Hi-Tech Estates & Promoters Pvt. Ltd., Bhubaneswar V. ACIT,Circle-2(2), Bhubaneswar

ITA 286/CTK/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5140 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 18-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B D OJHA
• Keywords: Unexplained cash credit; Commercial expediency
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 286 /CTK/2017 ASSESSMENT YEAR : 2 008 - 2009 HI - TECH ESTATES & PROMOTERS PVT LTD., PLOT NO.A - 103, SAHEED NAGAR, BHUBANESWAR. VS. ACIT, CIRCLE - 2(2), BHUBANESWAR. PAN/GIR NO. AAACH 9592 G (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI B.D.OJHA, AR REVENUE BY : SHRI SUBHENDU DATTA , DR DATE OF HEARING : 0 6 /0 8 / 2018 DATE OF PRONOUNCEMENT : 06 /0 8 / 2018 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 6.4.2017 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. BECAUSE THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, BHUBANESWAR ERRED IN LAW AS WELL AS IN FACT BY CONFORMING THE ADDITION OF LAND DEVELOPMENT EXPENSES AMOUNTING TO RS. 45,080/ - WITHOUT APPRECIATING THE BUSINESS NECESSITY OF SUCH EXPENSES WHICH IS CONTRARY TO THE EVIDENCE ON RECORD AND SAME IS LIABLE TO BE ALLOWED. 2. BECAUSE THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, BHUBANESWAR ERRED IN LAW AS WELL IN FACT BY CONFORMING THE ADDITION OF RS. 1,05,19,598/ - BEING 25% OF THE INCREMENTAL ADVANCE RECEIVED FROM CUSTOMERS WITHOUT APPRECIATING THE NATURE OF BUSINESS OF THE APPELLANT, IGNORING THE EVIDENCE ON RECORD AND THE ADDITION IS LIABLE TO BE ALLOWED. 2 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 3. BECAUSE THAT THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) - 1 , BHUBANESWAR ERRED IN LAW AS WELL AS IN FACT BY CONFORMING THE ADDITION OF LAND DEVELOPMENT EXPENSES AMOUNTING TO RS. 34,56,200/ - WITHOUT APPRECIATING THE BUSINESS NECESSITY OF SUCH EXPENSES WHICH IS CONTRARY TO THE EVIDENCE ON RECORD AND SAME IS LIABLE TO BE ALLOWED. 4. BECAUSE THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I , BHUBANESWAR ERRED IN LAW AS WELL AS IN FACT BY CONFORMING THE ADDITION OF RS. 28,70,095/ - U/S 40A(3) OF THE L.T.ACT FOR WHICH NO DETAILS THEREOF IS AVAILABLE IN THE ASSESSMENT ORDER AND WITHOUT APPRECIATING THE CIRCUMSTANCES FOR SUCH PAYMENTS. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U.S,143(3)/263 OF THE AC T MAKING THE FOLLOWING ADDITIONS: I) LAND DEVELOPMENT EXPENSES : RS. 45,080/ - II) LAND DEVELOPMENT EXPENSES : RS. 34,56,200/ - II I ) UNEXPLAINED CASH CREDIT : RS.1,05,19,598/ - IV) DISALLOWANCE U/S.40A(3) OF THE ACT : RS. 28,70,095/ - 4. ON APP EAL, THE CIT(A) CONFIRMED THE DISALLOWANCES MADE BY THE ASSESSING OFFICER FOLLOWING THE REASONS GIVEN BY HIS PREDECESSOR. 5. HENCE, THE ASSESSEE IS IN APPEAL BEFORE US. 6. BEFORE US, LD A.R. SUBMITTED THAT ON SIMILAR ISSUES FOR THE ASSESSMENT YEAR 2008 - 09 IN THE ASSESSMENT U/S.143(3) OF THE ACT, THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER VIDE ITS ORDER DATED 21.9.2017 FOLLOWING THE DECISION OF THE TRIB UNAL FOR THE ASSESSMENT YEARS 2001 - 02 TO 2006 - 07 IN IT(SS) A NO.03 TO 09/CTK/2017 ORDER DATED 31.8.2017. HENCE, IT WAS HIS SUBMISSION THAT THE ISSUES MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE SIMILAR DIRECTION. 3 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 7. LD D.R. AGREED TO THE SUBMISSION OF LD A.R. OF THE ASSESSEE. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT ON SIMILAR FACTS IN ASSESSEES CASE FOR THE ASSESSMENT YEAR 2008 - 09 IN THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT, THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL IS AS UNDER: 7. WE FIND THAT A SIMILAR ISSUE WHICH CAME UP BEFORE THE TRIBUNAL IN ONE OF THE GROUP CASES IN CASE OF HI - TECH ESTATES & PROMOTERS PVT. LTD., IN IT(SS)A NO.03 TO 09/CTK/2017 FOR THE ASSESSMENT YEARS 2000 - 01 TO 2006 - 07, WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 31.08.2017 REMITTED THE MATTER BACK TO THE FILE OF AO WITH THE FOLLOWING OBSERVATIONS : - 15. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT A SEARCH & SEIZURE OPERATION WAS CONDUCTED IN HI - TECH GROUP ON 30.9.2005 AND BOOKS OF ACCOUNT IDENTIFIED AS NP - 1 TO NP - 67 WERE SEIZED. THEREAFTER, NOTICE U/S.153A WAS ISSUED ON 31.8.2006 TO THE ASSESSEE COMPANY AND ASSESSMENT U/S.153A (B)(/144 OF THE ACT COM PLETED ON 31.12.2007 AT AN INCOME OF RS.4,72,10,484/ - IN ASSESSMENT YEAR 2001 - 02, AT AN INCOME OF RS.1,51,31,691/ - IN ASSESSMENT YEAR 2000 - 2001, AT AN INCOME OF RS.10,96,72,470/ - IN ASSESSMENT YEAR 2002 - 03, AT AN INCOME OF RS.18,27,05,620/ - IN ASSESSMENT Y EAR 2003 - 04, AT AN INCOME OF RS.22,70,16,340/ - IN ASSESSMENT YEAR 2004 - 05, AT INCOME OF RS.5,00,00,000/ - IN ASSESSMENT YEAR 2005 - 06 AND RS.5,00,00,000/ - IN ASSESSMENT YEAR 2006 - 07. THEREAFTER, THE MATTER TRAVELLED TO THE TRIBUNAL AND THE TRIBUNAL VIDE ORDE R DATED 14.12.2012 IN IT (SS) NOS.57 TO 63/CTK/2011 FOR THE ASSESSMENT YEARS 2000 - 2001 TO 2006 - 07 SET ASIDE THE ORDER OF THE CIT(A) FOR ALL THE YEARS UNDER CONSIDERATION AND RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER AND DIRECTED THE ASSESSIN G OFFICER TO MAKE DENOVO ASSESSMENT ON THE BASIS OF RETURNS TO BE FILED BY THE ASSESSEE IN PURSUANCE TO NOTICE U/S.153A, WHICH LD COUNSEL FOR THE ASSESSEE HAD AGREED BEFORE THE BENCH TO FILE WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. PURSU ANT TO THIS DIRECTION OF THE TRIBUNAL, THE ASSESSEE FILED RETURN OF INCOME U/S.153A AT AN INCOME OF RS.55,392/ - IN ASSESSMENT YEAR 2001 - 02, AT AN INCOME OF RS.52,156/ - IN ASSESSMENT YEAR 2000 - 2001, AT AN INCOME OF RS.1,44,736/ - IN ASSESSMENT YEAR 2002 - 03, AT AN INCOME OF RS.2,55,370/ - IN ASSESSMENT YEAR 2003 - 04, AT AN INCOME OF RS.3,32,607/ - IN ASSESSMENT YEAR 2004 - 05, AT AN INCOME OF 4 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 RS.2,95,575/ - IN ASSESSMENT YEAR 2005 - 06 AND AT AN INCOME OF RS.1,08,286/ - IN ASSESSMENT YEAR 2006 - 07. 16. THE ASSESSING OF FICER THEREAFTER MADE ASSESSMENT AT AN INCOME OF RS.82,79,500/ - IN ASSESSMENT YEAR 2001 - 02, AT AN INCOME OF RS.38,07,040/ - IN ASSESSMENT YEAR 2000 - 2001, AT AN INCOME OF RS.107,43,398/ - IN ASSESSMENT YEAR 2002 - 03, AT AN INCOME OF RS.3,08,94,665/ - IN ASSESSM ENT YEAR 2003 - 04, AT AN INCOME OF RS.3,60,13,362/ - IN ASSESSMENT YEAR 2004 - 05, AT AN INCOME OF RS.1,24,96,690/ - IN ASSESSMENT YEAR 2005 - 06 AND AT AN INCOME OF RS.1,64,20,570/ - IN ASSESSMENT YEAR 2006 - 07. 17. IN AN ASSESSMENT MADE, THE ASSESSING OFFICER HA S MADE ADDITION UNDER THE HEAD ADVANCE FROM CUSTOMERS @ 25% OF THE ADVANCES RECEIVED BY THE ASSESSEE DURING RESPECTIVE YEARS UNDER CONSIDERATION. THE ARGUMENT OF LD A.R. OF THE ASSESSEE IS THAT THERE WAS DIRECTION OF THE TRIBUNAL TO MAKE DENOVO ASSESSMEN T AFTER CONSIDERING THE RETURN OF INCOME TO BE FILED BY THE ASSESSEE AND OTHER MATERIALS. THE ASSESSING OFFICER WHILE MAKING THESE ASSESSMENTS AFTER THE SET ASIDE OF THE ASSESSMENT ORDERS BY THE TRIBUNAL, THE SAME VERY ADDITIONS WERE MADE WHICH WERE IN THE SET ASIDE ASSESSMENT ORDERS. HE SUBMITTED THAT THE ONLY BASIS FOR MAKING ADDITION OF 25% OF THE ADVANCES RECEIVED FROM CUSTOMERS IS THAT FOR ASSESSMENT YEAR 2008 - 09, IT WAS FOUND THAT INCREMENTAL ADVANCES WERE RECEIVED FROM 3200 CUSTOMERS. OUT OF WHICH, 5 14 CUSTOMERS WERE FROM WHOM CASH WAS RECEIVED BUT NO LAND WAS ALLOTTED TO THEM. THESE TRANSACTIONS WERE CONSIDERED BY THE ASSESSING OFFICER AS SUSPICIOUS. IN ORDER TO VERIFY THE SAME, A SMALL SAMPLE OF 50 CUSTOMERS WERE SELECTED TO TEST CHECK AND SUMMONS W ERE ISSUED, 32 OF THE PERSONS TURNED UP AND APPEARED BEFORE THE ASSESSING OFFICER AND CONFESSED UNDER OATH TO HAVE PAID THE AMOUNT AND HAVE NOT RECEIVED THE LAND. THE ASSESSING OFFICER THEREAFTER HAS STATED IN THE REMAND REPORT DATED 28.3.2011 THAT SINCE T HE SAMPLE SIZE WAS OF CUSTOMER BASE OF 3200 WAS TOO SMALL, THEREFORE, A REVISED METHOD WAS DEVISED TO CHECK THE CUSTOMER ADVANCE. HE FURTHER NOTED THAT THE ASSESSEE FAILED TO GIVE NAME AND ADDRESS OF ABOUT 25% OF CUSTOMERS IN THE ASSESSMENT YEAR 2008 - 09 AN D AS THE SAME CUSTOMER BASE WAS HANDLED, THEREFORE, SAME RATIO MAY BE APPLIED AND 25% OF INCREMENTAL CUSTOMER WAS TREATED AS NOT VERIFIABLE AND ADDITIONS WERE MADE IN THE YEARS UNDER APPEAL, WHICH WAS CONFIRMED BY THE CIT(A). IT WAS THEREFORE, THE ARGUMENT OF LD A.R. OF THE ASSESSEE THAT NO INCREMENTAL MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND AS THE ADDITIONS HAVE BEEN MADE ON ESTIMATE WITHOUT ANY BASIS , SAME SHOULD BE DELETED. 18. ON THE OTHER HAND, LD D.R. SUPPORTED THE ORDERS OF LOWER AUTHORI TIES AND ARGUED THAT THE ASSESSEE FAILED TO PRODUCE NAMES AND ADDRESS OF THE CUSTOMERS FROM WHOM IT HAS RECEIVED ADVANCE AND HENCE, THE ASSESSING OFFICER HAS MADE A VERY REASONABLE ADDITION ON THE BASIS OF ESTIMATE. THEREFORE, HE SUBMITTED THAT THE ORDER O F THE CIT(A) SHOULD BE CONFIRMED. 5 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 19. IN THE ABOVE BACKGROUND OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSMENT ORDERS HAVE BEEN FRAMED IN THE YEARS UNDER APPEAL WITHOUT THOROUGHLY EXAMINING THE SEIZED MATERIALS. THE ASSESSING OFFICER HAS MAD E ASSESSMENT BY MAKING A SHORT CUT OF THE ENTIRE PROCEDURE AND ESTIMATING UNVERIFIED CUSTOMERS AT 25% OF THE INCREMENTAL ADVANCES RECEIVED BY THE ASSESSEE DURING THE YEARS AND MAKING ADDITION THEREOF. IN OUR CONSIDERED VIEW, SUCH AN APPROACH OF THE ASSESSI NG OFFICER CANNOT BE SUSTAINED IN LAW. IT IS ALSO OBSERVED THAT THE STATEMENT OF THE ASSESSING OFFICER TO THE EFFECT THAT NAME AND ADDRESS OF ABOUT 25% OF THE PERSONS FROM WHOM FRESH ADVANCE WAS RECEIVED DURING THE ASSESSMENT YEAR 2008 - 09 COULD NOT BE FURN ISHED BY THE ASSESSEE COULD NOT BE CONTROVERTED BY THE ASSESSEE. HOWEVER, THE AMOUNT WHICH WAS CLAIMED TO HAVE BEEN RECEIVED FROM SUCH CREDITORS HAS NOT BEEN BROUGHT ON RECORD. IT IS IMPERATIVE ON THE PART OF THE ASSESSING OFFICER TO CONSIDER SEIZED MATERI ALS IN ITS ENTIRETY AND THEREAFTER DRAW A CONCLUSION BASED ON FACTS AND MAKE ADDITION TO THE INCOME OF THE ASSESSEE IF HE ARRIVE D AT A CONCLUSION THAT THE SEIZED MATERIALS INCLUDE SAME UNDISCLOSED INCOME OF THE ASSESSEE. IF AFTER VERIFYING THE SEIZED MATER IALS, HE CANNOT DRAW SUCH A CONCLUSION THAT SEIZED MATERIALS INCLUDE UNDISCLOSED INCOME OF THE ASSESSEE, HE CANNOT MAKE ADDITION TO THE INCOME OF THE ASSESSEE EVEN FOR A SINGLE RUPEE. WE FIND THAT THE ASSESSING OFFICER HAS NOT DONE HIS JOB AS WAS EXPECTED FROM HIM PROPERLY AND THOROUGHLY AND, THEREFORE, WE ARE LEFT WITH NO OPTION AND ARE CONSTRAINED TO RESTORE THE MATTER BACK TO HIS FILE FOR ADJUDICATING THE ISSUE AFRESH AND HOPE THAT THIS TIME THE ASSESSING OFFICER WILL DO A THOROUGH INVESTIGATION OF THE S EIZED MATERIAL AND THEREAFTER, PASS A WELL REASONED ORDER ON THE ABOVE ISSUE. HENCE, THIS GROUND OF APPEAL FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION IS ALLOWED FOR STATISTICAL PURPOSES . AS THE FACTS IN THE PRESENT APPEAL ARE IDENTICAL, RESPECTFULLY FOLLOWING THE PRECEDENT, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND RESTORE THIS ISSUE BACK TO THE FILE OF AO WITH SAME DIRECTION AS GIVEN IN THE CASE OF HITECH ESTATES & PROMOTERS PVT. LTD. (SUPRA). THUS, GROUNDS NO.2 IN ASSESSEES APPEAL FOR THE A SSESSMENT YEAR 2007 - 08 AND GROUND NO.2 IN THE ASSESSMENT YEAR 2008 - 09 ALONG WITH GROUND NO.1 IN REVENUES APPEAL FOR THE ASSESSMENT YEAR 2007 - 08 ARE ALLOWED FOR STATISTICAL PURPOSES 8. IN ASSESSEES APPEAL GROUND NO.1 FOR THE ASSESSMENT YEAR 2007 - 08 AND G ROUND NO.1 FOR THE ASSESSMENT YEAR 2008 - 09 ARE DIRECTED AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE ADDITION OF RS.19,28,786/ - UNDER THE HEAD DEVELOPMENT EXPENSES FOR THE ASSESSMENT YEAR 2007 - 08 AND RS.34,56,200/ - FOR THE ASSESSMENT YEAR 2008 - 09. 9. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS IN REAL ESTATE BUSINESS AND ACTIVITIES OF THE COMPANY IS TO BUY AND SELL LAND. THE LAND DEVELOPMENT EXPENSES CONSIST OF AMOUNT PAID FOR SAND FILLING, LAYING OF ROADS, ROAD SITE PLANTATION OF THE P ROJECT, 6 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 CONSTRUCTION OF CULVERTS AND AMOUNT PAID OVER AND ABOVE THE REGISTERED VALUE OF THE LAND TO THE LAND OWNERS. THE LAND DEVELOPMENT EXPENSES OF RS.19,28,786/ - IS AN AMOUNT PAID TO SELLER OF LAND IN EXCESS OF REGISTERED VALUE OF LAND WHILE REGISTERING THE LAND IN FAVOUR OF THE ASSESSEE. THE ASSESSEE COMPANY HAD PAID TO THE SELLERS OF LAND TO ACQUIRE THE LAND WHICH IS THE MAIN BUSINESS OF THE ASSESSEE. THE EXTRA AMOUNT SO PAID IS THE PREMIUM FOR SELL OF LAND WHICH IS GENERAL PRACTICE TO SELL AND PURCHAS E OF LAND. THE AOS OBSERVATION THAT PAYMENT OF SUCH SUM ENCOURAGES CIRCULATION OF BLACK MONEY IS NOT CORRECT. IN PRESENT CIRCUMSTANCES, THE COMPANY MAINTAINED THE RECORDS WITH REGARD TO PAYMENTS MADE TO LAND OWNERS. DURING THE ASSESSMENT PROCEEDINGS THE A SSESSEE SUBMITTED THE DETAILS OF LAND PURCHASES INCLUDING NAMES AND ADDRESS OF THE PERSONS FROM WHOM LAND HAS BEEN PURCHASED. THE AO WITHOUT ENQUIRING AS TO WHETHER THE COMPANY HAS PAID SUCH AMOUNT TO THE SELLERS OR NOT, ADDED THE AMOUNT OF RS.19,28,786/ - FOR THE ASSESSMENT YEAR 2007 - 08 AND RS.34,56,200/ - FOR THE ASSESSMENT YEAR 2008 - 09. 10. ON APPEAL, THE CIT(A) CONFIRMED THE DISALLOWANCE OF LAND DEVELOPMENT EXPENSES OF RS.19,28,786/ - FOR THE ASSESSMENT YEAR 2007 - 08, OBSERVING THAT THE ASSESSEE HAD NOT F ILED ANY DETAILS FOR THE ENTIRE LAND DEVELOPMENT EXPENSES AS STATED BY THE AO IN THE ASSESSMENT ORDER. THE AO STATED THAT THE AMOUNT PAID TO THE SELLERS WAS OVER AND ABOVE THE LAND PRICE. THE SUBMISSIONS ADVANCED BY THE ASSESSEE BEFORE THE AO WERE REJECTED ON THE GROUND THAT THE EXTRA AMOUNT PAID TO THE SELLERS ARE IN CONTRAVENTION TO THE RATE FIXED BY THE STATE GOVERNMENT AND IS NOT ALLOWABLE EXPENDITURE. THE AO NOTED THAT EVEN IF THE BRIBES/TIPS ETC BE PAID TO GET SOME WORK DONE, THE SAME CANNOT BE ALLOWE D AS EXPENDITURE U/S.37 OF THE ACT. THEREFORE, THE AO DISALLOWED THE AMOUNT. THE LAND IS REQUIRED TO BE REGISTERED ON THE PRICE PAID FOR SUCH LAND AND THE PAYMENT OVER AND ABOVE THE REGISTERED PRICE VIOLATES THE REGISTRATION ACT. THE CIT(A) OBSERVED THAT N O EVIDENCE WAS PRODUCED IN SUPPORT OF THE CLAIM THAT THE AMOUNT WAS REALLY PAID TO THE SELLERS. THEREFORE, THE CIT(A) CONFIRMED THE ADDITION OF RS.19,28,786/ - UNDER THE HEAD DEVELOPMENT EXPENSES FOR THE ASSESSMENT YEAR 2007 - 08 AND SIMILARLY CONFIRMED THE A DDITION RS.34,56,200/ - FOR THE ASSESSMENT YEAR 2008 - 09. 11. LD. AR REITERATED THE SUBMISSION MADE BEFORE THE LOWER AUTHORITIES. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 12. WE FIND THAT WHILE DECIDING THE SIMILAR ISSUE IN ONE OF THE GROUP CASES IN CASE OF HI - TECH ESTATES & PROMOTERS PVT. LTD., IN IT(SS)A NO.03 TO 09/CTK/2017 FOR THE ASSESSMENT YEARS 2000 - 01 TO 2006 - 07, WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 31.08.2017 REMITTED THE MATTER BACK TO THE FILE OF AO WITH THE FOLLO WING OBSERVATIONS : - 7 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 51. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS MADE EXCESS CASH PAYMENT TO THE SELLERS OF LAND AS PREMIUM AMOUNT WHICH HAS BEEN DEBITED UNDER THE HEAD LAND DEVELOPMENT CHARGES. ACCORDING TO THE ASSESSING OFFICER, EXCESS CASH PAYMENTS MADE TO LAND SELLERS IN THE SHAPE OF PREMIUM AMOUNT CANNOT BE HELD TO BE IN THE NATURE OF DEVELOPMENT EXPENSES AND, THEREFORE, DISALLOWED DEDUCTION FOR THE SAME U/S.37 OF THE ACT. 52. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT THE EXTRA PAYMENT MADE TO THE SELLERS OF THE LAND IN EXCESS OF THE BENCH MARK PRICE FIXED BY STATE GOVERNMENT FOR COLLECTING STAMP DUT Y WAS AKIN TO PREMIUMS PAID TO SELLERS OF LAND FOR PURCHASING THEIR LAND AT THE PREVAILING MARKET PRICE IN SUCH BUSINESS. IT WAS SUBMITTED THAT THE ASSESSEE ENTERS INTO WRITTEN OR VERBAL AGREEMENT WITH THE OWNERS OF THE LAND FOR PAYMENT OF A FIXED SUM AS C ONSIDERATION ON PREVAILING MARKET PRICE OF THE LAND OF THE PARTICULAR AREA. AFTER THE OWNER OF THE LAND IS PAID IN FULL THE AGREED AMOUNT, THE LAND IS REGISTERED IN THE NAME OF THE ASSESSEE. AT THE TIME OF REGISTRATION OF LAND, THE AMOUNT OF CONSIDERATION MENTIONED IN THE CONVEYANCE DEED IS DEBITED TO LAND PURCHASE ACCOUNT AND THE BALANCE AMOUNT IS DEBITED TO LAND DEVELOPMENT ACCOUNT. IT WAS SUBMITTED THAT THE PRICE AT WHICH THE ASSESSEE ACQUIRES LAND IS A BUSINESS DECISION ON COMMERCIAL EXPEDIENCY TO RUN T HE BUSINESS. IF THE ASSESSEE STICKS TO THE BENCH MARK PRICE FIXED BY THE STATE GOVT, FOR COLLECTION OF STAMP DUTY, THE ASSESSEE CANNOT PURCHASE ANY LAND AS THE BENCH MARK PRICE IS ALWAYS LOWER THAN THE MARKET PRICE AND THAT WILL AFFECT THE RUNNING OF THE B USINESS OF THE ASSESSEE. THE MENTION OF THE CONSIDERATION IN CONVEYANCE DEED IS FOR THE PURPOSE OF COLLECTING STAMP DUTY AND NOT THE ACTUAL CONSIDERATION OF THE TRANSACTION. REGARDING ALLEGATION THAT THE PRICE PAID OVER AND ABOVE THE REGISTRATION PRICE IS A VIOLATION OF REGISTRATION ACT, THE ASSESSEE HAS TO PAY FINE OR PENALTY FOR SUCH VIOLATION IF THE STATE GOVERNMENT INITIATES ACTION AGAINST THE ASSESSEE AND FINE OR PENALTY IS NOT DEDUCTIBLE U/S.37 OF THE ACT. HENCE, IT WAS SUBMITTED THAT THE AMOUNT PAID OVER AND ABOVE THE REGISTRATION PRICE SHOULD BE ALLOWED AS DEDUCTION U/S.37 OF THE ACT. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE PLACED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SHREE PANCHAGANGA SAHAKARI SAKHAR KARKHAN A LTD., 250 ITR 772 (BOM). 53. LD D.R. ON THE OTHER HAND RELIED ON THE ORDER OF LOWER AUTHORITIES. 54. WE FIND THAT THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON THE GROUND OF ALLEGED VIOLATION OF SECTION 8 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 40A(3) OF THE ACT. HOWEVER, THE REL EVANT DETAILS AS TO THE DATE OF PAYMENT ON WHICH PAYMENT IN VIOLATION OF SECTION 40A(3) WAS ALLEGEDLY MADE BY THE ASSESSEE HAS NOT BEEN BROUGHT ON RECORD. IN THE CIRCUMSTANCES, IN OUR CONSIDERED VIEW, IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH AFTER TAKING INTO CONSIDERATION THE APPLICABILITY OR OTHERWISE OF SECTION 40A(3) OF THE ACT. THUS, THIS GROUND OF APPEAL IS ALSO ALLOWED FOR STATISTICAL PURPOSES. AS THE FACTS IN TH E PRESENT APPEAL ARE IDENTICAL, RESPECTFULLY FOLLOWING THE PRECEDENT, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND RESTORE THIS ISSUE BACK TO THE FILE OF AO WITH SAME DIRECTION AS GIVEN IN THE CASE OF HITECH ESTATES & PROMOTERS PVT. LTD. (SUPRA). THUS, GROUNDS NO.1 IN ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2007 - 08 AND GROUND NO.1 IN THE ASSESSMENT YEAR 2008 - 09 ARE ALLOWED FOR STATISTICAL PURPOSES. 9. WE FIND THAT THE APPEAL UNDER CONSIDERATION IS AGAINST THE ORDER OF THE CIT(A) AGAINST THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 263 OF THE ACT . WE FIND THAT THE CIT(A) HAS PASSED THE ORDER ON 6.4.217 AGAINST THE ASSESSMENT ORDER U/S.143(3)/263 OF THE ACT AND SINCE THE ISSUES HAVE ALREADY BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR UNDER APPEAL BY THE TRIBUNAL ON 21.9.2017, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE SAME DIRECTION. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 06 /0 8 /2018. S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 06 /0 8 /2018 9 ITA NO.286/CTK/2017 ASSESSMENT YEAR : 2008 - 2009 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : HI - TECH ESTATES & PROMOTERS PVT LTD., PLOT NO.A - 103, SAHEED NAGAR, BHUBANESWAR 2. THE RESPONDENT. ACIT, CIRCLE - 2(2), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//