M/s. Ujjwal Fabrics, Surat V. The Income tax Officer,Ward-2(2), Surat

ITA 894/AHD/2011

• Counselvise Citation: 89420514 RSA 2011
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-09-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 25-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K VOHRA
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Capital asset; Fair market value; Reason to believe; Capital Gains
• Section: 143(3); 50C; 69B

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' [BEFORE SHRI G D AGARWAL VICE-PRESIDENT] [AND SHRI MUKUL KUMAR SHRAWAT JM] ITA NO.894/AHD/2011 (ASSESSMENT YEAR:-2007-08) M/S UJJWAL FABRICS, C-4099/4100, MILLENNIUM MARKET, RING ROAD, SURAT V/S THE INCOME-TAX OFFICER, WARD-2(2), SURAT PAN: AABFU 6165 B [APPELLANT] [RESPONDENT] APPELLANT BY :- SHRI HARDIK VORA, AR RESPONDENT BY:- SHRI R K VOHRA, SR. DR DATE OF HEARING:- 16-09-2011 DATE OF PRONOUNCEMENT:- 30-09-2011 O R D E R PER BENCH : THIS IS AN APPEAL BY ASSESSEE AGAINST AN ORDER DATED 14- 02-2011 OF LEARNED COMMISSIONER OF INCOME-TAX (APPE ALS)-II, SURAT [THE CIT(A)] FOR ASSESSMENT YEAR (AY) 2007- 08. THE ONLY GROUND RAISED BY THE ASSESSEE READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WEL L AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.18,01,120/- U/S 69B OF THE ACT FOR ALLEGED UNEXPLAINED INVESTMENT IN SHOP . 2 THE FACTS IN BRIEF AS EMERGED FROM THE ASSESSMENT ORDER WERE THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS PURCHASED 8 SHOPS VIZ. C-4099 TO 4102 & 1145 TO 4118 ON THE 2 ND FLOOR OF MILLENNIUM MARKET, RING ROAD, SURAT. THE ASSESSEE HAS SHOWN THE PURCHASE PRICE OF RS.26,08,000/- . HOWEVER, ACCORDING TO THE ASSESSING OFFICER [AO] IN THE 2 IT A NO.894/AHD/2011 PURCHASE OF SHOP ACCOUNT GIVEN IN ANNEXURE-H SHOWS AT RS.28,14,285/- WHICH IS INCLUSIVE OF OTHER ALLIED E XPENSES FOR THE PURCHASE OF SHOP. ON VERIFICATION OF PURCHASE DEED EXECUTED BETWEEN THE ASSESSEE AND M/S SHANTI ENTERPRISE, THE DEVELOPERS AND BUILDERS OF MILLENNIUM MARKET EXECUTED ON 15-09-2006 SHOWS THAT THE ASSESSEE HAS PAID RS.26,08,000/- FOR THE PURCHASE OF 8 SHOPS ADMEASURING 1360 SQ. FT. I.E. 170 SQ. FT. EACH. THIS SHOWS THAT THE ASSESSEE HAS PAID RS.191 7/- PER SQ. FT. . 2.1 THE AO HAS FURTHER NOTED THAT M/S SHANTI ENTERPRISE IS ALSO ASSESSED IN HIS WARD AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE AY 2005-06, IT WAS FOUND THAT T HE SELLING RATE OF SHOPS PER SQ. FT. ON THE UPPER GROUND FLOOR , LOWER GROUND FLOOR AND FIRST FLOOR, AND 2 ND FLOOR WAS SHOWN AT RS.3271/-, RS.3741/-, RS.2565/-, RS.1889/- AS AGAIN ST COST PRICE OF THE SAME PER SQ. FT. OF RS.3825/-, RS.4328/-, RS .2995/-, RS.2160/- RESPECTIVELY. 2.2 THE AO ALSO NOTED THAT DURING THE COURSE OF ASS ESSMENT PROCEEDINGS FOR THE A.Y.2005-06 IT IS FOUND THAT TH E ASSESSEE SOLD OFFICE SPACE (HALL) IN THE SECOND FLOOR TO THE SURAT PEOPLES CO-OP. BANK AT THE RATE OF RS.3242 PER SQ. FT. 2.3 THE AO OBSERVED THAT IT IS A KNOWN FACT THAT TH E BANK WHICH HAS GOT A LIMITED STATUS GOVERNED BY BOARD OF DIREC TORS UNDER THE GUIDELINES OF RBI IS NOT IN A POSITION TO PAY ANY ' ON MONEY' OUTSIDE THE BOOKS OF ACCOUNTS AND THEREFORE, THE AM OUNT PAID BY THE CO-OP. BANK TOWARDS THE PURCHASE PRICE OF THE F LOOR SPACE IN THE MILLENNIUM TEXTILE MARKET CAN BE TAKEN AS CORRE CT MARKET VALUE OR CORRECT SALE PRICE. THE SALE PRICE OF FLOO R SPACE IN THE 2ND FLOOR (OPEN HALL) OF THE MILLENNIUM TEXTILE MAR KET IS SHOWN AT RS.3242 PER SQ. FT. 2.4 THE AO FURTHER NOTED THAT THE ABOVE STATED DEED FOR THE SPACE ON THE 2ND FLOOR WAS EXECUTED DURING THE PREV IOUS YEAR RELEVANT TO ASSESSMENT YEAR 2005-08 AND THE ASSESSE E HAS PURCHASED THE PROPERTY AFTER ONE YEAR FROM THE PURC HASE DATE OF SURAT PEOPLES BANK. THEREFORE, THE PRICE PAID BY TH E ASSESSEE SHOULD BE MUCH MORE THAN THE PRICE SHOWN IN THE SAL E TRANSACTION 3 IT A NO.894/AHD/2011 WITH THE SURAT PEOPLES' CO-OP BANK. THE PRICE OF SH OP AND PROPERTY ALWAYS GOES UP FROM THE DATE OF SALE YEAR AFTER YEAR AND IT NEVER GOES DOWN AND ESPECIALLY IN THE TEXTILE MA RKET THE PRICE INCREASES STEADILY YEAR AFTER YEAR. THEREFORE THE P URCHASE PRICE PAID BY THE ASSESSEE MUST BE MUCH MORE THAN WHAT IS PAID BY SURAT PEOPLES CO-OP BANK TO M/S SHANTI ENTERPRISE. UNDER THE CIRCUMSTANCES, THE ASSESSEE WAS ASKED TO EXPLAIN VI DE LETTER DATED 16/12/2009 AS TO WHY THE DIFFERENCE AMOUNT OF RS.15,94,835/- SHOULD NOT BE ADDED TO ITS TOTAL INC OME U/S 69B OF THE ACT, THE RELEVANT PORTION OF WHICH IS REPRODUCE D HEREUNDER. 8. ON GOING THROUGH THE DETAILS FURNISHED, IT IS F OUND THAT DURING THE YEAR YOU HAVE PURCHASED 8 SHOPS IN MILLENNIUM T EXTILE MARKET AT SHOP NO.C-4099 TO 4102, 4115 TO 4118 ADMEASURING 17 0 SQ. FT. EACH ON THE 2ND FLOOR AS PER THE INFORMATION AVAILABLE I N THIS OFFICE. YOU HAVE SHOWN THE TOTAL PURCHASE PRICE OF ALL THE SHOP S AT RS.28,14,285/- AS PER PAGE NO.1 GIVEN AT ANNEXURE-H TO YOUR SUBMIS SION, FROM M/S SHANTY ENTERPRISE, RING ROAD SURAT 9. M/S SHANTI ENTERPRISE IS BEING ASSESSED IN THIS WARD AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE A.Y. 2 005-06 IT WAS FOUND THAT M/S SHANTI ENTERPRISE HAS SOLD SHOPS @ R S.3242/- PER SQ. FT. IN THE 2ND FLOOR TO THE SURAT PEOPLE'S CO-OP BA NK DURING THE F.Y. 2004-05 RELEVANT TO A.Y. 2005-06. M/S SHANTI ENTERP RISE HAS UNDERSTATED THE VALUE PER SQ. FT. M/S SHANTI ENTERP RISE HAS SOLD ALL THE SHOPS FLOORWISE IN DIFFERENT RATES IN ASCENDING ORD ER FROM LOWER GROUND FLOOR, UPPER GROUND FLOOR, FIRST FLOOR AND S ECOND FLOOR. FROM THE EVIDENCE GATHERED IN THIS OFFICE IT IS FOUND TH AT THE SHOPS OF MILLENNIUM MARKET WERE SOLD AT A VERY HIGH PRICE I. E. MORE THAN THE VALUE SHOWN BY THEM IN THEIR BOOKS OF ACCOUNTS AT T HE INITIAL STAGE. AFTER THE INITIAL THEY REVISE THE RATE AND THE PRIC E OF SHOPS INCREASED TO A VERY HIGH LEVEL. HOWEVER, IN OFFICIAL SALE DEED T HE ACTUAL SALE PRICE WAS NOT REFLECTED. HOWEVER, EVEN ON OFFICIAL TRANSA CTION WITH THE SURAT PEOPLE'S BANK M/S SHANTI ENTERPRISE HAS SOLD SHOPS / FLOOR SPACE AT THE RATE OF RS.3242/- PER SQ. FT. IN THE OFFICIAL DEED DURING THE YEAR 2004- 05 RELEVANT TO A.Y. 2005-06. SINCE THE SHOPS PURCHA SED BY YOU ALSO SITUATED IN THE SAME FLOOR THERE IS NO REASON WHY A NY SHOP SHOULD BE SOLD FOR LESS THAN THAT PRICE. YOU HAVE PURCHASED 8 SHOPS ADMEASURING A TOTAL OF 1360 SQ. FT. AND THE AMOUNT PAID BY YOU CAN NEVER BE LESS THAN THE RATE AT WHICH THE SHOPS WERE SOLD TO SURAT PEOPLE'S CO-OP BANK. YOU ARE, THEREFORE, REQUESTED TO EXPLAIN AS T O WHY THE PURCHASE 4 IT A NO.894/AHD/2011 PRICE OF THE SHOPS SHOULD NOT BE ADOPTED MINIMUM @ RS.3242/- PER SQ. FT. THE VALUE OF 8 SHOPS AT THE MINIMUM RATE OF 3242/- COMES TO RS.44,09,120/- AND YOU HAVE SHOWN ONLY RS.28,14,285 /-. YOU ARE REQUESTED TO EXPLAIN AS TO WHY THE DIFFERENCE AMOUN T OF RS.15,94,835/- SHOULD NOT BE ADDED TO YOUR TOTAL IN COME U/S 69B OF THE IT. ACT. 2.5 IN RESPONSE TO THE SAID SHOW CAUSE NOTICE, THE ASSESSEE VIDE ITS LETTER DATED NIL STATED THAT THE ABOVE VALUE WAS APPROVED BY THE COMPETENT GOVERNMENT AUTHORITY. FURTHER IT IS STATED THAT 'THE SHOPS PURCHASED BY SURAT PEOPLES BANK IS NOT I N THE SAME FLOOR OF MILLENNIUM MARKET, IN FACT IT IS SITUATED AT ONE FLOOR BELOW THE FLOOR AT WHICH ASSESSEE HAD PURCHASED THE SHOP S. ALSO THE SHOPS PURCHASED BY THE SURAT PEOPLES BANK ARE IN FIRST ROW AND IN FRONT SIDE OF THE BUILDING FACING THE MAIN R ING ROAD SIDE WHILE THE SHOPS PURCHASED BY THE ASSESSEE IS I N THE BACK ROW ON SECOND FLOOR. THE AO SUBMITTED THAT AS THE FLOOR AND SIDE BOTH ARE DIFFERENT, ONE CANNOT COMPARE THE PRICES. AS TH E FRONT SIDE AND LOWER THE FLOOR WILL DEFINITELY FETCH THE HIGHE R PRICE. THEREFORE, MERELY ASSUMING THE PRICE ON THE BASIS O F SALE TO OTHER PARTIES IS IMPROPER. AS THERE ARE OTHER FACTORS WHI CH ALSO DECIDE THE PRICES LIKE PAYMENT TERMS, LOCATION OF SHOPS, A REA AND QUANTITY OF SHOPS. THE ASSESSEE ALSO SUBMITTED THAT THERE ARE MORE THAN 1000 SHOPS IN THE SAME BUILDING WHICH MAY HAVE BEEN SOLD AT DIFFERENT RATES AND IN DIFFERENT YEARS. SO THE SALES TO SURAT PEOPLES BANK CANNOT BE ASSUMED AS THE BASE FOR DECI DING THE RATES OF SHOPS PURCHASED BY THE ASSESSEE. 2.5 HOWEVER, THE AO DID NOT ACCEPT THE AFORESAID SU BMISSIONS OF THE ASSESSEE AND PROCEEDED TO MAKE AN ADDITION OF RS.18,01,120/ - IN THE FOLLOWING MANNER:- 11 THE ABOVE ARGUMENT OF THE ASSESSEE IS NOT ACCEP TED FOR THE REASON THAT IT IS NOT MERE ASSUMPTION OR PRESUMPTIO N. WHAT IS STATED ABOVE IS ON THE BASIS OF THE ACTUAL SALE PRICE FOUN D OUT BY THE ASSESSING AUTHORITY DURING THE ASSESSMENT YEAR 2005-06. FURTH ER, THE ASSESSEE'S STATEMENT THAT OTHER FACTORS SUCH AS PAYMENT TERMS, LOCATION OF SHOP, AREA AND QUANTITY OF SHOPS, ETC. INFLUENCE THE PRIC E ON VARIOUS LEVELS. THEREFORE, THE SALE TO SURAT PEOPLES CO-OP BANK CAN NOT BE ASSUMED AS THE BASE FOR DECIDING THE RATES OF THE SHOPS PURCHA SED BY THE ASSESSEE. 5 IT A NO.894/AHD/2011 THIS STATEMENT OF THE ASSESSEE GOES AGAINST ITS OWN INTEREST BECAUSE IF THAT ARGUMENT IS MADE THE RATE PER SQ. FT. SHOULD B E TAKEN MUCH MORE THAN RS.3242 PER SQ. FT. THE BUILDER AND DEVELOPER M/S SHANTI ENTERPRISE ARE KNOWN FOR THE QUALITY OF CONSTRUCTIO N AND PLANNING AND FACILITIES PROVIDED TO THE SHOPS OWNERS. THEREFORE, IT IS KNOWN TO ALL THAT EVEN RS.10,000/- PER SQ. FT. IS BETTER BARGAIN ING IN MILLENNIUM MARKET. MILLENNIUM MARKET IS SITUATED IN THE PRIME LOCALITY IN THE TEXTILE MARKET AREA AND ALSO IS ONE OF THE BEST KNO WN TEXTILE MARKETS IN SURAT. AT THIS STAGE: THE MATTER COULD NOT BE RE FERRED TO THE DEPARTMENTAL VALUATION AUTHORITY FOR THE PAUSITIVE OF TIME AND ALSO LOOKING TO THE FACT THAT THE ASSESSMENT OF SHANTI E NTERPRISE IS JUST COMPLETED AND AS LONG AS THAT MATTER IS DISPUTED BY M/S SHANTI ENTERPRISE, THE SAME IS NOT CONSIDERED APPROPRIATE. 12. IT MAY BE MENTIONED HERE THAT THE ASSESSEE'S RE QUEST FOR CROSS EXAMINATION ALSO CANNOT BE GRANTED BECAUSE M/S SHAN TI ENTERPRISE HAS NOT DISCLOSED THE ABOVE SALE PRICE TILL DATE. THE R ATE PER SQ. FT OF RS.3242/- IS THE FINDING OF THE INCOME-TAX DEPARTME NT FROM THE RECORDS AVAILABLE AND THE EVIDENCES COLLECTED IN TH E ASSESSMENT FOR THE A.Y. 2005-06, WHICH IS CONFIRMED IN THE FIRST APPEL LATE STAGE. 13 IT MAY BE MENTIONED HERE THAT IN PARA NO.4.1(V) OF THE ASSESSMENT ORDER IN THE CASE OF M/S SHANTI ENTERPRI SE FOR THE A.Y. 2005-06 AND ALSO IN PARA 4.2 OF LEARNED CIT[A] SURA T'S ORDER IT IS CLEARLY MENTIONED THAT 'THE ASSESSES HAD CLAIMED TO HAVE SOLD A SECOND FLOOR HALL ADMEASURING 5402 SQ. FT. AT THE RATE OF RS.1666/- PER SQ. FT. FOR A TOTAL OF CONSIDERATION OF RS.90 LAKHS TO THE SURAT PEOPLES CO-OP BANK. THE ENQUIRIES WITH THE BANK SHOWED THAT THEY HAD PURCHASED ONLY 2776 SQ. FT. AT THE RATE OF RS.3242 PER SQ. FT . WHICH MEAN THAT THE SELLING PRICE HAD BEEN SUBSTANTIALLY UNDER STATED. THE ABOVE STATEMENT CLEARLY UNFOLDED THE MODUS OPERANDI OF THE BUILDER M/S SHANTI ENTERPRISE TO UNDERSTATE THE SALE PRICE WITHOUT BEI NG NOTICED. IN ORDER TO SHOW SALE PRICE AT A LOWER RATE FROM RS.3242 PER SQ. FT. M/S SHANTY ENTERPRISE HAD INCREASED THE AREA SOLD TO SURAT PEO PLES CO-OP BANK FROM 2776 SQ. FT. TO 5402 SQ. FT. THEREBY REDUCING THE RATE FROM RS.3242/- PER SQ. FT. TO RS,1666/- PER SQ. FT. THE LD. CIT[A] HAS CONFIRMED THE STAND TAKEN BY THE DEPARTMENT IN ADOP TING THE SALE RATE AT THE RATE OF RS.3242/- PER SQ. FT. IN THE SHOW CA USE NOTICE DATED 16/12/2009 THE UNDERSIGNED HAS PROPOSED TO ADOPT RS .3242/- PER SQ. FT. ONLY ON THE BASIS OF SALE RATE ADOPTED BY THE ASSES SING OFFICER AND CONFIRMED BY THE LEARNED CIT|A] AND NOT AT THE ACTU AL PREVAILING RATE 6 IT A NO.894/AHD/2011 OF MORE THAN RS.10,000/- PER SQ. FT. AS ON THE DATE OF SALE. THEREFORE, THE ASSESSEE'S CLAIM THAT THE PROPOSED ADOPTION OF RATE AT THE RATE OF RS.3242 PER SQ. FT. IS ON PRESUMPTION IS NOT CORREC T. 14. THE COST OF SHOP ON 2ND FLOOR IS SHOWN AT RS.2, 160/- PER SQ. FT. BY M/S SHANTI ENTERPRISE. M/S SHANTI ENTERPRISE HAS PURCHASED THE LAND AT VERY HIGH RATE, GOT ALL THE FORMALITIES DON E AND GOT THE MARKET CONSTRUCTED FOR EARNING PROFIT. IN THAT CASE IT IS ILLOGICAL, UNREASONABLE AND UNETHICAL TO CLAIM THAT THE ASSESSEE HAS GOT 8 SHOPS AT A LESSER RATE THAN THE COST PRICE OF THE BUILDING FLOOR SPACE. 15. THE ASSESSEE HAS NOT BROUGHT OUT ANY SPECIAL RE ASON FOR GETTING THE SHOPS FROM M/S SHANTI ENTERPRISE AT A LESSER RA TE THAN THE COST PRICE AND ALSO LESSER THAN THE RATE AT WHICH THE SH OPS ARE SOLD TO SURAT PEOPLES CO-OP BANK. THEREFORE, ALL THE EVIDENCES SH OW THAT THE ASSESSEE HAS PAID NOT LESS THAN Z42/- PER SQ. FT. F OR THE ABOVE SHOPS PURCHASED BY IT, IF NOT MORE, IN VIEW OF THE ABOVE DISCUSSION, I ADOPT THE PURCHASE RATE AT RS.3242/- PER SQ. FT. THUS THE ASSESSEE HAS PAID RS.44,09,120/- AND IT HAS SHOWN ONLY 26,08,000/- IN THE PURCHASE DEED. DIFFERENCE OF RS.18,01,120/- IS THEREFORE ADD ED TO THE TOTAL INCOME OF THE ASSESSEE U/S 69B OF THE I.T. ACT. 16. IT MAY ALSO BE MENTIONED HERE THAT THE ABOVE AD DITION IS MADE LOOKING TO THE FACT THAT: I. THE ADDITION MADE BY THE ASSESSING OFFICER ON AC COUNT OF SUPPRESSED SALE RATE BY M/S SHANTI ENTERPRISE ON SA LE OF SHOP IS CONFIRMED BY THE LD. CIT[A] FOR THE A.Y. 2005-06. II. THE ASSESSMENT ORDER PASSED FOR THE A.Y. 2004-0 5 IS REOPENED ON THE VERY SAME REASONS AND IN THE REASSESSMENT PR OCEEDING ALSO THE SALE RATE OF THIS FLOOR IS TAKEN AT THE RA TE OF RS.3242/- PER FT. FOR THE SALE OF ALL THE SHOPS OF THE SECOND FLOOR. THE SHOPS PURCHASED BY THE ASSESSEE ARE ALSO SITUATED ON THE SAME FLOOR AND THERE IS NO REASON WHY THE SHOPS SHOULD BE SOLD AT A LESSER RATE. III. THE COST PRICE OF SHOP PER SQ. FT SHOWN BY M/S SHANTI ENTERPRISE IS RS.2,1607- AND IT CANNOT BE BELIEVED THAT A BUIL DER HAS SOLD ALL THE 8 SHOPS AT A RATE LESS THAN THE COST PRICE OF RS.2,160/-. 7 IT A NO.894/AHD/2011 3 AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE TH E LEARNED CIT(A) AND VIDE LETTER DATED 12-10-2010 FILED WRITT EN SUBMISSIONS, AS UNDER:- '1. THE LEARNED INCOME-TAX OFFICER ADDED RS.18,01,1 20/-TO THE TOTAL INCOME OF THE APPELLANT ALLEGING THAT (A) SUPPRESSE D SALE RATE BY THE SELLER M/S SHANTI ENTERPRISES DURING PRECEDING YEAR I.E. A.Y.2005-06, [THE YEAR UNDER CONSIDERATION IS A. Y.2007-08], (B) THE ASSESSMENT OF SELLER'S FIRM IS REOPENED FOR PAST A. Y.2004-05 AND (C) THE COST PRICE OF THE SHOP PER SQ. FT. SHOWN BY SELLER'S FIRM M/S SHANTI ENTERPRISE IS MORE THAN THE SALE PRICE (PARA-16 OF THE ASSESSMENT ORDER) 2. THE APPELLANT CONTENDS THAT THE GROUNDS CONSIDER ED BY THE LEARNED ITO DO NOT SUPPORT THAT THE SHOPS SOLD TO T HE APPELLANT WERE AT A PARTICULAR RATE/PRICE BY BRINGING ON RECORD THE E VIDENCE LIKE SALE AGREEMENT QUOTING THE DIFFERENT SALE RATE/PRICE THA T THAT MENTIONED IN THE REGISTERED SALE DEED. THE ASSESSMENT ORDER PASS ED BY THE LEARNED ITO WHO HAD ALSO PASSED THE ASSESSMENT ORDER OF THE SELLER'S FIRM IS SILENT ABOUT ANY SUCH INCRIMINATING DOCUMENTS/PAPER FOUND DURING ANY SURVEY PROCEEDINGS CONDUCTED AT THE PREMISES OF SEL LER AND THEREBY HE HAD REASON TO BELIEVE THAT HIS ADDITION IS JUSTIFIE D. 3. THE SELLER M/S SHANTI ENTERPRISE HAD PURCHASE TH E LAND ON WHICH MARKET WAS CONSTRUCTED AND SHOPS THEREIN WERE SOLD, FROM THE GOVERNMENT BODY I.E. SURAT MUNICIPAL CORPORATION WH O HAD INVITED TENDERS AND ACCEPTED, THE CONSIDERATION BY CHEQUES, TO THERE WAS NO INVOLVEMENT OF CASH TRANSACTION / 'ON-MONEY'. WHEN THE LAND WAS AVAILABLE WITHOUT ANY 'ON-MONEY' WHY THE SELLER NEE DS THE COMPENSATION IN BLACK. PRESUMPTION OF INVOLVEMENT OF CASH / ON- MONEY IN TRANSACTION OF PROPERTY, AS FAR AS THIS CA SE IS CONCERNED IS REBUTTED. 4. THE SURAT MUNICIPAL CORPORATION HAS GIVEN LAND O N LEASE OF 99 YEARS TO M/S SHANTI ENTERPRISES 'THE SELLER / DEVEL OPER' FROM WHOM THE SHOPS ARE PURCHASED BY THE APPELLANT. IT IS NOT A F REE-HOLD LAND. 5. THE LEARNED ITO HAD STATED THAT THE SHOPS SOLD T O THE SURAT PEOPLE'S CO-OP. BANK BY M/S SHANTI ENERPRISE WAS AT A HIGHER RATE AND THE SAID SHOPS WERE ALSO AT THE 2ND FLOOR WHERE THE APPELLANT HAD PURCHASED I.E. BOTH HAVE PURCHASED THE SHOPS ON THE SAME 2ND FLOOR. THIS IS BASICALLY A WRONG FACT. IN THE SALE DEED OF THE SURAT PEOPLE'S CO-OP. BANK ON PAGE NO.31 AS WELL AS PAGE NO.47 IT IS CRYSTAL CLEAR 8 IT A NO.894/AHD/2011 THAT THE SHOPS ARE SITUATED ON THE 1ST FLOOR, ZEROX COPIES OF THESE PAGES ARE ATTACHED. 6. ALL THE SHOPS PURCHASED BY THE APPELLANT ARE ON THE 2ND FLOOR. M/S SHANTI ENTERPRISE HAD SOLD OTHER SHOPS ON THE 2 ND FLOOR TO VARIOUS OTHER PERSONS AT THE SIMILAR PRICE AS THAT OF THE A PPELLANT. 7. SHOPS OF THE SURAT PEOPLE'S CO-OP. BANK ARE ON T HE FRONT SIDE I.E. FACING RING ROAD WHILE THE SHOPS OF APPELLANT ARE SITUATED ON THE REAR SIDE. 8. HAD THE LEARNED ITO REFER THE MATTER TO VALUATIO N CELL, BY NOW THE REPORT WOULD HAVE COME. 9. THE REGISTERING AUTHORITY, SUB-REGISTER, SURAT HAS ACCEPTED THE VALUE SHOWN IN THE REGISTERED DEED AND ALSO ACC EPTED THE STAMP DUTY USED BY THE APPELLANT, NO ADDITIONAL DUTY WAS LEVIED, DOCUMENT IS CLEAR, XEROX COPIES OF THE RELEVANT PAG ES OF THE DOCUMENTS ARE ATTACHED. 10. THE LEARNED ITO ADDED RS.18,01,120/- MERELY ON SURMISES, PRESUMPTION AND IGNORED THE RELEVANT MATERIAL ASPEC TS THAT THE FLOOR WAS NOT THE SAME, LAND WAS PURCHASED FROM THE SURAT MUNICIPAL CORPORATION WHO HAD INVITED TENDERS AND THERE WAS N O ELEMENT OF 'ON- MONEY' WHEREBY THE SELLER WOULD CALL FOR 'ON-MONEY' TO COMPENSATE THE ON-MONEY COST, LAND IS LEASE-HOLD & NOT FREEHOL D, THE OTHER REVENUE AUTHORITY I.E. SUB-REGISTRAR WHO ALSO GOVT. APPROVED 'JANTRY' (MARKET VALUE FOR STAMP DUTY) WHO HAD ACCEPTED THE VALUE MENTIONED IN SALE DEED. 11. THE ADDITIONS IN THE HANDS OF THE SELLER - SHAN TI ENTERPRISE HAS NO RELEVANCE. THIRD PARTY'S ASSESSMENT EVEN IF UPHE LD IN APPEAL IS NO EVIDENCE FOR MAKING PRESUMPTIVE ADDITIONS. 12. THE LEARNED ITO HAD NOT ACQUAINTED THE APPELLAN T WITH THE CALCULATION OF THE COST PRICE OF SHOP ARRIVED AT BY THE SELLER. EVEN IF ANY SUCH WORKING IS PROVIDED IT IS IRRELEVANT PHENO MINA. IT IS THE SWEET WILL OF THE SELLER AT WHAT VALUE/RATE THE ARTICLE/S HOP/PROPERTY BE SOLD. HE MAY EARN SIZABLE AMOUNT OF PROFIT/GAIN OR INCUR LOSS. THIS PARTY'S ASSESSMENT IS NOT A FULL PROOF EVIDENCE. 9 IT A NO.894/AHD/2011 13. THE LEARNED ITO PUT FORCE FOR ADDITION THAT ASS ESSMENTS OF THE THIRD PARTY ARE RE-OPENED. THE PARTY HAS NOT CONFES SED OR EVEN REPLIED THAT 'YES' IT HAD ACCEPTED MORE MONEY THAN WHAT IS STATED IN THE DOCUMENT. REOPENING OF THE ASSESSMENT OF THE THIRD PARTY I.E. SELLER M/S SHANTI ENTERPRISE HAS BEEN FOR VARIOUS REASONS. NO COGENT EVIDENCE HAS BEEN PROCURED BY THE LEARNED ITO FOR C ROSS-VERIFICATION AND THAT TOO THE FACT THAT THE APPELLANT HAS BEEN D ENIED CROSS- EXAMINATION OF THE THIRD PARTY VEHEMENTLY RELIED UP ON BY THE LEARNED ITO. 14. ALL THE DOCUMENTARY EVIDENCES INCLUDING THE REG ISTERING AUTHORITY, SUB-REGISTRAR, SURAT WHO HAS ACCEPTED TH E MARKET VALUE BEING 'JUNTRY' SETTLED BY THE STATE GOVERNMENT AND RECOGNIZED BY THE CENTRAL GOVT. BY ENACTING SEC. 50C OF THE I.T. ACT, 1961 [THOUGH FOR CAPITAL ASSET BUT THE SAME IS LAND/BUILDING.] 15. IN VIEW OF THE ABOVE DETAILED SUBMISSION THE AD DITIONS MADE ON PRESUMPTION, SURMISES AND CONJECTURES WHICH IS BAD- IN-LAWF HAS NO LOCUS STANDY IS REQUIRED TO BE DELETED.' 4 AFTER CONSIDERING THE AFORESAID SUBMISSIONS OF TH E ASSESSEE, THE LEARNED CIT(A) HAS CONFIRMED THE ADDITION WITH THE FOLLOWING OBSERVATIONS:- 5. DECISION: 5.1. AS THE ABOVE SIX GROUNDS OF APPEAL ARE AGAINST THE ADDITION OF RS.18,01,120/-, U/S 69B OF THE ACT, THE SAME ARE TA KEN UP TOGETHER FOR DISCUSSION AND DISPOSAL. I HAVE DULY CONSIDERED THE SUBMISSION OF THE APPELLANT. HOWEVER, I DO NOT AGREE WITH THE APPELLA NT THAT THE ADDITION OF RS.18,01,120/- HAS BEEN MADE MERELY ON SURMISES AND PRESUMPTION AND IGNORING RELEVANT MATERIAL ASPECTS. IN THE CASE OF THE APPELLANT, THE ADDITION HAS BEEN MADE ON THE BASIS OF EVIDENCE GAT HERED IN THE CASE OF M/S SHANTI ENTERPRISES, AND THE SELLING RATE OF THE PROPERTY PURCHASED BY THE APPELLANT IN THE MILLENNIUM MARKET FROM M/S SHANTI ENTERPRISES HAS BEEN DETERMINED BY THE ASSESSING OF FICER IN THE ASSESSMENT ORDER PASSED IN THE CASE OF M/S SHANTI E NTERPRISES IN THE A.Y.2007-08. THE ADDITION MADE IN THE CASE OF M/S S HANTI ENTERPRISES IN THE A. Y. 2007-08 HAS BEEN CONFIRMED BY ME VID E APPELLATE ORDER DATED 17.01.2011 IN APPEAL NO.CAS-II/282/09-10. MOR EOVER, THE ADDITION HAS NOT BEEN MADE ON THE BASIS OF JANTRI R ATE U/S 50C OF THE ACT, BUT BY WAY OF ENQUIRY AND INVESTIGATION CARR IED OUT IN THE CASE OF M/S SHANTI ENTERPRISES, THE RESULTS OF WHICH SHO WED THAT THE SALE OF 10 I TA NO.894/AHD/2011 8 SHOPS PURCHASED BY THE APPELLANT FROM M/S SHANTI ENTERPRISES WAS MADE @ RS.3242/- PER SQ. FT, AS AGAINST @ RS.2160/- PER SQ. FT. SHOWN BY THE APPELLANT. I, THEREFORE, CONFIRM THE ADDITIO N MADE BY THE ASSESSING OFFICER AND DISMISS THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT. 5 THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST T HE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LEARN ED AR ON BEHALF OF THE ASSESSEE, SHRI HARDIK VORA APPEARED A ND REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED CIT(A). HE ALSO SUBMITTED THAT THE ISSUE IS COVERED BY THE DECISION OF THE ITAT AHMEDABAD BENCH-A, IN THE SENSE, THAT IN THE CASE O F SHANTI ENTERPRIE IN ITA NOS.389 & 390/AHD/2011 [AYS 2004-0 5 & 2007-08, ORDER DATED 27-05-2011] AS WELL AS THE DEC ISION OF THE ITAT AHMEDABAD BENCH-D IN THE CASE OF M/S SHANTI ENTERPRISE IN ITA NO.469/AHD/2009 FOR AY 2005-06, O RDER DATED 22-02-2011 THE TRIBUNAL HAD HELD THAT NO ON- MONEY WAS TRANSACTED. THE ARGUMENT THEREFORE IS THAT ONCE IN THE HANDS OF THE SELLER IT HAD ALREADY BEEN HELD THAT N O EXTRA MONEY WAS TRANSACTED THEN HOW IT WAS POSSIBLE TO AS SESS AN AMOUNT OF PAYMENT IN THE HANDS OF A BUYER I.E. THE ASSESSEE. 6 ON THE OTHER HAND, ON BEHALF OF THE REVENUE, THE LEARNED DR SHRI R K VOHRA APPEARED AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7 WE HAVE HEARD BOTH THE SIDES AND PERUSED THE ORDE RS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE AF ORESAID ORDERS OF THE ITAT IN THE CASE OF M/S SHANTI ENTERP RISE FOR AYS 2005-06 AND 2004-05 RESPECTIVELY DATED 22-02-2011 A ND 27-05- 2011. IT HAS BEEN STRONGLY ARGUED THAT M/S SHANTI E NTERPRISE BEING THE SELLER, THE IMPUGNED RATE OF SALE OF SHOP S WAS UNDER DISPUTE AND THAT WAS RESOLVED IN THE FOLLOWING MANN ER:- [A] ITA NO.469/AHD/2009 FOR AY 2005-06, ORDER DATED 22- 02-2011:- 9 BEFORE US THE LD. SR-COUNSEL FOR ASSESSEE, SHRI J.P. SHAH, STATED THAT THE ASSESSING OFFICER HAS BROUGHT OUT THREE IN STANCES FOR TREATING THE SALE OF SHOPS ON SUPPRESSED RECEIPTS OR ON-MONE Y RECEIPTS. HE STATED THAT THE FIRST INSTANCE BEING SHOPS SOLD TO SAKA FOR A SUM OF 11 I TA NO.894/AHD/2011 RS.4.50 LAKHS FOR SHOP NO.4225 AND 4226 AS AGAINST THE MARKET RATE OF RS.6,32,0607-. IT WAS STATED THAT FOR THE TEXTILE M ARKET TO BECOME SUCCESSFUL, IT IS ESSENTIAL THAT THE ASSESSEE ESTAB LISHES PRESENCE OF AN IMPORTANT ASSOCIATION WITHIN THE MARKET PREMISES SO THAT PROSPECTIVE CUSTOMERS WOULD GET CONFIDENCE FOR ESTABLISHING SHO PS IN THE MARKET AND CONSIDERING THIS FACT, A SPECIAL DISCOUNT WAS O FFERED TO SAKA. ACCORDING TO HIM, THERE IS NO OTHER EVIDENCE TO SUB STANTIATE THE SUPPRESSION OF SALE PRICE. HE STATED THAT ONE MORE REFERENCE WAS MADE BY THE ASSESSING OFFICER REGARDING ONE SMALL S HOP OF 96 SQ. FT. SOLD TO ONE SMITI NAGJIBHAI VARHANI (MINOR) FOR RS. 60,0007- THE PRICE IN TERMS OF SQ. FT. WORKED OUT AT RS.625/-, AS AGAI NST THE COST INCURRED BY THE ASSESSEE PER SQ. FT. AT RS.3825 PER SQ. FT. LD. COUNSEL FOR THE ASSESSEE STATED THAT THIS PARTICULAR SHOP HAD TO BE SOLD AT THROW AWAY PRICE DUE TO ITS LOCATION, SMALL AREA AND PARTICULA RLY THIS WAS UNDER THE STAIR CASE AND ONE IS REQUIRED TO STOOP DOWN TO ENT ER THE SHOP ON ACCOUNT OF TRIANGLE CREATED WITHIN THE SHOP DUE TO STAIR CASE. LD. COUNSEL FOR THE ASSESSEE MAINLY ARGUED THAT THE REV ENUE'S MAIN PLEA WITH RESPECT TO DISCREPANCY IN RESPECT OF PROPERTY SOLD TO SPCOBL FIRST OF ALL, HE STATED THAT THERE WAS AN ERROR IN FURNISHING INFORMATION BY THE ASSESSEE, WHEREIN IT IS MENTIONED THAT THE A REA SOLD WAS 5402 SQ. FT., WHEREAS THE SAME WAS ONLY 4164 SQ. FT. HE STATED THAT THE SELLING RATE SPCOBL WAS 3242 PER SQ. FT. FOR THE SE COND FLOOR AS AGAINST THE ASSESSEE HAS SOLD OTHER SHOPS ON SECOND FLOOR AT RS.1859 PER SQ. FT. AND ACCORDING TO AO THERE IS SUPPRESSIO N OF SALE PRICE AT RS.1383 PER SQ. FT. AND AS PER CHART THE COMPLETE D ETAILS AS REPRODUCED BELOW IN PARA- OF THIS ORDER, WHICH IS REPRODUCED F ROM THE ASSESSMENT ORDER. HE STATED THAT THIS IS ACTUAL A SOLITARY TRA NSACTION BY VIRTUE OF WHICH THE ASSESSING OFFICER HAS ADOPTED A BENCH-MAR K RATE OF 3242 TO 4654 PER SQ. FT. FOR ALL THE FLOOR AS MENTIONED IN THE ABOVE CHART. LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE CASE LAW O F HON'BLE APEX COURT IN THE CASE OF CIT V. CALCUTTA DISCOUNT CO. LTD. (1 973) 91 ITR 8 (SC) AND STATED THAT THERE IS NO MATERIAL BEFORE THE AO BY VIRTUE OF WHICH HE CAN TREAT THE SUPPRESSION OF SALE PRICE OF SHOPS JUST ON THE BASIS OF ONE SOLITARY INSTANCE OF SPCOBL. ..(SOME PORTIONS ESCAPED) . WE FIND FROM THE ABOVE THAT THE ASSESSING OFFICER AS WELL AS CIT(A) HAS RELIED ON ONE INSTANCE, I.E., THE RATE OF SELL AS PER SALE DEED OF SPCOBL. THE ASSESSING OFFICER HAS NOT REFERRED THE INDIVIDU AL SHOPS SOLD BY THE ASSESSEE TO THE DVO FOR ASCERTAINING THE FAIR MARKE T VALUE OF EACH SHOP SOLD. EVEN THE AO HAS NOT EXAMINED THE PARTIES TO WHOM TH E ASSESSEE-FIRM HAS 12 I TA NO.894/AHD/2011 SOLD THE SHOPS AND EVEN THE SALE DEEDS WERE NOT CAL LED FOR AND EXAMINED. THE AO HAS NEVER TRIED TO ENQUIRE INTO THE CIRCLE R ATES FIXED BY THE SUB- REGISTRAR OF THE AREA FOR THE PURPOSES OF STAMP DUT Y VALUATION. IN VIEW OF THESE FACTS, NOW THE QUESTION ARISES IS AS UNDER:- 'WHETHER, IN THE GIVEN FACTS AND CIRCUMSTANCES THE ADDITION MADE BY TAKING, THE SUPPRESSION OF SALE RECEIPTS BY THE ASSESSING OFFICER ON THE BASIS OF SOLITARY TRANSACT IONS ENTERED BY THE ASSESSEE-FIRM WITH THE SURAT PEOPLES' CO-OPE RATIVE BANK LTD. CAN BE SUSTAINED OR NOT?' THE ABOVE FACTS NARRATED ARE UNDISPUTED. ALL THE SH OPS SOLD BY THE ASSESSEE-FIRM ARE REGISTERED WITH THE SUB-REGISTRAR AND SALE DEEDS ARE MADE FOR THESE TRANSACTIONS. THE ASSESSING OFFICER HAS SIMPLY REJECTED THE SALE DEEDS AND ADOPTED A HIGHER SALE CONSIDERAT ION FOR THE PURPOSES OF COMPUTING INCOME OF THE ASSESSEE-FIRM FROM THE B USINESS OF CONSTRUCTION AND SALE OF COMMERCIAL COMPLEX. WE FUR THER FIND THAT THE ALLEGATION OF THE ASSESSING OFFICER THAT THE SHOPS ARE SOLD BELOW THE CONSTRUCTION COST IN TERMS OF SQ. FT., THIS ALLEGAT ION IS WITHOUT ANY BASIS AND THE LD. COUNSEL FOR THE ASSESSEE BEFORE US HAS DEMONSTRATED THAT THE COST OF CONSTRUCTION IS LESSER THAN THE SALE CO NSIDERATION OF EACH SHOP IN TERMS OF SQ. FT. THESE PURCHASERS OF SHOPS HAVE DECLARED FULL VALUE OF CONSIDERATION IN THE SALE DEEDS REGISTERED AND THERE IS NO UNDER STATEMENT OF THE CONSIDERATION IN RESPECT OF SALE OF THESE SHOPS. WE FIND THAT IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE-FIRM HAS NOT ENTERED INTO HONEST TRANSACTIONS AND TRANSA CTIONS ARE FOR OTHER CONCEIVABLE REASONS I.E. FOR ATTEMPTING TO AVOID OR REDUCE TAX LIABILITY AND THEY ARE NOT RECORDING ACTUAL CONSIDERATION. WE FEEL THAT IT IS QUITE POSSIBLE THAT THOUGH THE FAIR MARKET VALUE OF A PAR TICULAR SHOP IS HIGH, THE ASSESSEE MAY TRANSFER IT TO A PERSON DIRECTLY O R INDIRECTLY CONNECTED WITH HIM FOR A NOMINAL SUM FOR MORE THAN ONE REASON AND SUCH REASONS CANNOT PER-TAKE OF THE OBJECT OF AVOIDING O R REDUCING THE TAX LIABILITY OF THE ASSESSEE- FIRM. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF SIVAKAMI CO. PVT. LTD. V. CIT (1973) 88 ITR 311 (MAD) HAS HELD THAT THE BURDEN OF PROVING THAT CERTAIN SALES WERE EFFECTED WITH THE OBJECT OF AVOIDANCE OR REDUCTION OF TAX ON CAPI TAL GAINS IS ON REVENUE AND IT IS NOT ENOUGH IN THE EXPLANATION OFF ERED BY THE ASSESSEE WAS NOT ACCEPTABLE AND THERE ARE STRONG SU SPICION AS TO THE REAL MOTIVE, WHICH PROMPTED THE ASSESSEE TO SELL TH E ASSETS. THERE MUST BE SOMETHING POSITIVE TO SUGGEST THAT THE SALES WER E EFFECTED WITH THE OBJECT OF AVOIDANCE OR REDUCTION OF TAX LIABILITY F OR CAPITAL GAINS AND THIS WAS AFFIRMED BY HON'BLE APEX COURT IN (1986) 1 59 ITR 71 (SC). 13 I TA NO.894/AHD/2011 WE ARE OF THE VIEW THAT UNLESS THERE IS EVIDENCE TH AT MORE THAN WHAT IS STATED IN THE DOCUMENTS OR WAS RECEIVED, NO HIGHER PRICE CAN BE TAKEN TO BE THE BASIS FOR COMPUTATION OF TAX EITHER IN BU SINESS TRANSACTION OR CAPITAL GAIN TRANSACTIONS. THE ENTIRE ONUS IS ON RE VENUE AND THE INFERENCES MIGHT BE DRAWN IN CERTAIN CASES BUT COME TO A CONCLUSION THAT A PARTICULAR HIGHER AMOUNT WAS, IN FACT RECEIV ED MUST BE BASED ON SUCH MATERIAL FROM WHICH SUCH AN IRRESISTIBLE CONCL USION FOLLOWS. IN OUR CONSIDERED VIEW, IN THE PRESENT CASE, THE REVEN UE COULD NOT LAY PRIMARY FACTS, FROM WHICH INFERENCE CAN BE DRAWN TH AT THE FULL CONSIDERATIONS RECORDED BY ASSESSEE-FIRM IN ITS ACC OUNT AND THE SALE DEEDS IS NOT THE FULL CONSIDERATION OR THE ACTUAL P RICE RECEIVED BY THE ASSESSEE FOR THE TRANSFER OF SHOPS WERE THE UNDER-S TATED PRICE. [B] ITA NOS.389 & 390/AHD/2011 [AYS 2004-05 & 2007-08, ORDER DATED 27-05-2011:- RELEVANT PORTION IS REPRODUCED:- 3 FOR BOTH THE YEAR FACTS ARE IDENTICAL AS PER TH E CORRESPONDING ASSESSMENT ORDERS PASSED U/S 143(3) IDENTICALLY DAT ED 31-12-2009. THE ASSESSEE FIRM IS IN THE CONSTRUCTION BUSINESS. IT H AD CONSTRUCTED A TEXTILE MARKET KNOWN AS MILLENNIUM TEXTILE MARKET S ITUATED AT PLOT NO. 147 RING ROAD, SURAT. AS PER ASSESSING OFFICER THERE WAS SUPPRESSION IN THE SELLING PRICE OF THE SHOPS. FOR ASSESSMENT YEAR 2004-05 SUPPRESSION AS COMPUTED BY THE A.O. WAS AT RS.96,89,558/- AD FOR ASSESSMENT YEAR 2007-08 THE SUPPRESSION WAS OF RS.9,90,75,624/-. FOR BOTH THE YEARS THE A.O. HAS P REPARED A CHART TO DEMONSTRATE THAT THE SELLING RATE AS ADOPTED BY THE ASSESSEE WAS INCORRECT AND THE SAME WAS SUBSTITUTED BY THE A.O. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY AND LD . CIT (A) HAS PRIMARILY CONFIRMED THE ACTION OF THE A.O. BY ASSIG NING THE REASON THAT FOR A.Y. 2005-06 HIS PREDECESSOR HAS DECIDED THE AP PEAL CONFIRMING THE ADDITION VIDE CIT(A) ORDER DATED 12-11-2008. TH EREFORE, FOLLOWING THE SAID ORDER FOR BOTH THE YEARS THE ASS ESSEE'S APPEAL WAS DISMISSED. 7.1 ON CAREFUL PERUSAL OF THESE TWO ORDERS OF THE TRIBUNAL, IT WAS AN UNDISPUTED FACT THAT THE PROPERTY IN QUESTION WAS THE SAME PROPERTY I.E. MILLENNIUM TEXTILE MARKET AND THE QUESTION DECIDED THEREIN WAS ALSO IN RESPECT OF THE SAME PRI CE OF THE SHOPS. IN THOSE YEARS THE SALE PRICE AS RECORDED BY M/S SHANTI ENTERPRISE WAS UPHELD BY THE TRIBUNAL. COMPARING TH E FACTS OF M/S SHANTI ENTERPRISE WITH THE FACTS OF THE ASSESSE ES CASE, IT IS 14 I TA NO.894/AHD/2011 FOUND TO BE IDENTICAL BECAUSE THE ASSESSEE HAS PURC HASED FEW SHOPS FROM M/S SHANTI ENTERPRISE SITUATED AT MILLEN NIUM TEXTILE MARKET. ONCE THE SALE PRICE OF THE SHOPS HAVE ALREADY BEEN ACCEPTED IN THE CASE OF THE SELLER AND IT WAS HELD THAT NO EXTRA MONEY WAS CHARGED, THEREFORE, THE NATURAL CONSEQUEN CE IS THAT NO EXTRA MONEY WAS PAID TOWARDS PURCHASE BY THIS AP PELLANT AS WELL. RESPECTFULLY FOLLOWING THE VERDICT OF THE TRIBUNAL WE HEREBY HOLD THAT THE RATE AS ADOPTED BY THE AO IN T HE CASE OF THE APPELLANT IS, THEREFORE, TO BE REJECTED AND THE ADD ITION IS TO BE DELETED; BECAUSE IN THE ABSENCE OF ANY CONTRARY MAT ERIAL PLACED BEFORE US FROM THE SIDE OF THE REVENUE, THERE WAS N O INCIDENCE OF UNEXPLAINED INVESTMENT IN SHOPS. THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 8 IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT TODAY ON 30-09-2011 SD/- SD/- (G D AGARWAL) VICE-PRESIDENT (MUKUL KUMAR SHRAWAT) JUDICIAL MEMBER DATE : 30-09-2011 COPY OF THE ORDER FORWARDED TO: 1. M/S UJJWAL FABRICS, C-4099/4100, MILLENNIUM MARK ET, RING ROAD, SURAT 2. THE INCOME-TAX OFFICER, WARD-2(2), SURAT 3. CIT CONCERNED 4. CIT(A)-II, SURAT 5. DR, ITAT, AHMEDABAD BENCH-A, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD 15 I TA NO.894/AHD/2011