Vijay Mittal , Kolkata V. ITO, Ward - 1(1), Kolkata , Kolkata

ITA 572/KOL/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3405 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-12-2020
• Assessment Year: 2005-2006
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI RAY
• Assessee Lawyers: MANISH TIWARI
• Keywords: Unexplained cash credit; Principle of natural justice; Capital Gains
• Section: 133(6); 250; 143(2); 43; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA VIRTUAL COURT HEARING (BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI S.S. GODARA, HONBLE JUDICIAL MEMBER) ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL............................................................APPELLANT C/O. S. JAYKISHAN SUITE NO. 2D, E & F 12, HO-CHI MINH SARANI KOLKATA 700 071 [PAN : AFHPM 3301 A] VS. INCOME TAX OFFICER, WARD 1(1), KOLKATA...................................................RESPONDENT APPEARANCES BY: SHRI MANISH TIWARI, FCA, APPEARED ON BEHALF OF THE ASSESSEE. SHRI DHRUBAJYOTI RAY, JCIT D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 10 TH , 2020 DATE OF PRONOUNCING THE ORDER : FEBRUARY 17 TH , 2021 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED PR. COMMISSIONER OF INCOME TAX 19, KOLKATA, (HEREINAFTER THE LD. PR. CIT), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 09/01/2018, FOR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE IS AN INDIVIDUAL AND DERIVED INCOME FROM HOUSE PROPERTY, INCOME FROM PARTNERSHIP FIRM, INTEREST INCOME AND INCOME FROM CAPITAL GAINS. FOR THE ASSESSMENT YEAR 2005-06, HE FILED HIS RETURN OF INCOME ON 30/10/2005, DECLARING TOTAL INCOME OF RS. 18,50,776/-. THE ASSESSING OFFICER ISSUED NOTICE U/S 143(2) OF THE ACT ON 05/09/2006 AND THEREAFTER COMPLETED BEST JUDGMENT ASSESSMENT, U/S 144 OF THE ACT ON 17/12/2007, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,95,16,090/- INTERALIA MAKING ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF RS.73,34,520/- AND REWORKING THE LONG TERM CAPITAL GAINS ON SALE OF LAND BY DISALLOWING THE ASSESSEES CLAIM OF, PAYMENT OF COMMISSION ON SALE OF LAND AND ALSO ADDING LIABILITIES SHOWN BY THE ASSESSEE, IN THE BALANCE SHEET. 2.1. THE ASSESSEE CARRIED THE MATTER IN APPEAL. BEFORE THE LD. CIT(A), HE MADE VARIOUS SUBMISSIONS ON MERITS. THE LD. CIT(A), CALLED FOR A REMAND REPORT. THE ASSESSING OFFICER FURNISHED THE REMAND REPORT ON 02/09/2011. THE ASSESSEE FILED HIS REPLY TO THE REMAND REPORT. THE LD. CIT(A) CALLED FOR A SECOND REMAND REPORT FROM THE ASSESSING OFFICER. THE ASSESSING OFFICER FURNISHED THE SECOND REMAND REPORT ON 04/12/2013. REPORT WAS CALLED FOR BY THE LD. CIT(A) AND THE ASSESSING OFFICER GAVE REPORT ON 28/01/2015. THE LD. CIT(A) PASSED HIS ORDER U/S 250 OF THE ACT PARTLY ALLOWING THE APPEAL OF THE ASSESSEE. HE CONFIRMED THE ADDITION OF RS.15,20,000/ UNEXPLAINED CASH DEPOSITS IN BANK AND DISALLOWED THE CLAIM OF THE ASSESSEE OF PAYMENT OF DEVELOPMENT CHARGES AND COMMISSION ON SALE OF CAPITAL GAINS ON SALE OF LAND. 3. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER IN HIS REMAND REPO RT DT. 28/01/2015 STATED THAT DEPOSITS MADE IN IDBI BANK AND WHEREAS IN HIS REMAND REPORT DT. 04/12/2013 LAST PARA HAD HELD THAT THE AMOUNT OF RS.20,000/ RAJU FROM KAPULAPPADA LAND AND FOUND TO BE GENUINE. ON THE AMOUNT OF RS.10,94,286/ OFFICER WAS THAT THE AMOUNT WAS IN THE NAME OF THE ASSESSEES MOTHER AND CONSEQUENT TO HER DEATH, FINAL DISBURSEMENT IS PENDING AND THAT ALL THESE DEPOSITS IN GLOBAL TRUST BANK A/C AND IDBI A/C WERE MADE THROUGH CHEQUES WHICH WERE FURNISHED BY THE ASSESSEE. THAT THE SOURCES WERE EXPLAINED. THUS, HE SUBMITS THAT THE QUESTION OF NOT ACCEPTING THE LIABILITY OF RS.15,00,000/- , AS PAYABLE TO SHRI N.V. RAMA RAJU AND MAKING ADDITION ON THIS ACCOUNT, IS NOT TENABLE. ON THE ISSUE OF DEVELOPMENT OF LAND, THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE HAS FURNISHED A COPY OF THE AGREEMENT ENTERED INTO WITH THE CONTRACTOR MR. U. PRABHAKAR RAO FOR DEVELOPMENT OF LAND AND ALSO THE DULY FILLED CONFIRMATIONS, IN THIS REGARD. HE ASSESSING OFFICER DURING THE REMAND PROCEEDINGS CONFIRMED BY THE LD. CIT(A). 5. THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE LD. CIT(A) AT PAGE 5 PARA 1, STA TED THAT DURING THE COURSE OF COPY OF AGREEMENTS ETC., BUT HAD NOT FURNISHED THE BANK STATEMENTS OF IDBI AND HENCE NO SPECIFIC COMMENT WAS GIVEN BY THE ASSESSING OFFICER IN THE REMAND REPORT. SUBMITTED THAT A S THERE WAS NO COM 2 ASSESSING OFFICER FURNISHED THE SECOND REMAND REPORT ON 04/12/2013. REPORT WAS CALLED FOR BY THE LD. CIT(A) AND THE ASSESSING OFFICER GAVE REPORT ON 28/01/2015. THE LD. CIT(A) PASSED HIS ORDER U/S 250 OF THE ACT PARTLY ALLOWING THE APPEAL OF THE ASSESSEE. HE CONFIRMED THE ADDITION OF RS.15,20,000/ DEPOSITS IN BANK AND DISALLOWED THE CLAIM OF THE ASSESSEE OF PAYMENT OF DEVELOPMENT CHARGES AND COMMISSION ON SALE OF LAND WHILE COMPUTING LONG TERM CAPITAL GAINS ON SALE OF LAND. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER IN HIS RT DT. 28/01/2015 STATED THAT , THE ASSESSEE COULD NOT EXPLAIN THE CASH DEPOSITS MADE IN IDBI BANK AND WHEREAS IN HIS REMAND REPORT DT. 04/12/2013 LAST PARA HAD HELD THAT THE AMOUNT OF RS.20,000/ - IS ADVANCE TAKEN FROM SHRI N.V. RAMA LAND AND THAT THE CORROBORATIVE EVIDENCE IN THIS REGARD WAS FOUND TO BE GENUINE. ON THE AMOUNT OF RS.10,94,286/ - , THE FINDING WAS THAT THE AMOUNT WAS IN THE NAME OF THE ASSESSEES MOTHER AND CONSEQUENT DISBURSEMENT IS PENDING AND THAT ALL THESE DEPOSITS IN GLOBAL TRUST BANK A/C AND IDBI A/C WERE MADE THROUGH CHEQUES AND BANK TRANSFERS THE ASSESSEE. HE POINTED OUT THAT TH E ITO WAS IN FACT SATISFIED WERE EXPLAINED. THUS, HE SUBMITS THAT THE QUESTION OF NOT ACCEPTING THE , AS PAYABLE TO SHRI N.V. RAMA RAJU AND MAKING ADDITION ON THIS ACCOUNT, IS NOT TENABLE. ON THE ISSUE OF DEVELOPMENT OF LAND, THE LD. COUNSEL FOR THE THE ASSESSEE HAS FURNISHED A COPY OF THE AGREEMENT ENTERED INTO WITH THE CONTRACTOR MR. U. PRABHAKAR RAO FOR DEVELOPMENT OF LAND AND ALSO THE DULY FILLED CONFIRMATIONS, IN THIS REGARD. HE RELIED ON THE SUBMISSIONS MADE BEFORE DURING THE REMAND PROCEEDINGS AND DISPUTED THE ADDITIONS AS THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE LD. CIT(A) AT PAGE 5 PARA 1, TED THAT DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE HAD FILED DETAILS OF COPY OF AGREEMENTS ETC., BUT HAD NOT FURNISHED THE BANK STATEMENTS OF IDBI AND HENCE NO SPECIFIC COMMENT WAS GIVEN BY THE ASSESSING OFFICER IN THE REMAND REPORT. S THERE WAS NO COM PLIANCE FROM THE ASSESSEE DURING THE ASSESSMENT ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL ASSESSING OFFICER FURNISHED THE SECOND REMAND REPORT ON 04/12/2013. A THIRD REMAND REPORT WAS CALLED FOR BY THE LD. CIT(A) AND THE ASSESSING OFFICER GAVE HIS THIRD REMAND REPORT ON 28/01/2015. THE LD. CIT(A) PASSED HIS ORDER U/S 250 OF THE ACT PARTLY ALLOWING THE APPEAL OF THE ASSESSEE. HE CONFIRMED THE ADDITION OF RS.15,20,000/ - AS DEPOSITS IN BANK AND DISALLOWED THE CLAIM OF THE ASSESSEE OF PAYMENT WHILE COMPUTING LONG TERM THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER IN HIS THE ASSESSEE COULD NOT EXPLAIN THE CASH DEPOSITS MADE IN IDBI BANK AND WHEREAS IN HIS REMAND REPORT DT. 04/12/2013 , IN THE IS ADVANCE TAKEN FROM SHRI N.V. RAMA CORROBORATIVE EVIDENCE IN THIS REGARD WAS , THE FINDING OF THE ASSESSING WAS THAT THE AMOUNT WAS IN THE NAME OF THE ASSESSEES MOTHER AND CONSEQUENT DISBURSEMENT IS PENDING AND THAT ALL THESE DEPOSITS IN GLOBAL TRUST AND BANK TRANSFERS , THE DETAILS OF E ITO WAS IN FACT SATISFIED WERE EXPLAINED. THUS, HE SUBMITS THAT THE QUESTION OF NOT ACCEPTING THE , AS PAYABLE TO SHRI N.V. RAMA RAJU AND MAKING ADDITION ON THIS ACCOUNT, IS NOT TENABLE. ON THE ISSUE OF DEVELOPMENT OF LAND, THE LD. COUNSEL FOR THE THE ASSESSEE HAS FURNISHED A COPY OF THE AGREEMENT ENTERED INTO WITH THE CONTRACTOR MR. U. PRABHAKAR RAO FOR DEVELOPMENT OF LAND AND ALSO THE DULY RELIED ON THE SUBMISSIONS MADE BEFORE THE AND DISPUTED THE ADDITIONS AS THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE LD. CIT(A) AT PAGE 5 PARA 1, APPELLATE PROCEEDINGS, THE ASSESSEE HAD FILED DETAILS OF COPY OF AGREEMENTS ETC., BUT HAD NOT FURNISHED THE BANK STATEMENTS OF IDBI AND HENCE NO SPECIFIC COMMENT WAS GIVEN BY THE ASSESSING OFFICER IN THE REMAND REPORT. HE PLIANCE FROM THE ASSESSEE DURING THE ASSESSMENT STAGE, THE ADDITION WAS CONFIRMED. HE SUBMITTED THAT THE ISSUE MAY BE SENT BACK ASSESSING OFFICER FOR FRESH ADJUDICATION AS IT APPEARS THAT THERE ARE VIOLATIONS OF PRINCIPLES OF NATURAL JUSTICE. AS REG THAT IT WAS PAID TO ONE SMT. GEETA DEVI SUBMITTED THAT, AS COMPARED WITH CHARGES ARE VERY HIGH AND THAT THIS P SUBMITTED THAT NOTICE U/S 133(6) OF THE ACT, WAS ISSUED BUT THE PERSON WAS NOT FOUND AT HER ADDRESS. THUS, HE SUBMITS THAT THE DISALLOWANCE/ADDITION HAS TO BE CONFIRMED. 5.1. THE LD. COUNSEL FOR THE ASSESSEE, THE ACT, WAS GIVEN AFTER 10 YEARS THESE CIRCUMSTANCES, ADVERSE INFERENCE CANNOT BE DRAWN IF THE PERSON IS NOT FOUND IN THE ADDRESS. HE RELIED ON THE JUDG CASE OF DIAGNOS TICS VS. CIT REPORTED IN PROPOSITION THAT , JUST BECAUSE THE PERSON COULD NOT BE FOUND AT THE GIVEN ADDRESS AFTER THREE (3) YEARS OF THE TRANSACTION, IT CANNOT BE INFERRED THAT THE PARTY DOES NOT EXIST OR THE TRANSACTION IS NOT GENUINE. 6. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTH BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 7. ON THE FIRST ISSUE, THE LD. CIT(A) AT PAGE 4 & 5 HELD AS FOLLOWS: THIS GROUND HAS BEEN PREFERRED AGAINST A. 15,20,000/- IN IDBI LTD AS UNEXPLAINED DATE 27/07/2004 04/08/2004 24/03/2005 TOTAL THE ACTION OF LD. A. O. IS NOT MAINTAINABLE FOR REASONS EXPLAINED BELOW. 1. THE ADDITION HAS BEEN MADE WITHOUT ALLOWING REASONABLE OPPORTUNITY AS EXPLAINED WHILE NARRATING THE BACKGROUND OF FRAMING ASSESSMENT U/ S. 144. 3 STAGE, THE ADDITION WAS CONFIRMED. HE SUBMITTED THAT THE ISSUE MAY BE SENT BACK FOR FRESH ADJUDICATION AS IT APPEARS THAT THERE ARE VIOLATIONS OF PRINCIPLES OF NATURAL JUSTICE. AS REG ARDS PAYMENT OF DEVELOPMENT CHARGES, HE SUBMITTED THAT IT WAS PAID TO ONE SMT. GEETA DEVI , FOR DEVELOPMENT OF LAND AT VADLAPUDI. HE COMPARED WITH PERCENTAGE OF THE SALE PRICE OF LAND CHARGES ARE VERY HIGH AND THAT THIS P ROVES THAT THE CLAIM IS NOT GENUINE. HE FURTHER SUBMITTED THAT NOTICE U/S 133(6) OF THE ACT, WAS ISSUED BUT THE PERSON WAS NOT FOUND AT HER ADDRESS. THUS, HE SUBMITS THAT THE DISALLOWANCE/ADDITION HAS TO BE CONFIRMED. THE LD. COUNSEL FOR THE ASSESSEE, IN REPLY, SUBMITTED THAT THE NOTICE U/S 133(6) OF THE ACT, WAS GIVEN AFTER 10 YEARS AT THE ADDRESS MENTIONED IN THE AGREEMENT AND UNDER THESE CIRCUMSTANCES, ADVERSE INFERENCE CANNOT BE DRAWN IF THE PERSON IS NOT FOUND IN THE ADDRESS. HE RELIED ON THE JUDG MENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE TICS VS. CIT REPORTED IN [2012] 20 TAXMANN.COM 692 (CALCUTTA) , JUST BECAUSE THE PERSON COULD NOT BE FOUND AT THE GIVEN ADDRESS AFTER TRANSACTION, IT CANNOT BE INFERRED THAT THE PARTY DOES NOT EXIST OR THE TRANSACTION IS NOT GENUINE. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTH BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - ON THE FIRST ISSUE, THE LD. CIT(A) AT PAGE 4 & 5 HELD AS FOLLOWS: - THIS GROUND HAS BEEN PREFERRED AGAINST A. O. 'S ACTION TO TREAT THE DEPOSIT OF RS. IN IDBI LTD AS UNEXPLAINED . DETAILS OF SUCH DEPOSITS ARE AS UNDER AMOUNT (RS.) REMARKS 27/07/2004 10,000 A/ C OPEN (CONTRA) 04/08/2004 10,000 RECD. FROM SAMUDRA CEMENT LTD. 24/03/2005 15,00,000 RECD. FROM N.V.RAMA RAJU FOR KAPULAPPADA - LAND 15,20,000 THE ACTION OF LD. A. O. IS NOT MAINTAINABLE FOR REASONS EXPLAINED BELOW. THE ADDITION HAS BEEN MADE WITHOUT ALLOWING REASONABLE OPPORTUNITY AS EXPLAINED WHILE NARRATING THE BACKGROUND OF FRAMING ASSESSMENT U/ S. 144. ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL STAGE, THE ADDITION WAS CONFIRMED. HE SUBMITTED THAT THE ISSUE MAY BE SENT BACK TO THE FOR FRESH ADJUDICATION AS IT APPEARS THAT THERE ARE VIOLATIONS OF ARDS PAYMENT OF DEVELOPMENT CHARGES, HE SUBMITTED OF LAND AT VADLAPUDI. HE PERCENTAGE OF THE SALE PRICE OF LAND , THE DEVELOPMENT ROVES THAT THE CLAIM IS NOT GENUINE. HE FURTHER SUBMITTED THAT NOTICE U/S 133(6) OF THE ACT, WAS ISSUED BUT THE PERSON WAS NOT FOUND AT HER ADDRESS. THUS, HE SUBMITS THAT THE DISALLOWANCE/ADDITION HAS TO BE CONFIRMED. IN REPLY, SUBMITTED THAT THE NOTICE U/S 133(6) OF THE ADDRESS MENTIONED IN THE AGREEMENT AND UNDER THESE CIRCUMSTANCES, ADVERSE INFERENCE CANNOT BE DRAWN IF THE PERSON IS NOT FOUND IN MENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE [2012] 20 TAXMANN.COM 692 (CALCUTTA) , FOR THE , JUST BECAUSE THE PERSON COULD NOT BE FOUND AT THE GIVEN ADDRESS AFTER TRANSACTION, IT CANNOT BE INFERRED THAT THE PARTY DOES NOT EXIST OR WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTH ORITIES 'S ACTION TO TREAT THE DEPOSIT OF RS. . DETAILS OF SUCH DEPOSITS ARE AS UNDER - RECD. FROM SAMUDRA CEMENT LTD. RECD. FROM N.V.RAMA RAJU FOR LAND THE ACTION OF LD. A. O. IS NOT MAINTAINABLE FOR REASONS EXPLAINED BELOW. THE ADDITION HAS BEEN MADE WITHOUT ALLOWING REASONABLE OPPORTUNITY AS EXPLAINED WHILE NARRATING THE BACKGROUND OF FRAMING ASSESSMENT U/ S. 144. 2. WITHOUT PREJUDICE TO THE ABOVE, THE DEPOSITS IN EXPLAINED HEREUNDER : (A) THE DEPOSIT OF RS. 10,000/ ACCOUNT WITH THIS BANK FOR THE FIRST TIME. (B) THE DEPOSIT OF RS. 10,000/ SAMUDRA CEMENT LTD. IT IS SUBMITTED THAT THE BALANCE SHEET AS ON 31/03/2 SHOWED AMOUNT RECEIVABLE FROM THIS COMPANY AT RS. 79,28,000/ OPENING BALANCE ON 01/04/2004 OF RS. 82,50,000/ ENCLOSED HEREWITH WILL CORROBORATE RECEIPT OF RS. 10,000/ THROUGH THIS BANK A/ C. (C) THE SUM OF RS. 15,00,000/ RECEIVED FROM N. V. RAMA RAJU TOWARDS ADVANCE PAYMENT FOR SALE OF LAND AT KAPULAPPADA. THIS SUM ALONG WITH RS. 5,00,000/ IS APPEARING IN THE LIABILITY SIDE OF SINCE THE ULTIMATE SALE OF LAND DID NOT MATERIALIZE BECAUSE OF CONTROVERSY. THE PARTY HAS ALSO FILED SUIT BEFORE THE COURT. THIS POINT HAS BEEN ELABORATELY EXPLAINED IN GROUND NO. 5. SINCE THESE WERE ADDITIONAL DOC TO THE A.O. AN INCOMPLETE REMAND REPORT WAS RECEIVED ON 30.08.2011. THEREFORE, A FURTHER REMAND REPORT WAS CALLED FOR WHICH WAS EXAMINING THE DETAILS FILED BY THE APPELLANT IN COURSE OF APPELLATE PROCEEDINGS HAS OBSERVED THAT THE APPELLANT HAS FILED DETAILS OF THESE DEPOSITS & ALONG WITH COPY OF AGREEMENT ETC. HOWEVER THE BANK STATEMENT OF IDBI WA NO SPECIFIC COMMENT WAS GIVEN BY THE A.O. IN SUCH REMAND REPORT. THE A/R HAS FILED THE LEDGER EF C OF IDBI BANK A/C WHICH WAS AGAIN FORWARDED TO A.O. FOR HIS COMMENTS THE AO. THE A.O. VIDE LETTER DATED 28.01.2015 HAS STATED THAT DID NOT COMPLY AT THE REMAND STAGE & THEREFORE THE SOURCE OF CASH DEPOSITS OF RS. 15,20,000/- REMAINED UNEXPLAINED. I FIND THAT SINCE THE APPELLANT HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITS BEFORE THE A.O. IN COURSE OF ORIGINAL ASSESSM AS WELL AS REMAND STAGE, THE ADDITION OF RS. 15,20,000/ DISMISSED. 7.1. A PERUSAL OF THE SAME DEMONSTRATES THAT THE ADDITION WAS SUSTAINED BY THE LD. CIT(A) FOR THE REASON THAT PROCEEDINGS AND AT REMAND STAGE REASONS THAT THE ASSESSING OFFICER HAD MADE THE ADDITION ON THE GROUND THAT THE DEPOSITS IN BANK ACCOUNTS ARE NOT EXPLAINED. W ASSESSING OFFICER CANNOT COME TO A CONCLUSION THAT THE DEPOSITS MADE 4 WITHOUT PREJUDICE TO THE ABOVE, THE DEPOSITS IN I DBI BANK AS DETAILED ABOVE ARE EXPLAINED HEREUNDER : - DEPOSIT OF RS. 10,000/ - ON 27/07/2004 WAS MADE IN CASH AND TO OPEN ACCOUNT WITH THIS BANK FOR THE FIRST TIME. THE DEPOSIT OF RS. 10,000/ - ON 04/08/2004 REPRESENTED RECEIPT FROM M/S. SAMUDRA CEMENT LTD. IT IS SUBMITTED THAT THE BALANCE SHEET AS ON 31/03/2 SHOWED AMOUNT RECEIVABLE FROM THIS COMPANY AT RS. 79,28,000/ OPENING BALANCE ON 01/04/2004 OF RS. 82,50,000/ - . CONFIRMATION OF THE PARTY ENCLOSED HEREWITH WILL CORROBORATE RECEIPT OF RS. 10,000/ THROUGH THIS BANK A/ C. SUM OF RS. 15,00,000/ - DEPOSITED ON 24/03/2005 REPRESENTED AMOUNT RECEIVED FROM N. V. RAMA RAJU TOWARDS ADVANCE PAYMENT FOR SALE OF LAND AT KAPULAPPADA. THIS SUM ALONG WITH RS. 5,00,000/ - RECEIVED FROM THE SAME PARTY IS APPEARING IN THE LIABILITY SIDE OF APPELLANT'S BALANCE SHEET ON 31/03/2005 SINCE THE ULTIMATE SALE OF LAND DID NOT MATERIALIZE BECAUSE OF CONTROVERSY. THE PARTY HAS ALSO FILED SUIT BEFORE THE COURT. THIS POINT HAS BEEN ELABORATELY EXPLAINED IN GROUND NO. 5. SINCE THESE WERE ADDITIONAL DOC UMENTS / EVIDENCES THE MATTER WAS SENT FOR REMAND TO THE A.O. AN INCOMPLETE REMAND REPORT WAS RECEIVED ON 30.08.2011. THEREFORE, A FURTHER REMAND REPORT WAS CALLED FOR WHICH WAS SENT ON 04.12.2013. THE A.O. AFTER EXAMINING THE DETAILS FILED BY THE APPELLANT IN COURSE OF APPELLATE PROCEEDINGS HAS OBSERVED THAT THE APPELLANT HAS FILED DETAILS OF THESE DEPOSITS & ALONG WITH COPY OF AGREEMENT ETC. HOWEVER THE BANK STATEMENT OF IDBI WA S NOT FURNISHED. THEREFORE NO SPECIFIC COMMENT WAS GIVEN BY THE A.O. IN SUCH REMAND REPORT. THE A/R HAS FILED THE LEDGER EF C OF IDBI BANK A/C WHICH WAS AGAIN FORWARDED TO A.O. FOR HIS COMMENTS THE AO. THE A.O. VIDE LETTER DATED 28.01.2015 HAS STATED THAT DID NOT COMPLY AT THE REMAND STAGE & THEREFORE THE SOURCE OF CASH DEPOSITS OF RS. REMAINED UNEXPLAINED. I FIND THAT SINCE THE APPELLANT HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITS BEFORE THE A.O. IN COURSE OF ORIGINAL ASSESSM AS WELL AS REMAND STAGE, THE ADDITION OF RS. 15,20,000/ - IS UPHELD. THIS GROUND IS A PERUSAL OF THE SAME DEMONSTRATES THAT THE ADDITION WAS SUSTAINED BY THE LD. CIT(A) FOR THE REASON THAT COMPLIANCE WAS NOT MADE DURING THE ORIGINAL AS PROCEEDINGS AND AT REMAND STAGE . THIS CANNOT BE A GROUND OF MAKING ADDITION FOR THE REASONS THAT THE ASSESSING OFFICER HAD MADE THE ADDITION ON THE GROUND THAT THE DEPOSITS IN BANK ACCOUNTS ARE NOT EXPLAINED. W ITHOUT A COPY OF THE BANK ACCOUNT, TH ASSESSING OFFICER CANNOT COME TO A CONCLUSION THAT THE DEPOSITS MADE ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL DBI BANK AS DETAILED ABOVE ARE ON 27/07/2004 WAS MADE IN CASH AND TO OPEN ON 04/08/2004 REPRESENTED RECEIPT FROM M/S. SAMUDRA CEMENT LTD. IT IS SUBMITTED THAT THE BALANCE SHEET AS ON 31/03/2 005 SHOWED AMOUNT RECEIVABLE FROM THIS COMPANY AT RS. 79,28,000/ - AS AGAINST . CONFIRMATION OF THE PARTY ENCLOSED HEREWITH WILL CORROBORATE RECEIPT OF RS. 10,000/ - ON 04/08/2004 DEPOSITED ON 24/03/2005 REPRESENTED AMOUNT RECEIVED FROM N. V. RAMA RAJU TOWARDS ADVANCE PAYMENT FOR SALE OF LAND AT RECEIVED FROM THE SAME PARTY APPELLANT'S BALANCE SHEET ON 31/03/2005 SINCE THE ULTIMATE SALE OF LAND DID NOT MATERIALIZE BECAUSE OF CONTROVERSY. THE PARTY HAS ALSO FILED SUIT BEFORE THE COURT. THIS POINT HAS BEEN ELABORATELY UMENTS / EVIDENCES THE MATTER WAS SENT FOR REMAND TO THE A.O. AN INCOMPLETE REMAND REPORT WAS RECEIVED ON 30.08.2011. THEREFORE, A SENT ON 04.12.2013. THE A.O. AFTER EXAMINING THE DETAILS FILED BY THE APPELLANT IN COURSE OF APPELLATE PROCEEDINGS HAS OBSERVED THAT THE APPELLANT HAS FILED DETAILS OF THESE DEPOSITS & ALONG WITH COPY OF S NOT FURNISHED. THEREFORE NO SPECIFIC COMMENT WAS GIVEN BY THE A.O. IN SUCH REMAND REPORT. THE A/R HAS FILED THE LEDGER EF C OF IDBI BANK A/C WHICH WAS AGAIN FORWARDED TO A.O. FOR HIS COMMENTS THE AO. THE A.O. VIDE LETTER DATED 28.01.2015 HAS STATED THAT THE ASSESSEE DID NOT COMPLY AT THE REMAND STAGE & THEREFORE THE SOURCE OF CASH DEPOSITS OF RS. REMAINED UNEXPLAINED. I FIND THAT SINCE THE APPELLANT HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITS BEFORE THE A.O. IN COURSE OF ORIGINAL ASSESSM ENT IS UPHELD. THIS GROUND IS A PERUSAL OF THE SAME DEMONSTRATES THAT THE ADDITION WAS SUSTAINED BY THE LD. COMPLIANCE WAS NOT MADE DURING THE ORIGINAL AS SESSMENT . THIS CANNOT BE A GROUND OF MAKING ADDITION FOR THE REASONS THAT THE ASSESSING OFFICER HAD MADE THE ADDITION ON THE GROUND THAT THE ITHOUT A COPY OF THE BANK ACCOUNT, TH E ASSESSING OFFICER CANNOT COME TO A CONCLUSION THAT THE DEPOSITS MADE IN A BANK ACCOUNT ARE UNEXPLAINED. ALL DETAILS INCLUDING COPIES OF BANK ACCOUNTS WERE FURNISHED BY THE ASSESSEE . MOREOVER, THE ASSESSING OFFICER HAD IN THE REMAND REPORT DT. 04/12/2013, HELD AS FOLLOWS:- RS. 5,00,000/- RECEIVED FROM MR. N.V.RAMA RAJU FOR KAPULAPPADA LAND. THE REMAINING CREDIT OF RS.20,000/- WAS FOR OPENING OF SAMUDRA CEM ENT LTD. (RS.10,000 FILED UNDER ORDER VII RULE I READ WITH SECTION 26 OF DISTRICT JUDGE AT VISAKHAPATNAM AGAINST THE ASSESSEE BY SRI N. V. SALONI V ARMA (REP. BY POWER OF AT SAID COMPLAINT, IT IS MENTIONED THAT 10.09.2004, THE 1ST DEFENDANT HAD RECEIVED CASH OF RS.15, RS.5,00,000/ - BEARING NO. 033682, DTD VISAKHAPATNAM ... .'. THE COPY OF RELEVANT 'AGREEMENT FOR SALE' IS FURNISHED. HOWEVER, BANK STATEMENT OF IDBI A/C THE THIRD ADDITION MADE IN THE ASSESSMENT ORDER RELATES TO RS. 30,94,286/ NOT SUBSTANTIATED. THIS AMOUNT CONTAINED RS.20,00,000/ FROM SRI N.V. RAMA RAJU FOR KAPULAPPADA LAND AND RS.10,94,286/ CORROBORATIVE EVIDENCE WITH REGARD TO THE FIRST ISSUE IS FOUND TO BE GENUINE. OF AMOUNT OF RS. 10,94,286 RS.10,94,286/- STANDS IN THE NAME OF CONSEQUENT TO DEATH OF RESPECT OF S.D. MITTAL SINCE DECEASED PENDING FINAL DISBURSEMENT AMOUNT HER LEGAL HEIRS.' ASSESSEE CLAIMED THAT ALL THESE AMOUNTS WERE DEPOSITED BY CHEQUES INTO ASSESSEE'S GLOBA L TRUST BANK A DEPOSIT ARE FURNISHED. FROM THE EXAMINATION OF EVIDENCES PROVIDED ON BEHALF OF THE ASSESSEE, IT CAN BE SAID THAT SOURCES OF THESE LIABILITIES ARE EXPLAINED. 8. THE EVIDENCE GIVEN BY THE ASSESSEE IS NOT DISPUTED BY THE REVENUE. THE ADDITION WAS CONFIRME D IN A SUMMARY MANNER, WITHOUT REFERENCE TO THE FACTS. ABOVE DISCUSSION AND FINDING OF THE ASSESSING OFFICER IN THE REMAND REPORT EXTRACTED ABOVE, THE ADDITION IN QUESTION, IS HEREBY DELETED. 9. ON THE SECOND ISSUE OF DISALLOWANCE OF COMMISS THE ASSESSING OFFICER IN HIS REMAND REPORT DT. 04/12/2013 UNDER:- WITH REGARD TO DISALLOWANCE OF COMMISSION AND DEVELOPMENT CHARGES TO THE TUNE OF RS.66,09,875/- , IT IS TO STATE THAT ASSESSEE CORROBORATIVE EVIDENCE OF PAYMENTS OTHER THAN FURNISHING A COPY OF AGREEMENT. OUT OF RS.66,09,875/- , RS.65,62,475/ COMMISSION ON SALES. ASSESSEE CLAIMED THAT DEVELOPMENT GEETHA KUMARI AS PER AGREEMENT BETWEEN PARTIES FOR THE DEVELOPMENT OF THE DRY LAND AT VADLAPUDI. MOREOVER, PERCENTAGE OF COMMISSION AND DEVELOPMENT CHARGES IS TOO HIGH AS COMPARED TO SALE PRICE OF RS.85,60,100/ 5 ARE UNEXPLAINED. ALL DETAILS INCLUDING COPIES OF BANK ACCOUNTS WERE FURNISHED BY THE . MOREOVER, THE ASSESSING OFFICER HAD IN THE REMAND REPORT DT. 04/12/2013, RECEIVED FROM MR. N.V.RAMA RAJU FOR KAPULAPPADA LAND. THE REMAINING WAS FOR OPENING OF BANK A/C. (RS.10,000/- ) AND ENT LTD. (RS.10,000 /- ).' IN SUPPORT OF THIS CLAIM, COPY OF THE 'COMPLAINT FILED UNDER ORDER VII RULE I READ WITH SECTION 26 OF C .P.C. IN THE HON'BLE COURT OF DISTRICT JUDGE AT VISAKHAPATNAM AGAINST THE ASSESSEE BY SRI N. V. RAMA RAJU AND SMT. ARMA (REP. BY POWER OF AT TORNEY HOLDER SRI N.V.RAMA RAJU) IS FURNISH SAID COMPLAINT, IT IS MENTIONED THAT - 'AT THE TIME OF EXECUTION OF AGREEMENT, DTD. 10.09.2004, THE 1ST DEFENDANT HAD RECEIVED CASH OF RS.15, 00,000/- - BEARING NO. 033682, DTD .10 .09.2004 DRAWN ON CENTRAL BANK VISAKHAPATNAM ... .'. THE COPY OF RELEVANT 'AGREEMENT FOR SALE' IS FURNISHED. HOWEVER, IDBI A/C . WAS NOT FURNISHED. THE THIRD ADDITION MADE IN THE ASSESSMENT ORDER RELATES TO RS. 30,94,286/ NOT SUBSTANTIATED. THIS AMOUNT CONTAINED RS.20,00,000/ - CLAIMED TO BE ADVANCE TAKEN FROM SRI N.V. RAMA RAJU FOR KAPULAPPADA LAND AND RS.10,94,286/ - FROM S.D. MITTAL. CORROBORATIVE EVIDENCE WITH REGARD TO THE FIRST ISSUE IS FOUND TO BE GENUINE. 10,94,286 /-, A/R OF THE ASSESSEE EXPLAINED THAT STANDS IN THE NAME OF S.D. MITTAL, WHO IS IN FACT MOTHER OF THE ASSESSEE. CONSEQUENT TO DEATH OF S.D. MITTAL, AMOUNT RECEIVED FROM PPF, LI C AND P SINCE DECEASED PENDING FINAL DISBURSEMENT AMOUNT HER LEGAL HEIRS.' ASSESSEE CLAIMED THAT ALL THESE AMOUNTS WERE DEPOSITED BY CHEQUES INTO L TRUST BANK A /C. AND ID BI A/C. DETAILS OF CHEQUES NO. AND DATE O DEPOSIT ARE FURNISHED. FROM THE EXAMINATION OF EVIDENCES PROVIDED ON BEHALF OF THE ASSESSEE, IT CAN BE SAID THAT SOURCES OF THESE LIABILITIES ARE EXPLAINED. THE EVIDENCE GIVEN BY THE ASSESSEE IS NOT DISPUTED BY THE REVENUE. THE ADDITION D IN A SUMMARY MANNER, WITHOUT REFERENCE TO THE FACTS. ABOVE DISCUSSION AND FINDING OF THE ASSESSING OFFICER IN THE REMAND REPORT EXTRACTED ABOVE, THE ADDITION IN QUESTION, IS HEREBY DELETED. ON THE SECOND ISSUE OF DISALLOWANCE OF COMMISS ION AND DEVELOPMENT CHARGES, THE ASSESSING OFFICER IN HIS REMAND REPORT DT. 04/12/2013 , AT PARA 2 OF PAGE 20 WITH REGARD TO DISALLOWANCE OF COMMISSION AND DEVELOPMENT CHARGES TO THE TUNE OF , IT IS TO STATE THAT ASSESSEE COULD NOT COME UP WITH SUFFICIENT CORROBORATIVE EVIDENCE OF PAYMENTS OTHER THAN FURNISHING A COPY OF AGREEMENT. OUT OF , RS.65,62,475/ - IS SHOWN AS DEVELOPMENT CHARGES, AND RS.47,000/ COMMISSION ON SALES. ASSESSEE CLAIMED THAT DEVELOPMENT CHARGES WERE PAID TO MRS. GEETHA KUMARI AS PER AGREEMENT BETWEEN PARTIES FOR THE DEVELOPMENT OF THE DRY LAND AT VADLAPUDI. MOREOVER, PERCENTAGE OF COMMISSION AND DEVELOPMENT CHARGES IS TOO HIGH AS COMPARED TO SALE PRICE OF RS.85,60,100/ -. IN ABSENCE OF SU FFICIENT CORROBORATIVE ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL ARE UNEXPLAINED. ALL DETAILS INCLUDING COPIES OF BANK ACCOUNTS WERE FURNISHED BY THE . MOREOVER, THE ASSESSING OFFICER HAD IN THE REMAND REPORT DT. 04/12/2013, HAD RECEIVED FROM MR. N.V.RAMA RAJU FOR KAPULAPPADA LAND. THE REMAINING ) AND RECEIPT FROM ).' IN SUPPORT OF THIS CLAIM, COPY OF THE 'COMPLAINT .P.C. IN THE HON'BLE COURT OF RAMA RAJU AND SMT. HOLDER SRI N.V.RAMA RAJU) IS FURNISH ED. IN THE 'AT THE TIME OF EXECUTION OF AGREEMENT, DTD. AND CHEQUE FOR .09.2004 DRAWN ON CENTRAL BANK OF INDIA, VISAKHAPATNAM ... .'. THE COPY OF RELEVANT 'AGREEMENT FOR SALE' IS FURNISHED. HOWEVER, THE THIRD ADDITION MADE IN THE ASSESSMENT ORDER RELATES TO RS. 30,94,286/ - AS LIABILITIES CLAIMED TO BE ADVANCE TAKEN FROM S.D. MITTAL. CORROBORATIVE EVIDENCE WITH REGARD TO THE FIRST ISSUE IS FOUND TO BE GENUINE. IN RESPECT THE LIABILITY OF FACT MOTHER OF THE ASSESSEE. C AND P OST OFFICE IN SINCE DECEASED PENDING FINAL DISBURSEMENT AMOUNT HER LEGAL HEIRS.' ASSESSEE CLAIMED THAT ALL THESE AMOUNTS WERE DEPOSITED BY CHEQUES INTO BI A/C. DETAILS OF CHEQUES NO. AND DATE O F DEPOSIT ARE FURNISHED. FROM THE EXAMINATION OF EVIDENCES PROVIDED ON BEHALF OF THE THE EVIDENCE GIVEN BY THE ASSESSEE IS NOT DISPUTED BY THE REVENUE. THE ADDITION D IN A SUMMARY MANNER, WITHOUT REFERENCE TO THE FACTS. IN VIEW OF THE ABOVE DISCUSSION AND FINDING OF THE ASSESSING OFFICER IN THE REMAND REPORT EXTRACTED ION AND DEVELOPMENT CHARGES, PARA 2 OF PAGE 20 , HELD AS WITH REGARD TO DISALLOWANCE OF COMMISSION AND DEVELOPMENT CHARGES TO THE TUNE OF COULD NOT COME UP WITH SUFFICIENT CORROBORATIVE EVIDENCE OF PAYMENTS OTHER THAN FURNISHING A COPY OF AGREEMENT. OUT OF IS SHOWN AS DEVELOPMENT CHARGES, AND RS.47,000/ - AS CHARGES WERE PAID TO MRS. GEETHA KUMARI AS PER AGREEMENT BETWEEN PARTIES FOR THE DEVELOPMENT OF THE DRY LAND AT VADLAPUDI. MOREOVER, PERCENTAGE OF COMMISSION AND DEVELOPMENT CHARGES IS TOO FFICIENT CORROBORATIVE EVIDENCE, COST OF DEVELOPMENT CHARGES AND COMMISSION EXPENSES CANNOT BE ALLOWED AS ADMISSIBLE. 11. T HE ASSESSING OFFICER IN HIS REMAND REPORT DT. 28/01/2015, STATED AS FOLLOWS: 1. DISALLOWANCE OF RS. 66, 09,875/ 66,09,875/- RS. 6562475/ GITA KUMARI AND RS. 47000/ STAGE NOTICE U/S. 133 (6) OF THE ACT, WAS ISSUED TO SMT. DA THE ASSESSEE CLAIMED TO HAVE PAID RS. 65, 62,475/ WAS RETURNED UNSERVED. ASSESSEE COULD NOT FURNISH ANY PROOF FOR COMMISSION PAID OF RS.47000/- THESE FACTS FURTHER SUBSTANTIATE ADDITION OF RS. LAND. DURING HEARING AT THE ASSESSMENT STAGE AS WELL AS APPEAL STAGE THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE TO SUPPORT HIS CLAIM. REGARDING THIS ISSUE, I STAND BY THE VIEW AND OBSERVATION OF THE A. 0., AS REFLECTED IN REMAND NO. ITO / WD. 1 (1) / KOL, / REMAND REPORT /2013 11.1. THE LD. CIT(A) HAD CONFIRMED THE ADDITION ON THE GROUND THAT THE ASSESSEE WAS NOT ABLE TO JUSTIFY THE PAYMENTS MADE TOWARDS DEVELOP MADE WERE NOT SUPPORTED WITH WE FIND THAT THE ASSESSEE HAS FURNISHED AN AGREEMENT DT. 15/06/2003 WITH ONE SMT. DANTULURI GITA KUMARI, FOR THE DEVELOPMENT OF THE ABOVE LAND, COPY OF WHICH IS PLACED BEFORE US. THE LAND COMMON AREAS, GREENERY ETC., AND ONLY AFTER SUCH DEVELOPMENT, THE LAND WAS REQUIRED TO BE SOLD AT A MINIMUM RATE OF RS.600/ THE RULER OF THE URBA N DEVELOPMENT AUTHORITY ALL PERMISSIONS ETC. THE PAYMENTS WERE MADE THROUGH CHEQUES AND RELEVANT DETAILS WERE FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ISSUED NOTICE U/S 133(6) OF THE ACT, TO SMT. DANT ULURI GITA KUMARI, WHO IS THE MANAGING PARTNER OF SHIVAJI ESTATES & CONSTRUCTIONS. BUT THE NOTICE WAS RETURNED. WE FIND THAT THE NOTICE WAS ISSUED ADDRESS MENTIONED IN THE AGREEMENT, PROPOSITIONS OF LAW LAID DOW ADVERSE INFERENCE CAN BE DRAWN. WE ALSO FIND THAT THE CAPITAL GAINS IN QUESTION ON THE LAND IS ON ACCOUNT OF SALE OF VARIOUS PLOTS AS RECORDED BY THE ASSESSING OFFICER AT PAGE 2 OF HIS REMAND RE PORT DT. 04/12/2013. A TOTAL OF 43 SALE DEEDS WERE EXECUTED AND COPIES OF THE SAME WERE FILED. WHEN THE LAND IS CONVERTED INTO PLOTS BY LAYING ROADS, BUILDING DRAINS, DEVELOPING COMMON AREAS ETC., AS PER THE NORMS OF THE URBAN DEVELOPMENT AUTHORITY, AND WH EN PLOTS ARE SOLD ONLY AFTER SUCH DEVELOPMENT 6 EVIDENCE, COST OF DEVELOPMENT CHARGES AND COMMISSION EXPENSES CANNOT BE ALLOWED AS HE ASSESSING OFFICER IN HIS REMAND REPORT DT. 28/01/2015, STATED AS FOLLOWS: 1. DISALLOWANCE OF RS. 66, 09,875/ -ON ACCOUNT OF LAN D: OUT OF THE TOTAL AMOUNT OF RS. RS. 6562475/ - WAS CLAIMED BY THE ASSESSEE TO HAVE PAID TO SMT. DANTULURI GITA KUMARI AND RS. 47000/ - IS SHOWN AS COMMISSION PAID .DURING REMAND REPORT STAGE NOTICE U/S. 133 (6) OF THE ACT, WAS ISSUED TO SMT. DA NTULURI GITA KUMARI TO WHOM THE ASSESSEE CLAIMED TO HAVE PAID RS. 65, 62,475/ - AS DEVELOPMENT CHARGES. THE LETTER WAS RETURNED UNSERVED. ASSESSEE COULD NOT FURNISH ANY PROOF FOR COMMISSION PAID OF THESE FACTS FURTHER SUBSTANTIATE ADDITION OF RS. 66,09,875/ LAND. DURING HEARING AT THE ASSESSMENT STAGE AS WELL AS APPEAL STAGE THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE TO SUPPORT HIS CLAIM. REGARDING THIS ISSUE, I STAND BY THE VIEW AND OBSERVATION OF THE A. 0., AS REFLECTED IN REMAND REPORT VIDE THIS OFFICE LETTER BEARING NO. ITO / WD. 1 (1) / KOL, / REMAND REPORT /2013 - 14/1057 DATED 04.12.2013. THE LD. CIT(A) HAD CONFIRMED THE ADDITION ON THE GROUND THAT THE ASSESSEE WAS NOT ABLE TO JUSTIFY THE PAYMENTS MADE TOWARDS DEVELOP MENT CHARGES WERE NOT SUPPORTED WITH EVIDENCE. WE FIND THAT THE ASSESSEE HAS FURNISHED AN AGREEMENT DT. 15/06/2003 WITH ONE SMT. DANTULURI GITA KUMARI, FOR THE DEVELOPMENT OF THE ABOVE LAND, COPY OF WHICH IS WAS TO BE DEVELOPED INTO PLOTS BY LAYING ROADS, DRAINAGES, COMMON AREAS, GREENERY ETC., AND ONLY AFTER SUCH DEVELOPMENT, THE LAND WAS REQUIRED TO BE SOLD AT A MINIMUM RATE OF RS.600/ - PER SQ.FT. THE DEVELOPER HAD TO STRICTLY ABIDE BY N DEVELOPMENT AUTHORITY FOR LAYOUT DEVELOPMENT ALL PERMISSIONS ETC. THE PAYMENTS WERE MADE THROUGH CHEQUES AND RELEVANT DETAILS WERE FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ISSUED NOTICE U/S 133(6) ULURI GITA KUMARI, WHO IS THE MANAGING PARTNER OF SHIVAJI ESTATES & CONSTRUCTIONS. BUT THE NOTICE WAS RETURNED. WE FIND THAT THE NOTICE WAS ISSUED ADDRESS MENTIONED IN THE AGREEMENT, 10 YEARS AFTER THE EVENT PROPOSITIONS OF LAW LAID DOW N IN THE CASE OF DIAGNOSTICS VS. CIT (SUPRA) ADVERSE INFERENCE CAN BE DRAWN. WE ALSO FIND THAT THE CAPITAL GAINS IN QUESTION ON THE LAND IS ON ACCOUNT OF SALE OF VARIOUS PLOTS AS RECORDED BY THE ASSESSING OFFICER AT PAGE 2 PORT DT. 04/12/2013. A TOTAL OF 43 SALE DEEDS WERE EXECUTED AND COPIES OF THE SAME WERE FILED. WHEN THE LAND IS CONVERTED INTO PLOTS BY LAYING ROADS, BUILDING DRAINS, DEVELOPING COMMON AREAS ETC., AS PER THE NORMS OF THE URBAN DEVELOPMENT EN PLOTS ARE SOLD ONLY AFTER SUCH DEVELOPMENT EXPENDITURE IS BOUND TO ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL EVIDENCE, COST OF DEVELOPMENT CHARGES AND COMMISSION EXPENSES CANNOT BE ALLOWED AS HE ASSESSING OFFICER IN HIS REMAND REPORT DT. 28/01/2015, STATED AS FOLLOWS: - D: OUT OF THE TOTAL AMOUNT OF RS. WAS CLAIMED BY THE ASSESSEE TO HAVE PAID TO SMT. DANTULURI IS SHOWN AS COMMISSION PAID .DURING REMAND REPORT NTULURI GITA KUMARI TO WHOM AS DEVELOPMENT CHARGES. THE LETTER WAS RETURNED UNSERVED. ASSESSEE COULD NOT FURNISH ANY PROOF FOR COMMISSION PAID OF 66,09,875/ - ON ACCOUNT OF LAND. DURING HEARING AT THE ASSESSMENT STAGE AS WELL AS APPEAL STAGE THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE TO SUPPORT HIS CLAIM. REGARDING THIS ISSUE, I STAND BY THE VIEW REPORT VIDE THIS OFFICE LETTER BEARING 14/1057 DATED 04.12.2013. THE LD. CIT(A) HAD CONFIRMED THE ADDITION ON THE GROUND THAT THE ASSESSEE WAS MENT CHARGES AS THE PAYMENTS WE FIND THAT THE ASSESSEE HAS FURNISHED AN AGREEMENT DT. 15/06/2003 WITH ONE SMT. DANTULURI GITA KUMARI, FOR THE DEVELOPMENT OF THE ABOVE LAND, COPY OF WHICH IS WAS TO BE DEVELOPED INTO PLOTS BY LAYING ROADS, DRAINAGES, COMMON AREAS, GREENERY ETC., AND ONLY AFTER SUCH DEVELOPMENT, THE LAND WAS REQUIRED TO PER SQ.FT. THE DEVELOPER HAD TO STRICTLY ABIDE BY FOR LAYOUT DEVELOPMENT AND ALSO OBTAIN ALL PERMISSIONS ETC. THE PAYMENTS WERE MADE THROUGH CHEQUES AND RELEVANT DETAILS WERE FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ISSUED NOTICE U/S 133(6) ULURI GITA KUMARI, WHO IS THE MANAGING PARTNER OF SHIVAJI ESTATES & CONSTRUCTIONS. BUT THE NOTICE WAS RETURNED. WE FIND THAT THE NOTICE WAS ISSUED TO AN EVENT . APPLYING THE DIAGNOSTICS VS. CIT (SUPRA) , WE HOLD THAT NO ADVERSE INFERENCE CAN BE DRAWN. WE ALSO FIND THAT THE CAPITAL GAINS IN QUESTION ON THE LAND IS ON ACCOUNT OF SALE OF VARIOUS PLOTS AS RECORDED BY THE ASSESSING OFFICER AT PAGE 2 PORT DT. 04/12/2013. A TOTAL OF 43 SALE DEEDS WERE EXECUTED AND COPIES OF THE SAME WERE FILED. WHEN THE LAND IS CONVERTED INTO PLOTS BY LAYING ROADS, BUILDING DRAINS, DEVELOPING COMMON AREAS ETC., AS PER THE NORMS OF THE URBAN DEVELOPMENT EXPENDITURE IS BOUND TO BE INCURRED. IT CANNOT BE SAID THAT DRY LAND OF 10.69 ACRES CAN BE SUB PLOTS AFTER DEVELOPMENT AND SOLD EVIDENCE IN THE FORM OF DEVELOPMENT AGREEMENT DT. 15/06/2003, THROUGH ACCOUNT PAYEE CHEQUES SUFFICIENT EVIDENCE TO PROVE THE INCURRING OF EXP CLAIM OF THE ASSESSEE, THERE IS NO ADVERSE MATERIAL COLLECTED BY THE ASSESSING AUTHORITIES. CONFIRMATION LETTERS FROM SHIVAJI ESTATES & CONSTRUCTIONS BY SMT. DANTULURI GITA KUMARI, WHEREIN SHE HAD STATED THAT THE AMOUN INCOME TAX RETURN AND CONFIRMATION LETTERS FROM ONE MR. U. PRABHAKAR RAO COMMISSION OF RS.47,400/- , RECEIVED/RECEIVABLE BY HIM, SUPPORT OF THE CONTENTIONS OF THE ASSESSEE. THUS, WE UPHOLD THE CONTENTION OF TH ASSESSEE OF HAVING BEEN INCURRED DEVELOPMENT EXPENDITURE TO THE TUNE OF RS.65,62,475/- AND RS.47,400/ THESE GROUNDS ARE ALLOWED. 12. IN THE RESULT, APPEAL OF T KOLKATA, THE SD/- [ S. S. GODARA ] JUDICIAL MEMBER DATED : 17.02.2021 {SC SPS} 7 BE INCURRED. IT CANNOT BE SAID THAT DRY LAND OF 10.69 ACRES CAN BE SUB - DIVIDED INTO HOUSE PLOTS AFTER DEVELOPMENT AND SOLD AS HOUSE PLOTS WITHOUT INCURRING ANY EXPENDITURE. THE EVIDENCE IN THE FORM OF DEVELOPMENT AGREEMENT DT. 15/06/2003, AND THROUGH ACCOUNT PAYEE CHEQUES AND THE FACT OF THE DEVELOPMENT OF THE LAND INTO PLOTS SUFFICIENT EVIDENCE TO PROVE THE INCURRING OF EXP ENDITURE. EXCEPT FOR DISBELIEVING THE CLAIM OF THE ASSESSEE, THERE IS NO ADVERSE MATERIAL COLLECTED BY THE ASSESSING AUTHORITIES. CONFIRMATION LETTERS FROM SHIVAJI ESTATES & CONSTRUCTIONS BY SMT. DANTULURI GITA KUMARI, WHEREIN SHE HAD STATED THAT THE AMOUN T IN QUESTION WAS OFFERED TO TAX IN HER INCOME TAX RETURN AND CONFIRMATION LETTERS FROM ONE MR. U. PRABHAKAR RAO , RECEIVED/RECEIVABLE BY HIM, SUPPORT OF THE CONTENTIONS OF THE ASSESSEE. THUS, WE UPHOLD THE CONTENTION OF TH E ASSESSEE AND ALLOW THE CLAIM OF THE ASSESSEE OF HAVING BEEN INCURRED DEVELOPMENT EXPENDITURE TO THE TUNE OF AND RS.47,400/ -, RESPECTIVELY. THESE ADDITIONS ARE HEREBY DELETED. THUS, IN THE RESULT, APPEAL OF T HE ASSESSEE IS ALLOWED. KOLKATA, THE 17 TH DAY OF FEBRUARY, 2021. [ J. SUDHAKAR REDDY JUDICIAL MEMBER ACCOUNTANT MEMBER ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL DIVIDED INTO HOUSE WITHOUT INCURRING ANY EXPENDITURE. THE AND PAYMENTS MADE AND THE FACT OF THE DEVELOPMENT OF THE LAND INTO PLOTS IS ENDITURE. EXCEPT FOR DISBELIEVING THE CLAIM OF THE ASSESSEE, THERE IS NO ADVERSE MATERIAL COLLECTED BY THE ASSESSING AUTHORITIES. CONFIRMATION LETTERS FROM SHIVAJI ESTATES & CONSTRUCTIONS BY SMT. DANTULURI GITA T IN QUESTION WAS OFFERED TO TAX IN HER INCOME TAX RETURN AND CONFIRMATION LETTERS FROM ONE MR. U. PRABHAKAR RAO , ON THE , RECEIVED/RECEIVABLE BY HIM, SUPPORT OF THE CONTENTIONS OF E ASSESSEE AND ALLOW THE CLAIM OF THE ASSESSEE OF HAVING BEEN INCURRED DEVELOPMENT EXPENDITURE TO THE TUNE OF THESE ADDITIONS ARE HEREBY DELETED. THUS, SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. VIJAY MITTAL C/O. S. JAYKISHAN SUITE NO. 2D, E & F 12, HO-CHI MINH SARANI KOLKATA 700 071 2. INCOME TAX OFFICER, WARD 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 8 1(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 572/KOL/2018 ASSESSMENT YEAR: 2005-06 VIJAY MITTAL TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES