ITO, Jaipur V. APPLE BUILDESTATES PVT. LTD., Jaipur

ITA 79/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5126 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 27-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Unexplained investment
• Section: 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH , - MH - TSU U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI A.D. JAIN, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA- @ ITA NO. 79/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2008-09 I.T.O., WARD 5(2), JAIPUR. CUKE VS. M/S APPLE BUILDSTATES, B-304, JANTA COLONY, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAGCA 0957 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VIJAY GOYAL (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/09/2016 MN?KKS'K .KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 16/09/2016 VKNS'K@ ORDER PER: A.D. JAIN, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 30/11/2015 FOR THE ASSESSMEN T YEAR 2008-09, CONTENDING THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 50,04,650/- MADE ON ACCOUNT OF UNDISCLOSED INVESTME NT IN PURCHASE OF LAND/IMMOVABLE PROPERTY. 2. THE FACTS AS PER RECORD ARE THAT A SEARCH UNDER S ECTION 132 OF THE IT ACT WAS CONDUCTED ON 6/8/2008 AT THE LASHKARY GROU P IN JAIPUR & M/S ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 2 APPLE BUILDESTATE PVT. LTD. BELONGS TO THIS GROUP. DURING SEARCH PROCEEDINGS A LOOSE PAPER BEING PAGE NO. 37 OF ANNE XURE A-57 WAS FOUND AND SEIZED FROM 73-75, TALKATORA WHICH IS REPRO DUCED BELOW:- COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 26.66 BHAVGARH 166 330 22.5 PUSHP GARDEN 169 400 50 MAHAL RD 14.5 30 40 DABLA KHURD 70 120 60 CHAKSU 88 200 60 GUNSI 50 100 95 VATSLYA 90 18.75 SPORTS CITY 120 80 RR FARM 108 440 666 18.30 IN THIS TABLE, COLUMN 2 REPRESENTS NAME OF THE PROP ERTY OWNED BY THE COMPANIES IN LASHKARY GROUP AND DABLE KHURD BELONGS TO APPLE BUILDESTATE PVT. LTD. THE ASSESSING OFFICER MADE AN ADDITION OF RS. 18,19,350/- BY STATING, TOTAL PURCHASE CAST IN THE HANDS OF THE COMPANY IS RS 1,20,00,000/- AS OPPOSED TO RS. 51,04,500/- G IVEN IN THE BALANCE SHEET AS ON 30.3.2008 BY ALLOWING BENEFIT OF CAPITAL IZATION OF COSTS INCURRED BY THE ASSESSEE CONSIDERING THAT THE ASSES SEE AND INCURRED EXPENDITURE FOR CONVERSION/JAMABANDI ETC. AND THE F IGURES IN PAGE 37 IS CONSIDERED TO BE THE COST IN THE HANDS OF THE ASSES SEE INCLUSIVE OF ALL CHARGES. THUS TOTAL UNACCOUNTED INVESTMENT OF RS. 68 ,96,000/- HAS BEEN ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 3 MADE BY THE ASSESSEE AND OUT OF WHICH RS. 18,91,350/ - HAS BEEN MADE DURING THE F.Y. 2006-07 RELEVANT TO THE ASSESSMENT YEAR 2007-08. SIMILAR ADDITION WERE ALSO MADE TO OTHER COMPANIES O F LASHKARY GROUP ON THE BASIS OF SAME SEIZED PAPER FOUND DURING SEARCH PROCEEDINGS AT TALKATORA, JAIPUR I.E. (PAGE NO. 37 OF ANNEXURE A-57 WAS FOUND AND SEIZED FROM 73-75, TALKATORA). IN THE CASE OF RISIN G BUILDESTATE PVT. LTD. AND COUNTRY WIDE BUILDESTATE PVT. LTD. ADDITION WAS MADE ON THE BASIS OF SAME DOCUMENTS AND ON THE SAME FACTS AND CIRCUMSTAN CES AND THE ADDITION WAS DELETED BY CIT(A) CENTRAL JAIPUR. THIS IS SUE IS DECIDED IN THE FAVOUR OF ASSESSEE BY HON'BLE ITAT IN THE CASE OF M/ S RISING BUILDESTATE PRIVATE LIMITED (ITA NO. 962/JP/2011, ASSTT. YEAR: 2007-08) AS FOLLOWS- AS STATED ABOVE, NEITHER THESE FINDINGS COULD BE C ONTROVERTED NOR ANY OTHER MATERIAL WERE BROUGHT ON RECORD WHICH CAN BE SA ID THAT FINDINGS OF LD. CIT (A) ARE NOT CORRECT. THE LD. CIT (A) HAS TAKEN INTO CONSIDERATION THE ASPECT THAT FIRSTLY THE ASSESSING OFFICERS VIE W WAS THAT THE COST OF LAND WAS RS. 4.55 CRORE OR ODD. THREE SHOW CAUSE NOTIC ES WERE GIVEN TO THE ASSESSEE FOR EXPLAINING THAT WHY THE COST OF THE LAND BE NOT TAKEN AT RS. 4.50 CRORE OR ODD. ALL THE THREE TIMES, THE EXP LANATION WAS FILED AND THE ASSESSING OFFICER WAS SATISFIED WITH THE EXPLANAT ION. THEREFORE, THE A.O. HAS NOT TAKEN THE COST OF INVESTMENT AT RS. 4. 50 CRORE OR ODD. ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 4 HOWEVER, AS PER COLUMN NO. 4 OF PAGE 37 OF EXHIBIT A -57 WHICH WAS SEIZED FROM 73-75, TALKOTRA, JAIPUR WHERE FIGURE OF 400 WAS MENTIONED, THE AO TOOK THIS VALUE AS COST OF INVESTMENT IN THE PROPERTY. CONTENTS OF PAGE 37 OF ANNEXURE A-57 HAS BEEN TABULATED IN THE ORDER OF LD. CIT (A) AT PAGE 4 WHICH HAS ALSO BEEN REPRODUCED SOMEWHERE AB OVE IN THIS ORDER WHILE INCORPORATING THE FACTS OF THE CASE. NEI THER THE AO COULD CO- RELATE THE FIGURE OF 22.5 MENTIONED IN THE COLUMN N O. 1 NOR THE FIGURE MENTIONED IN COLUMN NO. 3 AS PER BOOKS OF ACCOUNT. THEREFORE, THERE CANNOT BE A PRESUMPTION THAT FIGURE OF 400 MENTIONE D IN COLUMN NO. 4 IS FIGURE OF COST OF LAND PURCHASED BY ASSESSEE. THERE MUST BE SOME CORROBORATIVE EVIDENCE TO HOLD THAT THIS FIGURE IS RELATED TO COST OF THE LAND PURCHASED BY THE ASSESSEE. WE ARE NOT REPEATIN G THE EXPLANATION/FINDINGS OF LD. CIT(A) AS FINDING OF LD . CIT (A) IN ITS ENTIRETY HAVE BEEN REPRODUCED IN THE ABOVE PARA OF THIS ORDE R. HOWEVER, AS STATED ABOVE, THE FINDINGS OF LD. CIT (A), IN OUR CO NSIDERED VIEW, ARE FINDINGS OF FACT WHICH DOES NOT REQUIRE ANY INTERFER ENCE. THE LD. CIT (A) ALSO FOUND THAT THE CASES RELIED UPO N BY AO WERE NOT RELEVANT ON THE FACTS OF THE PRESENT CASE WHERE AS CASES RELIED UPON BY ID. COUNSEL OF THE ASSESSEE ARE IN SUPPORT OF TH E CASE. THE RATIO OF ALL THESE CASES HAVE ALSO BEEN REPRODUCED SOMEWHERE IN THE ORDER OF LD. CIT ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 5 (A) WHICH IS ALSO PART OF THIS ORDER. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND NO INFIRMITY IN THE FINDINGS OF LD. CIT (A) WHO HAS DELETED THE ADDITION MADE BY AO BY HOLDING THAT HE HAS NOT BROUGHT ANY MATERIAL TO MAKE ANY ADDITION UNDER SECTION 69B. IN VIEW OF THESE FACTS AND CIRCUMSTANCES AND IN VIE W OF THE DETAILED REASONING GIVEN BY LD. CIT (A) WHICH IS REPR ODUCED SOMEWHERE ABOVE IN THIS ORDER, WE HOLD THAT LD. CIT (A) WAS JUS TIFIED IN DELETING THE ADDITION MADE BY ASSESSING OFFICER. ACCORDINGLY WE C ONFIRM HIS ORDER. 3. THE LD. CIT(A) DELETED THE ADDITION MADE, FOLLOWIN G THE AFORESAID TRIBUNAL ORDER (PB 130-161) DATED 22/6/2012, PASSED IN THE CASE OF M/S RISING BUILDSTATE PVT. LTD., FOR A.Y. 2007-08. THE L D. CIT(A) HAS HELD AS UNDER:- IN VIEW OF THE ABOVE FINDINGS OF HONBLE TRIBUNAL, S INCE THE ADDITION MADE IN THIS CASE RELATES TO THE SAME DOCU MENTS, THE ADDITIONS MADE BY THE ASSESSING OFFICER OF RS. 50,0 4,650/- AS UNEXPLAINED INVESTMENTS IN LAND ARE HEREBY DELETED. THE GROUNDS OF APPEAL ARE ALLOWED. 4. THE LD SR. DR HAS CONTENDED THAT THE DEPARTMENT H AS NOT ACCEPTED THE TRIBUNAL ORDER DATED 22/6/2012 PASSED IN THE CAS E OF M/S RISING BUILDSTATE PVT. LTD. FOR A.Y. 2007-08 AND HAS FILED AN APPEAL BEFORE THE ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 6 HON'BLE HIGH COURT, WHICH IS HITHER-TO PENDING. THE L D SR. DR SUBMITS THAT AS SUCH, THE LD. CIT(A)S ACTION OF FOLLOWING TH E SAID TRIBUNAL ORDER, TO DELETE THE ADDITION MADE IN THE CASE OF PRESENT ASSESSEE, BE CANCELLED AND THE ASSESSMENT ORDER BE CONFIRMED. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HA ND, HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOT DISPUTED THAT THE SEARCH WAS CONDUCTED ON THE LASHKARY GROUP IN JAIPUR AND THAT THE ASSESSEE COMPANY BELONGS TO THIS GROUP. IT IS NOT D ISPUTED THAT RISING BUILDSTATE PVT. LTD. AND COUNTRY WIDE BUILDSTATE PV T. LTD. ARE ALSO COMPANIES BELONGING TO THE LASHKARY GROUP. IT IS NO T DISPUTED THAT SIMILAR ADDITIONS, AS THE ONE MADE HEREIN, WERE MADE IN THE CASES OF THESE TWO COMPANIES, ON THE BASIS OF THE VERY SAME SEIZED PAP ER (PAGE 37 OF ANNEXURE-A-57) FOUND IN THE SEARCH, AS FORMED THE B ASIS OF THE ADDITION IN THE PRESENT CASE. IT IS NOT DISPUTED THAT THE AD DITIONS IN THE CASES OF THESE TWO COMPANIES WERE DELETED BY THE LD. CIT(A). I T IS NOT ALSO DISPUTED THAT IN THE CASE OF M/S RISING BUILDSTATE PVT. LTD., VIDE ORDER (SUPRA), DATED 22/6/2012, PASSED IN ITA NO. 962/JP/ 2011 AND C.O. ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 7 88/JP/2011, FOR THE IMMEDIATELY PRECEDING ASSESSMEN T YEAR, I.E., A.Y. 2007-08, THE TRIBUNAL UPHELD THE LD. CIT(A)S ACTION OF DELETION OF ADDITION AND DISMISSED THE DEPARTMENTS APPEAL. IT IS FURTHER NOT DISPUTED THAT THE FACTS AND CIRCUMSTANCES IN THE PRESENT CAS E ARE EXACTLY SIMILAR TO THOSE IN THE CASE OF M/S RISING BUILDSTATE PVT. LTD . 7. THE LD. CIT(A) HAS FOLLOWED THE AFORESAID TRIBUNAL O RDER DATED 22/6/2012 IN THE CASE OF M/S RISING BUILDSTATE PVT . LTD., IN A.Y. 2007-08. NOW, IN VIEW OF THE FACT THAT IN THE CASE OF M/S RI SING BUILDSTATE PVT. LTD., FOR A.Y. 2007-08, THE LD CIT(A) HAD DELETED TH E ADDITION MADE AND IN THE PRESENT CASE, THE LD. CIT(A) HAS FOLLOWED THE ORDER OF THE TRIBUNAL UPHOLDING THE SAID DELETION OF THE ADDITION IN THE CASE OF M/S RISING BUILDSTATE PVT. LTD., AND IN VIEW OF THE FACT THAT THE FACTS AND CIRCUMSTANCES IN THE PRESENT CASE ARE UNDISPUTEDLY IN PARI MATERIA WITH THOSE IN THE CASE OF M/S RISING BUILDSTATE PVT. LTD ., FOR A.Y. 2007-08, CONSISTENCY DEMANDS THAT THE SAID TRIBUNAL ORDER IN THE CASE OF M/S RISING BUILDSTATE PVT. LTD., BE FOLLOWED HEREIN, AS HAS CORRECTLY BEEN DONE BY THE LD. CIT(A) VIDE THE IMPUGNED ORDER. THIS, IRR ESPECTIVE OF THE DEPARTMENT HAVING STATEDLY NOT ACCEPTED THE AFORESA ID TRIBUNAL ORDER, AND HAVING APPEALED THERE-AGAINST BEFORE THE HON'BL E HIGH COURT. THE ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 8 LAW WILL TAKEN ITS OWN COURSE AND THE BEARING OF THE F ATE OF THE DEPARTMENTS APPEAL BEFORE THE HON'BLE HIGH COURT I N THE CASE OF M/S RISING BUILDSTATE PVT. LTD., SHALL BE EXAMINED AT T HE RELEVANT TIME. AS OF NOW, CONSISTENCY PREVAILS. 8. IN THIS REGARD, IT IS ALSO SEEN THAT AS PER THE RECORD, EVEN IN THE CASE OF M/S COUNTRY WIDE BUILDSTATE PVT. LTD., VIDE ORDER (APB 162-193) DATED 29/06/2012, PASSED FOR A.Y. 2007-08, IN ITA N O. 961/JP/2011 AND C.O. 87/JP/2011, THE TRIBUNAL HAS, FOLLOWING THEIR AF ORESAID ORDER IN THE CASE OF M/S RISING BUILDSTATE PVT. LTD., SIMILARLY CONFIRMED THE CIT(A)S ACTION OF DELETION OF A SIMILAR ADDITION, BY HOLDIN G AS UNDER:- 16. WE HAVE ALREADY DECIDED SIMILAR CASE IN CASE O F M/S RISING BUILDSTATE PVT. LTD. IN ITA NO. 962/JP/2011 BY ORDER DATED 22/6/2012 IN WHICH THE IDENTICAL FACTS ARE INVOLVED. THE ADDITION WAS MADE ON THE BASIS OF COLUM N NO. 4 OF PAGE 37 ANNEXURE A-57. THE ADDITION WAS DELETED BY LD. CIT(A) AND THE ORDER OF LD. CIT(A) H AS BEEN CONFIRMED BY US. SINCE THE FACTS ARE IDENTICAL IN THE PRESENT CASE, THEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES DISCUSSED ABOVE AND IN VIEW OF THE REASONING GIVEN BY US IN THAT CASE I.E. M/S RISING BUILDSTATE PVT. LTD., WE CONFIRM THE ORDER OF THE LD . CIT(A) IN THIS CASE ALSO. ITA 79/JP/2016_ ITO VS M/S APPLE BUILDSTATES 9 9. FOR THE ABOVE, FINDING NO MERIT IN THE GRIEVANCE SOUGHT TO BE RAISED BY THE DEPARTMENT, THE SAME IS REJECTED. 10. THE ORDER UNDER APPEAL IS CONFIRMED. 11. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/09/2016. SD/- SD/- FOE FLAG ;KNO , - MH TSU (VIKRAM SINGH YADAV) (A.D. JAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 TH SEPTEMBER, 2016 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD-5(2), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- M/S APPLE BUILDSTATES, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 79/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR