The DCIT, Central Circle-2(3), Ahmedabad V. M/s. CIMS Hospital (Previously known as Care Cardiovascular Consultant P.Ltd.), Ahmedabad

ITA 305/AHD/2014

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7015 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 30-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Income from undisclosed sources; Document seized; Principle of natural justice; Tax effect; Difference of opinion; Block assessment; Documents seized; Change of opinion
• Section: 131; 148; 132; 143(3); 142(1); 153A; 143(2); 72; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, AHMEDABAD BEFORE SHRI DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER & Ms. MADHUMITA ROY, JUDICIAL MEMBER I .T .A . N o . 3 0 5/ A h d /2 0 14 ( A s s e s s me nt Y ea r : 20 0 7- 08 ) D C I T C e ntr al C ir cle - 2 ( 3 ) , A h m e d a ba d Vs .M/ s . C I M S H o s p ita l Pr e v i ou s l y k n ow n a s C ar e C ar di o v a s c u la r C o n s ul at a n t P. Ltd ., N r . S h u ka n M a ll , O f f Sc i en c e C it y Ro ad , So la , A h me da ba d [ P A N N o . A A B C C 6 72 1A ] (Appellant) .. (Respondent) C . O . N o. 1 3 2/ A h d/ 2 0 14 ( in I TA N o . 3 05 /A h d/2 0 1 4) ( A s se ss m e nt Y e a r : 20 07- 0 8 ) M/ s . C I M S H o s p ita l Pr e vi ou sl y kn o w n a s C ar e C a r d i ov a s c u la r Co n s ul a t an t P . Ltd . , N r . S h i ka n M a ll , Of f Sc i en ce C it y R o a d, So la , A h m e d a ba d Vs . D C I T C e ntr al C ir c le - 2 ( 3 ) , A h m e d a b ad [ P A N N o . A A B C C 6 72 1A ] (Appellant/Cross Objector) .. (Respondent) I .T .A . N o . 3 0 6/ A h d /2 0 14 ( A s se ss m e nt Y e a r : 20 08- 0 9 ) D C I T C e ntr al C ir cle - 2 ( 3 ) , A h m e d a ba d V s.M /s . C I M S H o s p ita l Pr e vi ou sl y kn o w n a s C ar e C a r d i ov a s cu la r C o n s ul a n ta nt P . Ltd ., N r . S hu k a n M all , O f f Sc i en ce C it y R o a d, So la A h m e d a b ad [ P A N N o . A A B C C 6 72 1A ] (Appellant) .. (Respondent) ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 2 - C . O . N o. 1 3 3/ A h d/ 2 0 14 ( in I TA N o . 3 06 /A h d/2 0 1 4) ( A s se ss m e nt Y e a r : 20 08- 09 ) M/ s . C I M S H o s p ita l Pr e vi ou sl y kn o w n a s C ar e C a r d i ov a s c u la r Co n s ul a t an t P . Ltd . , N r . S h i ka n M a ll , Of f Sc i en ce C it y R o a d, So la , A h m e d a ba d Vs . D C I T C e ntr al C ir c le - 2 ( 3 ) , A h m e d a b ad [ P A N N o . A A B C C 6 72 1A ] (Appellant/Cross Objector) .. (Respondent) Revenue by : Shri A. P. Singh, CIT DR & Shri V. K. Singh, Sr. DR Assessee by: Shri S. N. Soparkar, Sr. Advocate, with Shri Bandish Soparkar, Advocte D a t e of H ea r i ng 20.04.2022 D a t e of P r o no u n ce me nt 15.07.2022 O R D E R PER Ms. MADHUMITA ROY, JM: Both the appeals and the Cross Objection filed by the Revenue and the assessee respectively are directed against the orders dated 22.11.2013 & 25.11.2013 passed by the Ld. Commissioner of Income Tax-III, Ahmedabad arising out of the orders both dated 08.03.2013 passed under Section 143(3) r.w.s 147 of the Income Tax Act, 1961 passed by the DCIT, Central Circle- 2(3) for Assessment Year 2007-08 & 2008-09 respectively. 2. Since the entire group of appeals and the cross objections relate to the same assessee circumventing the identical issue, these are heard analogously and are being disposed of by common order. ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 3 - ITA No. 305/Ahd/2014 is taken as the lead case. 3. The brief facts leading to the case is this that a search was carried out under Section 132 of the Act in the Heart Care group of cases on 21.08.2008. The said Heart Care group consisted of Cardiologists and Cardiac Surgeons who were working under the concept of group practice; the main persons whereof are as follows: Cardiologists (1) Dr. Keyur Parikh (2) Dr. Milan Chag (3) Dr. Urmil Shah (4) Dr. Hemant Baxi (5) Dr. Anish Chandrana (6) Dr. Ajay Naik (7) Dr. Satya Gupta Cardiac Surgeon (1) Dr. Anil Jain (2) Dr. S. N. Mallya (3) Dr. Naman Shastri (4) Dr. Vishal Gupta (5) Dr. Chirag Mehta (6) Dr. Dhiren Shah (7) Dr. Bharat Trivedi 4. The Cardiologists and Cardiac Surgeon group decided to start hospital project for which land was identified near Sola, Ahmedabad and further decided to purchase the said land in the name of Care Cardiovascular Consultants Private Ltd. (in short CCCP L) now known as ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 4 - CIMS Hospital Pvt. Ltd. In order to meet land cost and other expenses of the project, the capital was to be brought by the participating doctors. The total cost of the project was estimated at Rs. 50 crores to 52 crores. However, subsequently differences arose between the Cardiologist and the Cardiac Surgeon after the purchase of the land and the Cardiac Surgeon group separated and the following new doctors were introducing the group: (i) Dr. Gunvant Patel (ii) Dr. P. S. Iyengar (iii) Dr. Joyal Shah (iv) Dr. Mihir Tanna 5. Initially the assessment under Section 153A r.w.s. 143(3) was passed on 29.12.2010 at an assessed income of Rs. 13,45,407/-. However, Notice under Section 148 was issued on 15.11.2011 and return in response to the said notice was filed on 15.12.2011 declaring total income at Rs. 13,45,407/-. It is relevant to mention that assessment proceedings were completed in various cases of Heart Care Group wherein the Assessing Officer had held that for the purchase of land by CCCPL for the purpose of construction of the hospital, besides the cheque payment of Rs.2.50 crores, the Cardiologist and Cardiac Surgeon group paid a total cash of Rs.15.07 crores approximately. According to the Revenue the surgeon group had admitted the payments made in cash and declared the same in the returns filed. Based on various documents seized additions were made in the case of the Cardiologist Group. 6. Being an aggrieved by and/or dissatisfied with the addition made by the Ld. AO the cardiologist group filed appeals before the First Appellate ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 5 - Authority who in turn upheld the addition upon deciding the issue as follows: “In view of the above mentioned discussion, I have no doubt in my mind to hold that beside the cheque amount of Rs.2.50 crores, cash of Rs.15.07 crores was paid for the purchase of land from the seven private limited companies namely Matrand Estate Pvt. Ltd; Matang Properties Pvt. Ltd.; Madhuj Realty Pvt. Ltd.; Medhbhuti Complex Pvt. Ltd; Madhumati Realty Pvt. Ltd.; Tirth Developers Pvt. Ltd. and Maitrik Buildcon Pvt Ltd.” 7. The Ld. CIT(A) further held as follows in respect of the assessment of unaccounted income: Name of the appellant Income assessed by AO in assessment year 2008-09 Addition confirmed in assessment year 2008- 09 Income to be assessed in the hands of the appellant in assessment year 2007- 08 Income to be assessed in the hands of CCCP L in assessment year 2008- 09 Income to be assessed in the hands of CCCPL in assessment year 2007-08 Dr Keyur Parikh 552,50,000 130,00,000 300,000 107,00,000 315,00,000 Dr Dhiren Shah 25, 50,000 25, 15,000 Dr Hemang Baxi 55,00,000 55,00,000 Dr Milan Chag 112, 50,000 12,50,000 75,00,000 25,00.000 Dr A/ai Naik 21,25,000 21,25,000 Dr Satya Gupta 22,95,000 22 95,000 Dr Urmil Shah 46,75,000 11,75,000 35,00,000(subject to verification) Dr Anish Chandarana 46,75,000 31,75,000 15,00,000 8. On the above basis assessment was reopened by the Ld. AO and notice under Section 148 was issued on 15.11.2011 after recording the following reasons for the same the relevant extract whereof are reproduced herein below: ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 6 - “On going through entries in seized paper named as "Hosp. Det-Party pay details" it is noticed that this paper contains details of payments made for hospital project by doctors and name of the doctor is also mentioned along with date of payment and amount paid mentioning whether by cheque or by cash and also the name of the person to whom it is paid. This document is enclosed with the reasons recorded today as per Annexure-A. On minutely going through this paper it is found that on certain dates cash is mentioned as paid by company CCCPL to land owners. This means that cash paid by the company has to be explained by the company itself and not by the doctors. Therefore, in my view the amount paid by the company has to be taxed in the hands of the company in A.Y.2007-08 or 2008-09 if the company is not able to explain the cash paid satisfactorily. On going through the seized material and evidences found the CIT(A) has also directed that income to the extent of Rs.3,55,00,000/- and Rs.2,17,00,000/- has to be taxed in the case of CCCPL for A, Y. 2007-08 and 2008-09 respectively because this amount was paid by the company. In view of these facts and taking into consideration the entries found on the computer hard disc as per annexure-A, I am satisfied that income has escaped assessment for A. Y.2007-08 and 2008-09 for failure of the assessee to disclose the transactions fully in the books of accounts to the extent of Rs.3,55,00,000 and Rs.2,17,00,000/- respectively and therefore, assessment for both assessment years is reopened u/s. 147 of the I. T. Act. The return in response to the said notice was filed on 15.11.2011. The reasons for issuance of notice was communicated to the assessee on 14.06.2012.” 9. In response to the said notice the assessee filed its objection dated 14.12.2012 with the following contents particularly against the maintainability of the notice under Section 148 of the Act as it amounts to change of opinion. “3.1 The assessee raised objection with regard to issuance of notice u/s 148 vide letter dated 14.12.2012. The main contentions of the assessee were as under: The issue of investment in purchase of /and for Hospital project land has been fully examined in the fight of seized material, information gathered by the department, explanation submitted in response to show cause notice during the course of assessment proceedings u/s 143(3) r.w.s. 153A in respect of assessment year 2008-09 and after verification and careful consideration of the material on record it was decided to tax the unaccounted income in relation to investment in land in the hands of the doctors. All the doctors had challenged the said addition in appeal before Honourable Commissioner (Appeal) III, Ahmedabad. After hearing of the appellants the Honourable Commissioner (Appeal) has decided to tax the unaccounted income in assessment years 2007-08 and 2008-09 in case of doctors and the assessee. ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 7 - The assessee had no opportunity to represent its case before Honourable Commissioner (Appeal). Therefore, the direction to tax the assessee without hearing is against the principles of natural justice. The settled issue is disturbed due to change of opinion. The addition is directed in case of the assessee for the reason that it could not be sustained in the case of doctors. All the doctors have not accepted the appellate order of CIT(A) and challenged the same before Hounrable (TAT, Ahmedabad. Therefore, the findings of CIT(A) are not final. It may be noted that the return of income filed u/s 153A has been assessed u/s 143(3) of the I.T. Act, 1961 vide order dated 29/12/2010 after calling various details and explanation from the assessee. Therefore, the documents submitted during the course of assessment proceedings will form part of this return of income. In the absence of new information or evidence/detail and having a reason to form a belief that income has escaped from assessment on the basis of same facts amounts to change of opinion. Such change of opinion does not justify the action of issue of notice u/s 148 of the I.T. Act, 1961. The assessee also relied on the following decision in support of its claim and requested to drop the assessment proceedings. a. M/s Kelvinator of India Ltd. vs. CIT 320 ITR 561 (SC) b. H. K. Buildcon Ltd. vs. Income Tax Officer (2010) 40 DTR 227 (Gujarat High Court)” 10. However, such plea of the assessee was not found acceptable by the Ld. AO and relying upon several judgments passed by different Judicial Forum the Ld. AO rejected the objection raised by the assessee. 11. Consequently notice under Section 143(2) dated 05.10.2012 followed by notice under Section 142(1) along with questionnaire was issued on the same date. The assessee was directed to show cause as to why the amount of cash payment of Rs.2,17,00,000/-should not be added to its income as unaccounted investment in the land as these transactions are not reflected in the books of accounts of the company. Considering various submissions made by the appellant the Ld. AO completed the assessment under Section ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 8 - 143(3) read with section 147 on 08.03.20 13 by making addition of Rs.3,12,96,000 /-with the following observation : “5.5.2 This document has been found and seized from the premises of CCCPL. This gives the details of payments by the doctors for hospital project up to 17/10/2007. As per this page cash of Rs. 1 lakh and Rs. 2 Lacs was received by CCCPL from Keyur Parikh on 1/10/2006 and 15/10/2006 respectively. Thereafter, certain payments are shown as made to. Savlas, Chavdas, Hare Krishna Developers and Shaligram Buildcon Private Limited. This means that Dr Keyur Parikh had issued the cheques in the name of the above mentioned parties and handed over the same to the company CCCPL. Further on 13/6/2007 cash of Rs. 24 Lacs and Rs. 60 lakh has been shown as received from Dr Keyur Parikh, In the books of accounts, Dr Keyur Parikh has shown loans and advances to Dr Paras Doshi of Rs. 14 Lacs and Rupal Doshi of Rs. 10 Lacs ( both junior doctors attached to Dr Keyur Parikh ). Similarly against the entry of Rs. 60 lakh, Dr Keyur Parikh has shown investment in the shares of Akaash Ceramics Private Limited of Rs. 60 Lacs. The amount of Rs. 24 Lacs and 60 Lacs are still shown as receivable by Dr Keyur Parikh from these parties viz, Dr Paras Doshi/ Rupal Doshi and Akaash Ceramics Private Limited respectively. In the seized document it is categorically written that cash has been received by CCCPL from Dr Keyur Parikh. Therefore, based on the seized material found from the premises of the company CCCPL, it can be concluded that in cases where amount is shown as received in cash from a particular Doctor, then, that amount is considered to have been paid in cash to the company CCCPL by the said doctor and the onus is on the doctor to prove the source of the same. In case cheque has been shown as received by CCCPL from the particular doctor, then the onus lies on the company to explain the source of such cash payment given for the purchase of land. 5.6 On the basis of the above premise it is seen that the have either paid cash doctors have paid cash or the cheque amount does not match with the payment shown by them 5.6.1. In the case of Dr. Keyur Parih a total amount of Rs. 552,96,000/- has been given out of which cash amount of Rs.1 lakh received on 1/10/2006, Rs. 2 lacs received on 15/10/2006, Rs. 24 lakh and Rs. 60 Lacs on 13/6/2007 by the company CCCPL. Similarly, the amount of Rs. 1 lakh received on 12/10/2007 and Rs. 45 Lacs received on 31/10/2007 by the company CCCPL from Dr Keyur Parikh in respect of these two amounts does not match with the cheques amount shown by Dr Keyur Parikh. Hence, in these cases, the cash payment has been considered in the case of doctors. In respect of the remaining amount of Rs.4,19,96,000 (Rs.552,96,000/- - 1,33,00,000 ), the same is considered as the unexplained investment of the company CCCPL. Out of the total payment of Rs. 4.19,96,000 the amounts of Rs. 312,96,000 are pertaining to assessment year 2007-08 as it is evident that the payments have been made in F.Y 2006-07 and Rs. 1,07,00,000/- pertains to assessment year 2008- 09. (Addition 3,12,96,000/-) In the case of Dr Milan Chag, the entries in the books of accounts is as under: ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 9 - Dr. Milan Chag 1/3/2007 2,500,000 Laljibhai Savla 4/11/2007 7,500,000 Shaligram buildcom P L 12/28/2007 12,50,000 Aakash Ceramics P.L. Sub Total 11,250,000 On verification, it was found that in the seized material the first two cheques of Rs. 25 Lacs and Rs. 75 Lacs are shown as issued in favour of Laljibhai Savla and Shaligram Buildcon Private Limited respectively. In the books of Dr. Milan Chag share application money of Akaash Ceramics Private Limited of Rs.13 Lacs as on 11/12/2007 is reflected whereas the company CCCPL has received cash of Rs. 12.50 Lacs on 28/12/2007 hence, the remaining amount of Rs. 1 crore is considered as unexplained investment by CCCPL. Further, since the amount of Rs. 25 lakh has been shown as paid on 3/1/2007, therefore, this amount has been considered as unexplained investment in the hands of CCCPL in assessment year 2007-08 and Rs. 75 Lacs has been considered as unexplained investment in assessment year 2008-09. (Addition Rs. 25,00,000/-) (ii) 5.6.3. In the case of Dr Anish. Chandarana the following amounts have been shown as received by CCCPL from him: Dr. Anish Chandarana 3/26/2007 1,500,000 750000 to CCC 17/3/07 4/13/2007 1,500,000 Shaligram Buildcom P L 5/1/2007 500,000 5/16/2007 750,000 10/15/2007 200,000 11/15/2007 225,000 Sub Total 4,675,000 In the books of accounts of Dr Anish Chandarana Rs.15 Lacs has been shown as purchase, of equity shares of company Shaligram Buildcon Private Limited on 16/4/2007. Besides this, loan of Rs. 750,000/- has been paid to CCCPL on 19/3/2007. Some loan has been shown by in favour of his HUF namely Anishbhai Chandarana HUF of Rs. 20 Lacs on 19/2/2007, Rs.50 Lacs on 26/2/2007, Rs. 15 Lacs on 19/3/2007 and Rs. 15 Lacs on 7/4/2007. Further loan of f 10 lakh is also shown on 29/3/20$$ Himanshu DhananL Only the amount of Rs.15 lakh is shown as paid to Shaligram Buildcon Private Limited for the purchase of equity shares tallies with the books of accounts of Dr Anish Chandarana. Thus, Rs. 15 lacs is added in the case of the company CCCPL in the assessment year 2007-08 as payment ahs been made on 19.07.2007. (Addition Rs. 15,00,000) (iii) (Total addition = Rs. 312,96,000/- + 25,00,000 + 15,00,000)” Apart from that addition of Rs.25,00,000/- and Rs.15,00,000/- with the following observation: “In the case of Dr Milan Chag, the entries in the books of accounts is as under: ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 10 - Dr. Milan Chag 1/3/2007 2,500,000 Laljibhai Savla 4/11/2007 7,500,000 Shaligram buildcom P L 12/28/2007 12,50,000 Aakash Ceramics P.L. Sub Total 11,250,000 On verification, it was found that in the seized material the first two cheques of Rs. 25 Lacs and Rs. 75 Lacs are shown as issued in favour of Laljibhai Savla and Shaligram Buildcon Private Limited respectively. In the books of Dr Milan Chag share application money of Akaash Ceramics Private Limited of Rs.13 Lacs as on 11/12/2007 is reflected whereas the company CCCPL has received cash of Rs. 12.50 Lacs on 28/12/2007, hence, the remaining amount of Rs. 1 crore is considered as unexplained investment by CCCPL. Further, since the amount of Rs. 25 lakh has been shown as paid on 3/1/2007, therefore, this amount has been considered as unexplained investment in the hands of CCCPL in assessment year 2007-08 and Rs. 75 Lacs has been considered as unexplained investment in assessment year 2008-09. (Addition 75,00,000/-) (ii) 5.6.3. In the case of Dr Urmil Shah, the following amounts are shown as received by CCCPL from him: Dr. Urmil Shah 4/24/2007 3,000,000 5/2/2007 500,000 10/14/2007 500,000 10/15/2007 250,000 1/23/2008 250.000 11/1/2007 175.000 Total 46,75,000 In the books of accounts of Dr. Urmil Shah the following amounts are shown as loans and advances/investment in shares: Sr Date Amount (in lacs) Description Paid to 1 24/04/07 30.00 Ch# 007 Kotak Bank, dt 31/03/07, Torrel Cosmetics Pvt Ltd. shown as investment in shares as on 31/8/2011 2 25/05/07 5.00 Ch# 015 Kotak Bank. dt 01/05/07, 4.50 Lac, Ch# 017 Kotak Bank dt 01/05/07 0.50 Lac U G Shah self withdraw Cash on Hand ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 11 - 3 14/10/07 5.00 Ch# 284 Citi Bank dt. 15/10/07,3.00 Lac Ch#286 Citi Bank dt. 15/10/07, 2.00 Lac Bharat Shah shown loan and advances as on 31/8/2011 Milan Shah shown loan and advances as on 31/8/2011 4 15/10/07 2.50 No Direct nexus of Payment 5 01/11/07 1.75 No Direct nexus of Payment 6 23/01/200 8 2.50 No Direct nexus of Payment Total 46.75 It is seen that cheque of Rs. 30 Lacs dated 24/4/2007 issued in the name of the TORREL Cosmetics Private Limited and of Rs. 5 Lacs dated 14/10/2007 in the names of Bharat Shah (Rs. 3 Lacs) and Milan Shah (Rs. 2 Lacs), hence the amount of Rs. 35 Lacs is taxed in the hands of the company CCCPL . As per the direction of the Ld. CIT(A), a letter was written to CCCPL to confirm whether the amount as mentioned above has been received by them. However, the assessee company has not admitted receipt of these cheques. However, from the bank account of Shri Urmil G Shah, it is evident that the cheque numbers as mentioned above has been issued. Further, as per entries in seized paper named as "Hosp. Det. - Party pay details" the amount of Rs. 30,00,000/-, Rs.500,000 and Rs.250,000/- has been shown as paid on 24/4/2007, 14/10/2007 and 15/10/2007, similarly as per the details of the loans advance and investment as per the books of accounts of Dr. Urmil G. Shah the loans and advances has been made on the same date. Analyzing both the entries together, it is evident that a total of Rs. 42,50,000/- was received from Dr. Urmil G. Shah by CCCPL out of which cheque component was Rs. 35 Lacs in the name of other entities. Hence, considering the fact that cheque has been issued by Dr. Urmil Shah and cash has been paid by the assessee company, it can be construed that the cash of ^.35,00,000 has been paid by the assessee company . Hence, this amount has been considered as unexplained investment in the hands of CCCPL in assessment year 2008-09. (Addition Rs. 35,00,000/-) (iii) Total addition = 1,07,00,000/-+75,00,000+35,00,000)” 12. The said addition was challenged before the First Appellate Authority by the Respondent herein whereupon the same was deleted by the Ld. CIT(A). Hence, the instant appeal before us. 13. At the time of hearing of the matter the Revenue supported the order passed by the Ld. AO. It was argued by the Ld. DR that cash payment in purchasing the property in question has been admitted by other doctors namely Dr. Anil Jain, Dr. Chirag B Meta, Dr. Naman Shastri, Dr. Vishal M ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 12 - Gupta , Dr. Bharat R Teivedi and Dr. Srinivas Mallya in their statement recorded on 13.04.2010 under Section 131 of the Act. All the doctors mainly the surgeons had admitted payment of cash and cheque in the ratio of 85:15 for the purchase of land. In fact the crux of the submission made by the Ld. DR is this that the addition made by the Ld. AO since on the basis of the statement made by this doctors admitting cash payment for the purchase of the land in question the deletion of addition made by the Ld. CIT(A) is totally arbitrary, bad and liable to be set aside. He, therefore, relies upon the order passed by the Ld. AO. 14. In reply the Ld. Senior Counsel appearing for the assessee submitted before us that the issue of on money has already been decided in the appeal preferred by the revenue by the Coordinate Bench in IT(SS)A No. 604/AHD/2011 in the case of Dr Keyur Parikh wherein it was specifically clarified that no element of cash to the outgoing doctors was found. Neither it is being conclusively established by the department that there is an existence of cash component or unaccounted investment towards purchase of the property as decided by the Coordinate Bench in the case of Dr. Keyur Parikh. On this aspect the Ld. A.R. drew our attention to Page 36 of the order passed by the Coordinate Bench. It was further argued by the Ld. Senior Counsel appearing for the assessee that so far as the statement of the doctors admitting cash involvement in such transaction is concerned it was already recorded by the Coordinate Bench that Dr Jain has kept on changing the statement and therefore as far as his statement is concerned, those are not said to be very dependable; a detailed discussion took place in the order passed by the Coordinate Bench as mentioned above in this respect which ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 13 - has been relied by the Ld. AR. It was further argued that all these aspect were duly taken care of by the Ld. CIT(A) while deleting addition made by the Ld. AO in the case of the Doctors. In that view of the matter the appeal preferred by the Revenue against the assessee herein has no basis and, thus, liable to be dismissed as argued by the Ld. AR. 15. We have heard the rival submissions made by the respective parties, and we have also perused the relevant materials available on record. 16. It appears that while deleting the addition made by the Ld. AO the Ld. CIT(A) observed as follows: “6. AO also made addition of Rs. 5,06,53,799/- with the following observation: 6.3. The assessee company has furnished comments of Dr. Keyur Parikh, promoter of the company on the statements recorded during the course of cross examination. The comments of Dr. Keyur Parikh on the cross-examination are reproduced as under: "Comments on statements recorded in cross examination of surgeons On page no 26 of the assessment order in para 4.5 the learned assessing officer has relied upon the statements of the doctors of the surgeon group recorded u/s 131 of the Act during the course of assessment proceedings. During the course of cross examination of Dr. Vishal M Gupta and Dr. Bharat R Trivedi it is found that the statement recorded u/s 131 and relied upon by the assessing officer are not recorded on "oath but questionnaire was issued to the relevant persons and the replies to same were prepared by them after discussion amongst themselves and then it was submitted to the Income tax department. The relevant questions and answers in the statements recorded during cross examination are reproduced hereunder: Dr. Vishal M Gupta Que. No 23 : You are shown your statement dated 16/04/2010 and in particular question no 20 and its answer. Where you given the questions asked in the said statement before Dr. Anil Jain gave his statement or thereafter Rs Ans: I am not aware of the exact time of receiving this questionnaire. ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 14 - Que. No 24: Do you remember whether Dr. Anil Jain had given answers to his questionnaire when you received your questionnaire Rs Ans: To the best of my knowledge, our group received this questionnaire almost the same time and I replied to it after about a fortnight after I received the questionnaire. We all discussed the matter amongst ourselves and prepared the replies and submitted to the department almost at the same time. Que: 25 You have given this statement dated 16/04/2010 to buy piece of mind and to avoid prolonged litigation with the income tax department and also to adjust and legalize your unaccounted income which you may have generated after you took exit from CCCPLRs Ans: I would like state that during the search I confessed that cash was paid for the hospital project. Subsequent to this, we had a meeting where decision to fight the case was taken between the members of CCCPL and I retracted to the statement I made during the search. However, after realizing the amount of material seized from the heart Care Clinic, I felt it was a futile exercise to fight against the income Tax Department, so I declared the cash paid by me towards the hospital project, arranged from undisclosed sources and paid the tax with interest and penalty on the same to avoid further litigation with the income tax Department Que: 26 Do you remember when the questions which you have replied by statement dated 13/04/2010 were given to you by the Income tax Department Rs Ans: No I do not remember the exact date. Que.:26 Can you tell us within how many days from receiving this questions, you must have to replied the same Rs Ans.: No I do not remember the exact date. Que: 27 Can you tell us could it be more then month or less then one month Rs Ans: No. Que.:28 Did you personally go and deliver the typed copy to the department or did you deliver it through someone else Rs Ans: I think it was submitted by all of us, i.e., me, Chirag Mehta, and Naman Shastri. I had given my typed answer sheet to Dr. Chirag Mehta as he used to organize. Thus the statements on which the assessing officer has relied can not be considered as statement recorded on oath as per provisions of section 131 ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 15 - of the IT. Act, 1961. Further the statements recorded in April 2010 do not contain the information like place and time of recording of statement, name and designation of the officer who has administered oath. On the contrary at the time of search no body has given such type of replies in the statements recorded during the course of search. At the time of filing returns of income in response to notice u/s 153A surgeons group had declared the income and paid taxes thereon. Surgeons had declared income in their return of income as income from undisclosed sources. From the statements recorded during cross examination it is established that they had no undisclosed income as all the doctors have confirmed that they are receiving professional income by cheques mostly and in last ten years prior to search they had never disclosed such income. All the doctors have confirmed that such disclosure was made for purchase of peace of mind and to avoid litigation with Income Tax Department only. They found it difficult to explain and contest the documents found in search before Income tax authority. Therefore, the findings of those statements can not be made applicable to the assessee as final evidence for making addition. 3 In the statement recorded by the department during the course of assessment proceedings of surgeons they hi.ve confirmed payment of cash components for purchase of land by CCCPL but no body has confirmed that the assessee has also paid cash for purchase of land by CCCPL. In the returns of income filed by surgeons the cash paid by them for purchase of land by CCCPL had been declared and taxes had been paid. Therefore, as per our opinion there was no need to record statement as, In the statement recorded the concerned officer has not tried to find out the source of undisclosed income and the correct quantum of the undisclosed income. The cash paid for purchase of land by CCPL only has been accepted as undisclosed income. The person who is habituated of not declaring correct income in the return of income might have more undisclosed income than he declared. • The modus operand! of earning undisclosed income has not been find out. • There is no finding about the other persons who had also contributed cash for purchase of land by CCCPL. • The concerned officer had satisfied with the confirmation of payment of cash by the respective doctor and receipt of cash on exit • There is no finding that who has returned the cash. From the above submission it is argued that the purpose of recording of so called statement appears to trap the other doctors who are not accepting the cash payment in purchase of land by CCCPL. 4 No body has paid cash directly to the assessee as well as no body has received cash directly from the assessee. All the cash transactions are taken place with the third person. ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 16 - 5 None of the doctors know the land owners. However, Dr Bharat R Trivedi has signed the sale deed as witness for the signatory as seller of land. 6 None of the doctors have never seen or met land owners 7 None of the doctors are present when the payments are made to land owners. 8 All the doctors had contributed cash payments towards purchase of land by CCCPL. 9 No receipt has been collected for payment of cash to coordinator of the assessee. 10 No receipt has been issued for cash received from coordinator of the assessee. 11 All the doctors have confirmed the MOU with CCCPL but do not know the details of MOU." 6.4. The contention of the assessee has been considered but the same is not acceptable as it can be seen from the questions and answers recorded during the course of examination and cross examination of the six surgeon doctors, all of them have admitted that they have paid cash over and above the cheque amount for the purchase of land. They have also confirmed that at the time of their separation from CCCPL, they received back the cheque as well as the cash amount paid by them. In the cross examination they have mentioned the name of Mr Nihir Shah, an employee of CCCPL (manager) to whom they have paid cash or received cash. Therefore, it is evident that the cash was paid to the outgoing surgeon doctors, by the company CCCPL. Further, it is seen that new doctors have been inducted to whom 87,000 shares were issued, further 806838 shares were issued to Dr. Keyur Parikh . Thus, a total new shares of 893838 had been issued to Shri Keyur Parikh, Shri P.S.Iyengar, Gunvant Patel, Shri Joyal Shah and Dr. Mihir Tanna (as per loose paper file page 79 appendix -1). On the same day, i.e. 31.03.2008 shares were also issued to Dr. Ashit Jain and Shri Kirti Patel at a premium of Rs. S6.67/- per share, however no premium was charged from Shri Keyur Parikh , Shri P.S Iyengar, Shri Gunvant Patel, Shri Joyal Shah and Dr. Mihir Tanna. In such a scenario, the cash equivalent to the value of premium payable on the shares issued to Shri Keyur Parikh, Shri P.S.Iyengar, Shri Gunvant Patel, Shri Joyal Shah and Dr. Mihir Tanna has been utilized to refund the cash contribution made by the doctors of the surgeon group. Since the total number of shares issued is 893838, hence the cash equivalent Rs. 50653799 (893838 x Rs.56.67/- has been paid to the doctors of the surgeon group. The surgeon group has also admitted that cash component paid by them has been received back. Hence, considering the statements recorded of the outgoing surgeon doctors and the notings on the seized documents, an amount of f. 5,06,53,799 is considered to have been paid in cash by the assessee company. Since the assessee has furnished inaccurate particulars of its income, penalty proceedings u/s.271AAA of the Act are initiated separately. 7. Shri R.G. Shah, CA, appeared on behalf of appellant and intimated that Hon'ble ITAT, ‘B’ Bench, Ahmedabad, has passed order dtd. 18/10/2013 in the case of Dr. Keyur Parikh and others. Copy of order of Hon'ble ITAT in IT(ss)A No. 604,610&601/Ahd/2011 was filed. From the perusal of this order it is found that the first ground of the revenue in the case of Dr. Keyur Parikh was as follows: ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 17 - "The Ld. CIT(A) has erred in law and on facts and circumstances of the case by providing relief of Rs. 4,22,50,000/-to the assessee out of an addition of Rs.5,52,50,000/- on the issue of unaccounted investment for the purchase of land by holding that the said amount should be taxed in the hands of the company M/s. CCCPL. " 8. This ground has been decided by Hon'ble ITAT with the following observation: "Next point. It is a universal law that the 'Suspicion howsoever strong cannot take the place of evidence'. At best, it can only lead to investigation. No person can be punished merely on the basis of a doubt, but side by side, must not be spared on the basis of unfavorable evidence. So the procedure is that a mistrust leads to investigation and an investigation leads to collection of evidence. There are several decisions in the past pronounced by the Hon'ble Apex Court wherein a general rule is framed that although the ITO is not fettered by the technical rule of evidence, but ITO is not entitled to make a pure guess, however, required to make an assessment without reference to any evidence. There must be something more than bare suspicion. In the present appeal a fundamental question is that whether there was sufficient clinching evidence unearthed by the Revenue Department consequent upon the search to make a firm belief that in fact there was the existence of unaccounted investment in the purchase of land. Side by side a second question therefore arises that whether the impugned addition was in the nature of suspicion only. We have carefully examined both these questions and then on critical analysis of the evidences and under the totality of the circumstances, we hereby hold that those were not even the incriminating material but simply computer generated projection sheets, therefore, hard to say, synonymous to clinching material evidence depicting cash transaction, hence erroneously suspected by the Revenue Department. We hereby hold that there was no evidence in possession of the Revenue Department to hold that the assessee had in fact made an unaccounted investment towards the purchase of the property. " 9. In the case of Dr. Keyur Parikh's appeal, the grounds of assessee and the decision of Hon'ble ITAT is reproduced below from the above mentioned order of Hon'ble ITAT. "B. IT(ss)A No. 604/Ahd/2011,A.Y. 2008-09 (Assessee Dr. Keyur Parikh's Appeal), 13. Ground Nos. 1 and 2 of the Assessee is reproduced below: "1. The learned Commissioner (Appeal) failed to understand the facts and circumstances of the case and the provisions of law, 2. The learned Commissioner (Appeal) erred in fact and in law in not accepting the contention of the appellant that the assessing officer has relied, upon dumb documents and computer hard disk found from the office ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 18 - premises of the company namely CCCPL and residence of the doctors during the search. 14. Learned AR has stated that ground no.I is general in nature and ground no.2 relates to the main ground of the Revenue. In the light of this submission, these grounds being general in nature and not raising any particular legal issue, therefore, dismissed being redundant. 15. Ground Nos.3,4 & 5 are reproduced below: "3. The learned Commissioner (Appeal) erred in fact and in law in confirming the addition of Rs.1,30,00,000/- as unaccounted income utilized in acquiring the land by the company CCCPL 4. The learned Commissioner (Appeal) erred in fact and in law in directing the addition of Rs.3,00,000/- as unaccounted income in assessment year 2007-08 utilized in acquiring the land by the company CCCPL 5.(A) The learned Commissioner (Appeal) erred In fact and In law in directing the addition of Rs. 1,Q7,OOQ/- in the hands of company CCCPL as unaccounted income in assessment year 2007-08 utilized in acquiring the land. (B) The learned Commissioner (Appeal) erred in fact and in law in directing the addition of Rs 3,15,00,000/- in the hands of company CCCPL as unaccounted income in assessment year 2008-09 utilized in acquiring the land, (c) The learned Commissioner (Appeal) erred in fact and in law in directing the addition of Rs.4,57,23,509/- in the hands of company CCCPL as unaccounted income utilized in paying back surgeons cash contribution at the time of their exit from the Hospital project." 16. All these grounds have been raised by this assessee because of the reason that the learned CIT(A) has given direction to assess the amounts in the hands of the company CCCPL either in the year under consideration, i.e., A.Y. 2008-09 or in the A.Y. 2007-08. In fact these additions have been suggested primarily because of the reason that the learned CIT(A) has taken a view that there was payment in cash for the purchase of the property. However, he has held that the same was required to be taxed partly in the year 2007-08 and partly in the year 2008-09. Learned AR has raised the legal issue that the learned CIT(A) was not empowered to direct the AO to assess the amount in the case of a person who has so far not been assessed by the AO. Moreover, the appeal of the said other person i.e., CCCPL was not pending before the learned CIT(A). According to learned AR, learned CIT(A) has given direction beyond his jurisdiction. At the moment, we are not answering the question of the jurisdiction of learned CIT(A) because, otherwise, on merits we have taken a view that land was purchased on the amount as per the registered sale deed and there was no payment over and ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 19 - above the amount so declared. Once, this view has been taken, therefore, the direction given by learned CIT(A), as challenged in these grounds, are hereby reversed. On merits these grounds are hereby allowed." 10. In the case of Dr. Milan Chag, the ground of Revenue and the decision of Hon'ble ITAT is reproduced below from the above mentioned order of Hon'ble ITAT. "26. The ground of the Revenue is reproduced below: "The ld. CIT(A) has erred in law and on facts and circumstances of the case by providing relief of Rs.75,00,000/- to the assessee on this issue of unexplained investment for the purchase of land." 27. The explanation of the assessee in respect of the payment made to CCCPL was as under: Dr. Milan 1/3/2007 25,00,00 Laljibhai Savla 4/11/2007 75,00,00 Shaligram buildcon 12/28/2007 12,50,00 Aakash Ceramics Sub Total 1,12,50,0 28. The finding was given that the cheques of Rs.25 lacs and Rs. 75 lacs were found recorded as per the seized material. There was another fact that the appellant hod shown share application money of Aakash Ceramic Pvt. Ltd. of Rs.13 lacs dated 11.12.2007. Therefore, the assessee has tried to explain the source of the deposit. Learned CIT(A) has examined those facts and thereupon arrived at the conclusion as under: "Further, since the amount of Rs.25 lakh has been shown as paid on 3.1.2007, therefore, this amount has to be considered in the hands of CCCPL in assessment year 2007-08. In short, the addition of Rs. 12.50 lacs is sustained in the hands of the appellant Dr. Milan Chug in assessment year 2008-09 and the balance amount of Rs.100 lacs is directed to be assessed in the hands of the company CCCPL in two different assessment years i.e. Rs.25 Lacs in assessment year 2007-08 and Rs. 75 Lacs in assessment year 2008-09." 29. A view has already been taken that in the absence of a direct evidence of cash involvement the impugned addition did not survive. In consequence thereof the relief given by learned CIT(A) pertaining to the year under consideration is hereby confirmed. The ground of the Revenue is, therefore, dismissed. 10. In the case of Dr. Urmil Shah, the ground of Revenue and the decision of Hon'ble IT.AT is reproduced below : ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 20 - I. IT(ss)A No. 602/Ahd/2011, A.Y. 2008-09 (Revenue's Appeal) (Dr. Urmil G. Shah) 40. This appeal of the Revenue is arising from the consolidated order of learned CIT(A)-III, Ahmedabad, dated 27.09.2011 and the only ground raised is as follows: "The Ld. CIT(A) has erred in low and on facts and circumstances of the case by providing relief of Rs.35,00,000/- to the assessee on the issue of unexplained investment for the purchase of land by holding that the said amount should be taxed in the hands of the company M/s. CCCPL " 41. In this case, the total amount stated to be invested in CCCPL was as under: Dr. Urmil Shah 4/24/2007 30,00,000 5/2/2007 5,00,000 10/14/2007 5,00,000 10/15/2007 2,50,000 1/23/2008 2,50,000 11/1/2007 1,75,000 Sub Total 46,75,000 41.1 During the proceedings, the assessee has explained the source in respect of the major investment of Rs.30 lacs and also in respect of the two amounts of Rs.5 lacs by stating the cheque number and the parties from whom those amounts were recovered. Learned CIT(A) has given a finding that upto that extent the explanation of the assessee was correct. However, he has thereafter held that Rs.35 lacs was to be taxed in the hands of the company CCCPL. It appears that there was contradiction in the findings of learned CIT(A). The relevant portion from the order of learned CIT(A) is extracted below: "In short the contention of the AR is that the cheque of Rs.30 Lacs dated 24/4/2007 in the name of the TORREL Cosmetics Private Limited and of Rs.5 Lacs dated 14/10/2007 in the names of Bharat Shah (Rs.3 lacs) and Milan Shah (Rs.2 lacs) was given by the appellant Doctor to CCCPL for further action at their end. This contention of the appellant appears to be correct as the dates and the amount exactly tally with the seized material. The AO will verify this point. In case CCCPL admits that the cheques are paid by the appellant Doctor to the officials of CCCPL, then to that extent the amounts cannot be taxed in the hand of the appellant Doctor but in the hands of CCCPL as held by me in other cases. In that case Rs.35 lacs will have to be taxed in the hands of the company CCCPL and the balance amount of ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 21 - Rs.11.75 lacs in the hands of the appellant Doctor. Otherwise, the whole amount ofRs.46.75 lacs is to be taxed in the hands of the appellant Doctor. 42. We are not convinced the manner in which learned CIT(A) has held that the balance amount of Rs.11.75 lacs was to be taxed in the hands of the assessee. As far as cash investment towards purchase of property is concerned a view has already been taken which is to be applied in the present case as well. Resultantly, the ground of the Revenue has no force. Hence dismissed. 43. In the result, appeal of the Revenue is dismissed.” 17. It appears from the records that the order passed by the Ld. CIT(A)- III, Ahmedabad, dated 27.09.2011 cross appeals respectively filed by the assessee and the Revenue before us in IT(SS)A No. 604/Ahd/2011, IT(SS)A No.610/Ahd/2011, IT(SS)A No.601/Ahd/2011, IT(SS)A No.674/Ahd/2011, IT(SS)A No.603/Ahd/2011, IT(SS)A No.639/Ahd/2011, IT(SS)A No.612/Ahd/2011, C.O. No.29/Ahd/2012, IT(SS)A No.602/Ahd/2011, IT(SS)A No.640/Ahd/2011, IT(SS)A No.634/Ahd/2011, IT(SS)A No.652/Ahd/2011, IT(SS)A No.611/Ahd/2011, C.O. No.28/Ahd/2012 for A.Y. 2008-09. The ground before the Ld. CIT(A) was that the AO had erred in relying upon the “Dumb Documents” particularly the hard disk found from the computer resulting in addition of Rs. 5,52,50,000/- as “unaccounted income” utilized in acquiring 9,75,000/- shares of CCCPL at Rs. 56.67 per shares. In respect of the contention of “Dumb Documents” the Ld. CIT(A) has given the order in favour of the assessee with the following manner: ““In response to this letter, the stamp duty valuation cell has computed the stamp duty at Rs.12,45,400/- on the total value of land of Rs.254,16,200/-. Accordingly CCCPL paid Rs.501,440 towards Stamp duty on 6.3.2007 by ch. no. 349370 and 336438 of Rs.250,720 each of ICICI Bank A/c No.029505000156. this clearly shows that CCCPL had agreed to purchase land before 5.3.2007. It is to be mentioned that the stamp duty valuation cellis interested in stamp duty collection on transfer of the land on the basis of higher of Jantri rate or the sale rate. In the absence of higher sale rate, for the purpose of stamp duty, valuation is done by them on the basis of ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 22 - Jantri rate which has been shown at Rs.254,16,200 for the said property which was brought by the CCCPL as on July 2007. Therefore, it is wrong on the part of the AR to contend that the market rate of the property was Rs.254,16,200. In fact, it was the jantri rate as decided by the stamp duty valuation cell for the purpose of collection of stamp duty on transfer of the immovable property.”” 18. In that particular appeal before the Tribunal the Ld. DR placed reliance on the statement of Dr. Anil Jain who had parted ways with the company but at the time when the project was started, his services were available as he was also one of the investor. His statement cannot be ruled out because of the statement was made by that person who had been a witness to the transaction as argued by the Ld. D.R. therein similar to the submission made by the Ld. DR before us. In fact, after careful consideration of the statement of Dr. Anil Jain and the cross-examination made by the assessee therein the Coordinate Bench came to a finding that Dr. Anil Jain has kept on changing his statement and therefore, as far as his statements are concerned, those are not said to be very dependable as it is appearing at Page 29 of the order passed by the Coordinate Bench. The relevant extract of the said observation is made hereinbelow: “8.5 Next point. We have also examined the statements of various doctors which were used by the Revenue Department against the assessee. A statement of Dr. Anil R. Jain was recorded on 23rd of September, 2008 u/s. 132(4) of IT Act. In that statement, there was no such acceptance of involvement of cash transaction. Question No.7, 8 &9 and Answer No.7, 8 & 9 of the said statement were the direct questions but in those answers there was categorical denial of any investment other than the share capital. Dr. Anil Jain has stated that he had opted out from the project and the amount he has invested was refunded as his share application money. Later on an another statement was recorded by the ITO and in that statement Dr. Anil Jain had taken a turtle-turn and alleged the cash component. If we compare a statement u/s.132(4) with the statement made u/s.131 of IT Act then the law is very clear that a statement u/s132(4) has evidentiary value and not the statement made u/s.131 of IT Act. A statement recorded u/s. 132(4) is a statement on oath. Therefore, a statement recorded on oath can be used as an evidence. As against that a statement recorded u/s.131 is not a statement on oath, therefore, it cannot be used as an evidence hence, such a statement has no evidentiary value. Rather in this case it was made in the form of a questionnaire handed over to those out-going doctors, who have not answered the questions under oath. This is one of the reason that we are hesitant to ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 23 - uphold the revenue’s reliance on a statement made before the AO. Moreover, Dr. Anil Jain has kept on changing his statement therefore as far as his statements are concerned, those are not said to be very dependable. In this connection, it is also worth to mention that a third party statement should not be made the basis of addition for income tax purpose. The Tax proceedings should be based upon certain direct evidence so that there must not be any miscarriage of justice.” 19. So far as the cash component in making payment towards the consideration of the property for consideration of the hospital is concerned the Coordinate Bench was pleased to observe as follows: “8.10 The Revenue Department has held that the 15% payment was in cheque and 85% payment was in cash which were mentioned on number of occasion as per the data sheets of the computer. Prima facie, those sheets have demonstrated that the contribution of the doctors was to be made in the said proportion. The explanation of the assessee in general is that percentage of contribution was fixed in the light of the progress of the construction, keeping in mind the completion of the project. The assessee has also explained the 15% of the total project was in fact allocated towards the land which was required to be arranged by the doctors at the time of the joining of the project and rest 85% was allocated towards the cost of the project. There were several sheets showing various permutation and combination about the investments made by the doctors but all that which was recorded in the computer have also been systematically recorded in the respective books of accounts. Rather, the bank accounts in support of the investment have also been placed during assessment proceedings. On those bank transactions and the transactions recorded in the books the Revenue Department has not casted any doubt. Those were found to be true and correct as there was no fallacy in the transaction happened to be made through bank. 8.11 Learned AR has raised an argument that no corresponding legal action so far was taken against the sellers of the property. According to him, Revenue Department should have charged the capital gain on the alleged cash component from those companies who have sold the property. By not taking any action the Revenue Department had weakened the allegation. We have asked this question from the Revenue Department but failed to get any satisfactory reply. 8.12 From the side of assessee few case laws have been cited in support of the contention that learned CIT(A) went wrong in directing the assessment to be in the hands of the assessee company. In the case of CIT Vs. Krishi Udpadan Mandi Samiti, 336 ITR 77 (Ald), it was held that there was no material with CIT(A) to direct the receipts to be taxed in the hand of the Mandi Parishad. It was held that such directions were without jurisdictions. Likewise in the case of Mrs. Banoo E. Cawasji, 10 Taxman 97 (MP) it was held that CIT(A) was not competent to issue direction to cancel an assessment made in the case of the deceased. An another order has also been cited, namely, Sun Metal Factory (I) (P.) Ltd., 124 ITD 14 (Chennai). In this judgment, a search was on the assessee and on the managing director. On appeal ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 24 - CIT(A) had held that the addition made in the block assessment did not emanate from the evidence found at the time of search hence the addition was not sustained. However, learned CIT(A) has directed to issue notice u/s 148 to bring to tax the bogus advances. It was held that the learned CIT(A) has failed to record a categorical finding justifying the direction given to the AO when the AO had not chosen for reopening of the assessment then the direction given by learned CIT(A) were to be set aside. In the light of these decisions, learned AR has vehemently pleaded that the direction made by learned CIT(A) to assess the cash component in the hands of the company was beyond his jurisdiction therefore required to be over ruled. Considering the circumstances under which such directions were given, it is hereby held, not valid in the eyes of law. 8.13 Next point. It is a universal law that the ‘Suspicion howsoever strong cannot take the place of evidence’. At best, it can only lead to investigation. No person can be punished merely on the basis of a doubt, but side by side, must not be spared on the basis of unfavorable evidence. So the procedure is that a mistrust leads to investigation and an investigation leads to collection of evidence. There are several decisions in the past pronounced by the Hon’ble Apex Court wherein a general rule is framed that although the ITO is not fettered by the technical rule of evidence, but ITO is not entitled to make a pure guess, however, required to make an assessment without reference to any evidence. There must be something more than bare suspicion. In the present appeal a fundamental question is that whether there was sufficient clinching evidence unearthed by the Revenue Department consequent upon the search to make a firm belief that in fact there was the existence of unaccounted investment in the purchase of land. Side by side a second question therefore arises that whether the impugned addition was in the nature of suspicion only. We have carefully examined both these questions and then on critical analysis of the evidences and under the totality of the circumstances, we hereby hold that those were not even the incriminating material but simply computer generated projection sheets, therefore, hard to say, synonymous to clinching material evidence depicting cash transaction, hence erroneously suspected by the Revenue Department. We hereby hold that there was no evidence in possession of the Revenue Department to hold that the assessee had in fact made an unaccounted investment towards the purchase of the property.” ............ “12. With this background, we have heard both the sides. As far as the issue of the existence of cash component in the purchase of the land is concerned, we have already taken a view that it was not conclusively established by the Revenue Department. In addition to the discussion made hereinabove on this issue, again we have noted that while deciding this ground learned CIT(A) has reiterated that the AO had presumed that some of the doctors have contributed cash for the allotment of the shares. This is the point which has been emphasized and vehemently objected by the assessee that the entire proceedings in respect of the involvement of cash towards purchase of property was based upon the presumption made by the AO. Even the learned CIT(A) has opined that, “even if it is presumed that the cash was paid back to the outgoing surgeons, the same was paid by the company CCCPL and not by Keyur Parikh in his individual capacity”. Undisputedly it was the company who had allotted the shares to Dr. Keyur Parikh. Therefore, the Revenue Officers were not ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 25 - sure whether the cash was actually paid back to the outgoing doctors by CCCPL or by Dr Parikh. In the absence of any concrete evidence, it was not justifiable for the Revenue Officers to tax the impugned amount in the hands of the assesseee. Learned CIT(A) has rather confused the issue. If he is of the view that it was to be presumed that cash was paid back to the outgoing doctors then why at all merely on suspicion he has directed to assess the same in the hands of the company CCCPL. Skepticism must not lead to inflict punishment. Rather in a situation when CIT(A) had the uncertainty then judicious approach would be that he should have justifiably deleted the addition on his own, instead of directing the AO to examine the facts and tax in the hands of the company CCCPL. It is worth to mention that as on date nothing is on record to see whether any consequential action was taken in the case of CCCPL. In a situation when we have already taken a view that there was no element of on money in the purchase of the property in question then in consequence thereof, there was no element of payment of cash to the outgoing doctors. We, therefore, affirm the findings of the learned CIT(A) to the extent that the amount in question is not to be taxed in the hands of doctor Keyur Parikh. This ground of the Revenue is, therefore, dismissed. In the result, the appeal of the Revenue is hereby dismissed.” While dismissing the appeal preferred by the Revenue against the order passed by the Ld. CIT(A) in Doctor’s case the Coordinate Bench has already formed an opinion that no element of on-money of the purchase of the property in question is present and therefore, in consequence thereof there was no element of payment of cash to the outgoing Doctors. Finally on that basis the stand taken by the Ld. CIT(A) to the extent that the amount in question is not to be taxed in the hands of Dr. Keyur Parikh & ors. has been confirmed by the Coordinate Bench. 20. It is relevant to mention that appeals have been preferred by the Revenue against the order dated 18.10.2013 passed by the Hon’ble Tribunal in the matter of Dr. Keyur Parikh and ors. in IT(SS)A No. 604/Ahd/2011 alongwith the appeals preferred by other different Doctors and the appeals preferred by Revenue as mentioned in Paragraph 19 hereinabove which was initially admitted by the Hon’ble High Court by and under its order dated 15.10.2014. However, the entire set of appeals have been dismissed on 04.09.2018 since all were withdrawn by the Revenue due to tax effect ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 26 - below the minimum threshold limit provided by the CBDT in its Circular dated 11.07.2018 enabling the Department to prefer and maintain appeals before the High Court. Copy of both the orders passed by the Hon’ble High Court were duly been filed before us by the respective parties. Dismissal of this order dated 04.09.2018 passed by the Hon’ble Gujarat High Court R/Tax Appeal No. 26 of 2014 and ors. confirms the fact of the order dated 18.10.2013 passed by the Coordinate Bench attaining finality. As we have already discussed on the observation made by the Coordinate Bench on the identical issue involved in this matter relation to the addition on the ground of unaccounted investment for the purchase of land whereby and whereunder it has been repeatedly hold that there was no evidence found in the possession of Revenue to hold that assessee had in fact made unaccounted investment towards the purchase of the property or was there any element of payment of cash to the outgoing Doctors, we at this stage find no reason to deviate from such stand taken by the Coordinate Bench in holding otherwise. We note that since the issue has already been decided there is no basis of agitating the same issue repeatedly by the Revenue in repeated litigation. We, therefore, find no ambiguity in the order passed by the Ld. CIT(A) in deleting the addition passed by the Revenue in view of the order passed by the Coordinate Bench in holding no unaccounted investment found towards purchase of the property in question. We, therefore, upheld the same. The Revenue’s appeal is, thus, found to be devoid of any merit and hence dismissed. ITA No.305 /Ahd/2014 & C.O. No. 132/A/14 & ITA No. 306/Ahd/2014 & CO No.133/Ahd/2014 Asst. Years –2007-08 & 2008-09 - 27 - ITA No. 306/Ahd/2014 (A.Y. 2008-09):- 21. The identical issue involved in the case has already been dealt with by us in ITA No. 305/Ahd/2014 for A.Y. 2007-08 and in the absence of any changed circumstances the same shall apply mutatis mutandis. Hence, the appeal preferred by the Revenue is dismissed. C.O. Nos. 132&133/Ahd/2014 (A.Y. 2007-08 & 2008-09):- 22. So far as assessee’s Cross Objections are concerned, the same is merely in support of the order of the Ld. CIT(A), which we upheld as per the observations and finding recorded by us in the foregoing paragraphs. Hence, both the Cross Objections of the assessee are dismissed for want of prosecution. 23. In the combined results, the appeals preferred by the Revenue are dismissed and Cross Objections preferred by the assessee are also dismissed. This Order pronounced in Open Court on 15/07/2022 Sd/- Sd/- (DR. ARJUN LAL SAINI) (Ms. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 15/07/2022 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad