Shri Harshad K.Patel, Ahmedabad V. The Dy.CIT.,Circle-6, Ahmedabad

ITSSA 142/AHD/2011

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7851 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 26-07-2017
• Assessment Year: misc
• Appeal Filed On: 21-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital asset; Income from undisclosed sources; Document seized; Principle of natural justice; Retrospective amendment; Question of law; Fair market value; Bad and doubtful debts; Validity of assessment; Block assessment; Documents seized
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER 1.IT(SS)A NO.142/AHD/2011 & 2.IT(SS)A NO.239/AHD/2011 (BLOCK ASSESSMENT PERIOD : 01/4/1986 TO 21/1/1997 ) 1.SHRI HARSHAD K. PATEL L/H. OF SHRI KANTILAL P.PATEL NR.PRIYA CINEMA, KRISHNANAGAR SAIJPUR BOGHA,AHMEDABAD 2. THE ACIT CIRCLE-6 AHMEDABAD VS. 1.THE DY.COMM.OF INCOME TAX CIRCLE-6 AHMEDABAD 2. SHRI HARSHAD K.PATEL SAIJPUR BOGHA, AHMEDABAD [PAN NO . AIHPP 3782 D] ( APPELLANTS ) .. ( RESPONDENTS ) ASSESSEE BY : SHRI ASEEM THAKKAR, AR REVENUE BY : SHRI ANSHU PRAKASH, SR.DR DATE OF HEARING 01/11/2018 DATE OF PRONOUNCEMENT 01/ 01 /2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AND REVENUE AGAINST THE ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS)XI, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-XI/832/08-09 DATED 23/12/2010 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S. 158BD R.W.S.158BC, 143(3) & 2 54 OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS 'THE ACT') DATED 26/12/2008 RELEVANT TO BLOCK ASSESSMENT PERIOD 01/04/1986 TO 2 1/01/2997. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 2 - 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN DISMISSING THE GROUND NOS.1 TO 4 OF THE APPEAL RAIS ED BY THE APPELLANT AS UNDER: 1.1. THE LEARNED ASSESSING OFFICER HAS ERRED IN PASSING AN ORDER U/S.158BD RWS. 158BC, 143(3) & 254 OF THE INCOME TAX ACT, 196 1 WHICH IS ILLEGAL AND BAD IN LAW. 1.2. THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN N OT APPRECIATING THE FACT THAT SATISFACTION RECORDED BY THE A.O. OF THE SEARCHED P ARTY IS SUBSEQUENT TO THE TIME LIMIT FOR COMPLETION OF BLOCK ASSESSMENT OF TH E SEARCHED PARTY .AS A CONSEQUENCE OF THIS THE ASSESSMENT MADE IN THE CASE OF APPELLANT IS BAD IN LAW AND SHOULD BE ANNULLED. 1.3. THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT APPRECIATING THE FACT THAT THE NOTICE ISSUED U/S.158BD OF THE I.T.ACT, 1961 IS VAGUE & DOES NOT MENTION THE DETAILS OF UNDISCLOSED INCOME, NAME, OF THE SEA RCHED PARTY, DATE OF SEARCH ETC. IN A PRESCRIBED FORMAT. THE BLOCK ASSESSMENT M ADE U/S.158BD OF THE ACT IN CONSEQUENCE OF SUCH NOTICE DESERVES TO BE QUASHE D 1.4. THE LEARNED ASSESSING OFFICER HAS ERRED IN PAS SING THE BLOCK ASSESSMENT ORDER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE & EQUITY. THE A.O. HAS NOT EVEN GIVEN A SINGLE SHOW CAUSE NOTICE INDICATING TH E ITEMS HE PROPOSE TO TREAT AS UNDISCLOSED INCOME IN SPITE OF SPECIFIC INTIMATI ON MADE TO HIM VIDE LETTER DTD. 12.12.2008. 2. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN C OMPUTING THE YEAR WISE UNDISCLOSED INCOME BY MAKING ADDITIONS AND COMPUTIN G THE TOTAL UNDISCLOSED INCOME OF THE APPELLANT ON THE BASIS OF THE SEIZED MATERIALS FOUND AT THE TIME OF SEARCH IN SHAYM GROUP AND ON THE BASIS OF STATEMENT OF SHRI BHAGWANBHAI P.PATEL. HE OUGHT TO HAVE CONSIDERED THE FACT THAT THE LEGAL HEIR OF THE APPELLANT HAS NO KNOWLEDGE OF SUCH TRANSACTIONS AND ARE NOT PERTAINING TO HIS FATHER'S BUSINESS. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 3 - 3. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN NOT ADJUDICATING THE GROUND NO.7 OF THE APPEAL WHICH RE ADS AS UNDER:- THE LEARNED ASSESSING OFFICER HAS ERRED IN ESTIMATI NG THE BROKERAGE INCOME OF THE APPELLANT AS UNDER- A.YRS. INCOME IN RS. 1987- 88 40,000/- 1988-89 40,000/- 1989-90 40,000/- 1990-91 40,000/- 1991-92 40,000/- 1992-93 50,000/- 1993-94 50,000/- 1994-95 60,000/- 1995-96 60,000/- 1996-97 70,000/- 1997-98 1,80,000/- 4. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.2,45,000/- IN A.YR.19 96-97 FOR ALLEGED UNDISCLOSED PROFIT EARNED BY THE APPELLANT FOR 25% SHARE IN THE LAND SOLD AT MAHADEVNAGAR. 5. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.4,00,000/- MADE BY TH E ASSESSING OFFICER FOR THE ALLEGED INTEREST AMOUNT RECEIVED BY THE APPELLANT I N A.YR.1996-97. 6. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF RS. 16,00, 000/- AS THE ALLEGED AMOUNT RECEIVED BY THE APPELLANT FOR RENOUNCEMENT OF SHARE OF UMIYA FARM LAND IN A. YR. 1997-98. 7. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF RS.29,82,4 97/- AS UNDISCLOSED INCOME FOR THE ALLEGED PROFIT EARNED IN LAND TRANSACTION O F NAVANARODA IN A.YR. 1997- 98. 8. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.9,36,000/- MADE BY TH E ASSESSING OFFICER FOR THE IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 4 - ALLEGED BROKERAGE INCOME FROM LAND TRANSACTION OF D HANSURA TALUKA (HILL STATION LAND) IN A.YR. 1997-98. 9. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN C HARGING INTEREST U/S.158BFA(1) OF THE I.T. ACT, 1961. 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED I N LAW AND ON FACTS IN RESTRICTING THE ADDITION MADE ON ACCOUNT O F RENOUNCEMENT OF SHARES OF UMIYA FARM LAND FROM 28,00,000/- TO 16,00,000/-. 2. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION MADE ON ACCOUNT O F PROFIT EARNED IN LAND TRANSACTION IN NAVA NARODA FROM 52,18,250/- TO 29,892,497/-. 3. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF 45,93,560/- BEING CASH PAID BY BHAGWANBHAI K.PATEL, TREATED AS CONCEALED INCOME. 4. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF 8,00,000/- BEING BROKERAGE PAID TO SHRI KANTILAL. 5. ON THE FACTS AN CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. 3. FIRST, WE TAKE UP ASSESSEES APPEAL IN ITA(SS) NO.142/AHD/2011. THE ASSESSEE IN GROUND NO.1 HAS CHALLENGED THE ASSESSME NT ORDER FRAMED U/S 158BD R.W.S.158BC, 143(3) AND 254 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT'). 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF LAND BROKERAGE. THERE W AS A SEARCH CONDUCTED IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 5 - U/S 132 OF THE ACT AT THE RESIDENTIAL/OFFICE PREMIS ES OF SHRI BHAGWANBHAI K. PATEL WHO IS THE PRINCIPAL PERSON OF SHYAM GROUP . THE SEARCH WAS CARRIED OUT ON 21/01/1997. 4.1. DURING THE SEARCH, CERTAIN PAPERS WERE SEIZED INCLUDING THE DIARY MARKED A-5. THE SAID DIARY, A-5 WAS CONTAINING THE FINANCIAL TRANSACTIONS OF THE ASSESSEE. THEREFORE, THE PROCE EDINGS U/S 158BD WAS INITIATED AGAINST THE ASSESSEE ON 10/03/1999 BY ISS UING NOTICE U/S 158BD OF THE ACT. THE ASSESSEE IN RESPONSE TO THE NOTICE FILED HIS RETURN OF INCOME FOR THE BLOCK PERIOD BEGINNING FROM 01/04/19 86 TO 21/01/1997 DECLARING NIL UNDISCLOSED INCOME. 5. AT THE OUTSET, THE LD. AR BEFORE US CHALLENGED THE VALIDITY OF ASSESSMENT FRAMED U/S 158BD OF THE ACT ON THE GROUN D THAT THE ASSESSING OFFICER OF THE SEARCHED PARTY RECORDED TH E SATISFACTION AFTER THE TIME LIMIT AS SPECIFIED U/S 158BD R.W.S. 158BE OF T HE ACT. HOWEVER, SUBSEQUENTLY, THE LD. COUNSEL FOR THE ASSESSEE CONC EDED THE FACT THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE AND ACCORDING LY HE DID NOT ADVANCE ANY ARGUMENT ON THE ISSUE OF THE VALIDITY OF ASSESS MENT ORDER. 7. ON THE OTHER HAND, THE LD. DR VEHEMENTLY SUPPORT ED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR FOR THE ASSESSEE D URING HEARING HAD IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 6 - FAIRLY CONCEDED THAT THE ISSUE STANDS AND COVERED A GAINST THE ASSESSEE. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDE RS OF AUTHORITIES BELOW. HENCE, THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 9. THE SECOND GROUND RAISED BY THE ASSESSEE IS GENE RAL WHICH REQUIRES NO INDEPENDENT ADJUDICATION. THEREFORE WE DISMISS T HE SAME. 10. THE ISSUE RAISED IN GROUND NO. 3 IS THAT THE LD . CIT(A) ERRED IN NOT ADJUDICATING THE GROUND RAISED BEFORE THE LD. CIT(A ). THERE WAS EX-PARTE ASSESSMENT FRAMED U/S 143(3) OF THE ACT VIDE ORDER DATED 17/03/1997 PERTAINING TO AY 1997-98 WHEREIN B ROKERAGE INCOME WAS ESTIMATED AT RS. 1,80,000/- ONLY. HOWEVER, THE ADDITION MADE BY THE ASSESSING OFFICER WAS NOT CHALLENGED BY THE ASSESSE E BEFORE THE LD. CIT(A). 11. BECAUSE OF THE ABOVE, THE ASSESSING OFFICER EST IMATED THE BROKERAGE INCOME FOR ALL THE YEARS OF THE BLOCK PERIOD AS DET AILED UNDER: SL. NO. AYS AMOUNT (RS.) GROSS (RS.) 1. 1987-88 TO 1991-92 RS.40,000/- PER AY RS.2,00,000/- 2. 1992-93 TO 1993-94 RS.50,000/- PER AY RS.1,00,000/- 3. 1994-95 TO 1995-96 RS.60,000/- PER AY RS.1,20,000/- 4. 1996-97 RS.70,000/- RS.70,00/- TOTAL RS.4,90,000/- IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 7 - THE ABOVE INCOME ON ACCOUNT OF BROKERAGE WAS ESTIM ATED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 12. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE L D. CIT(A) VIDE GROUND NO.6, BUT THE LD. CIT-A DID NOT ADJUDICATE T HE SAME. THE ASSESSEE DUE TO NON-ADJUDICATION OF THE GROUND OF A PPEAL RAISED BY HIM BEFORE THE LD. CIT(A) IS IN APPEAL BEFORE US. 13. THE LD. AR BEFORE US FILED A PAPER-BOOK RUNNING FROM PAGES 1 TO 124 AND SUBMITTED THAT THE UNDISCLOSED INCOME HAS T O BE DETERMINED BY MATERIAL FOUND DURING SEARCH PROCEEDINGS. AS SUCH THE REGULAR INCOME CANNOT BE THE SUBJECT MATTER OF THE SEARCH PROCEEDI NGS. THE PROCEEDINGS FOR THE BLOCK PERIOD AND REGULAR ASSESSMENT ARE SEP ARATE AND DISTINCT. 13.1. THE LD. AR RELIED UPON THE DECISION OF HONBL E GUJARAT HIGH COURT IN THE CASE OF CIT VS. SHAMBHULAL C. BACHKANI WALA (2000) 245 ITR 488 (GUJ.) WHEREIN IT WAS HELD AS UNDER: SECTION 158BC, READ WITH SECTION 256(2), OF THE I NCOME-TAX ACT, 1961 BLOCK ASSESSMENT IN SEARCH CASES PROCEDURE FOR TRIBUNAL HELD THAT ADDITION SOUGHT TO BE MADE BY RE JECTING TRADING ACCOUNTS AND ESTIMATING HIGHER GROSS PROFIT COULD B E MADE ONLY FOR REGULAR ASSESSMENT OR REASSESSMENT FRAMED UNDER CHA PTER XIV AND NOT IN BLOCK ASSESSMENT WHICH WAS REQUIRED TO B E COMPLETED UNDER SECTION 158BC IN CHAPTER XIV-B WHETHER, IN VIEW OF DECISION IN N.R. PAPER & BOARDS LTD. VS. DY.CIT [1 998] 101 TAXMAN 525 (GUJ.) AS ALSO RETROSPECTIVE AMENDMENT I N SECTION IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 8 - 158BA, ANY QUESTION OF LAW AROSE FROM TRIBUNALS OR DER HELD NO. THE LD. AR ALSO RELIED UPON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF YOGESH KIRCHAND SHAH VS. ACIT (2014) 224 TAXMAN 54 (GUJ.) (MAG.) WHEREIN IT WAS HELD AS UNDER: SECTION 158B OF THE INCOME-TAX ACT, 1961 BLOCK A SSESSMENT IN SEARCH CASES UNDISCLOSED INCOME (WHERE NO MATERI AL SEIZED) BLOCK PERIOD OF 1-4-1992 TO 25-5-2001 WHETHER, IN BLOCK ASSESSMENT PROCEEDING ESTIMATION OF JOB CHARGE INCO ME COULD NOT BE MADE BY ASSESSING OFFICER WITHOUT ANY SEIZED MAT ERIAL TO JUSTIFY SAME HELD, YES [PARAS 21 & 22] [IN FAVOUR OF ASSE SSEE]. BECAUSE OF THE ABOVE PROPOSITION, AN ADDITION NOT H AVING BEEN MADE BY THE MATERIAL FOUND DURING SEARCH PROCEEDINGS, THE A DDITION SO MADE DESERVES TO BE DELETED. 14. ON THE OTHER HAND, THE LD. DR VEHEMENTLY SUPPOR TED THE ORDER OF THE ASSESSING OFFICER. 15. WE HAVE HEARD THE LD. REPRESENTATIVES APPEARED BEFORE US FOR THE RESPECTIVE PARTIES. WE HAVE PERUSED THE RELEVANT M ATERIALS AVAILABLE ON RECORD. AS PER PROVISIONS OF LAW CONTAINED UNDER SECTION 253 OF THE ACT, THE ASSESSEE CAN FILE AN APPEAL BEFORE THE ITAT IF THE ORDER OF THE LD. CIT-A AGGRIEVES HIM. THERE IS NO AMBIGUITY THAT THE RE WAS NO ORDER ON THE GROUND OF APPEAL RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A). THEREFORE, IN OUR CONSIDERED VIEW, THE MATTER NEEDS TO BE LOOKED INTO IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 9 - AFRESH BY THE LD. CIT(A) AS PER THE GROUND OF APPEA L RAISED BY THE ASSESSEE BEFORE HIM AND AS PER THE PROVISIONS OF LA W. 16. HOWEVER, WE FIND THAT IT IS THE SECOND ROUND OF APPEAL BEFORE US AND TO SEND DOWN THE ISSUE RAISED BY THE ASSESSEE T O THE LD. CIT(A) FOR FRESH ADJUDICATION WILL CONSUME A LOT OF TIME AND E NERGY OF THE ASSESSEE AS WELL AS THE REVENUE. MOREOVER, WE ALSO NOTE THA T THE ISSUE RAISED BY THE ASSESSEE IS WELL SETTLED BY VARIOUS JUDICIAL PR ONOUNCEMENTS AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE IN TH E PRECEDING PARAGRAPH. INCRIMINATING DOCUMENTS FOUND DURING THE SEARCH CAN BE THE BASIS OF THE ADDITION IN THE SEARCH PROCEEDINGS. 17. IN VIEW OF THE ABOVE, WE NOTE THAT THERE REMAIN S NO DOUBT THAT SUCH PROCEEDINGS ARE SPECIAL PROCEEDINGS WHICH REQUIRES THAT THE ADDITION CAN BE SUSTAINED ONLY BY INCRIMINATING MATERIAL FOUND D URING THE SEARCH. THERE IS NO AMBIGUITY IN THE INSTANT CASE THAT THER E WAS NO INCRIMINATING DOCUMENT FOUND DURING SEARCH QUA THE BROKERAGE INCOME AS ESTIMATED BY THE ASSESSING OFFICER. THIS FACT HAS ALSO BEEN RECO RDED IN THE ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER U/S 158BD R.W .S. 158BC OF THE ACT. THUS THE ISSUE ON HAND IS WELL SETTLED BY THE VARIOUS JUDICIAL PRONOUNCEMENTS AS DISCUSSED ABOVE. THEREFORE IN THE INTEREST OF JUSTICE AND FAIR PLAY WE ARE NOT INCLINED TO REMIT THE ISSU E TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION BY THE PROVISIONS OF LAW. THEREFORE, WE ARE INCLINED TO REVERSE THE ORDER OF THE ASSESSING OFFICER IN THE ABSENCE IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 10 - OF ANY INCRIMINATING DOCUMENT FOUND DURING SEARCH QUA THE BROKERAGE INCOME. HENCE, THE GROUND OF APPEAL OF THE ASSESSE E IS ALLOWED. 18. THE ISSUE RAISED IN GROUND NO.4 IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 2,45,000/- AS UNDISC LOSED PROFIT EARNED ON THE SALE OF LAND LOCATED AT MAHADEVNAGAR. 19. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF HON BLE ITAT IN THE CASE OF SHRI BHAGWANBHAI K.PATEL VS. ACIT IN IT(SS)A NO. 325/AHD/2010 VIDE ORDER DATED 25/05/2017. HENCE, WE DISMISS THE GROUND OF APPEAL RAISED BY THE ASSESSEE. 20. THE NEXT ISSUE RAISED BY THE ASSESSEE IN GROUND NO.5 IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.4 LAK HS ON ACCOUNT OF INTEREST INCOME. 21. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF HON BLE ITAT IN THE CASE OF SHRI BHAGWANBHAI K.PATEL VS. ACIT IN IT(SS)A NO. 325/AHD/2010 VIDE ORDER DATED 25/05/2017. HENCE, WE DISMISS THE GROUND OF APPEAL RAISED BY THE ASSESSEE. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 11 - 22. THE NEXT ISSUE RAISED BY THE ASSESSEE IN GROUND NO.6 IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION TO THE EXTE NT OF RS.16,00,000/- ON ACCOUNT OF RENOUNCEMENT OF THE SHARE OF UMIYA FA RM LAND. 23. THE ASSESSING OFFICER DURING THE ASSESSMENT PRO CEEDINGS OBSERVED THAT THE ASSESSEE HAD EARNED A PROFIT OF RS. 28 LAK HS IN RESPECT OF UMIYA FARM LAND WHICH WAS RENOUNCED BY THE ASSESSEE. TH IS FACT WAS ALSO ADMITTED IN THE STATEMENT RECORDED U/S 132(4) OF TH E ACT VIDE QUESTION NO.22 BY SHRI BHAGWANBHAI K.PATEL THAT OUT OF RS. 2 8 LAKHS A SUM OF RS. 16 LAKHS WAS PAID TO THE ASSESSEE IN CASH AND THE B ALANCE RS. 12 LAKHS IS OUTSTANDING. 24. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER WAS OF THE OPINION THAT THERE IS AN UNDISCLOSED INCOME OF RS. 28 LAKHS EARN ED BY THE ASSESSEE IN RESPECT OF UMIYA FARM LAND. ACCORDINGLY, THE ASSES SING OFFICER ADDED A SUM OF RS. 28 LAKHS TO THE TOTAL INCOME OF THE AS SESSEE. 25. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE L D. CIT(A). THE ASSESSEE BEFORE THE LD. CIT(A) SUBMITTED THAT A SUM OF RS. 16 LAKHS HAS ALREADY BEEN ADDED IN THE HANDS OF SHRI BHAGWANBHAI K.PATEL ON SUBSTANTIVE BASIS. BESIDES THIS, AN AMOUNT OF RS. 101 LAKHS WAS ALSO ADDED IN THE HANDS OF SHRI BHAGWANBHAI K.PATEL. THU S, THE ASSESSEE CLAIMED THAT THE ENTIRE AMOUNT OF PROFIT IN RESPECT TO THE UMIYA FARM LAND HAS ALREADY BEEN ADDED ON SUBSTANTIVE BASIS IN THE HANDS OF SHRI IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 12 - BHAGWANBHAI K.PATEL. THEREFORE, THE QUESTION OF MA KING THE SAME ADDITION IN THE HANDS OF THE ASSESSEE DOES NOT ARIS E. HOWEVER, THE LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING O FFICER IN PART BY OBSERVING AS UNDER: 9.2. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A.R OF THE APPELLANT AND THE OBSERVATIONS OF THE ASSESSING OFF ICER IN THE ASSESSMENT ORDER. AS SEEN FROM PARA-20 OF THE CIT( A)S ORDER IN THE CASE OF SHRI BHAGWANBHAI K. PATEL ADDITION OF R S.98,87,174/- WAS CONFIRMED (GIVING RELIEF OF RS.2,12,826). HOWE VER, THE APPELLANT HAS NOT BEEN ABLE TO CONTROVERT THE FACT THAT AN AMOUNT OF RS.16 LAKHS WAS RECEIVED BY HIM FROM SHRI BHAGWA NBHAI K.PATEL. THEREFORE, THE SAID SUM HAS TO BE ASSESSE D AS UNDISCLOSED INCOME. HENCE, ADDITION TO THE EXTENT OF RS.16 LAK HS IS CONFIRMED AND THE BALANCE AMOUNT OF RS.12 LAKHS IS DELETED. THIS GROUND OF APPEAL IS PARTLY ALLOWED. 26. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), BOTH THE ASSESSEE AND THE REVENUE ARE IN APPEALS BEFORE US. 27. THE ASSESSEE IS IN APPEAL ON ACCOUNT OF THE ADD ITION CONFIRMED IN THE HANDS OF THE ASSESSEE FOR RS. 16 LAKHS WHICH DE LETED FROM THE HANDS OF SHRI BHAGWANBHAI K.PATEL. THEREFORE, HE FAIRLY AGREED FOR THE ADDITION OF RS. 16 LAKHS IN THE HANDS OF THE ASSESS EE. 28. HOWEVER, THE LD. AR SUBMITTED THAT THE ASSESSEE HAS NEVER RECEIVED A SUM OF RS. 12 LAKHS FROM SHRI BHAGWANBHA I K.PATEL. THEREFORE, THERE CANNOT BE ANY ADDITION ON ACCOUNT OF RS. 12 LAKHS. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 13 - 29. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT TH E INCOME WAS ACCRUED TO THE ASSESSEE TO THE TUNE OF RS. 28 LAKHS AS EVIDENT FROM THE INCRIMINATING DOCUMENT FOUND DURING THE COURSE OF S EARCH. 30. BOTH THE LD. AR AND LD. DR BEFORE US RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AS FAVORABLE TO THEM. 31. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AS PER THE SEIZED DOCUMENT, THE INCOME OF RS. 28 LAKHS WAS ACCRUED TO THE ASSESSEE. OUT OF RS. 28 L AKHS, A SUM OF RS. 16 LAKHS WAS RECEIVED BY THE ASSESSEE AS PER THE STATE MENT FURNISHED BY SHRI BHAGWANBHAI K.PATEL U/S 132(4) OF THE ACT. THE LD. AR BEFORE US HAS NOT CHALLENGED THE ADDITION MADE BY THE LD. CIT(A) FOR RS. 16 LAKHS. THEREFORE, ON THIS ACCOUNT, THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 32. AS REGARDS TO THE ADDITION OF RS. 12 LAKHS, WE NOTE THAT THERE WAS NO DOCUMENTARY EVIDENCE BROUGHT ON RECORD BEFORE US SUGGESTING THAT THE ASSESSEE RECEIVED THE SAID SUM. IN THE GIVEN FACTS AND CIRCUMSTANCES, THERE IS NO EVIDENCE THAT THE ASSESSEE HAS RECEIVED THE SUM OF RS. 12 LAKHS FROM SHRI BHAGWANBHAI K.PATEL. THE INCOME IS TO BE CHARGED TO TAX ON THE BASIS OF REAL INCOME THEORY AS HELD BY T HE SUPREME COURT IN THE CASE OF K.P. VARGHESE V. ITO [1981] (131 ITR 597). NOW, IT IS NECESSARY TO BEAR IN MIND THAT WHEN CAP ITAL GAINS ARE COMPUTED BY INVOKING SUB-SECTION (1), IT IS NOT ANY FICTIONA L ACCRUAL OR RECEIPT OF INCOME WHICH IS BROUGHT TO TAX. SUB-SECTION (1) DOES NOT D EEM INCOME TO ACCRUE OR TO IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 14 - BE RECEIVED WHICH IN FACT NEVER ACCRUED OR WAS NEVE R RECEIVED. IT SEEKS TO BRING WITHIN THE NET OF TAXATION ONLY THAT INCOME W HICH HAS ACCRUED OR IS RECEIVED BY THE ASSESSEE AS A RESULT OF THE TRANSFE R OF THE CAPITAL ASSET. BUT SINCE THE ACTUAL CONSIDERATION RECEIVED BY THE ASSE SSEE IS NOT DECLARED OR DISCLOSED AND IN MOST OF THE CASES, IF NOT ALL, IT WOULD NOT BE POSSIBLE FOR THE ITO TO DETERMINE PRECISELY WHAT IS ACTUAL CONSIDERA TION RECEIVED ' BY THE ASSESSEE OR IN OTHER WORDS HOW MUCH MORE CONSIDERAT ION IS RECEIVED BY THE ASSESSEE THAN THAT DECLARED BY HIM, SUB-SECTION (1) PROVIDES THAT THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF THE TRANSFER SHALL BE TAKEN TO BE THE FULL VALUE OF THE CONSIDERATION FOR THE TRANSFE R WHICH HAS ACCRUED TO OR IS RECEIVED BY THE ASSESSEE. THEREFORE, WE ARE NOT INCLINED TO UPHOLD THE SAME I N THE HANDS OF THE ASSESSEE. AS A RESULT, THE GROUND RAISED BY THE AS SESSEE AND REVENUE ARE DISMISSED. 33. THE NEXT ISSUE RAISED BY THE ASSESSEE IN GROUND NO.7 IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION TO THE EXTE NT OF RS. 29,82,497/- AS UNDISCLOSED INCOME. THE AO DURING THE ASSESSMENT PROCEEDINGS OBSERVED F ROM PAGE 2 OF THE SEIZED DOCUMENT THAT THE ASSESSEE HAD EARNED A PROF IT OF RS. 52,18,250/- IN CONNECTION WITH THE DEAL OF THE LAND LOCATED NEA R KARNAVATI NAGAR, NAVA NARODA. IT WAS ALSO OBSERVED THAT THE ASSESSE E HAD RECEIVED A SUM OF RS. 13 LAKHS IN THIS ACCOUNT AS PROFIT ON THE SA LE OF SUCH LAND. THEREFORE, THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS EARNED THE UNDISCLOSED INCOME OF RS. 52,18,250/- WHICH WAS NOT OFFERED TO TAX. THEREFORE, THE AO TREATED THE SAME AS UNDISCLOSED I NCOME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 15 - 34. AGGRIEVED ASSESSEE, PREFERRED AN APPEAL TO THE LD. CIT(A). THE ASSESSEE BEFORE THE LD. CIT(A) SUBMITTED THAT THE E NTIRE AMOUNT OF PROFIT OF RS. 52,18,250/- HAS ALREADY BEEN ADDED TO THE TO TAL INCOME OF SHRI BHAGWANBHAI K. PATEL. THEREFORE, THE SAME CANNOT BE ADDED AGAIN IN THE HANDS OF THE ASSESSEE. THE LD. CIT(A) AFTER CONSI DERING THE SUBMISSION OF THE ASSESSEE DELETED THE ADDITION MADE BY THE AO IN PART BY OBSERVING AS UNDER: 10.2. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A.R. OF THE APPELLANT AND THE OBSERVATIONS OF THE ASSESSING OFF ICER IN THE ASSESSMENT ORDER. AS SEEN FROM PARA 30 OF CIT(A)S ORDER, AN AMOUNT OF RS.29,82,497/- WAS CONFIRMED IN THE HANDS OF BHAGWANBHAI K.PATEL. THEREFORE, IN THE LIGHT OF TR IBUNALS DIRECTION, THE BALANCE AMOUNT OF IS TO BE ASSESSED IN THE HANDS OF APP. THUS ADDITION TO THE EXTENT OF RS.29,82,497/- IS UPHELD AND THE BALANCE AMOUNT IS DELETED. THIS GROUND OF APPEAL I S PARTLY ALLOWED. 35. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A), BOT H THE ASSESSEE AND THE REVENUE ARE IN APPEALS. THE ASSESSEE IS IN A PPEAL BEFORE US AGAINST CONFIRMATION OF ADDITION OF RS. 29,82,497/-, WHEREA S REVENUE IS IN APPEAL BEFORE US AGAINST THE DELETION OF ADDITION M ADE BY THE LD.CIT(A) FOR RS. 22,35,763/-. 36. THE LD. AR BEFORE US SUBMITTED THAT A RELIEF WA S GRANTED TO SHRI BHAGWANBHAI K.PATEL FOR AN AMOUNT OF RS. 13 LAKHS O NLY. THEREFORE, ADDITION TO THAT EXTENT CAN BE SUSTAINED IN THE HAN DS OF THE ASSESSEE. 37. ON THE OTHER HAND, THE LD. DR SUBMITTED AS UNDE R: IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 16 - THE SAID ADDITION WAS MADE ON THE BASIS OF SEIZED D OCUMENT I.E. A- 5 PAGE 2 (COPY ENCLOSED) AND THE STATEMENT OF SHRI BHAGWANBHAI K PATEL (IN HINDI) VIDE REPLY TO QUESTION NO 22 DAT ED 22.01.1997 U/S 132(4) OF THE ACT. THE LD. CIT(A) RELIED ON PAR A 24 OF THE ORDER OF THE HON'BLE ITAT IN THE BLOCK ASSESSMENT A PPEAL OF SHRI BHAGWANBHAI K PATEL DATED 25.05.2017. FROM THE PLAI N READING OF THE ORDER, TRANSACTION OF NARODA (KATHWADA) LAND DE AL OF SHRI BHAGWAN BHAI PATEL. HERE THE PARTNER IS ONE ARVINDB HAI (SEE PARA 14 OF ITAT ORDER). IN THIS CASE OF SHRI KANTIBHAI P ATEL THE LAND IN QUESTION IS IN NAVA NARODA DISCUSSED IN THE ITAT AF ORESAID ORDER VIDE PARA 21-22. VIDE REPLY TO THE QUERY NO 22, S HRI BHAGWANBHAI K PATEL IN HIS STATEMENT U/S 132(4) HAD CLEARLY AND CATEGORICALLY STATED THAT THE PROFIT OF SHRI KANTIB HAI PATEL WAS OF RS. 52,18,250/- OUT OF WHICH RS 13,00,000/- WAS ALR EADY PAID. HE SAID THAT ON LOWER PART OF PAGE 2 (OF A-5) IS RELAT ED TO LAND NEXT TO PARSHWANATH TOWN KARNAWATI OF 42000 SQ. YARDS WHERE AGAIN THE DESCRIPTION IS IN THE NAME OF SHRI KANTIBHAI. THE P ROFIT W R T TO THIS LAND IN NAME OF KANTIBHAI IS RS 52,18,250/- (AFTER DOING CALCULATIONS). TILL THE DATE OF SEARCH R S.13,00,000/- HAS BEEN GIVEN IN CASH. HE ADDED THAT AMOUNT OF RS.52,18,250/- IS HIS UNACCOUNTED INCOME AND THE AM OUNT OF RS 13,00,000/- PAID BY HIM IN CASH IS NOT REFLECTED IN HIS (BHAGWANBHAI'S) BOOKS OF ACCOUNTS. THIS ENTIRE AMOU NT OF RS.52,18,250/- HAD ACCRUED IN THE HANDS OF THE ASSE SSEE AND SHOULD HAVE BEEN SUSTAINED.CIT(A) ERRED BY ACCEPTIN G RS.13,00,000/- CASH [PAID BY BHAGWANBHAI ONLY AS TH E INCOME WHICH WAS ONLY THE RECEIVED PART AND NOT THE ACCRUE D PART. HENCE CIT(A) ORDER BE REVERSED AND AOS ORDER BE SUSTAINED . ATTENTION IS ALSO DRAWN TO SEIZED DOCUMENT A-5/PAGE3 WHEREIN IT IS WRITTEN IN VERNACULAR THAT 'KARNAVATI, NAVA NARODA KAKA TATHA KANTIBHAI NE 25% MUJAB BHAAG AAPVANO CHE' AND TRANSLATED AS ' FOR KARNAWATI, NAVA NARODA LAND 25% SHARE IS TO BE GIVE N TO UNCLE AND KANTIBHAI'. 38. BOTH THE PARTIES RELIED ON THE ORDERS OF THE AU THORITIES BELOW AS FAVORABLE TO THEM. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 17 - 39. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSE SSING OFFICER ALLEGED THAT THERE WAS AN INCOME ACCRUED TO THE ASSESSEE FO R RS. 52,18,250/- IN CONNECTION WITH THE LAND DEAL LOCATED IN KARNAVATI NAGAR, NAVA NARODA. THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION OF THE ENTIRE AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE. 39.1. HOWEVER, THE LD. CIT(A) FOUND THAT AN AMOUNT OF RS. 22,35,763/- HAS ALREADY BEEN ADDED IN THE HANDS OF SHRI BHAGWAN BHAI K.PATEL. ACCORDINGLY, THE RELIEF WAS GRANTED TO THE ASSESSEE . 40. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS RECEIVED ONLY A SUM OF RS. 13 LAKHS FROM SHRI BHAGWANBHAI K.PATEL IN CONNE CTION WITH THE LAND DEAL TRANSACTION. IT IS A FACT ON RECORD THAT THE I NCOME WAS ACCRUED TO THE ASSESSEE FOR RS. 52,18,250/- ON THE BASIS OF SEIZED DOCUMENTS AND THE STATEMENT RECORDED U/S 132(4) OF THE ACT. HOWEVER, FROM THE SEIZED DOCUMENTS, IT WAS FOUND THAT THE ASSESSEE RECEIVED THE AMOUNT TO THE EXTENT OF RS. 13 LAKHS ONLY. THEREFORE, IN OUR CONS IDERED VIEW, THE ADDITION IN THE HAND OF THE ASSESSEE CAN BE MADE ON LY WHICH HAS BEEN RECEIVED FROM SHRI BHAGWANBHAI K. PATEL. OUR VIEW IS BASED ON REAL INCOME THEORY AS DISCUSSED IN THE PRECEDING GROUND OF APPEAL. EVEN ASSUMING THAT THE ENTIRE AMOUNT IS ADDED TO THE TOT AL INCOME OF THE ASSESSEE, THEN ALSO THE ASSESSEE IS ENTITLED TO CLA IM THE BAD DEBTS FOR THE AMOUNT WHICH WAS NOT RECEIVED BY HIM. THEREFORE, WE ARE INCLINED TO IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 18 - UPHOLD THE ADDITION IN THE HANDS OF THE ASSESSEE TO THE EXTENT OF RS. 13 LAKHS ONLY. THUS, THE GROUND OF APPEAL OF THE REVE NUE IS DISMISSED, AND THE GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLO WED. 41. THE NEXT ISSUE RAISED BY THE ASSESSEE IN GROUND NO.8 IS THAT LD. CIT(A) ERRED IN CONFIRMING ADDITION MADE BY THE ASS ESSING OFFICER FOR RS. 9,36,000/- ON ACCOUNT OF BROKERAGE INCOME FROM THE DEAL OF LAND TRANSACTION LOCATED AT DHANSURA TALUKA. 42. AT THE OUTSET, THE LD. AR FAIRLY CONCEDED THE F ACT THAT THE ADDITION CAN BE SUSTAINED IN THE HANDS OF THE ASSESSEE IN VI EW OF THE ORDER OF THIS TRIBUNAL IN THE CASE OF SHRI BAHGWANBHAI K. PATEL V S. ACIT IN IT(SS)A NO.325/AHD/2010. THUS, THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 43. GROUND NO.9 IS CONSEQUENTIAL IN NATURE. THEREFO RE WE DISMISS THE SAME. 44. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLO WED. REVENUES APPEAL IN IT(SS)A NO.239/AHD/2011 46. GROUND NOS.1, 2 & 3 RAISED BY THE REVENUE HAVE ALREADY BEEN ADJUDICATED IN THE PRECEDING PARAGRAPHS. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 19 - 47. THE ONLY ISSUE LEFT WITH US FOR ADJUDICATI ON IN THE REVENUES APPEAL IS THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 8 LAKHS ON ACCOUNT OF BROKERAGE RECEIVED BY THE ASSESSEE. 48. THE AO DURING THE ASSESSMENT PROCEEDING, OBSERV ED THAT THE ASSESSEE WAS ENTITLED TO BROKERAGE OF RS. 28 LAKHS FROM SHRI BHGWANBHAI K.PATEL ON THE BASIS OF SEIZED DOCUMENTS MARKED AS A-2/10. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS ALREADY BEEN PA ID A SUM OF RS. 8 LAKHS AGAINST SUCH BROKERAGE AMOUNT OF RS. 28 LAKHS. THE AO ALSO OBSERVED THAT THERE WAS NO DISCLOSURE IN THE INCOME-TAX RETU RN OF THE ASSESSEE. THEREFORE, THE AO TREATED THE ENTIRE AMOUNT OF RS. 8 LAKHS AS UNDISCLOSED INCOME OF THE ASSESSEE AND ADDED IN THE HANDS OF SH RI BHAGWANBHAI K.PATEL. 49. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO LD. CIT-A WHO DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER: 13.1. I HAVE CONSIDERED THE SUBMISSIONS MADE B Y THE A.R. OF THE APPELLANT AND THE OBSERVATION OF THE ASSESSING OFFI CER IN THE ASSESSMENT ORDER. IN VIEW OF MY UPHOLDING THE ADDI TION OF RS.16 LAKHS VIDE GROUND NO.10 OF THIS APPEAL, ARS ARGUME NT THAT THIS IS DUPLICATE ADDITION IS TENABLE. ADDITION OF RS.8 LA CS IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. 50. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 51. THE LD. DR BEFORE US SUBMITTED AS UNDER: IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 20 - ATTENTION IS DRAWN TO SEIZED DOCUMENT A-2/PAGE 10 ENCLOSED WITH THIS SUBMISSION. IN VERNACULAR THIS CLEARLY GIVES THE ACCOUNT OF UMIYA FARM LAND BROKERAGE (DALALI) TO BE GIVEN TO S HRI KANTIBHAI PATYEL OUT OF W2HICH 8,00,000/- HAS BEEN PAID TILL 14/05/1996. THIS IS A DIFFERENT TRANSACTION FROM THE ONE OF REN OUNCEMENT OF SHARE REPORTED IN A-5/PAGE 2 AND IS GROUND OF APPEA L 6 (A APPEAL). THIS CLEARLY MENTIONS THE WORD DALALI W HICH S PAID ON ACCOUNT OF TRANSACTION ALTHOUGH OF THE SAME PIECE O F LAND. THE ASSESSING OFFICER HAS DISCUSSED THIS IN PARA 8(G)/P AGE 17 OF HIS BLOCK ASSESSMENT ORDER. CIT(A) IN PARA 13/PAGE 14 HAD TREATED THIS AS SAME TRANSACTION AND DELETED THE ADDITION TREATING IT AS DUPLICATE A DDITION. 52. ON THE OTHER HAND, THE LD. AR VEHEMENTLY SU PPORTED THE ORDER OF LD. CIT-A. 53. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, WE NOTE THAT A DDITION OF RS. 16 LAKHS (WHICH INCLUDES THIS RS.8 LACKS ALSO) IN RESPECT OF UMIYA FARM LAND HAS ALREADY BEEN SUSTAINED IN THE HANDS OF THE ASSESSEE IN GROUND NO. 6 RAISED BY ASSESSEE VIDE PARA NO 31 & 32 OF THIS ORDER. TH EREFORE, IN OUR CONSIDERED VIEW, A FURTHER ADDITION OF RS. 8 LAKHS WILL AMOUNT TO DOUBLE TAXATION. THEREFORE, WE ARE NOT INCLINED TO UPHOLD THE ADDITION MADE BY THE ASSESSING OFFICER. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDING OF THE LD. CIT(A). 54. HENCE, THE GROUND OF REVENUES APPEAL IS DIS MISSED. IT(SS)A NO.142/AHD/2011 (BY ASSESSEE) & IT(SS)A NO.239/AHD/2011 (BY REVENUE) SHRI HARSHAD K.PATEL VS. DCIT/ACIT BLOCK ASSTT.PERIOD 01/04/86 TO 21/0 1/97 - 21 - 55. GROUND NOS.5 & 6 ARE GENERAL IN NATURE WHICH REQUIRES NO INDEPENDENT ADJUDICATION. 56. IN THE COMBINED RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED, AND REVENUES APPEAL IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 01 /01/2019 SD/- SD/- (MS.MADHUMITA ROY) (WASEEM AH MED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 01/01/2019 .., ... / T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A)-XI, AHMEDABAD 5. $%& , ' , / DR, ITAT, AHMEDABAD 6. &*+ ,- / GUARD FILE. / BY ORDER, $ //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, / ITAT, AHMEDABAD