Foremost Finvest Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(2), Surat

ITA 2826/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5938 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 25-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 07-08-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JYOTI LAXMI
• Assessee Lawyers: MANISH MALPANI
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Capital asset; Business expenditure; Valuation report; Capital Gains
• Section: 50C; 69B

Judgement Text

ITA NO.2826/AHD/08 A.Y.05-06 1 IN THE INCOME_TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI T.K. SHARMA AND SHRI D.C. AGRAWAL. . SURAT CAMP. ITA. NO. 2826/AHD/2008 (ASSESSMENT YEAR:2005-06) FOREMOST FINVEST PVT. LTD., 701, TRIVIDH CHAMBERS, RING ROAD, SURAT. VS INCOME TAX OFFICER, WARD 1(2), SURAT. (APPELLANT) (RESPONDENT) PAN: AAACF 6758 R APPELLANT BY : SHRI MANISH MALPANI RESPONDENT BY : SMT. JYOTI LAXMI, SR.D.R. ( (( ( )/ )/)/ )/ ORDER PER SHRI D.C. AGRAWAL. THIS APPEAL IS FILED BY THE ASSESSEE RAISING FOLLOWING G ROUNDS:- 1. THAT THE HONBLE CIT(A) HAS ERRED IN SUSTAINING ADDITION OF RS.3,63,203/- BY WAY OF DISALLOWANCE OF INTEREST EX PENDITURE WHICH IS LEGITIMATE AND GENUINE BUSINESS EXPENDITURE. 2. THE HONBLE C.I.T.(A) HAS ERRED IN SUSTAINING AD DITION OF RS.14,48,623/- AS UNEXPLAINED INVESTMENT U/S. 69B O F THE ACT IN RESPECT OF LAND & BUILDING PURCHASED DURING THE YEA R UNDER CONSIDERATION. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS D EALING IN TRADING AND MANUFACTURING OF TEXTILE GOODS. THE FIRST ISSUE REL ATES TO THE DISALLOWANCE OF PART OF THE INTEREST EXPENDITURE. DURING THE COURSE OF A SSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT ASSESSEE HAS CLAIMED INTEREST EXP ENDITURE OF RS.13.23 LACS ON BANK BORROWINGS. IT WAS ALSO NOTED THAT ASSESSEE HA S GIVEN INTEREST FREE ITA NO.2826/AHD/08 A.Y.05-06 2 LOANS AND ADVANCES TO SISTER CONCERNS, ASSOCIATES A ND DIRECTORS AND THEIR RELATIVES. FOLLOWING AMOUNT WAS FOUND PAID FOR NON BUSINESS PURPOSES TO FRIENDS AND SISTER CONCERNS :- SR,.NO. NAME OF THE PARTY. AMOUNT. (RS.) 1 AIR COMMUNICATION 10,00,000/- 2 DIPESH R. GOYAL 35,000/- 3 HARSHIL R. GOYAL. 35,000/- 4 RAKESH M. GOYAL HUF 10,000/- 5 RAKESH M.GOYAL INDL. 3,35,000/- 6 RAMESH GOYAL 2,00,000/- 7 SHAKSHI TEX 5,00,000/- 8 SUMAN R.GOYAL 49,902/- 9 SUSHILA R.GOYAL 2,57,902/- TOTA L 24,21,354/- 3. THE A.O. SOUGHT TO DISALLOW PART OF THE INTEREST EXPENDITURE ON THE GROUND THAT INTEREST BEARING FUND TAKEN FROM THE BANK HAVE BEEN DIVERTED TO SISTER CONCERNS AND ASSOCIATES FOR NON BUSINESS PURPOSES. HE ACCORDINGLY CALCULATED INTEREST AT 15% ON THE SUM SO ADVANCED TO SISTER CO NCERNS/ASSOCIATES WITHOUT INTEREST AND WORKED OUT A SUM OF RS.3,63,203/- WHIC H WAS DISALLOWED BY INVOKING PROVISIONS OF SECTION 36(1)(III) AND RELYING ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF K. SOMSUNDARAM & BROTHERS VS . C.I.T. (1999) 238 ITR-939 (MAD.). 4. THE LD. C.I.T.(A) CONFIRMED THE ADDITION ON THE GROUND THAT ASSESSEE HAS NOT SHOWN ANY NEXUS OF INTEREST FREE FUNDS AND INTE REST FREE ADVANCES. HE RELIED ON THE DECISIONS OF ( I ) HONBLE SUPREME COURT IN S.A. BUILDERS VS. C.I.T. 288 ITR-1 (II) HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF C.I.T. VS. H.R. SUGAR FACTORY PVT.LTD., (1991) 187 ITR-363, (ALL ) (III) HONBLE KERALA HIGH COURT IN ITA NO.2826/AHD/08 A.Y.05-06 3 C.I.T. VS. V.I. BABY & OTHERS (2002) 254 ITR-248 (K ER) AND HELD THAT ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH BUSINESS EXPEDIENCY FOR GIVING INTEREST FREE ADVANCES TO THE ASSOCIATES. HE ACCORDINGLY CONFI RMED THE DISALLOWANCE. 5. BEFORE US THE LD. A.R. FOR THE ASSESSEE SUBMITTE D THAT ASSESSEE HAD SUBSTANTIAL INTEREST FREE CAPITAL TO THE EXTENT OF RS.335.97 LACS AND UNSECURED LOAN ADVANCE OF RS.178.96 LACS PAID TO VARIOUS PART IES DURING DAY TO DAY BUSINESS TRANSACTIONS. IT HAD A SHARE CAPITAL OF RS .2.20 CRORES AND RESERVES AND SURPLUS OF RS.13.57 LACS. IN ADDITION IT HAD UNSECU RED LOAN OF RS.3.35 CRORES. FURTHER, INTEREST TO THE EXTENT OF RS.12,75,000/- H AS BEEN PAID TO THE BANK. THEREFORE, INTEREST FREE ADVANCES TO ASSOCIATES SHO ULD BE CONSIDERED AS COMING OUT OF INTEREST FREE CAPITAL AVAILABLE WITH THE ASS ESSEE. HE REFERRED TO THE DECISION OF HONBLE APEX COURT IN MUNJAL SALES CORP ORATION VS. CIT (2008) 298 ITR-298 (SC) AND ALSO REFERRED TO THE DECISION OF B OMBAY HIGH COURT IN CIT VS RELIANCE UTILITIES & POWER LTD., (2009) 313 ITR-340 (MUM.) FOR THE PROPOSITION THAT IF INTEREST FREE ADVANCES ARE MADE OUT OF INTE REST FREE FUNDS AVAILABLE THEN INTEREST PAID ON BORROWED CAPITAL WOULD BE DEDUCTIB LE IN COMPUTATION OF INCOME. FOR THE SIMILAR PROPOSITION, LD. A.R. FOR THE ASSES SEE REFERRED TO THE DECISION OF AHMEDABAD BENCH IN TORRENT FINANCIERS VS. A.C.I.T. (2001) 73 TTJ (AHD) 624. 6. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT IT IS UNDISPUTED FACT THAT MONEY HAS BEEN ADVANCED TO SISTER CONCERNS AND ASSO CIATES FOR NON BUSINESS PURPOSES THEN ONUS IS ON THE ASSESSEE TO ESTABLISH THE NEXUS BETWEEN INTEREST FREE CAPITAL AVAILABLE AND INTEREST FREE ADVANCE MA DE BY IT. SHE SUBMITTED THAT IN TORRENT FINANCIERS CASE THERE WAS NO FINDING THAT INTEREST FREE ADVANCE TO ASSOCIATES WERE FOR NON BUSINESS PURPOSES. THERE WA S ONLY A COMPARISON OF INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE WIT H INTEREST FREE ADVANCES GIVEN BY IT TO SISTER CONCERN. IN RELIANCE SECURITIES & POWER LTD., A FINDING WAS GIVEN THAT INVESTMENTS WERE MADE BY THE ASSESSEE OUT OF I NTEREST FREE FUNDS AVAILABLE AND BORROWED CAPITAL WAS USED FOR BUSINESS PURPOSES . THEREFORE, THOSE CASE-LAW WOULD NOT BE APPLICABLE. IN RESPECT OF MUNJAL SALE S CORPORATION, THE LD. D.R. ITA NO.2826/AHD/08 A.Y.05-06 4 SUBMITTED THAT HONBLE SUPREME COURT HAS PUT THE BURDEN ON THE ASSESSEE TO PROVE THAT BORROWING WAS FOR THE PURPOSES OF BUSINE SS. IF ENTIRE MONEY BORROWED FROM THE BANK ON WHICH INTEREST WAS PAID WAS UTILIZ ED FOR THE BUSINESS PURPOSES ONLY THEN INTEREST COULD NOT BE DISALLOWED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE ISSUE IS PRIMA-F ACIE COVERED BY THE DECISION OF HONBLE APEX COURT IN MUNJAL SALES CORPORATION (SUP RA) SUBJECT TO A FINDING BY THE A.O. THAT ENTIRE BORROWING FROM THE BANK ON WHI CH INTEREST WAS PAID WAS UTILIZED FOR BUSINESS PURPOSES. IF IT IS SO THEN N O PART OF THE INTEREST PAID BY THE ASSESSEE TO THE BANK WOULD BE DISALLOWED. FOR THIS LIMITED VERIFICATION WE RESTORE THE MATTER TO THE FILE OF THE A.O. THIS GROUND OF T HE ASSESSEE IS ACCORDINGLY ALLOWED BUT FOR STATISTICAL PURPOSES. 8. GROUND NO.2 RELATES TO THE ADDITION OF RS.14,48, 623/- AS UNEXPLAINED INVESTMENT U/S. 69B. 9 .FACTS RELATING TO THE ISSUE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT ASSESSEE HAS DEC LARED A TOTAL CONSIDERATION FOR PURCHASE OF 3 PROPERTIES AT RS. 22 LACS. THE ST AMP VALUATION AUTHORITIES HAD LEVIED ADDITIONAL STAMP DUTY WHILE REGISTERING THE SALE DEEDS. THE A.O. ACCORDINGLY, MADE A REFERENCE U/S. 142A TO THE DIST RICT VALUATION OFFICER FOR DETERMINING THE INVESTMENT IN THE LAND AND OLD CONS TRUCTION THEREON AS ON DATE OF PURCHASE. THE D.V.O. CARRIED OUT THE VALUATION AND REPORTED FOLLOWING ESTIMATED INVESTMENT IN THE THREE PROPERTIES:- ITA NO.2826/AHD/08 A.Y.05-06 5 S.NO. PROPERTY FIN.YEAR COST OF CONSTRUCTION OF THE BUILDING + LAND AS DECLARED BY ASSESSEE ESTIMATED BY THIS OFFICE CONSTRUCTION + LAND CONSTRUCTION LAND 1) BLOCK NO.100 2004-05 2,00,000/- 5,35,208/- 82,885/- 2) BLOCK NO. 85 2004-05 18,00,000/- 16,24,057/- 7 ,94,126/- 3) BLOCK NO. 84 2004-05 2,00,000/- 5,12,523/- 99,824/- TOTAL 22,00,000/- 26,71,788/- 9,76,835/- GRAND TOTAL. 36,48,623/- THE A.O. ON ABOVE BASIS INFERRED THAT THE ASSESSEE HAS MADE EXCESS INVESTMENTS IN THE PROPERTIES WHICH WAS WORKED OUT AT RS.14,48,623/- BY REDUCING FROM RS.36,48,623/-, DECLARED SUM OF RS.22 LACS. IT WAS EXPLAINED TO THE A.O. THAT SUCH ADDITION CAN NOT BE MADE U/S.69B AS ALL THE THREE INGREDIENTS REQUIRED FOR INVOKING THAT SECTION ARE NOT SATISFIE D. THESE INGREDIENTS ARE AS UNDER :- 1. IT IS FOUND THAT ASSESSEE HAS MADE INVESTMENT. 2. IT IS FOUND THAT, THE AMOUNT EXPENDED ON MAKING SUCH INVESTMENT EXCEEDS THE AMOUNT RECORDED IN THAT BEHALF IN THE B OOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. 3. EITHER THE ASSESSEE OFFERS NO EXPLANATIONS ABOUT SUCH EXCESS AMOUNT OR THE EXPLANATION OFFERED BY HIM IS NOT SAT ISFACTORY. SINCE NO UNEXPLAINED INVESTMENT WAS MADE ADDITION S HOULD NOT BE MADE U/S. 69B. THE ASSESSEE ALSO RELIED ON THE FOLLOWING JU DGEMENTS :- 1. KANHAIYALAL(HUF) VS. C.I.T. (AL H.C.) (2001) 24 7 ITR-0686 2. AMAR KUMARI SURANA (SMT.) VS. CIT 226 ITR 344 ( RAJ.) 3. CIT VS. NARESH KHATTAR (HUF) 261 ITR 664 (DEL.) 4. CIT VS. LALIT BHASIN 290 ITR 245 (DEL.) ITA NO.2826/AHD/08 A.Y.05-06 6 THE A.O. HOWEVER DID NOT AGREE, HE INVOKED PROVISIO NS OF SECTION 50C(1) AND MADE THE ADDITION OF RS.14,48,623/- AS UNEXPLAINED INVESTMENT. 10. THE LD. CIT (A) ANY-HOW CONFIRMED THE ADDITION BY OBSERVING AS UNDER :- I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPEL LANT AND OBSERVATION OF THE A.O. THE INVESTMENT IN THE THREE PROPERTIES HAS NOT BEEN DENIED BY THE APPELLANT. THE INVESTMENT IS A FACT. THERE WAS ADDITIONAL DUTY LEVIED BY THE STAMP DUTY AUTHORITIES WHICH CLEARLY SHOWED THAT THE APPELLANT HAD REGISTERED THE PURCHASE AGREEMENT AT A VALUE LESS T HAN THE CIRCLE RATE. THE A.O. THEREFORE, SENT THE MATTER FOR VALUATION. THE D.V.O. HAS VALUED THE PROPERTIES OVER AND ABOVE THE RATE SHOWN IN THE BOOKS OF ACCOUNTS. THE COPY OF THE REPORT WAS GIVEN TO THE APPELLANT B Y THE A.O. AS STATED ABOVE. NEITHER DURING THE ASSESSMENT PROCEEDINGS, N OR DURING THE APPELLATE PROCEEDINGS, THE A.O. ASKED FOR ANY CROSS EXAMINATION OF THE D.V.O. WHO PREPARED THE VALUATION REPORT. HENCE, IT IS CLEAR THAT THE VALUATION REPORT HAS BEEN ADMITTED AS CORRECT BY TH E APPELLANT. IN THE CASE OF NARESH KHATTAR HUF (SUPRA) THE HONBLE HIGH COUR T STATED THAT IT IS THE DEPARTMENT WHO HAS TO PROVE THAT THE REAL INVESTMEN T EXCEEDED THE INVESTMENT SHOWN IN THE BOOKS OF ACCOUNTS. IN THE C ASE OF LALIT BHASIN SUPRA, THE HONBLE HIGH COURT HELD THAT THE A.O. CA N NOT MAKE ADDITION ON THE BASIS OF CONJECTURES AND SURMISES. IT IS CLEAR THAT BOTH THESE CASES RELIED UPON BY THE APPELLANT ARE IN FAVOUR OF THE A .O. THE ADDITION MADE BY THE A.O. IS NOT BASED ON CONJECTURES OR SURMISES BUT IT IS BASED ON A VALUATION REPORT OF AN EXPERT. THE DEPARTMENT HAS B ROUGHT ON RECORD TWO MATERIAL FACTS WHICH PROVE THAT THERE WAS AN EXCESS INVESTMENT MADE BY THE APPELLANT. THE ADDITIONAL DUE PAID AS WELL AS T HE EXCESS INVESTMENT SHOWN IN THE D. V. OS REPORT ARE FACTS WHICH PROVE THAT THE APPELLANT HAS MADE UNEXPLAINED INVESTMENT COVERED BY THE PROVISIO NS OF SECTION 69B. IN ITA NO.2826/AHD/08 A.Y.05-06 7 VIEW OF THIS REASON, THE ADDITION MADE BY THE A.O. IS CONFIRMED AND THIS GROUND OF APPEAL, IS DISMISSDED. 11. BEFORE US LD. A.R. FOR THE ASSESSEE SUBMITTED T HAT SUCH ADDITION ON THE BASIS OF D. V. OS REPORT COULD NOT BE MADE EITHER U/S.69B OR SECTION 50C. IT IS BECAUSE ASSESSEE HAS NOT MADE ANY INVESTMENT WHICH COULD BE TERMED AS UNEXPLAINED. THE A.O. HAS NO MATERIAL TO SHOW THAT SUCH INVESTMENT OVER AND ABOVE WHAT IS RECORDED IN THE BOOKS OF ACCOUNTS HAS BEEN MADE. THUS, SECTION 69B CANNOT BE INVOKED. IN RESPECT OF SEC.50C LD. A .R. SUBMITTED THAT THIS CAN BE INVOKED ONLY FOR WORKING OUT CAPITAL GAINS AND N OT FOR TAXING ANY UNEXPLAINED INVESTMENT. THIS VIEW IS SUPPORTED BY THE DECISIO N OF HONBLE MADRAS HIGH COURT IN ITO VS. ARASAN SUBBIAH (2009) 20 DTR (MAD) 113. THE LD. A.R. ALSO RELIED ON FOLLOWING JUDGEMENTS :- 1. AMIT ESTATE ORGANIZER VS. ITO (2008) 113 TTJ (A HD)(TM) 1018 2. ITO VS. ARASAN SUBBIAH (2009) 20 DTR (MAD.) 113 . 3. JAWAHARBHAI A. HATHIWALA VS. ITO (2010) 128 TTJ (AHD.) (UO) 36 12. THE LD. D.R. ON THE OTHER HAND RELIED ON THE OR DERS OF THE AUTHORITIES BELOW. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW NO SUCH ADDITION AS PROPOSED BY THE A.O. AND CONFIRMED BY THE LD. C.I.T.(A) CAN BE MADE U/S. 69B . THERE IS NO MATERIAL BROUGHT IN BY THE A.O. TO SHOW THAT ASSESSEE HAS SP ENT MORE THAN WHAT IT HAS CLAIMED TO HAVE SPENT FOR PURCHASE OF PROPERTIES. I F THERE IS NO EVIDENCE THAT ANY EXTRA AMOUNT IS PAID THEN ADDITION ON THE BASIS OF PRESUMPTION COULD NOT BE SUSTAINED. FOR INVOKING SEC. 69B THE THREE INGREDI ENTS AS POINTED OUT ABOVE ARE REQUIRED TO BE SATISFIED. OUT OF THIS FIRST INGREDI ENT IS MAIN AND IF THAT IS NOT EXISTING THEN A.O. CAN NOT GET JURISDICTION TO INVO KE THAT SECTION. THIS MAIN ITA NO.2826/AHD/08 A.Y.05-06 8 INGREDIENT IS THAT ASSESSEE SHOULD HAVE BEEN FOUND TO HAVE MADE INVESTMENT WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS. T HIS INVESTMENT IS REAL AND NOT HYPOTHETICAL. IT SHOULD HAVE BEEN FOUND TO HAVE BEE N ACTUALLY INCURRED AND SHOULD NOT BE DERIVED, FROM PRESUMPTION. SUCH EXPEN DITURE SHOULD BE REAL AND SHOULD NOT BE BASED ON ESTIMATE, SUBJECT TO ONE EX CEPTION THAT WHERE A PART OF EXTRA EXPENDITURE IS FOUND NOT RECORDED IN THE BOOK S THEN A.O. WOULD BE EMPOWERED TO MAKE THE ESTIMATE FOR FULL EXPENDITURE NOT FOUND RECORDED IN THE BOOKS AND FOR THIS PURPOSE HE CAN GET ASSISTANCE FR OM D.V.O. BUT WHERE NO NUCLEUS OF ANY EXTRA INVESTMENT, OVER AND ABOVE WH AT IS RECORDED IN THE BOOKS IS FOUND THEN QUESTION OF MAKING ANY ESTIMATE WOULD NOT ARISE. IN THE INSTANT CASE, THE A.O. HAS SIMPLY RELIED ON THE ESTIMATE MA DE BY THE D.V.O. WITHOUT THERE BEING ANY SUPPORTIVE EVIDENCE THAT ASSESSEE H AS INCURRED INVESTMENT OVER AND ABOVE RS. 22 LACS. ACCORDINGLY A.O. COULD NOT G ET JURISDICTION TO INVOKE SECTION 69B. 14. SIMILARLY, A.O. CAN NOT INVOKE SECTION 50C BECA USE THIS SECTION CAN ONLY BE INVOKED FOR THE PURPOSES OF COMPUTING CAPITAL GA INS I.E. WHERE ASSESSEE HAS TRANSFERRED HIS CAPITAL ASSET AND HE IS LIABLE FOR CAPITAL GAINS ON SUCH TRANSFER THEN IN PLACE OF SALE CONSIDERATION DECLARED BY THE ASSESSEE THE VALUATION DONE BY STAMP VALUATION AUTHORITIES FOR THE PURPOSE OF L EVY OF STAMP DUTY ON TRANSFER OF SUCH CAPITAL ASSET, WOULD BE SUBSTITUTED. IT IS UNDISPUTEDLY NOT A CASE OF TRANSFER OF ANY ASSET BY THE ASSESSEE. ON THE OTHER HAND, ASSESSEE HAS PURCHASED PROPERTIES WHOSE DETAILS ARE GIVEN ABOVE. PROVISIONS OF SEC. 50C CANNOT BE INVOKED IN THE CASE OF THE PURCHASER AS H E IS NOT LIABLE TO ANY CAPITAL GAINS. OUR VIEW IS SUPPORTED BY THE DECISION OF ITA T DELHI BENCH IN ITO VS FITWELL LOGIC SYSTEM PVT. LTD. (2010) 001 ITR (TRIB .)286( ITAT DELHI C-BENCH) WHERE ON SIMILAR FACTS DELETION OF ADDITION WAS HEL D JUSTIFIED. IN THAT CASE ASSESSEE HAD PURCHASED THE PROPERTY FOR A CONSIDERA TION OF RS.1.25 CRORES WHEREAS VALUATION FOR THE PURPOSE OF STAMP DUTY WAS MADE AT RS.1,34,79,780/- .THE DIFFERENCE OF RS.9,79,780/- WAS ADDED U/S. 50C . THE C.I.T.(A) DELETED THE ADDITION ON THE GROUND THAT THERE WAS NO MATERIAL T O ESTABLISH THAT ACTUAL ITA NO.2826/AHD/08 A.Y.05-06 9 CONSIDERATION PAID BY THE ASSESSEE WAS HIGHER THAN WHAT WAS DECLARED IN THE SALE DEED. THE TRIBUNAL, DISMISSED THE DEPARTMENTA L APPEAL HOLDING THAT THERE WAS NO EVIDENCE OR MATERIAL TO ESTABLISH THAT ASSES SEE HAS MADE ACTUAL INVESTMENT TO THE EXTENT OF RS. 1,34,79,780/- AS AG AINST RS.1.25 CRORES AS SHOWN IN THE SALE DEED. IN THE PRESENT CASE, ALSO THERE I S NO EVIDENCE OR MATERIAL TO ESTABLISH THAT ASSESSEE HAS MADE ACTUAL INVESTMENT OF RS 36,48,623/- AS AGAINST RS.22 LAKHS DECLARED BY THE ASSESSEE OR THAT THERE WAS ANY INVESTMENT OVER AND ABOVE RS.22 LAKHS. 15. AS A RESULT, WE HOLD THE ADDITION CAN NEITHER B E MADE U/S. 69B NOR UNDER SECTION 50C. THEREFORE,. THE ADDITION SO MADE BY TH E A.O. AND CONFIRMED BY THE LD. C.I.T.(A) IS DELETED. 16. AS A RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED AND PARTLY FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 18 / 06 /2010. SD/- SD/- (T.K. SHARMA) (D.C.AGR AWAL) JUDICIAL MEMBER ACC OUNTANT MEMBER. AHMEDABAD. DATED:18 /06 /2010. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNED. 5. THE DR.,ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER. DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD.