NIrupa Suhas Kanitkar, Pune V. ACIT, Pune

ITA 2223/PUN/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88987 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Business expenditure; Rectification of order; Cost of acquisition; Wrong claim; Assessment record; Commercial expediency; Revised return
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO S. 2223 & 2224 /PN/20 1 2 ASSESSMENT YEAR S : 200 8 - 09 & 2009 - 10 NIRUPA SUHAS KAN ITKAR, C/O POONA POULTRY PRODUCTS MAMURDI, DEHUROAD, PUNE - 412101 VS. ACIT, CIRCLE 9, PUNE (APPELLANT) (RESPONDENT) PAN NO. AAZPK8355K ITA NO S. 2259 & 2260 /PN/201 2 ASSESSMENT YEAR S : 200 8 - 09 & 2009 - 10 ASST. COMMISSIONER OF INCOME TAX, CIRCL E 9, PUNE VS. NIRUPA S. KANITKAR, C/O POONA POULTRY PRODUCTS, A/P MAMURDI, DEHU ROAD, PUNE - 412101 (APPELLANT) (RESPONDENT) PAN NO. AAZPK8355K REVENUE BY: SHRI A.K. MODI ASSESSEE BY: SHRI NIKHIL PATHAK DATE OF HEARING : 03 - 02 - 2015 DATE O F PRONOUNCEMENT : 20 - 02 - 2015 ORDER PER R.S . PADVEKAR , JM : - IN T H IS BATCH OF FOUR APPEALS, T WO APPEALS ARE FILED BY THE ASSESSEE AND TWO APPEALS ARE FILED BY THE REVENUE, CHALLENGING THE RESPECTIVE IMPUGNED ORDER S OF THE LD. CIT(A) - V, PUNE FOR THE A. YRS. 2008 - 09 AND 2009 - 10. AS THE FACTS AND ISSUES ARE IDENTICAL IN BOTH THE ASSESSMENT YEARS , HENCE, THESE APPEALS ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. 2 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE 2. WE FIRST TAKE THE APPEAL S OF THE ASSESSEE AS WELL AS REVENUE FOR THE A.Y. 2008 - 09. THE A SSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1] THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.1,93,23,750/ - OUT OF THE PAYMENT MADE TO NEW PLANET TRADING CO. PVT. LTD. (NEW PLANET) FOR SURRENDERING THEIR RIGHTS IN THE LANDS. 1.1] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT A. THE APPELLANT WAS NOT RELATED TO M/S. NEW PLANET TRADING CO. PVT. LTD. AND THE TRANSACTION WAS AT ARM'S LENGTH AND THEREFORE, THE PAYMENT MADE TO THEM WAS A GENUINE BUSINESS EXPENDITURE. B. THERE WAS NO REASON FO R THE APPELLANT FOR MANIPULATION OF THE AGREEMENT BETWEEN THE APPELLANT AND NEW PLANET TRADING CO. PVT. LTD. AND THUS, THE MANIPULATION WAS DONE BY THAT PARTY IN ORDER TO SUIT ITS BUSINESS INTEREST. C. THE VARIOUS DISCREPANCIES SHOWN BY THE APPELLANT IN THE A GREEMENT PRODUCED BY NEW PLANET CLEARLY INDICATED THAT THEY HAD MANIPULATED THE AGREEMENT AND THE COPY PRODUCED BY THEM WAS NOT A GENUINE DOCUMENT. D. THE APPELLANT HAD PAID THE TOTAL AMOUNT AS AGREED @5.50 LAKHS PER ACRE DURING FINANCIAL YEAR ENDING 31 ST MAR CH 2008, 31 ST MARCH 2009 & 31 ST MARCH 2010, TO THAT PARTY THROUGH BANKING CHANNEL AND THAT PARTY HAD ACCEPTED THE TOTAL AMOUNT AS CLAIMED BY THE APPELLANT AND THIS ITSELF INDICATES THAT THE CLAIM OF THE APPELLANT WAS GENUINE. E. HAD THE APPELLANT AGREED WITH NEW PLANET FOR RS.3,20,665/ - PER ACRE, THE TOTAL CONSIDERATION PAID DURING FINANCIAL YEAR ENDING 31 ST MARCH 2008, 31 ST MARCH 2009 & 31 ST MARCH 2010, BY THE APPELLANT WAS MUCH MORE THAN THE CONSIDERATION FOR 84.20 ACRES OF LAND ARRIVED AT RS.3,20,665 / - PER ACRE AND WHICH ASPECT ITSELF PROVES THAT THE CLAIM OF NEW PLANET WAS WRONG. 3 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE F. IF THE CONSIDERATION PAYABLE TO AANCHAL PROPERTIES PVT. LTD. (AANCHAL) FOR SURRENDERING THEIR RIGHTS IN THE ADJOINING LAND WAS ACCEPTED AND ALLOWED IN APPEAL @ RS.5.50 LAKHS PER AC RE, THERE WAS NO REASON TO DOUBT THE GENUINENESS OF THE CLAIM OF THE APPELLANT AS REGARDS NEW PLANET. 2] THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.90 LAKHS OUT OF THE ADDITIONAL CONSIDERATION OF RS.1.80 CRS. PAYABLE TO THE FARMERS FOR T HE LANDS ACQUIRED FROM THEM AND CLAIMED AS A DEDUCTION IN THIS YEAR. 2.1] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT A. THE CLAIM FOR ADDITIONAL COMPENSATION OF RS.1.80 CRS. PAYABLE TO THE FARMERS WAS MADE @ RS.1.70 LAKHS PER ACRE AS DECIDED MUTUALLY BET WEEN THE APPELLANT AND THE FARMERS AND THE SAME WAS AS PER THE WRITTEN AGREEMENT AND HENCE, THERE WAS NO REASON TO DOUBT THE GENUINENESS OF THE CLAIM. B. A PART PAYMENT OF RS.31.61 LAKHS WAS ALREADY MADE BY THE APPELLANT TO THE FARMERS OUT OF THE ABOVE AMOUNT OF ADDITIONAL COMPENSATION. C. THE ADDITIONAL COMPENSATION BECAME PAYABLE AS THE APPELLANT DID NOT COMPLETE THE SALE TRANSACTION WITH THE FARMERS IN TIME AS PER THE AGREEMENT. D. JUST BECAUSE THE APPELLANT HAD NOT MADE THE FULL PAYMENT OF THE ADDITIONAL COMPENS ATION TO THE FARMERS IN THIS YEAR, IT DID NOT IMPLY THAT THE CLAIM WAS NOT GENUINE. 3] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT THE CLAIM OF COST OF RIGHTS PAID BY THE ASSESSEE TO M/S. AANCHAL PROPERTIES PVT. LTD AND TO M/S. NEW PLANET TRADING CO. PVT. LTD WERE GENUINE, WHEN THE GENUINENESS OF THE ABOVE SAID ENTITIES WAS ITSELF DOUBTFUL. 4 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN RESTRICTING THE DISALLOWANCE ON ACCOUNT OF PAYMENT OF COST OF RIGHTS TO THE ABOVE COMPANIES TO ONLY RS.1,93,23,750/ - WHEN IT WAS HELD BY THE CIT(A) THAT THE ASSESSEE HAD MANIPULATED RECORDS IN CONNIVANCE WITH M/S. NEW PLANET TRADING CO. PVT. LTD SO AS TO REDUCE PROFITS. 4. THE FACTS WHICH ARE CULL ED OUT FROM THE RECORD ARE AS UNDER. THE ASSESSEE IS STATED TO BE ENGAGE D IN THE BUSINESS OF LAND AGGREGATION . IT IS STATED THAT SHE IS A RESIDENT OF TALEGAON, DISTT. - PUNE FOR LAST NUMBER OF YEARS. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LANDS IN THE SAID AREA. IT IS STATED THAT ON IDENTIFICATION OF A PIECE OF LAND AND A PROPER SEARCH OF LAND RECORDS, LEGITIMATE CLAIMS OF RELATIVES & OTHERS, VERIFICATION OF OTHER COMMITMENTS BY THE OWNERS ETC., WITH THE HELP OF A LOCAL MEDIATOR/AGENT , SHE GIVES ADVANCE TO THE OWNER AND ENTER S INTO AN AGREEMENT/MOU WIT H THE OWNERS OF LAND. IT IS STATED THAT THE CORPORATE/BUILDERS WHICH WISH TO BUY CONTAGIOUS, LARGE PIECE OF LAND AND AS IT IS NOT POSSIBLE TO DEAL WITH INDIVIDUAL FARMERS AND LAND OWNERS DIRECTLY NEGOTIATE DEAL WITH THE ASSESSEE BUT FINAL SALE DEED IS MAD E WITH ORIGINAL OWNERS OR FARMERS OF THE LAND . THE ASSESSEE AFTER NOTIFYING THE AREA INDULGED INTO THE LAND AGGREGATION AND AFTER SUCCESSFUL AGGREGATION OF LAND , IT IS STATED THAT THE ASSESSEE ENTER S INTO AN AGREEMENT WITH SOME CORPORATE GROUP S OR BIG BUI LDER S TO SALE THE LAND. THE ASSESSEE ENTERED INTO AN MOU WITH VARIOUS FARMERS OF THE LAND AT NAV A LKHUMBRE AND THE FARMERS IN THE SAID AREA AGREED TO SALE LAND ADMEASURING 180 ACRES TO HER OR HER NOMINEE. IT IS STATED THAT AS PER MOU IN CASE THE ASSESSEE WAS ABLE TO GET UP TO 110 ACRES OF LAND, SHE WOULD PAY THE FARMERS THE RATE OF RS.25,25,000/ - PER ACRE AND IF SHE COULD GET LAND ADMEASURING TOTAL OF AREA MORE THAN 111 ACRES, SHE WOULD PAY TO THE FARMERS THE PRICE @ RS.25,50,000/ - PER ACRE. SHE, ACCORDIN GLY, ENTERED INTO AN AGREEMENT /MOU WITH FARMERS BY MAKING THE TOKEN PAYMENT OF 5 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE RS.1,11,000/ - BY CHEQUE ON 30 - 06 - 2007 TO SHRI VIKRAM KADAM (GROUP LEADER) ON SIGNING OF SAID MOU. THE VARIOUS FARMERS WERE ALSO MADE PARTIES WITH THE SAID MOU. AFTER SIGNING T HE MOU WITH THE FARMERS OF NAVALKHUMBRE , THE ASSESSEE SETTLED THE DEAL WITH HELIOUS CONSTRUCTIONS PVT. LTD., NARIMAN POINT, MUMBAI AND IT WAS AGREED THAT HELIOUS WOULD ACQUIRE THE SAID LANDS FROM THE FARMERS AND AGREED TO PAY RS.37 LAKHS PER ACRE FOR FARME RS IN NAVALKHUMBRE AND RS.40 LAKHS PER ACRE . 5. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2008 - 09 ON 30 - 09 - 2008 DECLARING TOTAL INCOME RS.82,17,440/ - . THE RETURN FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND ASSESSMENT HAS BEEN COMPLETED U/S. 143(3) OF THE INCOME - TAX ACT. ON THE EXAMINATION OF THE CLAIM OF EXPENSES INCURRED BY THE ASSESSEE, IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS CLAIMED AN EXPENSES OF RS.8,03,96,000/ - WHICH WAS SHOWN TOWARDS THE COST OF RIGHTS ACQUI RED FROM M/S. AANCHAL PROPERTIES PVT. LTD. (RS.3,40,72,250/ - ) AND M/S. NEW PLANET TRADING CO. PVT. LTD. (RS.4,63,23,750/ - ). ON THE SAID EXPENDITURE, THE ASSESSING OFFICER CALLED FOR THE DETAILS FROM THE ASSESSEE AS WELL AS EVIDENCE/PROOF IN SUPPORT OF SAI D CLAIM . THE ASSESSEE STATED BEFORE THE ASSESSING OFFICER THAT THE SALE TRANSACTION INVOLVED TOTAL SALE OF LAND ADMEASURING 165.75 ACRES , OUT OF WHICH THE ASSESSEE HAS SOLD OUT 117.97 ACRES DURING THE FINANCIAL YEAR RELEVANT TO THE A.Y. 2008 - 09 TO M/S. HE LIOUS CONSTRUCTIONS PVT. LTD., NARIMAN POINT, MUMBAI. IN THE FINAL SALE DEED , THE ASSESSEE WAS SHOWN AS A CONSENTING PARTY. THE ASSESSING OFFICER HAS OBSERVED THAT THE SAID TRANSACTION INVOLVED THE PURCHASE OF LAND BY THE ASSESSEE FROM THE FARMERS @ RS.2 5,50,000/ - PER ACRE, AND PURCHASE OF RIGHTS FROM THE TWO ENTITIES @ RS.5,50,000/ - PER ACRE AND THE SALE OF SAID LAND TO M/S. HELIOUS CONSTRUCTION PVT. LTD. @ RS.37,00,000/ - PER ACRE FOR TOTAL AREA OF 165.75 ACRES OUT OF WHICH 117.97 ACRES W ERE SOLD DURING THE YEAR AND 6 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ACCORDINGLY , THE ASSESSEE MADE THE PROFIT OF RS.6,00,000/ - PER ACRE. THE ASSESSEE ALSO CLAIMED THAT SHE WAS REQUIRED TO PAY AN ADDITIONAL COMPENSATION OF RS.1 CRORE TO M/S. AANCHAL PROPERTIES PVT. LTD. AND RS.1,80,00,000/ - TO FARMERS , OVER AN D ABOVE THE COST OF RS.31,00,000/ - PER ACRE AS MENTIONED ABOVE. IN SUM AND SUBSTANCE THE ASSESSEE CLAIMED ADDITIONAL EXPENDITURE OF RS. 2,80,00,000/ - . 6. IT WAS CLAIMED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER THAT TWO COMPANIES/ENTITIES NAMELY M/S. N EW PLANET TRADING CO. PVT. LTD. (IN SHORT M/S. NEW PLANET) AND M/S. AANCHAL PROPERTIES PVT. LTD. (IN SHORT M/S. AANCHAL PROPERTIES) HAD ALREADY ACQUIRED THE RIGHTS OF THOSE LANDS BY PAYING TOKEN AMOUNTS TO THE FARMERS AND HENCE, THE ASSESSEE HAD TO PURCHAS E THE RIGHTS ACQUIRED BY THOSE TWO COMPANIES IN THE SAID LAND S AND ACCORDINGLY, THE ASSESSEE PAID RS. 5,50,000/ - PER ACRE AS THE PRICES FOR ACQUIRING THE RIGHTS IN THE LAND , AGGREGATING RS.8,03,96,000/ - . BEFORE THE ASSESSING OFFICER THE ASSESSEE FILED THE COPY OF MOU WITH M/S. NEW PLANET AND M/S. AANCHAL PROPERTIES A ND BOTH THE MOUS WERE EXECUTED ON 01 - 06 - 2007. THE ASSESSING OFFICER HAS OBSERVED THAT ON PERUSAL OF THE COPIES OF THE AGREEMENT /MOUS THE CLAIM OF THE TWO ENTITIES NAMELY M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. DID NOT APPEAR AS A CONSENTING PARTY THOUGH, THE ASSESSEE CLAIMED THAT THOSE PARTIES HAD A INTEREST IN THE LAND WHICH WERE SUBJECT MATTER OF DEAL WITH M/S. HELIOS CONSTRUCTION PVT. LTD. AS THE ASSESSEE C LAIMED THAT SHE HAD PAID RS.8,03,96,000/ - TO THOSE TWO COMPANIES. THE ASSESSING OFFICER RAISED THE QUESTION MARK WHY M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. WERE NOT MADE PARTY TO THE FINAL SALE DEED BETWEEN M/S. HELIOS CONSTRUCTION PVT. LTD. AND LAND OWNERS AS A CONSENTING PARTY ALONG WITH ASSESSEE. THE ASSESSEE STATED BEFORE THE ASSESSING OFFICER THAT THE RIGHTS IN THE SAID LAND FROM THOSE TWO COMPANIES WERE ALREADY 7 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE PURCHASED BY HER IN THE MONTH OF JUNE, 2007 AND WHER EAS, THE TRANSACTION WITH M/S. HELIOS CONSTRUCTION PVT. LTD. WAS IN THE MONTH OF DECEMBER, 2007 AND HENCE, THERE WAS NO NEED TO ADD THOSE TWO COMPANIES AS THE CONSENTING PARTIES. 7. THE ASSESSING OFFICER PR OCEEDED TO VERIFY THE GENUINENESS OF THE SAID EXPENDITURE. THE ASSESSING OFFICER MADE A COMMUNICATION WITH THE ASSESSING OFFICER IN MUMBAI WHO WAS HAVING JURISDICTION ON ABOVE TWO COMPANIES TO VERIFY WHETHER THOSE TWO COMPANIES HAVE OFFERED ABOVE AMOUNTS TO TAX OR NOT. AS OBSERVED BY THE ASSESSING OFFICER , IN THE CASE OF M/S. NEW PLANET TRADING CO. PVT. LTD. WHICH NAME WAS CHANGED TO M/S. ANSH MARCANTILE PVT. LTD., BEARING PAN NO. AABCN8176E AND ITS SCRUTINY ASSESSMENT WERE IN PROGRESS. THE ASSESSING OFFICER HAS ALSO NOTED THAT M/S. NEW PLANET TRA DING CO. PVT. LTD. HAS SHOWN AN INCOME OF RS.8,03,96,000/ - IN ITS RETURN FOR A.Y. 2008 - 09. THE ASSESSING OFFICER REQUESTED THE ASSESSING OFFICER IN MUMBAI WHO WAS INVOLVED IN COMPLETING THE ASSESSMENTS OF M/S. NEW PLANET TRADING CO. PVT. LTD. TO FURNISH C OPY OF AGREEMENT /MOU BETWEEN THE ASSESSEE AND THE S AID COMPANY. AS PER THE REQUEST OF THE ASSESSING OFFICER , THE ASSESSING OFFICER IN MUMBAI SENT THE COPY OF MOU FURNISHED BY M/S. NEW PLANET BY FAX. THE ASSESSING OFFICER HAS OBSERVED THAT THERE WAS A DIF FERENCE IN THE DATE OF EXECUTION AS PER THE COPY OF MOU FURNISHED BY THE ASSESSEE AS WELL AS AN AMOUNT PAYABLE TOWARDS COST OF RIGHTS IN THE LAND SHOWN BY THE ASSESSEE I.E. RS.5,50,000/ - PER ACRE , BUT AS PER THE COPY OF MOU OBTAINED FROM THE ASSESSING OFFI CER IN MUMBAI , THE DATE OF AGREEMENT WAS SHOWN AS 03 - 06 - 2007 AND AMOUNT PAYABLE TOWARDS COST OF RIGHTS ACQUIRED WAS SHOWN AT RS.3,20,000/ - PER ACRE. THE ASSESSING OFFICER, THEREFORE, CAME TO THE CONCLUSION THAT THERE IS A FORGERY COMMITTED IN THE SAID CAS E EITHER BY THE ASSESSEE OR M/S. NEW PLANET TRADING CO. PVT. LTD. OR BOTH. 8 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE 8. THE ASSESSING OFFICER ALSO NOTED THAT H E MADE A GENERIC SEARCH ON INTERNET ABOUT THE BACKGROUND OF TWO ENTITIES I.E. M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROP ERTIES PVT. LTD. AND AN INTERESTING FACT CAME OUT THAT BOTH THOSE COMPANIES WERE TAINTED ENTITIES AND THEY WERE DEBARRED BY SEBI FROM TRADING IN SHARE MARKET VIDE CIRCULAR NO. NSE/INV/2009/341 DT. 27 - 08 - 2009 AS THEY WERE INVOLVED IN SOME SCAM. IN THE OPIN ION OF THE ASSESSING OFFICER THE CHARACTER OF THOSE TWO ENTITIES WAS DOUBTFUL AND HENCE, THERE WAS A BIG QUESTION MARK ON THE GENUINENESS OF ASSESSEES TRANSACTION WITH THOSE TWO ENTITIES. THE ASSESSING OFFICER ALSO NOTED THAT THOSE TWO ENTITIES M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. ARE INTERRELATED, AND BOTH WERE JOINTLY INVOLVED IN SCAM. 9. THE ASSESSING OFFICER ISSUED THE SHOW - CAUSE NOTICE TO THE ASSESSEE VIDE LETTER DATED 22 - 12 - 2010 , REQUIRING THE ASSESSEE TO PROV E THE GENUINENESS OF THE AMOUNT PAID TOWARDS COST OF RIGHTS. THE ASSESSEE PERSONALLY APPEARED BEFORE THE ASSESSING OFFICER ON 24 - 12 - 2010 AND SUBMITTED THAT SHE WAS SHOCKED TO KNOW ABOUT THE ANOTHER AGREEMENT WHICH WAS SUBMITTED BY M/S. NEW PLANET TRADING CO. PVT. LTD. TO ITS ASSESSING OFFICER. THE ASSESSEE CATEGORICALLY DENIED THAT SHE HAS EVER SIGNED ANY SUCH AGREEMENT MENTIONING THE COST OF RIGHTS ACQUIRED @ RS.3,20,000/ - PER ACRE. AS REQUIRED BY THE ASSESSING OFFICER THE ASSESSEE SUBMITTED PHOTO COPI ES/PRINT OUTS OF MOUS ENTERED BY THOSE TWO COMPANIES WITH THE FARMERS. THE ASSESSING OFFICER HAS OBSERVED THAT THOUGH, THE ASSESSEE PROMISED TO PRODUCE THE REPRESENTATIVES OF THOSE TWO ENTITIES ALONG WITH THE ORIGINAL COPIES OF THE MOUS BUT SHE COULD NOT DO SO . THE ASSESSING OFFICER, THEREFORE, CAME TO THE CONCLUSION THAT THE AMOUNT OF RS.8,03,96,000/ - WAS A BOGUS CLAIM OF EXPENDITURE TO EVADE TAX. H E, THEREFORE, MADE THE ENTIRE DISALLOWANCE 9 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE OF RS.8,03,96,000/ - AND MADE AN ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. 10. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) THE ASSESSEE CONTENDED THAT AFTER SHE ENTERED INTO AN AGREEMENT FOR PURCHASE OF LAND WITH THE FARMERS OF NAVALKHUMRE AND BADHALWADI SHE CAME TO KNO W THAT TWO COMPANIES NAMELY M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. HAD ALREADY ENTERED INTO AN AGREEMENT WITH THE OWNERS AND FARMERS OF THOSE LANDS BY MAKING THE TOKEN PAYMENT . T HE ASSESSEE HAD TO E NTER INTO AGREEMENT WITH THOSE COMPANIES TO CLEAR TITLE OF THE LANDS AND AS PER THE AGREEMENT BOTH THE COMPANIES AGREED TO SURRENDER ALL THEIR INTEREST IN THE SAID LAND ON THE PAYMENT OF COMPENSATION OF RS.5,50,000/ - PER ACRE. THE ASSESSEE AGREED TO MAKE THE PAYMENT TO THOSE TWO COMPANIES AS THE ASSESSEE WAS NOT DESIRING TO HAVE ANY LITIGATION WITH THOSE PARTIES OR DEFECT IN THE TITLE. ACCORDINGLY, THE ASSESSEE ENTERED INTO MOU DATED 01 - 06 - 2007 WITH M/S. AANCHAL PROPERTIES PVT. LTD. FOR THE LAND AREA OF 47.10 ACRES. AS PER THE AGREEMENT THE ASSESSEE AGREED TO PAY RS.2,40,21,250/ - AND RS.2,58,96,750/ - RESPECTIVELY TO M/ S. AANCHAL PROPERTIES PVT. LTD. IN ADDITION TO THE SAID AMOUNT THE ASSESSEE ALSO AGREED TO PAY RS.1,00,51,000/ - AS ADDITIONAL COMPENSATION IN TERMS OF LETTER DATED 31 - 03 - 2008. THE ASSESSEE STATED THAT THE ASSESSEE CLAIMED RS.3,40,72,250/ - AS DEDUCTION IN THE A.Y. 2008 - 09 AND RS.2,58,96,750/ - IN THE A.Y. 2009 - 10 AS ONLY 43.67 ACRES WAS THE PART OF THE LAND SOLD TO M/S. HELIOUS CONSTRUCTIONS PVT. LTD. IN THE A.Y . 2008 - 09. 1 1 . IN THE RESPECT OF M/S. NEW PLANET TRADING CO. PVT. LTD. THE ASSESSEE STATED THAT THE SAID COMPANY ENTERED INTO AN MOU WITH THE FARMERS ON 15 - 01 - 2007. THE ASSESSEE ALSO FILED THE COPY OF THE MOU BEFORE THE LD. CIT(A). IT WAS CLAIMED BY THE ASSESSEE THAT THE ASSESSEE 10 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ENTERED INTO MOU WITH THE SAID COMPANY ON 01 - 06 - 2007 FOR THE LAND AREA OF 84.2 ACRES. AS PER THE TERMS OF THE MOU TOTAL COMPENSATION PAYABLE TO M/S. NEW PLANET @ RS.5,50,000/ - PER ACRE WAS WORKED OUT RS.4,63,23,750/ - . AS 84.20 ACRES OF LAND WAS THE PART OF THE LAND SOLD TO M/S. HELIOUS CONSTRUCTIONS PVT. LTD. IN A.Y. 2008 - 09 , THE ENTIRE C OST WAS CLAIM ED AS AN EXPENDITURE. IN RESPECT OF COPY OF AGREEMENT /MOU OBTAINED BY THE ASSESSING OFFICER FROM THE ASSESSING OFFICER IN MUMBAI W HO WAS INVOLVED IN COMPLETING THE ASSESSMENT OF M/S. NEW PLANET , T HE ASSESSEE STATED THAT SHE HAS PURCHASED TWO STAMP PAPERS AS TWO COPIES OF THE MOUS WERE REQUIRED TO BE PREPARED , ONE FOR THE ASSESSEE AND ANOTHER FOR M/S. NEW PLANET AND THE MOU WAS EXEC UTED ON THE 01 - 06 - 2007 ONLY WITH M/S. NEW PLANET AND THE COPY OF MOU PRODUCED BY THE ASSESSEE WERE THE GENUINE COPY AND THE COPY OF AGREEMENT FILED BY M/S. NEW PLANET TO ITS ASSESSING OFFICER IS A TAMPERED COPY . H ENCE, THERE WAS DIFFERENCE IN THE DATE OF EXECUTION AS WELL AS AMOUNT OF COMPENSATION MENTIONED PER ACRE. THE ASSESSEE STATED BEFORE LD. CIT(A) THAT AS PER THE AGREED TERMS , THE COST OF ACQUI RING THE RIGHTS OF THE LAND FROM M/S. NEW PLANET WAS DETERMINED AT RS.5,50,000/ - PER ACRE AND IT IS NOT CO RRECT TO SAY THAT IT WAS RS.3,20,665/ - PER ACRE AS MENTIONED IN THE COPY SENT BY THE ASSESSING OFFICER, MUMBAI TO THE ASSESSEES ASSESSING OFFICER. THE ASSESSEE ALSO STATED BEFORE THE LD. CIT(A) THAT THE SAID COMPANY HAS REDUCED THE AMOUNT OF COMPENSATION BY MAKING CHANGES IN THE AGREEMENT TO REDUCE THEIR TAX LIABILITIES WHEREAS THE ASSESSEE HAS MADE ALL THE PAYMENTS THROUGH THE BANKING CHANNEL AND THE RELEVANT CONFIRMATIONS FOR PAYMENT THROUGH RTGS MECHANISM WERE ALSO PLACED BEFORE THE LD. CIT(A). THE AS SESSEE ALSO STATED THAT ON THE BASIS OF THE COPY OF AGREEMENT SENT BY THE ASSESSING OFFICER, MUMBAI , M/S. NEW PLANET HAS TAMPERED AND FORGED THE SAID AGREEMENT. THE ASSESSEE ALSO FIELD THE CHART SHOWING HOW THE ALTERNATIONS ARE MADE IN THE AGREEMENT WHICH IS REPRODUCED BY THE LD. CIT(A) IN PARA NO. 13. 11 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ORIGINAL MOU OF NEW PI.ANE T TRADING CO. PVT. LTD. MOU RECEIVED FROM ASSESSING OFFICER OF NEW PLANET TRADING CO. PVT. LTD. IDENTIFICATION DISCREPENCY MOU D T . 01/06/2007 MOU D T . 03/06/2007 PAGE NO. 1 ALTERATION IN DATE PAYMENT OF SUM OF RS.5,5 0,000/ - PER ACRE PAYMENT OF RS. 3,20,665/ - ( RS. THREE LAKHS TWENTY THOUSAND SIX HUNDRED SIXTY FIVE ONLY) PAGE NO. 3, 3 RD PARAGRA PH PER ACRE VALUE ALTERED, WORD S PER ACRE ARE MISSING, AMOUNT IN WORDS NOT MENTIONED PROPERLY. RS. 5,50,000/ - ( RS. FIVE LAKH FIFTY THOUSAND ONLY) P ER ACRE RS.3,20,665/ - (RS. THREE LAKHS TWENTY THOUSAND SIX HUNDRED SIXTY FIVE ONLY) PAGE 3 CLAUSE NO. 1 ALTE RATION OF THE 1 AMOUNT IN FIGURES AND WORDS, PER ACR E IS MISSING AND MANUAL CORRECTIONS HAVE BEEN CARRIED OUT IN WHILE MENTIONING THE AMOUNT IN WORDS RS. 5,50,000/ - ( RS. FIVE LAKH, FIFTY THOUSAND ONLY) PER ACRE 1 RS. 3,20,665/ - (RS. TH REE LAKHS TWENTY THOUSAND SIX HUNDRED SIXTY FIVE ONLY) PAGE NO. 4, CLAUSE 2 ALTERATION OF THE AMOUNT IN FIGURES AND WORDS , PER ACRE IS MISSING AND MANUAL CORRECTIONS HAVE BEEN CARRIED OUT IN WHILE MENTIONING THE AMOUNT IN WORDS. RS. 4,40,000 / - (RS. FOUR LAKHS FORTY THOUSAND RS. 2,10,665/ - (RS. TWO LAKHS TEN THOUSAND SIX HUNDRED SIXTY FIVE) PAGE NO. 4, CLAUSE 2(A) WORD 'ONLY' IS MISSING AND WORD ON IS MISSING. COMPANY RUBBER STAMP IS NO A FFIXED COMPANY RUBBER STAMP IS AFFIXED. PAGE NOS. 1,3,4,5,6 & 7 AFFIXING THE RUBBER STAMP IS AN AFTER THOUGHT 1 2 . THE ASSESSEE ALSO STATED BEFORE THE LD. CIT(A) THAT THE ASSESSEE IS NOT RELATED TO EITHER M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. IN ANY MANNER AND THE ASSESSEE ALSO FILED INFORMATION IN RESPECT OF THE LIST OF SHAREHOLDER AND THE DIRECTORS OF BOTH THE COMPANIES AS PER THE ANNUAL RETURN AVAILABLE ON THE WEBSITE OF ROC. IT WAS ALSO STATED BY THE ASSESSEE THAT BOTH THE COMPANIES ARE TH E THIRD PARTIES AND THIS IS NOT DISPUTED BY THE ASSESSING OFFICER ALSO. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE IN RESPECT OF THE GENUINENESS OF THE PAYMENTS AT ENTIRETY TO M/S. AANCHAL PROPERTIES PVT. LTD. I.E. RS.3,40,72,250/ - AND HE DELE TED THE ADDITION. IN RESPECT OF M/S. NEW PLANET TRADING CO. PVT. LTD. HE SUSTAINED THE ADDITION TO THE EXTENT OF RS.1,93,23,750/ - OUT OF CLAIM OF RS. 4,63,23,750/ - . THE 12 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE REASONS GIVEN BY THE LD. CIT(A) IS THAT THERE IS A TAMPERING IN THE AGREEMENT BY THE A SSESSEE AND HENCE, EXCESS RATE WAS SHOWN. NOW, THE ASSESSEE IS IN APPEAL AGAINST SUSTAINING THE ADDITION OF RS.1,93,23,750/ - IN RESPECT OF PAYMENT OF COMPENSATION TO M/S. NEW PLANET TRADING CO. PVT. LTD. AND REVENUE IS IN APPEAL ON THIS ISSUE AGAINST THE PARTLY RELIEF GIVEN TO THE ASSESSEE IN RESPECT OF PAYMENT OF COMPENSATION TO M/S. NEW PLANET TRADING CO. PVT. LTD. AND ALLOWING THE PAYMENT OF COMPENSATION CLAIMED BY THE ASSESSEE IN RESPECT OF M/S. AANCHAL PROPERTIES PVT. LTD. THE OPERATIVE PART OF THE R EASONS AND FINDINGS OF THE LD. CIT(A) ARE AS UNDER: 15. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AS WELL AS THE REPLY FILED BY THE APPELLANT. IN THIS CASE, THE AMOUNT IN QUESTION PERTAINS TO ALLEGED ACQUISITION OF COST OF RIGHT OF LAND IN RESPECT OF THE FOLLOWING TWO PARTIES. (I) M/S. AANCHAL PROPERTIES PVT. LTD. RS.3,40,72,250/ - (II) M/S. NEW PLANET TRADING CO. PVT. LTD. RS.4,63,23,750/ - THE ASSESSING OFFICER HAS DISALLOWED THE PAYMENT IN RESPECT OF COST OF ACQUISITION OF RIGHT IN THE LAND ACQUIRED FROM FARMERS ON THE FOLLOWING GROUNDS. (I) THE NAME OF THESE TWO PARTIES DO NOT APPEAR AS CONSENTING PARTIES IN THE DOCUMENTS REGISTERED BETWEEN THE FARMERS AND M/S. HELIOS CONSTRUCTION PVT. LTD. (II) THE AGREEMENTS WERE FORGED BY THE APPELLANT AND M/S. NEW PLANET TR ADING CO. PVT. LTD IN ORDER TO REDUCE TAXABLE INCOME. (III) BOTH THE ENTITIES I.E. M/S. NEW PLANET TRADING CO. PVT. LTD. AS WELL AS M/S. AANCHAI PROPERTIES PVT. LTD. WERE TAINTED ENTITIES AS SEBI HAD BANNED THESE TWO ENTITIES FROM TRADING. BESIDES THIS THOSE TW O ENTITIES WERE ALSO INTERRELATED. (IV) THE APPELLANT COULD ONLY PRODUCE PHOTO COPY OF AGREEMENTS ENTERED INTO BY THE ABOVE NAMED PARTIES WITH FARMERS AND 13 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ORIGINAL DOCUMENT COULD NOT BE PRODUCED DESPITE THE SAME BEING CALLED FOR. 16. AS FAR AS THE NAMES OF THE ABOVE TWO PARTIES I.E. M/S. AANCHAL PROPERTIES PVT . LTD AND M/S. NEW PLANET TRADING CO. PVT. LTD, IS CONCERNED, THE APPELLANT'S SUBMISSION IS THAT SHE WAS NEGOTIATING THE DEAL WITH A BIG CORPORATE ENTITY OF MUMBAI AND SHE WAS NOT WILLING TO EXPOSE THE NAME OF THE PARTY TO AIL THE STAKE HOLDERS AS THEY COULD HAVE STARTED BARGAINING; MORE AND MORE. BESIDES THIS SHE WAS RESPONSIBLE FOR GIVING A CLEAR LAND FOR WHICH NECESSARY STEPS WERE REQUIRED TO BE TAKEN WHILE PROTECTING HER OWN BUSINESS INTEREST. IT WAS ALSO SUBMITTED THAT THERE IS NO STATUTORY REQUIREMENT TO INCORPORATE THE NAME OF ALL STAKE HOLDERS AS CONSENTING PARTIES IN THE FINAL DEED. THERE IS SOME TRUTH IN THE CONTENTION OF THE APPELLANT THAT BY EXPOSING THE BIG CORPORATE CLIENT SHE COULD HAVE INV ITED MORE AND MORE BARGAINING. IT IS A COMMON KNOWLEDGE THAT IN BIG TRANSACTIONS OF LAND, THE NAME OF END USER/ULTIMATE BUYER IS NOT REVEALED TILL THE LAST MOMENT OR TILL THE DEED IS SIGNED IN ORDER TO AVOID LAST MINUTE BARGAINING OR EVEN HIKE IN PRICES WH ICH COULD BE OFFERED BY THE COMPETITORS. THIS PECULIAR CHARACTERISTIC OF THE LAND DEALING MAKES THE BUSINESS OF AGGREGATION OF LAND DEALING QUITE SECRETIVE. THE MENTION OF THESE TWO PARTIES IN THE FINAL SALE DEED AS CONSENTING PARTIES COULD HAVE BROUGHT MO RE TRANSPARENCY IN THE TRANSACTION BUT NOT MENTIONING OF THE SAME, IN ITSELF CANNOT BE THE BASIS OF DISALLOWANCE AS LONG AS OTHER DIRECT AND CIRCUMSTANTIAL EVIDENCES SUPPORT THE CASE OF THE APPELLANT. 17. AS FAR AS FORGING OF THE AGREEMENT FILED BEFORE TH E ASSESSING OFFICER OF M/S. NEW PLANET TRADING CO. PVT. LTD, IS CONCERNED, IT IS SEEN THAT APPELLANT IS NOT DISPUTING THAT THE AGREEMENT IS NOT FORGED. THE IS THAT, AS PER THE APPELLANT, SHE IS NOT A PARTY TO IT AND AS FAR AS CONCERNED, SHE HAS MADE A LL THE NECESSARY PAYMENTS THROUGH CHEQUES AND SHE SHOULD NOT BE PENALIZED FOR THE FAULT OF OTHERS. IN THIS REGARD, I HAVE GONE THROUGH BOTH THE AGREEMENTS AS WELL AS THE CHART SUBMITTED BY THE APPELLANT DISTINGUISHING BOTH THE AGREEMENTS. IT IS SEEN THAT STAMP PAPERS FOR BOTH THE AGREEMENTS HAVE BEEN TAKEN IN THE NAME OF THE APPELLANT. THEREFORE, UNLESS THE APPELLANT CONNIVES WITH THE OTHER PARTIES AND HANDS OVER STAMP PAPER AND ALLOW THE OTHER PARTY TO USE HER COMPUTER OR PROVIDES SOFT 14 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE COPY OF THE AGREEMENT SUCH FORGERY CAN NOT TAKE PLACE. THEREFORE, ASSESSING OFFICER IS PARTLY CORRECT WHERE HE STATES THAT BOTH THE PARTIES HAVE CONNIVED AND FORGED THE AGREEMENT. NOW, IT IS IMPORTANT TO EXAMINE THE STAGE OF FORGERY AS WELL AS THE AMOUNT FOR WHIC H THE FORGERY HAS BEEN DONE. FROM THE PERUSAL OF FAX COPY OF THE AGREEMENT OBTAINED FROM THE ASSESSING OFFICER OF M/S. NEW PLANET TRADING CO. PVT. LTD, IT IS CLEAR THAT IN PLACE OF RS.5,50,000/ - PER ACRE, AMOUNT OF RSB.3,20,665/ - PER ACRE HAS BEEN PUT BY BOTH THE PARTIES FOR 84.2 ACRES OF LAND. THEREFORE, IN MY OPINION ENTIRE PAYMENT OF RS.4,63,23,750/ - TO M/S. PLANET TRADING CO. PVT. LTD. CANNOT BE TREATED AS FORGED AS HELD BY THE ASSESSING OFFICER. TO ARRIVE AT THE FORGED AMOUNT STAGE OF FOR GERY ALONG WITH THE AMOUNT OF FORGERY HAS TO BE KEPT INTO MIND. IN THIS CASE STAGE OF FORGERY IN THE AGREEMENT DATED 03.06.2007 FILED BEFORE THE ASSESSING OFFICER OF M/S. NEW PLANET TRADING CO. PVT. LTD. AND THE AMOUNT OF FORGERY IS THE DIFFERENCE BETWEEN RS.5,50,000/ - PER ACRE AND RS.3,20,665/ - PER ACRE FOR 84.2 ACRES OF LAND WHICH COMES TO RS.1,93,23,750/ - (4,63,23,750 - 2,70,00,000). ACCORDINGLY, AMOUNT OF RS.1,93,23,750 / - IS HELD TO BE FORGED AMOUNT, WHICH & IS THE RESULT OF MANIPULATION OF THE AGREEMEN T BY THE APPELLANT AS WELL AS M/S. NEW PLANET TRADING CO. PVT. LTD. THE APPELLANT HAS THUS CLAIMED EXCESS EXPENDITURE OF RS.1,93,23,750 / - TOWARDS THE COST OF LAND. 18. AS FAR AS THE ASSESSING OFFICER'S CLAIM THAT BOTH THE PARTIES I.E. M/S. AANCHAL PROPERT IES PVT. LTD. AND M/S. NEW PLANET TRADING CO. PVT. LTD. ARE TAINTED PARTY AS SEBI HAS BANNED THESE PARTIES, I DO NOT FIND ANY NEXUS BETWEEN THE TWO ISSUES. 19. THE ASSESSING OFFICER HAS ALSO HELD THAT THE APPELLANT COULD NOT PRODUCE ORIGINAL MOD BETWEEN F ARMERS AND THE TWO PARTIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THIS REGARD ONE MUST APPRECIATE THAT THE APPELLANT WAS NOT A SIGNATORY BETWEEN THE FARMERS & THE TWO COMPANIES AND THEREFORE, THE ORIGINAL COULD HAVE BEEN PRODUCED ONLY AFTER OBTAI NING THE SAME EITHER FROM THE FARMERS OR FROM THE TWO PARTIES. 20. TO SUM UP IT IS SEEN THAT THE FACT THAT BOTH THE PARTIES WERE NOT A CONSENTING PARTIES IN THE FINAL DEED SIGNED BETWEEN THE 15 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE FARMERS AND THE END USER I.E. M/S. HELIOS CONSTRUCTIONS PVT. L TD ALONE CANNOT BE DECISIVE FACTOR M DECIDING THE ISSUE AS LONG AS OTHER EVIDENCES SUPPORT THE CLAIM OF THE APPELLANT IN THIS REGARD, IN THIS CASE, IT IS SEEN THAT THE CLAIM OF THE APPELLANT IN RESPECT OF COST OF RIGHTS IN LAND IS SUPPORTED BY PAYMENTS THR OUGH BANK. IN RESPECT OF PAYMENT OF RS.3,40,72,250/ - TO M/S. AANCHA PROPERTIES PVT. LTD., THE DISALLOWANCE HAS BEEN MADE BY THE ASSESSING OFFICER PRIMARILY FOR THE REASON THAT IT IS AN AFTERTHOUGHT AND THE COMPANY WAS ALSO BANNED BY SEBI ALONG WITH M/S. NE W PLANET TRADING CO. PVT. LTD. WHICH ARE INTERRELATED PARTIES. I FIND THAT THE ADDITION OF RS.3,40,72,250/ - HAS BEEN MADE ON INSUFFICIENT GROUNDS AS THE CASE OF M/S. AANCHAL PROPERTIES PVT. LTD., REASONABLY STANDS ON DIFFERENT FOOTING THAN THE CASE OF M/S. NEW PLANET TRADING CO. PVT. LTD. AS NO FORGERY HAS BEEN NOTICED BY THE ASSESSING OFFICER IN THIS CASE. THEREFORE, IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING PAYMENT OF RS.3,40,72,250/ - TO M/S. AANCHAL PROPERTIES PVT. LTD. 21. YES, THE APPELLANT HAS TRIED TO MANIPULATE THE AGREEMENTS IN CONNIVANCE WITH M/S. NEW PLANET TRADING CO. PVT. LTD. TO SHOW HIGHER EXPENDITURE OF RS.1.93,23,750/ - AS DISCUSSED IN THE PRECEDING PARAS. THEREFORE, THE DISALLOWANCE HAS TO BE RESTRICTED TO RS.1 ,93,23,750/ - AND THE APPELLANT GETS RELIEF OF RS.6,10,72,250/ - (8,03,96,000 - 1,93,23,750). THE GROUND IS THUS PARTLY ALLOWED. 1 3 . WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE HAS FILED THE PAPER BOOK COMPRISE S OF THE FOLLOWING DOCUMENTS: SR. NO. PARTICULARS PAGE NOS. 1 COPY OF RECTIFICATION ORDER U/S 154 OF A Y 2008 - 09 1 TO 5 2 CHART GIVING DETAILS OF GENERAL LAND ACQUISION PROCESS 6 3 COPY OF MEMORANDUM OF UNDERSTANDING ( MOU ) BETWEEN NIRUPA KANITKAR & FARMERS DATED 30.06.2007 7 TO 13 4 COPY OF MEMORANDUM OF UNDERSTANDING ( MOU ) BETWEEN NIRUPA KANITKAR & FARMERS DATED 30.06.2007 ENGL ISH TRANSLATION 14 TO 15 5 COPY OF MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN NIRUPA KANITKAR & AANC HAL PROPERTIES PVT. LTD. DATED 01. 06.2007 16 TO 23 16 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE 6 COPY OF MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN NIRUPA KANITKAR & AANCHAL PROPERTIES PVT . LTD. DATED 01.08.2007 24 TO 32 7 COPY OF MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN NIRUPA KANITKAR & NEW PLANET TRADING CO PVT. LTD. DATED 01. 06.2007 33 TO 39 8 COPY OF ANNUAL RETURN OF AANCHAL PROPERTIES PVT. LTD FOR A.Y. 2009 - 10 40 TO 45 9 COPY OF ANNUAL RETURN OF NEW PLANET TRADING CO PVT. LTD A . Y. 2008 - 09 46 TO 50 10 COPY OF FORM 20B AANC HAL PROPERTIES PVT. LTD AS ON 31.03.2007 51 TO 52 11 CO PY OF ANNUAL RETURN OF AANCHAL PROPERTIES PVT. LTD A.Y. 2007 - 08 53 TO 59 12 COPY OF ANNUAL RETURN OF AANSH MERCANDISE PVT . LTD . A.Y . 2009 - 10 60 T0 65 13 COPY OF MEMORANDUM OF UNDERSTANDING ( MOU ) BETWEEN AANCHAL & FARMERS DATED 09.01.2007 66 TO 77 14 COPY OF LETTER FROM AANCHAL PROPERTIES PVT. LTD FOR ADDITIONAL COST OF RIGHT DATED 31.3.2008 78 15 COPY OF MEMORANDUM OF UNDERSTANDING ( MOU ) BETWEEN NEW PLANET & FARMERS DATED 15.01.2007 79 TO 89 16 MEMORANDUM OF UNDERSTANDINGS ( MOU ) BETWEEN NIRUPA KANITKAR & NEW PLANET TRADING CO PVT. LTD. DATED 03.06.2007 FORWARDED BY ACIT - V(2),MUMBAI 90 TO 96 17 CHART GIVING DETAILS OF AREA RECONCILIATION OF AANCHAL PROPERTIES PVT. LTD, NEW P LANET TRADING CO. PVT. LTD & OSTAWAL TRADING CO PVT. LTD FOR A.Y 2008 - 09, 2009 - 10 & 2010 - 11 97 TO 99 18 COPY OF LEDGER ABSTRACT OF AANCHAL PROPERTIES PVT. LTD, NEW PLANET TRADING CO. PVT. LTD & OSTAWAL TRADING CO PVT. LTD IN THE BOOKS OF NIRUPA KANIT KAR ALONG WITH BANK STATEMENT OF NIRUPA KANITKAR & RTGS CONFIRMATION FROM BANK 100 TO 120 19 COPY OF CONFIRMATION FROM OSTWAL TRADING INDIA CO. PVT. LTD ( CASPER ENTERPRISES PVT. LTD ) AS ON 31.03.2011 121 20 COPY OF BANK STATEMENT OF OSTAWAL TRAD ING INDIA PVT. LTD 122 TO 123 21 COPY OF BANK STATEMENT OF AANCHAL PROPERTIES PVT. LTD 124 TO 125 22 COPY OF BANK STATEMENT OF NEW PLANET TRADING CO. PVT. LTD 126 TO 127 17 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE 23 COPY OF CONFIRMATION OF ACCOUNT BY AANCHAL PROPERTIES PVT.LTD FOR A.Y 200 8 - 09 & 2009 - 10 ALONG WITH ADDITIONAL COST OF RIGHT LETTER 128 TO 131 24 COPY OF OPINION OF ADV. RAJIV PATEL REGARDING CONFIRMING PARTY 132 TO 136 25 COPY OF DECLARATION FROM MRS . NIRUPA KANITKAR TO HELIOS DATED 13.08.2009 137 TO 142 26 COPY OF DECLA RATION FROM MRS . NIRUPA KANITKAR TO HELIOS DATED 20.09.2011 143 TO 150 27 COPY OF DECLARATION FROM MRS . NIRUPA KANITKAR TO HELIOS DATED 19.04.2012 151 TO 155 28 COPY OF STATEMENT ON OATH BY MR . PRAVINKUMAR JAIN DIRECTOR AANCHAL PROPERTIES PVT. LTD. 156 TO 160 29 COPY OF MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN NIRUPA KANITKAR & HELIOS CONSTRUCTIONS PVT . LTD . DATED 03.12.2007 161 TO 175 30 COPY OF MEMORANDUM OF UNDERSTANDING ( MOU ) BETWEEN OSTAWAL TRADING INDIA PVT. LTD & FARMERS DATED 12.09. 2006 176 TO 183 31 COPY OF MEMORANDUM OF UNDERSTANDING ( MOU ) BETWEEN NIRUPA KANITKAR & OSTAWAL TRADING INDIA PVT. LTD . DATED 15.04.2008 184 TO 191 32 COPY OF INDEX II - DT . 19.10.2007 RUNWAL & FARMERS 192 TO 193 33 COPY OF STATEMENT OF ADDITIO NAL COMPENSATION TO FARMERS OF A . Y . 2008 - 09 194 TO 196 34 COPY OF STATEMENT OF ADDITIONAL COMPENSATION TO FARMERS OF A . Y . 2009 - 10 197 TO 199 35 COPY OF LEDGER ABSTRACT OF ADDITIONAL COST PAYABLE A/C IN THE BOOKS OF NIRUPA KANITKAR FROM 01.04.2007 T O 05.12.2011 ALONG WITH BANK STATEMENT 200 TO 208 36 COPY OF LIST OF COMMISSION DISALLOWED BY ASSESSING OFFICER FOR A Y 2008 - 09 CONTAING GUT NO FOR WHICH COMMISSION PAID, PAN NO, TDS, GROSS AMOUNT & DATE OF PAYMENT 209 TO 210 37 COPY OF LEDGER ABST RACT OF SAND ( LAND DEVELOPMENT EXPENSES ) ALONG WITH BILLS & PHOTOCOPIES OF CHEQUES ATTESTED BY BANK 211 TO 221 38 COPY OF SUBMISSION DT.08. 12.201 1 TO CIT APPEAL A . Y . - 2008 - 09 FOR COST OF RIGHTS ACQUIRED, ADDITIONAL COMPENSATION TO FARMERS AND COMMIS SION PAYMENT. 222 TO 228 18 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE 39 COPY OF LETTER DATED 19.12.2010 ISSUED BY ASSESSEE TO AANCHAL PROPERTIES PVT. LTD 229 40 COPY OF LETTER DATED 19.12.2010 ISSUED BY ASSESSEE TO NEW PLANET TRADING PVT. LTD 230 41 COPY OF REPLY TO A.O. DATED 20.12.2 010 231 42 COPY OF REPLY TO A.O. DATED 2 1.12.2010 232 TO 234 43 COPY OF SUBMISSION DT.26. 12.201 1 TO CIT APPEAL REGARDING DISALLOWANCE OF COMMISSION PAYMENT 235 TO 236 44 DETAILS OF COMMISSION PAYMENTS DISALLOWED BY A.O. ALONGWITH SUPPORTING L EDGER EXTRACTS, VOUCHERS AND OTHER EVIDENCES 237 TO 326 45 COPY OF LETTER DT. 19.03 .20 12 TO CIT APPEAL 327 TO 328 46 COPY OF LETTER DT.08.06.2012 TO CIT APPEAL 329 47 LETTER DT.09.06.2012 TO CIT APPEAL AGAINST THE ORDER OF THE AO FOR A . Y . - 200 8 - 09 330 48 COPY OF ACKNOWLEDGEMENT OF RETURN , COMPUTATION OF INCOME, AUDITED FINANCIAL STATEMENTS FOR A.Y - 2008 - 09 331 TO 341 49 COPY OF ACKNOWLEDGEMENT OF REVISED RETURN , COMPUTATION OF INCOME, AUDITED FINANCIAL STATEMENTS FOR A.Y - 2009 - 10 342 T O 347 50 COMPREHENSIVE SUBMISSION LETTER OF A . Y . 2008 - 09 & A . Y . 2009 - 10 348 TO 365 1 4 . THE MAIN PLANK OF THE ARGUMENT OF THE LD. COUNSEL IS THAT THERE IS NO REASON WHY THE ASSESSEE SHOULD DO THE FORGERY IN THE CASE OF M/S. NEW PLANET TRADING CO. PV T. LTD. WHEN ADMITTEDLY THE ENTIRE PAYMENT IS ROOTED THROUGH THE BANKING CHANNEL I.E. RTGS MECHANISM. THE LD. COUNSEL SUBMITS THAT THE BIG BUILDERS AND CORPORATE GROUPS REQUIRE BIG CHUNK OF LAND IN ONE STRETCH COMPRISING 100 ACRES OR MORE FOR THEIR REAL E STATE PROJECT OR FOR AN INVESTMENT. THE ASSESSEE IS ENGAGED IN LAND AGGREGATION AS SHE IS A LOCAL RESIDENT OF TALEGAON, PUNE AND HAS GOOD RELATIONS WITH THE LOCAL FARMERS. HE SUBMITS THAT IN THE A.Y. 2008 - 09 SHE ARRANGED 165.75 ACRES OF LAND BY WAY OF AG GREGATION FROM VARIOUS FARMERS AND SOLD TO M/S. HELIOS CONSTRUCTIONS PVT. LTD., MUMBAI AND SHE WAS THE CONSENTING PARTY FOR LAND DEAL. HE SUBMITS THAT IN THE AGGREGATION PROCESS THERE ARE NUMBER OF FARMERS AND OTHER PARTIES WHO ARE HAVING THE INTEREST IN THE SMALL PIECES OF LAND. HE SUBMITS THAT 19 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE AGGREGATION OF LAND IS VERY TEDIOUS JOB AND THE ASSESSE REQUIRES TO TAKE THE HELP OF THE AGENTS AS WELL AS THE LOCAL PEOPLE WHO LIAISON WITH THE FARMERS. HE SUBMITS THAT THE ASSESSEE ENTERED INTO AN AGREEMENT WITH M/S. HELIOS CONSTRUCTIONS PVT. LTD. FOR SELLING THE LAND @ 37 LAKHS PER ACRE WHEREAS SHE HAS SETTLED THE DEAL WITH THE FARMERS AT NAVALKHUMBRE @ RS.25,50,000/ - PER ACRE. HE REFERRED TO COPY OF MOU WITH M/S. HELIOS CONSTRUCTIONS PVT. LTD. WHICH IS PLACED AT PAGE NOS. 161 - 175 OF P/B. HE REFERRED TO THE COPY OF MOU WITH THE FARMERS (PAGE NOS. 7 - 13 AND ENGLISH TRANSLATION AT PAGE NOS. 14 AND 15 OF P/B) AND SUBMITS THAT IF SHE WAS ABLE TO GET THE TOTAL LAND UP TO 110 ACRES IN AGGREGATION FROM THE FARMERS THEN SHE HAD AGREED TO PAY TO THE FARMERS RATE OF RS.25,25,000/ - PER ACRE AND IF SHE WOULD GET THE MORE THAN 111 ACRES T H EN SHE AGREED TO PAY TO THE FARMERS THE PRICE OF RS.25,50,000/ - PER ACRE. HE ARGUES THAT CLAUSE - 8 OF THE SAID MOU ALSO PROVIDED THAT SOME OF THE FARMERS HAD ENTERED INTO AGREEMENTS WITH SOME COMPANIES FROM MUMBAI FOR SALE OF THEIR LANDS AND IT W AS AGREED BETWEEN THE ASSESSEE AND THE FARMERS THAT IT WOULD BE THE RESPONSIBILITY OF THE ASSESSEE TO SETTLE WITH THEM. THE ASSESSEE FOUND THAT BEFO RE HER NEGOTIATIONS WITH FARMERS , SOME OF THOSE FARMERS HAD ENTERED INTO MOU FOR SALE OF THEIR LAND TO M/S. AANCHAL PROPERTIES PVT. LTD. AND M/S. NEW PLANET TRADING CO. AND THE COPIES OF THE MOU ARE PLACED IN THE COMPILATION AT PAGE NOS. 66 - 77 AND 79 - 89. HE SUBMITS THAT ANY CORPORATE GROUPS OR ANY BUILDER WHO DESIRES TO ACQUIRE THE HUGE PIECES OF LAND PUT A CONDITION OF THE CLEAR TITLE AND HENCE, WHEN IT WAS NOTICED BY THE ASSESSEE THAT THE FARMERS HAVE ALREADY ENTERED INTO AN MOU WITH TWO COMPANIES IN MUM BAI , SHE APPROACHED THEM AND ENTERED INTO MOUS WITH THOSE COMPANIES BY AGREEING TO PAY THEM COMPENSATION OF RS.5,50,000/ - PER A CRE. ONE OF THE COMPANIES M/S. AANCHAL PROPERTIES PVT. LTD. DEMANDED SOME MORE COMPENSATION AND IN ORDER TO ENSURE THEIR CO - OPER ATION, THE 20 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ASSESSEE WAS REQUIRED TO PAY RS.1,00,51,000/ - TO SAID PARTY AS ADDITIONAL COMPENSATION . 1 5 . HE SUBMITS THAT ALL THE CONFIRMATION IN RESPECT OF THE PAYMENT MADE TO M/S. AANCHAL PROPERTIES AND M/S. NEW PLANET ARE ALREADY PLACED BEFORE THE ASSESS ING OFFICER AS WELL AS CIT(A). HE SUBMITS THAT THE ASSESSING OFFICER MADE THE INQUIRY WITH THE ASSESSING OFFICER IN MUMBAI WHO WAS THE ASSESSING OFFICER OF M/S. NEW PLANET AND CALLED COPY OF THE MOU BEYOND THAT THE ASSESSING OFFICER HAS NOT DONE ANY INDEP ENDENT INVESTIGATION NOR HE TOOK ANY PAIN TO FIND OUT WHETHER ALL THE PAYMENTS MADE BY THE ASSESSEE WHICH WERE ROOTED THROUGH THE BANKING CHANNEL WERE DECLARED BY THE SAID COMPANY OR NOT. HE SUBMITS THAT THERE IS NO BASIS FOR THE CHARGE OF FORGERY MADE BY THE ASSESSING OFFICER AS WELL AS BY THE LD. CIT(A) FOR REASON THAT THE DIRECTORS OF M/S. NEW PLANET HAVE NOT BEEN EXAMINED NOR THE COPY OF THE ALLEGED AGREEMENT DATED 03 - 06 - 2007 CALLED FROM THE ASSESSING OFFICER, MUMBAI FROM THE ASSESSMENT RECORD OF M/S. NEW PLANET WAS TEST CHECK ED . LD. COUNSEL PRODUCED THE ORIGINAL AGREEMENT DATED 01 - 06 - 2007 BETWEEN THE ASSESSEE AND M/S. NEW PLANET. HE ALSO EXPLAINED THAT SO FAR AS THE COPY DATED 03 - 06 - 2007 IS CONCERNED , M/S. NEW PLANET HAS MADE THE ALTERNATIONS BY SHOW ING THE LESSER COMPENSATION @ RS.3,20,665/ - PER ACRE AS AGAINST RS.5,50,000/ - PER ACRE PAID BY THE ASSESSEE. HE SUBMITS THAT THE ENTIRE PAYMENT IS MADE THROUGH THE BANKING CHANNEL VIA RTGS AND THE SAID PROOF WAS FILED BEFORE THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A). HE ARGUES THAT SO FAR AS THE ANOTHER COMPANY IS CONCERNED I.E. M/S. AANCHAL PROPERTIES , THE ONLY RESERVATION OF THE ASSESSING OFFICER IS IN RESPECT OF THE FINAL SALE DEED BETWEEN THE FARMERS AND M/S. HELIOS CONSTRUCTION AS THE ASSESSEE IS NOT MADE A CONSENTING PARTY. HE ARGUES THAT THE ASSESSEE HAS ALREADY ACQUIRED THE RIGHTS OF M/S. AANCHAL PROPERTIES PRIOR TO THE MOU WITH M/S. HELIOS CONSTRUCTION 21 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE PVT. LTD. AND THE SAID COMPANY WAS NOT SHOWN AS A CONSENTING PARTY. HE SUBMITS THAT IN T HE CASE OF M/S. N EW PLANET ALSO AS THE ASSESSEE HAS ACQUIRED THE RIGHTS MUCH MORE PRIOR BEFORE AN AGREEMENT WITH M/S. HELIOS CONSTRUCTIONS HENCE, THE SAID COMPANY WAS NOT IMPLEADED AS A CONSENTING PARTY IN THE FINAL SALE DEED. HE SUBMITS THAT NOTHING IS T HERE ON RECORD OR OTHERWISE ALSO TO SHOW THAT THE ASSESSEE HAS ANY INTEREST OR ANY RELATION WITH THOSE TWO COMPANIES. HE SUBMITS THAT THE LIST OF THE DIRECTORS AND SHAREHOLDERS OF THOSE TWO COMPANIES IS ALREADY FILED. HE SUBMITS THAT WHILE COMPLETING THE ASSESSMENT OF THE ASSESSEE FOR THE A.Y. 2009 - 10 , THE ASSESSING OFFICER EXAMINED SHRI PRAVEEN KUMAR JAIN, DIRECTOR OF M/S. AANCHAL PROPERTIES PVT. LTD. AND HIS STATEMENT IS REPRODUCE IN THE ASSESSMENT ORDER FOR THE A.Y. 2009 - 10. HE REFERRED TO ASSESSMENT ORDER A.Y. 2009 - 10 AND SUBMITS THAT A SPECIFIC QUESTION BEING Q. NO. 5 WAS ASKED TO SHRI JAIN THAT I.E. THE NATURE OF DEAL OF THE COMPANY WITH THE ASSESSEE AND IT IS CONFIRMED BY THE DIRECTOR OF M/S. AANCHAL PROPERTIES THAT THEY HAD SOME RIGHTS IN THE LAND ADMEASURING ABOUT 100 ACRES LOCATED AT NAVLAKUMBHARE. SHRI JAIN ALSO STATED THAT HIS PROPERTY CONSULTANT MR. CHOKHANI KNOWS THE ASSESSEE I.E. MRS. NIRUPA SUHAS KANITKAR AS MR. CHOKHANI WAS HAVING NEGOTIATION AND DISCUSSION WITH THE ASSESSEE. HE SUBMITS THAT THE ASSESSING OFFICER ALSO ASKED A SPECIFIC QUESTION IN RESPECT OF LOCATION OF PROPERTY AT NAVLAKUMBHARE BEING Q. NO. 6 AND DIRECTOR SHRI JAIN STATED THAT HE HAS VISITED THE PROPERTY ALONG WITH HIS CONSULTANT MR. CHOKHANI AND HE CAN LOCATE THE PROPERT Y. 1 6 . THE ASSESSING OFFICER ALSO ASKED MR. JAIN WHETHER THE LAND IN QUESTION FALLS ON LEFT OR RIGHT SIDE OF PUNE - MUMBAI EXPRESSWAY IF ONE GOES FROM PUNE TOWARDS MUMBAI. MR. JAIN ANSWERED THE QUESTION BY STATING THAT THE LAND IN QUESTION OF FALLS ON THE RIGHT SIDE WHILE GOING FROM PUNE TO MUMBAI. HE SUBMITS THAT THE IDENTITY OF LOCATION OF 22 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE PROPERTY WAS ALSO MADE BY THE DIRECTOR OF M/S. AANCHAL PROPERTIES. MR. JAIN ALSO NARRATED HOW MUCH AMOUNT HE HAS PAID TO THE REPRESENTATIVES OF THE FARMERS IN ANSWER TO Q. NO. 11 ETC. T HEN HOW THE ASSESSING OFFICER CAN TAKE THE DOUBT ON THE GENUINENESS OF THE PAYMENT. HE SUBMITS THAT LD. CIT(A) HAS RIGHTLY ALLOWED THE PAYMENT MADE TO M/S. AANCHAL PROPERTIES. IN RESPECT OF M/S. NEW PLANET LD. COUNSEL SUBMITS THAT TH E ASSESSING OFFICER SHOULD HAVE F OU ND OUT TRUTH BY CALLING THE ASSESSMENT R ECORD OF THE SAID COMPANY AND EXAMINING THE DIRECTORS. NOTHING IS THERE ON RECORD EXCEPT THE CERTAIN INFERENCE S ON THE BASIS OF PRESUMPTION TO SUPPORT THE CASE OF THE ASSESSING OFF ICER AS WELL AS THE CIT(A) THAT THE ASSESSEE WAS ANYWHERE INVOLVED IN THE TAMPERING OF THE MOU DATED 01 - 06 - 2007. HE PLEADED FOR CONFIRMING THE ORDER OF THE LD. CIT(A) TO THE EXTENT OF M/S. AANCHAL PROPERTIES AND ALSO DELETING THE ADDITION SUSTAINED BY THE LD. CIT(A) IN RESPECT OF PAYMENT OF COST OF ACQUISITION OF RIGHTS TO M/S. NEW PLANET . 1 7 . PER CONTRA, THE LD. CIT (DR) SUBMITS THAT THE ENTIRE TRANSACTION OF ALLEGED ACQUISITION OF RIGHTS BY THE ASSESSEE WITH M/S. AANCHAL PROPERTIES AS WELL AS M/S. NEW PLANET PRIMA - FACIE ARE ARRANGED TRANSACTIONS. HE SUBMITS THAT IF THOSE COMPANIES HAD ANY INTEREST IN THE SAID LAND THEN WHY THOSE TWO COMPANIES WERE NOT MADE CONSENTING PARTY TO THE FINAL SALE DEED BETWEEN M/S. HELIOS CONSTRUCTIONS AND THE FARMERS AND THE OWNERS OF THE LAND. HE SUBMITS THAT AS PER THE INFORMATION COLLECTED BY THE ASSESSING OFFICER FROM THE ASSESSING OFFICER, MUMBAI WHO HAS HAVING THE JURISDICTION O VER M/S. NEW PLANET , IT IS PROVED THAT THERE WERE TWO DIFFERENT AGREEMENTS AND THIS FACT HAS NOT BEEN DISPUTED. HE ALSO REFERRED TO COPY OF THE AGREEMENT OBTAINED BY THE ASSESSING OFFICER FROM THE ASSESSING OFFICER, MUMBAI SUBMITS THAT THERE ARE TWO DIFFERENT AGREEMENTS /MOUS EXECUTED ON DIFFERENT DATES I.E. 01 - 06 - 2007 AND 03 - 06 - 2007. MOREOVER, THE AMOUNT OF THE 23 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE COMPENSATION MENTIONED ALSO VARIES. SO FAR AS THE AGREEMENT PRODUCED BY THE ASSESSEE IS CONCERNED , THE AMOUNT OF COMPENSATION IS SHOWN @ RS.5,50,000/ - BUT IN THE COPY OF OBTAINED FROM THE ASSESSING OFFICER, MUMBAI , THE AMOUNT OF THE COMP ENSATION IS SHOWN @ RS.3,20,665/ - PER ACRE. HE SUBMITS THAT THE ENTIRE TRANSACTION IS ARRANGED TRANSACTION TO EVADE THE TAX. THE ASSESSEE HAS ADOPTED THE MODUS OPERANDI BY TAKING THE HELP OF THOSE TWO COMPAN IES. HE SUBMITS THAT AS PER THE INFORMATION OB TAINED FROM THE ROC MORE PARTICULARLY FROM THE WEBSITE IT IS NOTICED THAT BOTH THE COMPANIES ARE TAINTED COMPANIES AND THEY WERE BANNED BY THE SEBI. HE SUBMITS THAT IN THIS BACKGROUND , THE BONAFIES OF CLAIM OF PAYMENT OF COMPENSATION TO THOSE TWO COMPANIE S FOR ALLEGED ACQUIRING THE RIGHTS IN THE LANDS IS SERIOUSLY DOUBTED. HE SUBMITS THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE PAYMENT MADE TO M/S. AANCHAL PROPERTIES AND PARTLY ALLOWING THE PAYMENT MADE TO M/S. NEW PL ANET IN THE A.Y. 2008 - 09. 1 8 . WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. WE HAVE ALSO GONE THROUGH THE PAPER BOOK FILED BEFORE US. IN THIS CASE, THE ASSESSEE IS ENGAGED IN THE AGGREGATION OF LAND. AS PER THE MODUS OPERANDI OF THE ASSESSEE , SHE HUNT S BIG CHUNK OF LAND TO SALE THE SAME TO THE BIG BUILDERS OR CORPORATE GROUPS. ACCORDINGLY, SHE IDENTIFIED THE LAND IN NAVLAKUMBHARE AND ENTERED INTO MOU WITH THE REPRESENTATIVES OF THE FARMERS AS WELL AS LAND OWNERS. THE ASSESSEE HAS FILED THE COPIES OF MOU (PAGE NO. 7 TO 13 OF THE COMPILATION) WHICH IS MARATHI AND ENGLISH TRANSLATION IS AT PAGE NOS. 14 TO 15 OF THE COMPILATION. IT IS SEEN THAT AS PER THE SAID AGREEMENT /MOU THE ASSESSEE AGREED TO PAY THE COMPENSATION OF RS.25,25,000/ - PER ACRE IF THE FAR MERS OR THEIR REPRESENTATIVES AGREED TO CONSOLIDATE AND MAKE AVAILABLE THE LAND TO THE EXTENT OF 110 ACRES AND RS.25,50,000/ - PER ACRE IF IT IS MORE THAN 111 ACRES. ON PERUSAL OF THE SAID AGREEMENT IT IS SEEN 24 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE THAT THE TOTAL LAND AREA WAS CO NTEMPLATED TO E XTEND OF 180 ACRES. IN CLAUSE - 8 OF THE SAID MOU, IT IS MENTIONED THAT SOME OF THE FARMERS HAVE ENTERED INTO AGREEMENT WITH THE COMPANIES IN THE MUMBAI AND IT IS A RESPONSIBILITY OF THE ASSESSEE TO CLEAR THEIR MONETARY COMMITMENTS. IN THE SAID AGREEMENT S URVEY NUMBER WISE NAMES ARE WRITTEN AND IT IS SIGNED BY THE FARMERS OR PUT THEIR THUMB IMPRESSION . I N THE ANNEXURE TO THE AGREEMENT GUT NO., AREA IN ARES, RATE ETC. ARE SHOWN. IN THIS CASE, THE ASSESSEE DID NOT ENTERED INTO THE FINAL SALE DEED WITH THE F ARMERS AND THE FINAL SALE DEED WAS DIRECTLY EXECUTED BETWEEN THE FINAL BUYER OF THE LAND I.E. M/S. HELIOS PROPERTIES AND THE FARMERS AND OWNERS . THE ASSESSEE JOINED THE SALE DEED AS A CONSENTING PARTY. IN THIS CASE IT IS SEEN THAT THE ASSESSEE ALSO ENTER ED INTO THAT AGREEMENT WITH M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. AND AGREED TO PAY THEM THE COMPENSATION WHICH COPIES ARE PLACED AT PAGE NOS. 16 TO 23 AND 33 TO 39 OF THE COMPILATION. 18.1 AS PER THE MOU DATED 01 - 06 - 2 007 BETWEEN THE ASSESSEE AND M/S. AANCHAL PROPERTIES PVT. LTD. THE ASSESSEE AGREED TO ACQUIRE THE RIGHTS OF THOSE COMPANIES IN THE LANDS BY PAYMENT OF RS.5,50,000/ - PER ACRE. THE MOU WITH BOTH THE COMPANIES I.E. M/S. NEW PLANET TRADING CO. PVT. LTD. AND M /S. AANCHAL PROPERTIES PVT. LTD. ARE ENTERED INTO ON 01 - 06 - 2007. IT IS ALSO NOT IN DISPUTE THAT THE ENTIRE PAYMENT OF THE AGREED COMPENSATION TO THOSE TWO COMPANIES WAS MADE BY THE ASSESSEE THROUGH THE BANKING CHANNEL ADOPTING THE RTGS TRANSFER . T HE ASS ESSING OFFICER HAD RESERVATION MAINLY ON TWO REASONS (I) IN CASE OF M/S. NEW PLANET TRADING CO. PVT. LTD. AS PER THE COPY OBTAINED FROM THE ASSESSING OFFICER, MUMBAI FROM THE ASSESSMENT RECORD OF M/S. NEW PLANET TRADING CO. PVT. LTD. , THERE WAS DIFFERENC E IN THE AMOUNT OF COMPENSATION AS WELL AS THE DATE. THE ASSESSING OFFICER DID NOT COLLECT ANY COPY OF AGREEMENT FROM THE ASSESSING OFFICER, MUMBAI IN RESPECT OF 25 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE M/S. AANCHAL PROPERTIES PVT. LTD. ON THE BASIS OF COPY OBTAINED FROM THE ASSESSING OFFICER, MUMBAI IN THE CASE OF M/S. NEW PLANET TRADING CO. PVT. LTD. , THE ASSESSING OFFICER CONCLUDED THAT THOSE MOU WERE BOGUS AND TWO DIFFERENT AGREEMENTS/MOUS WERE EXECUTED AND HE ALSO LEVIED THE CHARGE OF FORGERY. THE ASSESSING OFFICER FURTHER CONCLUDED THAT B OTH THOSE COMPANIES ARE NOT MADE CONSENTING PARTY IN THE FINAL SALE DEED BETWEEN M/S. HELIOS CONSTRUCTIONS AND THE FARMERS WHEREAS THE ASSESSEE WAS MADE AS CONSENTING PARTY. THE ASSESSING OFFICER RAISED THE QUESTION WHY THOSE TWO COMPANIES WERE NOT IMPLEA DED A S THE CONSENTING PARTY. ON THIS BASIS HE PR OCEEDED TO DISALLOW THE ENTIRE CLAIM OF EXPENDITURE TOWARDS COMPENSATION PAID BY THE ASSESSEE. THE LD. CIT(A) ACCEPTED THE PLEA TO THE EXTENT OF M/S. AANCHAL PROPERTIES PVT. LTD. AND ALLOW THE ENTIRE LAIM . I N RESPECT OF M/S. NEW PLANET TRADING CO. PVT. LTD. , H E CONCURRED WITH THE ASSESSING OFFICER THAT THERE WAS A TAMPERING AND THE ASSESSEE HAS SHOWN MORE AMOUNT PAID TO THE M/S. NEW PLANET TRADING CO. PVT. LTD. THAN ACTUAL PAID. HE, THEREFORE, SUSTAINED TH E ADDITION BY ACCEPTING THE FIGURE OF RS.3,20,665/ - PER ACRE AS MENTIONED IN THE COPY OBTAINED FROM THE ASSESSING OFFICER, MUMBAI. 19. IN THIS BACKGROUND OF FACTS , WE FIND THAT IN THE ORIGINAL AGREEMENT WITH THE FARMERS THOUGH , MAY NOT BE IN THE SPECIFIC TERMS , THE NAMES OF TH O SE TWO COMPANIES ARE MENTIONED BUT THERE IS A REFERENCE IN CLAUSE - 8 THA T THE FARMERS HAD ENTERED INTO AGREEMENT IN MUMBAI IN RESPECT OF THE LAND S FOR WHICH THE ASSESSEE WAS ENGAGED INTO NEGOTIATION FOR ACQUIRING THOSE LANDS. WE ALS O FIND THAT THE ASSESSING OFFICER HAS NOT RAISED ANY DISPUTE ON THE FINAL SALE DEED BETWEEN M/S. HELIOS CONSTRUCTIONS AND FARMERS IN WHICH THE ASSESSEE IS IMPLEADED AS CONSENTING PARTY. THE ONLY DOUBT RAISED BY THE ASSESSING OFFICER IS IN RESPECT OF CLAIM OF COMPENSATION PAID TO M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. THE LAW IS WELL SETTLED THAT IF THE 26 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE DOCUMENTARY EVIDENCE IS SUPPORT ED THE CLAIM OF THE ASSESSEE AND IF THE ENTIRE PAYMENT IS ROOTED THROUGH THE BANKING CH ANNEL , IN OUR OPINION AT THE FIRST INSTANCE THE ASSESSING OFFICER HAS TO DEMONSTRATE THAT THERE WAS NO TRANSACTION AT OR THERE WAS NO AGREEMENT AT ALL AND THEN TO PROCEED TO EXAMINE HOW MUCH PAYMENT IS MADE. 2 0 . DURING THE COURSE OF HEARING THE LD. AR PR ODUCED THE ORIGINAL COPY OF MOU DATED 01 - 06 - 2007 ENTERED INTO WITH M/S. NEW PLANET TRADING CO. PVT. LTD. HE ALSO EXPLAINED THAT THE SECOND COPY WHICH IS OBTAINED FROM THE ASSESSING OFFICER, MUMBAI IS TAMPERED. WE HAVE EXAMINED THE ORIGINAL AGREEMENT WIT H THE COPY OBTAINED FROM THE ASSESSING OFFICER, MUMBAI AND PRIMA - FACIE WE AGREE THAT THERE IS NO TAMPERING IN THE COPY OF AGREEMENT PRODUCED BY THE ASSESSEE AFTER COMPARING COPY OF MOU OBTAINED FROM THE ASSESSING OFFICER, MUMBAI. THE LAW IS ALSO WELL SETT LED THAT WHATEVER AN INFERENCE IS DRAWN WHILE DECIDING RIGHTS OR LIABILITIES OF ANY PERSON , IT SHOULD BE BASED ON SOME EVIDENCE AND NOT MERELY ON PRESUMPTION S AND DOUBTS . SO FAR AS M/S. AANCHAL PROPERTIES PVT. LTD. IS CONCERNED THE ONLY RESERVATION OF THE ASSESSING OFFICER IS THAT THE SAID COMPANY WAS NOT IMPLEADED AS A CONSENTING PARTY. IN OUR OPINION AS THE SAID COMPANY HAS NOT MADE ANY CHANGES IN THE REVENUE RECORD AFTER ENTERING INTO AGREEMENT WITH THE FARMERS , T HERE WAS NO NECESSITY TO IMPLEAD SAID C OMPANY AS A CONSENTING PARTY . SAME WAY SO FAR AS M/S. NEW PLANET TRADING CO. PVT. LTD. IS CONCERNED ALSO THERE WAS NO CHANGE IN THE REVENUE RECORD AND HENCE THERE WAS NO NECESSITY TO IMPLEAD SAID COMPANY AS A CONSENTING PARTY. 20.1 WE ALSO FIND THAT IN A.Y. 2009 - 10 ONE OF THE DIRECTOR OF M/S. AANCHAL PROPERTIES PVT. LTD. APPEARED BEFORE THE ASSESSING OFFICER AND HE WAS EXAMINED AS HIS STATEMENT IS REPRODUCED IN THE ASSESSMENT ORDER FROM THE A.Y. 2009 - 10. FROM THE PERUSAL OF THE SAID STATEMENT , IT 27 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE IS SEE N THAT THERE ARE NO CONTRADICTION S IN HIS REPLY AND MR. JAIN (DIRECTOR) CATEGORICALLY ADMITTED THE TRANSACTION AS WELL AS CONFIRMED EVEN THE LOCATION OF THE PROPERTY. AS PER THE STATEMENT RECORDED BY THE ASSESSING OFFICER , IT IS SEEN THAT ONE MR. CHOKHANI WAS THE REPRESENTATIVES OF THAT COMPANY AND HE WAS INVOLVED IN NEGOTIAT ION WITH THE ASSESSEE. ON THE QUERY FROM THE BENCH LD. CIT (DR) FAIRLY SUBMITTED THAT NO INDEPENDENT ENQUIRY WITH THE FARMERS OR THOSE TWO COMPANIES I.E. M/S. NEW PLANET TRADING CO. P VT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. WAS CONDUCTED BY THE ASSESSING OFFICER. IN THE LIGHT OF OUR ABOVE DISCUSSION , WE ARE OF THE OPINION THAT THE INFERENCE DRAWN BY THE ASSESSING OFFICER IN RESPECT OF M/S. NEW PLANET TRADING CO. PVT. LTD. AS WEL L AS M/S. AANCHAL PROPERTIES PVT. LTD. IN RESPECT OF THE AMOUNT OF COMPENSATION PAID BY THE ASSESSEE FOR ACQUIRING THEIR RIGHTS IN THE PROCESS OF AGGREGATION OF LAND IN NAVLAKHUMBRE IS ERRONEOUS. 20.2 WE, ACCORDINGLY, HOLD THAT IN THE CASE OF M/S. AANCHA L PROPERTIES PVT. LTD. THE AMOUNT OF COMPENSATION PAID BY THE ASSESSEE TO THE SAID COMPANY IS ALLOWABLE EXPENDITURE IN RESPECT OF M/S. NEW PLANET TRADING CO. PVT. LTD. , WE HOLD THAT SO FAR AS BOTH THE AUTHORITIES BELOW HAVE NOT AT ALL REFERRED THE DOCUMENT S TO ANY EXPERT FOR FINDING OUT WHETHER ANY TAMPERING IS DONE BY THE ASSESSEE OR M/S. NEW PLANET TRADING CO. PVT. LTD. , ENTIRE INFERENCE AND CONCLUSION IS BASED ON ONLY PRESUMPTION AND HENCE THE SAME IS ERRONEOUS. WE ALSO FIND THAT IN THE CASE OF M/S. NEW PLANET TRADING CO. PVT. LTD. THE LD. CIT(A) HAS ACCEPTED THE PAYMENT AS A GENUINE TO THE EXTENT OF AMOUNT OF COMPENSATION PER ACRE MENTIONED IN THE COPY OBTAINED FROM THE ASSESSING OFFICER, MUMBAI. IF IT IS ALLOWED AS GENUINE THEN HOW THE QUESTION CAN BE RAISED ON THE MOU DATED 01 - 06 - 2007 WHICH WAS PRODUCED BEFORE THE ASSESSING OFFICER . WE, ACCORDINGLY, HOLD THAT THE CONCLUSION DRAWN BY BOTH THE AUTHORITIES BELOW IS ONLY ON THE PRESUMPTION THAT THERE IS A FORGERY OR TAMPERING IN 28 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE THE CONTENTS OF THE MOU BY THE ASSESSEE. WE, ACCORDINGLY, ALLOW THE CLAIM OF THE ASSESSEE AT ENTIRETY. IN THE RESULT, THE GROUNDS TAKEN BY THE ASSESSEE ARE ALLOWED ON THE ISSUE OF COMPENSATION PAID TO M/S. NEW PLANET TRADING CO. PVT. LTD. AND M/S. AANCHAL PROPERTIES PVT. LTD. A ND GROUNDS TAKEN BY THE REVENUE ARE DISMISSED. 2 1 . THE NEXT ISSUE IS THE ADDITIONAL CONSIDERATION PAID BY THE ASSESSEE TO THE FARMERS TO THE EXTENT OF RS. 1.80 CRORES WHICH WAS DISALLOWED BY THE ASSESSING OFFICER AND LD. CIT(A) SUSTAINED THE DISALLOWANCE TO THE EXTENT OF 50% OF THE SAID AMOUNT I.E. RS.90 LAKHS AND THIS ISSUE ARISES FROM GROUND NO. 2. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS CLAIMED THE PAYMENT OF ADDITIONAL COMPENSATION OF RS.1,80,00,000/ - IN LUMP SUM TO THE FARMERS O VER AND ABOVE THE AGREED PRICE OF RS.25,50,000/ - PER ACRE. IT APPEARS THAT ONLY THE PROVISION WAS MADE AND ACTUAL PAYMENT WAS NOT MADE. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF ADDITIONAL COMPENSATION BY GIVING THE REASON THAT THE ASSESSEE COULD NOT FURNISH ANY PROOF IN SUPPORT OF THE SAID CLAIM OF EXPENSE. THE ASSESSING OFFICER ALSO HELD THAT THE SAID CLAIM WAS IN THE NATURE OF CONTINGENT LIABILITY . T HE ASSESSING OFFICER DISALLOWED THE ENTIRE CLAIM OF RS.1,80,00,000/ - . WHEN THE ISSUE REACHED BEFO RE THE LD. CIT(A) , HE ALLOWED THE RELIEF TO THE EXTENT OF 50% AND SUSTAINED THE DISALLOWANCE TO RS.90 LAKHS. THE OPERATIVE PART OF THE FINDING OF THE LD. CIT(A) IS AS UNDER: 25. I HAVE CAREFULLY CONSIDERED THE FACTS OF THIS CASE AS WELL AS REPLY OF THE AP PELLANT. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS STATED THAT THE APPELLANT COULD NOT FURNISH ANY PROOF IN SUPPORT OF THIS CLAIM OF EXPENSES OF ADDITIONAL COMPENSATION OF RS.1,80,00,000/ - . HOWEVER, IN THE STATEMENT OF FACTS THE APPELLANT HAS MAD E THE FOLLOWING REMARKS: 'THE ASSESSEE HAD TO PAY ADDITIONAL COMPENSATION OF RS.1,80,00,000/ - TO THE FARMERS IN RESPECT OF LAND AT NAVLAKH 29 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE UMBRE AND LAND AT BADHALWADI. THIS WAS IN ACCORDANCE TO THE MOU BETWEEN THE OWNERS OF THE SAID PROPERTY AND THE ASSES SEE, SUBMITTED TO THE A.O. AT THE TIME OF ASSESSMENT PROCEEDINGS ALONG WITH THE REASONS, CIRCUMSTANCES, NAME OF THE PARTIES AND AMOUNT TO BE PAID TO THEM RESPECTIVELY. IN FACT THE ASSESSEE ENTERED INTO MOU FOR SALE OF LAND, TO M/S. AMTUT RUNWAL MULTI HOUSI NG PVT. LTD. FOR PECULIAR 'REASONS THE DEAL COULD NOT BE CONCLUDED AND HENCE THE ASSESSEE COULD NOT COMPLETE THE DEAL WITH THE FARMERS AS PER THE DEAD LINE GIVEN IN MOU WITH THEM. THIS MOU IS ON RECORD OF THE ASSESSING OFFICER. AS THE ASSESSEE FOLLOWS M ERCANTILE SYSTEM OF ACCOUNTING AND IN ORDER TO FOLLOW MATCHING PRINCIPLE, THE ASSESSEE PROVIDED THE CRYSTALLIZED LIABILITY IN THE BOOKS OF ACCOUNTS. IT IS WORTH MENTIONING THAT THIS IS NOT AN AD HOC PROVISION AND A LIST OF FARMER WISE PROVISION WAS PRODUC ED TO THE A.O. THE A.O. HAS DISREGARDED THE SAME AND HELD THE CRYSTALLIZED LIABILITY TO BE A CONTINGENT ONE AND HENCE DISALLOWED THE SAME. ACCORDING TO THE ASSESSEE IT IS A CRYSTALLIZED LIABILITY AND SHE IS IN THE PROCESS OF DISPOSING THE SAME. 26. THUS, FROM THE ABOVE IT IS SEEN THAT THE APPELLANT'S SUBMISSION IN THIS REGARD HAVE NOT BEEN CONSIDERED BY THE ASSESSING OFFICER. AS PER MEMORANDUM OF UNDERSTANDING BETWEEN THE APPELLANT AND THE FARMERS DATED 30.06.2007, IT IS MENTIONED IN CLAUSE 4 AS UNDER: 'B OTH THE PARTIES WILL BE RESPONSIBLE FOR THE TIMELY COMPLETION OF THE DEED AND IF THE DEED IS NOT EXECUTED IN TIME, THE FARMERS WILL HAVE RIGHT TO DEMAND ADDITIONAL COMPENSATION. BOTH THE PARTIES HAVE TO DECIDE THIS ADDITIONAL COMPENSATION MUTUALLY, BUT IT WILL NOT EXCEED RS.2 LAKHS PER ACRE. HOWEVER, MRS. NIRUPA SUHAS KANITKAR IS NOT BOUND TO PAY FOR THOSE PIECES OF LAND WHERE I GOT DISPUTES AND CONFLICTS HAVE NOT BEEN RESOLVED IN TIME BY THE FARMERS.' 27. ON THE BASIS OF THE ABOVE CLAUSE NO. 4, THE APPELLA NT AND SHRI VIKRAM KADARN REPRESENTATIVE OF THE FARMERS DECIDED THAT THE ADDITIONAL COMPENSATION SHOULD BE RS.1.70 LACS PER ACRE. ACCORDINGLY, PROVISIONS FOR RS.1.80 CRORES WAS MADE HOWEVER, NO PAYMENT WAS MADE DURING THE PREVIOUS YEAR AND EVEN TILL NOW 30 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE RS .31,61,000/ - HAS BEEN PAID BY THE APPELLANT TO THE FARMERS ON THIS ACCOUNT, IT IS ALSO SEEN THAT IN A.Y. 2009 - 10, THE ASSESSING OFFICER HAD DISALLOWED 50% OF ADDITIONAL COMPENSATION OF RS.66,64,000/ - CLAIMED ON SIMILAR GROUNDS WHICH WAS CALCULATED AT RS.33 .32,000/ - . I FIND THAT THE PROVISION IS QUITE EXCESSIVE IN THE SENSE THAT OUT OF PROVISION OF RS.1,80,00,000/ - , TILL DATE PAYMENT HAS BEEN MADE AT RS.31,61,000/ - ONLY. IN LAND DEALS NORMALLY ENTIRE PAYMENT IS MADE AT THE TIME OF REGISTRY. EVEN IF IT IS AC CEPTED THAT THE APPELLANT IS A LOCAL PERSON - NO VERY FAMILIAR WITH THE FARMERS THE PAYMENT OF RS.31,61,000/ - TILL DATE AGAINST THE AGREEMENT DATED 30.06.2007 AND ALSO CONSIDERING THE FACT THAT THE FINAL SALE DEED WAS EFFECTED IN DECEMBER 2007, THE PROVISIO N OF RS.1,80,00,000/ - IS QUITE EXCESSIVE. THEREFORE, ON THE FACTS AND CIRCUMSTANCES OF THIS CASE, I AM OF THE VIEW THAT AT THE BEST 50% OF ADDITIONAL COMPENSATION CAN BE ALLOWED. ACCORDINGLY, DISALLOWANCE IS RESTRICTED TO RS.90,00,000/ - ONLY. THE GROUND IS THUS PARTLY ALLOWED. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 2 2 . WE HAVE HEARD THE R IVAL SUBMISSIONS OF THE PARTIES. THE LD. COUNSEL SUBMITS THAT THE ASSESSEE MADE THE PROVISION OF RS.1,80,00,000/ - FOR THE A.Y. 2008 - 09 AS THE ASSESSEE ENTERED INTO MO U WITH THE FARMERS ON 30 - 06 - 2007 FOR ACQUISITION OF THEIR LANDS. HE REFERRED TO COPY OF MOU WHICH IS PLACED IN THE COMPILATION AND SUBMITS THAT A S PER CLAUSE - 5 , THE ASSESSEE AGREED THAT THE TRANSACTION W OULD BE COMPLETED WITHIN 30 DAYS AND IN CASE THE FIN AL TRANSACTION IS NOT COMPLETED THEN THE FARMERS HAD RIGHT TO ASK FOR THE HIGHER COMPENSATION. AS PER THE MUTUAL AGREED TERMS , THE AMOUNT OF ADDITIONAL COMPENSATION WOULD NOT BE IN EXCE SS OF RS.2 LAKHS PER ACRE. HE SUBMITS THAT THE ASSESSEE COULD NOT COM PLETE THE FINAL SALE DEED OF THE LAND WITHIN THE STIPULATED PERIOD OF 30 DAYS AND HENCE, THE ASSESSEE MADE THE PROVISIONS OF ADDITIONAL COMPENSATION PAYABLE TO THE FARMERS. HE SUBMITS THAT INITIALLY ON 19 - 10 - 2007 , THE ASSESSEE ENTERED INTO A SALE TRANSACT ION OF THESE LANDS WITH M/S. AMRUT RUNWAL AS PER WHICH M/S. 31 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE AMRUT RUNWAL PAID RS. 39,17,841/ - TO THE ASSESSEE WHICH IS SHOWN AS A GROSS INCOME BY THE ASSESSEE IN THE RETURN FOR A.Y. 2008 - 09. SUBSEQUENTLY, THE TRANSACTION WITH M/S. AMRUT RUNWAL COULD NOT BE MATERIALIZED AND THE ASSESSEE COULD NOT COMPLETE THE DEAL WITH THE FARMERS IN TIME. THERE WAS A DELAY IN EXECUTION OF FINAL SALE DEED AND IT CANNOT BE SAID THAT THE PROVISIONS MADE AS PER AGREED TERMS IS IN NATURE OF CONTINGENT LIABILITY. HE SUBMITS THA T THE ASSESSEE HAD ACTUALLY PAID ADDITIONAL COMPENSATION OF RS.43,90,000/ - TO THE VARIOUS FARMERS AND THE BALANCE AMOUNT IS PAYABLE TO THEM IS OUTSTANDING. HE ALSO RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CALCUTTA CO. 37 ITR 1. HE SUBMITS THAT ENTIRE PAYMENT IS TO BE ALLOWED. WE HAVE ALSO HEARD THE LD. DR. 23 . THE MAIN CONTENTION OF THE LD. AR IS THAT THE PROVISIONS FOR PAYMENT OF ADDITIONAL COMPENSATION OF RS.1,80,00,000/ - WAS BASED ON THE TERMS OF MOU BETWEEN THE ASSESSEE AND THE FARMERS. THE ASSESSEE COULD NOT COMPLETE THE SALE DEED WITHIN 30 DAYS AND HENCE, AS PER THE TERMS OF MOU WITH THE FARMERS THERE WAS LIABILITY OF ADDITIONAL COMPENSATION TO THE ASSESSEE . THE ASSESSEE HAS STATED THAT INITIALLY THE ASSESSEE ENTERED INT O AN MOU FOR SALE OF SAID LANDS WITH M/S. AM R UT RUNWAL MULTI HOUSING PVT. LTD. BUT AT THE SAID DE AL COULD NOT BE MATERIALIZED AND HENCE, THE ASSESSEE WAS REQUIRED TO PAY THE ADDITIONAL COMPENSATION. THE ASSESSEE, ACCORDINGLY, MADE THE PROVISIONS OF RS.1,8 0,00,000/ - BUT NO PAYMENT WAS MADE DURING THE YEAR. THE CLAIM OF THE ASSESSEE IS BASED ON THE FOUNDATION THAT SHE IS FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING. WHEN THE MATTER REACHED BEFORE THE LD. CIT(A) , HE RESTRICTED THE CLAIM TO 50%. HE EXPRESS ED THE OPINION THAT THE PROVISIONS OF RS.1,80,00,000/ - IS QUITE EXCESSIVE. 23.1 THE ASSESSEE HAS FILED THE CONFIRMATION FROM THE FARMERS . A S PER THE MOU DATED 30 - 06 - 2007 WITH THE FARMERS THERE IS A PROVISIONS BY 32 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE WAY OF CLAUSE 4 AND TIMELY COMPLETION OF DE AL WAS THE IMPORTANT CONDITION AND IF THE DEAL WAS NOT COMPLETED IN TIME THEN THE FARMERS WERE GIVEN THE RIGHTS TO DEMAND ADDITIONAL COMPENSATION. EVEN IF THE SPECIFIC AMOUNT OF ADDITIONAL COMPENSATION IS NOT MENTIONED BUT THERE WAS A CEILING THAT IT SHOU LD NOT BE MORE THAN RS.2 LAKHS PER ACRE. THE LD. CIT(A) HAS RESTRICTED THE PROVISIONS TO 50%. WE, THEREFORE, HOLD THAT THE PROVISIONS MADE BY THE ASSESSEE CANNOT BE SAID TO BE CONTINGENT IN NATURE AS IT IS AS PER AGREED TERMS OF CONTRACT BETWEEN THE ASSE SSEE AND THE FARMERS. AT THE SAME TIME WE CONCUR WITH THE FINDING OF THE LD. CIT(A) THAT THE PROVISION IS EXCESSIVE AND NO DETAILS ARE FILED . WE DO NOT CONSIDER TO INTERFERE IN THE RELIEF GIVEN BY THE LD. CIT(A) BY HOLDING THAT THE REASONABLE PROVISION I S TO THE EXTENT OF RS.90 LAKHS. IN RESPECT OF ADDITION SUSTAINED BY THE LD. CIT(A) OF RS.90 LAKHS , WE CONSIDER IT FIT TO REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE WHETHER THE BALANCE ADDITIONAL COMPENSATION OF RS.90 LAKHS PROVIDED BY THE ASSESSEE IS EXCESSIVE. THE ASSESSEE SHOULD FILE THE REQUIRED DETAILS AND DOCUMENTS BEFORE THE ASSESSING OFFICER. WE MAKE IT CLEAR THAT FOR DECIDING THE ISSUE OF REASONABLENESS OF RS.90 LAKHS SUSTAINED BY THE LD. CIT(A) , W E ARE REMIT TING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AND HE SHOULD NOT TRAVEL BEYOND THE SAID ISSUE FOR ADJUDICATION. ACCORDINGLY, GROUND NO. 2 IS ALLOWED FOR THE STATISTICAL PURPOSE. THE REVENUE HAS NOT TAKEN ANY GROUND ON THE RELIEF GRANTED BY THE LD. CIT(A). 2 4 . NOW, WE TAKE UP THE APPEALS OF THE ASSESSEE AS WELL AS REVENUE FOR THE A.Y. 2009 - 10. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS IN THE A.Y. 2009 - 10: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 33.32 LAKHS OUT OF THE ADDITIONAL CO NSIDERATION OF RS. 66.64 LAKHS PAYABLE 33 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE TO THE FARMERS FOR THE LANDS ACQUIRED FROM THEM AND CLAIMED AS A DEDUCTION IN THIS YEAR. 2. THE LEARNED CIT(A) ERRED IN DISALLOWING THE LAND DEVELOPMENT EXPENSES OF RS.20,00,056/ - OUT OF RS.22,00,056/ - . 2 5 . THE REVENUE H AS TAKEN THE FOLLOWING GROUND IN THE APPEAL FOR THE A.Y. 2009 - 10: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT THE CLAIM OF COST OF RIGHTS PAID BY THE ASSESSEE TO M/S. AANCHAL PROPERTIES PVT. LTD A ND TO M/S. OSTWAL TRADING CO. PVT. LTD WERE GENUINE, WHEN THE GENUINENESS OF THE ABOVE SAID ENTITIES WAS ITSELF DOUBTFUL. 2 6 . WE FIRST TAKE THE REVENUES APPEAL FOR THE A.Y. 2009 - 10 FOR DECISION. IN THE A.Y. 2009 - 10 THE ASSESSEE HAD CLAIMED THE EXPENSES OF RS.4,67,83,000/ - AS COST OF RIGHTS ACQUIRED AND THE BREAKUP OF THE SAID COST OF RIGHTS ACQUIRED AS UNDER: 1. PAYMENT OF RIGHT ACQUIRED FOR 47.1 ACRES OF LAND AT THE RATE OF RS.5.50 LACS PER ACRE TO AANCHAL PROPERTIES PVT. LTD. TOTAL PAYMENT RS.2,58,96,750/ - . 2. PAYMENT OF RIGHT ACQUIRED FOR 37.975 ACRES OF LAND AT THE RATE OF RS.5.50 LACS PER ACRE TO OSTWAL TRADING COMPANY PVT. LTD. TOTAL PAYMENT RS.2,08,86,250/ - . 2 7 . SO FAR AS THE PAYMENT MADE TO M/S. AANCHAL PROPERTIES PVT. LTD. IS CONCERNED , THE IDENTICAL I SSUE HAD COME FOR THE CONSIDERATION BEFORE US FOR THE A.Y. 2008 - 09. IN THIS YEAR THE ASSESSING OFFICER ISSUE D SUMMONS TO M/S. AANCHAL PROPERTIES PVT. LTD. WHICH WAS RETURNED UNDELIVERED. AS NOTED BY THE ASSESSING OFFICER , THE ASSESSEE PRODUCED ONE OF THE DIRECTORS OF M/S. AANCHAL PROPERTIES PVT. LTD. WHO APPEARED BEFORE THE ASSESSING OFFICER ON 23 - 12 - 2011 AND HE WAS EXAMINED ON OATH BY THE 34 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ASSESSING OFFICER ON THE SAME DAY. THE STATEMENT RECORDED BY THE ASSESSING OFFICER IS REPRODUCED IN THE ASSESSMENT O RDER WHICH IS AS UNDER: Q. 1 PLEASE IDENTIFY YOURSELF ? ANS. MYSELF SHRI. PRAUEENKUMAR JAIN, DIRECTOR, ANCHAL PROPERTIES PVT. LTD., MUMBAI - 03. Q.2 WHAT ARE YOU DOING PRESENT AND WHAT ARE THE ACTIVITIES OF ANCHAL PROPERTIES PVT. LTD.? ANS. I AM A B.COM STUD ENT. I AM THE DIRECTOR OF ANCHAL PROPERTIES PVT. LTD . IN WHICH THE MAIN ACTIVITIES RELATE TO INVESTMENT IN PROPERTY AND SHARES. I AM ALSO THE DIRECTOR OF 2 OTHER COMPANIES AS UNDER: 1) SUMUKH COMMERCIAL PVT. LTD. ENGAGED IN DIAMOND EXPORT/IMPORT 2) PICADIL LY OVERSEAS PVT. LTD. ENGAGED IN DIAMOND AND BULLION . Q.3 HOW DID YOU COME TO KNOW ABOUT SMT. NIRUPA SUHAS KANITKAR? ANS. I CAME TO KNOW ABOUT HER THROUGH OUR PROPERTY CONSULTANT MR. CHOKHANI. MR. CHOKHANI KNOWS THE DETAILS OF THE DEALS FOR WHICH HE BROU GHT MRS. NIRUPA SUHAS KANITKAR BEFORE ME. Q.4 DO YOU KNOW MRS. NIRUPA SUHAS KANITKAR PERSONALLY? ANS . NO, I DO NOT KNOW HER PERSONALLY. Q.5 WHAT IS THE NATURE OF THE DEAL YOU ENTERED WITH MRS. NIRUPA SUHAS KANITKAR? ANS. I HAD SOME RIGHTS ON LAND ADMEASU RING ABOUT 100 ACRES LOCATED AT NAVLAKUMBHARE. MY PROPERTY CONSULTANT MR. CHOKHANI KNOWS AS TO HOW MRS. NIRUPA SUHAS KANITKAR CAME TO HIM AND WITH WHAT CONNECTION. Q.6 DO YOU PERSONALLY KNOW THE LOCATION OF THE PROPERTIES AT NAVLAKUMBHARE IN RESPECT OF WH ICH YOU HAD SOME RIGHTS WHICH WERE LATER SURRENDERED TO MRS. NIRUPA SUHAS KANITKAR? PLEASE SOME DETAILS OF THE LOCATIONS? 35 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ANS. I HAVE VISITED THE LOCATION ALONGWITH MY PROPERTY CONSULTANT MR. CHOKHANI AND I CAN LOCATE THE PROPERTY. Q. 7 PLEASE STATE WHETH ER THE LAND IN QUESTION FALLS ON LEFT OR RIGHT SIDE OF PUNE - MUMBAI EXPRESSWAY IF ONE GOES FROM PUNE TOWARDS MUMBAI? ANS. AS FAR AS I REMEMBER, THE LAND FALLS ON THE RIGHT SIDE WHILE GOING FROM PUNE TO MUMBAI. Q.8 CAN YOU GIVE THE DISTANCE OF THE SAID LAND FROM EXPRESSWAY IF MEASURED STRAIGHT? ANS. I DO NOT HAVE ANY IDEA ABOUT THAT Q. 9 DO YOU KNOW THE NATURE OF LAND IN RESPECT OF WHICH YOU HAD ACQUIRED THE RIGHT AND LATER SOLD TO MRS. NIRUPA SUHAS KANITKAR ? ANS. IT IS TOTALLY AGRICULTURAL LAND WITHOUT AN Y HILLY OR FORESTED AREA. Q.10 HOW MUCH FEES YOU HAVE PAID TO YOUR PROPERTY CONSULTANT MR. CHOKHANI DURING LAST 3 YEARS? ANS. MY COMPANY HAS NOT PAID ANY KIND OF FEES TO MR. CHOKHANI. Q. 11 WHAT ARE THE DETAILS OF PAYMENTS MADE TO THE FARMERS BY THE COMP ANY? ANS. WE HAVE PAID RS.5,51,000/ - IN CASH TO MR. SHANKARRAO AND CHOKHANI FOR THE PAYMENT TO FARMERS. MR. CHOKHANI HAD BROUGHT SHANKARRAO BEFORE ME AND TOLD THAT HE IS THE PERSON WHO WILL LOOK AFTER THE WORK OF GETTING SIGNATURE FROM THE FARMERS. Q. 12 AT THE TIME OF GIVEN RS.5,51,000/ - AS ABOVE, WERE YOU SURE AS TO HOW THE MONEY IS TO BE DISTRIBUTED AMONG FARMERS? ANS. I DO NOT HAVE ANY IDEA BECAUSE EVERYTHING WAS DONE THROUGH THE MEDIATOR. Q.I3 WHAT ARE THE OTHER COMPANIES WHO HAVE ENTERED IN TO DEAL WITH MRS. NIRUPA SUHAS KANITKAR IN RESPECT OF THE LAND AT NAVLAKUMBHARE? 36 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ANS. I AM NOT SURE AS TO WHAT OTHER COMPANIES HAVE ENTERED IN TO DEAL WITH MRS. NIRUPA SUHAS KANITKAR. Q.I4 WHAT IS THE AMOUNT OF MONEY YOUR COMPANY HAS RECEIVED IN CONNECTION WITH S ALE OF LAND AT NAVLAKUMBHARE TO MRS. NIRUPA SUHAS KANITKAR? ANS. WE HAVE RECEIVED ABOUT RS.6 CRORES APPROX IN 2 YEARS. Q. 15 WHAT WAS THE RATE PER ACRES OF LAND THAT YOU WERE REQUIRED TO PAY TO THE FARMERS? ANS. RS.22,00,000/ - PER ACRE APPROXIMATELY. Q. 16 DO YOU THINK FOR SUCH A HIGH VALUE LAND ADMEASURING 100 ACRES THE AMOUNT PAID TO FARMERS, I.E., RS.5,51,000/ - SUFFICIENT ? ANS. IT WAS A TOKEN PAYMENT. Q. 17 DO YOU REMEMBER THE DATE ON WHICH TOKEN PAYMENT WAS MADE? ANS. AFTER REFERRING TO THE AGREEMEN T I STATE THAT THE TOKEN PAYMENT WAS MADE ON 09.01.2007. Q.I 8 WHEN DID THE OCCASION TO SELL RIGHT FOR THE AND TO MRS. NIRUPA SUHAS KANITKAR AROSE? ANS. IT WAS TOWARDS END OF THE CALENDAR YEAR 2007. Q. 19 WHY YOU DID NOT MAKE ANY FURTHER PAYMENT TO F ARMERS AFTER PAYMENT OF INITIAL TOKEN MONEY OF RS.5,51,000/ - EVEN AFTER LAPSE OF ABOUT ONE YEAR? ANS. OUR MEDIATOR MR. CHOKHANI DID NOT ASK FOR THE SAME. Q.20 WHAT WAS THE RATE OF COST OF RIGHT PER ACRES YOU OBTAINED AS COMPENSATION FROM MRS. NIRUPA SUHAS KANITKAR FOR SALE OF RIGHTS TO HER? ANS. RS.5,50,000/ - PER ACRE. Q.21 WHY DID YOU CHARGE SUCH A HIGH PRICE FOR SALE OF SUCH RIGHTS? 37 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE ANS. WE KNEW THAT MRS. NIRUPA SUHAS KANITKAR WAS TO SALE THE LAND TO HIRANANDANI GROUP AT A HIGHER PRICE SO WE CHARGED HIG H AMOUNTS. Q.22 WHY DID NOT YOU SELL THE LAND TO HIRANANDANI GROUP DIRECTLY? ANS. MY MEDIATOR MR. CHOKHANI DID NOT SUGGEST SO. Q.23 HAVE YOU GOT ANY EVIDENCE IN RESPECT OF THE AGREEMENT ENTERED BY YOUR COMPANY WITH THE FARMERS? A NS. I AM SUBMITTING YOU A PHOTO COPY OF MOU. Q.24 WHERE IS THE ORIGINAL OF THIS MOU AT PRESENT? ANS. THE ORIGINAL LIES WITH MRS. NIRUPA SUHAS KANITKAR. Q.25 CAN YOU GIVE THE WORKING OF CAPITAL GAIN OF RS.39,14,077/ - AND RS.8,97,263/ - AS HAS BEEN SUBMITTED BY YOU IN YOUR PROFIT & LOSS ACCOUNT FOR THE YEAR ENDING 31.03.2008 AND 31.03.2009 RESPECTIVELY? ANS. IT IS NOT POSSIBLE FOR ME TO SUBMIT THE DETAILED WORKING AT PRESENT. I SHALL SUBMIT THE WITHIN 2 DAYS. Q.26 WHAT IS THE AMOUNT REMAINED TO BE RECEIVED BY YOUR COMPANY FROM MRS. NIRUPA SUHAS KANITKAR AS ON 31.03.2009 AND AS ON TODAY? ANS. AS ON DATE NOTHING REMAINS TO BE RECEIVED FROM MRS. NIRUPA SUHAS KANITKAR . HOWEVER, AN AMOUNT OF RS.74,69,000/ - REMAINED TO BE RECEIVED FROM MRS. NIRUPA SUHAS KANITKAR . I AM SUBMITTING COPIES OF LEDGER EXTRACTS ,BANK STATEMENTS FOR THE SAME. Q.27 HAVE TO ANYTHING TO SAY WHICH YOU CONSIDER RELEVANT? ANS. NO.' 2 8 . THE ASSESSING OFFICER HAS OBSERVED THAT AS PER THE STATEMENT OF SHRI PRAVEEN KUMAR JAIN, DIRECTOR OF M/S. AANCHAL PROPERTIES PVT. L TD. IT IS EVIDENT THAT ALL THE THREE COMPANIES ARE INDEPENDENT OF EACH OTHER I.E. M/S. NEW PLANET TRADING CO. PVT. LTD., M/S. AANCHAL PROPERTIES PVT. LTD. AND M/S. OTSWAL TRADING CO. PVT. LTD. HE EXPRESSED DOUBT THAT 38 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE HOW THOSE THREE COMPANIES WOULD ENTER THE SCENE IN A CONCERTED MANNER AND TAKE A SHARE OF THE LAND PIE WHICH WAS GOING TO BE SOLD TO SUBSEQUENT PURCHASERS. THE ASSESSING OFFICER ALSO RAISED THE QUESTION MARK THAT WHEN THREE COMPANIES DESIRED TO PURCHASE THE LAND WHY THEY SHOULD COME TO PUT TH EIR STAKE IN ONE PLACE ONLY WHICH WAS VERY UNLIKELY. THE OTHER REASONS GIVEN BY THE ASSESSING OFFICER ARE IDENTICAL AS IN THE A.Y. 2008 - 09. THE ASSESSING OFFICER DISALLOWED THE AMOUNT PAID BY THE ASSESSEE TO M/S. AANCHAL PROPERTIES PVT. LTD AS COMPENSATI ON TOWARDS ACQUIRING ITS RIGHTS IN LANDS. THE ASSESSING OFFICER HAS ALSO GIVEN THE REFERENCE IN THE A.Y. 2008 - 09. THE ASSESSING OFFICER, THEREFORE, DISALLOWED THE AMOUNT OF RS.2,58,96,750/ - PAID BY THE ASSESSEE TO M/S. AANCHAL PROPERTIES PVT. LTD. IN R ESPECT OF M/S. OTSWAL TRADING CO. PVT. LTD. ALSO THE ASSESSING OFFICER MADE THE ENTIRE DISALLOWANCE OF CLAIM TOWARDS COST INCURRED FOR ACQUIRING RIGHTS FROM M/S. OTSWAL TRADING CO. PVT. LTD. WE FIND THAT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS F OCUSED HIS DISCUSSION ON M/S. AANCHAL PROPERTIES PVT. LTD. BUT THERE IS NO SPECIFIC DISCUSSION ON M/S. OTSWAL TRADING CO. PVT. LTD. THE ASSESSEE CHALLENGED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OF RS.4,67,83,000/ - (RS.2,58,96,750/ - TO M/S. AANCHA L PROPERTIES PVT. LTD. + RS. 2,08,86,250/ - TO M/S. OSTWAL TRADING COMPANY PVT. LTD.). THE LD. CIT(A) DELETED THE ADDITION BY HOLDING AS UNDER: 9. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AS WELL AS THE REPLY FILED BY THE APPELLANT. IN THIS CASE, T HE AMOUNT IN QUESTION PERTAINS TO ALLEGED ACQUISITION OF COST OF RIGHT OF LAND IN RESPECT OF THE FOLLOWING TWO PARTIES. M/S. AANCHAL PROPERTIES PVT. LTD. RS.2,58,96,750/ - M/S. NEW PLANET TRADING CO. PVT. LTD. RS.2,08,86,250/ - TOTAL RS.4,67,83,000 / - 39 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE THE ASSESSING OFFICER HAS DISALLOWED THE PAYMENT IN RESPECT OF COST OF ACQUISITION OF RIGHT IN THE LAND ACQUIRED FROM FARMERS ON THE FOLLOWING GROUNDS. (I) THE NAME OF THESE TWO PARTIES DO NOT APPEAR AS CONSENTING PARTIES IN THE DOCUMENTS REGISTERED BETWEEN THE FARMERS AND M/S. HELIOS CONSTRUCTION PVT. LTD. (II) THE AGREEMENTS WITH THE ABOVE PARTIES WERE BROUGHT INTO H PICTURE IN ORCHESTRATED MANNER BY THE APPELLANT IN ORDER TO H REDUCE TAXABLE INCOME. (III) BOTH THE ENTITIES I.E. M/S. OSTWAL TRADING CO. PVT. LTD. AS WELL AS M/S. AANCHAL PROPERTIES PVT. LTD. WERE ALLEGED TO HAVE CREATED RIGHTS IN THE RESPECTIVE LANDS BY PAYING A TOKEN AMOUNT OF CASH AMOUNTING TO RS.5,51,000/ - TO FARMERS ON ADHOC BASIS AS IT WAS NOT CLEAR HOW AND WHEN THE AMOUNT WAS DISTRIBUTED AMONG T HE FARMERS. FURTHER M/S. AANCHAL PROPERTIES PVT. LTD WAS A TAINTED ENTITIY AS SEBI HAD BANNED THIS COMPANY FROM TRADING. (IV) THE APPELLANT COULD ONLY PRODUCE PHOTO COPY OF AGREEMENTS ENTERED INTO BY THE ABOVE NAMED PARTIES WITH FARMERS AND ORIGINAL DOCUMENT CO ULD NOT BE PRODUCED DESPITE THE SAME BEING CALLED FOR. 10. AS FAR AS THE NAMES OF THE ABOVE TWO PARTIES I.E. M/S. AANCHAL PROPERTIES PVT. LTD AND M/S. OSTWAL TRADING CO. PVT. LTD. IS CONCERNED, THE APPELLANT'S SUBMISSION IS THAT IT IS NOT NECESSARY TO INCO RPORATE THE NAME OF ALL THE STAKE HOLDERS IN THE FINAL AGREEMENT. THE APPELLANT SUBMITTED THAT SHE WAS NEGOTIATING THE DEAL WITH A BIG CORPORATE ENTITY OF MUMBAI AND SHE WAS NOT WILLING TO EXPOSE THE NAME OF THE PARTY TO ALL THE STAKE HOLDERS AS THEY COULD HAVE STARTED BARGAINING MORE AND MORE. BESIDES THIS SHE WAS RESPONSIBLE FOR GIVING A CLEAR LAND FOR WHICH NECESSARY STEPS WERE REQUIRED TO BE TAKEN WHILE PROTECTING HER OWN BUSINESS INTEREST. IT WAS ALSO SUBMITTED THAT THERE IS NO STATUTORY 40 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE REQUIREMENT TO INCORPORATE THE NAME OF ALL STAKE HOLDERS AS CONSENTING PARTIES IN THE FINAL DEED. THERE IS SOME TRUTH IN THE CONTENTION OF THE APPELLANT THAT BY EXPOSING THE BIG CORPORATE CLIENT SHE COULD HAVE INVITED MORE AND MORE BARGAINING. IT IS A COMMON KNOWLEDGE T HAT IN BIG TRANSACTIONS OF LAND, THE NAME OF END USER/ULTIMATE BUYER IS NOT REVEALED TILL THE LAST MOMENT OR TILL THE DEED IS SIGNED IN ORDER TO AVOID LAST MINUTE BARGAINING OR EVEN HIKE IN PRICES WHICH COULD BE OFFERED BY THE COMPETITORS. THIS PECULIAR CH ARACTERISTIC OF THE LAND DEALING MAKES THE BUSINESS OF AGGREGATION OF LAND DEALING QUITE SECRETIVE. THE MENTION OF THESE TWO PARTIES IN THE FINAL SALE DEED AS CONSENTING PARTIES COULD HAVE BROUGHT MORE TRANSPARENCY IN THE TRANSACTION BUT NOT MENTIONING OF THE SAME, IN ITSELF CANNOT BE THE BASIS OF DISALLOWANCE AS LONG AS OTHER DIRECT AND CIRCUMSTANTIAL EVIDENCES SUPPORT THE CASE OF THE APPELLANT. 11. AS FAR AS THE ASSESSING OFFICERS CLAIM THAT M/S. AANCHAL PROPERTIES PVT. LTD. IS A TAINTED PARTY AS SEBI H AS BANNED THIS COMPANY FROM TRADING, I DO NOT FIND ANY NEXUS BETWEEN THE TWO ISSUES. 12. THE ASSESSING OFFICER HAS ALSO HELD THAT THE APPELLANT COULD NOT PRODUCE ORIGINAL MOU BETWEEN FARMERS AND THE TWO PARTIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THIS REGARD ONE MUST APPRECIATE THAT THE APPELLANT WAS NOT A SIGNATORY BETWEEN THE FARMERS & THE TWO COMPANIES AND THEREFORE, THE ORIGINAL COULD HAVE BEEN PRODUCED ONLY AFTER OBTAINING THE SAME EITHER FROM THE FARMERS OR FROM THE TWO PARTIES. 13. TO SUM UP, IT IS SEEN THAT THE FACT THAT BOTH THE PARTIES WERE NOT A CONSENTING PARTIES IN THE FINAL DEED SIGNED BETWEEN THE FARMERS AND THE END USER I.E. M/S. HELIOS CONSTRUCTIONS PVT. LTD ALONE CANNOT BE DECISIVE FACTOR IN DECIDING THE ISSUE AS LONG AS OTHER E VIDENCES SUPPORT THE CLAIM OF THE APPELLANT IN THIS REGARD. IN THIS CASE, IT IS SEEN THAT THE CLAIM OF THE APPELLANT IN RESPECT OF COST OF RIGHTS IN LAND IS SUPPORTED BY PAYMENTS THROUGH BANK. THE A.O HAS DOUBTED THE GENUINENESS OF THE TRANSACTION MADE WIT H THE PARTY ON THE, BASIS OF THE FACT THAT SUMMONS ISSUED TO THESE PARTIES RETURNED UN SERVED FOR WHICH THE APPELLANT STATED THAT THIS 41 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE HAPPENED DUE TO CHANGE OF ADDRESS AND THE FACT THAT ONE OF THE DIRECTORS OF M/S AANCHAL TRADING CO. PVT. LTD COULD BE PRO DUCED BEFORE THE A.O PROVES THAT THE PARTIES ARE GENUINE. IT IS ALSO SEEN THAT THE PAYMENTS TO THESE PARTIES HAVE BEEN MADE BY CHEQUE AND IT IS NOT A CASE WHERE THE MONEY HAS COME BACK TO THE APPELLANT IN SOME WAY OR OTHER. IN RESPECT OF PAYMENT OF RS.2,58 ,96,750/ - TO M/S. AANCHAL PROPERTIES PVT. LTD., THE DISALLOWANCE HAS BEEN MADE BY THE ASSESSING OFFICER PRIMARILY FOR THE REASON THAT IT IS AN AFTERTHOUGHT AND THE COMPANY WAS ALSO BANNED BY SEBI ALONG WITH M/S. NEW PLANET TRADING CO. PVT. LTD WHICH WERE I NTERRELATED PARTIES. I FIND THAT THE ADDITION OF RS.3,40,72,250/ - MADE IN A.Y. 2007 - 08 IN SIMILAR SITUATION WAS DELETED. SINCE THE FACTS OF THE CASE ARE SIMILAR THE A.O IS DIRECTED TO DELETE THE 'ADDITION OF RS.2,58,96,750/ - PERTAINING TO M/S AANCHAL PROPER TIES PVT. LTD. MADE IN THIS ASSESSMENT YEAR. AS REGARDS THE DISALLOWANCE OF RS.2,08,86,250/ - IN RESPECT OF COST OF RIGHTS ACQUIRED FROM M/S OSTWAL TRADING COMPANY PVT. LTD. IS CONCERNED IT IS SEEN THAT THE FACTS ARE IDENTICAL. THEREFORE, IT IS HELD THAT TH E ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING PAYMENT OF RS.2,08,86,250/ - TO M/S. OSTWAL TRADING CO. PVT. LTD. ACCORDINGLY THE A.O IS DIRECTED TO DELETE THE ADDITION OF RS.2,08,86,250/ - PERTAINING TO M/S OSTWAL TRADING CO. PVT. LTD. THUS, THE APPELL ANT GETS RELIEF OF RS.4,67,83,000 AND THE GROUND IS ACCORDINGLY ALLOWED. 29 . WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. SO FAR AS THE ISSUE OF PAYMENT TO M/S. AANCHAL PROPERTIES PVT. LTD. OF RS.2,58,96,750/ - IS CONCERNED , WE HAVE ALREADY DECIDED I DENTICAL ISSUE IN THE CASE OF SAME ENT ITY IN THE A.Y. 2008 - 09 . H ENCE, TO AVOID REPETITION ON THE DISCUSSION AND REASONS ON THE ISSUE , WE FOLLOWING OUR REASONS IN THE A.Y. 2008 - 09 FOR CONFIRMING THE ORDER OF LD. CIT(A) ON THIS ISSUE IN THE SAID YEAR , WE HO LD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING THE EXPENDITURE INCURRED BY THE ASSESSEE FOR ACQUIRING THE COST OF RIGHTS IN LAND FROM M/S. AANCHAL PROPERTIES PVT. LTD. WE, ACCORDINGLY, CONFIRM THE DECISION OF LD. CIT(A) ALLOWING THE EXPEND ITURE IN RESPECT OF PAYMENT TO M/S. AANCHAL PROPERTIES PVT. LTD. 42 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE 3 0 . NOW, THE NEXT ISSUE IS IN RESPECT OF PAYMENT MADE TO M/S. OTSWAL TRADING CO. PVT. LTD. IN THIS CASE ALSO THE ONLY REASON GIVEN BY THE ASSESSING OFFICER IS THAT IN THE FINAL SALE DEED WIT H HELIOUS CONSTRUCTIONS PVT. LTD. AND THE FARMERS , M/S. OTSWAL TRADING CO. PVT. LTD. IS NOT IMPLEADED AS A CONSENTING PARTY. THE LD. COUNSEL TOOK US THROUGH THE CONFIRMATIONS GIVEN BY M/S. OTSWAL TRADING CO. PVT. LTD. (NOW CASPER ENTERPRISES PVT. LTD.) WH ICH IS PLACED AT PAGE NO. 121 OF THE COMPILATION. THE LD. COUNSEL ALSO REFERRED TO MOU BETWEEN THE ASSESSEE AND M/S. OTSWAL TRADING CO. PVT. LTD. DATED 15 - 04 - 2008 (COPY PLACED AT PAGE NOS. 184 TO 191 OF COMPILATION) AND SUBMITS THAT THE SAID COMPANY HAD A LSO ENTERED INTO WITH MOU WITH THE FARMERS IN RESPECT OF LAND IN THE VILLAGE - NAVALKHUMBRE/ BADHALWADI, TALUKA - MAVAL, DISTT. - PUNE. HE REFERRED TO PAGE NO. 76 OF COMPILATION WHERE THE COPY OF MOU BETWEEN M/S. OTSWAL TRADING CO. PVT. LTD. (ORIGINAL MARATHI A GREEMENT) IS PLACED. HE SUBMITS THAT IF THE ASSESSING OFFICER HAD ANY DOUBT IN RESPECT OF AGREEMENT ENTERED INTO BY THE M/S. OTSWAL TRADING CO. PVT. LTD. WITH THE FARMERS IN RESPECT OF LAND THEN HE SHOULD HAVE EXAMINED THE FARMERS OR DETAILS THE SAID COMP ANY SHOULD HAVE BEEN CALLED WHEN ADMITTEDLY THE ASSESSING OFFICER COULD GET THE DETAILS IN RESPECT OF M/S. NEW PLANET TRADING CO. PVT. LTD. FROM THE ASSESSING OFFICER, MUMBAI. HE ARGUES THAT ENTIRE PAYMENT TO M/S. OTSWAL TRADING CO. PVT. LTD. IS ROOTED TH ROUGH THE BANK ACCOUNT AND THERE IS NO CASH PAYMENT S . HE REFERRED TO ASSESSMENT ORDER AND SUBMITS THAT THE ASSESSING OFFICER HAS ONLY RAISED THE DOUBT ON THE GENUINENESS OF PAYMENT BUT DOUBT IS NOT SUFFICIENT TO MAKE THE DISALLOWANCE. 30.1 WE FIND FORCE IN THE ARGUMENT OF THE LD. COUNSEL. WE FIND THAT THE SAID COMPANY ENTERED INTO AGREEMENT WITH THE FARMERS (COPY PLACED IN THE COMPILATION IN MARATHI). WE ALSO FIND ENTIRE PAYMENT IS ROOTED THROUGH THE BANKING CHANNEL. THE ASSESSING OFFICER HIMSELF ADMI TTED IN 43 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE THE ASSESSMENT ORDER ALL THREE COMPANIES ARE INDEPENDENT COMPANIES AND THE ASSESSEE IS NOT AT ALL RELATED TO ANY OF THE COMPANIES. THE ONLY REASON GIVEN BY THE ASSESSING OFFICER FOR MAKING THE DISALLOWANCE IN RESPECT OF COMPENSATION PAID TO THE SA ID COMPANY , IT IS NOT IMPLEADED AS A PARTY IN THE FINAL SALE DEED. WE HAVE ALREADY NOTED IN THE A.Y. 2008 - 09 THAT UNLESS THERE IS A VARIATION IN THE REVENUES RECORD THEN ONLY FOR PROTECTING THE INTEREST OF THE BUYER, T HE ENTITY WHICH NAMES IN THE REVENUE RECORDS APPEAR IS NORMALLY IMPLEADED. AFTER GIVING OUR ANXIOUS CONSIDERATION TO THE EVIDENCE BEFORE US AND CONSIDERING THE DOUBT RAISED BY THE ASSESSING OFFICER FOR MAKING THE DISALLOWANCE , IN OUR OPINION THE ASSESSING OFFICER WAS NOT JUSTIFIED DISALLOWI NG THE SAID EXPENDITURE . WE, ACCORDINGLY, CONFIRM THE ORDER OF THE LD. CIT(A) ON OUR ABOVE REASONS. ACCORDINGLY, THE GROUND TAKEN BY THE REVENUE IS DISMISSED. 3 1 . NOW, WE TAKE UP THE ASSESSEES APPEAL FOR THE A.Y. 2009 - 10. THE FIRST ISSUE IS IN RESPEC T OF THE PAYMENT OF ADDITIONAL CONSIDERATION TO THE FARMERS. IN FACT, THE IDENTICAL ISSUE HAS COME FOR ADJUDICATION BEFORE US IN THE A.Y. 2008 - 09. IN THIS YEAR THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS CLAIMED THE EXPENDITURE UNDER THE NOM ENCLATURE OF ADDITIONAL COST PAYABLE TO THE FARMERS OF RS.66.64 LAKHS. THE ASSESSEE EXPLAINED THAT IT IS A PROVISION MADE IN RESPECT OF THE ADDITIONAL COMPENSATION REQUIRED TO BE PAID D UE TO THE DELAY IN THE EXECUTION OF FINAL SALE DEED BUT NO PAYMENT WAS MADE DURING THE YEAR. THE ASSESSEE FILED THE COPY OF THE AGREEMENT WITH THE FARMERS TO SUBSTANTIATE THE CLAIM. THE ASSESSEE ALSO EXPLAINED THAT THE PROVISION OF RS.66.64 LAKHS HAS BEEN MADE BY APPLYING THE RATE OF RS.1,70,000 / - PER ACRE FOR 39.2 ACRES O F LAND. IN THE OPINION OF THE ASSESSING OFFICER THE ASSESSEE ARBITRARILY APPLIED THE RATE OF RS.1,70,000/ - . HE ALSO HELD THAT THE SAID PROVISION WAS IN THE NATURE OF CONTINGENCY OF CLAIM OF ADDITIONAL COST THAT MAY CROP UP IN FUTURE. THE ASSESSING OFFIC ER RESTRICTED THE 44 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE PROVISION TO 50% OF THE AMOUNT CLAIMED BY THE ASSESSEE AND ALLOWED THE EXPENDITURE IN THE NATURE OF PROVISION TOWARDS THE ADDITIONAL COST PAYABLE TO THE FARMERS TO THE EXTENT OF RS.33,32,000/ - AND DISALLOWED RS.33,32,000/ - AS EXCESSIVE. THE ASSESSEE CHALLENGED THE ISSUE BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 3 2 . WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE IDENTICAL ISSUE HAS COME FOR THE CONSIDERATION IN THE A.Y. 2008 - 09. IN THE SAID YEAR ON THE IDENTICAL SET OF FACTS THE ASSESSING OFFICER HAS MADE THE ENTIRE DISALLOWANCE OF THE PROVISION MADE BY THE ASSESSEE TOWARDS THE ADDITIONAL COMPENSATION REQUIRED TO BE PAID TO THE FARMERS IN THE A.Y. 2009 - 10 WHICH IS BEFORE US. NOW, THE A SSESSING OFFICER HIMSELF HAS ALLOWED 50% AS A REASONABLE PROVISION. IN THE A.Y. 2008 - 09 , WE HAVE ALREADY UPHELD THE DECISION OF LD. CIT(A) HOLDING THAT THE 50% OF THE PROVISION CAN BE TREATED AS A REASONABLE ONE. IN THIS YEAR THE FACTS ARE IDENTICAL, WE, THEREFORE, CONSIDER IT FIT TO RESTORE THIS ISSUE FOR FRESH CONSIDERATION OF THE DISALLOWANCE OF 50% OF THE PROVISION TOWARDS EXPECTED ADDITIONAL COST PAYABLE TO THE FARMERS. WE REMIT THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOLLOWING OUR DIREC TIONS IN THE A.Y. 2008 - 09. ACCORDINGLY, GROUND NO. 1 IS ALLOWED FOR THE STATISTICAL PURPOSE. 33. THE NEXT ISSUE IS IN THE APPEAL THE LAND DEVELOPMENT EXPENSES OF RS.22,00,056/ - . THE ASSESSING OFFICER DISALLOWED RS.20,00,056/ - AND LD. CIT(A) CONFIRMED SAID DISALLOWANCE. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 34. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE LD. AR SUBMITS THAT THE ASSESSEE HAS INCURRED LAND DEVELOPMENT EXPENSES OF RS.22,00,056/ - FOR LOCAL AREA DEVELOPMENT SUCH AS ROAD, CULVE RTS ETC. IN 45 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE AND AROUND NAVALKHUMRE, TAL. - MAVAL, DISTT. - PUNE. HE SUBMITS THAT THERE WAS A DEMAND OF THE VILLAGERS THAT AS THE SAID VILLAGE WAS LACKING IN BASIC INFRASTRUCTURE LIKE ROAD, CULVERTS ETC. AND AS PER THE DEMAND OF THE VILLAGERS , THE ASSESSEE IN CURRED THE EXPENDITURE FOR MAINTAINING GOOD RELATIONS WITH LOCAL FROM HER BUSINESS POINT OF VIEW . THE LD. AR REFERRED TO THE PAPER BOOK WHERE THE PHOTOCOPIES OF THE CULVERTS ARE PLACED. HE SUBMITS THAT THE ASSESSEE NEEDED WHOLE HEARTED COOPERATION FROM T HE VILLAGERS AS SHE HAD TO ACQUIRE A CONTIGUOUS LAND OF MORE THAN 1 50 ACRES FOR SELLING THE SAME TO M/S. HELIOS PROPERTIES PVT. LTD. THE LD. AR SUBMITS THAT THE SAID EXPENDITURE IS TO BE LOOKED INTO FROM THE COMMERCIAL POINT OF VIEW AS IN THE PROCESS OF A CQUIRING THE LAND S IN PIECEMEAL T HE RELATIONS WITH THE LOCAL VILLAGERS HAD TO BE MAINTAINED AT THE MOST CORDIAL LEVEL. HE SUBMITS THAT THE ASSESSEE PRODUCED THE BILLS OF THE SAND AND STONES FOR LAND FILLING IN AREA. THE ASSESSEE ALSO PRODUCED THE BANK AC COUNT TO SUPPORT THE CLAIM BUT THAT WAS NOT ACCEPTED. HE SUBMITS THAT THE EXPENDITURE WAS ON ACCOUNT OF COMMERCIAL EXPEDIENCY AS ACQUIRING THE DIFFERENT PIECES OF LAND WHICH IS A VERY BIG TASK AND COOPERATION OF THE LOCAL PEOPLE VILLAGERS IS VERY MUCH IMP ORTANT. WE ALSO HEARD THE LD. DR. 35. WE FIND FORCE IN THE ARGUMENT OF THE LD. AR. WE HAVE TO EXAMINE ANY CLAIM OF EXPENDITURE IN THE BACK DROP OF THE COMMERCIAL EXPEDIENCY. IN THIS CASE THE ASSESSEE IS ENGAGED IN THE AGGREGATION OF LAND AND SHE HAS T O DEAL WITH THE MANY FARMERS AND LOCAL VILLAGERS. IT IS NOT UN COMMON THAT EVEN A SINGLE VILLAGER OR FARMERS CAN CREATE TROUBLE FOR AGGREGATION OF LAND. THE ASSESSEE HAS ALSO PRODUCED THE PHOTOGRAPH S IN THE COMPILATION . IT IS ALSO NOTICE THAT THE ASSESSE E MADE THE PAYMENT THROUGH THE BANKING CHANNEL. IN OUR OPINION THE EXPENDITURE OF THE ASSESSEE IS TOWARDS THE COMMERCIAL EXPEDIENCY AS MAINTAINING THE GOOD RELATIONS OF THE VILLAGERS IS ALSO VERY MUCH IMPORTANT IN THE PROCESS OF 46 ITA NOS. 2223, 2224, 2259 & 2260/PN/2012, NIRUPA SUHAS KANITKAR, PUNE AGGREGATION OF THE LAND. NOW, THE NEXT ISSUE IS WHETHER THE ENTIRE CLAIM IS ALLOWABLE. THE ASSESSE HAS NOT PRODUCED THE RELEVANT RECORD BEFORE US. WE, THEREFORE, OF THE OPINION THAT IF THE EXPENDITURE OF RS.15 LACS I S ALLOWED THAT WILL MEET THE ENDS OF THE JUSTICE. WE, ACCORDIN GLY, ALLOW RS.1 5 LA CS OUT OF RS. 22,00,056/ - . ACCORDINGLY, GROUND NO. 2 IS PARTLY ALLOWED. 36. IN THE RESULT, THE ASSESSEES APPEAL FOR THE A. YRS. 2008 - 09 AND 2009 - 10 ARE PARTLY ALLOWED FOR THE STATISTICAL PURPOSE AND THE REVENUES APPEAL FOR THE A. YRS . 2008 - 09 AND 2009 - 10 ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 20 - 0 2 - 201 5 SD/ - SD/ - ( G . S . PAN NU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED : 20 TH FEBRUARY, 2015 RK/PS COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE DRP, PUNE 4 THE CIT/DIT (INTERNATIONAL TAXATION), PUNE 5 6 THE DR, ITAT, A BENCH, PUNE. GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR , INCOME TAX APPELLATE TRIBUNAL , PUN E