WELLDONE REAL ESTATE LTD, MUMBAI V. CIT CEN -III, MUMBAI

ITA 3992/MUM/2013

• Counselvise Citation: 399219914 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHA KALA CHANDA
• Assessee Lawyers: VIJAY MEHTA
• Keywords: Unexplained expenditure; Loose papers; Document seized; Corroborative evidences; Documents seized
• Section: 69; 263; 69C; 143(3); 153A

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE S HRI R.C. SHARMA , ACCOUNTANT MEMBER & SHRI VIVEK VARMA , J UDICIAL MEMBER I.T.A. NO. 3992 /MUM/20 1 3 ( ASSESS MENT YEAR : 20 0 9 - 20 10 M/S WELLDONE REAL ESTATE LTD., 82, MAKER CHAMBERS III, NARIMAN POINT, M UMBAI 400 0 21 . VS. COMMISSIONER OF INCOME TAX CENTRAL III, ROOM NO. 109, IST FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020. PAN : AAACW627 7G ( APPELLANT ) .. ( RESPONDENT ) A PPELLANT BY SHRI VIJAY MEHTA R E SPONDENT BY : S MT. ABHA KALA CHANDA DATE OF HEARING : 1 1 - 11 - 2014 / DATE OF PRONOUNCEMENT : 28 - 11 - 2014 [ O R D E R PER R.C. SHARMA , A .M . : THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER U/S 263 OF THE INCOME TAX ACT, 1961 PASSED BY THE LD. CIT (CENTRAL) III, MUMBAI DATED 26 - 3 - 2013 FOR THE A.Y. 2009 - 10 WHEREIN THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: - 1. THE ORDER PASSED BY THE LEARNED CIT U/S.263 OF THE ACT IS ILLEGAL, BAD IN LAW, ULTRA VIRES AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE AND WITHOUT APPRECIATING THE FACTS OF THE CASE IN THEIR PROPER PERSPECTIVE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT ERRED IN HOLDING THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) DATED ITA 3992 / M/ 1 3 2 29/12/2010 FOR THE ASSESSMENT YEAR 2009 - 10 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AND THEREBY SETTING ASIDE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3). 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT ERRED IN DIRECTING THE ASSESSING OFFICER TO MAKE PROPER VERIFICATIONS WITH RESPECT TO THE DOCUMENTS / LOOSE PAPERS THAT WERE IMPOUNDED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT ERRED IN DIRECTING THE ASSESSING OFFI CER TO MAKE PROPER ENQUIRY REGARDING THE ALLEGED UNACCOUNTED CASH PAYMENTS OF RS.1,73,00,000/ - IN THE APPELLANT'S CASE WHEN THE SAME ASSESSING OFFICER HAS MADE ADDITION U/S. 69C OF THE SAID AMOUNT ON SUBSTANTIVE BASIS IN THE HANDS OF M/S. ICONIC REATORS LT D. AND AGAIN ON PROTECTIVE BASIS IN THE HANDS OF JAILAXMI REALTY AND DEVELOPERS 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT ERRED IN DIRECTING THE ASSESSING OFFICER TO MAKE PROPER ENQUIRY REGARDING THE ALLEGED UNACCOUNTED CASH PA YMENTS OF RS.1,73,00,000/ - IN THE APPELLANT'S CASE WHEN THE ADDITION OF THE SAID AMOUNT IN THE CASES OF BOTH M/S. ICONIC REALTORS LTD. AND M/S JAILAXMI REALTY AND DEVELOPERS LTD. ARE SUB JUDICE AND PENDING BEFORE THE COMMISSIONER OF INCOME TAX (A) - 41. 2 . RIVAL CONTENTIONS HAVE BEEN HEARD AND PERUSED THE MATERIAL ON RECORD. FACTS IN BRIEF ARE THAT S EARCH AND SEIZURE ACTION U/S. 132 WAS CARRIED OUT IN THE CASES OF JAI CORP GROUP ON 5.3.2009. IN THIS CONNECTION, SURVEY WAS CONDUCTED IN THE OFFICE PREMISES O F THE ASSESSEE (I.E. M/S. WELLDONE REAL ESTATE LTD.). DURING THE COURSE OF SURVEY IN THE OFFICE PREMISES OF THE ASSESSEE , CERTAIN DOCUMENTS/LOOSE PAPERS WERE IMPOUNDED. AS PER PAGE NO. 64 OF ANNEXURE - 2 IMPOUNDED FROM THE PREMISES OF THE ASSESSEE UNACCOUNTE D CASH PAYMENTS OF RS. 1,73,00,000/ - WERE MADE ON 15.5.2008 IN CONNECTION WITH SOME EVACUEE PROPERTY. SINCE NO ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE WHILE FRAMING ASSESSMENT U/S 143(3) R.W.S. 153A OF THE ACT, THE LD. CIT WAS OF THE VIEW THAT ORDER OF THE A.O. WAS ITA 3992 / M/ 1 3 3 ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY THE ORDER PASSED Y/S 143(3) DATED 29 - 12 - 2010 WAS SET ASIDE TO THE FILE OF THE A.O. WITH A DIRECTION TO MAKE VERIFICATION S WITH RESPECT TO LOOSE PAPERS THAT WERE IMPOUNDED FROM THE PREMISES OF THE ASSESSEE WITH REGARD TO THE PAYMENT OF RS. 1,73,00,000/ - IN CONNECTION WITH THE EVACUEE PROPERTIES. 3. IT WAS ARGUED BY THE LD. A.R. THAT PROPER ENQUIRIES WERE MADE BY THE A.O. WITH RESPECT TO THE ALLEGED PAYMENT AND AFTER CONSID ERING THE ENTIRE DOCUMENTS, THE A.O. FOUND THAT THE PAYMENT WAS MADE BY M/S ICONIC REALTORS LTD. AND ACCORDINGLY ADDITION WAS MADE U/S 69 - C OF THE ACT IN THE HANDS OF ICONIC REALTORS LTD. ON SUBSTANTIVE BASIS. OUR ATTENTION WAS INVITED TO THE RELEVANT POR TION OF THE ASSESSMENT ORDER OF ICONIC REALTORS LTD. WHICH READS AS UNDER: - 13.23 IN CONNECTION WITH EVACUEE PROPERTY AS DISCUSSED IN ABOVE PARAS, THERE IS CLEAR MENTION OF CASH PAYMENTS OF RS. 1,73,00,000/ - ON 15.06.2008 ON THE PAGE NO. 64 OF ANNEXURE A - 2 IMPOUNDED FROM THE OFFICE OF WELLDONE REAL ESTATE PVT. LTD., IT IS IMPORTANT TO HIGHLIGHT THAT THIS UNEXPLAINED CASH PAYMENT OF RS. 1, 73, 00, 000/ - IS NOT PART OF THE AMOUNT OF RS. 17,67,72,3931 - , WHICH IS ALSO CLEAR FROM FUND FLOW STATEMENT APPEARING ON THE PAGE NO.65 OF THE SAID ANNEXURE A - 2. BOTH THE PARTIES INVOLVED I.E. M/S. DEVA REALTORS AND JAI CORP GROUP HAVE FAILED TO SUBMIT ANY DETAILS IN THIS REGARD IN SPITE OF SPECIFIC SHOW CAUSE NOTICES ISSUED TO THEM. HAVING REGARD TO THE ABOVE DISCUSSION , THE UNEXPLAINED PAYMENTS / UNACCOUNTED CASH PAYMENTS UNEXPLAINED EXPENDITURE IN THE HANDS OF THE ASSESSE U/S 69C OF THE ACT FOR A. Y 2009 - 10. (ON SUBSTANTIVE BASIS) WITHOUT PREJUDICE TO ACTION IN THE HANDS OF JAILAXMI REALTY & DEVELOPERS LTD. AND WELLDON E REAL ESTATE LTD. IN THIS REGARD. PENALTY PROCEEDINGS U/S 27IAAA OF THE ACT ARE INITIATED SEPARATELY IN THIS REGARD.' 4. IT WAS ARGUED THAT THE A.O. HAS ALREADY MADE THE ADDITION OF RS. 173 LACS ON SUBSTANTIVE BASIS HOLDING THE SAME AS UNEXPLAINED PAYMENT IN THE HANDS OF M/S ICONIC REALTORS LTD. U/S 69 - C OF THE ACT WHEREIN THE A.O. HAS OBSERVED THAT THE SAID ADDITION IS WITHOUT PREJUDICE TO THE ACTION IN THE HANDS OF M/S JAILAXMI REALTY & DEVELOPERS LTD. AS THE LD. A.R., ON THE BASIS OF THIS OBSERVATION OF THE ITA 3992 / M/ 1 3 4 A.O., THE LD. CIT VIDE NOTICE U/S 263 OF THE ACT DATED 28 - 2 - 2013 STATE DTHAT THE A.O. OMITTED TO TAKE ANY ACTION IN THIS REGARD IN THE HANDS OF THE ASSESSEE COMPANY. OUR ATTENTION WAS ALSO INVITED TO THE FACT WITH REGARD TO THIS ADDITION THAT M/S. ICONIC REALTORS LTD . HAD PREFERRED AN APPEAL BEFORE THE CIT(APPEALS) AGAINST THE ADDITION RS. 173.00 LAKHS MADE BY THE ASSESSING OFFICER. THE RELEVANT GROUNDS OF APPEAL RAISED BY IRONIC REALTORS READS AS UNDER: ` 'C. THE LEARNED DEPUTY COMMISSIONER OF INC OME TAX ERRED IN ASSESSING RS. 1, 73,00,000/ - ON ACCOUNT OF ALLEGED UNDISCLOSED EXPENDITURE IN RELATION TO LAND LICENCES IN 12.5% CIDCO LANDS AT DRONAGIRI U/S 69C OF THE INCOME TAX ACT, 1961 ON THE BASIS OF PAGES 64 & 65 OF ANNEXURE A - 2 SEIZED FROM THE PRE MISES OF WELLDONE REAL ESTATE PVT. LTD.' IN VIEW OF THE ABOVE IT WAS SUBMITTED THAT T HE ASSESSING OFFICER HIMSELF HAS RELATED / LINKED THE ADDITIONS MADE IN ICONIC REALTORS LTD WITH THE PROPOSED ACTION IN THE HANDS OF THE ASSESSEE COMPANY. AS THE ADDITION MADE BY THE ASSESSING OFFICER HAS BEEN DISPUTED BY M/S. ICONIC REALTORS LTD BEFORE THE CIT(APPEALS) , AS PER TH4E LD. A.R. NO POWER U/S. 263 CAN BE INVOKED ON THE ISSUE WHICH A SUBJECT MATTER OF APPEAL BEFORE THE CIT(A)/ITAT. IN THE INSTANT CASE, THE ISSUE ON WHICH THE ORDER IS SOUGHT TO BE SET ASIDE IS BEFORE THE CIT(A) AND THE DECISION IS PENDING. IN SUCH CIRCUMSTANCES, POWER U/S. 263 CANNOT BE ASSUMED BY THE COMMISSIONER. M/S ICONIC REALTORS LTD HAD MADE A DETAILED SUBMISSIONS BEFORE THE CIT(APPEALS) ON THE ISSUE UNDER CONSIDERATION. THE RELEVANT PARA OF THE SUBMISSION IS GIVEN AS UNDER : - '5.12 IT'S ALSO PERTINENT TO NOTE THAT JAI LAXMI REALTY AND DEVELOPERS LTD., PURCHASING ONLY AGRICULTURAL LAND. MR. MADAN KOLAMBEKAR, H OWEVER, WHILE REPORTING VIDE M IS REPORT DATED 23.09.2008 IMPOUNDED FROM THE OFFICE OF WELLDONE REALTORS PVT. LTD. STATED THAT DEVA REALTORS HAS RECEIVED FUNDS OF RS. 1,73,00,000/ - IS NOTHING, BUT A TRANSFER OF FUNDS OUT OF THE FUNDS OF RS. 88,51,37,479 PROVIDED BY ICONIC REALTORS LTD. T O SHRI MADAN KOLAMBEKAR. THUS IT IS ONLY TRANSFER OF FUNDS BY SHRI MADAN KOLAMBEKAR. IT IS PERTINENT TO NOTE THAT THE CHEQUES OF THE ABOVEMENTIONED AMOUNT WERE GIVEN TO MK BY APPELLANT AND IN TURN HE TRANSFERRED THE FUNDS TO DEVA REALTORS BY CHEQUE. IT IS FURTHER SUBMITTED THAT MADAN ASSOCIATES AND DEVA REALTORS ARE THE TWO CONCERNS OF WHICH MR. MADAN KOLAMBEKAR IS ITA 3992 / M/ 1 3 5 PROPRIETOR. ONCE THE FUNDS ARE MADE AVAILABLE TO MR. MADAN KOLAMBEKAR IN HIS CONCERN I.E. MADAN ASSOCIATES, MR. MADAN KOLAMBEKAR INTERNALLY TRA NSFERRED THE SAID FUNDS TO DEVA REALTORS AND GAVE A NARRATION IN THE MIS REPORT DATED 23.09.2008 AS FUNDS TRANSFERRED FROM ICONIC REALTORS PVT. LTD. TO DEVA REALTORS. IT IS THEREFORE SUBMITTED BEFORE YOUR HONOUR THAT IT APPEARS TO BE AN ERROR ON THE PART O F MK IN REPORTING. THE AMOUNT OF RS. 1,73,00,000/ - IS NOTHING BUT A PART OF THE FUNDS MADE AVAILABLE BY THE APPELLANT OF RS.88,51,37,4791 - . NO OTHER INDEPENDENT FUND HAS BEEN PROVIDED BY THE APPELLANT EXCEPT THE SAID AMOUNT. BECAUSE OF THIS FACTS, THERE IS NO ENTRY AVAILABLE IN THE BOOKS OF ACCOUNT OF THE APPELLANT WITH REGARD TO THE TRANSFER OF THE FUNDS OF RS. 1,73, O 0 , 000/ - AS THE SAME IS EMBEDDED AND A PART OF FUND OF RS.88,51,37,4791 - .' THE ASSESSEE COMPANY ALSO RELIES ON BOMBAY HIGH COURT JUDGEMENT REPORTED IN 203 ITR 108 IN THE CASE OF CIT VS GABRIEL INDIA LTD. THE HON'BLE COURT WHILE DEALING WITH THE PROVISIONS OF SECTION 263 OF THE I. T. ACT, HAS OBSERVED AS UNDER. 'THE COMMISSIONER, ON PERUSAL OF THE RECORDS, MAY BE OF THE OPINION THAT THE ESTIM ATE MADE BY THE OFFICER CONCERNED WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE ESTIMATED THE INCOME OF A HIGHER FIGURE THAN THE ONE DETERMINED BY THE INCOME - TAX OFFICER. THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO RE - EXAMINE THE ACCOUNTS AND DETERMINE THE INCOME HIMSELF AT A HIGHER FIGURE. THIS IS BECAUSE THE INCOME - TAX OFFICER HAS EXERCISED THE QUASI - JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONCLUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONE OUS SIMPLY BECAUSE THE COMMISSIONER DOES NOT FEEL SATISFIED WITH THE CONCLUSION IT MAY BE SAID IN SUCH A CASE THAT IN THE OPINION OF THE COMMISSIONER THE ORDER IN QUESTION IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BUT THAT BY ITSELF WOULD NOT BE ENOU GH TO VEST THE COMMISSIONER WITH THE POWER OF SUO MOTU REVISION BECAUSE THE FIRST REQUIREMENT, NAMELY, THAT THE ORDER IS ERRONEOUS IS ABSENT. 5. ON THE OTHER HAND CONTENTION OF LD. D.R. WAS THAT PAGES 64 & 65 WERE IMPOUNDED FROM ASSESSEES PREMISES WHICH REVEALS PAYMENT OF RS. 1,73,00,000/ - WHICH WAS NOT ADDED BY THE A.O. WHILE FRAMING ASSESSMENT U/S 143(3). ACCORDINGLY ORDER OF A.O. WAS NOT ONLY ERRONEOUS BUT ALSO PREJUDICIAL TO THE INTEREST OF REVENUE. 6 . WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAR EFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND DELIBERATED UPON THE JUDICIAL PRONOUNCEMENTS REFERRED BY THE LD. CIT IN HIS ORDER U/S 263 OF THE A CT , AS WELL AS THE DECISIONS CITED BY THE LD. A.R. AND THE LD. D.R. DURING THE COURSE OF HEARING BEFOR E US . ITA 3992 / M/ 1 3 6 FROM THE RECORD, WE FOUND THAT DURING THE COURSE OF SEARCH AT JAI CORPN. GROUP, ON THE BASIS OF PAGES 64 & 65 , THE A.O. AFTER MAKING DETAILED INQUIRIES CONCLUDED THAT CERTAIN ENTRIES APPEARING IN THESE PAPERS ARE UNACCOUNTED CASH PAYMENTS MADE BY ICO NIC/JAILAXMI AND PROCEEDED TO ADD SUCH AMOUNTS IN THEIR HANDS AS UNDER: - (I) ADDITION OF RS. 12.23 CRORES (FROM ICONIC TO DEVA) ON SUBSTANTIVE BASIS, BOTH IN THE HANDS OF JAILAXMI AND ICONIC FOR A.Y. 2008 - 09. (II) ADDITION OF RS. 5.44 CRORES (DEVELOPMEN T CHARGES) ON SUBSTANTIVE BASIS, IN THE HANDS OF JAILAXMI FOR A.Y. 2008 - 09. (III) ADDITION OF RS. 1.73 CRORES ON SUBSTANTIVE BASIS BOTH IN THE HANDS OF ICONIC AND JAILAXMI FOR A.Y. 2009 - 10. THE LD. CIT HAS INVOKED THE PROVISIONS OF SECTION 263 OF THE ACT ONLY IN RESPECT OF ALLEGED CASH PAYMENT OF RS. 1.73 CRORES AND NOT FOR THE OTHER TWO ENTRIES. THE REASONS CITED BY THE LD. CIT IN THE ORDER U/S 263 OF THE ACT ARE AS UNDER: - (I) SINCE THE DOCUMENTS ARE FOUND FROM THE PREMISES OF THE ASSESSEE, PRESUMP TION U/S 292C OF THE ACT FALLS ON THE ASSESSEE. (II) ENTRY OF RS. 1.73 CRORES WAS DISOWNED BY ICONIC AND JA I LAXMI (III) PROPER ENQUIRIES WERE NOT MADE BY THE A.O. 7 . THE LD. CIT IN HIS ORDER U/S 263 DIRECTED THE A.O. TO MAKE ENQUIRY AND TO MAKE PROTECTI VE ADDITION IN THE HANDS OF THE ASSESSEE. FROM THE RECORD WE FOUND THAT ALL THE ASSESSMENT ORDERS U/S 143(3) OF THE ACT OF ALL THE THREE ASSESSES I.E. ICONIC, JAILAXMI AND WELLDONE WERE PASSED ON THE SAME DAY I.E 29 - 12 - 2010 BY THE VERY SAME A.O. , AND ADDI TIONS OF RS. 1.73 CRORES WERE MADE IN THE HANDS OF ICONIC AND JAILAXMI AFTER DETAILED INQUIRY AND ELABORATE DISCUSSION. THE NEED TO MAKE A PROTECTIVE ADDITION ARISES ONLY IF THE A.O. HAS ANY DOUBT AS TO WHOM A TRANSACTION PERTAINS. IN THE INSTANT CASE BEF ORE US, ITA 3992 / M/ 1 3 7 WE FOUND THAT SUFFICIENT ENQUIRIES WERE MADE AND THE A.O. WAS SATISFIED THAT THE TRANSACTIONS PERTAINS TO ICONIC AND JAILAXMI AND NOT RELATE D TO THE ASSESSEE THEREFORE THERE WAS NO NEED TO MAKE ANY PROTECTIVE ADDITION IN ASSESSEES HANDS. THE HON BLE SUPREME COURT IN THE CASE OF LALJI HARIDAS VS. ITO [43 ITR 387] OBSERVED THAT NO PROTECTIVE ADDITION CAN BE MADE UNLESS THE A.O. IS SATISFIED ABOUT THE GENUINE DOUBT IN RESPECT OF ASSESSABILITY. FROM THE RECORD WE FOUND THAT IN THE ASSESSMENT ORDER OF ICONIC REALTORS LTD. DTD. 29 - 12 - 2010, THE A.O. IN PARA 13.12.1 HAS MADE A DETAILED AND EXHAUSTIVE DISCUSSION REGARDING THE RELEVANT SEIZED PAPERS IMPOUNDED FROM THE ASSESSEES PREMISES. THE A.O. HAS ALSO PLACED RELIANCE ON VARIOUS CORROBORATIVE EVIDENCES WHILE MAKING THE ADDITION IN THE HANDS OF ICONIC . THE A.O. HAS ALSO MADE SIMILAR OBSERVATIONS IN THE ASSESSMENT ORDER OF JAILAXMI DATED 29 - 12 - 2010. THUS WE FOUND THAT THE A.O. WAS WELL AWARE OF THE FACT THAT THE RELEVANT DOCUMENTS (PAGES 64 & 65) HAD BEE N SEIZED FROM THE ASSESSEES PREMISES AS POINTED OUT IN THE ORDERS OF ICONIC AND JAILAXMI AT VARIOUS PLACES AND IT WAS HIS CONSCIOUS DECISION NOT TO MAKE ANY ADDITION IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THESE SEIZED MATERIALS. WE FOUND THAT THE NO TICE U/S 263 OF THE ACT WAS ISSUED BY THE LD. CIT ON THE PLEA THAT JAILAXMI AND ICONIC HAVE DISOWNED THE SEIZED PAGES, ACCORDINGLY THE A.O. SHOULD MAKE FURTHER ENQUIRY AND MAKE PROTECTIVE ADDITION IN THE HANDS OF THE ASSESSEE. IN THE SHOW CAUSE NOTICE DAT ED 20 - 02 - 2013, THE LD. CIT HAS STATED THAT THE CONCERNED SEIZED DOCUMENTS WHICH REFLECT THE UNACCOUNTED CASH PAYMENTS ARE DISOWNED BY THE JAILAXMI AND ICONIC AND HENCE THE ASSESSEE WAS TO EXPLAIN AS TO WHY THE ASSESSMENT ORDER PASSED U/S 143(3) SHOULD NOT BE HELD AS ERRONEOUS. HOWEVER, TH IS OBSERVATION OF THE LD. CIT FACTUALLY INCORRECT , I N SO FAR AS ICONIC HAS CLEARLY ADMITTED THAT THE AMOUNT OF RS. 1.73 CRORES WHICH IS REFLECTED IN THE SEIZED DOCUMENT, IS A PART OF RS. 88.51 CRORES WHICH WAS TRANSFERRED B Y IT TO MR. MADAN KILAMBEKAR. THIS CONTENTION OF ICONIC HAS BEEN REPRODUCED ON PAGE 3 OF THE IMPUGNED ORDER U/S 263 DATED 26 - 03 - 2013 PASSED BY THE LD. CIT AGAINST WHICH THE ASSESSEE IS IN APPEAL. ITA 3992 / M/ 1 3 8 8 . AS PER OUR CONSIDERED OPINION, WHETHER A PROTECTIVE ADD ITION SHOULD BE MADE OR NOT IS THE PREROGATIVE OF THE A.O. AND NOT THE LD. CIT. IT IS ONLY IN A CASE WHERE THE A.O. IS NOT SATISFIED OR UNSURE AS TO WHOM THE TRANSACTION RELATES TO THAT A PROTECTIVE ADDITION IS MADE BY HIM. SATISFACTION OR OTHERWISE OF T HE LD. CIT CANNOT REPLACE THE SATISFACTION OF THE A.O. WHICH HAS BEEN ARRIVED AT AFTER RECORDING ELABORATE DISCUSSIONS. THE LD. CIT CAN INITIATE 263 PROCEEDINGS ONLY IF HE IS CERTAIN ABOUT THE ERROR. THE DUAL CONDITIONS THAT THE ORDER WHICH IS THE SUBJECT MATTER OF REVISION IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OR REVENUE NEEDS TO BE SATISFIED. FURTHER MORE PRESUMPTION U/S 292 - C OF THE ACT IS A REBUTTABLE PRESUMPTION , HAS BEEN ACCEPTED BY THE DEPARTMENT IN SO FAR AS THE DEPARTMENT ITSELF HAS REBUTTE D THE PRESUMPTION U/S 292C BY CONCLUDING THAT THE SAID ENTRY PERTAINS TO ICONIC/JAILAXMI. THE OBSERVATION MADE BY THE LD. CIT THAT ICONIC AND JAILAXMI HAS DISOWNED THE ENTRY IS FACTUALLY INCORRECT. 9 . IT IS CLEAR FROM THE RECORD THAT COMPLETE INQUIRY HAS BEEN MADE BY THE A.O. IN THE CASE OF THE ASSESSEE, ICONIC, JAILAXMI AS WELL AS MADAN KOLAMBEKAR (WHO IS THE LAND AGGREGATOR) AND HENCE NO FURTHER INQUIRY IS CALLED FOR. IN FACT, NO INQUIRY CAUSED IN THE ORDER FRAMED U/S 143(3)/263 OF THE ACT , FURTHER SUPP ORTS OUR CONCLUSION THAT NO INQUIRY WAS REQUIRED. 10 . IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THE ORDER PASSED U/S 263 OF THE ACT IN SO FAR AS THE ADDITIONS HAVE ALREADY BEEN MADE BOTH IN THE HANDS OF ICONIC REALTORS LTD. & JAILAXMI RE ALTY AND DEVELOPERS LTD. ON SUBSTANTIVE BASIS AFTER CONSIDERING THE ENTRIES RECORDED IN THE SEIZED DOCUMENT. ITA 3992 / M/ 1 3 9 1 1 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER, 2014 . 28/11/2014 SD / - SD/ - ( VIVEK VARMA ) ( R.C. SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 28/11/20014 RK , SR. PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT CENTRAL - III , MUMBAI 4. / CIT - MUMBAI 5. / DR, ITAT, MUMBA I G BENCH 6. GUARD FILE . / BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI