ANAND JAIN, MUMBAI V. DCIT CEN CIR 39, MUMBAI

ITA 2708/MUM/2013

• Counselvise Citation: 270819914 RSA 2013
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S PADMAJA
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Search and seizure; Loose papers; Document seized; Deemed to accrue or arise in india; Retraction; Documents seized
• Section: 69C; 153A; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A , MUMBAI BEFORE SHRI R.C. SHARMA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO S . 270 7, 270 8 & 2709 /M/2013 ASSESSMENT YEAR S : 2006 - 07, 2007 - 08 & 2009 - 10 ANAND JAIN, 82, MAKER CHAMBERS III, NARIMAN POINT, MUMBAI 400 021 PAN: AABPJ 1890J VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 39, AAYAKAR BHAVAN, MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI VIJ AY MEHTA, A.R. REVENUE BY : MS. S. PADMAJA, D.R. DATE OF HEARING : 22.01. 201 5 DATE OF PRONOUNCEMENT : 17.04 .2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED THREE APPEALS RELEVANT TO ASSESSMENT YEARS 2006 - 07, 2007 - 08 & 2009 - 1 0 HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE THREE DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS THE CIT(A) ] ALL DATED 16.01.2013. SINCE THE FACTS AND THE ISSUE INVOLVED THEREIN ARE IDENTICAL IN NATURE, HEN CE THE SAME ARE TAKEN TOGETHER FOR DISPOSA L BY THIS COMMON ORDER. FIRST WE TAKE UP ASSESSEES APPEAL ITA NO.2707/M/2013 FOR A . Y. 2006 - 07. ITA NO.2707/M/2013 FOR A.Y. 2006 - 07 THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: GROUND NO. 1 : ON TH E FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT (A) ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 2 ERRED IN CONFIRMING THE ACTION OF THE AO IN INITIATING PROCEEDINGS U/S. 153A OF THE INCOME TAX ACT, 1961. THE APPELLANT PRAYS THAT THE ACTION OF THE AO IN INITIATING THE SAID PROCEEDINGS SUFFERS FROM LEGAL INFIRMITY AND THEREFORE THE SAID PROCEEDINGS REQUIRE TO BE QUASHED. GROUND NO. 2: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO OF RS. 79,98,925/ - ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENTS IN AMBEGAON, JOVAN AND SHINDGAON LANDS U/S. 69B OF THE INCOME TAX ACT, 1961. THE APPELLANT PRAYS THAT THE ADDITION OF RS. 79,98,925/ - MAY KINDLY HE DELETED. GROUND NO.1 2. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HA S STATED AT BAR THAT AS PER THE INSTRUCTIONS OF HIS CLIENT HE DOES NOT PRESS GROUND NO.1 OF THE APPEAL. THE GROUND NO.1 IS THEREFORE DISMISSED BEING NOT PRESSED. GROUND NO.2 3. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE ACTION WAS CARRIE D OUT ON 05.03.2009 IN THE CASE OF THE JAI CORP. GROUP, ITS EMPLOYEES AND CLOSE ASSOCIATES. DURING THE SEARCH VARIOUS DOCUMENTS RELATING TO PURCHASE OF LAND BY THE GROUP CONCERNS OF JAI CORPORATIONS WERE SEIZED. IN THE DOCUMENTS RELATING TO VARIOUS INDIV IDUALS ASSOCIATED WITH JAI CORPORATIONS INCLUDING THE ASSESSEE, IT WAS FOUND THAT THE TOTAL CONSIDERATION/COST OF LAND WAS BIFURCATED IN PART A & PART B. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO), FROM THE PERUSAL OF THE SAID DOCUMENTS OBS ERVED THAT THE PART A WAS THE CONSIDERATION WHICH WAS PAID AS PER THE STAMP DUTY VALUE OF THE LAND AND WHEREAS THE PART B PAYMENTS D ENOTE UNACCOUNTED CASH PAYMENT/O N MONEY PAYMENTS MADE IN RESPECT OF THE SAID LAND DEALS. IN THE CASE OF THE ASSESSEE, THE A O HELD THAT THE ASSESSEE HAD MADE UNACCOUNTED PAYMENTS IN CASH OF RS.7998925/ - . HE REJECTED THE CONTENTION OF THE ASSESSEE THAT THE PART B ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 3 PAYMENTS WERE NOT IN RELATION TO THE PURCHASE OF THE LAND BUT THE SAME DENOTE THE BALANCE TOWARDS BUDGETED COST OF D EVELOPMENT AND CONVERTING THE LAND FROM AGRICULTURAL TO NON AGRICULTURE. HE THEREFORE MADE THE ADDITION OF THE SAID AMOUNT INTO THE INCOME OF THE ASSESSEE UNDER SECTION 69B OF THE ACT. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFOR E THE LD. CIT(A). 4. THE LD. CIT(A) ALSO DID NOT AGREE WITH THE CONTENTIONS/EXPLANATIONS GIVEN BY THE ASSESSEE IN RELATION TO THE FIGURES MENTIONED IN PART B OF THE IMPOUNDED DOCUMENTS. HE THEREFORE UPHELD THE ADDITIONS MADE BY THE AO IN THIS RESPECT. A GGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORD. THE LD. A.R. OF THE ASSESSEE, BEFORE US, HA S SUBMITTED THAT EXCEPT THE SEIZED DOCUMENT, THE CONTENTS OF WHICH HAVE BEEN DULY EXPLAINED BY THE ASSESSEE , NO OTHER EVIDENCE OF ANY KIND WAS FOUND OR SEIZED WHICH WOULD INDICATE THAT THE ASSESSEE HAD INCURRED THE COST OF LAND IN CASH AS ALLEGED BY THE RE VENUE. HE HAS FURTHER CONTENDED THAT THE WORDS MENTIONED IN THE DOCUMENT CASH REQUIRED DID NOT MEAN THAT THE CASH HAD ACTUALLY BEEN EXPENDED. THE ALLEGATIONS LEVELLED BY THE REVENUE REGARDING THE PAYMENT OF ON MONEY HAVE NOT BEEN CORROBORATED WITH ANY RELIABLE OR CONVINCING EVIDENCE. EVEN IN THE STATEMENTS RECORDED OF SHRI VIRENDRA JAIN VICE CHAIRMAN OF JAI CORPORATIONS ON 11.05.2009 UNDER SECTION 131 AND FURTHER AFFIDAVIT DATED 22.12.10 OF SHRI ATUAL PAWAR, AN EMPLOYEE OF JAI CORPORATIONS, IT HAS BEEN DULY EXPLAINED THAT THE PART A WAS THE AMOUNT PAID IN ADVANCE AND PART B WAS THE BALANCE TOWARDS BUDGETED COST OF ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 4 DEVELOPMENT FOR CONVERTING THE LAND FROM AGRICULTURE TO NON AGRICULTURE. HE HAS FURTHER SUBMITTED THAT NONE OF THE SELLERS HAVE BEEN EXA MINED IN THE MATTER TO ASCERTAIN WHETHER ANY AMOUNT HAS BEEN PAID TO THEM IN CASH IN SPITE OF THE FACT THAT THE ASSESSEE HAD SPECIFICALLY ASKED THE AO VIDE LETTER DATED 13.12.10 TO EXAMINE THE SELLERS IF REQUIRED. HE HAS FURTHER RELIED UPON THE DECISION O F THE ITAT IN THE CASE OF AVKASH LAND REALITY PVT. LTD. & OTHERS WHEREIN UNDER THE SIMILAR CIRCUMSTANCES, THE ADDITIONS MADE BY THE REVENUE AUTHORITIES HAVE BEEN DELETED BY THE TRIBUNAL. HE HAS FURTHER RELIED UPON ANOTHER DECISION OF THE TRIBUNAL IN THE CASE OF JAI CORP. LTD. DATED 26.11.2014 TO STRESS THAT THE CONSIDERATION FOR THE PURCHASE OF THE LAND WAS MORE THAN THE RATES OF READY RECKNOR OF STAMP DUTY AUTHORITIES, ALL THE PAYMENTS WERE MADE THROUGH CHEQUE, AND IN THE ABSENCE OF ANY EVIDENCE THAT ANY PAYMENT WAS MADE IN CASH OR UNACCOUNTED MONEY HAS EXCHANGED HANDS, THE ADDITIONS COULD NOT BE MADE. HE HAS FURTHER CONTENDED THAT THE ENTIRE ADDITION HAS BEEN MADE MERELY ON THE BASIS OF SUSPICION WHICH WAS BASED ON THE STRENGTH OF LOOSE PAPERS FOUN D DURING THE SEARCH ACTION, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THE LD. D.R. ON THE OTHER HAS RELIED UPON THE FINDINGS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE LOOSE PAPERS FOUND DURING THE SEARCH ACTION WERE SELF EXPLANATORY PROVING TH AT THE PART B PAYMENT WAS MADE IN CASH ON ACCOUNT OF PURCHASE OF LANDS. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON BY THE ASSESSEE. WE FIND THAT IN THE CASE OF M/S. AVKASH LAND REALTY PVT. LTD. AN D OTHERS VS. DCIT AND OTHERS ITA NOS. 8327M/2011AND OTHERS, THE TRIBUNAL, WHILE DEALING WITH THE IDENTICAL ISSUE ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 5 WHILE ADJUDICATING 67 APPEALS OF 52 DIFFERENT ASSESSEES IN RELATION TO ADDITIONS MADE UNDER SECTION 69B IN THE CASE OF JAI CORP. GROU P COMPANI ES ON ACCOUNT OF O N MONEY CASH PAYMENTS FOR PURCHASE OF LAND, HAS MADE THE FOLLOWING OBSERVATION: 22. . THE ENTIRE DISPUTE REVOLVES AROUND THE ALLEGED CASH PAYMENT AMOUNTING TO RS. 43 CRORES APPROX. AND WHICH HAS BEEN ADDED U/S. 69C OF THE ACT. SEC. 69C OF THE ACT READS AS UNDER: WHERE IN ANY FINANCIAL YEAR AN ASSESSEE HAS INCURRED ANY EXPENDITURE AND HE OFFERS NO EXPLANATION ABOUT THE SOURCE OF SUCH EXPENDITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, OFFERED BY HIM IS NOT, IN THE OPINION OF THE A O, SATISFACTORY, THE AMOUNT COVERED BY SUCH EXPENDITURE OR PART THEREOF, AS THE CASE MAY BE, MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. 23. A PERUSAL OF THE AFOREMENTIONED SECTION SHOWS THAT THE REQUIREMENT OF THE SECTION IS THAT AN EXPENDITURE HAS BEEN FOUND TO HAVE BEEN INCURRED BY AN ASSESSEE IN ANY FINANCIAL YEAR. CONSEQUENTLY, THE ASSESSEE FAILS TO INDICATE SATISFACTORILY THE SOURCE OF SUCH EXPENDITURE OR ANY PART THEREOF. THEN SECTION 69C IS ATTRACTED IN SUCH CIRCUMSTA NCES. THE EMPHASIS IS ON THE FACT THAT AN ASSESSEE HAS INCURRED ANY EXPENDITURE. THIS ITSELF SHOW THAT THE ASSESSEE MUST HAVE BEEN FOUND TO HAVE INCURRED ANY EXPENDITURE TO INVOKE THE PROVISIONS OF SEC. 69C OF THE ACT. EVEN IF FOR THE SAKE OF ARGUMENTS , THE RETRACTION O F SHRI DILIP DHERAI IS IGNORED , IN HIS REPLY TO QUESTION NO. 24 ON THE DATE OF SEARCH, SHRI DILIP DHERAI HAS CATEGORICALLY MENTIONED THAT CASH PAYMENT FROM MAKERS IS AT RS. 28.01 CRORES AND CASH PAYMENT FROM JAI TOWERS IS AT RS. 10.4 3 CRORES, TOTAL OF THESE AMOUNTS WORKS OUT AT RS. 38.45 CRORES WHICH WAS PROVIDED TO SHRI DILIP DHERAI BY ONE SHRI SANJAY PUNKHIA CEO OF SEZ PROJECT. SHRI DILIP DHERAI IS NOT EVEN REMOTELY RELATED TO THE ASSESSEE COMPANY .IT IS ALSO NOT THE CASE OF THE REVENUE THAT DILIP DHERAI WAS ACTING AS AGENT OF THE ASSESSEE COMPANY. MERELY ON THE STRENGTH OF THIS ADMISSION, IT CANNOT BE SAID THAT THE ASSESSEE HAS INCURRED CERTAIN EXPENDITURE OVER AND ABOVE WHAT HAS BEEN RECORDED IN ITS BOOKS OF ACCOUNT. WE FIND TH AT THE ULTIMATE CONCLUSIONS DRAWN BY THE AO AND THE LD. CIT(A) HAVE BEEN REACHED MERELY ON THE ENTRIES FOUND ON LOOSE SHEET OF PAPERS FOR WHICH SHRI DILIP DHERAI HAS STATED THAT THEY ARE ONLY ESTIMATS / BUDGETARY FIGURES. HOWEVER, THE ALLEGATIONS MADE B Y THE LOWER AUTHORITIES ARE NOT SUPPORTED BY ACTUAL CASH PASSING HANDS. THE ENTIRE ADDITIONS ARE BASED ON THE SEIZED DOCUMENTS AND NO OTHER MATERIAL HAS BEEN ADVERTED TO AND WHICH COULD CONCLUSIVELY SHOW THAT THE HUGE AMOUNT OF THE MAGNITUDE MENTIONED IN THE SEIZED DOCUMENTS TRAVELLED FROM, ONE SIDE TO THE OTHER. THE REVENUE AUTHORITIES HAVE NOT BROUGHT A SINGLE STATEMENT ON RECORD OF ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 6 THE VENDORS OF LAND IN DIFFERENT VILLAGES. NONE OF THE SELLER HAS BEEN EXAMINED TO SUBSTANTIATE THE CLAIM OF THE REVENUE THAT EXTRA CASH HAS ACTUALLY CHANGED HANDS. 24. OUR VIEW IS FORTIFIED BY THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF MALIK BROTHERS PVT. LTD. VS CIT 162 TAXMANN 43 WHICH IS RELIED UPON BY THE LD. DR. I N THAT CASE, THE ASSESSEE PURCHASED THE PR OPERTY ALLEGEDLY FOR RS. 6 LAKHS. THE VENDOR IN HER STATEMENT CONFIRMED THAT THE SALE CONSIDERATION OF SAID PROPERTY WAS RS. 45 LAKHS AND PAID TAX THEREON. IN VIEW OF VENDORS STATEMENT, THE AO MADE AN ADDITION OF RS. 39 LAKHS TO THE INCOME OF THE ASSESS EE TOWARDS UNEXPLAINED INVESTMENT. THE ACTION OF THE AO WAS JUSTIFIED AND THE ADDITIONS WERE CONFIRMED. THUS IN VIEW OF THE AFORESAID DECISION, IN THE PRESENT CASE, NONE OF THE SELLERS HAVE BEEN EXAMINED BY THE AO TO STRENGTHEN HIS VIEWS THAT CASH HAS BEEN PAID OVER AND ABOVE THE REGISTERED AMOUNT. THERE IS NOT EVEN A SINGLE DOCUMENT/EVIDENCE OF PARTIES INVOLVED IN THE SALE OF LAND AT DIFFERENT VILLAGES BROUGHT ON RECORD TO SHOW THAT AN AMOUNT OTHER THAN THE PAYMENT OF CONSIDERATION HAS EXCHANGED HAND S. NO CONFESSION FROM THE SELLERS HAVE BEEN BROUGHT ON RECORD. THE ENTIRE ADDITIONS HAVE BEEN MADE MERELY ON THE STRENGTH OF LOOSE PAPERS FOUND DURING THE COURSE OF THE SEARCH NOT SUPPORTED BY ANY INDEPENDENT AUTHORITY. CONSIDERING THE ENTIRE ADDITION, I N THE LIGHT OF THE PROVISIONS OF SEC. 69C, AS PER A.OS OWN INTERPRETATION, INVESTMENTS IN PURCHASE OF LAND HAVE BEEN FULLY FINANCED BY SOME OTHER PERSONS, THEREFORE, THE ADDITION IN THE HANDS OF THE ASSESSEE CANNOT BE JUSTIFIED AS THE ASSESSEE HAS NOT INC URRED ANY EXPENDITURE. THERE MAY BE ONE MORE POSSIBILITY THAT THE PERSONS WHO WERE DOING LAND PURCHASE MIGHT HAVE INFLATED THE SALE PRICE IN THESE LOOSE SHEETS JUST TO EXTRACT MONIES FROM THEIR HIGHER AUTHORITIES IN THE GUISE OF ON - MONEY TO BE PAID TO THE VENDORS. MAY BE BECAUSE OF HIS POSSIBILITY NO DOCUMENTS WERE FOUND TO SHOW THAT THE MONEY ACTUALLY CHANGED HANDS. 25. A PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE SHOW THAT THE AUTHORIZED, ISSUED AND SUBSCRIBED PAID UP CAPITAL IS AT RS. ONE LAKH AND TH E ASSESSEE HAD NOT DONE ANY BUSINESS DURING THE YEAR UNDER CONSIDERATION. WITH SUCH A SMALL CORPUS AND NO BUSINESS ACTIVITY, NOR ANY HAS BEEN BROUGHT ON RECORD BY THE REVENUE, IT IS NOT ACCEPTABLE THAT THE COMPANY MAY HAVE INCURRED SUCH HUGE EXPENDITURE O UTSIDE ITS BOOKS OF ACCOUNT. FURTHER IN HIS ENTIRE ASSESSMENT ORDER, THE AO HIMSELF HAS POINTED OUT TIME AND AGAIN DIFFERENT PERSONS, WHO ARE ALLEGED, TO HAVE MADE CASH PAYMENTS. EVEN ON THAT COUNT, THE ADDITIONS CANNOT BE SUSTAINED IN THE HANDS OF THE A SSESSEE. IN OUR CONSIDERATE VIEW, THERE BEING NO EVIDENCE TO SUPPORT THE REVENUES CASE THAT A HUGE FIGURE, WHATEVER BE ITS QUANTUM , OVER AND ABOVE THE FIGURE BOOKED IN THE RECORDS AND ACCOUNTS CHANGED HANDS BETWEEN THE PARTIES, NO ADDITION COULD THEREFO RE BE MADE U/S. 69C OF THE ACT TO THE INCOME OF THE ASSESSEE. CONSIDERING THE ENTIRE FACTS BROUGHT ON RECORD, WE HAVE NO HESITATION TO HOLD THAT EVEN ON MERITS, NO ADDITION COULD BE SUSTAINED. 26. SINCE WE HAVE ALLOWED THE ISSUE IN THE CASE OF THE PRESE NT ASSESSEE ON BOTH COUNTS I.E. ON LEGAL ISSUE AND ON MERIT AND THE ISSUES INVOLVED IN ALL OTHER APPEALS OF ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 7 OTHER ASSESSEES ARE SIMILAR AND IDENTICAL, THOUGH QUANTUM MAY DIFFER, FOR SIMILAR REASONS, WE QUASH THE ASSESSMENTS AND DELETE THE ADDITIONS ON MERI T AS WELL AS ON POINT OF LAW IN ALL OTHER CASES ALSO. 7. A PERUSAL OF THE ABOVE FINDINGS OF THE TRIBUNAL IN THE CASE OF RELATED CONCERNS OF THE ASSESSEES INVOLVING IDENTICAL FACTS AND ISSUES REVEALS THAT THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT THE REQUIREMENT OF SECTION 69C IS THAT AN EXPENDITURE HAS BEEN FOUND TO HAVE BEEN INCURRED BY AN ASSESSEE IN ANY FINANCIAL YEAR FOR WHICH HE GIVES NO EXPLANATION ABOUT THE SOURCE THEREOF, THEN THE ADDITION CAN BE MADE UNDER SECTION 69C IN SUCH CIRCUMSTANCE S. THE TRIBUNAL HAS OBSERVED THAT THE REQUIREMENT OF THE SECTION IS THAT THE ASSESSEE MUST HAVE BEEN FOUND TO HAVE INCURRED ANY EXPENDITURE TO INVOKE THE PROVISIONS OF SECTION 69C OF THE ACT. THE CONCLUSIONS DRAWN BY THE AO AND THE LD. CIT(A) WERE BASED ON THE ENTRIES FOUND ON LOOSE SHEET OF PAPERS FOR WHICH IT WAS EXPLAINED BY THE ASSESSEE/CONCERNED PERSONS THAT THEY WERE ONLY ESTIMATES/BUDGETARY FIGURES. THE ALLEGATIONS MADE BY THE LOWER AUTHORITIES WERE NOT SUPPORTED BY ANY EVIDENCE OF ACTUAL CASH PAS SING HANDS. THE REVENUE AUTHORITIES HAD NOT BROUGHT A SINGLE STATEMENT ON RECORD OF THE VENDORS OF THE LAND IN DIFFERENT VILLAGES. NONE OF THE SELLERS HAD BEEN EXAMINED TO SUBSTANTIATE THE CLAIM OF THE REVENUE THAT THE EXTRA CASH HAD ACTUALLY CHANGED HAN DS. THE TRIBUNAL, AFTER CONSIDERING THE EVIDENCES IN RELATION TO THE ADDITIONS IN THE LIGHT OF PROVISIONS OF SECTION 69C OF THE ACT, HAS HELD THAT NO ADDITIONS WERE WARRANTED UNDER SECTION 69C OF THE ACT IN THE HANDS OF THE ASSESSEE. WE FIND THAT IN THE CASE OF THE ASSESSEE , THE ADDITIONS HAVE BEEN MADE BY THE LOWER AUTHORITIES UNDER SECTION 69B OF THE ACT WHICH PROVIDES THAT WHERE THE ASSESSEE HAS MADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE AND THE AO FINDS THAT THE AMOUNT EXPENDED ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 8 ON MAKING OF SUCH INVESTMENTS OR IN ACQUIRING SUCH BULLION JEWELLERY OR OTHER VALUABLE ARTICLE EXCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME AND THE AS SESSEE OFFERS NO EXPLANATION ABOUT SUCH EXCESS AMOUNT OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFACTORY, THE EXCESS AMOUNT MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR THAT RELEVANT YEAR. SO, THE FIRST REQUIREMENT FOR THE INVOCATION OF PROVISIONS OF SECTION 69B OF THE ACT IS THAT THE AMOUNT MUST BE EXPENDED BY THE ASSESSEE AND WHICH IS FOUND IN EXCESS THAN THAT IS RECORDED IN THE BOOKS OF THE ACCOUNT AND THE ASSESSEE DOES NOT GIVE ANY EXPLANATION ABOUT SUCH EXCESS AMOUNT. IN THE CASE IN HAND, EXCEPT THE LOOSE PAPERS AS DISCUSSED ABOVE, NO EVIDENCE WAS FOUND THAT THE ASSESSEE HAD INCURRED EXPENDITURE ON THE PURCHASE OF LAND MORE THAN THAT WAS RECORDED IN THE BOOKS OF ACCOUNT. THE LD. A.R. OF THE ASSESSEE HAS VEHEMENTLY CONTENDED THAT THE CONSIDERATION RECORDED IN THE SALE AGREEMENTS WAS MUCH MORE THAN THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITIES. THERE WAS NO EVIDENCE THAT ANY EXTRA CASH OTHER THAN THE SALE CONSIDERATION AS RECORDED IN THE DEED HAD CHANGED HANDS. NO STATEMENT OF THE SELLERS OF THE LAND HAD BEEN RECORDED. NO OTHER CORROBORATIVE EVIDENCE HAS BEEN PRODUCED ON THE FILE BY THE REVENUE AUTHORITIES TO SUBSTANTIATE THEIR ALLEGATION . THE ADDITION IN THIS CASE HAS BEEN MADE ON THE BASIS OF THE ENTRIES IN THE LOOSE PAPER FOUND DURING THE SEARCH ACTION, WHICH AT THE MOST CAN BE CONSIDERED TO HAVE RAISED A SUSPICION ABOUT THE TRANSFER OF MONEY OTHER THAN THE SALE CONSIDERATION, BUT THE SUSPICION ITSELF AND SOLELY CANNOT BE HELD TO BE A JUSTIFIABLE GROUND FOR MAKING THE ADDITIONS, ESPECIALLY IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE. EXCEPT THE LOOSE PAPERS IN QUESTION NO EVIDENCE, WHAT TO SAY OF ANY DIRECT OR CORROBORATIVE EVIDENCE , EVEN NO CIRCUMSTANTIAL EVIDENCE HAS BEEN DETECTED OR BROUGHT ON RECORD BY THE REVENUE. HENCE, THE ADDITIONS SOLELY ON THE BASIS OF SUSPICION, HOW STRONG IT ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 9 MAY BE, IN OUR VIEW, ARE NOT SUSTAINABLE IN THE EYES OF LAW. MOREOVER, THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THAT OF THE OTHER GROUP CONCERNS AND IN VIEW OF THE DECISION OF THE TRIBUNA L DATED 22.03.2013 (SUPRA) THE ADDITIONS IN THIS CASE UNDER SECTION 69B OF THE ACT ARE NOT WARRANTED AND THE SAME ARE ACCORDINGLY ORDERED TO BE DELETED. THIS APPEAL OF THE ASSESSEE IS ACCORDINGLY PARTLY ALLOWED. ITA NO.2708/M/2013 FOR A.Y.2007 - 08 8. THE FACTS AND THE ISSUE UNDER CONSIDERATION AND EVEN THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN THIS APPEAL ARE IDENTICAL TO THAT OF A.Y. 2006 - 07. GROUND NO.1 OF THE APPEAL IS DISMISSED AS NOT PRESSED. IN VIEW OF OUR FINDINGS GIVEN ABOVE, GROUND NO.2 OF THE APPEAL IS ALLOWED IN FAVOUR OF THE ASSESSEE. ITA NO.2709/M/2013 FOR A.Y. 2009 - 10 9. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: GROUND NO. 1: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT (A) E RRED IN CONFIRMING THE ADDITION MADE BY THE AO OF RS. 12,87,350/ - ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENTS IN JOVAN LAND U/S. 69B OF THE INCOME TAX ACT, 1961. THE APPELLANT PRAYS THAT THE SAID ADDITION IS UNJUSTIFIED & REQUIRES TO BE DELETED. GROUND NO. 2: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT (A) ERRED IN NOT ADMITTING THE ADDITIONAL GROUND RAISED BY THE APPELLANT. GROUND NO. 3: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT (A) ERRED IN REJ ECTING THE APPELLANT'S PLEA THAT THE ALV OF THE VACANT FLATS AT CENTRAL GARDEN COMPLEX SHOULD BE TAKEN AT RS. NIL. THE APPELLANT PRAYS THAT THE ALV OF THE SAID PROPERTY MAY BE TAKEN AT RS . NIL. ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 10 GROUND NO. 4: WITHOUT PREJUDICE TO GROUND NO. 3, ON THE FACT S AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT (A) ERRED IN CONFIRMING THE ACTION OF THE AO IN ASSESSING THE ALV OF VACANT RESIDENTIAL FLATS AT CENTRAL GARDEN COMPLEX BUILDING AT RS. 1,54,83,852/ - AND IN ASSESSING INCOME AT RS. 1,08,38,696/ - UN DER THE HEAD 'INCOME FROM HOUSE PROPERTY'. THE APPELLANT PRAYS THAT THE SAID ADDITION IS UNJUSTIFIED AND MAY PLEASE BE DELETED. GROUND NO. 5: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT (A) ERRED IN CONFIRMING THE ACTION OF THE AO IN NOT COMPUTING THE TOTAL INCOME OF THE APPELLANT IN ACCORDANCE WITH PROVISIONS OF S. 14 OF THE INCOME TAX ACT, 1961 AND IN NOT COMPUTING THE LOSSES U/S 74 OF THE ACT. THE APPELLANT CRAVES TO ADD, ALTER, AMEND OR OMIT ANY OF THE GROUNDS OF APP EAL BEFORE OR DURING THE HEARING OF THE APPEAL. GROUND NO.1 10. THE GROUND NO.1 IS RELATING TO THE ADDITIONS MADE ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENTS IN PURCHASE OF LAND UNDER SECTION 69B OF THE ACT. THIS GROUND IS IDENTICAL TO THAT OF GROUND NO.2 IN ASSESSEES APPEAL FOR A.Y. 2006 - 07. IN VIEW OF OUR FINDINGS GIVEN ABOVE WHILE ADJUDICATING THE IDENTICAL ISSUE, THIS GROUND IS ACCORDINGLY ALLOWED IN FAVOUR OF THE ASSESSEE AND THE ADDITIONS MADE BY THE AO UNDER SECTION 69B OF THE ACT ARE ACCORDIN GLY ORDERED TO BE DELETED. G ROUND NO.2, 3 & 4 11. GROUND NOS.2, 3 & 4 ARE RELATING TO THE ESTIMATION OF ANNUAL LETTING VALUE (ALV) OF THE VACANT FLATS AT CENTRAL GARDEN COMPLEX. THE ASSESSEE HAS CLAIMED THAT THE VALUE OF THE SAME BE TAKEN AS RS.NIL. WHE REAS THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE AO IN ASSESSING THE ALV OF THE SAID FLATS AT RS.15483852/ - AND THEREAFTER ASSESS MENT OF THE INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY AT RS.10838696/ - . THE ASSESSEE BEING THE ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 11 OWNER OF 20 VACANT FLATS AS DETAILED IN THE ASSESSMENT ORDER HAD OFFERED ANNUAL LETTING VALUE OF FLATS AS PER MUNICIPAL RATEABLE VALUE AT RS.8,473/ - . THE AO, HOWEVER, DETERMINED THE SAME AS PER HIS ESTIMATION OF THE MARKET VALUE AT RS.15483852/ - . THE LD. CIT(A) CONFIRMED T HE FINDING OF THE AO. 12. THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT IT WAS NOT A CASE WHERE THE FLATS WERE ACTUALLY LET OUT AND THEREFORE THERE WAS NOT ANY SUSPICION, DOUBT OR DISPUTE AS TO THE RATE OF RENT WHICH MIGHT HAVE BEEN ACTUALLY RECEIVED BY THE ASSESSEE. HE HAS CONTENDED THAT IN THIS CASE , THE FLATS WERE ADMITTEDLY VACANT AND THEREFORE THE DEEMED ALV WAS RIGHTLY OFFERED AS PER THE MUNICIPAL RATEABLE VALUE. HE HAS RELIED UPON THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CA SE OF SHRI ANIL KASHIPRASAD MURARKA VS. ACIT ITA NO.5514/M/2012 DECIDED ON 1 7.12.2014. WE HAVE GONE THROUGH THE SAID DECISION. THE RELEVANT FINDING OF THE TRIBUNAL HAS BEEN GIVEN IN PARA 5 OF THE SAID ORDER, WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUC ED AS UNDER: WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE ISSUE IS COVERED BY THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SMT. SMITABEN N. AMBANI VS. CWT, REPORTED IN (2010) 323 ITR 104 (BORN), WHEREIN IT WAS HELD THAT THE BAS IS ON WHICH A SELF - OCCUPIED PROPERTY IS VALUED UNDER RULE 1BB OF THE WEALTH - TAX RULES AND MUNICIPAL RATABLE VALUE IS ARRIVED AT UNDER THE MUNICIPAL LAW IS THE SAME I.E. 'A REASONABLE AMOUNT OF RENT THAT CAN BE EXPECTED BY THE OWNER FROM A HYPOTHETICAL TENA NT'. THAT WHILE ARRIVING AT SUCH REASONABLE AMOUNT OF RENT THAT CAN BE EXPECTED BY THE OWNER FROM A HYPOTHETICAL TENANT, THE AMOUNT OF STATUTORY DEDUCTION, IF ANY, PERMISSIBLE UNDER THE LOCAL MUNICIPAL LAW MUST BE ADDED TO THE RATABLE VALUE. THUS, THE HON' BLE HIGH COURT HELD THAT WHILE APPLYING THE PROVISIONS OF RULE 1BB FOR VALUING THE SELF - OCCUPIED PROPERTY, MUNICIPAL RATEABLE VALUE WITH ADDITION OF STATUTORY DEDUCTIONS, IF ANY, MAY BE ADOPTED INSTEAD OF STANDARD RENT, FOR ARRIVING AT THE GROSS MAINTAINAB LE RENT. RESPECTFULLY FOLLOWING THE ORDER OF JURISDICTIONAL HIGH COURT, MATTER IS RESTORED BACK TO THE FILE OF AO WITH A DIRECTION TO RECOMPUTE THE ALV IN TERMS OF ABOVE DECISION OF HON'BLE BOMBAY HIGH COURT. 13. THE CASE OF THE ASSESSEE IS SQUARELY COVE RED BY THE ABOVE DECISION OF THE TRIBUNAL AND RESPECTFULLY FOLLOWING THE SAME, IT IS ACCORDINGLY DIRECTED THAT THE ITA NOS.2707, 2708 & 2709/M/2013 ANAND JAIN 12 ALV BE COMPUTED AS PER THE MUNICIPAL RATEABLE VALUE AS DEEMED INCOME FROM HOUSE PROPERTY. GROUND NOS.2, 3 & 4ARE DECIDED ACCORDINGLY. GRO UND NO.5 14. THE GROUND NO.5 OF THE APPEAL IS NOT PRESSED BY THE ASSESSEE AND THE SAME IS ACCORDINGLY DISMISSED AS NOT PRESSED. 15. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.04. 201 5 . SD/ - SD/ - ( R.C. SHARMA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 17.04.2015 . * KISHORE , SR. P.S. COPY TO: THE APPELLAN T THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.