The ACIT, C.C.-1(2), Ahmedabad V. Shri Amrish R.Patel, Ahmedabad

ITA 3629/AHD/2007

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8894 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-09-2009
• Assessment Year: 1999-2000
• Appeal Filed On: 06-09-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVIND SINGHAL
• Assessee Lawyers: GAURAV NAHATA
• Keywords: Unexplained investment; Income from undisclosed sources; Document seized; Documents seized; Set aside
• Section: 143(3); 251; 131; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI T. K. SHARMA, JM AND D. C. AGARWAL, AM) ITA NO.3629 TO 3634/AHD/2007 Y.: 1999-00, 2000-01, 2001-02, 2003-04, 2004-05 AND 2005-06. THE A.C. I. T., CC- 1 (2), ROOM NO. 305, 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD VS AMRISH R. PATEL, 53, NIRANT PARK SOCIETY, OPP. SUN-N-STEP CLUB, THALTEJ, AHMEDABAD PA NO. AFUPP 5496A (APPELLANT) (RESPONDENT) APPELLANT BY SHRI GOVIND SINGHAL, DR RESPONDENT BY SHRI GAURAV NAHATA, AR O R D E R PER T. K. SHARMA: ALL THESE SIX APPEALS BY THE REVENUE ARE AGAINST THE ORDER OF THE CIT(A)-I, AHMEDABAD DATED 21-06-2007 RELATING TO THE ASSESSMENT YEARS 1999-00, 2000-01, 2001-02, 2003-04, 2004-05 AND 2005-06 RESPECTIVELY. ALL THESE APPEALS WERE HE ARD ON THE SAME DAY AND ARGUED BY THE LEARNED REPRESENTATIVES. THEREFOR E, THEY ARE DECIDED BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FACTS IN BRIEF ARE THAT PROCEEDINGS U/S132(4 ) OF THE IT ACT WERE CARRIED OUT ON VIKASH A SHAH ON 9-2-2005AND VARIOUS DOCUMENTS, BOOKS OF ACCOUNT, VARIOUS ARTICLES ETC. WERE FOUND AND SE IZED FROM THE VEHICLE GJ I HF 251 (TOYOTA CAR). ON THE BASIS OF SEIZED AN NEXURE A-1 TO A- 271 THE AO OBSERVED THAT THESE ENTRIES ARE REFLECTED I N THE LEDGER OF THE ASSESSEE PREPARED ON THE BASIS OF SEIZED DOCUMENTS AS STATED BY VIKASH A. SHAH. THE AO ALSO REFERRED TO THE SEIZED MEMORA NDUM OF UNDERSTANDING (MOU) DATED 28-2-2004 BETWEEN VIKASH A. SHAH AND PRAVIN CHAUHAN AND AS PER THE MOU THE ASSESSEE HAD TO RECEIVE ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 2 RS.43.00 LACS FROM VIKASH A. SHAH. ON THE BASIS OF THESE MATERIALS, PROCEEDINGS U/S 143(3) WAS INITIATED IN THE CASE OF THE ASSESSEE. 3. THE ASSESSEE DID NOT FILE ANY RETURN IN RESPONSE TO NOTICE U/S 153C OF THE ACT. BEFORE THE AO, I0N RESPONSE TO NOTICE, THE ASSESSEE SIMPLY SOUGHT ADJOURNMENT AND ULTIMATELY THE AO FRAMED ASS ESSMENT U/S 144 OF THE ACT. THE AO MADE THE FOLLOWING ADDITIONS: ASSTT. YEAR UNACCOUNTED INCOME UNEXPLAINED INVESTMENT ADDITION MADE (HIGHER OF 2 AND 3 1999-2000 23,83,100 6,00,000 23,83,100 2000-2001 3,60,000 1,20,000 3,60,000 2001-2002 20,000 3,40,000 3,40,000 2003-2004 1,40,000 10,000 1,40,000 2004-2005 1,27,000 6,85,500 6,85,500 2005-2006 1,73,30,000 NIL 1,73,30,000 4. BEFORE THE LEARNED CIT(A) , THE ASSESSEE RAISED THE FOLLOWING CONTENTIONS: I) IT IS SUBMITTED THAT THE SEIZED PAPER WAS FOUND FROM VEHICLE OWNED BY VIKAS SHAH. THE ADDITION IS MADE C ONTRARY TO THE FACT THAT VIKAS SHAH IN HIS STATEMENT IN REP LY LO QUESTION 38 HAD EXPLAINED THAT THE TRANSACTION WAS HIS OWN TRANSACTION AND TO AVOID IDENTITY, APPELLANT'S NAME WAS WRITTEN. REFERENCE IS MADE LO QUESTION NUMBER 70 AN D SLATED THAT IN THE SAME REPLY VIKAS SHAH HAD STALED THAT T HE AMOUNTS IN THE NAME OF N.H. AMIN, AMRISHKAKA ARE PE RTAINING HIMSELF AND THEY HAD NOTHING TO DO WITH THE ENTRIES . II) IT WAS CLAIMED THAT THE SEIZED PAPER WAS NOT WR ITTEN BY THE APPELLANT OR WAS NOT SIGNED BY THE APPELLANT, W HICH CONFIRMS THAT THE APPELLANT HAD NOT MADE THE TRANSA CTIONS NOTED THEREIN. III) THE PRESUMPTION U/S. 132(4) CAN BE AGAINST THE PERSON SEARCHED AND WHEN THAT PERSON HAD ACCEPTED THE TRANSACTIONS, NO OTHER PERSON CAN BE ALLEGED TO HAV E MADE ANY TAX EVASION BY NOT SHOWING THOSE TRANSACTIONS. SEARCHED ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 3 PERSON IN THE PRESENT CASE HAD STALED THAT THE APPE LLANT HAD NOTHING TO DO WITH THE ENTRIES IN THE SEIZED PAPER. HENCE THE ADDITION IS NOT JUSTIFIED. IV) THE APPELLANT HAS NOT BEEN PROVIDED THE OPPORTU NITY OF CROSS EXAMINATION OF THE PERSON I.E. VIKAS SHAH. V) REFERENCE IS MADE TO THE DECISION OF ITAT REPORT ED AT 70 TTJ 122 AND CLAIMED THAT ADDITION MADE BASED ON LOO SE PAPERS FOUND FROM THIRD PERSON WERE LIABLE TO BE DE LETED. VI) IT IS CLAIMED THAT THE A.O.'S OBSERVATION T HAT THE APPELLANT WAS GIVEN RS.L LAKH FOR LEGAL EXPENSES AN D THUS WAS SEPARATE ENTITY, SHOWS THAX THE EXPENSES WERE O F VIKAS SHAH AND THIS TRANSACTION WAS PERTAINING TO VIKAS S HAH. THE WORK DONE BY THE AGENT CAN BE TREATED AS THAT OF PR INCIPAL. THEREFORE, THE AMOUNT WAS GIVEN TO THE APPELLANT CA NNOT RENDER THE TRANSACTION IS ENTERED INTO WITH THE APP ELLANT. IT IS STATED THAT VIKAS SHAH HAD ALREADY CONFIRMED THAT H E HAD USED THE NAME OF THE APPELLANT. IT IS STATED THAT T HERE IS NO CONTRADICTION IN THE STATEMENT OF VIKAS SHAH AND HE HAD NOWHERE STATED THAT THE TRANSACTION PERTAINS TO THE APPELLANT. VII) THE APPELLANT WAS SUPERVISING HIS OWN COMPA NY AND THERE WAS NO STATEMENT TO THE EFFECT THAT THE APPEL LANT HAD UNDERTAKEN SUPERVISION WORK OF VIKAS SHAH. IT IS ST ATED THAT THERE IS NO BASIS OR THE OBSERVATION THAT THE APPEL LANT HAD BEEN THE MAIN FINANCIER OF VIKAS SHAH. VIII) IT IS STATED THAT THE A.O. HAD NO EVIDENCE TO PROVE THAT THE APPELLANT HAD ANY INVESTMENT/VALUABLE ETC.. THE RE IS NO CORRESPONDING ASSET TO PROVE THE SAME AND HENCE ALS O THE ADDITION DESERVES TO BE DELETED. IX) IT IS CLAIMED THAT THE A.O. HAD NOT PROVED THE NATURE OF PAYMENT/RECEIPT. EVEN OTHERWISE THE ADDITION CAN BE MADE ONLY FOR THE PEAK AND NOT FOR ALL THE AMOUNTS NOTED . X) IN THE COURSE OF HEARING IT IS FURTHER SLAT ED THAT THE MOU REFERRED TO BY THE A.O. WAS BETWEEN VIKAS SHAH AND PRAVINBHAI CHAUHAN AND APPELLANT WAS NOT A PARTY TO IT. THERE IS NO ENDORSEMENT OF THE APPELLANT ON THE SAI D MOU, IT IS FURTHER CLAIMED THAT THE A.O. HAD INFORMED HIM T HAT THE ACTION WERE TAKEN IN ALMOST ALL THE CASES AND ADDIT IONS WERE MADE AND APPEALS FOR THOSE CASES ARE ALSO PENDING. IT IS STATED THAT VIKAS SHAH HAD ACCEPTED THAT THE TRANSA CTIONS IN ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 4 THE NAME OF AMRISH PATEL WERE HIS OWN TRANSACTION W HEREAS HE HAD NOT ACCEPTED THE TRANSACTION IN THE NAME OF OTHER PERSONS. HENCE ALSO THE ADDITION DESERVES TO BE DEL ETED. IT IS FURTHER STATED THAT THE CONTENTS OF THE MOU F OR THE PAYMENT TO THE APPELLANT DOES NOT COME WITHIN THE D EFINITION OF INCOME AND THUS IT CANNOT BE SAID THAT THE APPEL LANT HAD EARNED ANY INCOME AS PER MOU WHICH WOULD BE LIABLE TO BE TAXED OR INCURRED ANY EXPENDITURE. WITH THE ABOVE R EMARKS IT IS REQUESTED BY 'THE APPELLANT THAT THE ADDITION BE DELETED. 5. AFTER CONSIDERING THE AFORESAID SUBMISSIONS IN T HE IMPUGNED ORDER, THE LEARNED CIT(A) DELETED THE ADDITION FOR THE DET AILED REASONS GIVEN IN PARA 5 ON PAGE 7 WHICH READS AS UNDER: 5. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT OR DER, THE ABOVE SUBMISSIONS OF THE APPELLANT, COPIES OF THE S EIZED MATERIAL REFERRED TO BY THE A.O. IT IS NOTICED THAT IN THE SEIZED MATERIAL FOUND FROM VIKAS SHAH, NOTINGS ABOUT PAYME NT TO THE APPELLANT AND THE PAYMENT BY THE APPELLANT ARE RECO RDED AND THAT IT WAS ACCEPTED BY VIKAS SHAH THAT NOTINGS CON TAINS FIGURES IN HUNDREDS. THEREFORE, IT IS HELD BY THE A .O. THAT THE PAYMENTS MADE TO THE APPELLANT AS PER THE SEIZED MA TERIAL ARE REPRESENTING INCOME OF THE APPELLANT. AT THE SA ME TIME IT IS ALSO NOTICED FROM THE STATEMENT OF VIKAS SHAH REFER RED TO BY THE A.O. THAT HE HAD IN QUESTION NUMBER 38. 70 STAT ED THAT THE AMOUNT OF RS.1,25,000/- WAS RECEIVED BY HIM HUT HE HAD WRITTEN THE NAME OF THE APPELLANT. HE HAD ALSO STAT ED THAT THE PAYMENTS MADE TO APPELLANT AND DIFFERENT PERSONS PE RTAIN TO HIM. FURTHER, AT THE SAME TIME HE HAD' ALSO STATED THAT THE NOTINGS IN THE NAME OF OTHER PERSONS WERE RELATING TO THOSE PERSONS. HENCE THE A.O. HAS CONSIDERED THIS STATEME NT TO BE CONTRADICTORY. IN MY VIEW WHEN THE PERSON FROM WHOM THE MATERIAL IS FOUND HAS IN CLEAR TERMS ACCEPTED THAT THE NOTINGS AS PER SEIZED MATERIAL REPRESENT HIS RECEIPTS, THE SAID RECEIPTS CANNOT BE CONSIDERED TO BE THE RECEIPTS TO BE THE R ECEIPT OF THE PERSONS WHOSE NAME IS WRITTEN AGAINST THE SAID AMOU NT. THIS IS TO BE FURTHER APPRECIATED IN VIEW OF THE FACT TH AT THE SAID NOTINGS OR SEIZED MATERIAL IS NOT WRITTEN BY THE AP PELLANT (I.E. THE PERSON WHOSE NAME IS WRITTEN) OR IS NOT SIGNED BY HIM BY WAY OF ACKNOWLEDGEMENT, THERE IS NO JUSTIFICATION F OR THE ADDITION TO BE MADE IN THE HANDS OF THAT PERSON BAS ED ON SUCH SEIZED MATERIAL. HAVING REGARD TO THIS ASPECT, THE ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 5 ADDITION MADE BY THE A.O. IN THE HANDS OF THE APPEL LANT BASED ON SUCH SEIZED MATERIAL IS LIABLE TO BE DELETED ACC ORDINGLY THESE GROUNDS OF APPEAL ARE ALLOWED. 6. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) THE REVENUE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUND S: 1. THE CIT(A) HAS ERRED IN LAW AND ON FACT S IN HOLDING THAT NO INCOME IS ASSESSABLE IN THE HANDS OF ASSESSEE ON TH E BASIS OF SEIZED MATERIAL AS THE ASSESSEE DID NOT SIGN THE SA ID DOCUMENTS, WITHOUT CONSIDERING THE CLEAR CUT ENTRIES RECORDED ON THE SEIZED DOCUMENTS IN THE NAME OF ASSESSEE . 2. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUMMARILY DELETING THE ADDITION, WITHOUT PROVIDING OPPORTUNIT Y TO A.O. PARTICULARLY WHEN THE ASSESSEE DID NOT FILE ANY DET AIL BEFORE A.O. WITH CLEAR CUT MOTIVE TO AVOID INVESTIGATION AS IS EVIDENT FROM THE FACT THAT THE ORDER WAS PASSED U/S.144 OF THE ACT. 3. THE FINDINGS OF CIT(A) ARE CONTRADICTORY IN AS MUCH AS HE HAS UPHELD THE INITIATION OF PROCEEDINGS U/S. 153CON TH E BASIS OF SAME SEIZED MATERIAL WHICH IS HELD TO BE NOT BELONGING T O THE ASSESSEE. 4. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION ON THE BASIS OF ANSWERS TO QUESTIONS NO.38 & 70 OF SHRI VIKAS A SHAH THAT ENTRIES RECORDED IN THE NAME OF A SSESSEE PERTAINED TO HIM, CONVENIENTLY IGNORING :- (A) ANSWER OF SHRI VIKAS A SHAH TO QUESTION NO. 130 WHEREIN HE HAD CLEARLY ADMITTED THAT ENTRY AT PAGE NO.4 OF ANNEXUR E A-171 FOR RS.L,00,0007-REPRESENTED CASH GIVEN TO SHRI AMRISH R PATEL, (THE ASSESSEE), 57, NIRANT PARK SOCIETY, AHMEDABAD FOR L EGAL EXPENSES IN RESPECT OF LAND OF BLOCK NO.35 OF VILLAGE VASNA HAD MATIYA. (B) ANSWER OF SHRI VIKAS A SHAH TO QUESTION NO. 160 WHEREIN HE HAS STATED THAT DEBIT ENTRIES IN THE NAMES OF N, NH, NH AM IN, SAHEB, ETC. REPRESENTED AMOUNT PAID TO VARIOUS PERSONS FOR SETTLING LAND DISPUTES. THUS, AMOUNT RECEIVED BY AMRISH R PATEL A ND OTHERS ON PAGES 111 OF ANNEXURE A-241 AND PAGES 45 & 30 OF A- 62 ARE FOR EXPENSES PAID BY SHRI VIKAS A SHAH AS NO ONE WILL S HOW PAYMENT TO ONESELF. ( C) MOD DATED 24.02.2004 BETWEEN SHRI VIKAS A SHAH & PRAVIN HAKMAJI CHAUHAN WHEREIN IT WAS AGREED UPON VIDE PAR A 2 THAT SHRI ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 6 AMRISH KAKA (NICK NAME OF AMRISH R PATEL) HAS TO RE CEIVE RS.43,00,0007- FROM VIKAS A SHAH. (D) CASH REPORTS AT ANNEXURE A-124, A-25, A-21 & A- 29 WHEREIN NAMES OF VIKAS A SHAH & AMRISH R PATEL & OTHER PERS ONS ARE MENTIONED. (E) HAD THE NAME OF AMRISH R PATEL BEEN USED FOR VI KAS A SHAH, THERE WOULD HAVE BEEN NO NEED TO WRITE BOTH NAMES O N SAME DOCUMENT AS ABOVE I.E. VIKAS A SHAH & AMRISH R PATE L. (F) ADMISSION BY THE ASSESSEE VIDE LETTER DAT ED 15.12.2006 THAT HE WAS DOING SUPERVISION WORK DURING THE BLOCK PERI OD WHICH CORROBORATES WITH ENTRIES RECORDED ON SEIZED MATERI AL SHOWING VARIOUS PAYMENTS TO HIM FOR EXPENSES (I.E. SUPERVIS ION CHARGES). '; 5. THE C1T(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITIONS IN RESPECTIVE YEARS, WITHOUT CONSIDERING THE EVIDENCES AVAILABLE ON RECORD AS WELL AS THEIR CORRECT INTERP RETATION. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE C1T (A) OUGHT TO HAVE UPHELD THE ORDER OF THE A .O. 7. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 7. AT THE TIME OF HEARING BEFORE US ON BEHALF OF TH E REVENUE SHRI GOVIND SINGHAL, LEARNED DR APPEARED AND CONTENDED T HAT THOUGH IN REPLY TO QUESTION NO.70 OF STATEMENT OF VIKASH A SH AH RECORDED U/S 131 (1A) OF THE ACT BEFORE THE ADI, MEHSANA, HE HAS STA TED THAT AMOUNT SHOWN IN THE NAME OF M. H. AMIN AND AMRUT KAKA ARE PERTAINING TO HIM AND THEY HAD NOTHING TO DO WITH THE ENTRY. WHEREAS IN RESPECT OF AMRISH R. PATEL, SHRI VIKASH A SHAH STATED THAT THE TRANSA CTION RECORDED IN THE NAME OF AMRISH R. PATEL BELONGS TO HIM I.E. VIKASH A. SHAH. THE LEARNED DR POINTED OUT THAT WHEN OTHER TRANSACTIONS IN THE DIFFERENT NAMES PERTAIN TO DIFFERENT PERSONS, THE TRANSACTIONS RECO RDED IN THE NAME OF AMRISH R PATEL ARE ALSO ACTUALLY BELONGING TO AMRIS H R. PATEL AND NOT TO VIKASH A. SHAH AS STATED BEFORE THE ADI. THE LEARNE D DR POINTED OUT THAT BEFORE THE AO THE ASSESSEE DID NOT FILE ANY RE PLY, THE LEARNED CIT(A) ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 7 UPHELD THE INITIATION OF PROCEEDINGS U/S 153C OF TH E ACT, THEREFORE, THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ADDITIONS MADE IN VARIOUS ASSESSMENT YEARS FOR THE DETAILED REASONS GIVEN IN GROUND NO.4 OF GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL (SUPRA) . HE ACCORDINGLY POINTED OUT THAT THE ADDITIONS MADE BY THE AO IN AL L THE ASSESSMENT YEARS ON ACCOUNT OF TRANSACTIONS IN THE NAME OF THE ASSESSEE IN THE SEIZED MATERIALS FOUND IN SUCH PROCEEDINGS IN THE C ASE OF VIKASH A SHAH. 8. SHRI GAURAV NAHATA, LEARNED AR APPEARING FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LEARNED CIT(A). HE POINT ED OUT THAT THE STATEMENT OF VIKASH A SHAH SHOULD BE ACCEPTED AS A WHOLE. WHEN SHRI VIKASH A SHAH IN THE STATEMENT RECORDED DURING THE SEARCH CLEARLY STATED THAT AMRISH A. PATEL (THE ASSESSEE BEFORE U S) IS ONLY NAME LENDER. WHATEVER TRANSACTION IS ENTERED IN HIS NAME IN THE SEIZED MATERIALS FOUND IN THE CAR BELONGING TO VIKASH A. SHAH PERTAI NING TO HIM (VIKASH A SHAH). ONLY, THE AO WAS HAVING NO OPTION BUT TO C ONSIDER THAT THE STATEMENT WHILE FRAMING ASSESSMENT OF VIKASH A SHAH AND NOT THAT OF THE ASSESSEE. HE ACCORDINGLY SUBMITTED THAT THE LEA RNED CIT(A) HAS GIVEN COGENT REASON IN DELETING THE ADDITION IN ALL THE A SSESSMENT YEARS. THEREFORE, THE VIEW TAKEN BY THE LEARNED CIT(A) BE UPHELD. 9. HAVING HEARD BOTH THE SIDES, WE HAVE GONE THROUG H THE ORDERS OF THE LOWER AUTHORITIES. IT IS PERTINENT TO MENTION T HAT THE AO REJECTED THE CONTENTIONS OF THE ASSESSEE REGARDING EVIDENTIARY V ALUE OF THE SEIZED PAPERS AND GENUINENESS OF THE TRANSACTIONS FOR THE VARIOUS GIVEN IN THE ASSESSMENT ORDER WHICH CAN BE SUMMARIZED AS UNDER: (A) IT IS PERTINENT TO NOTE THAT IN ANSWER NO.130 S HRI VIKASH A SHAH HIMSELF HAS ADMITTED WHILE GIVING THE EXPLANAT ION REGARDING PAGE NO.4 OF ANNEXURE A-171 THAT RS. 1,0 0,000/- CASH GIVEN TO SHRI AMRISH R PATEL, 57- NIRANT PARK SOCIETY, OP. SUN-N-STEP CLUB, AHMEDABAD FOR LEGAL EXPENDITURE IN RESPECT OF LAND OF BLOCK NO.35 OF VILLAGE VASNA HADMATIYA. FROM THE ABOVE, IT IS ESTABLISHED THAT AMRISH R. PATEL IS SE PARATE ENTITY ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 8 FROM VIKASH A SHAH AND TRANSACTIONS NOTED IN THE NA ME OF AMRISH R PATEL PERTAIN TO HIM ONLY AND NOT TO VIKAS H A. SHAH AS CLAIMED. (B) IN ANSWER NO.160 SHRI VIKASH SHAH HAS STATED TH AT THE DEBIT ENTRIES IN THE NAME OF N. N. H. N. H. AMIN, SAHEB E TC. REPRESENTS AMOUNT PAID TO VARIOUS PERSONS FOR SETTL ING THE DISPUTE OF RELATED LAND. ON PAGE 111 OF A-241, 45 A ND 30 OF A-62 CERTAIN AMOUNTS ARE SHOWN TO BE RECEIVED BY AM RISH R. PATEL AND AL SUCH AMOUNTS ARE SHOWN AS EXPRENSES IN CURRED BY VIKASH A. SHAH. SINCE ONE CANNOT SHOW AN AMOUNT RECEIVED BY HIMSELF AS EXPENDITURE, THEREFORE, IT C AN BE CONCLUDED THAT THE AMOUNT SHOWN TO BE RECEIVED BY A MRISH R. PATEL IS THE AMOUNT ACTUALLY RECEIVED BY THE ASSESS EE WHICH HE HAS NOT DISCLOSED TO THE DEPARTMENT. ( C) FURTHER, IN ANSWER NO. 138 VIKASH A SHAH HAS S TATED THAT CASH SHOWN TO BE RECEIVED FROM IT ACTUALLY AMOUNT R ECEIVED FROM SHRI UMANG THAKKAR OF DHARM DEV BUILDERS TOWAR DS SALE OF LAND OF S. NO.188, 189 OF VILLAGE :VASNA. H ERE IT IS PERTINENT TO NOTE THAT AT ONE PLACE, THE VIKASH SHA H HAS SAID THAT TRANSACTIONS APPEARED IN THE NAME OF AMRISHKAK A, AMRISH R. PATEL, N. NH. NH AMIN, SAHIB ETC. PERTAIN TO ME (ANS. NO.70) AND AT ANOTHER PLACE, VIKASH SHAH IS S AYING THAT AMOUNT SHOWN TO BE RECEIVED FROM NH, NH, AMIN IS AC TUALLY RECEIVED FROM UMANG THAKKAR (ANS. NO.138. FROM THE ABOVE, IT IS CRYSTAL CLEAR THAT THE STATEMENTS GIVEN BY SH RI VIKASH SHAH BEFORE ADIT(INV.) REGARDING TRANSACTIONS SHOWN IN THE NAME OF AMRISHKAKA, AMSRISH R. PATEL, N. NH. NH. AM IN, SAHIB ETC. ARE SELF CONTRADICTORY AND INCORRECT. IN FACT, VIKASH SHAH HAS TRIED TO OWN UP THE CERTAIN TRANSACTINS SH OWN IN THE NAME OF AMRISHKAKA, AMRISH R. PATEL, N. NH. NH. AMI N, SAHIB ETC. HOWEVER, THEY WERE ACTUALLY MADE BY AMRISH R. PATEL AND N. H. AMIN ONLY. IN VIEW OF THE ABOVE, IT CAN B E CONCLUDED THAT AMOUNT SHOWN TO BE RECEIVED/PAID IN THE NAME O F AMRISH R. PATEL ARE ACTUALLY RECEIVED AND PAID BY AMRISH R . PATEL ONLY, WHO IS ALSO ENGAGED IN SIMILAR LINE OF BUSINE SS AS VIKASH SHAH. (D) MOREOVER, ASSESSEE HIMSELF HAS SUBMITTED VIDE H IS LETTER DATED 15-12-06 THAT I WAS DOING SUPERVISION WORK D URING THAT PERIOD WHICH IS SAME LINE OF BUSINESS AS VIKA SH A SHAH. IN ADDITIN TO THAT IT IS GATHERED FROM THE SEIZED M ATERIAL AND DURING THE ASSESSMENT PROCEEDINGS IN OTHER CASES OF VIKASH A SHAH GROUP THAT SHRI AMRISH R. PATEL HAS BEEN ONE O F THE MAI0N FINANCIERS OF VIKASH A SHAH & MANSI BUILDERS. ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 9 THEREFORE, IT CAN BE CONCLUDED THAT AMOUNT SHOWN TO BE RECEIVED/PAID BY AMRISH R. PATEL OR AMRISH KAKA IS NOTHING BUT AMOUNT RECEIVED AS SUPERVISION FEES REPAYMENT O F LOAN AND/OR INTEREST BY VIKASH A. SHAH AND AMOUNT GIVEN AS LOAN TO VIKASH A SHAH. 10. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDI NGS ISSUED QUESTIONNAIRE WHICH IS REPLIED BY THE ASSESSEE, WHI CH IS NOT ACCEPTED BY THE AO GIVING THE FOLLOWING REASONS: (A) IT IS STATED BY THE A. O. THAT THE APPELLANT DID NO T FILE ANY RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 153 C OF THE I. T. ACT. IT IS ALSO OBSERVED BY THE AO THAT T HE APPELLANT HAS CLAIMED TO BE ENGAGED IN THE BUSINESS OF SUPERVISION WORK WHICH IS RELATED TO THE BUSINESS O F VIKASH SHAH AND MANSI BUILDERS PVT. LTD. HE HAS OBSERVED THAT IN THE COURSE OF ASSESSMENT PROCEEDIN GS IT WAS GATHERED THAT THE APPELLANT HAVE BEEN ONE OF THE MAIN FINANCIERS OF VIKASH SHAH AND MANSI BUILDERS. HENCE IT CAN BE CONCLUDED THAT THE APPELLANT WAS ASSOCIATED WITH VIKASH SHAH AND PAPER RELATING TO AMRISH PATEL BELONGED TO THE APPELLANT ONLY AND THE TRANSACTIONS NOTED ARE ACTUALLY RECEIPTS AND PAYMEN TS MADE BY THE APPELLANT. (B) IT IS FURTHER OBSERVED THAT IN REPLY TO QUESTION NU MBER 34, VIKASH SHAH HAD CATEGORICALLY STATED THAT (EXPLAINING ENTRIES ON PAGE 124) THAT IT WAS DAILY CASH REPORT OF MANSI BUILDERS AND VIKASH SHAH AND IT WAS PREPARED BY HIS EMPLOYEES AND WAS SIGNED BY HIM. IT WAS THE RECORD OF DAILY8 CASH RECEIPTS AND CASH OUTGOING. IT WAS ALSO CLARIFIED BY HIM THAT THE FIG URES WRITTEN IN CASH REPORT ARE IN HUNDREDS. HE HAD ALSO STATED THAT HE ENTRIES AS PER ANNEXURE A-124 WERE GENUINE. HENCE, IT IS CONCLUDED BY THE AO THAT AMRI SH PATEL AND ENTERED INTO A DIFFERENT TRANSACTIONS WIT H VIKASH SHAH AND THE TRANSACTIONS NOTED IN THE HIS NAME ARE GENUINE. (C) IN ANSWER 130OF REPLY OF VIKASH SHAH HAD STATED THA T THE ENTRY OF RS.1 LAKH WAS IN RESPECT OF PAYMENT MA DE TO AMRISH PATEL FOR LEGAL EXPENDITURE IN RESPECT OF LAND FOR BLOCK NO.35. IT IS STATED THAT AS PER THE MOU D ATED 24-2-2004 BETWEEN VIKASH SHAH AND PRAVIN CHAUHAN ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 10 AS PER PARA 2 THE APPELLANT WAS TO RECEIVE RS.43 LA KHS FROM VIKASH SHAH. 11. IN THIS CONTEXT, WE HAVE CAREFULLY GONE THROUGH VARIOUS SUBMISSIONS MADE BEFORE THE LEARNED CIT(A) AND REAS ONING GIVEN BY THE LEARNED CIT(A) IN PARA 5 ON PAGE 7 OF THE IMPUGNED ORDER WHICH IS REPRODUCED BY US HEREINABOVE. THE LEARNED CIT(A) HA S HELD THAT WHEN THE PERSON FROM WHOM THE MATERIAL IS FOUND/SEIZED I S IN CLEAR TERM ACCEPTED THAT NOTING AS PER SEIZED MATERIALS REPRES ENTS HIS RECEIPTS CANNOT BE CONSIDERED TO BE THE RECEIPTS OF THE PERS ON WHOSE NAME IS WRITTEN AGAINST THE SAID AMOUNT. IT IS CLEAR THAT T HE RECEIPTS WORKED OUT ON THE BASIS OF SEIZED MATERIALS AND ATTRIBUTED TO THIS ASSESSEE HAD BEEN CLAIMED AND STATED TO BE CONSIDERED IN THE ASSESSME NT OF SHRI VIKASH A. SHAH. ONCE, THERE IS NO CONTROVERSY ON THIS POINT, THEN THE ADDITION RESULTING FROM THESE RECEIPTS SHOULD ONLY BE CONSID ERED IN THE HANDS OF SHRI VIKASH A SHAH AND NOT IN THE HANDS OF THE ASSE SSEE. IT IS FURTHER TO BE APPRECIATED THAT THE SAID NOTINGS IN THE SEIZED MATERIAL IS NOT WRITTEN BY THE ASSESSEE NAMELY SHRI AMRISH R PATEL I.E. THE PERSON WHOSE NAME IS WRITTEN AGAINST THE SAID AMOUNT. NONE OF THE ENT RIES MENTIONED IN THE SEIZED MATERIAL TALLY WITH THE BOOKS OF ACCOUNT OF THE ASSESSEE. HAVING REGARD TO TOTALITY OF THE FACTS AND CIRCUMSTANCES O F THE CASE, ADDITIONS MADE BY THE AO IN THE HANDS OF THE ASSESSEE BASED O N SEIZED MATERIALS (WHICH IS OWNED BY THE PERSON FROM WHOM THE MATERIA L WAS SEIZED) CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. IN THI S VIEW OF THE MATTER, IT IS HELD THAT THE LEARNED CIT(A) HAS GIVEN COGENT REASON FOR DELETING THE ADDITIONS MADE IN ALL THE ASSESSMENT YEARS IN APPEA L. THEREFORE, WE DECLINE TO INTERFERE. ITA NO.3629 TO 3634/AHD/2007 SHRI AMRISH R. PATEL 11 12. IN THE RESULT, ALL THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30-09-09. SD/- SD/- (D. C. AGARWAL) ACCOUNTANT MEMBER (T. K. SHARMA) JUDICIAL MEMBER DATE : 30-09-09 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD