Maksud Ahmed Gulam Shaikh, Dist.Bharuch V. The Dy.CIT.,Bharuch Circle, Bharuch

ITSSA 157/AHD/2007

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8451 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 26-04-2011
• Assessment Year: misc
• Appeal Filed On: 10-12-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H P MEENA
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure; Document seized; Period of limitation; Source of fund; Block assessment; Documents seized
• Section: 142(1); 133(6); 132; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH (BEFORE S/SHRI G. D. AGARWAL, VP AND BHAVNESH SAINI , JM) IT (SS) A NO.157/AHD/2007 BLOCK PERIOD: 1-4-1996 TO 13-8-2002 SHRI MAKSUD AHMED GULAM SHEIKH, BHAGYODAY SOCIETY, ANKLESHWAR, DIST. BHARUCH VS. THE D. C. I. T., BHARUCH CIRCLE, BHARUCH (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M. K. PATEL, AR RESPONDENT BY : SHRI H. P. MEENA, SR. DR O R D E R PER BHAVNESH SAINI : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-VI, BARODA DATED 14-09-2007 FOR THE ABOVE BLOCK PERIOD. 2. THE ASSESSEE RAISED 4 GROUNDS OF APPEALS, HOWEVE R, THE LEARNED COUNSEL FOR THE ASSESSEE RESTRICTED HIS ARGUMENTS O NLY ON TWO POINTS:- CHALLENGING THE BLOCK ASSESSMENT ORDER TO BE TIME B ARRED AND ALSO CHALLENGING ADDITION OF RS.2,04,950/- U/S 69 OF THE IT ACT AND RS.73,461/- AS CAPITAL GAINS. 3. THE SEARCH AND SEIZURE U/S 132 OF THE IT ACT WAS CARRIED OUT IN THE SHROFF GROUP OF CASES AT BHARUCH AND ANKLESHWAR ON 13-08-2002, INCLUDING RESIDENTIAL PREMISES OF MUKESH M. KELAWAL A SITUATED AT 4/5 SWAMI VIVEKANAND SOCIETY, NEAR PRITAM SOCIETY NO.1, BHARUCH. DURING THE COURSE OF SEARCH PROCEEDINGS AT THE ABOVE RESID ENTIAL PREMISES OF SHRI MUKESH M. KELAWALA, CERTAIN INCRIMINATING DOCU MENTS INVENTORISED AT SR. NO.50 AND 51 OF ANNEXURE A/13 WERE FOUND AND SEIZED. THE DCIT, CENTRAL CIRCLE-1, BARODA VIDE HIS LETTER DATE D 14-07-2004 FORWARDED THE INFORMATION IN THE CASE OF THE ASSESS EE. THE CONTENTS OF THE SAID INFORMATION REVEALED THAT M/S. EKTA CORPOR ATION (PARTNERSHIP IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 2 FIRM) WAS INITIALLY FORMED ON 13-8-1996 HAVING 7 PE RSONS AS PARTNERS INCLUDING THE ASSESSEE WHO IS HAVING 10% SHARE OF P ROFIT. THE SAID FIRM DID NOT HAVE ANY BUSINESS ACTIVITY EXCEPT THE ORIGI NAL PARTNERS HAD PURCHASED A PLOT OF LAND MEASURING 3175 SQM AT SUR VEY NO.79, VILLAGE GADKHOL, ANKLESHWAR WHICH WAS TO BE DEVELOPED BUT LATER ON NO DEVELOPMENT ACTIVITY COULD BE TAKEN UP. THE LAND WA S PURCHASED VIDE REGISTERED DOCUMENTS DATED 30-10-1996 FOR RS.10 LAC S. THEREAFTER PARTNERSHIP DEED OF M/S. EKTA CORPORATION WAS AMEND ED ON 24-9-1997 AND ALL THE OLD PARTNERS EXCEPT SHRI GULAM MOHD. H. SHAIKH (PARTNER NO.7) RETIRED AND SHRI MUKESH M. KELAWALA AND SMT. BHARATI M. KELAWALA WAS TAKEN AS NEW PARTNERS AND ACCORDING TO RECONSTITUTED PARTNERSHIP OF M/S. EKTA CORPORATION THE SHARE OF P ROFIT WERE 35% IN CASE OF SMT. BHARATI M. KELAWALA AND 50% IN CASE OF SHRI MUKESH M. KELAWALA AND 15% OF SHRI GULAM MOHD. H. SHAIKH (OLD PARTNER). IN TRUE EFFECT, SHRI MUKESH M. KELAWALA AND HIS WIFE GOT 85 % SHARES IN THE FIRM AND IN DIRECTLY GOT 85% SHARE OF THE LAND WHICH WAS THE ONLY ASSET OF THE FIRM. M/S. EKTA CORPORATION HAD NEVER FILED RET URN OF INCOME AND NO BOOKS OF ACCOUNTS WERE MAINTAINED. IN THE REGULAR R ETURN OF INCOME SHRI MUKESH M. KELAWALA AND HIS WIFE HAVE SHOWN THE INVE STMENT IN M/S. EKTA CORPORATION AS ON 31-3-1998 IN A SUM OF RS.3.9 6 LACS (RS.1.75 LACS PLUS RS.2.21 LACS). HOWEVER, PAGE 50 AND 51 OF ANNEXURE A/13 SEIZED FROM THE RESIDENTIAL PREMISES SHOWED THAT MU CH HIGHER AMOUNT HAS BEEN PAID TO ACQUIRE THE SHARE IN M/S. EKTA COR PORATION AND AS AGAINST INVESTMENT DISCLOSED IN THE RETURN OF INCOM E CASH PAYMENT WAS MADE OUT OF UNACCOUNTED SOURCES. AS PER SEIZED PAPE RS, THE COST OF LAND OWNED BY M/S. EKTA CORPORATION WAS AT RS.32.50 LACS AS ON 24-9-1997 I.E. WHEN SHRI MUKESH M. KELAWALA AND HIS WIFE JOINED AS PARTNERS. IT WAS ACCEPTED THAT RS.32.50 LACS WAS TH E MARKET VALUE OF THE LAND AS ON THE DATE OF THE PAYMENT MADE ON WHIC H THE PAYMENT WAS MADE TO THEIR SHARES OF 85% OF RS.32.50 LACS COM ES IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 3 TO RS.27,62,500/-. HENCE THE UNACCOUNTED INVESTMENT IN M/S. EKTA CORPORATION WAS FOUND OF RS.23,66,500/- (RS.27,62,5 00/- MINUS RS.3,96,000/-). SHRI MUKESH M. KELAWALA HAS CONFIRM ED THAT CASH PAYMENTS WERE GIVEN TO THE RETIRING PARTNERS OF M/S . EKTA CORPORATION ON THE BASIS OF THEIR SHARE RATIO. INQUIRIES WERE C ONDUCTED U/S 133(6) OF THE IT ACT WHETHER THE SAID PARTNERS HAD MADE ANY I NITIAL INVESTMENT IN M/S. EKTA CORPORATION AND WHETHER THEY HAVE DISCLOS ED THE CASH RECEIPT RECEIVED FROM SHRI MUKESH M. KELAWALA AND HIS WIFE ON RETIREMENT FROM THE SAID FIRM. IN REPLY THEY HAVE STATED THEIR INI TIAL INVESTMENT IN THE SAID FIRM AND ALSO STATED THAT THEY HAVE ON OTHER INCOME OTHER THAN AGRICULTURAL INCOME FOR WHICH NO RETURN OF INCOME W AS FILED AND THEY DID NOT HAVE ANY PERMANENT ACCOUNT NUMBER. THE INFORMAT ION WAS, THEREFORE, PASSED ON TO THE AO OF THIS CASE THAT TH E ABOVE EARLIER PARTNERS INCLUDING THE ASSESSEE HAVE NOT DISCLOSED THE CASH RECEIPT FOR INCOME TAX PURPOSE AND ALSO THE INITIAL INVESTMENTS HAVE NOT BEEN EXPLAINED. 4. IN CONSEQUENCE OF THE AFORESAID INFORMATION, NOT ICE U/S 158 BD OF THE IT ACT WAS ISSUED ON 29-12-2004 AND SENT FOR SE RVICE BY RPAD WHICH WAS SERVED UPON THE ASSESSEE ON 5-1-2005 REQU IRING THE ASSESSEE TO FURNISH THE RETURN OF INCOME OF THE BLO CK PERIOD WITHIN THE SPECIFIED TIME BUT THE ASSESSEE DID NOT FILE RETURN FOR THE BLOCK PERIOD. FURTHER STATUTORY NOTICES WERE ISSUED TO THE ASSESS EE SEEKING DETAILS OF SOURCES OF INCOME FOR THE BLOCK PERIOD WITH SUPPORT ING EVIDENCES OF AGRICULTURAL INCOME AND OTHER INCOME AND BOOKS OF A CCOUNTS IF ANY MAINTAINED, FURTHER FAMILY EXPENSES AND OCCUPATION AND RELATION ETC., DETAILS OF BANK ACCOUNT AND COPY OF BANK STATEMENT FOR THE BLOCK PERIOD AND DETAILS OF INVESTMENTS MADE IF ANY BY THE ASSES SEE AND HIS FAMILY MEMBERS IN MOVABLE AND IMMOVABLE PROPERTIES DURING THE BLOCK PERIOD. THE ASSESSEE HOWEVER, REFUSED TO ACCEPT THE STATUTO RY NOTICES BUT WITH IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 4 THE AID OF POLICE IT WAS SERVED LATER ON. THE ASSES SEES COUNSEL LATER ON SUBMITTED THAT THE PROVISIONS OF SECTION 158 BD OF THE IT ACT ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE BECAUSE HIS NAME DID NOT APPEAR IN THE SEIZED DOCUMENTS AND HE HAS NOT RECEI VED ANY UNACCOUNTED MONEY FROM SHRI MUKESH M. KELAWALA, THE REFORE, HE IS NOT LIABLE TO FILE RETURN OF INCOME. IT WAS ALSO EXPLAI NED THAT NOTICE U/S 158 BD OF THE IT ACT WAS SERVED UPON THE ASSESSEE ON 30 -12-2004; THEREFORE, PROCEEDINGS U/S 158 BD OF THE IT ACT GOT TIME BARRED ON 31-12-2006 (BLOCK ASSESSMENT ORDER PASSED ON 31-1-2 007). IT WAS HOWEVER, NOTED THAT THE NOTICE U/S 158 BD OF THE IT ACT WAS SERVED ON THE ASSESSEE ON 5-1-2005 WHICH WAS NOT COMPLIED WIT H, THEREFORE, BLOCK ASSESSMENT ORDER IS PASSED WITHIN THE PERIOD OF LIM ITATION. COPY OF THE ACKNOWLEDGEMENT DATED 5-1-2005 WAS MADE PART OF THE ASSESSMENT ORDER AS ANNEXURE C COPY OF WHICH IS FILED BY THE L EARNED COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING. THE AO C ONSIDERED THE ABOVE INFORMATION AND NOTED THAT ON THE BASIS OF TH E INCRIMINATING DOCUMENTS AND STATEMENT OF MUKESH M. KELAWALA IT IS CLEAR THAT ASSESSEES SHARE OF RS.2,78,411/- OF 10% SHARE IN U NACCOUNTED MONEY RECEIVED FROM MUKESH M. KELAWALA FOR RELINQUISHING ALL RIGHTS IN THE LAND HAVE TO BE BROUGHT TO TAX. FURTHER, INITIAL INVESTM ENT IN PLOT OF LAND OF SURVEY NO.79 OF RS.2,04,950/- MADE IN FINANCIAL YEA R 1996-97 ALSO COULD NOT BE EXPLAINED. THEREFORE, BOTH OF THEM WER E TREATED AS UNACCOUNTED INCOME OF THE ASSESSEE FOR THE BLOCK PE RIOD AND ADDITIONS WERE ACCORDINGLY MADE. THE AO NOTED THAT THE ASSESS EE HAS FAILED TO FILE SOURCES OF INITIAL INVESTMENT THROUGH AGRICULT URAL INCOME, THEREFORE, ADDITION OF RS.2,04,950/- WAS MADE AND OTHER ADDITI ON OF RS.2,78,411/- WAS MADE BEING UNACCOUNTED INCOME RECEIVED ON RELIN QUISHMENT OF ASSESSEES RIGHT IN THE LAND SITUATED AT SURVEY NO. 79 VILLAGE GADKHOL, ANKLESHWAR (10% OF HIS SHARE). IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 5 5. BOTH THE ADDITIONS WERE CHALLENGED BEFORE THE LE ARNED CIT(A) AND THE LEARNED CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. IN THE BACKGROUND OF THE ABOVE FACTS, NOW WE DECIDE POINT OF ARGUMENTS NOW RAISED BEFORE US IN THIS APPEAL. POINT NO.1 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT NOTICE U/S 158BD OF THE IT ACT WAS ISSUED ON 29-12-2004 AND WA S SENT THROUGH RPAD WHICH WAS SERVED UPON THE ASSESSEE ON 30-12-20 04, THEREFORE, BLOCK PROCEEDINGS U/S 158BD OF THE IT ACT ARE TIME BARRED ON 31-12-2006. COPY OF THE ACKNOWLEDGMENT ATTACHED AS ANNEXURE C BY THE AO TO THE BLOCK ASSESSMENT ORDER IS SUPPLIED BY THE LEARNED COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARI NG. HE HAS SUBMITTED THAT THERE IS NO SIGNATURE OF THE ASSESSE E ON THE ACKNOWLEDGEMENT AND THAT THE BLOCK ASSESSMENT ORDER IS CLEARLY TIME BARRED. HE HAS SUBMITTED THAT THAT THIS FACT MAY BE VERIFIED FROM THE RECORD. 7. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE BLOCK ASSE SSMENT ORDER IS PASSED WITHIN THE PERIOD OF LIMITATION BECAUSE THE NOTICE U/S 158 BD OF THE IT ACT DATED 29-12-2004 WAS SERVED UPON THE ASS ESSEE ON 5-1-2005 WHICH FACT IS ALSO CLARIFIED BY THE AO IN THE SUBSEQUENT NOTICE U/S 142(1) OF THE IT ACT. THE LEARNED DR SUBMITTED THAT EVEN ON SUBSEQUENT NOTICE THE ASSESSEE REFUSED TO ACCEPT. T HEREFORE, WITH THE HELP OF POLICE THE NOTICE WAS SERVED UPON THE ASSES SEE. THE LEARNED DR, THEREFORE, SUBMITTED THAT THE CONDUCT OF THE AS SESSEE SHOWS THAT WITHOUT ANY JUSTIFICATION THE ASSESSEE HAS REFUSED TO ACKNOWLEDGE THE ASSESSMENT ORDER PASSED WITHIN THE PERIOD OF LIMITA TION. IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 6 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN THI S CASE SEARCH WAS CONDUCTED ON 13-8-2002, THEREFORE, PROVISIONS O F SECTION 158BE (2) (B) OF THE IT ACT WOULD APPLY WHICH PROVIDE THAT TH E PERIOD OF LIMITATION FOR COMPLETION OF BLOCK ASSESSMENT IN THE CASE OF O THER PERSONS REFERRED IN SECTION 158 BD OF THE IT ACT SHALL BE ( B) TWO YEARS FROM THE END OF THE MONTH IN WHICH THE NOTICE UNDER THIS CHAPTER SHALL BE SERVED ON SUCH OTHER PERSONS IN RESPECT OF SEARCH I NITIATED OR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUI SITIONED ON OR AFTER 01-01-1997. IN THE PRESENT CASE, IT IS ADMITTED FAC T THAT NOTICE U/S 158 BD OF THE IT ACT WAS ISSUED TO THE ASSESSEE ON 29-1 2-2004. ACCORDING TO THE AO, THE SAID NOTICE WAS SERVED UPON THE ASSE SSEE ON 5-1-2005 WHICH WAS ALSO BROUGHT TO THE NOTICE OF THE AUTHORI ZED REPRESENTATIVE AT THE BLOCK PROCEEDINGS. COPY OF THE ACKNOWLEDGEMENT DATED 5-1-2005 WAS MADE PART OF THE ASSESSMENT ORDER AS ANNEXURE C COPY OF WHICH IS FILED BY THE LEARNED COUNSEL FOR THE ASSESSEE ON RE CORD. THE ASSESSEE HOWEVER, CLAIMED THAT THE SAID NOTICE HAS BEEN SERV ED UPON HIM ON 30-12-2004. DURING THE COURSE OF ARGUMENTS THE LEAR NED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO SIGNATURE O F THE ASSESSEE ON THE A/D CARD COPY OF WHICH IS SUPPLIED DURING THE C OURSE OF ARGUMENTS (ANNEXURE C). THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE IS DEVOID OF MERIT BECAUSE IF THE ASSESSEES SIGNAT URE IS NOT APPEARING ON THE A/D CARD, THERE IS NO QUESTION OF ASSESSEE R ECEIVING THE REGISTERED COVER CONTAINING THE NOTICE U/S 158BD OF THE IT ACT. THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE IS, THEREFORE, REJECTED BECAUSE THE ASSESSEE ADMITTED BEFORE THE A UTHORITIES BELOW THAT NOTICE WAS SERVED UPON THE ASSESSEE. FURTHER, IN THE COPY OF ANNEXURE C IT IS NOTED ON THE TOP OF IT RL 1323 4/1/05. THE ABOVE FACT NOTED IN THE ACKNOWLEDGMENT CARD SHOWS THAT TH IS REGISTERED COVER MIGHT HAVE BEEN DELIVERED TO THE POSTAL AUTHORITIES BEING REGISTERED LETTER (RL) ON 4-1-2005, THEREFORE, THERE IS NO QUE STION OF SERVICE OF THE IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 7 SAME LETTER UPON THE ASSESSEE ON 30-12-2004. FURTHE R, WHEN THIS FACT WAS BROUGHT TO THE NOTICE OF THE LEARNED COUNSEL FO R THE ASSESSEE AT THE ASSESSMENT STAGE, HE DID NOT REACT TO THE STATEMENT OF THE AO AT THE ASSESSMENT STAGE. THEREFORE, THE AO WAS JUSTIFIED I N HOLDING THAT THE NOTICE U/S 158 BD OF THE IT ACT DATED 29-12-2004 HA S BEEN SERVED UPON THE ASSESSEE ON 5-1-2005. THEREFORE, THE BLOCK ASSE SSMENT ORDER PASSED ON 31-1-2007 IS LAWFULLY PASSED WITHIN THE P ERIOD OF LIMITATION I.E. WITHIN TWO YEARS FROM THE END OF THE MONTH IN WHICH THE NOTICE WAS SERVED UPON THE ASSESSEE. WE MAY FURTHER NOTE THAT SINCE THE ASSESSEE IS IN APPEAL, THEREFORE, BURDEN IS UPON TH E ASSESSEE TO PROVE ITS CASE BEYOND DOUBT. NO OTHER MATERIAL OR DOCUMEN T HAS BEEN FILED ON RECORD TO PROVE THAT THE NOTICE U/S 158 BD OF THE I T ACT WAS SERVED UPON THE ASSESSEE ON 30-12-2004. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE AS SESSEE. THE SAME IS, THEREFORE, REJECTED AND THIS GROUND OF APPEAL OF TH E ASSESSEE IS REJECTED. POINT NO.2 9. THE LEARNED COUNSEL FOR THE ASSESSEE CHALLENGED THE ADDITION OF RS.2,04,950/- AND THE ADDITION OF RS.73,461/-. IT W AS SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE AO HAD ASSUMED THAT FUL L CONSIDERATION FROM THE INCOMING PARTNERS OF RS.2,78,411/- WAS RECEIVED AND SUCH ASSUMPTION IS BASED ON THE STATEMENT OF SHRI MUKESH M. KELAWALA WHICH IS NOT SUPPORTED BY ANY INDEPENDENT CORROBORA TIVE EVIDENCE. IT WAS PRAYED THAT THE ADDITION BE DELETED AND IN ALTE RNATIVE IT WAS CONTENDED THAT ONLY THE GAIN OF RS.73,461/- CAN BE TREATED AS CAPITAL GAINS. THE ADDITION OF RS.2,04,950/- WAS ALSO CHALL ENGED. THE LEARNED CIT(A) HOWEVER, NOTED THAT DURING THE COURSE OF VER IFICATION NO SPECIFIC DETAILS OR EVIDENCES COULD BE PRODUCED REGARDING SO URCE OF INITIAL INVESTMENT BY THE ASSESSEE IN THE PLOT OF LAND AND WHEN NO EVIDENCE IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 8 WAS PRODUCED BEFORE HIM, THEREFORE, ADDITION OF RS. 2,04,950/- WAS CONFIRMED BEING UNEXPLAINED INVESTMENT U/S 69 OF TH E IT ACT. AS REGARDS ADDITION OF RS.2,78,411/-, THE LEARNED CIT( A) NOTED THE FINDINGS OF THE TRIBUNAL IN THE CASE OF SHRI MUKESH M. KALAW ALA IN WHICH ADDITION WAS MADE IN HIS CASE. THE LEARNED CIT(A) HOWEVER, A GREED WITH THE ASSESSEES CONTENTION THAT THE DIFFERENCE BETWEEN T HE TWO I.E. RS.2,78,411/- MINUS RS.2,04,950/- SHOULD BE TAXED AS CAPITAL GAIN AND THE ENTIRE RECEIPT SHOULD NOT BE ADDED. THE APPEAL WAS ACCORDINGLY PARTLY ALLOWED AND ADDITION WAS CONFIRMED IN A SUM OF RS.73,461/-. 10. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THA T THE ASSESSEE HAS NOT RECEIVED ANY AMOUNT FROM SHRI MUKESH M. KELAWAL A AND THAT ADDITION ON CAPITAL GAIN IS MADE ONLY ON THE BASIS OF STATEMENT OF SHRI MUKESH M. KELAWALA AND THAT INITIAL INVESTMENT IN T HE PLOT OF LAND OF SURVEY NO.79 OF M/S. EKTA CORPORATION WAS MADE OUT OF AGRICULTURAL INCOME FOR WHICH THERE IS NO NEED TO FILE RETURN OF INCOME. HE HAS HOWEVER, ADMITTED THAT THE ASSESSEE IS UNABLE TO FU RNISH ANY BILLS OF EARNING OF AGRICULTURAL INCOME. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 11. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. IT IS ADMITTED FACT THAT THE ASSESSEE CONTRIBUTED TO THE CAPITAL WITH M/S. EKTA CORPORATION IN WHICH HE WAS A PARTNER ALONG WITH OTHER SIX PERSONS AND T HE FIRM HAS PURCHASED THE PLOT OF LAND FOR DEVELOPMENT. THE ASS ESSEES SHARE OF PROFIT IS 10%. THE AO CALLED FOR THE DETAILS OF SOU RCE OF INCOME, BANK ACCOUNT AND DETAILS OF EARNING OF AGRICULTURAL INCO ME, BUT THE NOTICE REMAINED UN-COMPLIED WITH AND NO DETAILS OR EVIDENC ES HAVE BEEN FURNISHED. IT WAS ALSO FOUND THAT THE FIRM M/S. EKT A CORPORATION IN WHICH THE ASSESSEE WAS A PARTNER DID NOT MAINTAIN ANY BOO KS OF ACCOUNTS AND IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 9 NO RETURN OF INCOME HAS BEEN FILED. IT IS ALSO NOT IN DISPUTE THAT LATER ON THE SIX PARTNERS INCLUDING THE ASSESSEE RETIRED FRO M M/S. EKTA CORPORATION AND THEIR SHAREHOLDING WAS TAKEN BY SHR I MUKESH M. KELAWALA AND HIS WIFE IN THE RATIO OF 85%. IT IS, T HEREFORE, UNBELIEVABLE THAT THE PARTNERS WHO HAD INVESTED IN THE PROPERTY INITIALLY WOULD NOT HAVE RECEIVED THE AMOUNT OF CONSIDERATION ON RETIRE MENT FROM THE FIRM WHICH WAS HOLDING THE PLOT OF LAND. THUS, THE ASSES SEE HAS RECEIVED THE CONSIDERATION ON RETIREMENT FROM THE FIRM WHICH WAS ALSO NOT OFFERED FOR TAX. THE UNACCOUNTED INCOME WAS COMPUTED AS PER THE SHAREHOLDING AT 10%. THESE FACTS WOULD CLEARLY PROVE THAT THE ASSES SEE MADE INVESTMENT IN THE PLOT OF LAND OF THE FIRM AS A PAR TNER FOR WHICH NO RETURN OF INCOME WAS FILED AND NO SOURCE OF INCOME IS EXPL AINED AND NO EVIDENCE OF UNACCOUNTED INVESTMENT IN THE SAID PLOT OF LAND WAS FILED TO EXPLAIN THE SOURCE OF INVESTMENT. THE ASSESSEE MERE LY DENIED ALL THE ALLEGATIONS OF THE AO AND NEVER CO-OPERATED WITH TH E AO. THESE FACTS WERE SUFFICIENT TO HOLD THE VIEW OF THE LEARNED CIT (A) THAT THE ASSESSEE MADE UNACCOUNTED INVESTMENT IN THE PLOT OF LAND FOR WHICH NO EVIDENCE WAS FILED AND ON TRANSFER OF THE PLOT OF LAND BY RE LINQUISHING FROM THE ERSTWHILE FIRM, THE ASSESSEE RECEIVED SHARE OF HIS CONSIDERATION OR DIFFERENCE OF PURCHASE AND SAME VALUE WAS RIGHTLY C ONSIDERED AS CAPITAL GAINS DURING THE BLOCK PERIOD BECAUSE NO SUCH CAPIT AL GAIN WAS ALSO OFFERED FOR TAXATION BY THE ASSESSEE. IT MAY ALSO BE NOTED THAT IT WAS ALSO ALTERNATIVE CONTENTION OF THE ASSESSEE THAT AT THE BEST ADDITION COULD BE SUSTAINED OF THE CAPITAL GAINS IN A SUM OF RS.73,461/-. WE, THEREFORE, DO NOT FIND ANY PERVERSITY IN THE APPROA CH OF THE LEARNED CIT(A). THE ASSESSEE HAS MISERABLY FAILED TO EXPLAI N BOTH THE ADDITIONS BEFORE THE AUTHORITIES BELOW BY NOT PRODUCING ANY M ATERIAL OR EVIDENCE ON RECORD WHICH WERE BASED UPON THE INCRIMINATING D OCUMENTS FOUND DURING THE COURSE OF SEARCH. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE IT (SS)A NO.157/AHD/2007 SHRI MAKSUD AHMED GULAM SHAIKH VS DCIT, BARODA 10 APPEAL OF THE ASSESSEE ON THIS GROUND. THE SAME IS ACCORDINGLY DISMISSED. 12. NO OTHER POINT IS ARGUED OR PRESSED. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 29-04-2011 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 29-04-2011 LAXMIKANT/ COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : DEPARTMENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD