Shri Rajnibhai Jivraj Desai, Mehsana V. The Deputy Commissioner of Income Tax, Central Circle-2(1), Ahmedabad

ITSSA 104/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4090 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 22-10-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 27-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Keywords: Unexplained investment; Gift; Search and seizure; Principle of natural justice; Additional evidence; Bad and doubtful debts; Deemed dividend; Set aside
• Section: 40A(3); 143(3); 153A; 143(1); 69B; 143(2); 13; 22; 131; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) IT(SS)A. NOS: 104 & 106/AHD/2017 (ASSESSMENT YEARS: 2008-09 & 2011-12) SHRI RAJNIBHAI JIVRAJ DESAI PROP M/S. SHYAM ENTERPRISE 5, ASHOKNAGAR SOCIETY RADHANPUR ROAD, MEHSANA PAN NO. AAWPD3250B V/S THE DCIT, CENTRAL CIRCLE- 2(1), AHMEDABAD (APPELLANT) (RESPONDENT) IT(SS)A. NOS: 107 & 108/AHD/2017 (ASSESSMENT YEARS: 2008-09 & 2009-10) SHRI RAMESHBHAI JIVRAJ DESAI PROP M/S. RAJIV ENTERPRISE 5, ASHOKNAGAR SOCIETY RADHANPUR ROAD, MEHSANA PAN NO. AAWPD3249A V/S THE DCIT, CENTRAL CIRCLE- 2(1), AHMEDABAD (APPELLANT) (RESPONDENT) IT(SS)A. NOS: 110 TO 112/AHD/2017 (ASSESSMENT YEARS: 2008-09, 2009-10 & 2011-12) SHRI RAJESHBHAI JIVRAJ DESAI PROP M/S. RAJIV ENTERPRISE 5, ASHOKNAGAR SOCIETY RADHANPUR ROAD, MEHSANA V/S THE DCIT, CENTRAL CIRCLE- 2(1), AHMEDABAD IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 2 PAN NO. AAWPD3248B (APPELLANT) (RESPONDENT) IT(SS)A. NO: 129/AHD/2017 (ASSESSMENT YEAR: 2008-09) THE DCIT, CENTRAL CIRCLE- 2(1), AHMEDABAD V/S SHRI RAMESHBHAI JIVRAJ DESAI PROP M/S. RAJIV ENTERPRISE 5, ASHOKNAGAR SOCIETY RADHANPUR ROAD, MEHSANA PAN NO. AAWPD3249A (APPELLANT) (RESPONDENT) APPELLANT BY :SHRI S.N. DEVETIA WITH MEHUL TALER A,AR RESPONDENT BY : SHRI O.P. SHARMA, CIT/DR ( )/ ORDER DATE OF HEARING : 22 -10-201 9 DATE OF PRONOUNCEMENT : 17 -01-2020 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THESE APPEALS FILED BY THE THREE DIFFERENT ASSESSEE S ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A). SINCE, COMMON ISSUES ARE A RISING IN ALL THE APPEALS AND FACTS BEING IDENTICAL, WE DISPOSE OF ALL THESE APPE AL BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IN THE CASE OF SHRI RAJNIBHAI JIVRAJ DESAI IN IT(SS )A NO. 104/AHD/2017 FOR A.Y. 2008-09, THE GROUNDS OF APPEAL RAISED BY THE A SSESSEE ARE AS FOLLOWS: IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 3 1.1 THE ORDER PASSED U/S.250 ON 27.1.2017 FOR A .Y.2008-09 BY CIT(A)-7, ABAD UPHOLDING THE VALIDITY OF PROCEEDINGS U/S.153A OF T HE ACT AS WELL AS THE ADDITION OF RS. 1,82,49,065/- AS UNACCOUNTED PROFIT IN RESPE CT OF LAND TRANSACTIONS IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITION. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2008- 09, THOUGH THE CONDITIONS PRECEDENTS WERE NOT FULFI LLED. THEREFORE, THE NOTICE AS WELL AS PROCEEDINGS U/S.153A(1) WERE WHOLLY ILLEGAL AND UNLAWFUL IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH FOR THIS YEAR. 2.3 THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE AS WELL AS IN LAW, THE LD.CLT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2008-09. 3.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS. 1,82,49,065/- AS UNACCOUNTED PROFIT IN RESPECT OF LAND TRANSACTIONS. 3.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AN D ON FACTS IN HOLDING THAT THE APPELLANT HAD FAILED TO PRODUCE DOCUMENTS IN RESPEC T OF PURCHASE AND SALE OF LAND. 3.3 THE LD.CLT(A) HAS GRIEVOUSLY ERRED IN LAW AN D ON FACTS IN HOLDING THAT THERE WAS UNACCOUNTED PROFIT OF RS.5,47,47,196/- IN RESPE CT OF LANDS AT SARKHEJ VILLAGE WITH APPELLANT'S 1/3 SHARE AT RS.1,82,49,065/- AND THE DIVERSION TO THE BOOKS OF RJD IMPEX PVT. LTD. WAS A SHAM TRANSACTION AS WELL AS EXPLAIN SATISFACTORILY THE IMPUGNED AMOUNT AS WELL AS MAKE REQUEST FOR ADMISSI ON OF ADDITIONAL EVIDENCE. IT IS, THEREFORE, PRAYED THAT THE ADDITION OF RS.1, 82,49,065/-AND VALIDITY U/S.153A(1) UPHELD BY THE CIT(A) MAY KINDLY BE DELE TED. 3. THE PRELIMINARY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER IN RESPECT OF UNABATED ASSESSMENTS (NO PENDING PROCEEDINGS) AS ON THE DATE OF SEARCH, THE AO COULD FRAME THE SEARCH ASSESSMENT U/S 153A OF TH E ACT BY MAKING ADDITIONS WITHOUT ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH. 4. THE BRIEF FACTS APPEARING IN THIS CASE ARE THAT THE RE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED U/S 132(1) OF THE ACT AT MASTER GROUP, DATED 03-01-2013. THE ASSESSEE BEING PART OF THE GROUP WAS ALSO COVER ED UNDER THE SEARCH IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 4 PROCEEDINGS. THE ASSESSEE IS ENGAGED IN THE BUSINES S OF FINANCE & DEALING IN REAL ESTATE. THE ASSESSEE HAD ORIGINALLY FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION UNDER SECTION 139 OF THE ACT DA TED 27-09-2008 DECLARING TOTAL INCOME OF RS. 44,01,330/- WHICH WAS ASSESSED U/S 143(3) OF THE ACT DATED 22-12-2010. THUS AS ON THE DATE OF SEARCH I.E. 03.0 1.2013, THE ASSESSMENT YEAR UNDER CONSIDERATION BECAME UNABATED. 5. THE LD. AR BEFORE US HAS CHALLENGED THE ASSESSMENT PROCEEDINGS FRAMED UNDER SECTION 153A OF THE ACT IN GROUND NO. 1 & 2 ON THE REASONING THAT THE ADDITION MADE BY THE AO IN THE ASSESSMENT YEAR UNDER CONSIDE RATION REPRESENTS THE ITEMS OF THE REGULAR ASSESSMENTS BEING INCOME FROM THE SALE OF THE LAND BEARING SURVEY NOS. 522/3, 520, 523, 525 AND 526 ALONG WITH SHRI RAJESHBHAI JIVRAJ DESAI AND RAMESHBHAI JIVRAJ DESAI LOCATED AT SARKHE J VILLAGE, AHMEDABAD WHICH WAS DISCLOSED IN THE INCOME TAX RETURN. 6. AS PER THE LD. AR THERE WAS NO INCRIMINATING MATERI AL FOUND IN RESPECT OF THE UNABATED PROCEEDINGS. THEREFORE NO ADDITIONS CAN BE MADE. THE LD. AR ACCORDINGLY ARGUED IN RESPECT OF ASSESSMENT YEAR UN DER CONSIDERATION BEING UNABATED ASSESSMENT, THE LD. AO HAS MADE THE ADDITI ON, FOR WHICH ABSOLUTELY NO INCRIMINATING MATERIALS WERE FOUND DURING THE CO URSE OF THE SEARCH. HENCE HE PRAYED FOR DELETION OF ADDITION MADE FOR ASSESSM ENT YEAR UNDER CONSIDERATION. HE PLACED RELIANCE ON THE DECISIONS OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREH OUSING CORPORATION (NHAVA SHIVA) LTD. AND ALL CARGO GLOBAL LOGISTICS LTD. REP ORTED IN 374 ITR 645 AND HONBLE GUJARAT HIGH COURT IN THE CASE OF PR. CIT V S. SAUMYA CONSTRUCTION REPORTED IN 387 ITR 529. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 5 7. IN VIEW OF THE ABOVE, THE LEARNED AR ACCORDINGLY CL AIMED THAT THERE CANNOT BE ANY ADDITION ON ACCOUNT OF SALE OF THE LAND AS DISC USSED ABOVE AS THERE WAS NO INCRIMINATING DOCUMENT FOUND DURING THE SEARCH. 8. THE LD. DR, ON THE OTHER HAND, ARGUED VEHEMENTLY ON THE VALIDITY OF THE ASSESSMENT COMPLETED U/S 153A/143(3) OF THE ACT BY PLACING RELIANCE ON THE ORDERS OF THE SUBORDINATE AUTHORITIES. 9. WE HAVE PERUSED THE CASE RECORD, ANALYZED THE FACTS AND CIRCUMSTANCES OF THE CASE AND HEARD THE RIVAL CONTENTIONS. WE FIND THAT IT WOULD BE NECESSARY TO ADDRESS THE PRELIMINARY ISSUE, WHETHER ASSESSMENT C OULD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF THE SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDIN GS AS ON DATE OF SEARCH. IT IS NOT IN DISPUTE THAT THE ASSESSMENT YEAR UNDER CO NSIDERATION FALLS UNDER THE AMBIT OF UNABATED ASSESSMENT AS ON THE DATE OF SEAR CH. THERE IS NO DIFFERENTIATION AS FOUND IN THE INTENT OF THE LEGIS LATURE TO DIFFERENTIATE WHETHER THE ASSESSMENTS WERE ORIGINALLY FRAMED U/S 143(1) O R 143(3) OR 147 OF THE ACT. AS SUCH WE NOTE THAT THE ADDITION MADE BY THE AO BA SED ON THE SEARCH PROCEEDINGS REPRESENTS THE ITEMS OF THE REGULAR ASS ESSMENTS BEING INCOME FROM THE SALE OF THE LAND BEARING SURVEY NOS. 522/3, 520 , 523, 525 AND 526 ALONG WITH SHRI RAJESHBHAI JIVRAJ DESAI AND RAMESHBHAI JI VRAJ DESAI LOCATED AT SARKHEJ VILLAGE, AHMEDABAD WHICH WAS DISCLOSED IN T HE INCOME TAX RETURN. THEREFORE, IF ANY INCRIMINATING MATERIAL IS NOT FOU ND DURING THE COURSE OF SEARCH RELATED TO THE CONCLUDED ASSESSMENT YEAR, TH E ACT DOES NOT CONFER ANY POWER TO THE AO TO DISTURB THE FINDING GIVEN THEREO N AND INCOME DETERMINED IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 6 THEREON AS FINALITY HAS ALREADY BEEN REACHED AND NO PROCEEDING WAS PENDING ON THE DATE OF SEARCH. 10. WE FIND THAT THE JUDGMENT OF THE HONBLE BOMBAY HIG H COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHIVA) LTD. AND ALL CARGO GLOBAL LOGISTICS LTD. REPORTED IN 374 ITR 645 HAS D ECIDED THE IMPUGNED ISSUE IN FAVOR OF THE ASSESSEE. THE RELEVANT EXTRACT IS R EPRODUCED BELOW: ONCE IT IS HELD THAT THE ASSESSMENT HAS ATTAINED F INALITY, THEN THE ASSESSING OFFICER WHILE PASSING THE INDEPENDENT ASSESSMENT ORDER UNDER SECT ION 153A READ WITH SECTION 143 (3) COULD NOT HAVE DISTURBED THE ASSESSMENT/REASSESSMEN T ORDER WHICH HAS ATTAINED FINALITY, UNLESS THE MATERIALS GATHERED IN THE COURSE OF THE PROCEEDINGS UNDER SECTION 153A ESTABLISH THAT THE RELIEFS GRANTED UNDER THE FINALI SED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE O F 153A PROCEEDINGS. IF THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS UNEARTHE D DURING THE SEARCH OR DURING THE 153A PROCEEDINGS, THE ASSESSING OFFICER WHILE PASSI NG ORDER UNDER SECTION 153A READ WITH SECTION 143(3) CANNOT DISTURB THE ASSESSMENT O RDER 11. WE ALSO PLACE RELIANCE ON THE JUDGMENT OF HONBLE B OMBAY HIGH COURT IN THE CASE OF CIT VS. GURINDER SINGH BAWA REPORTED IN 79 TAXMANN.COM 398 WHEREIN IT WAS HELD AS UNDER: 7. IN VIEW OF THE ABOVE, ON ISSUE OF JURISDICTION ITSELF THE ISSUE STANDS CONCLUDED AGAINST THE REVENUE BY THE DECISION OF THIS COURT I N CONTINENTAL WAREHOUSING CORPN. (NHAVA SHEVA) LTD. (SUPRA). IN THE APPEAL BE FORE US, THE REVENUE HAS MADE NO GRIEVANCE WITH REGARD TO THE IMPUGNED ORDER OF T HE TRIBUNAL HOLDING THAT IN LAW THE PROCEEDINGS UNDER SECTION 153A OF THE ACT A RE WITHOUT JURISDICTION. THIS IN VIEW OF THE FACT THAT NO ASSESSMENT WERE PENDING , SO AS TO ABATE NOR ANY INCRIMINATING EVIDENCE WAS FOUND. THE GRIEVANCE OF THE REVENUE IS ONLY WITH REGARD TO FINDING IN THE IMPUGNED ORDER ON THE MERI TS OF THE INDIVIDUAL CLAIM REGARDING GIFTS AND DEEMED DIVIDEND. HOWEVER ONCE I T IS NOT DISPUTED BY THE REVENUE THAT THE DECISION OF THIS COURT IN CONTINEN TAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. (SUPRA) WOULD APPLY TO THE PRESE NT FACTS AND ALSO THAT THERE ARE NO ASSESSMENTS PENDING ON THE TIME OF THE INITI ATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT. THE OCCASION TO CONSIDER T HE ISSUES RAISED ON MERITS IN THE PROPOSED QUESTIONS BECOMES ACADEMIC. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 7 12. WE ALSO PLACE RELIANCE ON THE JUDGMENT OF HONBLE G UJARAT HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VS. M/ S. SAUMYA CONSTRUCTION PVT. LTD. REPORTED IN 387 ITR 529 HAS DECIDED THE I SSUE IN FAVOR OF THE ASSESSEE BY OBSERVING AS UNDER: 16. SECTION 153A BEARS THE HEADING 'ASSESSMENT IN CASE OF SEARCH OR REQUISITION'. IT IS WELL SETTLED AS HELD BY THE SUPR EME COURT IN A CATENA OF DECISIONS THAT THE HEADING OF THE SECTION CAN BE RE GARDED AS A KEY TO THE INTERPRETATION OF THE OPERATIVE PORTION OF THE SECT ION AND IF THERE IS NO AMBIGUITY IN THE LANGUAGE OR IF IT IS PLAIN AND CLEAR, THEN T HE HEADING USED IN THE SECTION STRENGTHENS THAT MEANING. FROM THE HEADING OF SECTI ON 153, THE INTENTION OF THE LEGISLATURE IS CLEAR VIZ., TO PROVIDE FOR ASSESSMEN T IN CASE OF SEARCH AND REQUISITION. WHEN THE VERY PURPOSE OF THE PROVISION IS TO MAKE ASSESSMENT IN CASE OF SEARCH OR REQUISITION, IT GOES WITHOUT SAYING TH AT THE ASSESSMENT HAS TO HAVE RELATION TO THE SEARCH OR REQUISITION. IN OTHER WOR DS, THE ASSESSMENT SHOULD BE CONNECTED WITH SOMETHING FOUND DURING THE SEARCH OR REQUISITION, VIZ., INCRIMINATING MATERIAL WHICH REVEALS UNDISCLOSED IN COME. THUS, WHILE IN VIEW OF THE MANDATE OF SUB-SECTION (1) OF SECTION 153A OF T HE ACT, IN EVERY CASE WHERE THERE IS A SEARCH OR REQUISITION, THE ASSESSING OFF ICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNISH RETURNS OF INCOME FOR THE SI X YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE, ANY ADDITION OR DISALLOWANCE C AN BE MADE ONLY ON THE BASIS OF MATERIAL COLLECTED DURING THE SEARCH OR REQUISIT ION. IN CASE NO INCRIMINATING MATERIAL IS FOUND, AS HELD BY THE RAJASTHAN HIGH CO URT IN THE CASE OF JAI STEEL (INDIA) (SUPRA), THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED. IN CASE WHERE PENDING ASSESSMENTS HAVE ABATED, THE ASSESSING OFFI CER CAN PASS ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS DETERMINING THE TO TAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS UNDISCLOSED INCOME, IF ANY, UNE ARTHED DURING THE SEARCH OR REQUISITION. IN CASE WHERE A PENDING REASSESSMENT U NDER SECTION 147 OF THE ACT HAS ABATED, NEEDLESS TO STATE THAT THE SCOPE AND AM BIT OF THE ASSESSMENT WOULD INCLUDE ANY ORDER WHICH THE ASSESSING OFFICER COULD HAVE PASSED UNDER SECTION 147 OF THE ACT AS WELL AS UNDER SECTION 153A OF THE ACT. 13. ONCE THE PROCEEDING U/S 153A OF THE ACT IS INITIATE D WHICH ARE SPECIAL PROCEEDINGS, THE LEGISLATURE PROVIDES DIFFERENT TRE ATMENTS FOR ABATED AND IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 8 UNABATED ASSESSMENTS. HOWEVER, IN RESPECT OF UNABAT ED ASSESSMENTS THE LEGISLATURE HAS CONFERRED POWERS ON THE LD. AO TO J UST FOLLOW THE ASSESSMENTS ALREADY CONCLUDED UNLESS INCRIMINATING MATERIALS AR E FOUND IN THE COURSE OF SEARCH. 14. THAT FOR THE REASONS STATED ABOVE AND ON BASIS OF V ARIOUS JUDICIAL PRONOUNCEMENTS, WE HOLD THAT THE IMPUGNED ADDITION FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WHICH WAS UNABATED/CONCLUDED AS SESSMENT AS ON DATE OF SEARCH CANNOT BE MADE IN THE SEARCH ASSESSMENTS IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARC H AND ACCORDINGLY THE IMPUGNED ADDITION IS DIRECTED TO BE DELETED. SINCE THE LEGAL ISSUES ARE ADDRESSED, WE REFRAIN TO GIVE OUR FINDINGS ON MERIT S OF ADDITIONS UNDER THE PROVISIONS OF THE ACT. ACCORDINGLY, THE GROUND RAIS ED BY THE ASSESSEE IS ALLOWED. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 16. IN THE CASE OF SHRI RAJNIBHAI JIVRAJ DESAI IN IT(SS )A NO. 106/AHD/2017 FOR A.Y. 2011-12, THE GROUNDS OF APPEAL RAISED BY T HE ASSESSEE ARE AS FOLLOWS: 1.1 THE ORDER PASSED U/S.250 ON 27.01.2017 FOR A.Y.2011-12 BY CIT(A)-7, ABAD UPHOLDING THE VALIDITY OF PROCEEDINGS U/S.153A OF T HE ACT AS WELL AS ALLEGED SUPPRESSED PURCHASE PRICE OF RS. 1,41,12,238/- IN R ESPECT OF LANDS AT VILLAGE: MAKARBA AND ADDITION OF RS.48,793/- IN RESPECT OF L OOSE PAPERS IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUST ICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITIONS. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 9 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2011- 12, THOUGH THE CONDITIONS PRECEDENTS WERE NOT FULFI LLED. THEREFORE, THE NOTICE AS WELL AS PROCEEDINGS U/S.153A(1) WERE WHOLLY ILLEGAL AND UNLAWFUL IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH FOR THIS YEAR. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2011-12. 3.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION ASALLEGED SUPPRESSED PURCHASE PRICE OF RS. 1,41,12,238/- IN RESPECT OF LANDS AT VILLAGE: MAKARBA. 3.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THE APPELLANT HAD FAILED TO PRODUCE DOCUMENTS IN RESPEC T OF PURCHASE AND SALE OF LAND. 3.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THERE WAS SUPPRESSED PURCHASE PRICE OF RS. 1,41,12,238/- IN RESPECT OF LANDS AT VILLAGE: MAKARBA. 4.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN UPHOLDING THE ADDITION OF RS.48,793/- IN RESPECT OF LOOSE PAPER N O.11-12 OF ANNEXURE-BS/1 AS UNEXPLAINED INVESTMENT IN JEWELLERY. 4.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE ADDITION OF RS.48,793/- IN RESPECT OF LOOSE PAPER NO.11-12 OF ANNEXURE-BS/1 AS UNEXPLAINED INVE STMENT IN JEWELLERY. IT IS, THEREFORE, PRAYED THAT THE ADDITION OF RS. 1 ,41,12,238/-AND RS.48,793/- AND VALIDITY U/S.153A(1) UPHELD BY THE CIT(A) MAY KINDL Y BE DELETED. 17. THE ASSESSEE IN THE 1 ST AND 2 ND GROUND OF APPEAL HAS CHALLENGED THE VALIDITY OF THE ASSESSMENT PROCEEDINGS FRAMED UNDER SECTION 143 (3)/ 153A OF THE ACT AS THE ADDITIONS WERE MADE WITHOUT ANY INCRIMINATING M ATERIALS FOUND DURING THE COURSE OF SEARCH. 18. THE LD. AR BEFORE US HAS CHALLENGED THE ASSESSMENT PROCEEDINGS FRAMED UNDER SECTION 153A OF THE ACT IN GROUND NO. 1 & 2 ON THE REASONING THAT THE ADDITION MADE BY THE AO IN THE ASSESSMENT YEAR UNDER CONSIDE RATION REPRESENTS THE IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 10 ITEMS OF THE REGULAR ASSESSMENTS WHICH WAS DISCLOSE D IN THE INCOME TAX RETURN. THEREFORE HE WAS OF THE VIEW THAT NO ADDITION CAN B E MADE AS THERE WAS ABSOLUTELY NO INCRIMINATING MATERIALS WERE FOUND DU RING THE COURSE OF THE SEARCH. HENCE HE PRAYED FOR DELETION OF ADDITION MA DE FOR ASSESSMENT YEAR UNDER CONSIDERATION. 19. THE LD. DR, ON THE OTHER HAND, ARGUED VEHEMENTLY ON THE VALIDITY OF THE ASSESSMENT COMPLETED U/S 153A/143(3) OF THE ACT BY PLACING RELIANCE ON THE ORDERS OF THE SUBORDINATE AUTHORITIES. 20. WE HAVE PERUSED THE CASE RECORD, ANALYZED THE FACTS AND CIRCUMSTANCES OF THE CASE AND HEARD THE RIVAL CONTENTIONS. THE ASSESSEE HAD ORIGINALLY FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION UNDER SE CTION 139 OF THE ACT DATED 25-09-2011 DECLARING TOTAL INCOME OF RS. 4,59,64,64 0/- THE TIME LIMIT FOR THE ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT FOR THE SCRUTINY ASSESSMENT WAS UP-TO 30-9-2012 BUT NO SUCH NOTICE WAS ISSUED U PON THE ASSESSEE. THUS AS ON THE DATE OF SEARCH I.E. 03.01.2013, THE ASSESSME NT YEAR UNDER CONSIDERATION BECAME UNABATED. THE 1 ST ISSUE ARISES FOR OUR CONSIDERATION WHETHER THE ASSESSMENT IN DISPUTE CAN BE CONSIDERED AS UNABATED IN THE GIVEN FACTS AND CIRCUMSTANCES. THE ANSWER STANDS IN FAVOUR OF THE A SSESSEE. IT IS BECAUSE THE TIME PERMITTED UNDER THE STATUTE FOR SELECTING THE CASE UNDER SCRUTINY WAS UP TO 30 SEPTEMBER 2012 BUT THERE WAS NO NOTICE ISSUED FO R THE SCRUTINY ASSESSMENT. IN THIS REGARD WE FIND SUPPORT AND GUIDANCE FROM TH E ORDER OF KOLKATA TRIBUNAL IN THE CASE OF KRISHNA KUMAR SINGHANIA VS. DCIT REPORTED IN 88 TAXMANN.COM 259 WHEREIN IT WAS HELD AS UNDER: HENCE NOW THE ONLY ISSUE WHICH IS LEFT TO BE ADDRE SSED IS THE PRELIMINARY ISSUE OF WHETHER THE ADDITION COULD BE FRAMED UNDER SECTION 153A IN RESPECT OF A CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATI NG MATERIALS FOUND IN THE COURSE OF SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMEN T OF PENDING PROCEEDINGS AS ON THE IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 11 DATE OF SEARCH. IT WAS NOT IN DISPUTE THAT THE ASSE SSMENT FOR THE ASSESSMENT YEAR 2009-10 WAS NOT SELECTED FOR SCRUTINY AND THE TIME LIMIT FO R ISSUANCE OF NOTICE UNDER SECTION 143(2) HAD EXPIRED AND HENCE IT FALSE UNDER CONCLUD ED PROCEEDING, AS ON THE DATE OF SEARCH. IT IS HELD THAT THE LEGISLATURE DOES NOT DI FFERENTIATE WHETHER THE ASSESSMENTS ORIGINALLY WERE FRAMED UNDER SECTION 143(1) OR 143( 3) OR 147. HENCE UNLESS THERE WAS NO ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATABLE TO CONCLUDED YEAR 2009-10, THE STATUTE DOES NOT CONFER ANY POWER ON T HE ASSESSING OFFICER TO DISTURB THE FINDINGS GIVEN THEREON AND INCOME DETERMINED THEREO N, AS FINALITY HAD ALREADY BEEN REACHED THEREON, AND SUCH PROCEEDING WAS NOT PENDIN G ON THE DATE OF SEARCH TO GET ITSELF ABATED. [PARA 10.1 21. THE NEXT CONTROVERSY ARISES, WHETHER ASSESSMENT COU LD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF THE SEARCH. THE ISSUE IS ANSWERED IN NEGATIVE. THE IDENTICAL ISSUE, WE HAVE ALREADY DECIDED IN FAVOUR OF THE ASSESSEE IN HIS OWN CASE PERTAINING TO THE ASSE SSMENT YEAR 2008-09 VIDE ITA NO. 104/AHD/2017 IN PARAGRAPH NO. 9 TO 14 OF THIS O RDER. FOR THE DETAILED DISCUSSION, PLEASE REFER TO THE RELEVANT PARAGRAPH. THUS FOR PARITY OF THE REASONS, WE ALLOW THE GROUND OF APPEAL RAISED BY TH E ASSESSEE. 22. THE QUESTION ALSO ARISES WHETHER THE DRAFT DEED FOU ND DURING THE SEARCH UNDER SECTION 132 OF THE ACT REPRESENTS THE INCRIMINATING DOCUMENT. IN THE PRESENT CASE A DRAFT DEED WAS FOUND REPRESENTING THE PURCHA SE OF LAND BY THE ASSESSEE FROM THE PARTIES NAMELY LAXMANJI PUNAJI THAKOR, BHA GVATIJI PUNAJI THAKOR AND VIKRAMJI. PUNAJI THAKOR. AS PER THE DEED THE CONSID ERATION WAS DECIDED AT RS. 4,800/- PER SQUARE METER. HOWEVER THE ASSESSEE CLAI MED TO HAVE PURCHASED THE LANDS DESCRIBED IN THE DRAFT DEED THROUGH BAKAKHAT DATED 14-05-2010 FROM SHRI SANJAY JAYNTILAL PATEL, DHIRAJBHAI BHARATKUMAR PATE L AND URMILBHAI GANDHIBHAI PATEL. THIS FACT CAN ALSO BE VERIFIED FROM THE STAT EMENT OF SHIR SANJAY JAYANTILAL PATEL RECORDED UNDER SECTION 131 OF THE ACT. ACCORD INGLY, THE ASSESSEE IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 12 CONTENDED THAT THE DRAFT DEED DISCOVERED DURING THE SEARCH IS DUMP DOCUMENT AND THEREFORE THE SAME CANNOT BE RELIED UPON. 23. IT IS ALSO PERTINENT TO NOTE THAT THE AO DURING THE ASSESSMENT PROCEEDINGS HAS NOT VERIFIED THE VERACITY OF THE IMPUGNED DRAFT DEE D FROM THE PARTIES NAMELY LAXMANJI PUNAJI THAKOR, BHAGVATIJI PUNAJI THAKOR AN D VIKRAMJI. PUNAJI THAKOR BUT USED THE SAME FOR THE IMPUGNED ADDITION IN THE HANDS OF THE ASSESSEE. AS SUCH, WE ARE OF THE VIEW THAT THE CONTENTS OF THE D EED CANNOT BE RELIED UPON BY THE AO UNTIL AND UNLESS THE SAME IS VERIFIED FROM T HE PARTIES INVOLVED THEREIN. IN THIS RESPECT, WE WOULD LIKE TO DISCUSS THE JUDGM ENT PASSED BY THE HONBLE DELHI HIGH COURT IN THE MATTER OF CIT, C-1-VS-VATIK A LANDBASE PVT. LTD REPORTED IN 67 TAXMANN.COM 372. IN THAT MATTER, THE ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY FROM THE EMPLOYEE OR FROM BUYERS O F FLATS IN RESPECT OF ACTUAL PRICE PAID BY THEM. IN THAT CIRCUMSTANCES OF THE CASE THE IMPUGNED ADDITION MADE MERELY ON THE BASIS OF UNSIGNED AND U NDATED SEIZED DOCUMENT HAS BEEN HELD TO BE UNSUSTAINABLE IN THE EYE OF LAW . THUS, THE PROPOSITION MADE BY THE REVENUE TOWARDS MAKING ADDITION ON THE BASIS OF THE FIGURES MENTIONED ON THE SAID DRAFT DEED, THUS, CANNOT BE CONSIDERED TO BE VALID EVIDENCE IN THE ABSENCE OF ANY ENQUIRY MADE BY THE AUTHORITIES WHIC H OUGHT TO HAVE DONE FROM THE PARTIES INVOLVED. 24. IN VIEW OF THE ABOVE, WE ARE NOT CONVINCED WITH THE FINDING OF THE AUTHORITIES BELOW. THUS THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 25. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NUMBER 3 IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,41,12,238 .00 ON ACCOUNT OF SUPPRESSED PURCHASE PRICE OF THE LAND. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 13 THOUGH WE HAVE DECIDED THE TECHNICAL ISSUE IN FAVOU R OF THE ASSESSEE IN THE PRECEDING PARAGRAPH BUT FOR THE SAKE OF COMPLETENES S OF THE ORDER, WE ARE ALSO INCLINED TO DECIDE THE ISSUE ON MERIT. 26. BEFORE COMING TO THE SPECIFIC ISSUE RAISED BY THE A SSESSEE, WE FIND PERTINENT TO MAKE A BRIEF NOTE ON THE HISTORY OF THE CASE WHICH GOES AS UNDER. THERE WERE DIFFERENT PIECES OF PLOTS BEARING SURVEY NUMBERS 4 15/3, 416/2, FOR 16/1, 529/2 ETC OWNED BY SHERI LATE HATHIJI THAKOR WHICH WERE PASSED ON TO HIS LEGAL HEIRS NAMELY LATE SHRI PUNAJI THAKOR, SHRI SA KRAJI THAKOR AND SHRI RAMESHJI THAKOR. 27. SUBSEQUENTLY THE SHARES OF LATE SHRI PUNAJI H TAHUR IN THE LANDS FURTHER PASSED ON TO HIS LEGAL HEIRS NAMELY SMT. MADHUBEN PUNAJI T HAKOR (WIFE), LAXMANJI PUNAJI THAKOR, BHAGVATIJI PUNAJI THAKOR AND VIKRAMJ I. PUNAJI THAKOR 28. THEREAFTER, THE LEGAL HEIR SMT. MADHUBEN PUNAJI THA KOR SOLD HER SHARE OF LAND TO SHRI SHABBIR V. QURESHI THROUGH REGISTER DEED DA TED 20-11-2009 FOR RS. 4,90,000/- ONLY. 29. SIMILARLY THE LEGAL HEIRS NAMELY LAXMANJI PUNAJI TH AKOR, BHAGVATIJI PUNAJI THAKOR AND VIKRAMJI. PUNAJI THAKOR ALONG WITH SARKA RJI THAKOR HAS SOLD THEIR PART SHARE OF THE LAND THROUGH BANAKHAT DATED 28-5- 2009 TO SHRI SANJAY SHRI SANJAY JAYNTILAL PATEL, DHIRAJBHAI BHARATKUMAR PATE L AND URMILBHAI GANDHIBHAI PATEL. ETC. FOR RS. 30,85,000/- SUBSEQUENTLY SHRI S ANJAY JAYNTILAL PATEL, DHIRAJBHAI BHARATKUMAR PATEL AND URMILBHAI GANDHIBH AI PATEL SOLD THE IMPUGNED PIECES OF LAND TO THE ASSESSEE THROUGH BAN AKHAT DATED 14-05-2010 FOR RS. 1,30,84,800/- IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 14 30. IN THE MEANTIME THE ASSESSEE ALSO PURCHASED PIECE O F LAND FROM SHRI SHABBIR QURESHI AT RS. 11 LACS THROUGH REGISTRY DATED 4-6-2 010. 31. HOWEVER, DURING THE COURSE OF SEARCH A DRAFT DEED W AS DISCOVERED BETWEEN THE ASSESSEE AND LAXMANJI PUNAJI THAKOR, BHAGVATIJI PUN AJI THAKOR AND VIKRAMJI. PUNAJI THAKOR WHEREIN THE ASSESSEE WAS TO PURCHASE THE BALANCE LANDS AT RS.1,55,41,000/- . AS SUCH THE RATE PER SQUARE METE R COMES AT RS 4,800.00 ONLY. 32. IN VIEW OF THE ABOVE, THE AO WAS OF THE VIEW THAT T HE ASSESSEE HAS PURCHASED THE LAND FROM SHRI SHABBIR QURESHI AND FROM SANJAY JAYNTILAL PATEL & OTHERS AT A PRICE OF RS. 5,65,21,514/- WHICH WAS NOT DISCLOSE D IN THE BOOKS OF ACCOUNTS. ACCORDINGLY THE AO TREATED SUCH AMOUNT AS SUPPRESSE D PURCHASE CONSIDERATION FOR RS. 1,41,12.238/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 33. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARN ED CIT (A) WAS CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER: 6.1 AFTER A CAREFUL PERUSAL OF THE A.O'S OBSE RVATION AND FINDING IN THE ASSESSMENT ORDER AND THE VARIOUS SUBMISSIONS MADE B Y THE APPELLANT, WHICH HAVE ALSO BEEN REPRODUCED ABOVE, I AM INCLINED TO A GREE WITH THE DECISION TAKEN BY THE A.O. DURING APPELLATE PROCEEDINGS, THE APPEL LANT HAS MERELY STATED THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND DURING TH E SEARCH, THE IMPUGNED ADDITION COULD I' NOT HAVE BEEN MADE. HOWEVER, THIS CONTENTION OF THE A.O CANNOT BE ACCEPTED AS IT IS FACTUALLY | INCORRECT. IT IS O N THE BASIS OF A DRAFT SALE DEED FOUND DURING THE SEARCH PROCEEDINGS, AND AFTER ANAL YSIS OF IMPOUNDED MATERIALS, INVENTORIED AS ANNEXURE A/6, THAT THE ADDITION WAS MADE. THE A.O RECORDED STATEMENTS U/S 131 OF THE ACT FROM THE APPELLANT AN D MR SHABBIR V KURESHI THROUGH WHOM PURCHASES OF VARIOUS LANDS AT MAKARB A WERE MADE. FURTHER, IT IS SEEN THAT ENQUIRIES WERE ALSO CONDUCTED BY THE A.O DURING ASSESSMENT IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 15 PROCEEDINGS TO VERIFY THE PURCHASES OF LAND MADE BY THE MASTER GROUP, BY ISSUING SUMMONS TO THE SUB REGISTRAR'S OFFICE(SRO), AHMEDAB AD, AND OBTAINING CERTIFIED COPIES OF THE BANAKHATS AND SALE DEEDS PERTAINING T O THE SURVEY NOS UNDER QUESTION. IT .IS EVIDENT FROM ALL THE INFORMATION C OLLECTED AND THE INTRODUCTION OF SHABBIR KURESHI THROUGH WHOM LAND WAS PURCHASED, TH AT PURCHASES WERE SHOWN TO HAVE BEEN MADE AT A MUCH LOWER RATE THAN THE ACT UAL RATE OF LAND. CONSIDERING THE FACTS OF THE CASE, I AM OF THE VIEW THAT RS.4,23,36,714/-, WHICH WAS THE DIFFERENCE BETWEEN THE ACTUAL RATE OF LAND, AND THE RATE AS PER THE SALE DEED, WAS RIGHTLY TREATED AS UNDISCLOSED INVESTMENT BY THE A.O. THEREFORE THE ADDITION OF RS.1,41,12,238/-, WHICH IS THE APPELLAN T'S SHARE OUT OF THE TOTAL SUPPRESSION OF PURCHASE PRICE, IS CONFIRMED. GROUND OF APPEAL NO 3 IS DISMISSED. 34. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 35. THE LEARNED AR BEFORE US SUBMITTED THAT THE IMPUGNE D DRAFT DEED WAS A DUMP DOCUMENT WHICH WAS NOT EXECUTED AT ALL. THEREFORE, THERE CANNOT BE ANY ADDITION ON ACCOUNT OF SUCH DRAFT DEED. 36. ON THE OTHER HAND THE LEARNED DR BEFORE US VEHEMENT LY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 37. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS REGARD, WE N OTE THAT THERE WAS NO MATERIAL AVAILABLE WITH THE REVENUE SUGGESTING THAT THERE WA S ANY PAYMENT OF CASH MADE BY THE ASSESSEE TO THE CONCERNED PARTIES AS DISCUSS ED ABOVE. IT IS ALSO PERTINENT TO NOTE THAT THE AO DURING THE ASSESSMENT PROCEEDIN GS HAS NOT VERIFIED THE VERACITY OF THE IMPUGNED DRAFT DEED FROM THE PARTIE S NAMELY LAXMANJI SON, IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 16 BHAGVATIJI AND VIKRAMJI. AS SUCH THE LAND IN DISPUT E WAS PURCHASED BY THE ASSESSEE FROM THE OTHER PARTIES NAMELY SHRI SANJAY JAYNTILAL PATEL, DHIRAJBHAI BHARATKUMAR PATEL AND URMILBHAI GANDHIBHAI PATEL. T HUS IN OUR CONSIDERED VIEW THERE CANNOT BE ANY ADDITION BASED ON SUCH DRA FT DEED IN THE HANDS OF THE ASSESSEE IN THE GIVEN FACTS AND CIRCUMSTANCES. IN V IEW OF THE ABOVE, WE ARE NOT CONVINCED WITH THE FINDING OF THE AUTHORITIES BELOW . ACCORDINGLY, WE SET ASIDE THE FINDING OF THE LEARNED CIT (A) AND DIRECT THE A O TO THE ADDITION MADE BY HIM. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 38. THE 3 RD ISSUE RAISED BY THE ASSESSEE IN GROUND NUMBER 4 IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 48,793 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY. 39. THE AO DURING THE ASSESSMENT PROCEEDINGS BASED ON S OME RETAIL INVOICE FOUND THAT THE ASSESSEE HAS PURCHASED JEWELLERY AMOUNTING TO RS. 48,793/-. BUT THE ASSESSEE FAILED TO JUSTIFY THE SOURCE OF CASH FOR T HE PURCHASE OF THE JEWELLERY. THE AO FURTHER OBSERVED THAT THE ASSESSEE HAS NEITH ER FILED WEALTH TAX NOR SHOWN THE JEWELLERY IN BOOKS OF ACCOUNT. ACCORDINGL Y THE AO ADDED THE SAME TO INCOME OF THE ASSESSEE U/S 69B OF THE ACT, IN AB SENCE OF SATISFACTORY EXPLANATION. 40. AGGRIEVED ASSESSEE CARRIED THE MATTER BEFORE LEARNE D CIT (A) WHO CONFIRMED THE ORDER OF THE AO. 41. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) ASSESSEE IS N APPEAL BEFORE US. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 17 42. THE LEARNED AR OF ASSESSEE BEFORE US SUBMITTED THE IMPUGNED JEWELLERY WAS PURCHASED OUT OF THE WITHDRAWAL OF CASH WHICH WAS D ISCLOSED IN THE INCOME TAX RETURN. 43. ON THE CONTRARY THE LEARNED DR VEHEMENTLY SUPPORTED THE FINDING OF THE AUTHORITIES BELOW. 44. WE HEARD THE RIVAL CONTENTION AND PERUSED THE MATER IAL AVAILABLE ON RECORD. AT THE OUTSET, WE NOTE THAT THE ASSESSEE HAS DECLARED SUFFICIENT INCOME IN HER INCOME TAX RETURN FOR THE YEAR UNDER CONSIDERATION. THEREFORE, THE AMOUNT OF INVESTMENT IN THE JEWELLERY, BEING A MEAGER AMOUNT, CAN BE EASILY EXPLAINED FROM THE DISCLOSED INCOME OF THE ASSESSEE. ACCORDIN GLY, WE ARE OF THE VIEW THAT NO SEPARATE ADDITION CAN BE MADE ON ACCOUNT OF THE INVESTMENT IN THE IMPUGNED JEWELLERY IN THE GIVEN FACTS OF CIRCUMSTAN CES. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LEARNED CIT (A) AND DIRECT T HE AO TO DELETE THE ADDITION MADE BY HIM. HENCE THE GROUND OF APPEAL OF THE ASSE SSEE IS ALLOWED. 45. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. 46. IN THE CASE OF SHRI RAMESHBHAI JIVRAJ DESAI IN IT(S S)A NO. 107/AHD/2017 FOR A.Y. 2008-09, THE GROUNDS OF APPEA L RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1.1 THE ORDER PASSED U/S.250 ON 27.12.2016 FOR A.Y.2008-09 BY CIT(A)-7, ABAD UPHOLDING THE VALIDITY OF PROCEEDINGS U/S.153A OF T HE ACT AS WELL AS THE ADDITION OF RS.1,82,49,065/- AS UNACCOUNTED PROFIT IN RESPEC T OF LAND TRANSACTIONS IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 18 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITION. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2008- 09, THOUGH THE CONDITIONS PRECEDENTS WERE NOT FULFI LLED. THEREFORE, THE NOTICE AS WELL AS PROCEEDINGS U/S.153A(1) WERE WHOLLY ILLEGAL AND UNLAWFUL IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH FOR THIS YEAR 2.3 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2008-09. 3.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS. 1,82,49,065/- AS UNACCOUNTED PROFIT IN RESPECT OF LAND TRANSACTIONS. 3.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THE APPELLANT HAD FAILED TO PRODUCE DOCUMENTS IN RESPEC T OF PURCHASE AND SALE OF LAND. 3.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THERE WAS UNACCOUNTED PROFIT OF RS.5,47,47,196/- IN RESPE CT OF LANDS AT SARKHEJ VILLAGE WITH APPELLANT'S 1/3 SHARE AT RS.1,82,49,065/- AND THE DIVERSION TO THE BOOKS OF RJD IMPEX PVT. LTD. WAS A SHAM TRANSACTION AS WELL AS EXPLAIN SATISFACTORILY THE IMPUGNED AMOUNT AS WELL AS MAKE REQUEST FOR ADMISSI ON OF ADDITIONAL EVIDENCE. IT IS, THEREFORE, PRAYED THAT THE ADDITION OF RS. 1,82,49,065/-AND VALIDITY U/S.153A(1) UPHELD BY THE CIT(A) MAY KINDLY BE DELE TED. 47. AT THE OUTSET WE NOTE THAT THE TECHNICAL ISSUE RAIS ED BY THE ASSESSEE IN GROUND 1 & 2 CHALLENGING THE VALIDITY OF THE ASSESSMENT FRAM ED UNDER SECTION 153A OF THE ACT IS IDENTICAL TO THE ISSUE RAISED IN THE CAS E OF SHRI RAJNIBHAI JIVRAJ DESAI IN ITA NO. 104/AHD/2017 WHICH HAS BEEN DECIDED BY U S IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO.14 & 15 OF THIS ORDER. F OR THE DETAIL DISCUSSION PLEASE REFER THE RELEVANT PARAGRAPH AS DISCUSSED AB OVE. THEREFORE RESPECTFULLY FOLLOWING THE SAME AND TO MAINTAIN PARITY WITH THE FINDINGS, WE ALLOW THE TECHNICAL GROUND RAISED BY THE ASSESSEE IN HIS FAVO UR WITHOUT GOING INTO THE MERIT OF THE CASE. 48. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 19 49. IN IT(SS)A NO. 129/AHD/2017 FOR A.Y. 2008-09, THE G ROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN NOT APPRECIATIN G THE PROVISIONS OF SECTION 153A OF THE I.T. ACT WHICH REQUIRES THE TOTAL INCOM E TO BE BROUGHT UNDER TAX WITHOUT ANY RESTRICTION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN HOLDING THAT SU CH ASSESSMENT OR REASSESSMENT U/S 153A IS TO BE RESTRICTED ONLY TO THE INCRIMINAT ING MATERIALS FOUND DURING THE SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE DI SALLOWANCE U/S 40A(3) OF THE ACT OF RS.33,13,000/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE DI SALLOWANCE OF INTEREST OF RS. 58,06,303/- PAID TO MASTER DEVELOPERS & AMAR CONSTR UCTION. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION OF RS.38,48,000/- ON ACCOUNT OF INFORMATION AS PER SEIZED MATERIAL. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 7. IT IS, THEREFORE, PRAYED THAT THE ORDER OF TH E LD. CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 50. AT THE OUTSET WE NOTE THAT THE DELETION OF THE ADDI TIONS CHALLENGED BY THE REVENUE IN THE PRESENT APPEAL REPRESENTS THE REGULA R ITEMS OF ASSESSMENT FOR THE YEAR UNDER CONSIDERATION BEING UNABATED ASSESSM ENT YEAR. WE ALSO FIND THAT THE ITAT IN THE GROUP CASES OF THE ASSESSEE IN ITA 167 TO 170/AHD/2017 VIDE ORDER DATED 26-2-2019 INVOLVING IDENTICAL FACT S AND CIRCUMSTANCES HAS DELETED THE ADDITION MADE BY THE AO AS THESE ADDITI ONS WERE NOT BASED ON ANY INCRIMINATING DOCUMENTS. THE RELEVANT EXTRACT OF TH E ORDER IS REPRODUCED BELOW. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 20 51. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE ORDER AS DISCUSSED AFORESAID AND TO MAINTAIN PARITY WITH THE FINDINGS, WE DISMIS S THE GROUNDS OF APPEAL OF THE REVENUE WITHOUT GOING INTO THE MERIT OF THE CAS E. 52. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSE D. 53. IN IT(SS)A NO. 108/AHD/2017 FOR A.Y. 2009-10, THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1.1 THE ORDER PASSED U/S.250 ON 26.12.2016 FOR A.Y.2009-10 BY CIT(A)-7, ABAD UPHOLDING THE VALIDITY OF PROCEEDINGS U/S.153A OF T HE ACT AS WELL AS THE ADDITION OF RS.3,83,40,000/-AS UNACCOUNTED PROFIT IN RESPECT OF LAND TRANSACTIONS 6T BAD DEBTS OF RS. 94,14,513/-IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITION. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2009- 10, THOUGH THE CONDITIONS PRECEDENTS WERE NOT FULFI LLED. THEREFORE, THE NOTICE AS WELL AS PROCEEDINGS U/S.153A(1) WERE WHOLLY ILLEGAL AND UNLAWFUL IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH FOR THIS YEAR. 2.1 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2009-10. 3.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS.3,83,40,000/-AS UNACCOUNTED PROFIT I N RESPECT OF LAND TRANSACTIONSWITHRS.M/S RAJ CORPORATION AS UNACCOUNT ED PROFIT IN RESPECT OF LAND TRANSACTIONS. 3.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THE APPELLANT HAD FAILED TO PRODUCE DOCUMENTS IN RESPEC T OF PURCHASE AND SALE OF LAND. 3.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THERE WAS UNACCOUNTED PROFIT OF RS.3,83,40,000/- IN RESPE CT OF LANDS AT TRAGADVILLAGE WHICH WAS THE DIVERSION TO THE BOOKS OF RJD IMPEX P VT. LTD.( CORRECT IS M/S RAJ CORPORATION) WAS A SHAM TRANSACTION AS WELL AS EXPL AIN SATISFACTORILY THE IMPUGNED AMOUNT AS WELL AS MAKE REQUEST FOR ADMISSI ON OF ADDITIONAL EVIDENCE. 4.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE DISALLOWANCE OF BAD DEBTS/BUSINESS LOSS OF RS.94,14 ,513/-. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 21 4.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELDTHE DISALLOWANCE OF BAD DEBTS/BUSINESS LOSS OF RS. 94,14,513/-. IT IS, THEREFORE, PRAYED THAT THE ADDITION/ DISALLO WANCE OF RS.3,83,40,000/-&RS. 94,14,513/-AND VALIDITY U/S.153A(1) UPHELD BY THE C IT(A) MAY KINDLY BE DELETED. 54. AT THE OUTSET WE NOTE THAT THE TECHNICAL ISSUE RAIS ED BY THE ASSESSEE IN GROUND 1 & 2 CHALLENGING THE VALIDITY OF THE ASSESSMENT FRAM ED UNDER SECTION 153A OF THE ACT IS IDENTICAL TO THE ISSUE RAISED IN THE CAS E OF SHRI RAJNIBHAI JIVRAJ DESAI IN ITA NO. 104/AHD/2017 WHICH HAS BEEN DECIDED BY U S IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO. 14 & 15 OF THIS ORDER. FOR THE DETAIL DISCUSSION PLEASE REFER THE RELEVANT PARAGRAPH AS DISCUSSED AB OVE. THEREFORE RESPECTFULLY FOLLOWING THE SAME AND TO MAINTAIN PARITY WITH THE FINDINGS, WE ALLOW THE TECHNICAL GROUND RAISED BY THE ASSESSEE IN HIS FAVO UR WITHOUT GOING INTO THE MERIT OF THE CASE. 55. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 56. IN THE CASE OF SHRI RAJESHBHAI JIVRAJ DESAI IN IT(S S)A NO. 110/AHD/2017 FOR A.Y. 2008-09, THE GROUNDS OF APPEA L RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1.1 THE ORDER PASSED U/S.250 ON 27.12.2016 FOR A.Y.2008-09 BY CIT(A)-7, ABAD UPHOLDING THE VALIDITY OF PROCEEDINGS U/S.153A OF T HE ACT AS WELL AS THE ADDITION OF RS.1,82,49,065/- AS UNACCOUNTED PROFIT IN RESPEC T OF LAND TRANSACTIONS IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITION. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2008- 09, THOUGH THE CONDITIONS PRECEDENTS WERE NOT FULFI LLED. THEREFORE, THE NOTICE AS WELL AS PROCEEDINGS U/S.153A(1) WERE WHOLLY ILLEGAL AND UNLAWFUL IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH FOR THIS YEAR. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 22 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2008-09. 3.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS. 1,82,49,065/- AS UNACCOUNTED PROFIT IN RESPECT OF LAND TRANSACTIONS. 3.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THE APPELLANT HAD FAILED TO PRODUCE DOCUMENTS IN RESPEC T OF PURCHASE AND SALE OF LAND. 3.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THERE WAS UNACCOUNTED PROFIT OF RS.5,47,47,196/- IN RESPE CT OF LANDS AT SARKHEJ VILLAGE WITH APPELLANT'S 1/3 SHARE AT RS.1,82,49,065/- AND THE DIVERSION TO THE BOOKS OF RJD IMPEX PVT. LTD. WAS A SHAM TRANSACTION AS WELL AS EXPLAIN SATISFACTORILY THE IMPUGNED AMOUNT AS WELL AS MAKE REQUEST FOR ADMISSI ON OF ADDITIONAL EVIDENCE. IT IS, THEREFORE, PRAYED THAT THE ADDITION OF RS. 1,82,49,065/-AND VALIDITY U/S.153A(1) UPHELD BY THE CIT(A) MAY KINDLY BE DELE TED. 57. AT THE OUTSET WE NOTE THAT THE TECHNICAL ISSUE RAIS ED BY THE ASSESSEE IN GROUND 1 & 2 CHALLENGING THE VALIDITY OF THE ASSESSMENT FRAM ED UNDER SECTION 153A OF THE ACT IS IDENTICAL TO THE ISSUE RAISED IN THE CAS E OF SHRI RAJNIBHAI JIVRAJ DESAI IN ITA NO. 104/AHD/2017 WHICH HAS BEEN DECIDED BY U S IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO. 14 & 15 OF THIS ORDER. FOR THE DETAIL DISCUSSION PLEASE REFER THE RELEVANT PARAGRAPH AS DISCUSSED AB OVE. THEREFORE RESPECTFULLY FOLLOWING THE SAME AND TO MAINTAIN PARITY WITH THE FINDINGS, WE ALLOW THE TECHNICAL GROUND RAISED BY THE ASSESSEE IN HIS FAVO UR WITHOUT GOING INTO THE MERIT OF THE CASE. 58. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 59. IN IT(SS)A NO. 111/AHD/2017 FOR A.Y. 2009-10, THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1.1 THE ORDER PASSED U/S.250 ON 26.12.2016 FOR A.Y.2009-10 BY CIT(A)-7, ABAD UPHOLDING THE VALIDITY OF PROCEEDINGS U/S.153A OF T HE ACT AS WELL AS THE ADDITION IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 23 OF RS. 5,35,63,900/-AS UNACCOUNTED PROFIT IN RESPEC T OF LAND TRANSACTIONS IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITION. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2009- 10, THOUGH THE CONDITIONS PRECEDENTS WERE NOT FULFI LLED. THEREFORE, THE NOTICE AS WELL AS PROCEEDINGS U/S.153A(1) WERE WHOLLY ILLEGAL AND UNLAWFUL IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH FOR THIS YEAR. 2.3 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2009-10. 3.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS. 5,35,63,900/-AS UNACCOUNTED PROFIT IN RESPECT OF LAND TRANSACTIONSWITHRS.M/S RAJ CORPORATION AS UNACCOUNT ED PROFIT IN RESPECT OF LAND TRANSACTIONS. 3.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THE APPELLANT HAD FAILED TO PRODUCE DOCUMENTS IN RESPEC T OF PURCHASE AND SALE OF LAND. 3.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THERE WAS UNACCOUNTED PROFIT OF RS.5,35,63,900/- IN RESPE CT OF LANDS AT TRAGADVILLAGE WHICH WAS THE DIVERSION TO THE BOOKS OF RJD IMPEX P VT. LTD.( CORRECT IS M/S RAJ CORPORATION) WAS A SHAM TRANSACTION AS WELL AS EXPL AIN SATISFACTORILY THE IMPUGNED AMOUNT AS WELL AS MAKE REQUEST FOR ADMISSI ON OF ADDITIONAL EVIDENCE. IT IS, THEREFORE, PRAYED THAT THE ADDITION OF RS .5,35,63,900/-AND VALIDITY U/S.153A(1) UPHELD BY THE CIT(A) MAY KINDLY BE DELE TED. 60. AT THE OUTSET WE NOTE THAT THE TECHNICAL ISSUE RAIS ED BY THE ASSESSEE IN GROUND 1 & 2 CHALLENGING THE VALIDITY OF THE ASSESSMENT FRAM ED UNDER SECTION 153A OF THE ACT IS IDENTICAL TO THE ISSUE RAISED IN THE CAS E OF SHRI RAJNIBHAI JIVRAJ DESAI IN ITA NO. 104/AHD/2017 WHICH HAS BEEN DECIDED BY U S IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO. 14 & 15 OF THIS ORDER. FOR THE DETAIL DISCUSSION PLEASE REFER THE RELEVANT PARAGRAPH AS DISCUSSED AB OVE. THEREFORE RESPECTFULLY FOLLOWING THE SAME AND TO MAINTAIN PARITY WITH THE FINDINGS, WE ALLOW THE TECHNICAL GROUND RAISED BY THE ASSESSEE IN HIS FAVO UR WITHOUT GOING INTO THE MERIT OF THE CASE. IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 24 61. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 62. IN IT(SS)A NO. 112/AHD/2017 FOR A.Y. 2011-12, THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1.1 THE ORDER PASSED U/S.250 ON 26.12.2016 FOR A.Y.2011-12 BY CIT(A)-7, ABAD UPHOLDING THE VALIDITY OF PROCEEDINGS U/S.153A OF T HE ACT AS WELL AS ALLEGED SUPPRESSED PURCHASE PRICE OF RS. 1,41,12,238/- IN R ESPECT OF LANDS AT VILLAGE: MAKARBA. IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST TH E PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITION. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2011- 12, THOUGH THE CONDITIONS PRECEDENTS WERE NOT FULFI LLED. THEREFORE, THE NOTICE AS WELL AS PROCEEDINGS U/S.153A(1) WERE WHOLLY ILLEGAL AND UNLAWFUL IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH FOR THIS YEAR. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF PROCEEDINGS AS WELL AS NOTICE U/S.153A DATED 19.11.2013 FOR A.Y.2011-12. 3.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION ASALLEGED SUPPRESSED PURCHASE PRICE OF RS. 1,41,12,238/- IN RESPECT OF LANDS AT VILLAGE: MAKARBA. 3.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THE APPELLANT HAD FAILED TO PRODUCE DOCUMENTS IN RESPEC T OF PURCHASE AND SALE OF LAND. 3.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN HOLDING THAT THERE WAS SUPPRESSED PURCHASE PRICE OF RS. 1,41,12,238/- IN RESPECT OF LANDS AT VILLAGE: MAKARBA. IT IS, THEREFORE, PRAYED THAT THE ADDITION OF RS. 1,41,12, 238/-AND VALIDITY U/S.153A(1) UPHELD BY THE CIT(A) MAY KINDLY BE DELE TED. 63. AT THE OUTSET WE NOTE THAT THE IDENTICAL ISSUED RAI SED IN THE CASE OF SHRI RAJNIBHAI JIVRAJ DESAI IN ITA NO. 106/AHD/2017 WHIC H HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO. 20 TO 24 AND 37 OF THIS ORDER. FOR THE DETAIL DISCUSSION PLEASE REFER THE RELEVANT PARAGRAPH AS DISCUSSED ABOVE. THEREFORE RESPECTFULLY FOLLOWING THE SAME AND TO MA INTAIN PARITY WITH THE IT(SS)A NOS. 104 & 106/AHD/2017 & OTHERS . A.YS. 2008-09, 20 09-10 & 2011- 12 25 FINDINGS, WE ALLOW THE TECHNICAL GROUND RAISED BY T HE ASSESSEE IN HIS FAVOUR WITHOUT GOING INTO THE MERIT OF THE CASE. 64. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED . 65. IN THE COMBINED RESULT, IN IT(SS)A NO. 104/AHD/2017 ASSESSEES APPEAL IS PARTLY ALLOWED, IT(SS)A NO. 106/AHD/2017 ASSESSEES APPEAL IS ALLOWED, IT(SS)A NO. 107/AHD/2017 ASSESSEES APPEAL IS PARTL Y ALLOWED, IT(SS)A NO. 129/AHD/2017 REVENUES APPEAL IS DISMISSED, IN IT(S S)A NO. 108/AHD/2017 ASSESSEES APPEAL IS PARTLY ALLOWED, IN IT(SS)A NO. 110/AHD/2017 ASSESSEES APPEAL IS PARTLY ALLOWED, IN IT(SS)A NO. 111/AHD/20 17 ASSESSEES APPEAL IS PARTLY ALLOWED AND IT(SS)A NO. 112/AHD/2017 ASSESSE ES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 17- 01- 2020 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 17/01/2020 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD