. Q.10 HAVE YOU SOLD THIS LAND (KALOL GANDHINAGAR APPROACH ROD) EVEN BEFORE ANOTHER PERSON ? IF YES, THEN TO WHOM AND IN HOW MUCH AMOUNT AND HOW THE PAYMENT IS MADE ? A.10 YES, I SOLD THIS LAND EVEN BEFORE THROUGH ABBA SBHAI AND FOR THIS I GOT CASH RS.7,00,000 Q.11 MR.HEMENDRABHAI SHAH TO WHOM SOLD THE LAND THROUGH MR.ABBASBHAI. HE (MR.HEMENDRABHAI SHAH) ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 14 TOLD IN HIS STATEMENT THAT HE PAID IN CASH RS.57,00,000/- IN THE PRESENT OF MR.ABBASBHAI AND MR.PRAJAPATI. WHAT YOU WANT SAY ABOUT THIS STATEMENT ? A.11 I HAVE GIVEN POWER OF ATTORNEY TO MR.ABBASBHAI . HE (MR.ABBASBHAI) GIVEN ME ONLY 7,00,000 CASH AND THE REMAINING AMOUNT 50,00,000 I DIDNT GET FROM HIM SO THE LAND WAS NOT TITLE CLEARED. I FILED THE OBJECT ION PETITION FOR THAT. Q.12 YOU HAVE GIVEN THE POWER OF ATTORNEY TO ABBASB HAI, THATS MEAN WHETHER THE AMOUNT OF RS.57,00,000 GIVEN TO YOU OR MR.ABBASBHAI IS SAME. WHAT YOU WANT TO SAY ABOUT THIS ? A.12 YES, I AGREE THAT IF THIS AMOUNT RS.57,00,000 GOT ME OR MR.ABBASBHAI IS SAME. Q.13 THIS AMOUNT OF RS.57,00,000 IS ACCOUNTED INCOME. YOU WANT DECLARE THAT OR NOT ? MR. HEMDNRABHAI SHAH TOLD IN HIS STATEMENT THAT HE PAID IN CASH RS.57,00,000 AND IF YOU DONT ACCEPT THEN IT MAY BE HAPPEN THAT YOU HAVE TO GO JAIL. WHAT YOU WANT TO S AY ABOUT THIS ? A.13 I GOT ONLY RS.7,00,000 ONLY. REMAINING 50,00, 000 I DONT ET YET. I DECLARE THIS 7,00,000 UNACCOUNTED INCOME. SO I DECLARE 2,17,00,000 UNACCOUNTED INCOME AND I READY TO I.T. RETURN ON IT. Q.14 I SEE YOU ANNEXURE 1 (PAGE NO 1 TO 102), SEE T HT AND TELL ME WHAT IS IT ? A.14 PAGE NO.24 ASSET SALE DEED IN RESPECT OF LAND SOLD TO G.K. PATEL. PAGE NO.25-47 SALES DOCUMENT OF PURCHASE LAND PAGE NO.48-52 INDEX-2 FOR THE LAND PURCHASE PAGE NO.53 I DONT KNOW PAGE NO.54 7 55 POOJA EXP. PAGE NO56 & 57 BILL OF THE NEW HOMES EXPS. PAGE NO.58 I DONT KNOW PAGE NO.59 EXP. OF BUILDING NEW HOME PAGE NO.60 I DONT KNOW ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 15 PAGE NO.61 & 62 FORM NO.8 PAGE NO.63 EXP. DETAILS PAGE NO.64 TO 72 7-12 EXTRACT AND PATRAK-8 PAGE NO.73 TO 102 DOCUMENT OF CANCELLATION Q.15 I SAW YOU ANNEXURE 2 AND ANNEXURE 3. WHAT IS IT ? A.15 ANNEXURE A-2 (PAGE NO.1 TO 15) PAGE NO.1 & 2 GIVE DETAILS TO THE CONTRACTOR ABOUT ALLOTTING MONEY PAGE NO.3, 4, 5 &6,7,8, PAGE NO.9 & 10 NEW HOUSES EXP. DETAILS PAGE NO.11 & 12 NEW HOUSES EXP. DETAILS PAGE NO.13 TO 15 NEW HOUSES EXP. DETAILS ANNEXURE A-3 (PAGE NO.1 TO 10) PAGE NO.1 DETAILS ABOUT GIVEN PAYMENT TO THE PARTIES. PAGE NO.2 DETAILS ABOUT THE PAYMENT WHICH GET BY SEELING LAND PAGE NO.3 PAGE NO.4 & 5 I DONT KNOW PAGE NO.6 DETAILS OF MONEY TAKEN BY SAJANBEN AND SENDHAJI FROM AMOUNT OF SELLING LAND PAGE NO.7 TO 10 OTHER EXPS. Q.16 DO YOU WANT TO SAY SOMETHING ? A.16 YES, I AGAIN AGREED THAT RS.2,17,00,000 IS MY UNACCOUNTED INCOME. I DECLARE 2,17,00,000 IS UNACCOUNTED INCOME AND I READY TO PAY I.T. RETURN O N THAT AMOUNT. I DONT WANT TO SAY MORE THAN IT. ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 16 11. A PERUSAL OF THESE STATEMENTS WOULD INDICATE TH AT NOWHERE THEY HAVE MADE REFERENCE TO THE SALE DEED MADE TO THE ASSESSE ES. THEY HAVE NOWHERE MADE REFERENCE TO THE NAMES OF ANY ASSESSEES. THIS FACT HAS TO BE SEEN IN THE LIGHT THAT THIS VERY LAND WAS SOLD AT THREE OCCASIO NS. FIRST ON 27.9.2007 TO ONE SHRI HEMENDRA LILABHAI SHAH VIDE REGISTRATION NO. 1 2062 WHICH WAS SOLD FOR A CONSIDERATION OF RS.57,28,350/-. THE NEXT SALE D EED DATED 29.5.2008 FOR RS.35 LAKHS AND THE NEXT SALE DEED IS DATED 8.10.20 07 FOR A CONSIDERATION OF RS.61 LAKHS. ALL THESE SALE DEEDS ARE WITHIN ONE Y EAR OF THE TRANSACTION DONE WITH THE ASSESSEES. THE LD.AO HAS NOT PREPARED A F LOW CHART INDICATING THE DATE OF INVESTMENT MADE BY THESE PERSONS IN THE LIC OR PURCHASE OF NEW HOUSE VIS--VIS THE SALE DEED EXECUTED BY THE ASSES SEE. THE SALE DEED OF THE ASSESSEE EXECUTED ON 11.8.2008 AND SEARCH WAS TAKEN PLACE ON 15.10.2008 I.E. JUST WITHIN TWO MONTHS. IT WAS NOT ASCERTAINED BY THE AO, WHETHER THE HOUSE WAS CONSTRUCTED WITHIN MONTHS BY INCURRING EXPENSES OF RS.11 LAKHS. WHETHER THE LAND FOR CONSTRUCTION OF HOUSE WAS PURC HASED IN BETWEEN THIS PERIOD ? IT IS ALSO NOT DISCERNIBLE WHEN AGREEMENT TO SELL WAS EXECUTED, BECAUSE, RECEIPT OF CASH WAS ALSO ALLEGED AT THAT S TAGE. ALL THESE FACTS HAVE NOT BEEN CONSIDERED BY THE AO. HE SIMPLY TOOK THE STATEMENT OF GADAJI A. THAKOR AS A GOSPEL TRUTH. THAT CAN BE STARTING POI NT OF AN INQUIRY, BUT ALL OTHER CORROBORATIVE EVIDENCES OUGHT TO HAVE BEEN COLLECTE D BY THE AO. APART FROM THIS, THE ASSESSEE IN THE CASE OF SENDHABHAI DESAI FILED WRITTEN SUBMISSIONS BEFORE THE LD.CIT(A) AND HIGHLIGHTED THAT HE HAS AS KED FOR AN OPPORTUNITY TO CROSS-EXAMINE. THAT WAS NOT GIVEN TO HIM. THE LD. CIT(A) COULD HAVE BEEN GOT THIS IRREGULARITY REMOVED BY PUTTING THE VENDOR FOR CROSS-EXAMINATION IN THE REMAND PROCEEDINGS, BUT NO SUCH STEPS WERE TAKE N. HOW MUCH WEIGHTAGE CAN BE GIVEN TO THE STATEMENT OF PERSON WHO SOLD TH E SAME LAND TO FOUR PARTIES BY WAY OF SEPARATE DEEDS. HE WAS NOT SURE HOW MUCH MONEY WAS RECEIVED BY MIDDLE MAN AND FROM WHOM. HE MIGHT BE A LAYMAN AND AWARE ABOUT TOTAL ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 17 MONEY RECEIVED BY HIM, BUT FAILED TO ESTABLISH THE CHAIN WITH THE PAYER. HE NOWHERE TOOK THE NAME OF APPELLANTS. THE INFERENCE DRAWN BY THE AO IS BASED ON ASSUMPTION. IN VIEW OF THE ABOVE, THIS EV IDENCE OUGHT TO BE EXCLUDED AT LEAST IN THE CASE OF SHRI SENDHABHAI DE SAI. THUS, IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, I AM OF THE VIEW THAT NO DOUBT THE REVENUE WAS ABLE TO COLLECT INFORMATION FOR INITIATING INQUIRY BUT FAILED TO BRING CLINCHING EVIDENCE ON RECORD DEMONSTRATING THE FACT THAT VEND EES HAVE PAID MORE AMOUNTS IN CASH TO THE VENDOR FOR PURCHASE OF LAND. THIS FACT MAY BE APPRECIATED WITH THE DIFFERENT ANGLE ALSO. THE SAL E DEED WAS EXECUTED ON 11.8.2008. THE ASSESSEES HAVE COME TO KNOW ABOUT T HE DISPUTE OF THE LAND. THEN, WHY THEY WILL PAY REST OF RS.20,66,500/- IN T HE ACCOUNTING YEAR RELEVANT TO THE ASSTT.YEAR 2009-10. THE AO HAS ASSUMED PAYM ENT OF CASH AT THE END OF THE ASSESSEE SIMPLY FOR THE REASONS THAT THE INV ESTMENT IS BEING MADE BY THE VENDOR, BUT THAT CANNOT BE A PLAUSIBLE REASON. THE AO SHOULD HAVE COLLECTED CONCRETE EVIDENCE DEMONSTRATING THE FACT THAT THE P AYMENT OF AMOUNT IN CASH, OVER AND ABOVE, ONE STATED IN THE SALE DEED. TAKIN G INTO CONSIDERATION THESE FACTS, I ALLOW ALL THE APPEALS OF THE ASSESSEE AND DELETE ADDITION OF RS.22,55,583/- IN EACH HANDS OF THE ASSESSEES IN TH E ASSTT.YEAR 2008-09 (EXCEPT FROM THE HAND OF MANIBHAI V. PATEL, BECAUSE STATUS OF HIS APPEAL IS NOT AVAILABLE AT THIS STAGE) AND RS.3,44,417/- IN E ACH HAND IN THE ASSTT.YEAR 2009-10. ITA NO.2723/AHD/2013 AND ITA NO.2722/AHD/2015 (PENA LTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. 12. WHILE DECIDING THE QUANTUM APPEALS OF THE ASSES SEES BEARING NO.3012/AHD/20111 AND ITA NO.3011/AHD/2011 FOR THE ASSTT.YEAR 2008-09 IN THE FOREGOING PARAS OF THIS ORDER, TRIBUNAL HAS ALLOWED CLAIM OF THE ASSESSEE AND DELETED THE ADDITION. THEREFORE, VERY BASIS OF VISITING THE ITA NO.483/AHD/2012 (SHRI SENDHABHAI M. DESAI VS. DCI T) & 12 ORS. 18 ASSESSEES WITH PENALTY DOES NOT EXIST. THEREFORE, I DELETE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT IN BO TH THE CASES, AND ALLOW APPEALS OF THE ASSESSEES. 13. IN THE RESULT, ALL THE APPEALS OF ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 14 TH JUNE, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER