OSHIWARA LAND DEVELOPMENT CO. P. LTD, MUMBAI V. ADDL CIT RG 2(2), MUMBAI

ITA 5488/MUM/2011

• Counselvise Citation: 548819914 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 18-02-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 26-07-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 131; 133A; 80G

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND RAJENDRA (AM) . . , , ./I.T.A. NO.5488/MUM/2011 ( / ASSESSMENT YEAR:2007-08) OSHIWARA LAND DEVELOPMENT CO. PRIVATE LIMITED, 71-73 BOTAWALA BUILDING, 2 ND FLOOR, MUMBAI SAMACHAR MARG, MUMBAI-400023 / VS. ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE 2(2), MUMBAI. ( & / APPELLANT) .. ( ' & / RESPONDENT) ./ ./PAN/GIR NO. : AAACO0457E & / APPELLANT BY : S/ SHRI R.K.BOTHRA AND O.P.JAISALMERIA ' & * /RESPONDENT : SHRI PRADEEP KUMAR SINGH * - / DATE OF HEARING : 22.8.2013 * - /DATE OF PRONOUNCEMENT : 25.9.2013 / O R D E R PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2007-08 AGAINST ORDER OF LD. CIT(A) DATED 20.5.2011. 2. GROUND NOS. 1 AND 2 OF THE APPEAL TAKEN BY ASSE SSEE ARE AS UNDER : 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING ADDITION OF RS.4,13,16, 517/- TO DECLARED VALUE OF SALES; 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, W HETHER THE LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THAT DEPOSIT AMO UNT OF RS.4,13,16,517/- RECEIVED FROM SAMARTHA DEVELOPMENT CORPORATION IS N OTHING BUT SALE CONSIDERATION FOR CONVERSION OF LAND FROM LEASE HOL D TO FREE HOLD. 3. THE RELEVANT FACTS ARE THAT ASSESSEE IS A PRIVA TE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF TRADING AND DEVELOPMENT OF LAND. THE MAIN OBJECT OF THE ASSESSEE IS TO PURCHASE RIGHT, TITLE AND INTEREST OF THE INDIVI DUAL OR PARTNERSHIP FIRM AND OBTAIN I.T.A. NO.5488/MUM/2011 2 CONVEYANCE OF THE LAND IN THE NAME OF THE ASSESSE E COMPANY BY PURCHASING TITLE OF THE LAND. THE ASSESSEE COMPANY BECAME OWNER OF A VER Y LARGE PIECE OF LAND LOCATED IN OSHIWARA VILLAGE. IT IS STATED THAT THE ASSESSEE- COMPANY PURCHASED A LAND OF APPROXIMATELY 723 ACRES AT OSHIWARA VILLAGE, FROM NEW SWASTIK LAND DEVELOPMENT CORPORATION, IN WHICH SHRI DIPCHAND GARDI, DIRECTO R OF THE ASSESSEE-COMPANY WAS ALSO A PARTNER, IN THE YEAR 1979. THE SAID LAND IS LO CATED AT SURVEY NO.41 OF VILLAGE OSHIWARA. OUT OF SAID LAND, APPROXIMATELY 177 A CRES WAS ACQUIRED BY MHADA AND APPROXIMATELY 180 ACRES OF LAND WAS SOLD AS INDUST RIAL AREA TO VARIOUS PARTIES. IT IS STATED THAT LAND OF APPROXIMATELY 224 ACRES IS UNDE R NO DEVELOPMENT ZONE (HEREINAFTER REFERRED TO AS NDZ) AND THIS PIECE OF LAND WAS GIVEN ON LEASE TO PANKAJ CHS LTD.(HEREINAFTER REFERRED TO AS PCHS) WITH A R IGHT TO REDEEM IT AND MAKE IT FREEHOLD AFTER MAKING THE PAYMENT AT THE RATE ME NTIONED IN THE AGREEMENT DATED 17.9.1981 WHICH IS REGISTERED WITH SUB-REGISTRAR OF ASSURANCES. IT IS STATED THAT IN TURN PCHS HAD GIVEN DEVELOPMENT RIGHTS IN THE SAID PIECE OF LAND TO SAMARTH DEVELOPMENT CORPORATION (HEREINAFTER REFERRED TO A S SDC) VIDE AGREEMENT DATED 18.9.1981 WITH THE AGREED PRICE FOR GIVING DEVELOPM ENT RIGHTS WAS RS.10 PER SQ.FT. DURING THE FINANCIAL YEARS 2005-06 AND 2006-07, ASS ESSEE COMPANY HAD RECEIVED APPROXIMATELY RS.3 CRORES AND RS. 9 CRORES FROM SD C WHICH WAS SHOWN AS DEPOSITS. AO HAS STATED THAT THE DEPOSITS WOULD BE SHOWN AS SALE PROCEEDS AFTER RECEIPT OF FULL CONSIDERATION WHICH WOULD BE INCLUDING IN THE LEAS E RENT OF APPROXIMATELY RS.8 CRORES. 3.1 AO HAS STATED THAT THE SAID AGREEMENT DATED 17. 9.1981 IN RESPECT OF NDZ LAND SHOWED THAT THE LAND ADMEASURING 12,00,000 SQ.YARDS (1003200 SQ. MTRS.) WAS GIVEN ON MONTHLY RENT OF RS.41,500/-, FREE AND CLEAR OF A LL DEDUCTION AND WAS TO BE PAID ON OR BEFORE 10 TH DAY OF EVERY MONTH. THAT THE FIRST OF SUCH INSTA LLMENTS WAS TO BE PAID ON 10 TH DAY OF OCTOBER 1996 AND SUBSEQUENT INSTALLMENT OF GROUND RENT WAS TO BE REGULARLY PAID ON OR BEFORE 10 TH DAY OF EVERY SUCCEEDING MONTHS. THAT FIRST 15 YEA RS WERE TO BE TREATED AS FREE PERIOD FOR WHICH NO RENT WAS REQUI RED TO BE CHARGED. IN THE SAID AGREEMENT IT IS ALSO STATED THAT PCHS HAVE BEEN GIV EN RIGHTS TO PURCHASE REVERSION AT THE RATE OF 9.95 PER SQ. FT. 3.2 AO HAS FURTHER STATED THAT ANOTHER PART OF THE SAID LAND ADMEASURING 2,00,000 SQ.YARDS WAS AGREED TO BE SOLD BY ASSESSEE-COMPANY TO APNA GHAR CHS (PROPOSED) AND OTHER PART ADMEASURING 700000 SQ. YARDS WAS AGR EED TO BE SOLD TO SHRI SWAMY SAMARTH PRASANNA CHS (PROPOSED) BY SEPARATE AGREE MENTS EXECUTED IN 1975. BOTH THOSE PROPOSED SOCIETIES HAD GIVEN DEVELOPMENTS RIGHTS TO SDC BY EXECUTING I.T.A. NO.5488/MUM/2011 3 SEPARATE DEVELOPMENT AGREEMENT WITH IT. THUS, SDC HAD BEEN ASSOCIATED WITH THE ASSESSEE-COMPANY FOR ALMOST 35 YEARS. 3.3 AO HAS FURTHER STATED THAT IN THE ANNUAL REPOR T OF THE ASSESSEE-COMPANY AS ON 31.3.2006, THERE IS A REFERENCE TO LAND ADMEASURI NG 86 ACRES WHICH IS UNDER BOUNDARY DISPUTE WITH GOVERNMENT OF MAHARASHTRA AND MHADA (HEREINAFTER REFERRED TO AS LAND UNDER BOUNDARY DISPUTE). THAT THIS LA ND IS ADJOINING TO THE LAND FOR WHICH ASSESSEE-COMPANY HAD ENTERED INTO AGREEMENT WITH A PNA GHAR CHS (PROPOSED) IN 1975. THAT CONSENT TERMS WERE SIGNED BY ASSESSE E COMPANY WITH APANA GHAR CHS (PROPOSED) AND SHRI SWAMY SAMARTH PRASANNA C HS (PROPOSED), GOVERNMENT OF MAHARASHTRA AND MHADA IN 2006. THAT THE DISPUTE W ENT TO SUPREME COURT AND IT HAS DIRECTED TO BOMBAY HIGH COURT TO TAKE CONSENT TERM S ON RECORD. THE LEGAL BATTLE WAS BEING FOUGHT BY SDC. 3.4 AO HAS STATED THAT ACCORDING TO THE ASSESSEE, D URING THE YEAR, PCHS OPTED FOR CONVERTING THE SAID LAND OF 224 ACRES FALLING UND ER NDZ, COASTAL REGIONAL ZONE (HEREINAFTER REFERRED TO AS CRZ) FROM LEASEHOLD TO FREEHOLD AND AGREED TO PAY CONSIDERATION AT RS.9.95 PER SQ.FT. AS AGREED IN T HE AGREEMENT DATED 17.9.1981. THE TOTAL LAND UNDER NDZ WAS MEASURED AT 97,57,440/- SQ.FT. AND ACCORDINGLY TOTAL CONSIDERATION OF THE LAND IS WORKED OUT AT RS.9,70, 86,528/- (9757440 X 9.95). THE LAND IS MARSHY LAND WHICH IS COVERED BY MANGROVES. THAT THE AMOUNT WAS RECEIVED FROM SDC. AO HAS STATED THAT THERE HAS BEEN NO WRITTE N AGREEMENT FOR CONVERTING FREEHOLD LAND TO LEASEHOLD LAND OR ANY TRIPARTY AGREEMENT O R MOU WITH SDC. 3.5 AO HAS STATED THAT ACCORDING TO THE ASSESSEE, A S PER AGREEMENT OF LEASE DATED 17.9.1981, PCHS WAS TO PAY GROUND RENT ALONG WITH SIMPLE INTEREST AT THE RATE OF 9%. THE TOTAL GROUND RENT AS PER TERMS MENTIONED IN TH E AGREEMENT WORKED OUT TO RS.47.31 LAKHS AND THE INTEREST AT THE RATE OF 9% ON THE SAID LEASE RENT WORKED OUT TO RS.22,29,795/-. OUT OF OVERALL AMOUNT RECEIVED F ROM SDC, ABOVE AMOUNT HAS BEEN TRANSFERRED TO PROFIT AND LOSS ACCOUNT BEING LEASE RENT AND INTEREST THEREON. 3.6 AO HAS STATED THAT AS THE ASSESSEE-COMPANY HA D RECEIVED ALMOST FULL CONSIDERATION UNDER THE AGREEMENT OF 1981 AND DURI NG THE SURVEY ON 22.3.2007, THE ASSESSEE-COMPANY CONCEDED TO ACCOUNT FOR THE PROFI T ON SALE OF REVISIONARY RIGHTS AND PAID TAXES ACCORDINGLY, SUBJECT TO PENDENCY OF TH E CONVEYANCE OF THE LAND. I.T.A. NO.5488/MUM/2011 4 3.7 IT IS RELEVANT TO STATE HERE THAT THERE WAS A SURVEY ACTION UNDER SECTION 133A OF THE ACT IN THE CASE OF ASSESSEE ON 22.3.2007. DU RING THE COURSE OF SURVEY, STATEMENT OF SHRI DIPCHAND GARDI, DIRECTOR OF THE ASSESSEE-C OMPANY WAS RECORDED AND IT WAS STATED THAT THE ASSESSEE HAD RECEIVED NON-REFUNDABL E DEPOSITS FROM SDC WHICH ARE SHOWN AS DEPOSITS IN THEIR BOOKS OF ACCOUNT. AO H AS STATED THAT IN THE STATEMENT IT WAS STATED THAT THE ASSESSEE HAD AGREED TO SALE 224 ACRES OF LAND WHICH IS COVERED BY MANGROVES AND IS UNDER NDZ AND IS ALSO COVERED BY CRZ TO PCHS WITH A RIGHT TO RE- DEEM IT AND MAKE IT FREEHOLD VIDE AGREEMENT ENTERED INTO ON 17.9.1981 AND PCHS HAD IN TURN GIVEN DEVELOPMENT RIGHTS TO SDC VIDE AGREEM ENT DATED 18.9.1981. THE ASSESSEE HAD RECEIVED RS.12 CRORES FROM SDC WHICH WAS SHOWN AS DEPOSITS AND WHICH IS SHOWN AS SALE PROCEEDS AFTER RECEIPT OF FULL CONSIDERATIO N WHICH WOULD BE APPROXIMATELY INCLUDING LEASE RENT OF APPROXIMATELY 8 CRORES. AO HAS STATED IN PARA 5 OF THE ASSESSMENT ORDER THAT THE STATEMENT OF ASSESSEE I S NOT VERY CLEAR. HOWEVER, FINALLY RETURN OF INCOME WAS FILED IN WHICH PROFIT OF RS.9 ,70,86,528/- WAS SHOWN ON ACCOUNT OF SALE OF LAND AND REVERSIONARY RIGHTS ON ADDITION LEASE RENT ON LAND OF RS.47,31,000/- AND INTEREST ON LEASE RENT OF RS.22,29,795/- WERE ALSO SHOWN. AO HAS STATED THAT ACTUALLY DURING THE FINANCIAL YEARS 2005-06 AND 20 06-07, THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.16 CRORES FROM SDC. HOWEVER, IN THE PROFIT & LOSS A/C , AND BALANCE- SHEET , IN COMPUTATION OF INCOME, THE ABOVE AMOUNT OF RS.16 CRORES APPEARED AND ONLY AN AMOUNT OF RS.11,86,83,483/- HAD BEEN ATTR IBUTED TO THE ABOVE TRANSACTIONS RELATING TO LAND TO PCHS. AO HAS STATED THAT WH EN THE ABOVE AMOUNTS WERE RECEIVED BY ASSESSEE FROM SDC, THERE WAS NO WRITTEN AGREEME NT OR EVEN MOU WITH REGARD TO ANY RIGHT THEREIN. SUBSEQUENTLY, DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT HAD BEEN CLAIMED THAT AMOUNT OF RS.4,13,16,517/- WAS TOWARDS ANOTHER LAND I.E. LAND UNDER BOUNDARY DISPUTE. AO HAS STATED THAT THE C HAIRMAN OF PANKAJ CHS SHRI VIJAY PAREKH WAS CALLED AND HIS STATEMENT WAS RECORDED, INQUIRIES WERE MADE FROM SDC AND FACTS SO GATHERED DID INDICATE THAT THE FIGURES OF TRADING RECEIPTS SHOWN IN THE PROFIT AND LOSS ACCOUNT ARE NOT PRIMA FACIE CORRECT. 3.8 IN VIEW OF ABOVE, AO, ISSUED A SHOW CAUSE NOTI CE ON 18.12.2009 WITH REGARD TO THE FOLLOWING FACTS: (RELEVANT PARA OF ASSESSMENT O RDER 8.1 A) (A) THE COMPANY HAS RECEIVED AMOUNT OF RS.16 CR ORES FROM SAMARTH DEVELOPMENT CORPN. DURING THE PERIOD FROM 20.12.200 5 TO 19.08.2006. (B) THE DIRECTOR OF COMPANY - SHRI DEEPCHAND GAR DI, WAS SPECIFICALLY ASKED ABOUT NATURE OF THE DEPOSITS RECEIVED FROM SA MARTH DEVELOPMENT CORPN. DURING THE STATEMENT RECORDED ON OATH ON 22. 02.2007, A SPECIFIC QUERY WAS RAISED TO HIM AS TO WHETHER THE AMOUNT SH OWN AS DEPOSITS IS REFUNDABLE OR CAN BE CLAIMED IN ANY WAY UNDER THE T ERMS AND CONDITIONS I.T.A. NO.5488/MUM/2011 5 OF THE AGREEMENT IN THE EVENT OF THE BUYER BEING UN ABLE TO DEVELOP THE PROPERTY. IN REPLY, ASSESSEE HAS CATEGORICALLY SP ECIFIED AS UNDER: 'NO, IN CASE THE FULL SALE PRICE AND LEASE AGREEMEN T IS NOT RECEIVED, WE WILL BE ENTITLE TO FORFEIT THESE AMOUNTS IN VIEW O F THE PROVISIONS OF BREACH OF CONTRACT. IN THE NEXT TWO QUESTIONS HE HAS FURTH ER CLARIFIED THESE TRANSACTIONS, THE RELEVANT QUESTIONS AND REPLIES AR E AS UNDER: QSTN. NO.6: THESE IMPLIES THAT WHATEVER DEPOSIT YOU HAVE RECEIVED SO FAR ARE AS GOOD AS PART PURCHASE PRICE AND IF SO, WHY SHOULD IT NOT BE SHOWN AS PART OF SALE PROCEEDS AND PAY DUE T AXES ON THE SAME. I AGREE THAT WHAT WE HAVE RECEIVED IS PART CONSIDER ATION OF THE SALE PRICE AND UNDER NO CIRCUMSTANCES IT IS REFUNDA BLE. HOWEVER, AS PER THE TERMS AND CONDITIONS OF THE AGREEMENT, HE HAS S HOWN IT HAS DEPOSITED. HOWEVER, DUE TO VARIOUS HINDRANCES SUCH AS CRZ REGULATION, THE LAND BEING UNDER NO DEVELOPMENT ZONE, AND FULLY COVERED BY THE MANGROVES, IT IS DIFFICULT TO SAY AT THIS JUNCTURE, WHETHER I WILL RECEIVE THE BALANCE OF SALE PRICE. I AM A OLD MAN OF 92 YEARS O F AGE AND MY CHILDREN AND THEIR FAMILIES ARE ALREADY SETTLED ABROAD, FEEL THAT IT IS ADVISABLE TO KEEP THE PART PURCHASE PRICE SO FAR RECEIVED AS 'SA LES PROCEEDS, AND OFFER DUE TAX ON THE SALE TO BUY PEACE OF MIND AT THIS JU NCTURE OF MY LIFE. (C) THOUGH IN ABOVE STATEMENT, AN AMOUNT OF RS.12 CRORE RECEIVED FROM SAMARTH DEVELOPMENT CORPN. IS MENTIONED, THE A CTUAL AMOUNT RECEIVED FROM ABOVE CONCERN IS RS.16 CRORES. (D) HOWEVER, IN THE RETURN OF INCOME, ONLY AN AMOUN T OF RS.9,70,86,528/- BEING AMOUNT RECEIVED ON SALE OF L AND AND REVERSIONARY RIGHTS AND RS.47,31,000/- BEING THE LEASE RENT AND RS.22,29,795/- BEING INTEREST ON THE SAID LEASE RENT HAVE BEEN OFFERED A S INCOME. B. ASSESSEE WAS , ACCORDINGLY ASKED TO EXPLAIN AS TO W HY THE ENTIRE AMOUNT OF RS.16 CRORE BEING NON-REFUNDABLE DEPOSITS SHALL BE TREATED AS ITS TRADING RECEIPTS IN PROFIT & LOSS ACCOUNT. IT W AS ALSO BROUGHT TO THE NOTICE OF THE ASSESSEE THAT DURING THE SURVEY, THE AMOUNTS RECEIVED FROM SAMARTH DEVELOPMENT CORPON. HAVE BEEN ATTRIBUTED TO THE LAND IN NO DEVELOPMENT ZONE. THERE WAS NO REFERENCE TO ANY AMOUNT OF MONEY RECEIVED FROM SAMARTH DEVELOPMENT CORPN. BEIN G RELATABLE TO ANY OTHER DEAL, ITS BIFURCATION OR THE BASIS OF SUCH BIFURCATION. IT IS ONLY DURING THE ASSESSMENT PROCE EDINGS, IT HAS BEEN STATED THAT THE AMOUNT OF RS.4,13,16,517/- IS TOWARDS LAND UNDER BOUNDARY DISPUTE. ASSESSEE WAS ACCORDIN GLY ASKED THAT UNDER THESE CIRCUMSTANCES, WHY IT SHALL NOT BE CONSIDERED THAT THE ENTIRE AMOUNT RECEIVED FROM SAMARTH DEVELO PMENT CORPN. WAS TOWARDS NO DEVELOPMENT ZONE. IT WAS A LSO MENTIONED THAT WITHOUT PREJUDICE, EVEN IF IT IS ACC EPTED THAT THE AMOUNT WAS RECEIVED TOWARDS BOUNDARY DISPUTE LAND, PRIMA FACIE THE NATURE OF DEPOSIT BEING SAME, WHY THE SAM E SHALL ALSO NOT BROUGHT TO TAX. C. FOLLOWING OBSERVATIONS WERE ALSO BROUGHT TO THE NOT ICE OF ASSESSEE: I.T.A. NO.5488/MUM/2011 6 (A) THERE IS NO WRITTEN AGREEMENT WITH SAMARTH DEVELOP MENT CORPORATION AND PANKAJ CHS FROM WHERE THE REAL NA TURE OF TRANSACTION COULD HAVE BEEN ASCERTAINED. (B) THE SAME IS NOT ONLY ACCEPTED BY YOU BUT CHAIRMAN OF PANKAJ CHS- SHRI VIJAY PAREKH IN HIS STATEMENT DATED 4.12. 2009 AND A LETTER FROM SAMARTH DEVELOPMENT CORPORATION (COPY ENCLOSED). (C) SHRI DEEPCHAND GARDI HAD ACCEPTED THAT THE EN TIRE AMOUNT RECEIVED FROM SAMARTH DEVELOPMENT CORPON. IS NON-RE FUNDABLE. THE SAME FACT HAS ALSO BEEN CONFIRMED BY SAMARTH DEVELO PMENT CORPON. ACCORDINGLY, IT WAS MENTIONED IN THE SHOW CAUSE NO TICE THAT THE ABOVE FACTS ALSO INDICATE THAT THE NATURE OF ENTIRE AMOUN T RECEIVED FROM SAMARTH DEVELOPMENT CORPON. SHOULD HAVE BEEN TREATE D AS SAME.. D. THE ASSESSEE WAS ASKED TO FURNISH A DETAILED REPLY TO THIS OFFICE ON 24.12.2009 ALONG WITH ALL NECESSARY SUPPORTING DOCUMENTS ON W HICH IT WANTED TO RELY. IT WAS ALSO MENTIONED THAT WHILE MAKING REPLY, IT SHOULD ALSO KEEP IN MIND, THE VARIOUS DOCUMENTS AND EXPLAN ATIONS SUBMITTED BY IT DURING THE ASSESSMENT PROCEEDINGS, SO FAR. THE A SSESSEE WAS ALSO ASKED TO EXPLAIN THE PRESENT STATUS OF BOTH THE DEA LS, WHICH SHALL INCLUDE THE FINAL CONSIDERATION, IF ANY DECIDED/ RECEIVED O R ANY OTHER WRITTEN DOCUMENTS MADE OR EXECUTED IN WITH REGARD TO THE D EALS. 3.9 THE AO STATED THAT THE ASSESSEE FURNISHED ITS REPLY DATED 23.12.2009, AND BRIEFLY THE FOLLOWING FACTS EMERGED FROM THE SAID REPLY, WHICH ARE STATED BY AO IN PARA 8.2 AT PAGES 8 TO 10 OF THE ASSESSMENT ORDER AS UNDER : (A) IT HAS BEEN STATED THAT ASSESSEE COMPANY HAS RECE IVED RS.16 CRORES FROM SAMARTH DEVELOPMENT CORPN. AS UNDER: (I) THE LAND RELATING TO 'NO DEVELOPMENT ZONE'/ COASTAL REGIONAL ZONE/ FOREST LAND RS.11,86,83,483 (II) BOUNDARY DISPUTE LAND RELATING TO ABOUT 86 ACRES RS.4,13,16,517 RS,16,00,00,000 (B) DURING F.Y. 2005-06 AND 2006-07, THE ASSESSEE HAS R ECEIVED AN AMOUNT OF RS.16 CRORES FROM SAMARTH DEVELOPMENT CO RPN. THE COMPANY HAS RECEIVED RS.11,86,83,483/- FOR NDZ LAND IN ACCO RDANCE WITH COMPUTATION PROVIDED IN THE 1981 AGREEMENT OF COMPA NY WITH PANKAJ CHS. THE SAMARTH DEVELOPMENT CORPN. HAS PAID ABOVE AMOUNT DIRECTLY TO THE ASSESSEE COMPANY AS IT WAS OWNER OF THE LAND . (C) THE COMPANY HAS BEEN IN BOUNDARY DISPUTE OF ITS L AND IN OSHIWARA VILLAGE AND HAS LODGED CLAIM OF 86 ACRES WITH MAHARASHTRA GOVERNMENT/ MHADA. THE DISPUTE IS 35 YEARS OLD. THE CONSENTMENT TERMS WERE PASSED ON 19.12.2006, WHICH WERE ACCEPTE D BY HON'BLE SUPREME COURT VIDE ITS ORDER DATED 23.10.2008. REGA RDING THE 'BOUNDARY DISPUTE LAND' ASSESSEE HAD AN AGREEMENT DATED 02.12 .1975 AND SUPPLEMENTARY AGREEMENT DATED 18.02.1981 WITH M/S. APNA GHAR CO-OP. I.T.A. NO.5488/MUM/2011 7 HSG. SCTY.(PROPOSED) WHO IN TURN HAD ENTERED INTO A SEPARATE DEVELOPMENT AGREEMENT WITH SAMARTH DEVELOPMENT COR PN. AFTER THE LONG LITIGATION IN THE COURT, THE PLAINTIFF AND DEF ENDANT AGREED FOR CONSENT TERMS AND FINALLY THEY WERE SIGNED, SEALED AND EXEC UTED ON 19.12.2006. ON EXECUTION OF CONSENT TERMS, THE ASSESSEE AND APN A GHAR CO-OP. HSG. SCTY. REQUESTED SAMARTH DEVELOPMENT CORPN. TO PAY A ND DEPOSIT RS.4.14 CRORE TOWARDS BOUNDARY DISPUTE LAND ON ORAL UNDERST ANDING AND NO AGREEMENT / DOCUMENT WAS MADE. (D) THE TRANSACTION OF NDZ WAS CLEAR. HOWEVER, IN THE S ECOND TRANSACTION, RELATING TO BOUNDARY DISPUTE LAND IS A LONG WAY TO GO BEFORE THE LAND TO BE PURCHASED / ACQUIRED BY ASSESSEE, BR ING IT TO THE BOOKS AT THE PRICE FORMULATED BY THE GOVERNMENT AND WILL THE N SALE THE SAME TO APNA GHAR CO-OP. HSG. SCTY. AND SAMARTH DEVELOPMENT CORPN. THEREFORE, THE SALE AND PURCHASE CONSIDERATION CAN NOT BE DETERMINED AND ACCORDINGLY, THE TAXABLE PROFIT CAN NOT BE WORK ED OUT. (E) IT WAS MENTIONED THAT IN THE STATEMENT DURING THE COURSE OF SURVEY, SHRI D.S.GARDI WAS REFERRING TO THE AGREEME NT AND TRANSACTION PERTAINING TO NDZ LAND, THE SAME IS NOT TRUE FOR RS .4.14 CRORE RECEIVED FOR BOUNDARY DISPUTE LAND AND THE SAME IS REFUNDABL E, IF THE OUTCOME OF JUDGMENT IS NOT IN FAVOUR OF COMPANY OSHIWARA. (F) OTHERWISE ALSO, REGARDING NON-REFUNDABLE NATURE O F DEPOSIT OF RS.4.14 CRORE, IT IS STATED THAT IT WILL BE TAXED W HEN IT IS FORFEITED. (G) REGARDING STATEMENT RECORDED DURING THE COURSE O F SURVEY, IT WAS MENTIONED THAT WHILE GIVING STATEMENT - SHRI D.S.GA RDI HELD IN HIS MIND THAT ONLY THE LAND OF WHICH ASSESSEE COMPANY IS OWN ER IS LAND UNDER NDZ. THEREFORE, VOLUNTARILY AND WITHOUT HESITATION HE AGREED TO PAY ADVANCE TAX ON LAND FALLING UNDER NDZ I.E. ON RS.12 CRORE. SINCE FOR RS.4.14 CRORE, ASSESSEE COMPANY HAS NO LAND TO OFFE R, NO TAX CAN BE PAID ON THE SAME. (H) SUBSEQUENTLY, BIFURCATION OF AMOUNT OF RS.11,86,8 3,483/- HAS BEEN GIVEN WHICH BESIDES LAND COST GROUND RENT AND INTEREST THEREUPON CHARGEABLE BY ASSESSEE FROM PANKAJ CHS, ALSO CONSIS TS OF AN AMOUNT OF RS.1,46,36,160/- PAYABLE TO PANKAJ CHS, WHICH WAS I NITIALLY RECEIVED BY ASSESSEE WHO IN TURN HAS PAID THIS TO PANKAJ CHS, W HO IN TURN HAS PAID TAXES THEREUPON. (I) SUBSEQUENTLY, IT IS SAID THAT IT WILL BE WRONG TO SAY THAT THERE WAS NO WRITTEN AGREEMENT AS THE TRANSACTION HAS BEEN CO MPLETED ON THE BASIS OF REGISTERED AGREEMENT OF 1981. (J) FINALLY, IT IS AGAIN SAID THAT THE AMOUNT IN R ESPECT OF BOUNDARY DISPUTE LAND CAN NOT BE TAXED AS IT IS AT A VERY PR EMATURE STAGE. 3.10 THE AO HAS CONCLUDED THAT ASSESSEE HAS NOT BE EN ABLE TO SUBSTANTIATE HIS TRADING RECEIPTS BY SALE OF LAND AND REVERSIONARY R IGHTS WERE RS.11,86,83,483/- AND THE PROFIT FROM THAT WAS RS.9,70,86,528/- PLUS THE LEAS E RENT OF RS.47,31,000/- AND INTEREST I.T.A. NO.5488/MUM/2011 8 ON LEASE RENT OF RS.22,29,795/- AFTER DEDUCTION OF PAYMENT OF APPROXIMATELY RS.1.46 CRORES MADE TO PANKAJ CHS. THE AO HAS STATED TH AT HIS CONCLUSION IS BASED ON FOLLOWING FACTS : A. THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.16 CRORES FROM SDC BUT AMOUNT OF ONLY RS.11.86 CRORES TO THE LAND IN NDZ A ND BALANCE OF RS.4.13 CRORE TO THE LAND UNDER BOUNDARY DISPUTE. THE BASIS OF CALCULA TION OF CONSIDERATION OF RS.11.86 CRORES WITH RESPECT TO LAND IN NDZ IS NOT ACCEPTABL E AS THE ASSESSEE HAD COMPUTED ABOVE AMOUNT ATTRIBUTABLE TO NDZ LAND ON THE BASIS OF AGREEMENT DATED 17.09.1981 WITH PANKAJ CHS AND SANCTITY OF SAID AGREEMENT I TSELF IS SERIOUSLY DOUBTFUL BECAUSE THE PURPOSE OF THE AGREEMENT WAS MORE TO PROTECT T HE LAND FROM URBAN LAND DEVELOPMENT CEILING THAN THE PURPOSE ENUMERATED IN THE AGREEMENT. THE AO HAS STATED THE REASONS FOR SUCH DOUBTS AS UNDER: (I) THOUGH THE AGREEMENT DATED 17.09.1981 WAS BETWEEN ASSESSEE AND PANKAJ CHS, ON THE NEXT DAY ITSELF, PCHS HAD ENTER ED INTO AN AGREEMENT WITH SDC TO GIVE THE DEVELOPMENT RIGHTS TO IT. IN REALI TY, THE ARRANGEMENTS WERE BETWEEN SDC AND THE ASSESSEE COMPANY, WHICH IS CL EAR FROM THE FACT THAT IN 2006-07, WHEN THE REVERSION RIGHTS WERE SOLD BY ASS ESSEE TO PCHS, WHO IN TURN SOLD IT TO SDC, THE PAYMENT HAD ACTUALLY BEEN DIRE CTLY MADE BY SDC TO THE ASSESSEE. IN FACT, EVEN THE SHARE OF THE SOCIETY CA LCULATED @ RS.1.50 PER SQ. FT. HAD ALSO BEEN PAID BY SDC TO THE ASSESSEE WHO IN T URN HAS PAID IT TO PCHS. (II) AS PER AGREEMENT DATED 17.09.1981, THE PCHS WAS RE QUIRED TO PAY MONTHLY RENT OF RS. 41,500/- FROM 10.10.1996 ONWARD S, ON OR BEFORE THE 10TH OF EVERY PRECEDING MONTH. HOWEVER, NO SUCH RENT WAS EV ER PAID MAKING IT CLEAR THAT IN REALITY, THE AGREEMENT WAS NEVER EXECUTED. IMPORTANTLY, AS PER PARA. 6 OF THE AGREEMENT DATED, 17.9.1981, WHEREIN PCHS GOT RIGHTS TO PURCHASE REVERSION @ RS.9.95 ARE DISCUSSED, IT WAS CLEARLY M ENTIONED THAT THE LESSEE SHALL BE ENTITLED TO PURCHASE THE REVERSION AS AFOR ESAID ONLY UPTO 15.09.1981. THIS DATE HAD EXPIRED LONG BACK. (III) IN THE STATEMENT OF SHRI VIJAY PARIKH THEN CHAIRMA N OF PCHS WAS RECORDED U/S.131 OF THE INCOME TAX ACT, WHEN ASKED AS TO WH Y THE SOCIETY HAD NEVER PAID ANY RENT OR INTEREST AS PER AGREEMENT TO THE A SSESSEE FOR SO LONG, STATED THAT WHEN SOCIETY ENTERED INTO AGREEMENT WITH OSHIW ARA, SIMULTANEOUSLY DEVELOPMENT AGREEMENT WAS DONE WITH SAMARTH BY HIM. THAT ACTUALLY, THE DEAL OF DEVELOPMENT IN REALITY WAS BETWEEN SDC AND THE ASSESSEE. THE PCHS WAS INVOLVED BECAUSE IT SAVED STAMP DUTY AS WELL AS APP LICATION OF LAND CEILING ACT. AS NO CLEARANCE WAS OBTAINED BY SDC FOR DEVELOPMEN T, HE DID NOT PAY ANYTHING TO US AND IN TURN WE COULD NOT PAY ANYTHING TO TH E ASSESSEE. THE AO STATED THAT ABOVE REPLY MAKES IT VERY CLEAR THAT PCHS WAS USED AS A CONDUIT ONLY TO SAVE STAMP DUTY AND APPLICATION OF LAND CEILING ACT . I.T.A. NO.5488/MUM/2011 9 (IV) THAT EVEN WHEN SALE OF DEVELOPMENT RIGHTS HAD TAK EN PLACE IN 2006 ON ORAL AGREEMENT BASIS, ROLE OF CHAIRMAN OF PCHS WAS VER Y LIMITED. MR. GARDI IN REPLY TO QUESTION NO.3 STATED THAT HE WAS ALMOST 95 YEARS , AND WANTED TO DECIDE THE MATTER AND IT WAS DECIDED THAT HE SHOULD BE GIVEN O NE TIME PAYMENT. PURSUANT THERETO PCHS WOULD GET ONE TIME PAYMENT AND ALL RIG HTS WOULD BE CONVEYED TO SDC. AS FAR AS PCHS WAS CONCERNED, IT HAD RECEIVE D RS.1.5 PER SQ.FT. WHICH AMOUNTS TO RS.1.46 CRORES (EXACT AMOUNT IS RS.1,46, 36,160/-). THAT LIABILITY OF LEASE RENT FROM 1996 TO 2006 AND INTEREST THEREUPON WAS PAID BY SDC TO THE ASSESSEE. SHRI GARDI STATED THAT HE KNEW ONLY WHA T AMOUNT WAS PAID TO THE ASSESSEE IN RELATION TO THE TRANSACTION. THE AO H AS STATED THAT IT IS DIFFICULT TO BELIEVE THE VERSION OF THE ASSESSEE THAT THE AMOUN T OF CONSIDERATION HAD BEEN CALCULATED ON THE BASIS OF ABOVE AGREEMENT BUT THE FOUNDATION OF WHICH ITSELF WAS VERY DISTANT TO THE REALITY. HE HAS FURTHER STATED THAT EVEN THE TERMS OF AGREEMENT HAD NOT BEEN FOLLOWED. THAT PCHS WAS R EQUIRED TO PAY THE ASSESSEE COMPANY RS.9.95 PER SQ. FOR PURCHASE OF RE VERSION RIGHTS WHILE SDC WAS REQUIRED TO PAY RS.10 PER SQ.FT. TO PCHS AS PE R THE AGREEMENT SIGNED BETWEEN THEM ON THE NEXT DATE. THUS, IN THE ENTIRE DEAL, AS PER BOTH THE AGREEMENTS OF SEPTEMBER, 1981, IF THE RIGHTS WERE TRANSFERRED FROM ASSESSEE TO SDC THROUGH PCHS, PCHS WAS TO GET 5 PAISA PER.Q.FT. . HOWEVER, IN 2006 WHEN THE ABOVE TRANSFER OF REVERSION HAD TAKEN PLACE, PC HS GOT RS.1.50 PER SQ. FT. AO HAS STATED THAT IF FOR COMPUTATION OF CONSIDERATIO N PAYABLE TO PCHS, RATE IN THE AGREEMENT IS NOT BINDING, THEN WHY THE SAME SH OULD BE CONSIDERED BINDING IN THE CASE OF ASSESSEE. AO HAS STATED THAT PCHS HAD GOT MUCH MORE THAN WHAT WAS PRESCRIBED IN THE AGREEMENT OF 1981, AND , THEREFORE, THE ASSESSEE ALSO EXPECTED TO GET MORE THAN WHAT WAS PRESCRIBED IN THE AGREEMENT. HE HAS FURTHER STATED IN THE STATEMENT OF SHRI GARDI, DI RECTOR OF ASSESSEE, NOTHING WAS STATED IN RELATION TO BOUNDARY DISPUTE LAND. FURT HER, IT HAD ALSO NOT BEEN CLARIFIED THAT ONLY PART OF DEPOSITS RECEIVED FR OM SDC WOULD BE RELATABLE TO NDZ LAND AND THE STATEMENT RECORDED ON OATH DURING THE COURSE OF SURVEY ON 22.3.2007, SHRI GARDI HAD NOT REFERRED TO THE SA ID BOUNDARY DISPUTED LAND. ON THE OTHER HAND, SHRI GARDI AGREED THAT WHAT HAD BEEN RECEIVED BY THE ASSESSEE COMPANY WAS PART CONSIDERATION OF SALE PRI CE AND UNDER NO CIRCUMSTANCES IT WAS REFUNDABLE. (V) AO HAS STATED THAT ASSESSEE RECEIVED RS.16,00,00 ,000/- FROM SDC TILL THE END OF THE PREVIOUS YEAR AND THE SAID AMOUNT SH OULD BE TREATED AS SALE CONSIDERATION. THE ASSESSEE, SUBSEQUENTLY, FLOATED A THEORY THAT BESIDES THE LAND RIGHTS IN NDZ LAND, IT HAD ENTERED INTO ANOTH ER DEAL WITH SDC WITH REGARD TO LAND IN BOUNDARY DISPUTE WITH GOVERNMENT OF MAHA RASHTRA. THUS, ASSESSEE SUBMITTED THAT OUT OF TOTAL AMOUNT OF RS.16,00,00,0 00/- RECEIVED FROM SDC, A SUM OF RS.11.86 CRORES HAD BEEN TOWARDS THE LAND U NDER NDZ AND THE BALANCE AMOUNT OF RS.4,13,16,517/- WAS TOWARDS LAND UNDER BOUNDARY DISPUTE. AO HAS STATED THAT EVEN IF THE AGREEMENT RELATING TO SALE OF BOUNDARY DISPUTE LAND IS CONSIDERED WITH REFERENCE TO AGREEMENT DATED 18.2.1 981 BETWEEN THE ASSESSEE COMPANY AND APAN GHAR (PROPOSED) AND SHRI SWAMY SAM ARTH PRASANNA CHS(PROPOSED), THE AGREED PRICE FOR SALE OF BOUND ARY DISPUTE LAND IS RS.10 PER SQ. YARD AND THE OVERALL CONSIDERATION FOR 86 A CRES LAND I.E. 348018 SQ.MTR. OR 416226 SQ.YARDS COMES TO RS.41.26 LAKHS ONLY WH ILE, THE ASSESSEE IS ASSOCIATING A MUCH BIGGER SUM OF RS.4.13 CRORES T O THE SAID LAND. THUS IT ITSELF ATTACKS THE RELIABILITY OF ASSESSEES COMPUTATION SERIOUSLY. (VI) AO HAS STATED THAT THERE HAS BEEN NO WRITTEN AGREE MENT BETWEEN ASSESSEE EITHER REGARDING THE DEAL RELATING TO L AND IN NDZ OR LAND IN BOUNDARY I.T.A. NO.5488/MUM/2011 10 DISPUTE WHEN THE PAYMENT HAD TAKEN PLACE. THAT EVE RYTHING IS BEING DONE AS PER ORAL AGREEMENT WHICH IS HIGHLY IMPROBABLE LOOK ING INTO AMOUNT INVOLVED. 3.11 IN VIEW OF ABOVE, AO HAS CONCLUDED THAT THE AMOUNT OF RS.16,00,00,000/- RECEIVED BY ASSESSEE FROM SDC IS A TRADING RECEIPT RELATABLE TO NDZ LAND. SINCE ASSESSEE HAS LINKED ONLY AN AMOUNT OF RS.11.86,83, 483/- TO NDZ LAND, AO HAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE, THE DIFFERENCE WH ICH IS RS.413,16,517/- (RS.16,00,00,000/- - RS.11,86,83,483/-). 3.12 IT IS RELEVANT TO STATE THAT THE AO HAS FURT HER STATED THAT WITHOUT PREJUDICE TO ABOVE FINDINGS THAT ENTIRE DEPOSIT OF RS.16,00,0 0,000/- IS RELATABLE TO NDZ LAND, EVEN IF ASSESSEES CONTENTION PERTAINING TO BOUNDARY DISPUTE LAND IS ACCEPTED, IT CAN BE INFERRED THAT THE RIGHTS ARISING FROM BOUNDARY D ISPUTE LAND HAD BEEN TRANSFERRED IN THE PREVIOUS YEAR RELATABLE TO ASSESSMENT YEAR UNDER C ONSIDERATION AND NON-REFUNDABLE AMOUNT RECEIVED IN LIEU OF THE SAME IS ALSO TAXAB LE, BECAUSE THE AMOUNT IS NON- REFUNDABLE, THAT AS PER AUDIT REPORT THERE IS NO S TOCK OF LAND AND THE RIGHT ARISING FROM THE BOUNDARY DISPUTE LAND HAD BEEN TRANSFERRED IN THE PREVIOUS YEAR UNDER CONSIDERATION. BEING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE TH E FIRST APPELLATE AUTHORITY. 4. ON BEHALF OF THE ASSESSEE, THE SUBMISSIONS MADE BEFORE LD. CIT(A) ARE MENTIONED BY LD. CIT(A) IN PARA 4 OF THE IMPUGNED ORDER AS UNDER : 4. IN THE WRITTEN SUBMISSION MADE, THE APPELLANT H AS CONTESTED THE FINDINGS AND OBSERVATIONS OF THE ASSESSING OFFICER BY CLAIMING THAT IT PASSED VARIOUS ACCOUNTING ENTRIES RECOGNIZING THE SALE OF LAND AND ALSO ACCOUNTING FOR THE GROUND RENT AND INTEREST RECEIVED IN RESPECT OF NDZ LAND. IT ALSO PAID THE TAX ACCORDINGLY. IT IS SUBMITTED THAT A.O. WAS COMPLETE LY WRONG IN HIS APPROACH IN ADDING THE SUM OF RS 4.13 CR IN RESPECT OF DISPUTED LAND. THE RATE OF SALE OF REVERSIONARY RIGHTS WAS MENTIONED IN THE AGREEMENT ENTERED BETWEEN THE SOCIETY AND THE APPELLANT . THE SAID AGREEMENT WAS DULY REG ISTERED WITH THE GOVERNMENT AUTHORITIES. THE SAID LAND WAS AND IS STILL UNDER T HE NO DEVELOPMENT ZONE AND THERE WOULD NOT BE ANY READY BUYER FOR THE SAID LA ND. APPELLANT WAS BOUND BY THE TERMS OF THE AGREEMENT ENTERED BETWEEN THE APPE LLANT AND THE SOCIETY. IT WAS TO RECEIVE THE AGREED RATE OF REVERSIONARY RIGH T AND THE ARREARS OF GROUND RENT. IT RECOVERED THE GROUND RENT ALONG WITH THE I NTEREST AS PER THE AGREEMENT. THE SALE PRICE WAS AS SUCH MENTIONED IN THE SAID LE ASE AGREEMENT. THE A.O. HAS JUST ON THE BASIS OF SUSPICION, ADDED THIS AMOUNT T O SALE PRICE AND LEVIED THE TAX ACCORDINGLY. 4.1 IT IS FURTHER CONTENTED THAT EXCESS AMOUNT WAS RECEIVED FOR SOME OTHER TRANSACTION. IT WAS ONLY ON THE INSISTENCE OF THE DEPARTMENT, THIS SALE WAS RECOGNIZED IN THE BOOKS OF ACCOUNTS. SECONDLY, TH IS AMOUNT WAS LYING WITH THE APPELLANT WITH THE CONSENT OF THE DEVELOPER TO BE ADJUSTED IN FUTURE AGAINST I.T.A. NO.5488/MUM/2011 11 SOME OTHER TRANSACTION. EXCESS AMOUNT AS ALLEGED B Y THE AO WAS NOT EXCESS AMOUNT FOR THIS DEAL BUT WAS RECEIVED AGAINS T SOME ALTOGETHER DIFFERENT TRANSACTION/ DEAL. THE A.O. HAS NOT BROUGHT ANY EVIDENCE IN SUPPORT OF HIS CONTENTION THAT ACTUAL SALE PRICE IS MORE THAN THE STATED IN THE BOOKS OF ACCOUNT. THE SALE PRICE HAS BEEN DULY CO NFIRMED BY THE BUYER ALSO. THESE FACTS WERE CONFIRMED BY THE DEVELOPER IN THEIR STATEMENT RECORDED UNDER SECTION 131 OF THE ACT. EVEN DURIN G SURVEY, THE DIRECTOR OF THE APPELLANT MENTIONED THAT COMPANY HAD RECEIVED IN TO TAL RS 12,00,00,000/- FROM THE DEVELOPER AGAINST THE OF THE LEASED OUT LAND TO PANKAJ SOCIETY AS DISCUSSED IN ORDER. AMOUNTS WERE RECEIVED ON ADHOC BASIS. TH E ADVANCE AMOUNT WAS APPROPRIATED TOWARDS THE SALE OF LAND ON THE BASIS OF RATE MENTIONED IN AGREEMENT DULY REGISTERED WITH THE GOVERNMENT AUTHO RITIES. WHEN THE BUYER AND SELLER BOTH INDEPENDENTLY CONFIRM THE SALE PRICE, ON WHICH GROUND THE AO CAN INCREASE THE SALE PRICE AT HIS OWN WHIMS. 4.2 WITH REGARD TO THE OTHER TRANSACTIONS THE CO MPANY HAD WITH APNA GHAR CO-OPERATIVE HOUSING SOCIETY LTD., SAMARTHA PRASANN A CO-OPERATIVE HOUSING SOCIETY LTD. AND SAMARTHA DEVELOPMENT CORPORATION, IT IS STATED THAT THE SAME WAS EXPLAINED TO THE ASSESSING OFFICER ALONG WITH A LL NECESSARY DOCUMENTS THAT THE APPELLANT WAS IN DEEP AND PROLONGED LITIGATI ON WHICH IS GOING ON FOR LAST MORE THAN 2 DECADES ABOUT THE TITLE OF LAND ADMEA SURING ABOUT 86 ACRES ADJOINING TO THE COMPANY'S LAND WITH THE GOVERNMENT OF MAHARASHTRA AND MHADA. IN 1975, THE APPELLANT HAD AGREED TO SA LE CERTAIN PIECE OF LAND TO THE PROMOTERS OF APNA GHAR COOPERATIVE HOUSING SOC IETY LTD. AND SAMARTHA PRASANNA CO-OPERATIVE HOUSING SOCIETY LTD. (PROPOSED). THE SAID LAND IS UNDER HIGH TIDE WATER AND PARTIALLY COVERED WITH MA NGROVES ETC. HOWEVER, THE LAND FALLS UNDER DEVELOPMENT ZONE. THE LAND HAS NE VER BEEN MEASURED AND THERE BEING DISPUTE ABOUT THE DEMARCATION OF BOUND ARY. AS THE LAND WAS UNDER WATER AND BEING MARSHY LAND, NO EXACT MEASUREMENT WAS AVAILABLE. WHEN THE LAND SURVEY WAS DONE IN 1978 IT WAS FOUND THAT THE APPELLANT COULD BE THE OWNER OF 86 ACRES OF LAND. THE DISPUTE ABOUT 86 ACRES OF LAND STARTED IN 1978 AND HAS TRAVELED RIGHT FROM THE LEVEL OF COLLECTO R BOMBAY AND UP TO THE BOMBAY HIGH COURT AND THEN ULTIMATELY REACHED TO TH E SUPREME COURT. BECAUSE OF THE PROLONGED LITIGATION FOR MORE THAN 2 1/2 DEC ADES, AT LEAST, THE GOOD SENSE PREVAILED AMONGST THE LITIGANTS AND CONSENT TERMS W ERE ARRIVED AT AND DRAFTED ON 19 TH DECEMBER, 2006 IN SUIT NO.3429 OF 1991 BETWEEN THE LITIGANT OF THE SAID SUIT. IN THE CONSENT TERMS ARRIVED AT, IT WAS AGREED BETWEEN THE PLAINTIFF AND THE DEFENDANTS THAT THE SAID LAND ADMEASURING A BOUT 86 ACRES AND 32 GUNTHAS IS A PART OF S.NO.120 OF VILLAGE VARSOA, TALUKA ANDHERI, MUMBAI SUBURBAN DISTRICT AND IS OWNED BY THE GOVERNMENT OF MAHARASHTRA AND MHADA. HOWEVER, AS THE LAND WAS PHYSICALLY IN THE POSSESSION OF THE APPELLANT, THE CONSENT TERMS WERE ARRIVED AT. 4 3 THE LAND ADMEASURING ABOUT 86 ACRES AND 37 GU NTHAS IS PART OF S NO.120 OF VILLAGE VARSOVA AND THE SAID LAND IS OW NED BY GOVERNMENT OF MAHARASHTRA. THE BOUNDARY AND THE DEMARCATION MADE IN THE MAP ATTACHED ARE CORRECT AND FINALLY AGREED BY ALL THE PARTIES. THE LAND UNDER DEVELOPMENT ZONE RESERVED FOR D P ROAD, BEST DEPOT, CIVIC AMENI TIES, RESIDENTIAL ZONE AND NATIONAL INSTITUTE OF OCEANOGRAPHY ETC. WERE DEMAR CATED AND DECIDED AND THE MAP WAS DRAWN ACCORDINGLY. OUT OF THE TOTAL DISPUT ED/ SUIT LAND ADMEASURING 86 ACRES AND 32 GUNTHAS, ONLY ABOUT 22 ACRES (ESTIMATE D) WAS AGREED FOR THE PLAINTIFFS SUBJECT TO THE TERMS. THE RE-MEASUREMENT S OF THE AREA WITH REGARD TO THE ENTIRE LAND IS TO BE MADE BY THE CITY SURVEY OF FICER AND THE BOUNDARIES ARE TO BE DEMARCATED AS PER THE MAP DRAWN AND ATTACHED TO THE CONSENT TERMS THE LAND TO BE GIVEN TO THE PLAINTIFFS I.E. THE APPELL ANT OR THE NOMINEE OF THE APPELLANT OR CLAIMING THROUGH THE APPELLANT SHALL B E GOVERNED BY THE I.T.A. NO.5488/MUM/2011 12 DEVELOPMENT CONTROL REGULATION OF BMC. WHATEVER THE EXPENDITURE ON DEVELOPMENT AND PROTECTION OF THE LAND IS INCURRED AND SPENT BY MHADA ON THE LAND WOULD BE PAID AND REIMBURSED TO THE MHADA BY THE PLAINTIFFS. THE LAND WHICH IS AGREED TO BE GIVEN TO THE PLAINTIFFS, RO UGHLY ABOUT 22 ACRES, IS NOT FREE OF COST, BUT THE PLAINTIFFS WILL HAVE TO PAY CONSID ERATION AT A RATE AS APPLICABLE EQUIVALENT TO MARKET VALUE PREVAILING BEFORE 10 Y EARS. OSHIWARA LAND DEVELOPMENT COMPANY PVT. LTD., IS THE MAIN PLAINTIF F IN THE MATTER IS REQUIRED TO WITHDRAW ALL THE MATTERS PENDING IN THE HIGH COURT/ CIVIL COURT. 4.4 THE DEVELOPER AND THE PROPOSED SOCIETIES HAVE MADE ORAL ARRANGEMENTS WITH THE APPELLANT THAT THE FINAL CONSIDERATION PAY ABLE TO THE COMPANY WILL BE DECIDED AND WORKED OUT AS PER THE MARKET RATE AFTER KNOWING AND GETTING TILE NECESSARY DETAILS AND PARTICULARS AS TO HOW AND WHA T CONSIDERATION IS WORKED OUT OF THE LAND TO BE GIVEN TO THE APPELLANT BY THE GO VERNMENT OF MAHARASHTRA AND MHADA. BECAUSE AS PER THE CONSENT TERMS THE CONSIDE RATION OF THE SAID LAND WILL BE AT A RATE AS APPLICABLE EQUIVALENT TO MARKET VA LUE PREVAILING BEFORE 10 YEARS; DEMARCATION OF LAND BY TILE CITY SURVEY OFFICER ON ACTUAL MEASUREMENT OF USABLE AND UNUSABLE; AREA OF THAT PIECE OF LAND, HOW AND W HAT CONSIDERATION IS PAYABLE TO MHADA FOR THE AMOUNT SPENT FOR LAST SO MANY YEA RS ON DEVELOPMENT AND PROTECTION OF THE LAND AS MENTIONED IN THE CONSENT TERMS. 4.5 SUBJECT TO ABOVE AND TILL THE ABOVE VARIABLES/ ISSUES ARE RESOLVED IN THE MEANTIME THE DEVELOPER AND THE PROPOSED SOCIETIES HAVE AGREED TO DEPOSIT OF RS.4.13 CR. WITH THE APPELLANT. THE SAID AMOUNT OF DEPOSIT OF RS.4.13 CR IS NOT THE FULL AND FINAL CONSIDERATION AS MANY VARIABLE S MENTIONED IN THE CONSENT TERMS ARE STILL TO BE FINALIZED AND EVEN THE SALE C ONSIDERATION OF THE SAID LAND FROM THE GOVERNMENT OF MAHARASHTRA TO THE PLAINTIF FS IS STILL TO BE WORKED OUT. THE AMOUNT OF RS. 4.13 CR IS NOTHING BUT MERELY A D EPOSIT IN THE HANDS OF THE COMPANY AND NOT THE FULL CONSIDERATION. THEREFORE, IT IS NOT LIABLE FOR TAX DURING THE YEAR. THE TAX LIABILITY ON THE LAND OF 22 ACR ES WILL BE PAID ON RECEIPT/ FINALIZATION OF FULL CONSIDERATION AND AFTER KNOWI NG THE TILE OF THE SAID PIECE OF LAND. HENCE THE TAX LIABILITY WILL FALL DUE FOR PA YMENT AFTER GETTING THE DEMARCATION OF THE LAND FROM THE GOVERNMENT AND BY PAYING THE CONSIDERATION OF THE LAND TO BE FORMULATED AS PER CONSENT TERMS I N THE SUIT NO.3429 OF 1991. 5. LD. CIT(A) HAS STATED THAT AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE FACTS, AND THE CONCLUSION DRAWN BY AO IN RESPECT OF TAXATION OF RS.4.13 CRORES OUT OF TOTAL AMOUNT RECEIVED BY ASSESSEE AMOUNTING TO RS.1 6 CR., IT DOES NOT REQUIRE ANY INTERFERENCE AT HIS END. HE HAS STATED THAT NO PR UDENT PERSON WILL PART WITH SUCH A SIZEABLE SUM IN RESPECT OF A DISPUTED ASSET, THAT MONEY WILL EXCHANGE HANDS ONLY WHEN THERE IS A REASONABLE HOPE FOR SALE TO SDC BY THE ASSESSEE. LD. CIT(A) HAS STATED THAT EVEN GOING BY VERSION OF THE ASSESSEE, THE AMOUNT WAS PAID BY SDC CONSEQUENT OF THE CONSENT TERMS DRAFTED ON 19.12.2006, THAT THE AMOUN T WAS PAID IN LIEU OF SURRENDER OF RIGHTS OF THE ASSESSEE IN FAVOUR OF SDC. HE HAS STATED THAT EVEN SDC IN ITS LETTER TO THE AO HAS CONCEDED, THAT THE BASIS OF CALCULATI ON OF CONSIDERATION OF RS.11.86 CRORES WITH RESPECT TO LAND IN NDZ WAS NOT FOUND ACCEPTA BLE AS THE ASSESSEE COMPANY HAD COMPUTED ABOVE AMOUNT ATTRIBUTABLE TO NDZ LAND ON THE BASIS OF AGREEMENT DATED I.T.A. NO.5488/MUM/2011 13 17.9.1981 WITH PCHS. LD. CIT(A) HAS STATED THAT A O HAS RIGHTLY STATED THAT THE SANCTITY OF AGREEMENT MADE IN 1981 ITSELF WAS SERI OUSLY DOUBTFUL AS IT WAS NEVER EXECUTED IN THE SPIRIT EARLIER, THAT THE PURPOSE OF THE AGREEMENT WAS MORE TO PROTECT THE LAND FROM URBAN LAND DEVELOPMENT CEILING THAN THE PURPOSE ENUMERATED IN THE AGREEMENT. THAT THE ASSESSEE RECEIVED THE AMOUNT IN LIEU OF TRANSFER OF THE RIGHTS IN THE SAID LAND AND THE SAID AMOUNT WAS NON-REFUNDAB LE. LD. CIT(A) HAS FURTHER STATED THAT THE ASSESSEE RECEIVED THE CONSIDERATION AMOUNT DURING THE YEAR GIVES CREDENCE TO THE FINALIZATION OF THE DEAL NOTWITHSTANDING REGIST RATION AND OTHER FORMALITIES WERE PENDING DUE TO THE LITIGATION GOING AND THE ASSESS EE HAD PARTED WITH POSSESSION OF THE SAID LAND FOR THE CONSIDERATION RECEIVED BY IT. LD . CIT(A) HAS STATED THAT THERE WAS NO COGENT BASIS FOR BIFURCATION OF SAID AMOUNT WHICH WAS NOTHING BUT AFTERTHOUGHT MORE SO IN THE LIGHT OF THE FACT THAT THERE IS NOT EVEN A WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND SDC. LD. CIT(A) HAS STATED THAT ASSES SEE HAS FAILED TO LINK THE AMOUNT OF RS.4.13 CRORES TO THE DISPUTED LAND AND FAILURE TO PROVE THE NEXUS OF THE AMOUNT WITH THE SAID LAND ONLY CONFIRMS THE OBSERVATION OF A O THAT TREATMENT GIVEN BY ASSESSEE WAS AN AFTER THOUGHT. HENCE, LD. CIT(A) HAS CONFIR MED THE ADDITION MADE BY AO. BEING AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE THE T RIBUNAL. 6. DURING THE COURSE OF HEARING. LD. AR MADE HIS SU BMISSIONS AT LENGTH ON THE LINES OF THE SUBMISSIONS MADE BEFORE THE AUTHORITIE S BELOW. HE SUBMITTED THAT THE ASSESSEE COMPANY WAS THE OWNER OF THE LAND FALLI NG IN NDZ/CRZ ADMEASURING ABOUT 224 ACRES I.E. 1083822 SQ.YARDS. LD.AR SUBMITTED THAT THERE WAS AN AGREEMENT IN THE YEAR IN 1981 BETWEEN THE ASSESSEE COMPANY AND PCHS TO LEASE OUT THE SAID PIECE OF LAND VIDE REGISTERED AGREEMENT UNDER SR.NO.S-2728 DATED 17.9.1981. HE SUBMITTED THAT PCHS SUBSEQUENTLY, ENTERED INTO DEVELOPMENT A GREEMENT WITH BUILDER SDC AND PURSUANT THERETO SDC HAD PAID AROUND RS.12 CRORE S TO THE ASSESSEE COMPANY. HE SUBMITTED THAT ASSESSEE COMPANY WAS THE OWNER OF T HE SAID LAND I.E. NDZ/CRZ WHICH WAS SHOWN AS STOCK IN TRADE IN THE BOOKS OF ASSESSE E COMPANY SINCE ITS INCEPTION I.E. FROM 1973-74 ONWARD. LD. AR SUBMITTED THAT THE ASSE SSEE COMPANY HAD BEEN IN BOUNDARY DISPUTE OF ITS LAND WITH GOVERNMENT OF MAH ARASHTRA /MHADA FOR 86 ACRES OF LAND WHICH WAS GOING ON SINCE 1975 AT VARIOUS LEVEL S. HE SUBMITTED THAT RIGHT FROM FINANCIAL YEAR 1984-85 THIS FACT HAD BEEN MENTIONE D IN THE FINANCIAL ACCOUNT EITHER BY WAY OF NOTES TO ACCOUNT OR IN THE REPORT OF BOARD OF DIRECTORS WHICH ARE ON RECORD OF THE DEPARTMENT. HE SUBMITTED THAT THE DISPUTE RELA TING TO THE LAND I.E BOUNDARY DISPUTE LAND WAS SUB-JUDICE, THAT THE SAID LAND IS PART OF S.NO.120 OF VILLAGE VARSOA AND OWNED BY GOVERNMENT OF MAHARASHTRA A ND MHADA. THE SAID LAND WAS I.T.A. NO.5488/MUM/2011 14 PHYSICALLY IN THE POSSESSION OF ASSESSEE COMPANY AND DISPUTE STARTED IN 1978. IT TRAVELLED RIGHT FROM THE LEVEL OF COLLECTOR, BOMBA Y UP TO BOMBAY HIGH COURT AND ULTIMATELY SETTLED BEFORE HONBLE APEX COURT BY ITS ORDER DATED 23.10.2008. THE LD. AR REFERRED PAGES 19 TO 29 OF THE PAPER BOOK, WHICH I S A COPY OF WRITTEN SUBMISSIONS FILED BY THE ASSESSEE COMPANY BEFORE THE AO DATED 23.12.2 009 AND STATED THAT THE ASSESSEE GAVE DETAILS OF BOUNDARY DISPUTE LAND INTERALIA THAT AFTER LONG LITIGATION IN THE COURT OF LAW, THE ASSESSEE AND THE GOVERNMENT OF MAHARASHT RA /MHADA AGREED TO CONSENT TERMS WHICH WERE ALREADY AGREED UPON, SIGNED, SEAL ED AND EXECUTED ON 19.12.2006. HOWEVER, THE SAID CONSENT TERMS WHEN PLACED BEFO RE THE HONBLE SINGLE JUDGE OF BOMBAY HIGH COURT, THE SAME WERE NOT ACCEPTED BY THE HONBLE BOMBAY HIGH COURT AND THE SINGLE JUDGE REJECTED THE CONSENT TERMS ON THE GROUND THAT VARIOUS QUESTION WERE REQUIRED TO BE GONE INTO AND CONSENT TERMS WE RE NOT LAWFUL. THAT THE ASSESSEE FILED AN APPEAL BEFORE THE DIVISION BENCH OF THE HO NBLE BOMBAY HIGH COURT AND THE DIVISION BENCH REMANDED MATTER TO THE LD.SINGLE J UDGE FOR ASCERTAINING THE GENUINENESS OF THE CONSENT TERMS. THE SAID JUDGMENT OF THE DIVISION BENCH WAS CHALLENGED BY THE ASSESSEE BEFORE THE HONBLE APEX COURT. THAT THE HONBLE APEX COURT DISPOSED OFF THE WRIT APPEAL BY ACCEPTING THE CONSENT TERMS DATED 19.12.2006 ARRIVED AT BETWEEN THE PARTIES, AND DISPOSED OF THE WRIT APPEAL VIDE ORDER DATED 23.10.2008. 6.1 THUS, DISPUTE OVER THE BOUNDARY LAND CAME TO A N END ONLY AFTER THE ORDER OF THE SUPREME COURT DATED 23.10.2008. THAT THE SAID LAND WAS NOT OUT OF SURVEY NO.41 OF VILLAGE OSHIWARA. THE LD. AR SUBMITTED THAT THE ASSESSEE COMPANY ENTERED INTO AGREEMENT FOR SALE TO THE SAID BOUNDARY DISPUTE L AND ON 2.12.1975 AND SUPPLEMENTARY AGREEMENT DATED 18.2.1981 WITH APNA G HAR CO-OPERATIVE HOUSING SOCIETY LTD (PROPOSED) AND IN TURN SAID APNA GHAR CO-OPERATIVE HOUSING SOCIETY LD. HAD ENTERED INTO SEPARATE DEVELOPMENT AGREEMENT WI TH SDC. THE LD. AR SUBMITTED THAT ON EXECUTION OF CONSENT TERMS, THE ASSESSEE C OMPANY AND APNA GHAR CHSL IMPRESSED UPON SDC TO PAY AND DEPOSIT RS.4.13 CRO RES TOWARDS THE SAID BOUNDARY DISPUTE LAND. LD.AR SUBMITTED THAT AS PER CONSENT TERMS, GOVERNMENT OF MAHARASHTRA / MHADA AGREED TO GIVE 22 ACRES OF LAND WHICH WAS T O BE DEMARCATED AS PER MAP DRAWN AND ATTACHED TO THE CONSENT TERMS AND PRICE WAS ALSO TO BE DECIDED AS SUGGESTED IN THE CONSENT TERMS I.E. AT A RATE AS AP PLICABLE TO MARKET VALUE. THUS, THE SDC ON AN ORAL UNDERSTANDING DEPOSITED THE SUM OF R S.4.13 CRORES WITH THE ASSESSEE COMPANY DURING THE YEAR 2006-07 AND NO AGREEMENT/DO CUMENTS WERE MADE. THE LD. AR SUBMITTED THAT THE SAID DEPOSIT OF RS.4.13 CRORE S (APPROXIMATELY) COULD NOT BE TERMED AS SALE CONSIDERATION AND BE TAXED BEFORE TH E FINAL JUDGMENT OF THE HONBLE I.T.A. NO.5488/MUM/2011 15 APEX COURT PASSED ON 23.10.2008. THE LD. AR SUBMIT TED THAT TWO TRANSACTIONS I.E. TRANSACTION RELATING TO NDZ/CRZ LAND AND BOUNDARY DISPUTE LAND ARE TWO SEPARATE TRANSACTIONS. THE LD. AR SUBMITTED THAT WHILE GIVI NG THE STATEMENT U/S 131, SHRI GARDI HAD IN HIS MIND ONLY THE LAND OF WHICH THE ASSESSEE -COMPANY WAS THE OWNER I.E. LAND UNDER NDZ AND AT THE INSTANCE OF THE DEPARTMENT A GREED TO PAY INCOME TAX ON THE LAND FALLING UNDER NDZ I.E. ON RS.12 CRORES THOUGH NO CONVEYANCE HAD BEEN MADE IN RESPECT OF THE SAID LAND. HE REFERRED PAGES 39 TO 56 OF THE PAPER BOOK WHICH IS A COPY OF WRITTEN SUBMISSIONS FILED BY THE ASSESSEE B EFORE LD. CIT(A) DATED 1.3.2011. LD. AR SUBMITTED THAT THE ASSESSEE AT THE INSTANCE OF SURVEY TEAM, AGREED TO RECOGNIZE THE SAID TRANSACTION OF LAND OF 224 ACRES I.E. NDZ LAND, AS SOLD AND AGREED TO PAY DUE TAXES IN FULL KNOWING THAT IT WOULD HAVE TO PAY E VEN INTEREST FOR LATE PAYMENT OF ADVANCE TAXES INSPITE OF THE FACT LEGALLY NO SALE H AD TAKEN PLACE. THUS, THE ASSESSEE- COMPANY RECOGNIZED THE AMOUNT AS SALE AT THE INSTAN CE OF THE SURVEY TEAM WHO CALCULATED THE TAXES AND PREPARED CHALLAN FOR PAYM ENT OF TAX. LD. AR SUBMITTED THAT ASSESSEE RECEIVED THE AMOUNT FROM SDC AND CREDITED IN ITS BOOKS IN THE NAME OF PCHS AND APNA GHAR CO-OPERATIVE HOUSING SOCIETY LTD. A ND THE AMOUNT WAS RECORDED AS DEPOSIT RECEIVED. IT IS ONLY AT THE INSTANCE OF D EPARTMENT AT THE TIME OF SURVEY, THE DEPOSIT OF RS.12 CRORES (APPROXIMATELY) FORM NDZ L AND WAS RECOGNIZED AS SALE TO AVOID LITIGATION AND TO CO-OPERATE WITH THE DEPART MENT. LD.AR SUBMITTED THAT PRESUMPTION DRAWN BY AO/CIT(A) THAT THE ASSESSEE H AD FLOATED A NEW STORY IS NOT CORRECT BECAUSE ALL THE FACTS WERE MENTIONED IN TH E AUDITED ACCOUNT AND FILED WITH THE RESPECTIVE DEPARTMENTS ON RESPECTIVE DATES MUCH B EFORE THE DATE OF SURVEY. THAT IT IS MERE SUSPICION OF THE AO THAT THE ASSESSEE RECEIVED MORE CONSIDERATION THAN RECOGNIZED IN THE BOOKS OF ACCOUNT FOR NDZ LAND. HE SUBMITTED THAT AO DID NOT FIND ANY DEFECT IN THE BOOKS OF ACCOUNT MAINTAINED BY TH E ASSESSEE. HE FURTHER SUBMITTED THAT THE ASSESSEE ALSO FILED CONFIRMATION OF THE AMOUNT OF PURCHASE FROM THE CONCERNED PARTY. THE LD. AR SUBMITTED THAT WHEN TH E BUYERS HAD CONFIRMED THE AMOUNT WHICH WAS PAID FOR GETTING THE LAND, THERE I S NO REASON TO ESTIMATE THE AMOUNT, WHICH IS BASED PURELY ON SUSPICION AND SURMISES AND SUBMITTED THAT BALANCE AMOUNT OF RS.4.13 CRORES (APPROXIMATELY) IS DULY REFLECTED IN THE DEPOSIT ACCOUNT OF SDC. NO EVIDENCE HAVE BEEN BOUGHT ON RECORD BY THE DEPARTM ENT TO SUBSTANTIATE THE FINDINGS THAT THE ASSESSEE HAS FABRICATED A STORY IN RESPEC T OF ANOTHER LAND I.E. BOUNDARY DISPUTE LAND. THE LD. AR SUBMITTED THAT THE DEPO SIT LYING WITH THE ASSESSEE OF RS.4.13 CRORES IS STILL SHOWN IN THE BOOKS OF ACCOUNT OF T HE ASSESSEE AND TILL THE AMOUNT IS NOT FORFEITED AS SALE CONSIDERATION, THE SAME CANNOT B E ASSESSED TO TAX. LD. AR REFERRED PAGES 51 TO 53 OF THE PAPER BOOK WHICH IS A COPY NOTE OF ACCOUNT AS ON 31 ST MARCH I.T.A. NO.5488/MUM/2011 16 2008 AND SUBMITTED THAT ASSESSEE WAS FOLLOWING THE PROCEDURE OF ACCOUNTING PROFIT ON SALE OF LAND IN THE YEAR IN WHICH ACTUAL CONVEYANC E MADE AND ACCORDINGLY THE ASSESSMENT UNDER INCOME TAX ACT WERE COMPLETED. I T IS FURTHER STATED IN THE SAID NOTE THAT RECENTLY, THERE HAS BEEN A CHANGE IN THE STAND TAKEN BY AO WHILE FRAMING THE INCOME TAX ASSESSMENT THAT AS THE ASSESSEE-COMPANY IS DOING THE BUSINESS IN THE LAND, THE PROFIT SHOULD HAVE BEEN WORKED OUT IN THE YEAR OF RECEIPT OF FULL CONSIDERATION. THE ASSESSEE-COMPANY ACCEPTED THE CONCEPT OF DEPART MENT TO AVOID LITIGATION AND CONFRONTATION. THEREFORE, IT HAS BEEN DECIDED BY T HE ASSESSEE-COMPANY TO WORK OUT THE PROFIT AND ACCOUNTED FOR IN THE BOOKS OF ACCOUN T ON SALE OF LAND SUBJECT TO PENDENCY OF ACTUAL CONVEYANCE. LD. AR FURTHER SUB MITTED THAT IN THE SAID NOTES IT WAS ALSO STATED CLEARLY THAT DISPUTE OVER THE BOUNDARY LINE OF THE LAND BEARING SURVEY NO.41 OF VILLAGE OSHIWARA WAS GOING ON. SINCE, THE MATTER IS IN DISPUTE, THE ASSESSEE COMPANY HAS NOT CONSIDERED THE SAME IN THE BOOKS OF ACCOUNT. HE SUBMITTED THAT SIMILAR NOTE WAS ALSO GIVEN IN RESPECT OF NOTES ON ACCOUNTS FOR THE YEAR ENDED ON 31.3.2009 AND REFERRED PAGES 54 TO 56 OF THE PAPER BOOK. LD. AR SUBMITTED THAT THE SAID ADDITION OF RS.4,13,16,517/- IS LIABLE TO BE DELETED AS THE SAME HAS BEEN ADDED MERELY ON SUSPICION AND PRESUMPTION. 7. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF AUTHORITIES BELOW. 8. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF AUT HORITIES BELOW, SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES AND WRITTEN SUBMISSIONS FILED BY ASSESSEE BEFORE AO/LD. CIT(A), COPIES PLACED AT PAGES 19 TO 29, 3 0 TO 38 AND 39 TO 56 OF THE PAPER BOOK. WE HAVE ALSO CONSIDERED THE SUBMISSIONS OF SHRI GARDI RECORDED DURING SURVEY ON 22.3.2007, COPY PLACED AT PAGES 57 TO 59 OF THE PAPER BOOK. 9. WE OBSERVE THAT THE ASSESSEE IS ENGAGED IN TH E BUSINESS OF TRADING AND DEVELOPMENT OF LAND. IN THE YEAR 1979, THE ASSESSE E-COMPANY PURCHASED APPROXIMATELY 723 ACRES OF LAND LOCATED AT SURVEY NO.41 OF VILLAGE OSHIWARA. OUT OF SAID LAND, APPROXIMATELY 177 ACRES WAS ACQUIRED B Y MHADA AND APPROXIMATELY 180 ACRES OF LAND WAS SOLD AS INDUSTRIAL AREA TO VARIOU S PARTIES. THE LAND OF APPROXIMATELY 224 ACRES IS UNDER NDZ AND WAS GIVEN ON LEASE T O PCHS WITH A RIGHT TO REDEEM IT AND TO MAKE FREEHOLD AFTER MAKING THE PAYMENT AT THE RATE MENTIONED IN A REGISTERED AGREEMENT DATED 17.9.1981 ( REGISTERED AT SR.NO.S- 2728). WE OBSERVE THAT THE MAJOR TERMS AND CONDITIONS OF THE SAID AGREEMENT A RE MENTIONED BY THE ASSESSEE IN THE WRITTEN SUBMISSIONS FILED BEFORE LD. CIT(A), COPY P LACED AT PAGES 30 TO 38 OF THE PAPER BOOK. IT INTERALIA PROVIDES THAT (A) LEASE FOR 98 YEARS; (B) MONTHLY GROUND RENT I.T.A. NO.5488/MUM/2011 17 RS.41,500/- ; (C ) NO GROUND RENT BE CHARGED FOR F IRST 15 YEARS; (D) MUNICIPAL TAXES IF ANY BE PAID BY THE LESSEE; (E) LESSEE SHOULD BE A BLE TO BUY REVERSIONARY RIGHT BY PAYING RS.9.95 PER SQ. FT OF PERMISSIBLE FSI; AND (F) LESSEE TO APPROACH THE GOVERNMENT TO GET THE SAID LAND CONVERTED INTO DEV ELOPMENT ZONE FROM NDZ. WE OBSERVE THAT PCHS IN TURN HAD GIVEN DEVELOPMENT R IGHTS IN THE SAID LAND I.E. NDZ TO SDC VIDE AGREEMENT DATED 18.9.1981. 10. DURING THE YEARS 2005-06 AND 2006-07, THE ASSES SEE RECEIVED APPROXIMATELY RS.16 CRORES FROM SDC. THERE WAS A SURVEY ON 22.3. 2007 AT THE PREMISES OF THE ASSESSEE. IN THE STATEMENT OF DIRECTOR OF ASSESS EE-COMPANY, SHRI DEEPCHAND GARDI, RECORDED U/S 133A OF THE ACT, THE ASSESSEE COMPANY CONCEDED TO ACCOUNT FOR THE PROFIT ON SALE OF REVISIONARY RIGHT IN THE RELEVANT ASSESS MENT YEAR UNDER CONSIDERATION FOR THE SAID LAND OF 224 ACRES LOCATED AT SURVEY NO.41 OF OSHIWARA VILLAGE AND PAID TAXES STATING THAT IT RECEIVED RS.11,86,83,483/- FROM SDC AND STATED THAT THE BALANCE AMOUNT OF RS.4,13,16,517/- WAS TOWARDS ANOTHER LA ND I.E. LAND UNDER BOUNDARY DISPUTE AND THE SAID AMOUNT WAS STATED TO BE DEPOS ITED AND WAS NOT A PART OF SALE CONSIDERATION FOR THE AMOUNT OF TRANSACTION WITH PC HS. AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE SANCTITY OF SAID AGREEMENT ENTERED INTO BETWEEN ASSESSEE-COMPANY AND PCHS WAS ITSELF DOUBTFUL BECAUSE THE PURPOSE OF THE AGREEMENT WAS TO PROTECT THE LAND FROM URBAN LA ND DEVELOPMENT CEILING THAN THE PURPOSE ENUMERATED IN THE AGREEMENT. HE FURTHER STATED THAT THERE WAS NO OTHER LAND WITH THE ASSESSEE-COMPANY AND IT WAS A ONLY CO NCOCTED STORY. AO FURTHER STATED THAT SHRI GARDI IN HIS STATEMENT ALSO ACCEPTED THA T ENTIRE AMOUNT RECEIVED FROM SDC WAS NON-REFUNDABLE AND THEREFORE THE ENTIRE AMOUNT OF RS.16 CRORES RECEIVED IS SALE CONSIDERATION FOR THE LAND TRANSACTION ENTERED INTO BY THE ASSESSEE WITH PCHS. LD. CIT(A) HAS ALSO CONFIRMED THE ACTION OF AO. HOWEV ER, WE OBSERVE THAT THERE WAS A DISPUTE GOING ON BETWEEN THE ASSESSEE WITH GOVERNME NT OF MAHARASHTRA. WE OBSERVE THAT THE ASSESSEE HAS PLACED ON RECORD FACTS TO SU BSTANTIATE THE CONTENTION THAT THERE WAS AN OTHER TRANSACTION OF LAND BETWEEN THE ASS ESSEE-COMPANY AND APNA GHAR CHS (PROPOSED), SHRI SWAMY SAMARTH PRASANNA CHS (PROPOSED) AND SAID LAND WAS LOCATED AT SURVEY NO.120 OF VILLAGE VARSOA. WE ALSO OBSERVE THAT IN RESPECT OF SAID LAND DISPUTE STARTED IN 1978 AND TRAVELED FROM THE LEVEL OF COLLECTOR BOMBAY AND THE MATTER WENT TO BOMBAY HIGH COURT IN SUIT NO.3 429 OF 1991. THE SAID FACT COULD NOT BE BRUSHED ASIDE MERELY BY STATING THAT IT WAS A CONCOCTED STORY BY THE ASSESSEE TO LINK THE PART CONSIDERATION OUT OF TOTAL AMOUN T OF RS.16 CORERS RECEIVED BY IT FROM SDC. THE FACT THAT THERE WAS A DISPUTE IN RESPECT OF LAND LOCATED AT SURVEY NO.120 OF I.T.A. NO.5488/MUM/2011 18 VILLAGE VARSOA IS ALSO SUBSTANTIATED THAT ASSES SEE-COMPANY AND GOVERNMENT OF MAHARASHTRA /MHADA AGREED FOR CONSENT TERMS WHICH W ERE SIGNED, SEALED AND EXECUTED ON 19.12.2006. HOWEVER, THE SAID CONSENT TERMS WERE NOT ACCEPTED BY HONBLE SINGLE JUDGE OF HONBLE BOMBAY HIGH COURT. THEREFORE MATTER WENT TO DIVISION BENCH OF THE HONBLE BOMBAY HIGH COURT AND THE DIVISION BENCH REMANDED IT TO THE LD. SINGLE JUDGE TO ASCERTAIN THE GENUINENES S OF THE CONSENT TERMS. IT IS ALSO OBSERVED THAT THE MATTER WENT TO THE HONBLE APEX COURT AND THE HONBLE APEX COURT BY ITS ORDER DATED 23.10.2008 ACCEPTED THE CONSENT TERMS DATED 19.12.2006 ARRIVED AT BETWEEN THE PARTIES. IN VIEW OF ABOVE, THE FINDING S OF THE AO THAT THE ASSESSEE MERELY FLOATED A THEORY THAT BESIDES THE LAND RIGHTS IN N DZ LAND, THE ASSESSEE HAD ENTERED INTO ANOTHER DEAL RELATING TO LAND IN BOUNDARY DISPUT E IS NOT JUSTIFIED AND ACCORDINGLY, PRESUMPTION DRAWN BY AUTHORITIES BELOW THAT THE EN TIRE CONSIDERATION OF RS.16 CRORES RECEIVED BY ASSESSEE IS ONLY IN RESPECT OF THE LA ND IN SURVEY NO.41 OF VILLAGE OSHIWARA IS CONTRARY TO FACTS ON RECORDS. WE OBSERVE THAT LD. CIT(A)/AO HAVE NOT ACCEPTED THE CONTENTION OF THE ASSESSEE ON SUSPICION THAT THERE WAS NO WRITTEN AGREEMENT BETWEEN THE ASSESSEE & SDC AND EVERYTHING IS DONE AS PER O RAL AGREEMENT. THE LD. CIT(A) HAS STATED THAT IT IS HIGHLY IMPROBABLE LOOKING INTO AM OUNT INVOLVED. 11. WE OBSERVE THAT THE ASSESSEE FILED CONFIRMAT ION FROM THE CONCERNED PARTY THAT FOR THE LAND SITUATED IN SURVEY NO.41 OF VILL AGE OSHIWARA, CONSIDERATION AMOUNT RECEIVED IS RS.11,86,83,483/- AND THE BALANCE AMO UNT OF RS.4,13,16,517/- IS THE DEPOSIT RECEIVED RELATING TO ANOTHER TRANSACTION O F LAND I.E. BOUNDARY DISPUTE LAND. THE DEPARTMENT HAS NOT BROUGHT ANY MATERIAL TO CONT ROVERT THE SAID SUBMISSIONS OF THE ASSESSEE AND HAS REJECTED THE CONTENTION MERELY ON SUSPICION. WE OBSERVE THAT THE LD. CIT(A) HAS ALSO GONE ON THE BASIS OF PRESUMPTION TH AT THERE IS NO DOCUMENTATION ENTERED INTO PURSUANT TO WHICH THE ASSESSEE RECEIVE D THE MONEY AGGREGATING TO RS.16 CRORES AND THUS HAS STATED THAT IT IS HIGHLY IMPROB ABLE SUCH A LARGE AMOUNT COULD BE DEPOSITED BY A THIRD PERSON ON AN ORAL UNDERSTANDIN G. 12. WE OBSERVE THAT THE ADVANCE AMOUNT OF RS.12 CR ORES (APPROXIMATELY) WAS APPROPRIATED TOWARDS THE SALE OF LAND ON THE BASIS OF AGREEMENT, WHICH IS REGISTERED AND THE BUYER AND SELLER BOTH INDEPENDENTLY ALSO CONFI RMED THE SALE PRICE. WE ARE OF THE CONSIDERED VIEW THAT CONTENTION OF THE ASSESSEE CAN NOT BE IGNORED PARTICULARLY WHEN THE ASSESSEE CATEGORICALLY STATED THAT IT WAS FOLLOWING THE PROCEDURE OF ACCOUNTING PROFIT ON SALE OF LAND IN THE YEAR IN WHICH ACTUAL CONVEYANC E MADE BUT ONLY AT THE INSTANCE OF DEPARTMENT, THE ASSESSEE RECOGNIZED THE TRANSACTION OF SALE OF LAND RELATING TO THE LAND I.T.A. NO.5488/MUM/2011 19 SITUATED IN SURVEY NO.41 OF VILLAGE OSHIWARA AND P AID THE TAXES ACCORDINGLY TO BUY PEACE AND TO AVOID LITIGATION AS AGREED TO BY THE DEPARTMENT. THE SAID FACT HAVE NOT BEEN DISPUTED BY THE AUTHORITIES BELOW IN THEIR O RDERS IN-SPITE OF THE FACT THAT THE ASSESSEE HAS STATED IN THE WRITTEN SUBMISSIONS FILE D BEFORE THE AUTHORITIES BELOW AS WELL AS DURING THE COURSE OF HIS SUBMISSIONS AT THE TIM E OF ASSESSMENT PROCEEDINGS AND BEFORE THE FIRST APPELLATE AUTHORITY AND ALSO BEF ORE US. THE SAID FACT IS ALSO EVIDENT FROM THE COPIES OF THE NOTES TO ACCOUNT WHICH ARE PLACED AT PAGES 51 TO 53 OF THE PAPER BOOK RELATING TO THE YEAR ENDED ON 31.3.2008 AND PAGES 54 TO 56 OF THE PAPER BOOK RELATING TO YEAR ENDED ON 31.3.2009. 13. CONSIDERING THE FACTS OF THE CASE, WE FIND SUBS TANCE IN THE SUBMISSIONS OF LD. AR THAT THE DEPOSIT RECEIVED FOR THE BOUNDARY DISPU TE LAND CANNOT BE BOUGHT TO TAX IN THE YEAR UNDER CONSIDERATION AS THE CONSENT TERM S AND CONDITIONS ITSELF WERE APPROVED BY THE HONBLE APEX COURT VIDE ITS ORDER DATED 23.10.2008. THEREFORE, ANY DEPOSIT RECEIVED BY THE ASSESSEE RELATING TO THE S AID BOUNDARY DISPUTE LAND, CANNOT BE ASSESSED TO TAX IN THE ASSESSMENT YEAR UNDER CON SIDERATION I.E. IN THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS GIVEN BREAK UP OF T HE AMOUNT OF RS.11,86,83,483/- ARRIVED AT FOR THE NDZ LAND AND WE OBSERVE THAT THE AO DOUBTED THE SAID CALCULATION MERELY ON SUSPICION AND IGNORING THE FACT ON RECORD PLACED BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW MERELY TO BRING THE SAID AMOUNT OF RS.4,13,16,517/- TO TAX IN THE ASSESSMENT YEAR UNDER CONSIDERATION THOUGH THE SA ID AMOUNT HAS BEEN SHOWN BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT AS DEPOSIT. THE ASSESSEE HAS RIGHTLY CONTENDED THAT THE SAID DEPOSIT OF RS.4,13,16,517/- CANNOT BE CONS IDERED AS PAYMENT FOR THE PURCHASE PRICE OF THE LAND AS THE LAND WAS TO BE DEMARCATED AND RATES WERE TO BE DETERMINED AS PER AGREED CONSENT TERMS. THE ABOVE FACT, WE OBSE RVE, HAVE ALSO BEEN STATED IN THE AUDITED ACCOUNT BY WAY OF NOTES TO THE ACCOUNTING P OLICY WHICH IS FORMING PART OF THE BALANCE SHEET. WE OBSERVE THAT IN THE WRITTEN SUBM ISSIONS FILED BEFORE THE AUTHORITIES BELOW AND ALSO REITERATED BEFORE US AT THE TIME OF HEARING, AND LD. DR COULD NOT CONTROVERT THE SAME EXCEPT RELYING ON THE ORDERS O F AUTHORITIES BELOW. 14. CONSIDERING THE FACTS OF THE CASE IN ENTIRETY, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE SAID ADDITION OF RS.4,13,16,517/- RECEIVED BY ASSESSEE FROM SDC, AS SALE CONSIDERATI ON IN THE ASSESSMENT YEAR UNDER CONSIDERATION. HENCE, WE ALLOW GROUND NOS.1 AND 2 OF THE APPEAL TAKEN BY ASSESSEE BY REVERSING THE ORDERS OF AUTHORITIES BELOW. I.T.A. NO.5488/MUM/2011 20 15. IN GROUNDS NO.3 AND 4 OF THE APPEAL, THE ASSESS EE HAS DISPUTED THE ORDER OF LD. CIT(A) IN CONFIRMING THE DEDUCTION U/S 80G OF RS.2 5,87,000/- INSTEAD OF RS.31,36,000/- BY IGNORING THE PROVISION OF SUB-SECTION (3) OF SEC TION 80G OF THE ACT. 16. RELEVANT FACTS ARE THAT THE ASSESSEE CLAIMED A SUM OF RS.25,87,000/- UNDER THE DONATION ELIGIBLE FOR 100% DEDUCTION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE BY WAY OF LETTER DATED 2.11.2009 SUBMI TTED RECEIPTS FOR RS.31,36,000/- AND CLAIMED DEDUCTION OF THE SAID AMOUNT INSTEAD O F RS.25,87,000/-. AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT T HE ASSESSEE COULD NOT MAKE A CLAIM FOR DEDUCTION OTHER THAN FILING REVISED RETURN A ND PLACED RELIANCE ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF GOETZE INDI A LTD (284 ITR 323). BEING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE THE FIRST A PPELLATE AUTHORITY. 17. LD. CIT(A) CONFIRMED THE ACTION OF AO. HENCE, THIS APPEAL BEFORE THE TRIBUNAL. 18. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES, PERUSED THE ORDERS OF AUTHORITIES BELOW. DURING THE COURSE OF HEARING, L D. AR SUBMITTED THAT THE ASSESSEE FILED REQUISITE DETAILS AT THE TIME OF ASSESSMENT PROCEED INGS, BUT THE AO DID NOT ACCEPT THE SAME ON THE GROUND THAT THE ASSESSEE SHOULD HAVE FI LED REVISED RETURN OF INCOME TO CLAIM ADDITIONAL AMOUNT OF DONATION. LD DR MERELY RELIED ON THE ORDERS OF AUTHORITIES BELOW. WE ARE OF THE CONSIDERED VIEW THAT AO COULD NOT REFUSE TO CONSIDER THE CORRECT FACTS WHEN THE CLAIM OF THE ASSESSEE IS ALREADY ON RECORD AND ASSESSEE CLAIMED WRONG AMOUNT BY MAKING INCORRECT BIFURCATION. AO IS BOUN D TO CONSIDER THE CLAIM OF THE ASSESSEE CORRECTLY AS PER LAW AND ON THE BASIS OF D OCUMENTS PRODUCED BEFORE HIM IN RESPECT OF A CLAIM MADE IN THE RETURN. IT IS NOT A NEW CLAIM WHICH WAS MADE BY THE ASSESSEE. HENCE, THE RELIANCE PLACED ON THE DECISIO N OF HONBLE APEX COURT IN THE CASE OF GOETZE INDIA LTD (SUPRA) BY AO AND NOT CONSIDE RING CORRECT CLAIM WAS NOT JUSTIFIED ON THE GROUND THAT THE SAID CLAIM COULD BE MADE ONL Y BY WAY OF REVISED RETURN BECAUSE IT WAS NOT A NEW CLAIM. THAT THE AO HAS TO CONS IDER THE CORRECT AMOUNT TO BE ALLOWED AS DEDUCTION WHILE MAKING THE ASSESSMENT ON THE BAS IS OF EVIDENCE AS MAY BE FURNISHED BEFORE HIM. HENCE, IN VIEW OF ABOVE FACTS, ASSESS EE WAS NOT REQUIRED TO FILE REVISED RETURN. BE THAT AS MAY, WE SET ASIDE THE ORDERS OF AUTHORIZES BELOW AND RESTORE THE MATTER TO THE AO WITH A DIRECTION TO ALLOW THE CL AIM OF THE ASSESSEE ON THE BASIS OF EVIDENCE AS MAY BE FURNISHED BEFORE HIM IN ACCORDAN CE WITH LAW AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. HENCE GRO UNDS NO.3 AND 4 OF THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES BY RESTORING THE I SSUE TO THE AO FOR HIS FRESH I.T.A. NO.5488/MUM/2011 21 CONSIDERATION IN ACCORDANCE WITH LAW. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED IN PART. ORDER PRONOUNCED IN THE OPEN COURT ON THE 25 TH SEPTEMBER, 2013 * 1 2 25 TH SEPTEMBER, 2013 * SD/- SD/- ( /RAJENDRA ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2 DATED 25/ 09/2013 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. & / THE APPELLANT 2. ' & / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- CONCERNED 4. 6 / CIT CONCERNED 5. 7 '9 , - 9 , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) - 9 , /ITAT, MUMBAI