Shri Harjivanbhai C. Patel, Ahmedabad V. The Dy. Commissioner of Income Tax, Circle-3(2), Ahmedabad

ITA 2384/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8355 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 19-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P D SHAH
• Keywords: Capital asset; Principle of natural justice; Additional evidence
• Section: 131

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO. 2384/AHD/2016 ASSESSMENT YEAR : 2012-13 HARJIVANBHAI C. PATEL, C/O. MEHTA LODHA & CO., CHARTERED ACCOUNTANTS, 105, SAKAR-I, ASHRAM ROAD, AHMEDABAD-380009 PAN : ABUPP 1238 N VS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 3(2), AHMEDABAD ./ ITA NO. 2460/AHD/2016 ASSESSMENT YEAR : 2012-13 DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 3(2), AHMEDABAD VS HARJIVANBHAI C. PATEL, C/O. MEHTA LODHA & CO., CHARTERED ACCOUNTANTS, 105, SAKAR- I, ASHRAM ROAD, AHMEDABAD-380009 PAN : ABUPP 1238 N / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI PD. SHAH, AR REVENUE BY : SHRI RAJDEEP SINGH, SR DR / DATE OF HEARING : 03/04/2018 / DATE OF PRONOUNCEMENT: 27/04/2018 / O R D E R PER PRADIP KUMAR KEDIA, AM: THE CAPTIONED CROSS APPEALS HAVE BEEN FILED AT THE INSTANCE OF THE REVENUE AND THE ASSESSEE AGAINST THE ORDER OF THE C IT(A)-3, AHMEDABAD DATED 21 ST JULY, 2016 ARISING IN THE ASSESSMENT ORDER DATED 2 7.02.2015 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3 ) OF THE INCOME-TAX ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 2 ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) CO NCERNING ASSESSMENT YEAR 2012-13. 2. BOTH REVENUE AS WELL AS THE ASSESSEE ARE AGGRIEV ED BY THE ACTION OF THE CIT(A) IN THE COMMON ISSUE CONCERNING ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAINS. 3. THE SUBSTANTIVE GRIEVANCE OF THE REVENUE IS THAT THE CIT(A) HAS WRONGLY DELETED THE ADDITION OF RS.1,22,23,795/- OU T OF TOTAL ADDITION OF RS.1,71,72,895/- TOWARDS SHORT TERM CAPITAL GAINS. THE ASSESSEE, ON THE OTHER HAND, IN ITS APPEAL HAS IMPUGNED THE ORDER OF THE CIT(A) IN CONFIRMING THE BALANCE ADDITION OF RS.49,49,100/- B Y CONFIRMING THE DISALLOWANCE OF COST OF IMPROVEMENT WHILE COMPUTING THE CHARGEABLE SHORT TERM CAPITAL GAINS. 4. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, FIL ED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13, INTER ALIA, DECLARING SHORT TERM CAPITAL GAINS ON SALE OF CERTAIN PARCEL OF LANDS. THE RETUR N FILED BY THE ASSESSEE WAS SUBJECTED TO SCRUTINY ASSESSMENT. IN THE COURS E OF THIS SCRUTINY ASSESSMENT, THE ASSESSING OFFICER FOUND THAT THE AS SESSEE SOLD TWO LAND PARCELS SITUATED AT VILLAGE MAFLIPUR-DHOLKA AND VIL LAGE BIDAJ. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE CLAIME D COST OF IMPROVEMENT IN THESE LAND PROPERTIES WHILE COMPUTIN G THE CAPITAL GAINS AT THE TIME OF SALE DURING THE YEAR. THE COST OF I MPROVEMENT STATED TO BE INCURRED BY THE ASSESSEE TOWARDS LAND FILLING AND C ONSTRUCTION OF COMPOUND WALL WAS DISPUTED BY THE ASSESSING OFFICER TO THE EXTENT OF RS.1,71,72,895/-. THE ASSESSING OFFICER OBSERVED T HAT THE BILLS PRODUCED TOWARDS LAND FILLING AND COMPOUND WALL CONSTRUCTION EXPENSES ARE ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 3 SUPPORTED BY THE CORROBORATE EVIDENCES IN THIS REGA RD. THE ASSESSING OFFICER ISSUED SUMMONS UNDER SECTION 131 OF THE ACT TO ALL THE THREE PARTIES INVOLVED IN LAND FILLING, COMPOUND WALL CON STRUCTION ETC.. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT SHRI DHARMEN DRA R. PATEL SUMMONED IN CONNECTION WITH LAND FILLING DENIED HAV ING CARRIED OUT ANY WORK OF LAND FILLING ON BEHALF OF THE ASSESSEE. TH E ASSESSING OFFICER FURTHER OBSERVED THAT TWO OTHER PARTIES NAMELY SHRI RAVI PATEL AND SHRI VIJAY L. DARBAR CONCERNING LAND FILLING AND COMPOUN D WALL CONSTRUCTION RESPECTIVELY DID NOT APPEAR IN RESPONSE TO THE SUMM ONS SERVED TO SUPPORT THEIR BILLS FOR EXPENSES INCURRED BY THE AS SESSEE IN THIS REGARD. THE ASSESSING OFFICER ACCORDINGLY CONCLUDED THAT TH E EXPENDITURE CLAIMED BY THE ASSESSEE ON ACCOUNT OF LAND FILLING AND COMPOUND WALL CONSTRUCTION IS NOT ALLOWABLE EXPENDITURE ON ACCOUN T OF COST OF IMPROVEMENT FOR THE PURPOSES OF DETERMINATION OF SH ORT TERM CAPITAL GAINS ARISING ON SALE OF LAND AT VILLAGE BIDAJ AND VILLAGE MAFLIPUR- DHOLKA AS NOTED ABOVE. THE ASSESSING OFFICER ACCOR DINGLY ENHANCED THE SHORT TERM CAPITAL GAINS ARISING ON SALE OF LAND PA RCELS TO THE EXTENT OF RS.1,71,72,895/- BY DENYING THE COSTS CLAIMED TOWAR DS IMPROVEMENT OF CAPITAL ASSETS. 5. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE ASSESSEE CONTENDED BEFORE THE CIT(A) THAT THE ASSES SING OFFICER HAS MISCONSTRUED THE FACTS AND CIRCUMSTANCES OF THE CAS E AND MISDIRECTED ITSELF IN LAW IN COMING TO THE CONCLUSION TOWARDS N ON-ACCEPTABILITY OF COST OF IMPROVEMENT IN QUESTION. THE ASSESSEE FILED DETA ILED WRITTEN SUBMISSIONS BEFORE THE CIT(A) (ABSTRACT OF WHICH HA S BEEN REPRODUCED BY THE CIT(A) IN HIS ORDER) AND, INTER ALIA, SUBMITTED THAT THE SOLE BASIS FOR ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 4 COMING TO ADVERSE CONCLUSION AGAINST THE ASSESSEE I S A DENIAL STATEMENT OF ONE THIRD PARTY NAMELY SHRI DHARMENDRA R. PATEL, WH O RAISED BILLS TOWARDS LAND FILLING THROUGH HIS PROPRIETORSHIP CON CERN. IT WAS CONTENDED BEFORE THE CIT(A) THAT THE COPY OF THE ST ATEMENT RECORDED BEHIND THE BACK OF THE ASSESSEE WAS NEVER PROVIDED TO THE ASSESSEE DESPITE SPECIFIC REQUEST IN GROSS TRANSGRESSION OF NATURAL JUSTICE. THE ASSESSEE FURTHER CONTENDED THAT THE WITNESS OF THE DEPARTMENT (SHRI DHARMENDRA R. PATEL) WAS NURSING HOSTILITY AGAINST THE ASSESSEE ON ACCOUNT OF NON-PAYMENT OF HIS INVOICE AND, THEREFOR E, HAS GIVEN SUCH UNTRUTHFUL STATEMENT. THE ASSESSEE FURTHER CONTEND ED BEFORE THE CIT(A) THAT SUMMONS UNDER SECTION 131 WAS DULY SERVED UPON THE OTHER TWO PARTIES ALSO AND, THEREFORE, FAILURE OF THESE PARTI ES TO RESPOND TO THE STATUTORY SUMMONS DOES NOT CALL FOR ANY ADVERSE VIE W IN LAW. THE ASSESSEE FURTHER CONTENDED BEFORE THE CIT(A) THAT N EITHER THE STATEMENT OF SHRI DHARMENDRA R. PATEL ALLEGEDLY RECORDED BY T HE ASSESSING OFFICER WAS PROVIDED NOR WAS THE CROSS-EXAMINATION THEREOF GRANTED INSPITE OF SPECIFIC MENTION ON THIS. THE CIT(A), IN THE LIGHT OF THESE SUBMISSIONS, CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFF ICER; HOWEVER, THE ASSESSING OFFICER FAILED TO RESPOND TO THE REQUISIT ION OF THE CIT(A) DESPITE SEVERAL REMINDERS IN THIS REGARD. CONSEQU ENTLY, THE CIT(A) RELIED UPON SEVERAL JUDICIAL PRECEDENTS HAS NOTED I N HIS ORDER AND ANALYZED THE FACTS PLACED BEFORE HIM. ON THE BASIS OF THE FACTS AVAILABLE ON RECORD, THE CIT(A) FOUND MERIT IN THE PLEA OF TH E ASSESSEE TOWARDS BONAFIDES OF THE EXPENDITURE TO THE EXTENT OF RS.1, 22,23,795/- RELATABLE TO LAND FILLING EXPENSES AND COMPOUND WALL CONSTRUCTIO N EXPENSES QUA SHRI RAVI PATEL AND SHRI VIJAY L. DARBAR WHERE SUMMONS WERE SERVED AND NOT RESPONDED. HOWEVER, THE COST OF SERVICES PROVI DED BY SHRI ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 5 DHARMENDRA R. PATEL CONCERNING LAND FILLING WAS DEN IED OWING TO INCRIMINATING STATEMENT GIVEN BY THE SUPPLIER OF TH E SERVICES BEFORE THE ASSESSING OFFICER. THE CIT(A), IN CONCLUSION, ADMI TTED THE CLAIM TOWARDS COST OF IMPROVEMENT OF LAND UNDER SALE TO T HE EXTENT OF RS.1,22,23,795/- AND CONFIRMED THE REJECTION MADE B Y THE ASSESSING OFFICER OF SUCH EXPENSES TO THE EXTENT OF RS.49,49, 100/-. 6. THE RELEVANT OPERATIVE PARAGRAPHS OF THE ORDER O F THE CIT(A) ARE REPRODUCED HEREUNDER FOR READY REFERENCE:- 4.2 DECISION: I HAVE GONE THROUGH THE FACTS IN AS SESSMENT ORDER AND SUBMISSION OF APPELLANT CAREFULLY. THE ADDITIONAL E VIDENCE AS PER RULE 46A WERE SENT TO THE AO ON 02.02-2016 FOR THE REPOR T WITHIN 20 DAYS. A REMINDER TO AO WAS SENT ON 04-04.2016 SAYING THAT T HERE WAS NO PROGRESS IN THE APPELLATE PROCEEDINGS IN THIS CASE FOR WANT OF REMAND REPORT WITH THE REQUEST TO SUBMIT THE SAME BY 21.04 .2016. THE REMINDER-2 WAS SENT TO AO ON 03.05.2016 BUT NEITHER REMAND REP ORT NOR ANY COMMUNICATION RECEIVED FROM AO TILL DATE. THE MATTE R WAS BROUGHT TO THE NOTICE OF SENIORS. HOWEVER, THE EVIDENCES SUBMITTED ARE CONSIDERED TO BE NECESSARY FOR THE DECISION IN THE MATTER AND RATIO LAID DOWN BY FOLLOWING CASE LAWS ON THE SUBJECT IS CONSIDERED:- I) ITO VS. MODI RUBBER LIMITED 43 ITD 396 (ITAT - D EL) II) PRABHAVATIS, SHAHVS. CIT231 ITR 1 (BOM.) III) K. MOHAMMED VS. ITO 107 ITR 808 (KER.) IV) DWARKA PRASAD VS. ITO 63 ITD 1 (ITAT - PAT) V) B.L. CHOUDHURY VS. CIT 105 ITR 371 (ORI.) VI) ITO VS . INDUSTRIAL ROADWAYS (2007) 19(I) ITCL 460 (ITAT-MUM). VII) CIT VS. KANPUR COAL SYNDICATE 53 ITR 225 (SC). VIII) CIT VS. NIRBHERAM DALURAM 224 ITR 610 (SC) IN VIEW OF RATIO LAID DOWN IN ABOVE CASE LAWS, THE ADDITIONAL EVIDENCES SO SUBMITTED ARE DECIDED TO BE ADMITTED. THE JURISDICTIONAL DIRECTIONS LAID DOWN BY HON'BLE SUPREME COURT IN TH E CASE OF JUTE CORPORATION OF INDIA LTD. 187 ITR 688 (SC) ARE ALSO BEING RELIED. AS THERE IS NO RESPONSE FROM THE AO, THE APPEAL IS BEING DEC IDED AS PER FACTS ON RECORD. ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 6 THE GROUND NO.2 HAS FOUR PARTIES TO WHOM CERTAIN EX PENSES HAVE BEEN PAID. THERE IS NON-RECONCILED FIGURES FIGURING IN ASSESSMENT ORDER AND IN CERTAIN SUBMISSION OF THE APPELLANT. THE BIL LS FOR LAND DEVELOPMENT EXPENSED HAVE BEEN SEEN AND FOR FURTHER ANALYSIS TH E TOTAL AMOUNT IS RECONCILED AS UNDER: BILL NAME OF THE PARTY NO. AMOUNT SETTLED AT KHODAL TRANSPORT 2 1 2700000 2430000 KHODAL TRANSPORT 29 2799000 2519100 SUB TOTAL (A) 5499000 4949100 OM ROADWAYS - RAVI PATEL 62 2375000 2375000 OM ROADWAYS - RAVI PATEL 63 2505000 2254500 SUB - TOTAL (B) 4880000 4629500 VIJAY L. DARBAR 3 2714250 2442825 VIJAY DARBAR 14 2766100 2489490 SUB TOTAL (C) 5480350 4932315 MAYURC. PATEL 5 2661980 2661980 SUB TOTAL (D) 2661980 2661980 OTHERS 0 GRAND TOTAL A TO D 18521330 17172895 THEREFORE, IT IS TOTAL OF LAST COLUMN I.E. RS.1,71, 72,895/- WHICH HAS BEEN DISALLOWED BY THE AO. FURTHER THE GROUND IS BE ING BIFURCATED INTO TWO PARTS. (A) AS REGARDS SHRT DHARMENDRA R. PATEL, FOLLO WING PAYMENTS HAVE BEEN CLAIMED: 1. KHODAL CORPORATION (LAND FILLING) BILL NO.21 DAT ED 18.10.11 RS.27,00,000/- 2. KHODAL CORPORATION (LAND FILLING) BILL NO.29 DAT ED 25.10.11 RS.27,99,000/- TOTAL RS.54,99,000/- HOWEVER, ACTUAL CLAIM BY SHRI DHARMENDRA R. PATEL I S OF RS.49,49,100/-. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AT PA RA 4.3 HAS MENTIONED AS UNDER: ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 7 '4.3 TO VERIFY THE GENUINENESS OF THE ASSESSEE'S CL AIM, SUMMONS U/S.131 OF THE IT ACT DATED 08.01.2015 WAS ISSUED T O ALL THE THREE PARTIES MENTIONED ABOVE. THE WITNESS WAS REQUESTED TO ATTEND ON 19.01.2015 AND DEPOSE BEFORE THE UNDERSIGNED. HOWEV ER, OUT OF THE THREE PARTIES ONLY SHRI DHARMENDRA R. PATEL, PROPRI ETOR KHODAL TRANSPORT ATTENDED. THE STATEMENT OF SHRI DHARMENDR A R. PATEL WAS RECORDED ON OATH. IN RESPONSE TO THE QUESTIONS SHRI DHARMENDRA R. PATEL CLEARLY STATED THAT HE HAS NOT DONE ANY WORK FOR AND BEHALF OF THE ASSESSEE OF LAND FILLING. HE ALSO SUBMITTED IN RESPONSE TO QUESTION NO.8 THAT HE HAS ONLY TWO SMAL L TATA TRUCK WITH SMALL LOADING CAPACITY OF THREE TONS. IN RESPO NSE TO QUESTION NO. 12 HE CATEGORICALLY DENIED KNOWING SHRI HARJIVA NBHAI PATEL ASSESSEE. IN RESPONSE TO QUESTION NO. 15 HE CATEGOR ICALLY STATED THAT BILL NO.21 & 29 SUBMITTED BY THE ASSESSEE WAS NOT I SSUED BY HIM. HE ALSO STATED THAT IT IS NOT PRACTICALLY POSSIBLE TO CONDUCT 900 AND 933 TRIPS WITH THE SMALL TRUCKS HE HAS. THE INCOME TAX RETURN FILED BY SHRI DHARMENDRA R. PATEL WITH ITO, WARD 3(2)(1), AHMEDABAD FOR A. Y.2012-13 HAS ALSO BEEN VERIFIED. ON VERIFIC ATION OF COPY OF RETURN OF SHRI DHARMENDRA R. PATEL FOR A.Y.2012-13, IT IS OBSERVED THAT THE GROSS RECEIPTS FROM THE BUSINESS IS RS.4,5 8,513/- ONLY. WHEREAS, THE ASSESSEE CLAIMS PAYMENT OF RS. 54,99,0 00/- TO SHRI DHARMENDRA R. PATEL.' THE APPELLANT IN THE GROUNDS OF APPEAL AS WELL AS S UBSEQUENT SUBMISSION HAS REPEATED THE CONTENTION THAT NEITHER CROSS EXAMINATION OF SHRI DHARMENDRA R. PATEL WAS ALLOWED NOR A COPY OF HIS STATEMENT WAS PROVIDED, THEREFORE, THE ADDITION HAS BEEN MADE BEH IND THE BACK. THE RELEVANT PORTION OF SUBMISSION DATED 12.07.2016 IS REPRODUCED BELOW: '2.01 THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND FACTS BY MAKING DISALLOWANCE OF COST OF IMPROVEMENT AND C ONSTRUCTION OF COMPOUND WALL OF RS. 1,71,72,895/- AND THEREFORE, T HE LEARNED ASSESSING OFFICER BE DIRECTED TO ALLOW THE SAME IN FULL, WHILE COMPUTING THE TOTAL INCOME. 2.02 THAT THE COPY OF THE STATEMENT RECORDED U/S 13 1 OF SHRI DHARMENDRA R PATEL WAS NOT GIVEN TO THE APPELLANT A ND THEREFORE THE STATEMENT GIVEN BY THE SAID PERSON CANNOT BE RE LIED UPON FOR THE DISALLOWANCE. SINCE THE PAYMENT OF HIS INVOICE WAS NOT MADE, HE HAS DENIED FOR THE INVOICE ISSUED BY ME AND IF REQU IRED HE MAY BE CALLED UPON BY YOUR GOOD OFFICE, AS HE IS NOT COOPE RATING WITH US. ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 8 2.03 WITHOUT PREJUDICE TO THE SAID FACTS, IN THE IN TEREST OF JUSTICE AND HAVING DONE THE WORK OF MATI PURAN AND WALL CON STRUCTION AND RELYING ON THE JUDGMENT OF THE HON'BLE ITAT, AH MEDABAD IN THE CASE OF BHOLANATH POLY FAB PVT LIMITED VS ITO ( ITA NO. 137/AHD/2009 DATED 26/11/2011) AND OTHER ORDERS OF THE HON'BLE ITAT, UTMOST 12.50% OF THE AMOUNT OF SHRI DHARMENDR A R.PATEL CAN BE DISALLOWED BY THE LEARNED AO OR NECESSARY DI RECTION FOR THE CROSS EXAMINATION OF THE SAID PERSON MAY BE GIVEN B Y YOUR GOOD OFFICE TO THE LEARNED AO. HERE WE WOULD ALSO LINE T O SUBMIT THAT THE JUDGMENT OF THE HON'BLE ITAT IN THE CASE OF BHOLANA TH POLY FAB PVT LIMITED (SUPRA) HAS BEEN APPROVED BY THE HON'BL E GUJARAT HIGH COURT ALSO. REPORTED IN (355 ITR 290)(GUJ)' AS CAN BE SEEN ABOVE THE APPELLANT HAS TRIED TO SHI FT THE ONUS TO THE DEPARTMENT AND THE ATTEMPT TO ALLOW CROSS EXAMINATI ON OF SHRI DHARMENDRA R. PATEL (PROP. KHODAL CORPORATION) TO T HE APPELLANT HAS NOT BEEN MADE BY THE AO EVEN DURING REMAND PROCEEDINGS. NOTWITHSTANDING THIS FACT, STARTLING POSITIVE EVIDENCES HAVE BEEN B ROUGHT ON RECORD BY THE AO DURING THE ASSESSMENT PROCEEDINGS ITSELF AND SAM E ARE FORMING PART OF PARA NO.4.3 OF ASSESSMENT ORDER. SHRI DHARMENDRA R. PATEL HAS NOT ONLY DENIED HAVING DONE ANY SUCH WORK AS CLAIMED BY APPE LLANT BUT ALSO CATEGORICALLY JUSTIFIED HIS STATEMENT WITH THE FACT THAT HE DID NOT HAVE CAPACITY TO UNDERTAKE SUCH BIG WORK WITH LIMITED TR ANSPORT VEHICLES AT HIS DISPOSAL. THE ALTERNATIVE PLEA OF THE APPELLANT OF TAXING ONLY 12.5% OF SUCH QUESTIONED EXPENDITURE BY THE APPELLANT AS PER ITAT JUDGMENT IN THE CASE OF BHOLANATH POLY FAB PVT. LTD. (APPROVED BY GUJARAT HIGH COURT -355 ITR 290 - GUJ.) IS NOT ACCEPTED AS PER E VIDENCE ON RECORD. THE AO HAS RECORDED STATEMENT U/S. 131, THEREFORE, THE INSTANT CASE CAN BE DISTINGUISHED ESPECIALLY WHEN THE STORY HAS ENDED O NLY WITH THE STATEMENT. NO FURTHER ANALYSIS OF SALES OR TOTAL PR OJECT OR ASSET HAS BEEN RECORDED. IN VIEW OF THESE FACTS, THE EXPENDITURE C LAIM OF RS.49,49,1QQ/- IN RELATION TO DHARMANDRA R. PATE! (PROP. KHODAL CO RPORATION) IS HEREBY CONFIRMED. (B) THE SECOND PORTION OF GROUND NO.2 IS RELATING T O EXPENDITURE DISALLOWANCE IN RELATION TO FOLLOWING PARTIES:- 1. RAVI PATEL, PROP. OM ROADWAYS(LAND FILLING)BILL NO.63 DT 30.10.11 RS. 22,54,500/- 2. RAVI PATEL, PROP. OM ROADWAYS(LAND FILLING)BILL NO.62 DT.31.05.11 RS. 23,75,000/- 2.VIJAY L DARBAR (COMPOUND WALL) BILL NO.3 DATED 05.11.11 RS. 24,42,825/- 3. VIJAY L. DARBAR (COMPOUND WALL) BILL NO.14 DAT ED 10.11.11 RS. 24,89,490/- 4. MAYURBHAI C.PATEL (COMPOUND WALL) BILL NO.5 DATE D 10.06.11 RS. 26.61.980/- TOTAL : RS.1,22,23 ,795/- ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 9 SHRI RAVI PATEL, PROP. OM ROADWAYS HAS FILED NOTARI ZED AFFIDAVIT, THE MAIN PORTION IS REPRODUCED BELOW:- I RAVI PATEL OF OM ROADWAYS, PRANTIYA, DIST GANDHIN AGAR DO HEREBY CONFIRMED THAT I HAVE CARRIED OUT THE WORK OF MATI PURAN ON BEHALF OF MR. HARJIVANBHAI PATEL FOR HIS SITE AT PLOT NO.49D MOUJ E MAFLIPUR, TAL. DHOLKA, DIST. AHMEDABAD FROM TIME TO TIME. TOTAL NU MBER OF TRIPS HAVE BEEN CARRIED 1785 AT AGREED PRICE AND AS PER INVOIC ES ISSUED BY ME. ACCORDINGLY, I HAVE ISSUED TWO INVOICES BEARING NO. 62 DATED 31.05.2011 FOR RS.23,75,000/- (RUPEES TWENTY THREE LAKH SEVENT Y FIVE THOUSAND ONLY) AND WO.63 DATED 30.10.2015 FOR RS.25,05,000/- (RUPEES TWENTY FIVE LAKH FIVE THOUSAND ONLY). WHAT I STATED ABOVE IS TRUE SD/- RAVI PATEL OM ROADWAYS 07.12.15 SHRI VIJAY L. DARBAR HAS FILED NOTARIZED AFFIDAVIT, THE MAIN PORTION IS REPRODUCED BELOW:- I VIJAY L. DARBAR, 42/A BHAGWANNAGAR, NEAR AMBICA T UBE, VATVA, AHMEDABAD DO HEREBY CONFIRMED THAT I HAVE CARRIED O UT THE WORK OF COMPOUND WALLS WITH MATERIAL ALONGWITH WATER TANK A ND TWO ROOM (WITH MATERIAL) AS PER INVOICES ISSUED BY ME TO MR. HARJI VANBHAI PATEL FOR HIS SITE AT BLOCK NO. 49 D MOUJE MAFLIPUR, TA. DHOLKA, DISTRICT, AHMEDABAD. I HEREBY CONFIRM THAT I HAVE ISSUED TWO INVOICES BE ARING NO.3 DATED 05.11.2011 FOR RS.27, 14,250/- (RS. TWENTY SEVEN LA CS FOURTEEN THOUSAND ONLY) AND NO. 14 DATED 10.11.2011 FOR RS.27,66,100/ - (RS. TWENTY SEVEN LACS SIXTY SIX THOUSAND ONE HUNDRED WHAT I STATED ABOVE IS TRUE SD/- VIJAY DARBAR 07.12.15 ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 10 SHRI MAYUR C. PATEL HAS FILED NOTARIZED AFFIDAVIT, THE MAIN PORTION IS REPRODUCED BELOW:- I MAYUR C. PATEL, B/35 DHWANI TENAMENT, ISANPUR, AH MEDABAD DO CONFIRM THAT I HAVE CARRIED OUT THE WORK OF COMP OUND WALL WITH MATERIAL ALONGWITH WATER TANK AND TWO ROOM (WITH MA TERIAL) AS PER INVOICES ISSUED BY ME TO MR. HARJIVANBHAI PAEL FOR HIS SITE AT BIDAJ, TA. DIST. KHEDA. I HEREBY CONFIRM THAT I HAVE ISSUED ONE INVOICE BEA RING NO.5 DATED 10.06.2011 FOR RS.26,61,980/- (RS. TWENTY SIX LACS SIXTY ONE THOUSAND NINE HUNDRED EIGHTY ONLY). WHAT I STATED ABOVE IS TRUE , SD/-. . MAYUR C. PATE OM ROADWAYS 07.12.15 THE AFFIDAVIT FILED BY 3 PARTIES ABOVE HAS BEEN PER USED WHEREIN BILL NO./AMOUNT/WORK EXECUTED FOR APPELLANT HAS BEEN SPE CIFICALLY DETAILED. THE LEDGER ACCOUNTS OF THESE THREE PARTIES ARE ON R ECORD AND IT IS SEEN THAT PAYMENTS BY APPELLANT HAS BEEN MADE THROUGH CHEQUES . THE APPELLANT HAS FILED AFFIDAVITS FROM THE PARTIES , FULL ADDRESSES WITH PA NO. THEREFORE, IT IS CLAIMED THAT THE EXPEN DITURE INCURRED IS GENUINE THROUGH BANKING CHANNEL AND THE SAME HAS BE EN DONE AS IT WAS NECESSITY FOR THE ASSET IN QUESTION. THE FACT REMAI NS THAT THE AO HAS NOT PROVED THAT THIS WAS NON - GENUINE EXPENDITURE. THE AO ALSO COULD NOT EXTRACT POSITIVE EVIDENCES FOR REVENUE BY RECORDING STATEMENTS U/S. 131 OF THE I. T. ACT, 1961 OF THE VENDORS TO PROVE THAT NO SUCH MATERIAL WAS PURCHASED BY THE APPELLANT OR NO SUCH SERVICES REND ERED TO THE APPELLANT. THERE IS ALSO NO EVIDENCE BROUGHT ON RECORD TO PROV E THAT THE MONEY HAS BEEN RETURNED BY THE VENDORS TO THE APPELLANT. THE FULL DETAILS WERE ON RECORD AND THE AO COULD HAVE DONE THE SAME AS HE IS BESTOWED WITH SUCH POWERS WHICH WOULD HAVE BEEN VERY MUCH WITHIN THE R EALM OF DEPARTMENTAL PROCEDURE. ONCE AFFIDAVITS HAVE BEEN F ILED, FURTHER ACTION, IF ANY, IS REQUIRED TO BE TAKEN IN CASE OF VENDORS AND NOT IN CASE OF APPELLANT. IN VIEW OF FACTS ON RECORD, I AM NOT INCLINED TO AC CEPT THE FINDINGS OF THE A.O. WHICH ARE PROMINENTLY BASED ON THE FACT THAT THERE WAS NON ATTENDANCE OF VENDORS U/S 131 DURING ASSESSMENT PRO CEEDINGS. ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 11 APPELLANT CAN'T BE PUNISHED FOR DEFAULT OF RELATED PARTY AS IT HAS BEEN HELD IN CIT VS. CARBO IND HOLD LTD 244 ITR 0422 (CAL) SU CH AS 'IF SHARE BROKER, EVEN AFTER ISSUE OF SUMMONS DOES NOT APPEAR, FOR THAT REASON, THE CLAIM OF ASSESSEE SHOULD NOT BE DENIED, SPECIAL LY IN THE CASES WHEN THE EXISTENCE OF BROKER IS NOT IN DISPUTE, NOR THE PAYM ENT IS IN DISPUTE. MERELY BECAUSE SOME BROKER FAILED TO APPEAR, ASSESSEE SHOU LD NOT BE PUNISHED FOR THE DEFAULT OF A BROKER AND ON MERE SUSPICION THE C LAIM OF ASSESSEE SHOULD NOT BE DENIED.' THE PLETHORA OF EVIDENCES ON RECORD CANNOT BE IGNORED. THE GENUINE EXPENDITURES IS ALLOWABLE AS PER GUIDELINES LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF RAJASTHAN STATE WAREHO USING CORPN. VS. CIT 242 ITR 450 (SC). AFFIDAVITS OF THE VENDORS HAVE REMAINED UNCONTROVER TED. THE SAME WERE NOT DISPROVED OR FOUND TO BE FALSE. IF THAT BE SO HON'BLE GUJARAT HIGH COURT IN THE CASE OF GLASS LINE EQUIPMENT 253 ITR 4 54 HAS HELD THAT WHEN AFFIDAVIT WERE NOT CONTROVERTED, THEY HAVE TO BE TAKEN AS ACCEPTED. THE IMPROVEMENT EXPENDITURE (MATI PURAN AND COMPOUN D WALL) INCURRED BY THE APPELLANT OF RS.1,22,23,795/- IS HE REBY ALLOWED. IN OTHER WANDS, DISALLOWANCE OF RS,49,49,100/- IS CONFIRMED OUT OF THE TOTAL DISALLOWANCE OF RS.1,71,72,895/-. THE APPELLANT GET S RELIEF OF RS.1,22,23,795/-. HENCE THE GROUND NO.2 IS PARTLY A LLOWED. 7. AGGRIEVED BY THE AFORESAID ORDER OF THE CIT(A), BOTH THE REVENUE AS WELL AS THE ASSESSEE HAVE CONTESTED THE FINDINGS OF THE CIT(A) BEFORE THE TRIBUNAL. 8. LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE, AT THE OUTSET, SUBMITTED THAT THE ACTION OF THE ASSESSING OFFICER IN DENYING THE CLAIM TOWARDS COST OF IMPROVEMENT IS PATENTLY UNJUSTIFIED IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE. LEARNED AUTHORIZED REPRESENTATIVE POINTED OUT THAT ALL THE SUMMONS ISSUED TO THREE PA RTIES INVOLVED IN LAND FILLING AND CONSTRUCTION OF COMPOUND WALL WERE DULY SERVED. TWO PARTIES HAVE NOT APPEARED BEFORE THE ASSESSING OFFICER DESP ITE ADMITTED POSITION OF SERVICE OF SUMMONS INSPITE OF REPEATED ATTEMPTS BOTH AT THE ASSESSMENT STAGE AND AT APPELLATE STAGE. THEREFORE , THE CIT(A) HAS ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 12 RIGHTLY APPRECIATED THE FACTS IN ITS PERSPECTIVE AN D HELD THAT THERE WAS NO WARRANT FOR THE ASSESSING OFFICER TO TAKE AN ADVERS E VIEW FOR NON- ATTENDANCE OF THE SUMMONS BY THIRD PARTIES UNCONNEC TED TO THE ASSESSEE. LEARNED AUTHORIZED REPRESENTATIVE NEXT SUBMITTED TH AT, NOTWITHSTANDING THE PART RELIEF GRANTED BY THE CIT( A), AS DESERVED, THE CIT(A) ALSO FELL IN ERROR IN HOLDING A PART ADDITIO N TO THE EXTENT OF RS.49,49,100/- ON THE BASIS OF A STATEMENT OF LAND FILLING CONTRACTOR WITHOUT PROVIDING A COPY OF THE STATEMENT PURPORTED LY RECORDED. THE ASSESSEE NEITHER KNOWS THE CONTENTS OF THE STATEMEN T TO DEFEND ITS CASE NOR THE ASSESSEE WAS PROVIDED WITH THE REMEDY AVAIL ABLE TO IT IN LAW SEEKING CROSS-EXAMINATION OF SUCH ALLEGED ADVERSE S TATEMENT. THE LEARNED AUTHORIZED REPRESENTATIVE ACCORDINGLY CONTE NDED THAT PLACING BLIND RELIANCE ON THE SO-CALLED STATEMENT OF THE SU PPLIER UNILATERALLY WITHOUT CONFRONTING THE ASSESSEE IN THIS REGARD IS NOT JUDICIALLY PERMISSIBLE. THE LEARNED AUTHORIZED REPRESENTATIVE CITED PLAUSIBLE REASONS FOR THE SO-CALLED ADVERSARIAL STATEMENT OF THE SUPPLIER TO BE OWING TO NON-PAYMENT AGAINST THE BILLS RAISED TRIGG ERING HOSTILITY. THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT, I N THE ABSENCE OF THE CROSS-EXAMINATION MADE AVAILABLE ON STATEMENT RECOR DED BEHIND THE BACK, THE BILLS RAISED TOWARDS LAND FILLING/CONSTRU CTION WORK BEFORE SALE OF LAND CANNOT BE HELD TO BE UNREAL IN ANY MANNER. LEARNED AUTHORIZED REPRESENTATIVE NEXT CONTENDED THAT NO PHYSICAL INSP ECTION OF THE LAND WAS CARRIED OUT AT ANY STAGE TO APPRECIATE THE CLAI M OF THE ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE ACCORDINGLY SUBMI TTED THAT CIT(A) MISDIRECTED ITSELF IN LAW AND ON FACTS IN PLACING S OLE RELIANCE ON UNVERIFIED STATEMENT AND IN REJECTING THE CLAIM OF THE COST OF IMPROVEMENT TO THE EXTENT OF RS.49,49,100/- CORROBO RATED BY ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 13 DOCUMENTARY EVIDENCES IN THE FORM OF BILLS ETC.. TH E LEARNED AUTHORIZED REPRESENTATIVE CONSEQUENTLY PLEADED FOR REVERSAL OF THE ACTION OF THE CIT(A) UPHOLDING THE DISALLOWANCE TO THE EXTENT OF RS.49,49,100/- AND FOR DISMISSAL OF APPEAL OF THE REVENUE SEEKING REVERSAL OF THE ACTION OF THE CIT(A) FOR THE PART RELIEF GRANTED BY IT. 9. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, HEAVILY RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND IN FURTHERANCE SUBMITTED THAT THE SUMMONS ISSUED TO THREE PARTIES DOES NOT INSPIRE CONFIDENCE IN THE DOCUMENTARY EVIDENCE PLACED ON AC COUNT OF CLAIM OF COST OF IMPROVEMENT. LEARNED DEPARTMENTAL REPRESEN TATIVE SUBMITTED THAT ONE OF THE PARTIES HAVE CONTENDED AND CATEGORI CALLY DENIED THE CLAIM OF COST OF IMPROVEMENT CONCERNING BILLS TOWARDS LAN D FILLING EXPENSES AGGREGATING TO RS.49,49,100/-. THEREFORE, NO FAULT CAN BE FOUND WITH THE ORDER OF THE CIT(A) ON THIS SCORE. THE LEARNED DEP ARTMENTAL REPRESENTATIVE NEXT SUBMITTED THAT IT WAS THE DUTY OF THE ASSESSEE TO PRODUCE OTHER TWO PARTIES CONCERNED FOR VERIFICATIO N OF DOCUMENTARY EVIDENCES AND THE ASSESSEE FAILED IN DOING SO AND T HEREFORE, THE ONUS PLACED UPON THE ASSESSEE WAS NOT DISCHARGED AT ALL. THE LEARNED DEPARTMENTAL REPRESENTATIVE ACCORDINGLY SUBMITTED T HAT THE CIT(A) HAS WRONGLY GRANTED PART RELIEF ON ACCOUNT OF EXPENSES CLAIMED BY THE ASSESSEE ATTRIBUTABLE TO THESE PARTIES WHO FAILED T O ATTEND. THE LEARNED DEPARTMENTAL REPRESENTATIVE ACCORDINGLY SUBMITTED T HAT THE ACTION OF THE ASSESSING OFFICER IS REQUIRED TO BE UPHELD IN TOTO. 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE SHORT QUESTIO N FOR ADJUDICATION IS WHETHER THE COST OF IMPROVEMENT CLAIMED BY THE ASSE SSEE TOWARDS LAND ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 14 FILLING AND CONSTRICTION OF WALL EXPENSES IS MAINTA INABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE OR NOT? AS NOTED IN THE PRECEDING PARAGRAPHS, THE ASSESSEE HOLDS CERTAIN LAND PARCELS AT VILLAGE MAFLIPUR-DHOLKA AND VILLAGE BIDAJ. THE LAND PARCELS WERE SOLD DURING T HE YEAR AND WHILE COMPUTING THE INCIDENCE OF CAPITAL GAINS THEREON, T HE ASSESSEE, INTER ALIA, CLAIMED COST OF IMPROVEMENT AS A PART OF COST OF AC QUISITION TO THE EXTENT OF RS.1,71,72,895/-. THE BILLS, PAYMENTS MADE ETC. TOWARDS SUCH COST INCURRED WERE FOUND TO BE ATTRIBUTABLE TO THREE PAR TIES (I) DHARMENDRA R. PATEL (LAND FILLING) (II) SHRI RAVI PATEL (LAND FIL LING) AND (III) SHRI VIJAY L. DARBAR, CIVIL CONTRACTOR (COMPOUND WALL CONSTRUCTIO N). THE ASSESSING OFFICER ISSUED SUMMONS FOR VERIFICATION OF THE EXPE NSES TO ALL THE THREE PARTIES. THE FIRST PARTY NAMED ABOVE HAVE APPEARED AND PURPORTEDLY MADE ASSERTION CONTRADICTING THE CLAIM OF THE ASSES SEE. THE AMOUNT OF RS.49,49,100/- ATTRIBUTABLE TO SERVICES RENDERED ON ACCOUNT OF LAND FILLING BY THE AFORESAID WITNESS WAS THUS DECLINED TOWARDS COST OF IMPROVEMENT - BOTH BY THE ASSESSING OFFICER AND THE CIT(A). AS REGARDS OTHER TWO PARTIES RENDERING SERVICES ON ACCOUNT OF COST OF IM PROVEMENT TO THE EXTENT OF RS.1,22,23,795/-, THE ASSESSING OFFICER D ENIED COST OF IMPROVEMENT FOR THE BROAD REASONS OF NON-ATTENDANCE OF THESE TWO PARTIES. THE CIT(A), HOWEVER, GRANTED RELIEF IN RES PECT OF THESE TWO PARTIES MAINLY ON ACCOUNT OF THE FACT THAT DESPITE SEEKING REMAND REPORT ON THE AFORESAID ISSUE THE ASSESSING OFFICER HAS FA ILED TO BRING ANY ADVERSE MATERIAL ON RECORD. 11. ADVERTING TO THE ISSUE OF DISALLOWANCE OF RS.49 ,49,100/- ON THE GROUNDS OF INCRIMINATING STATEMENT OBTAINED FROM TH E SUPPLIER OF THE BILLS TOWARDS LAND FILLING, IT IS CLAIMED ON BEHALF OF ASSESSEE THAT THE ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 15 PRINCIPLE OF NATURAL JUSTICE DEMANDS THAT THE STATE MENT OBTAINED FROM A THIRD PARTY REQUIRES TO BE CONFRONTED TO THE ASSESS EE. FAILURE TO DO SO WOULD VITIATE THE ACTION OF THE REVENUE IN PLACING RELIANCE ON SUCH STATEMENT AND DRAWING ADVERSE INFERENCE THERE FROM. THE REFERENCE TO THE JUDGMENTS OF HONBLE SUPREME COURT IN THE CASE OF KI SHANCHAND CHELARAM VS. CIT [(1980) 125 ITR 713 (SC)] AND LATE LAXMAN S. PATEL VS. CIT, 327 ITR 290 (GUJ) WAS MADE IN THIS REGARD. THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAVE CATEGORICALLY FAILED IN DIS CHARGING THE OBLIGATION CAST UPON THEM AS A QUASI-JUDICIAL AUTHORITY IN THI S REGARD. THE ASSESSEE HAS DEMANDED THE COPY OF THE STATEMENT AS WELL AS T HE CROSS-EXAMINATION OF THE WITNESS WHICH REQUEST CANNOT BE BRUSHED ASID E IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF AN DAMAN TIMBER INDUSTRIES VS. CCE, 281 CTR 241 (SC) (2015) ALSO. T HE ACTION OF THE REVENUE AUTHORITIES THUS SUFFERS FROM SERIOUS IRREG ULARITIES WHILE DRAWING CONCLUSION ADVERSE TO THE ASSESSEE. THEREF ORE, WE CONSIDER IT JUST AND EXPEDIENT TO RESTORE THE ACTION OF THE CIT (A) PARTLY CONFIRMING THE DISALLOWANCE OF COST OF IMPROVEMENT TO THE EXTE NT OF RS.49,49,100/- TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATING AFRESH IN ACCORDANCE WITH THE LAW AFTER GRANTING PROPER OPPORTUNITY AND FOLLOWING PRINCIPLES OF NATURAL JUSTICE IN THIS REGARD. NEEDLESS TO SAY THAT THE COPY OF THE STATEMENT SO RECORDED SHALL BE PROVIDED TO THE ASSE SSEE FOR ITS NECESSARY ACTION AT ITS END AND CROSS-EXAMINATION THEREOF BE PROVIDED TO THE ASSESSEE IF SO DEMANDED WHILE DECIDING THE ISSUE. THE ONUS WILL SHIFT UPON THE ASSESSEE ONLY AFTER THE CROSS-EXAMINATION OF SHRI DHARMENDRA R. PATEL (PROP: KHODAL CORPORATION) IS PROVIDED. TH US, THE ISSUE CONCERNING COST OF IMPROVEMENT ARISING IN THE ASSES SEES APPEAL IS SET ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 16 ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFF ICER FOR ADJUDICATION AFRESH IN ACCORDANCE WITH LAW. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. 13. NOW, WE SHALL ADVERT TO THE REMAINING PART OF T HE COST OF IMPROVEMENT AMOUNTING TO RS.1,22,23,795/- AGITATED ON BEHALF OF THE REVENUE. THE AFORE-STATED COST OF IMPROVEMENT IS A TTRIBUTABLE TO THE OTHER TWO PARTIES NOTED ABOVE WHERE SUMMONS WERE SE RVED BUT THE PARTIES DID NOT RESPOND. IT IS TRITE THAT ONCE THE SUMMONS HAVE BEEN DULY SERVED UPON THE THIRD PARTY, THE CORRECT COURSE OPE N TO THE ASSESSING OFFICER WAS TO OBTAIN THE DESIRED INFORMATION FROM SUCH PARTIES IN EXERCISE OF ITS QUASI-JUDICIAL POWERS. THIS IS MOR E SO WHERE ASSESSEE HAS NO CONTROL OVER SUCH PARTIES. THERE CAN BE MANY RE ASONS FOR NON- ATTENDANCE TO THE SUMMONS INCLUDING SOME KIND OF FE AR OF DETECTION OF UNDISCLOSED INCOME EARNED IN THE HANDS OF THE PARTI ES WHICH MAY HAVE GONE UNRECORDED. WE DO NOT WANT TO DELIBERATE ON T HIS ASPECT ANY FURTHER. THE CIT(A) HAS RIGHTLY, IN OUR VIEW, CONC LUDED THE ISSUE IN FAVOUR OF THE ASSESSEE HAVING REGARD TO THE DOCUMEN TARY EVIDENCES. IN THE ABSENCE OF ANY POSITIVE MATERIAL ADVERSE TO THE ASSESSEE, THE DISALLOWANCE/ADDITION IS NOT PERMISSIBLE ON THE BAS IS OF CONJECTURES AND SURMISES. THE CIT(A) HAS THUS RIGHTLY ADJUDICATED THE ISSUE. WE THUS FIND LITTLE MERIT IN THE GRIEVANCE OF THE REVENUE A S PER ITS APPEAL AND UPHOLD THE REASONS ADOPTED BY THE CIT(A) IN TOTO. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NOS. 2384 & 2460/AHD/2016 ASSESSEE : HARJIVANBHAI C PATEL AY: 2012-13 17 14. IN THE COMBINED RESULT, THE APPEAL OF THE ASSES SEE IN ITA NO.2384/AHD/2016 IS ALLOWED FOR STATISTICAL PURPOSE S AND APPEAL OF THE REVENUE IN ITA NO.2460/AHD/2016 IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 27 TH APRIL, 2018 AT AHMEDABAD SD/- SD/- (RAJPAL YADAV) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED 27/04/2018 *BT ! '$% &% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $ '' , , / DR, ITAT, AHMEDABAD 6. - / GUARD FILE. / BY ORDER, TRUE COPY / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD