ITO, New Delhi V. Sh Express Towers Pvt. Ltd., New Delhi

ITA 4188/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97726 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-10-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANT GUPTA SENIOR
• Keywords: Business income; Additional evidence; Reassessment proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI A.T. VARKEY, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.4188/DEL./2012 (ASSESSMENT YEAR : 2006-07) ITO, WARD 11 (2), VS. M/S. EXPRESS TOWERS PVT. LT D., NEW DELHI. M 33, 2 ND FLOOR, GREATER KAILASH I, NEW DELHI 110 048. (PAN : AAACE0005E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.S. SINGHVI, CA REVENUE BY : SHRI HEMANT GUPTA, SENIOR DR DATE OF HEARING : 14.10.2015 DATE OF PRONOUNCEMENT : 10.11.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE REVENUE, IS DIR ECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-X III, NEW DELHI DATED 04.05.2012 FOR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF BUILDING CONSTRUCTION. DURING THE YEAR, THE ASSESSEE DECLARE D A TURNOVER OF RS.46.50 LAKHS AND SHOWN A NET PROFIT OF RS.1.46 LAKHS. THE ASSESSEE FILED RETURN OF INCOME DECLARING INCOME OF RS.92,654/- ON 25.11.200 6. THE CASE WAS ITA NO4188 /DEL./2012 2 PROCESSED U/S 143 (1) OF THE ACT AND SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143 (2) WAS ISSUED ON 0 1.10.2007. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE SUBMITTED BEFORE T HE AO THAT THE ASSESSEE HAD ENTERED INTO A COLLABORATION AGREEMENT WITH SHR I ARUN KUMAR OF 175, TAGORE GARDEN, DELHI FOR CONSTRUCTING THE SAID PROP ERTY WITH ITS FUNDS. AS PER THE SAID COLLABORATION AGREEMENT, THE BASEMENT AND GROUND FLOOR WAS TO BE GIVEN TO SHRI ARUN KUMAR WHEREAS THE TITLE OF 1 ST , 2 ND AND 3 RD FLOOR OF THE PROPERTY WOULD BE WITH THE ASSESSEE. IT WAS SU BMITTED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SOLD 1 ST AND 2 ND FLOOR OF THE SAID PROPERTY TO THE FOLLOWING PERSONS FOR A TOTAL CONSI DERATION OF RS.46,50,000/- : (I) SHRI JAGMOHAN SINGH RS. 7,50,000/- (II) MS. KAILASH WANTI RS. 8,00,000/- (III) SHRI JASWANT SINGH RS. 9,00,000/- (IV) SHRI RAJNISH JUNEJA RS.22,00,000/- THE AO ASKED THE ASSESSEE TO EXPLAIN AS TO THE DIFF ERENCE IN RATES OF THE FLATS, WHEN THE PROPERTIES CONSTRUCTED AND SOLD WER E OF SIMILAR DESCRIPTION AND LOCATED AT THE SAME PLACED IN THE SAME BUILDING , THEN WHY THERE IS A WIDE VARIATION IN THE RATES OF SALE REPORTED BY THE ASSESSEE. THE ASSESSEE VIDE REPLY DATED 18.12.2008 STATED THAT THE PROPERT Y SOLD TO SHRI RAJNISH JUNEJA FOR RS.22 LAKHS DUE TO THE REASONS THAT THE FLAT IS IN FRONT SIDE OF THE BUILDING AND ON WIDE ROAD; SOME ALTERATIONS WERE CA RRIED OUT IN THE FLAT AS ITA NO4188 /DEL./2012 3 PER CUSTOMERS REQUIREMENT; AND THE WORK OF FIXING ITALIAN MARBLE, CUPBOARD AND ALL FITTINGS WAS GOT DONE AS DESIRED B Y THE CUSTOMER. AFTER GOING THROUGH THE SUBMISSIONS MADE BY THE ASSESSEE, THE AO WAS NOT AGREEMENT TO THE ARGUMENTS ADVANCED BY THE ASSESSEE FOR JUSTIFYING THE DIFFERENT PRICES CHARGED FOR SIMILAR PROPERTIES IN THE SAME BUILDING. HE FURTHER OBSERVED THAT NO EVIDENCES WERE PRODUCED TO SUBSTANTIATE THE CONTENTIONS RAISED BY THE ASSESSEE AND THE ASSERTIO NS MADE WERE VAGUE TO COVER UP THE VARIATIONS IN THE RATES OF SIMILAR PRO PERTIES. ACCORDINGLY, THE AO OBSERVED THAT SINCE THE PROPERTIES WERE ALL SIMI LARLY LOCATED AND OF SIMILAR DESCRIPTION, THERE WERE NO TANGIBLE REASONS FOR THEIR VALUATION AT DIFFERENT RATES; AND THE AO REJECTED THE TRADING RE SULTS DECLARED BY THE ASSESSEE ON THE GROUND THAT THESE DID NOT REFLECT T HE CORRECT PROFITS MADE IN THE REPORTED TRANSACTIONS. THE AO ACCORDINGLY ADOP TED THE VALUE OF THE PROPERTY SOLD TO SHRI RAJNISH JUNEJA FOR RS.22 LAKH S AS THE RATE FOR VALUATION OF THE OTHER PROPERTIES SOLD BY THE ASSES SEE DURING THE YEAR AND THUS, THE AO HELD THAT THE TOTAL CONSIDERATION RECE IVABLE FOR THE REPORT SALES WAS RS.88 LAKHS. THUS, HE MADE ADDITION OF RS.41,5 0,000/- (RS.88,00,000/- MINUS RS.46,50,000/- = RS.41,50,000 /-) AS THE DIFFERENCE AMOUNT BROUGHT TO TAX AS UNREPORTED PROFITS AS THE ASSESSEE HAD NOT FURNISHED ANY COMPELLING REASONS FOR TRANSACTING IT S BUSINESS AT LESS THAN THE PREVAILING PRICE OF THE PROPERTIES AS PER ITS O WN RESULTS. ACCORDINGLY, ITA NO4188 /DEL./2012 4 THE AO COMPLETED THE ASSESSMENT AT RS.42,42,654/- V IDE ORDER DATED 18.12.2008. 2.1 AGGRIEVED, ASSESSEE FILED AN APPEAL BEFORE CIT( A)-XIII, NEW DELHI. THE LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE V IDE ORDER DATED 10.07.2009. AGAINST THE ORDER OF CIT (A), THE REV ENUE FILED AN APPEAL BEFORE THE ITAT. THE TRIBUNAL VIDE ORDER DATED 25.0 2.2010 IN ITA NO.3893/DEL/2009 SET ASIDE THE ORDER OF THE CIT(A) AND RESTORED BACK THE MATTER TO THE FILE OF ASSESSING OFFICER WITH A DIRE CTION TO THE ASSESSEE TO FURNISH THE STATEMENT OF ACCOUNTS WITH RESPECT TO C OST INCURRED IN RESPECT TO EACH FLAT AND ADDITIONAL WORK UNDERTAKEN, IF ANY. 3. IN THE SECOND ROUND OF APPEAL, IN THE LIGHT OF T HE DIRECTION OF THE TRIBUNAL THE ASSESSING OFFICER PASSED CONSEQUENTIAL ORDER U/S 254 R.W.S 143(3) DATED 21.09.2011 AND AGAIN RECONFIRMED THE A DDITION MADE IN THE ORIGINAL ASSESSMENT ON THE GROUND THAT THE ASSESSEE HAS NOT COMPLIED WITH THE DATE OF HEARING FIXED ON 12.09.2011. 4. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE TH E LD. FIRST APPELLATE AUTHORITY, WHO DELETED THE ADDITION BY OBSERVING AS UNDER:- I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT , ISSUES DISCUSSED IN THE ORIGINAL ASSESSMENT ORDER, APPEAL ORDER PASSED BY MY PREDECESSOR AND DIRECTIONS OF THE HON'BLE IT A T. THE ONLY ISSUE IN DISPUTE IS REGARDING ADDITION OF RS.4 1,50,000/- AS UNRECORDED PROFIT ON SALE OF FLATS. THE ADVERSE INF ERENCE WAS DRAWN ON THE GROUND THAT IN THE SAME COMPLEX, APPEL LANT HAD SOLD FLATS TO DIFFERENT PARTIES AT DIFFERENT RATES. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT FLAT SOLD TO DR. RAJN ISH JUNEJA WAS SOLD AT RS 22 LACS AND TO OTHER PARTIES THE FLATS W ERE SOLD AT ITA NO4188 /DEL./2012 5 RS.7,50,000/- TO RS.9,00,000/- AND ACCORDINGLY ASSE SSING OFFICER APPLIED THE SALE PRICE RELATING TO DR. RAJN ISH JUNEJA IN THE CASE OF SALES MADE TO OTHER PARTIES. THE SUBMISSION OF THE APPELLANT IS THAT THE ASSESSI NG OFFICER HAS NOT PROPERLY APPRECIATED THE FACTS AND CONTENTS OF THE SALE DEED AND MECHANICALLY APPLIED THE SALE PRICE RELATI NG TO DR. RAJNISH JUNEJA IN CASE OF OTHER PARTIES IN TOTAL DI SREGARD TO LEGAL DOCUMENTS PLACED ON RECORD. IT WAS SUBMITTED THAT T HE HIGHER SALE PRICE IN CASE OF DR. RAJNISH JUNEJA WAS IN RES PECT OF ADDITIONAL WORK CARRIED OUT AT THE SPECIFIC REQUEST S OF DR. RAJNISH JUNEJA AND COMPLETE DETAILS OF THE ADDITION AL WORK WAS PLACED ON RECORD VIDE LETTER DTD. 18/12/2008 BEFORE THE ASSESSING OFFICER. IN SUPPORT OF THE ABOVE POSITIO N, THE APPELLANT HAS FURNISHED VARIOUS DOCUMENTS IN THE PA PER BOOK FILED BEFORE ME, WHICH ARE AS UNDER :- S.NO. PARTICULARS PAGE NO. 1. COPIES OF SALES DEED OF FLATS 8 30 2. COPY OF LETTER FILED BEFORE ASSESSING OFFICER DATED 18112/08 31 3. DETAILS OF EXTRA WORK CARRIED OUT 32 IN THE FLATS SOLD TO DR. JUNEJA 4. COPY OF LETTER OF DR. JUNEJA FOR 33 CARRYING OUT EXTRA WORK IT WAS SUBMITTED THAT ALL THESE DOCUMENTS WERE FURN ISHED DURING THE COURSE OF ORIGINAL ASSESSMENT BEFORE THE ASSESS ING OFFICER. HOWEVER, THE ASSESSING OFFICER HAS NOT PRO PERLY APPRECIATED THESE FACTS AND ORDER WAS PASSED IN A M ECHANICAL MANNER. IN THE ORIGINAL ASSESSMENT ORDER, THE ASSES SING OFFICER HAS MADE REFERENCE TO THE CLAIM OF THE APPELLANT RE GARDING ADDITIONAL COST INCURRED IN RESPECT OF SALE OF FLAT TO DR. RAJNISH JUNEJA AND DETAILS OF SAME WERE ALSO FURNISHED BUT THESE FACTS WERE NOT PROPERLY TAKEN INTO CONSIDERATION. FURTHER, AS PER CONTENTS OF SALE DOCUMENT, THERE IS REFERENCE TO SALE OF FULLY FURNISHED FLAT IN CASE OF DR. RAJNISH JUNEJA, BUT IN ITA NO4188 /DEL./2012 6 CASE OF OTHER PARTIES, THERE IS SPECIFIC REFERENCE TO SALE OF FLAT IN SEMI FINISHED CONDITION AND AS SUCH THE FACTS IN CA SE OF DR. RAJNISH JUNEJA AND OTHER PARTIES ARE NOT COMPARABLE . IT IS SEEN THAT THE ASSESSING OFFICER HAS NOT MADE ANY VERIFICATION OR ENQUIRY WITH THE PARTIES TO WHOM FL ATS WERE SOLD FROM RS.7,50,000/- TO RS. 9,00,000/- AND NO INFORMA TION HAS BEEN BROUGHT ON RECORD THAT THE APPELLANT HAS TAKEN ANY SALE CONSIDERATIONS FROM THESE PARTIES WHICH IS NOT RECO RDED IN THE BOOKS. THERE IS NO MATERIAL IN THE POSSESSION OF AS SESSING OFFICER TO SUPPORT THE ALLEGATION OF UNRECORDED PRO FIT IN THE HANDS OF THE APPELLANT. THE VARIOUS CASE LAWS DISCU SSED IN THE SUBMISSION OF THE APPELLANT AND EXTRACTED ABOVE FUL LY SUPPORT THE CASE OF THE APPELLANT. AS PER THE SALE DEED, THE APPELLANT HAS DISCLOSED F ULL VALUE OF SALE CONSIDERATION AND AS SUCH THERE IS NO FACTUAL OR LEGAL BASIS TO CONTEMPLATE ANY NOTIONAL OR HYPOTHETICAL SALE CO NSIDERATION IN THE ABSENCE OF ANY SPECIFIC EVIDENCE OR MATERIAL IN THE POSSESSION OF THE ASSESSING OFFICER. IN FACT, THE TRIBUNAL HAS ALSO DIRECTED THE ASSESSI NG OFFICER TO VERIFY THE FACT OF ADDITIONAL COST INCURRED IN RESP ECT OF SALE OF FLAT TO DR. RAJNISH JUNEJA. IN THE LIGHT OF CORROBO RATIVE EVIDENCES PLACED ON RECORD IN SUPPORT OF ADDITIONAL COST INCURRED BY THE APPELLANT, WHICH IS SUPPORTED BY TH E SALE DEED MADE WITH DR. JUNEJA AND THE LETTER FILED BY DR. JU NEJA FOR CARRYING OUT EXTRA WORK. IN VIEW OF THE ABOVE THERE IS NO BASIS FOR ESTIMATING EXTRA SALE CONSIDERATIONS IN THE CAS E OF APPELLANT ON PRESUMPTION AND SURMISES. HENCE, THE ADDITION MA DE BY THE ASSESSING OFFICER OF RS.41,50,000/- IS DELETED. 5. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFOR E US. THE ONLY GROUND TAKEN BY THE REVENUE IS AGAINST THE DELETION OF ADDITION OF RS,41,50,000/- 6. LD. DR SUBMITTED THAT IN THE FIRST ROUND OF APPE AL, WHILE SETTING ASIDE THE MATTER TO THE FILE OF THE AO, THE TRIBUNA L VIDE ORDER DATED ITA NO4188 /DEL./2012 7 25.02.2010 HAD DIRECTED THE ASSESSEE TO FURNISH THE STATEMENT OF ACCOUNT WITH RESPECT TO COST INCURRED WITH RESPECT TO EACH FLAT, HOWEVER, THE ASSESSEE DID NOT COMPLY WITH THE SAID DIRECTION AND DID NOT FURNISH ANY SUPPORTING DOCUMENTS/EVIDENCES DURING REASSESSMENT PROCEEDINGS DESPITE ISSUE OF SEVERAL NOTICES BY THE AO. HE FURTHER SUB MITTED THAT THE LD. CIT (A) WAS NOT RIGHT IN ADMITTING THE FRESH EVIDENCES UNDER RULE 46A OF THE ACT WITHOUT GIVING OPPORTUNITY TO THE AO TO COMMENT ON THE SAID ADDITIONAL EVIDENCES AND DELETED THE ADDITION. THE LD. DR ACCORDINGLY PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE A ND THAT OF THE AO BE RESTORED. 7. ON THE OTHER HAND, LD. AR REITERATED THE SUBMISS IONS MADE BEFORE THE LD. CIT (A) AND SUBMITTED THAT THE ASSESSEE COU LD NOT ATTEND THE HEARING ON 12.09.2011 BEFORE THE AO BECAUSE THE ASSESSEE DI D NOT RECEIVE THE NOTICE, THEREFORE, QUESTION OF NON-COMPLIANCE DOES NOT ARISE. HE, HOWEVER, SUBMITTED THAT THE AO RECONFIRMED THE ORIGINAL ASSE SSMENT ON THE SAME BASIS AND THE AO HAS NOT UNDERTAKEN ANY EXERCISE AS DIRECTED BY THE TRIBUNAL EVEN THOUGH ALL THE RELEVANT DOCUMENTS WER E ON RECORD. HE SUBMITTED THAT THE ASSESSEE SOLD 4 (FOUR) FLATS FOR A TOTAL SALES CONSIDERATION OF RS.46,50,000/- TO FOUR DIFFERENT PERSONS (DETAIL S ALREADY MENTIONED ABOVE) AND THE AO ADOPTED VALUE OF THE PROPERTY SOL D TO DR. RAJNISH JUNEJA AS THE BASIS FOR VALUATION OF OTHER PROPERTI ES SOLD DURING THE YEAR AND ADDITION WAS MADE ON NOTIONAL AND HYPOTHETICAL BASIS. HE SUBMITTED ITA NO4188 /DEL./2012 8 THAT ALL THESE SALES WERE THROUGH REGISTERED SALE D EEDS AND CORRECTNESS OF SALE CONSIDERATION WAS NOT IN DISPUTE. FURTHER, HE SUBMITTED THAT THERE WAS NO FINDING OR EVEN ALLEGATION THAT ASSESSEE HAD REC EIVED ANY UNDER HAND CONSIDERATION AND AS SUCH ADDITION ON ACCOUNT OF UN RECORDED PROFIT WAS WITHOUT ANY FACTUAL AND LEGAL BASIS. HE SUBMITTED THAT IN THE CASE OF SALE THROUGH REGISTERED SALE DEED, ONLY FULL VALUE OF CO NSIDERATION WAS REQUIRED TO BE ADOPTED IN THE ABSENCE OF ANY EVIDENCE FOR UN DISCLOSED OR UNDERHAND CONSIDERATION AND THE LEGAL POSITION TO THIS EFFECT IS WELL SETTLED. HE FURTHER SUBMITTED THAT EVEN OTHERWISE, FACTS AND BASIS OF S ALE VALUE WAS DIFFERENT IN THE CASE OF DR. RAJNISH JUNEJA AND OTHER PARTIES AN D THIS POSITION WAS SELF EVIDENT FROM REGISTERED SALE DEED ITSELF. HE SUBMI TTED THAT ALL THESE RELEVANT DOCUMENTS WERE ALREADY ON RECORD. HE FURT HER SUBMITTED THAT THERE WERE NUMEROUS ALTERATIONS/EXTRA WORK WERE MAD E IN THE FLAT OF DR. RAJNISH JUNEJA AS PER HIS DIRECTIONS AND THE RELEVA NT EXTRACT OF DR. RAJNISH JUNEJAS LETTER WAS REPRODUCED AT PAGE 6 OF THE CIT (A)S ORDER. HE SUBMITTED THAT THE ASSESSEE CHARGED RS.13,16,750/- AS EXTRA AMOUNT IN RESPECT OF ABOVE STATED FLAT FOR EXTRA WORK CARRIED OUT AND DUE TO LOCATION OF FLAT BEING IN FRONT SIDE OF BUILDING ON WIDE ROA D AND VARIOUS OTHER FIXTURES AND FITTINGS. HE FURTHER SUBMITTED THAT A LL THE DETAILS OF EXTRA CHARGES AMOUNTING TO RS.13,16,750/-WERE GIVEN BY TH E ASSESSEE WHICH WERE REPRODUCED AT PAGE 6 OF CIT (A)S ORDER. IT WA S SUBMITTED BY THE LD. AR THAT THE ASSESSING OFFICER HAD NOT DISPUTED THAT THESE MODIFICATIONS ITA NO4188 /DEL./2012 9 WERE CARRIED OUT AT THE SPECIFIC REQUEST OF THE PAR TY AND RECEIPT AND EXPENSES WERE DULY RECORDED AND ACCOUNTED FOR IN TH E BOOKS OF ACCOUNT OF THE ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT TH E ASSESSING OFFICER HAD NOT BROUGHT ANY EVIDENCE TO CLAIM THAT THE ASSESSEE HAD RECEIVED ANY UNDERHAND SALE CONSIDERATION AND THE FACT OF SALE C ONSIDERATION WAS IN DISPUTE IN THE CASE OF BUYERS. HE SUBMITTED THAT ON CE IT WAS ESTABLISHED THAT FULL VALUE OF CONSIDERATION HAD BEEN DISCLOSED, THE RE WAS NO CASE FOR ANY ADDITION. IN THIS REGARD, THE LD. AR RELIED ON VAR IOUS JUDICIAL PRONOUNCEMENTS. ACCORDINGLY, HE PLEADED THAT THE LD . CIT (A) HAS RIGHTLY DELETED THE ADDITION. SO, HE DOES NOT WANT US TO I NTERFERE IN THE ORDER OF THE LD. CIT (A). 8. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. WE FIND THAT THE ONLY ISSUE IN DISPUTE IS REGARDING ADDITION OF RS.41,50,000/- AS UNRECORDED PROFIT ON SALE OF FLAT S AND THE AO MADE THE ADDITION ON THE GROUND THAT ASSESSEE HAD SOLD FLAT S TO DIFFERENT PARTIES AT DIFFERENT RATES. WE FIND THAT THE ASSESSING OFFICE R OBSERVED THAT FLAT WAS SOLD TO DR. RAJNISH JUNEJA AT RS 22 LACS AND TO OTH ER PARTIES THE FLATS WERE SOLD AT RS.7,50,000/- TO RS.9,00,000/- AND ACCORDIN GLY, ASSESSING OFFICER APPLIED THE SALE PRICE RELATING TO DR. RAJNISH JUNE JA IN THE CASE OF SALES MADE TO OTHER PARTIES. WE FIND THAT THE LD. CIT ( A) HAS OBSERVED THAT THE ASSESSING OFFICER HAS NOT PROPERLY APPRECIATED THE FACTS AND CONTENTS OF THE SALE DEED AND MECHANICALLY APPLIED THE SALE PRI CE RELATING TO DR. ITA NO4188 /DEL./2012 10 RAJNISH JUNEJA IN THE CASE OF OTHER PARTIES IN TOTA L DISREGARD TO LEGAL DOCUMENTS PLACED ON RECORD. WE FURTHER FIND THAT T HE ASSESSEE HAS FURNISHED FOLLOWING DOCUMENTS IN THE PAPER BOOK BEF ORE THE LD. CIT (A) REGARDING THE ADDITIONAL WORK CARRIED OUT AT THE SP ECIFIC REQUEST OF DR. RAJNISH JUNEJA : S.NO. PARTICULARS PAGE NO. 1. COPIES OF SALES DEED OF FLATS 8 30 2. COPY OF LETTER FILED BEFORE ASSESSING OFFICER DATED 18112/08 31 3. DETAILS OF EXTRA WORK CARRIED OUT 32 IN THE FLATS SOLD TO DR. JUNEJA 4. COPY OF LETTER OF DR. JUNEJA FOR 33 CARRYING OUT EXTRA WORK WE FIND THAT THE LD. CIT (A) OBSERVED THAT THESE D OCUMENTS WERE FURNISHED BEFORE THE AO DURING THE ORIGINAL ASSESSMENT, HOWEV ER, THE ASSESSING OFFICER HAS NOT PROPERLY APPRECIATED THESE FACTS AN D ORDER WAS PASSED WITHOUT APPLICATION OF MIND AND IN A MECHANICAL MAN NER. WE FURTHER FIND THAT THE LD. CIT (A) HAS RIGHTLY OBSERVED THAT AS P ER CONTENTS OF SALE DOCUMENT, THERE WAS REFERENCE TO SALE OF FULLY FURN ISHED FLAT TO DR. RAJNISH JUNEJA, BUT IN THE CASE OF OTHER PARTIES, THERE WAS SPECIFIC REFERENCE TO SALE OF FLAT IN SEMI-FINISHED CONDITION AND AS SUCH, THE FLAT IN THE CASE OF DR. RAJNISH JUNEJA AND OTHER PARTIES ARE NOT COMPARABLE . WE FIND THAT THE LD. CIT (A) FURTHER OBSERVED THAT THE AO HAS NOT MADE A NY VERIFICATION OR ENQUIRY WITH THE PARTIES TO WHOM FLATS WERE SOLD FR OM RS.7,50,000/- TO RS. ITA NO4188 /DEL./2012 11 9,00,000/- AND NO INFORMATION HAS BEEN BROUGHT ON R ECORD THAT THE ASSESSEE HAS TAKEN ANY EXTRA SALE CONSIDERATIONS FROM THESE PARTIES WHICH WAS NOT RECORDED IN THE BOOKS OF THE ASSESSEE. WE FURTHER T AKE NOTE OF THE FACT THAT THE LD. CIT (A) HAS RECORDED A FINDING OF FACT THAT THERE WAS NO MATERIAL IN THE POSSESSION OF AO TO SUPPORT THE ALLEGATION OF U NRECORDED PROFIT IN THE HANDS OF THE ASSESSEE AND THE LD. DR COULD NOT CONT ROVERT THE SAID FACT BEFORE US WHICH IS MATERIAL TO DECIDE THIS ISSUE. F URTHER, THE LD. CIT (A) HAS RECORDED A FINDING OF FACT THAT AS PER THE SALE DEE D, THE ASSESSEE HAS DISCLOSED FULL VALUE OF SALE CONSIDERATION AND THE SAID FACT ALSO COULD NOT BE CONTROVERTED BY THE LD. DR BEFORE US, AS SUCH, WE A GREE WITH THE LD. CIT(A) THAT THERE WAS NO FACTUAL OR LEGAL BASIS TO CONTEMPLATE ANY NOTIONAL OR HYPOTHETICAL SALE CONSIDERATION IN THE ABSENCE O F ANY SPECIFIC EVIDENCE OR MATERIAL IN THE POSSESSION OF THE AO TO COUNTER THE STAND OF THE ASSESSEE. WE FURTHER FIND THAT IN FACT, THE TRIBUNAL HAS ALSO DIRECTED THE AO TO VERIFY THE FACT OF ADDITIONAL COST INCURRED IN RESPECT OF SALE OF FLAT TO DR. RAJNISH JUNEJA WHICH EXERCISE ALSO THE AO FAILED TO CARRY O UT BY ASKING FROM THE BUYERS OF OTHER FLATS THE COST THEY INCURRED TO BUY THE FLATS, WITHOUT DOING SO, THE ADDITION IS BASED ONLY ON PRESUMPTION AND S URMISES AND SO THE ADDITION MADE BY THE AO WAS RIGHTLY DELETED BY THE LD. CIT(A). AND WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LD. DR THAT THE LD. CIT(A) FAILED TO ASK FOR REMAND-REPORT BEFORE ADMITTING AD DITIONAL EVIDENCES BECAUSE NO NEW EVIDENCES WERE IN FACT FILED BEFORE THE LD. CIT(A) FOR THE ITA NO4188 /DEL./2012 12 FIRST TIME. THE EVIDENCES RELIED UPON BY THE LD. CI T(A) TO DELETE THE ADDITION WERE ALREADY ON THE FILE OF THE AO DURING ORIGINAL ASSESSMENTS WHICH WERE FILED ON 18.12.2008 AS DISCERNABLE FROM THE CIT(A) ORDER AT PAGE 11. SO THERE WAS NO NEED FOR THE LD CIT(A) TO SEEK ANY REMAND REPORT AS CONTEMPLATED IN THE INCOME TAX RULE. ACCO RDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER OF THE LD CIT(A) AND SO WE UPHOLD THE ORDER OF THE LD. CIT (A) AND DISMISS THE GROUNDS TAKEN BY THE REVENUE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 10 TH DAY OF NOVEMBER, 2015. SD/- SD/- (PRASHANT MAHARISHI) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 10 TH DAY OF NOVEMBER, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XIII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.