Dy. CIT, Circle-1, Jalgaon V. M/s. Bafna Builders and Land Developers, Jalgaon

ITA 902/PUN/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7232 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-09-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Business expenditure; Opportunity of being heard; Principle of natural justice; Earning of tax free income; Commercial expediency
• Section: 40A(3); 50C; 14A; 37; 28

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS.706/PUN/2013 & 162/PUN/2015 / ASSESSMENT YEARS : 2009-10 & 2011-12 M/S. BAFNA BUILDERS AND LAND DEVELOPERS, NAYANTARA, SUBHAS CHOWK, JALGAON, PIN- 425 001, PAN : AADFB 4627P . /APPELLANT / V/S. THE JOINT COMMISSIONER OF INCOME TAX, RANGE -1, JALGAON. . / RESPONDENT . / ITA NO.902/PUN/2013 / ASSESSMENT YEAR : 2009-10 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, JALGAON. . /APPELLANT / V/S. M/S. BAFNA BUILDERS AND LAND DEVELOPERS, NAYANTARA, SUBHAS CHOWK, JALGAON, PIN- 425 001, PAN : AADFB 4627P . / RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI RAJEEV KUMAR, CIT DATE OF HEARING : 18.09.2017 19.09.2017 / DATE OF PRONOUNCEMENT: 30.10.2017 / ORDER PER D. KARUNAKARA RAO, AM : THERE ARE THREE APPEALS UNDER CONSIDERATION INVOLV ING THE A.YS. 2009-10 AND 2011-12. ITA NO. 706/PUN/2013 FILED BY THE ASS ESSEE AND ITA NO. 902/PUN/2013 FILED BY THE REVENUE ARE CROSS APPEALS FOR THE A.Y. 2009-10. ITA NO. 162/PUN/2013 PERTAINS TO THE A.Y. 2011-12 AND T HE SAME IS FILED BY THE ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 2 ASSESSEE. THERE IS NO CROSS-APPEAL BY THE REVENUE FOR THIS YEAR. CONSIDERING THE FACTS, ISSUES RAISED IN THESE APPEALS, AND LD. COUNSELS ARE ONE AND SAME, WE PROCEED TO ADJUDICATE THE ISSUES RAISED IN THESE AP PEALS BY THIS COMPOSITE ORDER. TO START UP, WE SHALL TAKE CROSS APPEALS FIRST FOR A.Y. 2009-10. ITA NO. 706/PUN/2013 ( BY ASSESSEE) ( A.Y. 2009-10) ITA NO. 902/PUN/2013 ( BY REVENUE ) ( A.Y. 2009-10) 2. THESE CROSS APPEALS ARE FILED AGAINST THE ORDER OF CIT (APPEALS)-II, NASHIK DATED 26-02-2013. THE RELEVANT FACTS OF THE CASE I NCLUDE THAT THE ASSESSEE IS A BUILDER AND LAND DEVELOPER AND ENGAGED IN THE BUSIN ESS OF CONSTRUCTION OF RESIDENTIAL/COMMERCIAL PROJECTS AND TRADING IN LAND S/PLOTS ETC. IN THE A.Y. 2009- 10, THE ASSESSEE FILED RETURN OF INCOME DECLARING T OTAL INCOME OF RS. 2,15,76,850/-. AT THE END OF THE ASSESSMENT PRO CEEDING, THE AO FINALIZED ASSESSEES ASSESSED INCOME FOR THE YEAR AT RS.13,75 ,96,300/-. AO MADE VARIOUS ADDITIONS. HOWEVER, THE CIT(A) GRANTED PARTLY RELIE F TO THE ASSESSEE IN THE FIRST APPELLATE PROCEEDINGS. 3. AGGRIEVED WITH THE ADDITIONS DELETED BY THE CIT( A), THE ASSESSEE FILED APPEAL VIDE ITA NO.706/PUN/2013. FURTHER, AGGRIEVE D BY THE RELIEF GRANTED BY THE CIT(A), THE REVENUE FILED CROSS APPEAL VIDE ITA NO. 902/PUN/2013. NOW, WE SHALL TAKE UP THE ASSESSEES APPEAL FIRST. ITA NO. 706/PUN/2013 ( BY ASSESSEE- A.Y. 2009-10) 4. GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL AR E AS UNDER : 1. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANCE S OF THE CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING AD-HOC ADDIT ION OF RS. 30,00,000/- MADE ON ACCOUNTS DIFFERENCE IN SALE RATE, EVEN THOUGH, A LL THE SALES PROCEEDS ARE DULY SUPPORTED BY DOCUMENTARY EVIDENCE. THEREFORE, ADDIT ION MAY PLEASE BE DELETED. 2. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANCE S OF THE CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE SAID AD- HOC ADDITION OF RS. 30,00,000/-, MERELY BECAUSE OF SOME FLATS WERE SOLD OUT BELOW AVERAGE SELLING PRICE AND BELOW COST PRICE, EVEN THOUGH APPELLANT H AS SHOWN OVERALL A SUBSTANTIAL PROFIT AT RS.2,15,76,850/-, DURING THE YEAR UNDER CONSIDERATION AND ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 3 INCOME TAX LAW DOES NOT MANDATE HOW TAX PAYERS SHOU LD CONDUCT THEIR BUSINESS AND MAXIMIZE PROFITS. THEREFORE, ADDITION MAY PLEAS E BE DELETED. 3. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE DISALLOW ANCE OF INTEREST OF RS. 44,50,212/- UNDER SECTION 36(1) (III) OF THE I.T AC T AND CONFIRMING DISALLOWANCE OF RS. 25,114/- UNDER SECTION 14A RWR 8D, WITHOUT A PPRECIATING CORRECT FACT IN THIS REGARDS AND AS EXPENSES OF INTEREST IS INCURRE D FOR PURCHASING THE RAW MATERIALS FOR BUSINESS AND HENCE THE ADDITIONS ARE NOT JUSTIFIED. THEREFORE, ADDITION MAY PLEASE BE DELETED. 4. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEN D, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF THE APPEAL , IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 5. GROUNDS NO. 1 AND 2 RELATES TO THE AD-HOC ADDITI ON OF RS. 30,00,000/-. RELEVANT FACTS OF THESE ADDITIONS INCLUDE THAT THE ASSESSEE BEING BUILDER SOLD THE CONSTRUCTED FLATS TO THE CUSTOMERS AT THE DIFFERENT RATES PER SQ. FT. THE AO DISCUSSED THIS ISSUE IN PARA NO. 4 OF HIS ORDER. TH E COST OF CONSTRUCTION PER SQ.FT. IS WORKED OUT AT RS. 1380/- PER SQ.FT. WHEREAS THE MARKET RATE OF THE SAME IS AT RS. 2090/- IN CASE OF COMMERCIAL PROPERTY. THEREFOR E, 30% IS THE MARGIN. MARGINS ARE LESS IN CASE OF RESIDENTIAL PROPERTY. HOWEVER, ASSESSEE DECLARED THE PROFIT MARGIN AROUND 18%. CONSIDERING THE DIFFEREN CE IN SALE PROCESS OF THE FLATS, THE AO CALLED FOR EXPLANATION OF THE ASSESSE E IN THIS REGARD. ASSESSEE PROVIDED FLAT WISE DETAILS OF MARKET RATE OF FLATS. DETAILS ARE DISCUSSED IN PARA NO. 4 OF HIS ORDER. TO SPECIFY, THE AO MADE OUT A C ASE OF FLAT NO.A1/1, WHERE THE FLAT WAS SOLD AS LOW AS RS. 845 PER SQ. FT. IN RESP ONSE TO THE AOS SHOW CAUSE LETTER, ASSESSEE FILED LETTER DATED 28-12-2011 AND OFFERED ADDITIONAL INCOME OF RS.6,00,000/- FOR TAXATION ON THIS ACCOUNT OF DIFFE RENTIAL MARKET RATES OF SALE OF FLATS. THE SAID OFFER IS MADE FOR BRINGING THE LIT IGATION TO THE END AND ALSO TO BUY PEACE OF MIND. HOWEVER, THE AO FOUND THE OFFER IS FAR BELOW THE VARIATION IN SALE PRICE OF THE FLATS, I.E. AROUND RS. 30,00,000/ -. EVENTUALLY, AO REJECTED THE SAID ASSESSEES OFFER OF RS. 6,00,000/- AND PROCEED ED TO MAKE A ROUND SUM ADDITION OF RS. 30,00,000/-. THE RELEVANT PARAS FRO M THE A.OS ORDER ARE EXTRACTED AS UNDER: ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 4 ON THIS POINT VIDE LETTER DATED 20/12/2011, THE ASS ESSEE VIDE PARA 1 HAS STATED AS UNDER: AS REGARDS DIFFERENCE BETWEEN AGREEMENT RATE AND AVERAGE RATE OF FLAT-TOTAL AMOUNTING TO RS.18,87,880/-, IT IS SUBMITTED THAT : ALTHOUGH THE DIFFERENCE CAN BE VERY WELL ANSWERED ( COMMERCIAL EXPEDIENCY), BUT TO AVOID LITIGATION AND TO PURCHASE/BUY PEACE OF MIND, AN AMOUNT OF RS.6,00,00 0/- IS AGREED FOR ADDITION AS DISCUSSED AND DIRECTED BY YOUR HONOR, SUBJECT TO NON INITIATION OF ANY PENALTY PROCEEDINGS. 4.1. THUS, THE ASSESSEES WRITTEN ARGUMENT HAS NO F ORCE. THE ASSESSEE VIDE LETTER DATED NIL FILED ON 11/11/11 HAS WORKED OUT THE DIFFERENCE OF 3 FLATS ONLY WHERE THE AVERAGE SALE RATE WAS TAKEN ON LY AT 1350/- AS AGAINST THE VARIOUS SALE RATE QUOTED ABOVE. THUS, K EEPING ALL THE FACTS IN MIND, I MAKE AN ADHOC ADDITION OF RS. 30,00,000/- O N THIS ACCOUNT FOR RESIDENTIAL FLATS ONLY. THE ABOVE LETTER OF ASSESSEE CONTAINS THE DETAILS O F WORKING OF THE ASSESSEE, WHO ARRIVED AT HIS FIGURE OF RS.18.88 LAK HS OF VARIATION IN SALE PRICE. BY OFFERING RS.6 LAKHS, THE ASSESSEE WORKED OUT APP ROXIMATELY 30% OF THE SAID VARIATION AS AN ADDITIONAL INCOME (RS.18.88 LAKHS X 30/100 = RS.6.30 LAKHS). ASSESSEE CONSIDERED THE AVERAGE SALE PRICE AS THE S TANDARD ONE FOR WORKING OUT THE VARIATION. 6. ON THIS ISSUE, DURING THE FIRST APPELLATE PROCE EDINGS, ASSESSEE MADE WRITTEN SUBMISSIONS, CONTENTS OF WHICH ARE EXTRACTE D IN PARA NO. 5. OF THE CIT(A)S ORDER. IN THE WRITTEN SUBMISSIONS, APART FROM RELYING ON HIS SUBMISSIONS BEFORE THE AO, IT WAS SUBMITTED THAT GE NERALLY THE RATES OF FLATS VARY FROM ONE CUSTOMER TO OTHER AND ARE NEVER CONSTANT A ND FURTHER, THE SAME VARY FROM FLOOR TO FLOOR, BULK PURCHASE CUSTOMERS, HIGH RISE FLOOR, PAYMENT SCHEDULES ETC. DISCOUNTS ARE ALLOWED TO CUSTOMERS ON VARIOUS GROUNDS. THE ASSESSEE ALSO FILED EXPLANATION WITH REFERENCE TO THE SPECIFIC IS SUES RAISED BY THE AO IN HIS LETTER. FURTHER, ASSESSEE SUBMITTED THAT THE ADDITI ON OF RS. 30,00,000/-, ON THE TOTAL VALUE OF SALES OF FLATS OF RS. 3.43 CRORES, W ORKS OUT ALMOST 9% OF THE TOTAL SALE CONSIDERATION. WITH THIS ADDITION, THE NET PR OFIT SHOOTS UP SUBSTANTIALLY. ACCORDING TO ASSESSEE, IN THE ABSENCE OF EVIDENCE, MAKING SUCH AD-HOC ADDITION IS UNSUSTAINABLE IN LAW AND RELIED ON JUDICIAL PREC EDENTS ON THE ISSUE. HOWEVER, ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 5 IN THE REMAND REPORT, AO REITERATED HIS CONCLUSION ORIGINALLY MENTIONED IN THE ASSESSMENT ORDER. THE CIT(A) DISCUSSED THIS ISSUE IN PARA NO. 6.1 OF HIS ORDER AND CONFIRMED THE SAME AS PER DISCUSSION GIVEN IN P ARA NO. 6.1.1 OF HIS ORDER. HE DISCUSSED THE FACT OF SELLING OF FLATS TO THE PR EVIOUS OWNER (APARNA SHRIRAM KULKARNI) AT THE PRICE WHICH IS LESS THAN THE COST OF CONSTRUCTION OF RS. 1380 PER SQ. FT. HE ALSO DISCUSSED THE DISCLOSURE OF ADDITI ONAL INCOME OF RS. 6,00,000/- AND FINALLY CONFIRMED THE SAID ADDITION OF RS. 30,0 0,000/- REJECTING THE ASSESSEES OFFER. RELEVANT LINES STATED AT PARA 6.1.1 ARE EX TRACTED AS UNDER: A BUSINESSMAN WOULD NORMALLY GIVE DISCOUNT OVER THE SALE PRICE BUT IN THIS CASE I FIND THAT THE DISCOUNT HAS BEEN GIVEN ON THE COST PRICE. IN REAL ESTATE BUSINESS THIS PRACTICE IS UNHEARD OF . IN NORMAL REAL-ESTATE BUSINESS THE DISCOUNT OFFERED ON SALE OF FLATS IS VERY NOMINAL/MODEST AND IT IS O FFERED ON SALE PRICE. APPELLANTS BEHAVIOR STRONGLY CORROBORATES THE PRESUMPTION THAT IT HAS TAKEN PART OF THE SALE CONSIDERATION IN CASH OUTSIDE ITS REGULAR BOOKS OF ACCOUNTS. THE APPELLANTS INVOLVEMENT IN CASH TRANSACTIONS IN REAL ESTATE WAS ALSO SEEN IN THE BOOKS OF ACCOUNTS OF CHHORIYAS OF JALGAON (SEIZED P. 42 OF ANN.B-19 DURING SEARCH OF CHHORIYAS ON 22/08/2008 AND A COPY OF WHICH IS GIVE N IN SMT. TARADEVIS APPEAL ORDER AY.2009-10) IN REGARD TO PLOTS AT SHRIDI. IN V IEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED O PINION THAT AO WAS JUSTIFIED IN MAKING ADDITION OF RS. 30 LAKHS. THE ADDITION IS CONFIRMED. 7. AGGRIEVED WITH THE ABOVE DECISION OF THE CIT(A) WHO CONFIRMED THE ADDITION OF RS. 30,00,000/-, THE ASSESSEE RAISED GR OUND NO. 1 AND 2 IN THIS APPEAL. IT IS THE ARGUMENT OF LD. COUNSEL OF THE AS SESSEE THAT MAKING SUCH AN ADDITION OF RS. 30,00,000/- ON AD-HOC IS UNSUSTAINA BLE WHEN SELL PROCEEDS ARE DULY ACCOUNTED AND THE TRANSACTIONS ARE SUPPORTED B Y DOCUMENTARY EVIDENCE. HE FURTHER ARGUED THAT WHEN THE OVERALL PROFITS OF PRO JECT IS SUBSTANTIALLY HIGH THEN PROFIT & LOSS ACCOUNT SHOULD NOT BE CORRECT IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. FURTHER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS MERELY A CASE OF AD-HOC ADDITION. THEREFORE, THE ADDITION OF RS.30,00,000/- REQUIRES TO BE DELETED. ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 6 8. PER CONTRA, LD. DR FOR THE REVENUE ARGUED VEHEME NTLY AND STATED THAT VARIATION IN THE PER SQ. FT SELL PRICE OF THE FLATS OF THE PROJECT IS EXTREMELY HIGH. THERE IS HUGE GAP BETWEEN COST OF CONSTRUCTION AND COST OF SALE OF THE CONSTRUCTED AREA AND THE SAME IS UNEXPLICABLE. AO T REATED THE EXPLANATION OF THE ASSESSEE AS VERY GENERAL. AO ANALYZED EACH OF THE A SSESSEES EXPLANATION AND REJECTED THE SAME AS GENERAL IN NATURE. GENERAL EX PLANATION INCLUDE (1) GIVING DISCOUNT FOR INITIAL ADVANCED AMOUNT RECEIVED BY TH E ASSESSEE, (2) OFFERED TO DISCOUNT IN RESPECT OF BULK PURCHASES BY CUSTOMERS, (3) SALES TO THE EARLIER LAND OWNERS ETC. AS PER LD. DR, THE UNEXPLAINED VARIATI ON IN SQ.FT RATE RELEVANT TO THE A.Y. 2009-10, WORKS OUT TO MORE THAN RS. 30,00,000/ -. ACCORDING TO HIM, THE AO IS REASONABLE IN RESTRICTING THE ADDITION TO RS. 30 ,00,000/-. HE ALSO SUBMITTED THAT THE ASSESSEE HIMSELF OFFERED THE SUM OF RS. 6, 00,000/- SUO-MOTO AND RELIED ON THE ASSESSEES LETTER DATED 20-12-2011. IN OTHE R WORDS, WITHOUT PREJUDICE TO THE ABOVE, IT IS THE DRS SUBMISSION THAT THE OFFER OF THE ASSESSEE OF RS. 6 LAKHS SHOULD BE CONFIRMED. 9. WE HAVE HEARD BOTH SIDES, PERUSED THE ORDER WITH RESPECT TO THE ADDITION OF RS.30,00,000/- AND PERUSED THE FACTS AS WELL AS PAPER BOOKS FILED BEFORE US. WE ALSO CONSIDERED ASSESSEES WRITTEN SUBMISSION. I T IS UNDISPUTED FACT THAT THE AVERAGE COST OF CONSTRUCTION OF BOTH COMMERCIAL AND RESIDENTIAL FLATS/SHOPS IN THE PROJECT NAYANTARA IS RS. 1380 PER SQ. FT. THE RES IDENTIAL FLATS WERE SOLD AT THE SQ.FT RATES VARYING FROM RS. 845/- TO RS. 1650/- PE R SQ. FT. I.E. AVERAGE SELLING PRICE OF RS. 1425/- PER SQ. FT. THERE IS NO ISSUE O R LITIGATION REGARDING THE SALE OF THE COMMERCIAL OR SHOPPING AREA. THE DISPUTE IS RE STRICTED TO ONLY TO THE RESIDENTIAL FLATS. AS PER THE ASSESSEE, GP RATE FOR RESIDENTIAL FLAT IS WORKED OUT AS LOW VIS-A-VIS THE GP RATE FOR THE SALES OF COMMERCI AL AREA. FURTHER, WE FIND THAT THE AO COMPARED THE SALE PRICES TO THE COST OF CONS TRUCTION OF THE SAID FLATS AS AGAINST THE AOS CALCULATION OF VARIATION TO THE AV ERAGE SALES PRICE. THEREFORE, ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 7 THERE IS VARIATION IN FIGURES OF THE ASSESSEE, I.E. RS.18.88 LAKHS AGAINST RS.30 LAKHS OF THE REVENUE. IT IS ALSO CLEARLY INFERABLE THAT THE OFFER OF RS.6 LAKHS IS NOT WITHOUT ANY SUSTAINABLE REASONS AND ONE SUCH RE ASON INCLUDES THAT THE OFFER OF DISCOUNT TO CERTAIN CUSTOMERS IS NOT EXCLUSIVELY FOR BUSINESS PURPOSES. 10. IT IS UNDISPUTED FACT THAT ASSESSEE SOLD THE RE SIDENTIAL FLATS AT DIFFERENT RATES OF SELL PRICE. THE ASSESSEE, IN RESPONSE TO T HE ABOVE QUERIES, FURNISHED EXPLANATION AND THEY WERE CONSIDERED AND DISMISSED AS GENERAL IN NATURE. THEREFORE, AO REJECTED NOT ONLY EXPLANATION OF THE ASSESSEE BUT ALSO THE OFFER OF ADDITIONAL INCOME OF RS. 6,00,000/- FOR THE A.Y. 20 09-10 GIVEN BY THE ASSESSEE. AS SUCH, THE AO DID NOT HAVE ANY DIRECT EVIDENCE TO DEMONSTRATE THAT THE SALE PRICE IS RECEIVED BY THE ASSESSEE IN CASH IN PART A ND THE SAME IS UNACCOUNTED IN THE BOOKS OF ACCOUNT. THEREFORE, IT IS NOT A CASE O F OUTRIGHT SUPPRESSION OF SALE PROCEEDS. AO ALSO FAILED TO PROVE THE FACT OF GRANT ING DISCOUNT TOWARDS BULK PURCHASES, KNOWN PERSONS AND THE SOCIAL OBLIGATIONS ETC., IS NOT GENUINE. THEREFORE, IN OUR VIEW, IT IS A CASE OF AD-HOC ADDI TION. OF COURSE, ALL IS NOT WELL WITH THE SALE PRICES RECORDED BY THE ASSESSEE IN TH E BOOKS OF ACCOUNTS AND THERE IS NEED FOR SOME ADDITION OF INCOME. IT IS A SETTL ED LEGAL PROPOSITION THAT IN PRINCIPLE, THE BUSINESS DISCOUNTS CONSTITUTE AN ALL OWABLE DEDUCTION. HOWEVER, THE DISCOUNTS GIVEN FOR PERSONAL REASONS ARE NOT AL LOWABLE. FROM THE LIST OF SUCH DISCOUNTS-BENEFICIARY, WE FIND ALL THE DISCOUNTS AR E NOT BUSINESS LINKED DISCOUNTS. FOR EXAMPLE, THE LOWER SALE PRICE GIVEN IN RESPECT OF FLATS SOLD TO THE LANDLORD, GOVT. AUTHORITIES ETC. FURTHER, AT THE SAME TIME, WE FIND THAT IT IS A CASE OF AO DIRECTING THE ASSESSEE TO DO HIS BUSINESS OF SALE F LATS IN A PARTICULAR FASHION IN MATTERS OF GRANTING SUCH DISCOUNT IGNORING PRACTICA L OBLIGATIONS AND SOCIAL REALITIES, IS NOT PROPER. THEREFORE, WE ARE NOT WIT H THE AO ON THIS. THUS, THERE ARE PROBLEMS IN THE ORDER OF THE AO AS WELL AS THE ASSESSEES BOOKS OF ACCOUNT QUA THE SALE PRICE OF FLATS. ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 8 HAVING HELD SO, WE SHALL NOW TAKE UP THE CORRECTNE SS OF THE OFFER OF RS. 6,00,000/- VS. RS. 30,00,000/- ADDED BY THE AO IN HIS ORDER. 11. IN THE ABOVE PARAGRAPH, WE HAVE HELD THAT THE A DDITION OF RS. 30,00,000/- IS A CASE OF AD-HOC ADDITION. IT SHOT UP THE GROSS PROFIT RATE TO THE LEVELS WHICH IS NOT THERE IN THIS LINE OF BUSINESS. WITH THIS ADDI TION, THE GP OF THE ASSESSEE RECORDS EXTREMELY HIGH. AS SUCH, THE ASSESSEE OFFE RED THE ADDITIONAL INCOME OF RS. 6,00,000/- VIDE HIS LETTER DATED 20-12-2011 AND THE SAME IS NEVER RETRACTED TILL DATE. ON MERITS OF THE AOS OBSERVATION, WE F IND THE ASSESSEE GRANTED DISCOUNTS TO VARIOUS CUSTOMERS BOTH FOR BUSINESS AS WELL AS PERSONAL REASONS. IN ABSENCE OF ANY DIRECT EVIDENCE TO DEMONSTRATE THE C ONCEALMENT OF SALE PRICE, REJECTING THE ASSESSEES EXPLANATION WHICH IS GENER AL IN NATURE, REJECTING THE OFFER OF ADDITIONAL INCOME OF RS. 6,00,000/- GIVEN BY THE ASSESSEE VIDE HIS LETTER DATED 28-12-2011, IS NOT APPROPRIATE. FURTHER, WE ARE OF THE VIEW THAT SAID ADDITION OF RS. 30,00,000/- COULD NOT BE SUSTAINED IN FULL AS THE AO FAILED TO CONSIDER THE AVERAGE SALE PRICE OF THE FLATS, WHILE WORKING OUT THE VARIATION IN IT. HENCE, WE APPROVE THE ASSESSEES VARIATION OF RS.18 .88 LAKHS SAY 19 LAKHS ROUNDED OFF). THEREFORE, WE DIRECT THE AO TO RESTRI CT THE ADDITION TO THE SAID ASSESSEES OFFER OF RS.6 LAKHS, WHICH CONSTITUTES A ROUND 31.50% OF THE VARIATION OF RS.18.88 LAKHS FOR THIS YEAR. IN EFFECT, THE BA SIS, WHICH IS CONSIDERED PRUDENT BY THE ASSESSEE, WHILE OFFERING THE SAID ADDITIONAL INCOME OF RS.6,00,000/- IS APPROVED. ACCORDINGLY GROUND NO. 1 AND 2 RAISED BY THE ASSESS EE IN APPEAL ARE PARTLY ALLOWED. 12. GROUND NO. 3 RELATES TO CONFIRMING THE DISALLOW ANCE OF INTEREST OF RS.44,50,212/- U/S.36(1)(III) OF THE I.T ACT AND DI SALLOWANCE OF RS.25,114/- U/S. 14A R.W.R 8D OF THE ACT. ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 9 13. RELEVANT FACTS IN THIS REGARD INCLUDE THAT THE ASSESSEE DEBITED THE INTEREST EXPENDITURE OF RS.45,88,660/-. IT INCLUDES THE AMOU NT OF RS. 44,50,212/- PAID FOR DELAY IN MAKING PAYMENT FOR PURCHASE OF DEVELOPMENT RIGHTS AGAINST THE SITE ANMOLS NAYANTARA EMPIRE. THIS PAYMENT OF INTEREST WAS PAID TO FOUR CO-OWNERS OF THE LAND AND THE SAME WAS PAID DESPITE ABSENCE O F ANY SPECIFIC CLAUSE IN THE AGREEMENT ENABLING THE ASSESSEE TO PAY FOR SAID INT EREST PAYMENT FOR DELAY, IF ANY. DOING ASSESSMENT PROCEEDINGS, AO NOTED THAT AS SESSEE NEVER BORROWED ANY FUNDS AND THEREFORE, HELD THAT THE SAID PAYMENT OF INTEREST IS NOT FOR BUSINESS PURPOSE. THEREFORE, AO DISALLOWED THE ENTIRE AMOUN T U/S. 36(1) (III) OF THE ACT R.W.S 14A OF THE ACT. ANOTHER AMOUNT OF RS. 25,114/ - I.E. 0.5% OF INVESTMENT IS ALSO DISALLOWED U/S. 14A OF THE ACT R.W. RULE 8D OF THE I.T RULES. 14. DURING FIRST APPELLATE PROCEEDINGS, CIT(A) DISC USSED THIS ISSUE IN PARA NO. 6.4 OF HIS ORDER AND CONFIRMED ADDITION IN THE FOLL OWING MANNER. THE CONTENTS OF PARA NO. 6.4 ARE EXTRACTED AS UNDER : IN VIEW OF THE ABOVE, DISALLOWANCE OF INTEREST OF R S. 44,50,202 SHOWN TO HAVE BEEN PAID TO SHRI RAHUL, SHRI SUSHIL K. BAFNA, SHRI RAJKUMAR BAFNA AND SHRI SIDDHARTH BAFNA IS CONFIRMED. FURTHER, A PERUSAL OF AUDIT REPORTS FOR AYS 2008-09 AND 2009-10 REVEALS THAT THE APPELLANT HAD MADE INV ESTMENTS IN MUTUAL FUNDS, AGRICULTURAL LANDS AND RAJ GINNING AND PRESSING (P) LTD. AMOUNTING TO RS.49,22,850/- AND RS.51,22,850/- AS ON 31.03.2008 AND 31.03.2009, RESPECTIVELY. THE APPELLANT HAS SHOWN TO HAVE RECEI VED DIFFIDENT OF RS. 52,263/- DURING THE YEAR. SINCE DISALLOWANCE OF INTEREST OF RS. 44,50,212/- U/S. 36(1) (III) HAS ALREADY BEEN CONFIRMED AS MENTIONED ABOVE, DISA LLOWANCE OF RS. 25,114/- U/R 8D MADE BY THE AO IS ALSO CONFIRMED . HENCE, AD DITION OF RS.46,13,774/- MADE BY THE AO U/S. 36(1) (III) AND RULE 8D IS CONF IRMED. 15. AGGRIEVED WITH THE ABOVE, LD. COUNSEL FOR THE ASSESSEE ARGUED STATING THAT PROVISIONS OF SECTION 36(1) (III) OF THE ACT A RE WRONGLY INVOKED BY THE AO IN MAKING SUCH DISALLOWANCE. SUB-SECTION 37 OF THE ACT COULD HAVE BEEN INVOKED INSTEAD. ACCORDINGLY, LD. AR SUBMITTED THAT THIS I SSUE SHOULD BE DECIDED IN FAVOUR OF THE ASSESSEE BY DELETING THE ADDITION. ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 10 16. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE CIT(A) AND THE AO. IN HIS OPINION, IT IS A FIT CASE FOR CONFIRMING ADD ITION. 17. WE HAVE HEARD BOTH SIDES AND PERUSED THE ORDERS AND ARGUMENTS MADE BEFORE US. ON FACTS, WE FIND THE PROVISIONS OF SECT ION 36(1)(III) OF THE ACT AND ITS PROVISO AND EXPLANATION ARE INAPPLICABLE TO THE FAC TS OF THIS CASE. SIMILARLY, AO HAS NOT PROPERLY MADE OUT IF THE PROVISIONS OF SECT ION 14A R.W.R 8D (2) OF THE I.T RULE APPLY TO FACTS DISCUSSED IN HIS ORDER. FURTHER , THE APPLICABILITY OF THE PROVISIONS OF SECTION 37 OF THE ACT IS COMPLETELY G IVEN A MISS. FURTHER, WE FIND THE CLAIM OF PAYMENT OF INTEREST TO THE CO-OWNERS O F THE LAND IS A MATTER TO BE DECIDED AFTER COMPREHENSIVELY DISCUSSING THE RELEVA NT FACTS NEEDED FOR APPLYING PROVISIONS OF SECTION 37 OF THE ACT OR AS PER PROVI SIONS OF SECTION 36(1) (III) OF THE ACT OR 14A OF THE ACT, AS THE CASE MAY BE. THERE IS NO CLARITY IN AOS ORDER AS TO WHY THE SAID PROVISIONS WERE INVOKED. THE INTEREST CLAIM MENTIONED IN SECTION 36 OF THE ACT RELATES TO THE CLAIM OF INTEREST LINK ED TO THE CAPITAL BORROWED BY THE ASSESSEE. IN THIS CASE THERE IS NO CAPITAL BORROWE D BY THE ASSESSEE. MORE FACTS ARE NEEDED FOR ADJUDICATION OF THIS ISSUE. THEREFO RE, WE DISMISS THE LD. ARS REQUEST FOR NOT REMANDING TO THE FILE OF AO. THERE FORE, IN THE INTEREST OF PRINCIPLE OF NATURAL JUSTICE, THE MATTER IS REMANDE D TO THE FILE OF AO FOR FRESH EXAMINATION. AO SHALL GIVE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. AS SUCH, WE HAVE NO EVIDENCE LINKING THE INTEREST C LAIM TO THE BUSINESS PURPOSES OR PERSONAL PAYMENTS OR OTHERWISE. AO SHALL EXAMIN E ALL PARAMETERS WHILE DECIDING THE ISSUE BY PASSING A SPEAKING ORDER ON E ACH OF THE OBJECTION RAISED BY THE ASSESSEE. ACCORDINGLY, GROUND NO. 3 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 18. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 11 ITA NO. 902/PUN/2013 ( BY REVENUE-A.Y. 2009-10 ) 19. IN THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A)-II, NASHIK ERRED IN DELETING THE ADDITION MADE BY AO OUT OF SA LE OF SHOP MADE BELOW MARKET PRICE TO THE PARTNER BY RS. 2,44,62,169/-. T HE ADDITION IS MADE BY AO AFTER TAKING INTO CONSIDERATION THE FACTUAL POSI TION. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A)-II, NASHIK ERRED IN NOT ACCEPTING THE SUPPRESSION OF SALE PROCEEDS W ORKED OUT BY THE AO. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A)-II, NASHIK ERRED IN DELETING UNEXPLAINED INVESTMENT IN PLOT U/S.69B RS.8,37,72,550/-, WHEN THE ADDITION MADE BY AO WAS THE BASIS OF STAMP DUTY VALUATION IN VIEW OF PROVISIONS OF SECTION 50C OF THE I.T ACT, 1 961. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A)-II, NASHIK ERRED IN NOT ACCEPTING THE UNEXPLAINED INVESTMENT AS WORK ED OUT BY THE AO. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A)-II, NASHIK ERRED IN GRANTING THE RELIEF OF RS.1,00,000/- AS AGAINST ADDITION MADE OF RS.1,46,475/- ON ACCOUNT OF UNSUPPORTED EXPENSES, W HEN THE ADDITIONS WERE MADE BY AO AFTER TAKING INTO CONSIDERATION THE FACTUAL POSITION. 6. ON THE FACTS AND CIRCUMSTANCES THE ORDER OF CIT( A) BE CANCELLED AND THAT OF THE A.O BE RESTORED. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, THE GROUND OF APPEAL, IT FELT NECESSARY. 20. GROUND NO. 1 AND 2 RELATES TO ADDITION ON DISCO UNT SALE OF SHOPS BELOW MARKET PRICE TO THE PARTNER OF THE ASSESSEE (SMT. T ARADEVI RATANLAL BAFNA). RELEVANT FACTS OF THIS ISSUE INCLUDE THAT THE ASSES SEE CONSTRUCTED COMMERCIAL PROPERTY WITH A BUILT UP AREA OF 33,292 SQ.FT. AND CARPET AREA 24661 SQ.FT. THE ASSESSEE SOLD PART OF THE CONSTRUCTED AREA FOR SUM OF RS.2,55,75,000/- TO A PARTNER OF THE FIRM. THE AO FOUND THE SALE PRICE O F THE TRANSACTION IS UNDER PRICED VIS-A-VIS THE COST OF CONSTRUCTION. AO CALLE D FOR THE EXPLANATION FROM THE ASSESSEE AND ALSO CALLED FOR EXPLANATION AS TO WHY PROVISION OF SECTION 28(IV) OF THE ACT SHOULD NOT BE INVOKED IN THIS RESPECT. CLA USE (IV) OF SECTION 28 AUTHORIZES THE TAXATION OF THE VALUE OF ANY BENEFIT OR PROFESSION ARISING FROM BUSINESS OR THE EXERCISE OF A PROFESSION. IN RESPO NSE TO THE SAME, ASSESSEE FILED A LETTER STATING THAT ASSESSEE SOLD THE SAID COMMER CIAL PREMISES TO THE PARTNER OF ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 12 THE FIRM AND NO BENEFIT IS ACCRUED TO THE ASSESSEE FIRM. FURTHER, THE ASSESSEE MENTIONED THAT HUGE AMOUNT OF AN ADVANCE OF RS. 5 C RORE WAS RECEIVED BY THE ASSESSEE WELL IN ADVANCE BEFORE BOOKING OF ANY CONS TRUCTED PROPERTY OR BEFORE THE BEGINNING OF THE CONSTRUCTION. IT IS ALSO A CA SE WHERE SMT. TARADEVI RATANLAL BAFNA IS THE FIRST CUSTOMER AND PROPOSED TO BE A LA NDLORD OF BRANDED SHOP IN HER PREMISES OF THE COMMERCIAL PROPERTY. THE ASSESSEE J USTIFIED THE SALES TO SMT. TARADEVI RATANLAL BAFNA AT THE RATE OF 1389 PER SQ. FT. AT THE DISCOUNT OF NEARLY 30%. THUS, THE ASSESSEE JUSTIFIED THE SALE OF SAID COMMERCIAL AREA TO SMT. TARADEVI RATANLAL BAFNA FOR SUM OF RS. 2,55,75,000/ - AGAINST THE MARKET RATE OF RS. 3.41 CRORE. HE ALSO ARGUED AGAINST THE INVOKING PROVISION OF SECTION 28(IV) OF THE ACT AND RELIED ON VARIOUS DECISIONS. AO REJECTE D THE SAME AND PROCEEDED TO MAKE ADDITION OF RS.2,44,62,169/- BEING DIFFERENCE BETWEEN THE SELL PRICE AND THE MARKET VALUE. 21. IN THE FIRST APPELLATE PROCEEDING, ON THIS ISSU E, THE ASSESSEE MADE VARIOUS SUBMISSIONS THE DETAILS OF WHICH ARE PROVIDE IN PAR A NO. 6.3. FINALLY, CIT(A) DELETED THE ADDITION AS PER DISCUSSION GIVEN IN PAR A NO. 6.3.5 OF THE IMPUGNED ORDER. THE CONTENTS OF THE SAME ARE EXTRACTED AS UN DER : 6.3.5 IN THE FACTS AND CIRCUMSTANCES OF THE CASE A ND TAKING INTO CONSIDERATION THE LEGAL PROVISIONS IN THIS REGARD THE ADDITION OF RS. 2,44,62,169/- IN THE HANDS OF THE APPELLANT IS DELETED. THE AO IS HOWEVER, DIR ECTED TO TAKE THE FOLLOW UP ACTION IF ANY, IN THIS REGARD IN THE YEAR WHEN SALE DEED IS REGISTERED IN THE FAVOUR OF SMT. TARADEVI RATANLAL BAFNA. 22. BEFORE US, LD. DR FOR THE REVENUE RELIED ON THE ORDER OF AO. PER CONTRA, LD. COUNSEL FOR THE ASSESSEE SUBMITTED TO CONSIDER THE FACT OF GIVING DISCOUNT TO SMT. TARADEVI RATANLAL BAFNA AFTER ANALYSING THE RE ASONS SUBMITTED BY THE ASSESSEE. THE DISCUSSION IS GIVEN IN PAGES 30 AND 3 1 OF THE IMPUGNED ORDER. THE SAME READS AS UNDER : ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 13 I) THE AO ASCERTAINED POSITION OF SHOPS CONSTRUC TED BY M/S. BB & LD IN THE SAID COMPLEX. HE ALSO OBTAINED THE DATA IN RESPECT OF SALES OF OTHER SHOPS AND PRICE AT WHICH THE SAID SHOPS WERE TRANSFERRED AND ACCORDINGLY CONCLUDED THAT THE PRICE OF SAID SHOP PREMISES IS RS. 2,029/- PER SQ. FT OF CARPET AREA I.E. THE PRICE AT WHICH COMMERCIAL SPACE WAS SOLD TO OTHER S HOP KEEPERS AND ACCORDINGLY DETERMINED MARKET VALUE OF THE SAID SHOP PREMISES A T RS.5,00,37,169/-. THE AO, HOWEVER GAVE SET OFF RS.2,55,75,000/- DEBITED BY TH E APPELLANT DURING AY 2009- 10 AND BROUGHT TO TAX DIFFERENCE OF RS. 2,44,62,169 /- AS AGAINST THE CORRECT DIFFERENCE OF RS.1,59,37,169/- (RS.5,00,37,169/- - RS.3,41,00,000). II) SMT. TARADEVI R. BAFNA BEING A PARTNER OF THE A PPELLANT FIRM HAVING 60% SHARE, THE PARTNERS OF THE FIRM HAVE MUTUALLY DECID ED TO TRANSFER THE SHOP PREMISES AT COST PRICE. WHILE TAKING THE SAID DECIS ION THE PARTNERS HAVE TAKEN INTO CONSIDERATION FOLLOWING FACTS. A) SMT. TARADEVI R. BAFNA WOULD CONTRIBUTE RS. 5 C RORE BY WAY OF ADDITION AL CAPITAL FOR WHICH NO INTEREST WOULD BE GIVEN DURING FY 2008-09. B) THE PROPOSED SHOP TRANSFER WAS FOR COMMENCING SH OW ROOM OF R.C BAFNA JEWELLERS AT NASHIK IN THE SAID PREMISES. THIS WOUL D RESULT INTO FETCHING HIGHER PRICE FOR OTHER SHOPS IN THE SAID COMPLEX DUE TO TR EMENDOUS GOODWILL COMMANDED BY THE R.C BAFNA JEWELLERS. C) SMT. TARADEVI R. BAFNA WOULD BE INSTRUMENTAL IN TRANSFERRING HER INTEREST ALONG WITH INTEREST OF FOUR OTHER PERSONS IN THEIR PROPERTY CLOSE TO THE SITE AT WHICH THE PROPOSED SHOP PREMISES AND RESIDENTIAL CO MPLEX IS UNDER CONSTRUCTION. D) THE FIRM CAN TRANSFER A PART OF TRADING STOCK TO ITS PARTNER AT COST PRICE. THE LEGAL ASPECTS OF THIS ISSUE ARE DISCUSSED IN DETAIL IN PARA 17.14, 17.15, 17.16 AND 17.17 OF OUR SUBMISSION. E) THE PROPORTIONATE INVESTMENT IN CONSTRUCTION OF THE SHOP PREMISES WOULD ALSO BE COLLECTED IMMEDIATELY. THIS WOULD RESULT INTO S AVING OF INTEREST FOR THE FIRM. F) THE AOS RELIANCE ON THE CASES CITED IN THE ASSE SSMENT ORDER IN THIS RESPECT IS NOT IN ORDER. AN ANALYSIS OF THE FACTS INVOLVED IN THE RELEVANT CASE HAS BEEN GIVEN IN DETAIL IN PARA 18 OF THE SUBMISSION. G) SINCE THE FIRM HAS TRANSFERRED SHOP PREMISES AT COST OF RS. 3,41,00,000/- AND THIS IS AS PER THE DECISION OF THE HONBLE APEX COU RT IN THE COURSE OF SIR KIKUBHAI PREMCHAND VS. CIT(1953) 24 ITR 506 SC AND SINCE THE DIFFERENCE BETWEEN COST PRICE AND MARKET PRICE DOES NOT AMOUNT TO PROFIT, T HERE IS NO CASE FOR ADDITION AS MADE OUT BY THE AO. 23. THE ABOVE REASONS GIVEN BY THE ASSESSEE ARE EX HAUSTIVE. NO EVIDENCE IS BROUGHT ON TO THE RECORDS BY THE AO TO CONTROVERT T HE SAME. IT IS KNOWN PRACTICE IN THE MARKET THAT THE INITIAL CUSTOMERS ENJOY HUGE DISCOUNT IN THE SALE PRICE. FURTHER, THE EARLY PAYERS OF CONSIDERATION ALSO ENJ OY THE DISCOUNTS IN SALE PRICES. IN THIS CASE, SMT. TARADEVI RATANLAL BAFNA WITH 60% SHARE IN THE FIRM, GAVE HUGE DEPOSIT/ADVANCE OF RS. 5 CRORE WELL IN ADVANCE BEFO RE CONSTRUCTION REALLY ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 14 COMMENCED. SHE ALSO SET A TREND FOR GOOD PRECEDENT OF SALES TO THE ASSESSEE OF THE CONSTRUCTED AREA FOR THE LATER BUYERS IN THE MA RKET. 24. CONSIDERING THE ABOVE SUBMISSION, WE FIND THAT THE DISCUSSION OF GRANTING DISCOUNT TO SMT. TARADEVI RATANLAL BAFNA CONSTITUTE S A CASE OF COMMERCIAL EXPEDIENCY. MERELY REJECTING THE ASSESSEE SUBMISSIO NS BY THE AO WITHOUT DISAPPROVING THE ASSESSEES CLAIM WHEN DOCUMENTARY EVIDENCE, IS NOT SUSTAINABLE. THEREFORE, THE PROVISION OF SECTION 28 (IV) IS NOT RELEVANT TO THIS ISSUE. THE SAID PROVISIONS ARE RELEVANT, WHEN THE B ENEFIT IS ACCRUED TO THE ASSESSEE AND NOT IN A CASE LIKE THE PRESENT ONE WHE RE THE ASSESSEE IS A SELLER AND THE DISCOUNT IS ALLOWED TO THE PARTNER OF THE F IRM. ACCORDINGLY, WE ARE OF THE VIEW THAT THE DECISION OF CIT(A) IS PLAUSIBLE VIEW TAKEN BY HIM AND IT DOES NOT REQUIRE ANY INTERFERENCE. ACCORDINGLY, GROUND NO. 1 AND 2 RAISED BY THE REVENUE ARE DISMISSED. 25. GROUND NO. 3 AND 4 RELATE TO THE ADDITION OF RS . 8,37,72,550/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PLOT INVOKING THE PROV ISION OF 69B OF THE ACT. 26. BRIEFLY, IT IS A CASE OF THE AO THAT ASSESSEE G OT DEVELOPMENT RIGHTS IN A PLOT OF LAND WITH THE AGREEMENT DEED DATED 2 ND APRIL, 2008 FOR CONSIDERATION OF RS. 5 CRORE. THE STAMP DUTY VALUATION FOR THE SAID TRANSACTION WAS RS. 13,37,72,550/-. THE AO MADE ADDITION OF RS.8,37,72, 550/- AND INVOKED THE PROVISION OF SECTION 69B R.W.S 50C OF THE ACT. 27. IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) DELETED THE ADDITION AS PER DISCUSSION GIVEN IN PARA 6.5. THE CIT(A) HELD THAT SECTION 50C OF THE ACT IS APPLICABLE BY 01-04-2003. THE AMENDED PROVISIONS AR E NOT APPLICABLE TO THE PRESENT TRANSACTION UNDER CONSIDERATION. ASSESSEE S UBMITTED THAT IN ABSENCE OF INCRIMINATING EVIDENCE TO DEMONSTRATE THAT THE ASSE SSEE IS ENGAGED IN THE UNACCOUNTED TRANSACTIONS, THE ADDITION IS UNSUSTAIN ABLE. THEREFORE, THE CIT(A) ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 15 GRANTED RELIEF AS PER DISCUSSION GIVEN IN PARA 6.5. 4 OF THE IMPUGNED ORDER. FURTHER, CIT(A) HELD THAT PROVISION OF SECTION 50C OF THE ACT IS APPLIED ONLY TO THE SELLER OF THE PROPERTY AND NOT TO THE ASSESSEE, WHO IS PURCHASER. THEREFORE, HE DELETED THE ADDITION ON ACCOUNT OF UNEXPLAINED I NVESTMENT WITH REFERENCE TO THE STAMP DUTY VALUATION. IN OUR CONSIDERED VIEW, THE ABOVE REASONING OF THE CIT(A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE ON THIS ISSUE. THUS, GROUND NOS. 3 AND 4 RAISED BY THE REVENUE IN APPEAL ARE DISMISSED. 28. GROUND NO. 5 RELATES TO ADDITION OF RS.1,46,475 /- ON ACCOUNT OF UNSUPPORTED EXPENSES. RELEVANT FACTS ARE GIVEN IN P AGE 5 OF THE CIT(A)S ORDER. IT IS CLAIM OF THE ASSESSEE ALL THE EXPENDITURES AR E INCURRED WHOLLY AND EXCLUSIVELY FOR BUSINESS PURPOSE AND THEY ALL DULY SUPPORTED WITH EVIDENCES. HOWEVER, THE AO IS OF THE VIEW THAT THE SAID EXPEND ITURE RELATES TO THE SUBCONTRACTED WORKS AND THEREFORE, THE CLAIMS ARE N OT ALLOWABLE. ACCORDINGLY, AO MADE ADDITION ON THE ENTIRE CLAIM OF RS. 1,46,475/- . 29. THE CIT(A) DISCUSSED THIS ISSUE AND RESTRICTED TO THE DISALLOWANCE OF RS. 1,46,475/- ON ADHOC BASIS TO THE SUM OF RS.46,475/- AND ALLOWED BALANCE AMOUNT OF RS. 1 LAKH IN FAVOUR OF THE ASSESSEE. REVENUE IS AGGRIEVED ON THIS RELIEF. 30. BEFORE US, LD. DR FOR THE REVENUE SUBMITTED FOR CONFIRMING THE ADDITION MADE BY THE AO. PER CONTRA, LD. A.R. REQUESTED FOR CONFIRMING THE ORDER OF THE CIT(A). 31. WE HEARD BOTH THE PARTIES AND PERUSED ORDERS OF THE REVENUE IN GENERAL AND THE CONTENTS OF PARA 6.2 OF THE CIT(A)S ORDER IS PARTICULAR. WE FIND THE SAID PARA IS REQUIRED TO BE EXTRACTED AS UNDER : 6.2 I FIND THAT THE APPELLANT DURING THE ASSESSMENT PR OCEEDINGS AGREED FOR AN ADDITION OF RS. 46,475/- SUBJECT TO NON-INIT IATION OF PENALTY. THE AO HOWEVER, DID NOT AGREE TO THE CONTENTION OF THE APP ELLANT AND MADE THE ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 16 ADDITION OF RS.1,46,475/-. DURING THE APPELLATE PRO CEEDINGS THE APPELLANT HAS FURNISHED DETAILS OF THE AFORESAID EXPENDITURE. AO'S CONTENTION THAT THE WORK WAS GIVEN TO A SUB CONTRACTOR AND HENCE TH ERE WAS NO NEED ON THE PART OF THE APPELLANT TO HAVE INCURRED SUCH EXP ENDITURE IS SIMPLY AO'S PERSONAL OPINION WITH NO SOUND REASONING. EVEN IF W ORK IS GIVEN TO A SUB CONTRACTOR, THERE COULD BE AN OCCASION WHEN A DEVEL OPER HAS TO INCUR SOME EXPENSES WHICH ARE NOT CHARGED TO SUB- CONTRAC TOR IN THE INTEREST OF BUSINESS AND TO MAINTAIN ITS GOODWILL. SINCE THE AO HAS FAILED TO BRING ON RECORD THAT THE SAID EXPENSES WERE BOGUS, I RESTRIC T THE DISALLOWANCE TO RS. 46,475/- AS SOME OF THE EXPENSES WERE MADE IN C ASH WHICH WERE NOT VERIFIABLE. THE APPELLANT GETS A RELIEF OF RS.1,00, 000/-. 32. FROM THE DISCUSSION GIVEN ABOVE, IT IS EVIDENT THAT THE CIT(A) FOUND REASONS ON THE NECESSITY OF SUCH EXPENSES WHEN THE WORKS WERE ALREADY GIVEN ON CONTRACT THE SAME WERE INCURRED IN THE COMMERCIA L INTEREST OF THE BUSINESS. HE ALSO MENTIONED THAT THE EXPENDITURE WAS REQUIRED TO BE INCURRED AS A BUSINESS EXPENDITURE TO MAINTAIN THE GOODWILL OF T HE ASSESSEE. CONSIDERING THE FACT THAT THE AO FAILED TO BRING ANY EVIDENCE ON RE CORD TO DEMONSTRATE THE BOGUS NATURE OF THE EXPENDITURE, IN OUR VIEW, THE CIT(A) FAIRLY RESTRICTED THE DISALLOWANCE TO RS. 46,475/-. THEREFORE, WE ARE OF THE VIEW THAT DECISION OF CIT(A) IS FAIR AND REASONABLE AND IT DOES NOT REQUI RE ANY INTERFERENCE. ACCORDINGLY, GROUND NO. 5 RAISED BY THE REVENUE IN APPEAL IS DIS MISSED . 33. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ITA NO.162/PUN/2015 (BY ASSESSEE- A.Y. 2011-12) : 34. GROUNDS RAISED BY THE ASSESSEE READ AS UNDER : 1. ON THE FACTS AND IN T H E P R EVAI L ING CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(A) HAS GROSS L Y ERRED IN CONFIRMING AD - HOC ADDITION OF RS . 39, 4 8,000 / - MAD E ON ACCOUNTS DIFFER E NCE IN SALE RATE, EV E N THO U GH, ALL THE SALES PROCEEDS ARE DULY SUPPORTED BY DOCUMENTARY EVI D ENCE. THEREFORE, ADDITION MAY PLEASE BE DELETED. 2. ON THE FACTS AND IN THE PREVAI L ING CIRCUMSTANCES OF THE CASE , THE LEARNED CIT(A) HAS GROSSL Y ERRED IN CONFIRMING THE ADDITION OF RS.L,50 , 000 / - MADE U / S.40A(3) OF THE I.T. A CT. THEREFORE , ADDITION MA Y PLEASE BE DELETED. 3. ON THE FACTS AND IN THE PREVAILING CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT( A) HAS GROSSL Y E RRED IN CONFIRMING T HE DISALLOWANCE OF INTER E ST OF RS . 2,35,910 / - UNDER S ECTION 36(1)(III) AND S E C.40A(2)(B) OF TH E I.T. ACT. THEREFOR E , ADDITION MA Y PLEAS E BE DELET E D . ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 17 4. ON THE FACTS AND IN THE PREVA IL ING CIRCUMSTANCES O F THE CAS E , TH E L E ARNED CIT(A) HAS GROSSL Y ERRED IN CONFIRMING THE ADDITION OF RS . 70,118 / - UNDER SECTION 1 4A OF TH E I.T. A CT , RW RULE 8D. TH E REFORE, ADDITION MA Y PLEASE B E DEL E TED. 35. THE GENERAL FACTS RELATING TO THE ASSESSEE WERE ALREADY NARRATED IN THE PRECEDING PARAGRAPHS. WE SHALL NOW TAKE UP THE FAC TS RELATING TO EACH OF THE GROUND IN THE FOLLOWING PARAGRAPHS. 36. GROUND NO.1 RAISED BY THE ASSESSEE RELATES TO T HE ADDITION OF RS.39,48,000/- ON ACCOUNT OF DIFFERENCE IN SALE RAT ES OF THE FLATS. THIS ISSUE IS IDENTICAL TO THE GROUND NO.1 OF THE APPEAL IN ITA N O.706/PUN/2013 FOR THE A.Y. 2009-10. IN THAT YEAR, THE ADDITION OF RS.30 LAKHS WAS MADE ON ADHOC BASIS AGAINST THE OFFER OF RS.6 LAKHS BY THE ASSESSEE DUR ING THE ASSESSMENT PROCEEDINGS. IN THE SAID ASSESSMENT ORDER, THE AO HELD THAT THERE WAS VARIATION IN SALE RATES OF FLATS. IN RESPONSE, THE ASSESSEE SUBMITTED THAT THE REASONS FOR VARIATION IN RATES ARE IDENTICAL TO THE ONES ALREAD Y DISCUSSED IN CONNECTION WITH THE ADDITION OF RS.30 LAKHS IN THE A.Y. 2009-10. T O SUMMARISE, THE DISCOUNT, IS OFFERED IN CERTAIN CASES WHERE THERE ARE BULK PURCH ASES, WHERE THE BUYERS ARE KNOWN AUTHORITIES OF THE GOVERNMENT, LOWER FLOORS, HIGHER FLOORS, FLATS ETC. THESE REASONS WERE CONSIDERED VERY GENERAL AND REJE CTED THE SAME. THE DISCUSSION GIVEN IN PARA NOS. 2 AND 3 OF THE ORDER OF THE AO ARE RELEVANT IN THIS REGARD. ACCORDINGLY, THE AO CONSIDERED THE PEAK SA LE PRICE AS THE STANDARD AND COMPARED WITH THE SAME TO THE CASES WHERE DISCOUNTE D SALE PRICES WERE RECORDED FOR THE A.Y. 2011-12, THE DIFFERENCE WAS A RRIVED AT RS.39,48,000/-. THE SAID AMOUNT WAS ADDED AS ADDITIONAL INCOME OF THE A SSESSEE FOR THE SAD YEAR. 37. IN THE FIRST APPELLATE PROCEEDINGS, THE SAID AD DITION WAS CONFIRMED BY THE CIT(A) AS PER THE DISCUSSION GIVEN IN PAGES 2 AND 3 OF HIS ORDER. WHILE CONFIRMING THE SAID ADDITION, THE CIT(A) RELIED ALS O ON HIS FINDING FOR THE A.Y. 2009-10. ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 18 38. BEFORE US, LD. COUNSEL FOR THE ASSESSEE RELIED HEAVILY ON THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE AO AND THE CIT(A). IT IS THE CASE OF THE ASSESSEE THAT THE ADDITIONS MADE BY THE AO CONSTITU TES ADHOC ADDITIONS AND THE AO IS NOT IN POSSESSION OF ANY INCRIMINATING MATERI AL TO DEMONSTRATE THAT THERE IS SUPPRESSION OF SALE PRICE. REFERRING TO THE OFFER OF ADDITIONAL INCOME OF RS.6 LAKHS IN THE A.Y. 2009-10 THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE SAID OFFER WAS MADE ONLY TO AVOID PROTRACTED LITIGA TION AND TO BUY PEACE OF MIND. OTHERWISE, HE RELIED ON THE LEGAL PROPOSITION THAT AO IS PREVENTED FROM MAKING ADDITIONS ON THE BASIS OF SUSPICION AND SURMISES AN D ALSO ON THE BASIS OF ESTIMATIONS. 39. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIE D HEAVILY ON THE ORDERS OF THE AO AND THE CIT(A). HE REFUTED THE FACT THAT TH IS IS NOT A CASE OF MERE SURMISES AND ESTIMATIONS AND INFACT IT IS A CASE OF INACCURATE BOOKS OF ACCOUNT AND OTHER ON DISCOUNT TO VARIOUS BUYERS ON PERSONAL GROUNDS RATHER ON THE COMMERCIAL EXPEDIENCIES. REFERRING TO THE OFFER OF ADDITIONAL INCOME OF RS.6 LAKHS, LD. DR FOR THE REVENUE SUBMITTED THAT ASSESS EE IS AWARE OF THE SUPPRESSION OF SALE PRICE IN THE FLATS SOLD BY HIM FROM THIS PROJECT AND THEREFORE THE ADDITION MADE BY THE AO IS REQUIRED TO BE SUSTA INED. 40. WE HEARD BOTH THE PARTIES ON THIS ISSUE OF MAKI NG ADDITION ON ACCOUNT OF DIFFERENCE IN SALE PRICE OF THE FLATS. IT IS AN AD MITTED FACT THAT THERE IS VARIATION IN THE SALE PRICE AND THE SAME VARIES FROM CUSTOMER TO CUSTOMER, ONE FLOOR TO THE OTHER ETC. IT IS NOT THE CASE THAT LOW SALE PRICE IS QUOTED IN THE LOWER FLATS UNIFORMLY AND HIGHER PRICE IS CHARGED ON HIGHER FLO ORS. THAT SHOWS THAT DISCOUNT OFFERED BY THE ASSESSEE IN MANY CASES ARE NOT WHOLL Y AND EXCLUSIVELY FOR BUSINESS PURPOSES. WE HAVE GIVEN SIMILAR FINDING I N THE IDENTICAL ISSUE PERTAINING TO THE APPEAL OF THE ASSESSEE FOR THE A.Y. 2009-10 IN THE PRECEDING PARAGRAPHS OF THIS ORDER. WE HAVE CONSIDERED THE UN-RETRACTE D LETTER OF THE ASSESSEE FOR ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 19 THE A.Y. 2009-10 WHEREBY ASSESSEE OFFERED ADDITIONA L INCOME OF RS.6 LAKHS AND CONFIRMED THE SAID OFFER OF RS.6 LAKHS FOR THE DETA ILED REASONS GIVEN BY US. IN PRINCIPLE, WE DISMISSED THE ADDITION OF RS.30 LAKHS IN THAT YEAR GIVING REASONS. WE APPROVED THE WORKING OF ASSESSEE IN ARRIVING AT THE VARIATION OF RS.18.88 LAKHS. FOR THE SAME REASONS, IN PRINCIPLE, WE FIND IT IS APPROPRIATE TO UPHOLD THE DECISION OF THE AO IN MAKING ADDITIONS. HOWEVER, W E HAVE CONSIDERED THE FACT THAT ON THE ADDITION OF RS.39,48,000/-, THE PROFIT RATE OF ASSESSEE FOR THIS YEAR IS PHENOMENONALLY HIGH WHICH IS NOT THERE IN THIS LINE OF BUSINESS. THEREFORE, THERE IS REQUIREMENT FOR DOWNWARD REVISION OF THE SAID AD HOC ADDITION. IN OUR VIEW, THE PRINCIPLE LAID DOWN BY US FOR A.Y. 2009-10 IS R ELEVANT TO THIS YEAR TOO. THEREFORE, WE DIRECT THE AO TO RESTRICT THE ADDITIO N IN THIS YEAR TOO TO 31.50% OF THE VARIATION CALCULATED ADOPTING THE AVERAGE SALE PRICE OF THE FLATS SOLD IN THIS YEAR. AO SHALL ADOPT THE MANNER OF WORKING THE VAR IATION IN SALE PRICE AS DONE BY THE ASSESSEE IN THE A.Y. 2009-10 FOR ARRIVING TH E FIGURE OF RS.18.88 LAKHS. AO IS DIRECTED TO GIVE OPPORTUNITY TO THE ASSESSEE IN THIS EXERCISE. WITH THIS DIRECTION, WE PARTLY ALLOW THE GROUND RAISED IN THI S REGARD. ACCORDINGLY, GROUND NO.1 RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 41. GROUND NO.2 RAISED BY THE ASSESSEE RELATES TO T HE ADDITION OF RS.1,50,000/- U/S.40A(3) OF THE ACT. IN THIS REGAR D, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CONTENTS ON PAGE 4 OF THE ASSESS MENT ORDER IS RELEVANT AND THE PAYMENTS IN QUESTION WAS MADE FOR MEETING VARIO US EXPENSES WHICH WAS INCURRED IN VIOLATION OF THE PROVISIONS OF SECTION 40A(3) R.W. RULE 6DD OF THE I.T. RULES, 1962. CIT(A) CONFIRMED THE SAME AS PER THE DISCUSSION GIVEN IN PAGE 24 OF HIS ORDER. 42. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FAIRLY SUBMITTED THAT THE SAID GROUND IS NOT PRESSED. ACCORDINGLY, THE SAME IS DI SMISSED AS NOT PRESSED. ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 20 43. GROUND NO.3 RAISED BY THE ASSESSEE RELATES TO D ISALLOWANCE OF RS.2,35,910/- U/S.36(1)(III) R.W.S.40A(2)(B) OF THE ACT. AO DISCUSSED THIS ISSUE AND DISALLOWED THE SAME ON THE BASIS OF THE ORDER P ASSED BY HIM IN THE EARLIER ASSESSMENT YEARS. PAGE 4 OF THE ASSESSMENT ORDER C ONTAINS THE RELEVANT DISCUSSION. CONSIDERING THE FACT THAT THE SAID ADD ITIONS WERE CONFIRMED BY THE CIT(A) IN THE EARLIER ASSESSMENT YEARS, THE CIT(A) CONFIRMED THE SAME FOR THIS YEAR ALSO. 44. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FAIRLY SUBMITTED THAT THIS ISSUE NEEDS TO RE-VISIT TO THE FILE OF THE AO FOR FRESH A DJUDICATION IN THE MATTER CONSIDERING THE DECISION OF THE APPELLATE BODIES ON THIS ISSUE IN THE EARLIER ASSESSMENT YEARS. 45. ON HEARING BOTH THE PARTIES, WE ALLOW THE ARGUM ENTS OF THE LD. COUNSEL FOR THE ASSESSEE AND REMIT THIS ISSUE TOO TO THE FI LE OF AO FOR FRESH ADJUDICATION. AO IS DIRECTED TO GRANT REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE SET PRINCIPLES OF NATURAL JUSTI CE. AO IS ALSO DIRECTED TO FOLLOW THE PRECEDENTS IF ANY ON THIS ISSUE. ACCORDINGLY, GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 46. GROUND NO.4 RELATES TO THE DISALLOWANCE OF RS.7 0,118/- U/S.14A R.W. RULE 8D OF THE I.T. RULES. AO INVOKED CLAUSE 8D(2)(II) AND 8D(2)(III) R.W.S.14A OF THE ACT IN MAKING SAID DISALLOWANCE. CIT(A) CONFIRMED THE SAME AS PER THE DISCUSSION GIVEN IN PAGE 27 OF HIS ORDER. 47. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FAIRLY MENTIONED THAT THIS ISSUE CAN ALSO RE-VISIT TO THE FILE OF THE AO FOR FRESH A DJUDICATION ON THE FACT THAT THERE IS NO NEED FOR DISALLOWANCE ON ACCOUNT OF CLAUSE 8D (2)(II) AND 8D(2)(III). FURTHER, HE SUBMITTED THAT ASSESSEE IS HAVING EXCES S INTEREST FREE FUNDS TO MEET THE INVESTMENT WHICH YIELDED EXEMPT INCOME OF RS.57 ,055/-. HE ALSO SUBMITTED ITA NOS.706, 902/PUN/2013 & ITA NO. 162/PUN/2015 M/S. BAFNA BUILDERS AND LAND DEVELOPERS 21 THAT THE AO NEED TO CONSIDER THE SETTLED LEGAL PROP OSITIONS ON THIS ISSUE OF DISALLOWANCE U/S.8D(2)(I) OF THE I.T. RULES, 1962. 48. ON HEARING BOTH THE PARTIES, WE ARE OF THE VIEW THAT THIS ISSUE ALSO SHOULD BE REMANDED TO THE FILE OF AO FOR FRESH ADJUDICATIO N. AO IS DIRECTED TO APPLY BINDING JUDGMENTS ON THIS ISSUE RELATING TO INVESTM ENT OF THE EXCESS FUNDS QUA THE APPLICABILITY OF THE PROVISIONS OF SECTION 14A OF THE ACT. AO IS DIRECTED TO GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE SET PRINCIPLES OF NATURAL JUSTICE. AO IS ALSO DIRECTED TO FOLLOW THE PRECEDENTS IF ANY ON THIS ISSUE. ACCORDINGLY, GROUND NO.4 RAI SED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 49. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. 50. TO SUM UP, ITA NO.706/PUN/2013 AND ITA NO.162/P UN/2015 FILED BY THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE S AND ITA NO.902/PUN/2013 FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF OCTOBER, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 30 TH OCTOBER, 2017. / COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A)-2, NASHIK CIT 2, NASHIK ' , , A BENCH PUNE; / GUARD FILE.