JCIT (OSD) (Central)-1, Bhopal V. SMT. KAMLA SHIVHARE, Gwalior

ITSSA 157/Ind/2019

AI Insights

The case involves appeals by the Revenue against the order of the CIT(A)-3, Bhopal, which pertained to the assessment years 2011-12 and 2012-13. The Revenue challenged the deletion of additions made by the Assessing Officer regarding undisclosed purchases and sales of immovable properties, as well as unexplained expenditures in warehouses. The Tribunal examined the submissions and evidence presented, including the books of account and documents related to the transactions in question. The Tribunal concluded that the CIT(A) had correctly interpreted the evidence and law, leading to the dismissal of the Revenue's appeals.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122578 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-02-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-11-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2019
• Other Referred Cases: CIT vs. Kabul Chawla, 380 ITR 573 (Del.)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Search and seizure; Loose papers; Document seized; Documents seized; Set aside
• Section: 132; 153A; 48; 13; 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT MEMBER IT(SS)A Nos.157 & 158/Ind/2019 Assessment Years: 2011-12 & 2012-13 JCIT (OSD), Central-1, Bhopal. Vs. Smt. Kamla Shivhare, B-17, Ashok Vihar Colony, Tansen Nagar, Gwalior. PAN: AJHPS3885R (Appellant) (Respondent) Assessee by : Shri Anil Kamal Garg, CA; Shri Arpit Gaur; & Shri Devendra Bansal. Revenue by : Shri P.K. Mishra, CIT, DR Date of Hearing : 17.11.2022 Date of Pronouncement : 10.02.2023 ORDER PER C.M. GARG, JM : These appeals filed by the Revenue are directed against the consolidated order dated 09.05.2019 of the CIT(A)-3, Bhopal, relating to Assessment Years 2011-12 & 2012-13. 2. The grounds of appeal raised by the Revenue read as under:- IT(SS)A No.157/Ind/2019 (AY 2011-12) “On the facts and in the circumstances of the case, the Ld CIT (A)-3 has erred in:- 1. On the fact and in the Circumstances of the case the Ld. CIT(A] has erred in deleting the addition of Rs. 7,30,50,500/- made by the A.O. on account of undisclosed purchase of immovable property. ' ’ IT(SS)As No.157 & 158/Ind/2019 2 2. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 8,81,660/- made by the A.O. on account of unexplained expenditure in warehouses. 3. On the fact and in the Circumstances of the case the Ld. C1T(A) has erred in not taking cognizance of the fact that the assessee failed to submit the documentary evidence pertaining to the purchase and sale of immovable properties referred to in ground 1. During the course of assessment proceedings. 4. Without prejudice to the above and on the facts and in the circumstances of the case the Ld. CIT(A] has erred in not taking cognizance of the fact that the assessee failed to submit the documentary evidence pertaining to the purchase and sale of immovable properties referred to in ground 1 and 2 during the course of Special Audit also the qualified comments of Special Auditor with regard to the impugned issues. 5. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred in not remanding the case to the Assessing Officer despite the production of fresh evidence during the appellate proceedings. 6. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred on fact and in law by merely stating that the transaction relating to immovable property were seized document without calling for specific comments of A.O. who is custodian of seized documents. IT(SS)A No.158/Ind/2019 (AY 2012-13) “On the facts and in the circumstances of the case, the Ld CIT (A)-3 has erred in:- 1. On the fact and in the Circumstances of the case the Ld. CIT(A] has erred in deleting the addition of Rs. 2,09,97,100/- made by the A.O. on account of undisclosed sale of immovable property. 2. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 3,70,08,500/- made by the A.O. on account of undisclosed purchase of immovable properties. 3. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs.20,84,075/- made by the A.O. on account of unexplained expenditure in warehouses 4. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred in not taking cognizance of the fact that the assessee failed to submit the documentary evidence pertaining to the purchase and sale of IT(SS)As No.157 & 158/Ind/2019 3 immovable properties referred to in ground 1 during the course of assessment proceedings. 5. Without prejudice to the above and on the facts and in the circumstances of the case the Ld. CIT(A] has erred in not taking cognizance of the fact that the assessee failed to submit the documentary evidence pertaining to the purchase and sale of immovable properties referred to in ground 1 and 2 during the course of Special Audit also the qualified comments of Special Auditor with regard to the impugned issues. 6. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred in not remanding the case to the Assessing Officer despite the production of fresh evidence during the appellate proceedings. 7. On the fact and in the Circumstances of the case the Ld. CIT(A) has erred on fact and in law by merely stating that the transaction relating to immovable property were seized document without calling for specific comments of A.O. who is custodian of seized documents.” 3. Ground No.1 of the Revenue for AY 2011-12 and Ground No.2 of the Revenue for AY 2012-13: 4. Apropos these grounds, the ld.CIT-DR submitted that the AO has made additions after considering the reply of the assessee and rightly treated the transactions mentioned in table-1 as undisclosed income of the assessee and the transactions mentioned in Table-2 was also rightly treated as unexplained investment of the assessee and added to the total income of the assessee. The ld. CIT-DR submitted that the assessee has failed to provide any reasonable documentary evidence to substantiate her claim that the properties mentioned above were duly disclosed in her books of account. The ld.CIT-DR vehemently pointed out that the assessee also failed to produce evidences despite giving numerous opportunities during the assessment proceedings as well as by the Special Auditor. Hence, the contention of the assessee that time given was very less is also not sustainable. The ld. CIT-DR submitted that the ld. First appellate authority has granted relief to the IT(SS)As No.157 & 158/Ind/2019 4 assessee on technical grounds which is not sustainable. Therefore, the impugned first appellate order may kindly be set aside by restoring the order of the AO. 5. Replying to the above, the ld. Assessee’s representative (ld. AR) submitted that no incriminating document was found and the documents referred to are only copies of the registered Sale Deeds Agreements and therefore, in respect of the completed years the ratio of CIT vs. Kabul Chawla, 380 ITR 573 (Del.) is to be applied. He further submitted that all the investment in the properties are duly recorded in regular books of account of the assessee. He also submitted that the following documents were also submitted before the authorities below:- 1) Statement showing details of additions made by the AO on account of Immovable Properties; & 2) Copies of Purchase Deeds, Property Accounts in the Audited Books and relevant Abstract of Balance Sheets and Fixed Asset Schedules 6. However, the AO did not consider the same in right perspective and the ld.CIT(A) was right in following the proposition rendered by the Hon’ble High Court of Delhi in the case of Kabul Chawla (supra). Therefore, the first appellate order may kindly be upheld by dismissing the ground No.1 for AY 2011-12 and Ground No.2 for AY 2012-13 of the Revenue. 7. On careful consideration of the above rival submissions, first of all, we may point out that a search and seizure operation u/s 132 of the Act was conducted at various premises of Shivhare Group and its associates on 07.01.2016 which pertains to AY 2016-17 as a year of search. From the relevant part of the first appellate order, IT(SS)As No.157 & 158/Ind/2019 5 we observe that the ld.CIT(A) has granted relief to the assessee with the following observations and findings:- “• Addition of Rs. 7,30,50„500/- (AY 2011-12):- (i) The appellant on 31.03.2010 has purchased a plot at Nirupam Estate, Bhopal from Shri Jitendra Singh for a total consideration of Rs. 19,41,500/-. The market value of the land was Rs. 19,41,500/-. The land was purchased in AY 2010-11, however, the addition has been made in AY 2011-12 by the AO. The appellant has also shown the transaction in her regular books of accounts under the head ‘Land and Building’. On perusal of copy of ledger account of the appellant it was observed that the entire consideration of Rs. 19,41,500/- has been paid through cheque no 604301 & 604302 of UCO Bank account. Therefore, the AO was not justified in firstly making addition in AY 2011-12 because the property was purchased in AY 2010-11. Secondly, the transactions relating to property are fully recorded in books of accounts and purchase price has been paid through cheques. (ii) The appellant along with Smt Manju Goyal on 01.11.2010 has purchased a property at Rairu, Gwalior from Shri Kartar Singh & others for a total consideration of Rs. 68,97,000/-. The market value of the land was Rs. 68,97,000/-. The land was purchased in AY 2011-12. The appellant has also shown 50% of the transaction in her regular books of accounts under the head ‘Land purani chhawani’. On perusal of copy of ledger account of the appellant it was observed that the appellant has shown 50% of purchase amount i.e. Rs. 37,10,150/- in her books because the property was jointly purchased by appellant along with Smt Maju Goyal. Thus, the AO was not justified in making further additions on account of fully disclosed transactions in regular books of accounts without having any corroborative evidence on record. (iii) The appellant on 16.07.2010 has purchased an agricultural land at Padora from Shri Rambaran Singh & others for a total consideration of Rs. 4,50,000/-. The market value of the land was Rs. 4,50,000/-. The land was purchased in AY 2011-12. However, the land has been sold in the same year to Shri Hemraj Rathore for a consideration of Rs. 8,00,000/-. The entire transaction has been shown by the appellant in her regular books of accounts. Since the land was an agricultural land, therefore, no capital gain tax was paid on sale of the impunged land. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in books of accounts. (iv) The appellant on 08.11.2010 has purchased a land at Kailadevi from Shri Batti Lai for a total consideration of Rs. 4,00,000/-. The market value of the land was Rs. 4,00,000/-. The land was purchased in AY 2011- IT(SS)As No.157 & 158/Ind/2019 6 12. Appellant before me has submitted that amount of Rs. 4,14,300/- being cost of purchase and registry and other charges has been voluntary surrendered/disclosed in return filed u/s 153A of the Act. once the appellant has voluntary made disclosure of undisclosed investment in purchase in land, there lies no locus on the AO to make twice addition on the same account. (v) The appellant on 13.08.2010 has purchased a land at Bhatkhedi from Shri Naktu Laxman & Others for a total consideration of Rs. 1,42,60,000/-. The market value of the land was Rs. 1,42,60,000/-. The land was purchased in AY 2011-12. On perusal of copy of ledger account of ‘Land Naktu’ it was observed that appellant has recorded transaction on 09.08.2010 of Rs, 1,42,60,000/- being cost of land and Rs. 12,26,425/- being registry and other expenses paid by Shri LN Shivhare. However, the land has been sold in the same year to Shri Ashok Kumar Gupta along with other part of land for Rs. 2,05,51,000/-. The entire transaction has been shown by the appellant in her regular books of accounts. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (vi) The appellant on 09.08.2010 has purchased a land at Bhatkhedi from Smt Shila Devi for a total consideration of Rs. 18,00,000/-. The market value of the land was Rs. 18,00,000/-. The land was purchased in AY 2011-12. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (vii) The appellant on 21.01.2011 has purchased a land at Bhatkhedi from Shri Maktu Laxman & Others for a total consideration of Rs. 41,40,000/-. The market value of the land was Rs. 41,40,000/-. The land was purchased in AY 2011-12. The land was sold on 31.03.2011 to Shri Ashok Kumar Gupta. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land, registry and other charges and sale proceeds received on sale of land. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (viii) The appellant along with Shri LN Shivhare on 16.12.2010 has purchased a property at DB City, Bhopal from Shri Mohan Singh & Ors for a total consideration of Rs. 70,00,000/-. The market value of the land was Rs. 71,09,000/-. The land was purchased in AY 2011-12 the entire payment has been made by Shri TN Shivhare through cheques. On IT(SS)As No.157 & 158/Ind/2019 7 perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (ix) The appellant along with Shri LN Shivhare on 31.03.2011 has purchased a property at DB City, Bhopal from Shri Mohan Singh & Ors for a total consideration of Rs. 30,53,000/-. The market value of the land was Rs. 30,53,000/-. The land was purchased in AY 2011-12 and the entire payment has been made by Shri LN Shivhare through cheques. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (x) The appellant along with Smt Manju Goyal on 27.10.2010 has purchased a property at Purani Chawani, Gwalior from Shri Yogesh Kumar for a total consideration of Rs. 3,30,00,000/- in their partnership firm M/s Kamla Cold Storage. The appellant has filed details of payment made for purchase of land which are as under:- Amount Paid Source 11465099 From the account of firm 5000000 From the account of firm 7000000 From the account of firm 2000000 Paid by Smt Manju Goyal 1000000 Paid by Smt Manju Goyal 1534901 Paid by Smt Manju Goyal 3000000 Paid by Smt Kamla Shivhare 2000000 Paid by Smt Kamla Shivhare 33000000 Total The market value of the land was Rs. 3,30,00,000/-. The land was purchased in AY 2011-12. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. IT(SS)As No.157 & 158/Ind/2019 8 • Addition of Rs. 3,70,08,500/- (AY 2012-13):- (i) The appellant on 14.03.2012 has purchased a land at Rairu, Gwalior from Smt Suman Bansal for a total consideration of Rs. 26,00,000/-. The market value of the land was Rs. 26,00,000/-. The land was purchased in AY 2012-13. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (ii) The appellant on 14.12.2011 has purchased a land at Purani Chawani, Gwalior from Shri Munna Khan & Ors for a total consideration of Rs. 45,00,000/-. The market value of the land was Rs. 81,85,000/-. The land was purchased in AY 2012-13. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (iii) The appellant along with Smt Manju Goyal on 09.12.2011 has purchased a land at Rairu, Gwalior from Smt Simran Singh for a total consideration of Rs. 56,70,000/-. The market value of the land was Rs. 28,00,000/-. The land was purchased in AY 2012-13. On perusal of copy of ledger account filed by the appellant it was observed that appellant has paid only sum of Rs. 7,88,611/- towards purchase of the said property and the balance amount has been paid by Smt Manju Goyal. The entire transaction has been shown by the appellant in her regular books, of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (iv) The appellant on 02.09.2011 has purchased a land at Survey No 68, ward no 30, Gwalior from Smt Sadhna Singh & Ors for a total consideration of Rs. 1,05,00,000/-. The market value of the land was Rs. 1,37,72,500/-. The land was purchased in AY 2012-13. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. IT(SS)As No.157 & 158/Ind/2019 9 (v) The appellant on 09.06.2011 has purchased 3 shops at Karera from Smt Veena Saxena for a total consideration of Rs. 2,50,000/-. The market value of the land was Rs. 10,91,000/-. The shops were purchased in AY 2012-13. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, me /\w was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (vi) The appellant on 12.01.2012 has purchased a land at Kailadevi, Karoli from Smt Balo for a total consideration of Rs. 40,00,000/-, The market value of the land was Rs. 40,00,000/-. The land was purchased in AY 2012-13. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts. (vii) The appellant on 25.07.2011 has purchased a land at Chrwal, Gwalior from Shri Adhunik Buildcon for a total consideration of Rs. 45,60,000/-. The market value of the land was Rs. 75,87,000/-. The land was purchased in AY 2012-13 and all the payments have been made through cheques. On perusal of copy of ledger account filed by the appellant it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land and registry and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to property are fully recorded in regular books of accounts.” 8. On careful consideration of the relevant part of the assessment order and findings recorded by the ld.CIT(A) as has been reproduced hereinabove, we note that the ld.CIT(A), after considering the explanation, facts and supporting documentary evidence, held that the land was purchased in 2011-12 and copy of the ledger account shows that the entire amount has been shown by the appellant in her books of account including cost of land, registration and other charges. Likewise, for the addition made for AY 2012-13, the ld.CIT(A), after considering the reply of the assessee and supporting documentary evidence, concluded that on perusal of copy of IT(SS)As No.157 & 158/Ind/2019 10 ledger account, it is clear that the entire transaction has been shown by the assessee in her books of account including cost of land registration and other charges. Therefore, the AO was not justified in making addition on account of purchase of property when all the transactions relating to the property were fully recorded in regular books of account. The ld.CIT(A) also noted that the payments towards purchase of land from Shri Adhunik Buildcon has been made through cheques during AY 2012-13 and copy of ledger reveals that the transaction has been recorded in the books of account showing cost of land, registry and other charges. Thereafter, the ld. CIT(A) held that the AO was not justified in making addition on account of purchase of property when all the transactions are fully recorded in the books of account. From a perusal of the relevant part of the assessment order, we clearly note that the ld.CIT(A) has granted relief to the assessee on the strength of documentary evidence in the form of copies of purchase deed, property account in the audited books and relevant extracts of balance sheet and fixed assets schedule and the ld.CIT-DR could not dislodge the findings made by the ld.CIT(A) by way of any plausible and acceptable reason. Therefore, we have no alternative, but, to approve the findings recorded by the ld. First Appellate Authority on this score as we are unable to see any valid reason to interfere with the findings arrived at by the ld.CIT(A) and, thus, we uphold the same. Accordingly, ground No.1 of the Revenue for AY 2011-12 and Ground No.2 of the Revenue for AY 2012-13 are dismissed. 9. Ground No.2 of the Revenue for AY 2011-12 and ground No.3 of the Revenue for AY 2012-13. The ld.CIT-DR, drawing our attention towards para 13 of the assessment order, submitted that the assessee made undisclosed expenditure towards construction of warehouses which was rightly treated by the AO as unexplained IT(SS)As No.157 & 158/Ind/2019 11 expenditure/investment as the assessee failed to produce any documents, balance sheet or evidences regarding the firm which could prove that the firm was duly incorporating all the expenses in its books of account pertaining to this investment. The ld.CIT-DR also submitted that the AO as well as the special auditor provided sufficient time to explain the factual position of the said investment, but, the assessee failed to avail this opportunity. Therefore, the AO was right in making addition in the hands of the assessee regarding 50% investment/expenditure shown by the assessee in establishment of warehouse. 10. The ld. AR submitted that the AO has made addition of 50% of the amount paid for construction of warehouse at Kolaras and addition has been made on the basis of loose paper as reproduced by the AO at page 16 of her order which is a jottings of Rs.17,63,320/-. The ld. AR submitted that the copy of balance sheet of M/s Maa Kaila Devi Cold Storage (prop. Shri L.N. Shivhare) clearly reveals that the construction cost of warehouse has been shown by Shri Laxminarayan Shivhare in his proprietorship concern M/s Jai Maa Kaila Devi Cold Storage at Rs.49,41,537/- as on 31.03.2013. He further submitted that loose paper picked up by the AO for making addition does not contain any date and addition has been made in AY 2011-12 on the basis of presumption and such jotting having no date and description does not have any meaning that whether the same are receipts or payments. Therefore, no addition si called for in the hands of the assessee when the AO could not bring any positive adverse material against the assessee to show undisclosed investment in construction of warehouse by the assessee. IT(SS)As No.157 & 158/Ind/2019 12 11. Regarding addition of Rs.20,84,075/- on account of undisclosed income from partnership firm M/s Jai Maa Sharda Devi Warehouse, the ld.CIT-DR submitted that the AO rightly made addition in the hands of the assessee as the explanation of the assessee dated 30.07.2018 was not found to be plausible and acceptable as the assessee failed to produce any documents, balance sheet or evidence regarding the firm which could prove that the firm is duly incorporating all the expenses in its books of account despite the fact that the assessee was given sufficient time and opportunity to produce the evidences during the assessment proceedings and by the special auditor. Therefore, the AO was right in making the addition. 12. Replying to the above, the ld. AR submitted that the impugned addition has been made on the basis of pages 44 and 49 found and seized from the residence of Mr. Ved Prakash Goyal which have been reproduced by the AO at pages 18 and 19 of the assessment order. The ld. AR submitted that from two papers, the AO noted that the sum of Rs.15,68,000/- and Rs.26,00,150/- was unaccounted cash receipt of M/s Jai Maa Sharda Devi Warehouse wherein the assessee was a partner having 50% of the share, but, the partnership firm was separately assessed to income-tax and the entire receipts have been recorded and shown by the said partnership firm in its books of account. Therefore, any receipts of the partnership firm cannot be taxed in the hands of the partner as the share of profit from partnership firm is exempt u/s 10(2A) of the Income-tax Act, 1961 (for short, ‘the Act’). The ld. AR submitted that the findings arrived at by the ld.CIT(A) for AYs 2011-12 and 2012-13 may kindly be upheld dismissing the grounds of the Revenue for both the years. IT(SS)As No.157 & 158/Ind/2019 13 13. On careful consideration of the above rival submissions, first of all, we note that the ld.CIT(A) has granted relief to the assessee with the following observations and findings:- “4.3.2 I have considered the facts of the case, evidences on record and findings of the AO. The ground of appeal under consideration has two different issues which need to be discussed elaborately in order to unearthing the true and correct facts of the case. • The first addition has been made by the AO on account of 50% of sum of Rs. 17,63,320/- in AY 2011-12 and Rs. 15,68,000/- in AY 2012-13. On perusal of copy of loose paper no 47 which is also scanned on page no 16 of assessment order, it can be seen that a sum of Rs. 17,63,320/- is written at the bottom of the page, being total of various payments made towards construction of cold storage i.e. M/s Maa Kaila Devi Warehouse. However, on perusal of loose paper no 44 & 45 which are scanned on page no 17 & 18 of the assessment order it can be seen that various entries date wise have been jotted down. At the bottom of page a sum of Rs. 15,68,000/- has been jotted down with narration ‘nagadi aayi’ and another sum of Rs. 1,95,320/- is noted down with narration ‘nagadi bakaayaa’. On totaling both the amounts the sum comes to Rs. 17,63,320/- which is the total as mentioned on page no 47 as discussed above. The only conclusion which can be drawn from above discussion is that the AO has made double addition which is not admissible under law. Nonetheless, the addition has been made on account of expenses made on construction of M/s Maa Kaila Devi Warehouse. Appellant before me has filed copy of construction account with balance sheet of M/s Maa Kaila Devi Warehouse. On perusal of copy of balance sheet and construction account it was observed that appellant has shown total expenditure on construction of warehouse of Rs.49,41,537/- as on 31.03.2013. However, the jottings of transactions are of Rs. 17,63,320/- only. • Second addition has been on account of 50% of sum of Rs. 26,00,150/- in AY 2012-13 & Rs. 15,98,025/- in AY 2013-14 as mentioned on loose paper no 48 & 49, wherein receipt of M/s Jai Maa Sharda Devi warehouse has been jotted down. The appellant before me has taken a plea that the only reason for addition of Rs. 20,84,075/- is on account of presumption made by the AO that date of registration of the warehouse is 7th March 2013. The appellant further stated that the warehouse was constructed much before and returns of income for AY 2012-13 & 2013-14 has been duly filed. M/s Jai Maa Sharda Devi warehouse on 7th march 2013 has registered itself for grant of government subsidy. In support appellant has filed copies of ITR and balance sheet of the said firm. On perusal of copy of balance sheet of the firm for FY 2011 -12 (AY 2012-13) it was observed that M/s Jai Maa Sharda Devi warehouse has shown ‘warehouse rent receipts’ of Rs. 26,00,150/- which is as narrated on loose paper no 49 IT(SS)As No.157 & 158/Ind/2019 14 found and seized during the course of search. Further, the firm M/s Jai Maa Sharda Devi warehouse in FY 2012-13 (AY 2013-14) has shown ‘warehouse rent receipt’ of Rs. 43,27,301/- which is more than that jotted down on loose paper no 49 which was found and seized during the course of search. 4.3.3 In view of the above discussion, firstly the AO was not justified in presuming that appellant has made undisclosed investment in firm M/s Maa Kaila Devi Warehouse (Prop Shri L N Shivhare). Secondly, the AO erred in treating receipt of ware house as income of the partners of the firm, however, the firm is a regular assessee of Income Tax and has duly shown rent receipts as mentioned on impugned loose papers. Thirdly, the AO failed to bring on record any corroborative evidence in support of his allegation. Thus, the addition made by the AO amounting to Rs. 8,81,660/- in AY 2011-12, Rs. 20,84,075/- in AY 2012-13 and Rs. 7,99,012/- in AY 2013-14 are Deleted. Therefore, appeal on this ground is Allowed.” 14. On being asked by the Bench, the ld.CIT-DR could not dislodge the findings recorded by the CIT(A) after considering the explanation and supporting documentary evidence of the assessee that the copy of the balance sheet of firm for AY 2012-13 revealed that M/s Jai Maa Sharda Devi Warehouse has shown warehouse rent receipt of Rs.26,00,150/- as noted at loose paper No.49 found and seized during the course of search and the said firm has also shown warehouse rent receipt of Rs.43,27,301/- which is more than the amount jotted down in paper No.49 found and seized during the course of search and seizure operation. 15. Regarding addition for AY 2011-12, we also note that the ld.CIT(A), after perusing and considering the books of account of the firm M/s Maa Kaila Devi Cold Storage, noted that the said proprietorship firm has shown total expenditure on construction of warehouse at Rs.49,41,537/- as on 31.03.2013 and jottings of transaction at page 44,45 and 47 are only Rs.17,63,320/-. Therefore, no further addition is called for in this regard. We are unable to see any ambiguity, perversity or IT(SS)As No.157 & 158/Ind/2019 15 any other valid reason to interfere with the findings recorded by the ld.CIT(A). Therefore, ground No.2 of the Revenue for AY 2011-12 and Ground No.3 of the Revenue for AY 2012-13 are dismissed. Grounds No.3 to 6 of the Revenue for AY 2011-12. 16. Regarding these grounds, the ld.CIT-DR simply supported the assessment order and relied thereon. However, he could not dislodge a factual position that the ld.CIT(A) has considered relevant documentary evidence pertaining to purchase of immovable property referred to in grounds No.1 and 2. In view of the findings recorded for grounds No.1 and 2 of the Revenue for AY 2011-12 (supra), we decline to accept the contention of the Revenue that the ld.CIT(A) has erred in not taking cognizance of the fact that the assessee failed to submit the documentary evidence pertaining to the purchase of immovable properties during the course of special audit and assessment proceedings. The ld.CIT-DR could not show us any new or additional evidence which was not before the AO and filed before the ld.CIT(A) as fresh/additional evidence while granting relief to the assessee. We are of the considered view that when the ld.CIT(A) has considered all the documentary evidences filed before him in support of the claim of the assessee, then, without showing any substantial factual position to show that there was new/additional evidence before the CIT(A) which was not before the AO, then, the contention of the Revenue in this regard cannot be held as acceptable. In view of our above findings recorded for Grounds No.1 and 2 of the Revenue for AY 2011-12, the remaining grounds of the Revenue i.e., ground No.3 to 6 being supportive to the grounds No.1 and 2 of the Revenue are also dismissed being devoid of merits. IT(SS)As No.157 & 158/Ind/2019 16 17. Since grounds No.4 to 7 of the Revenue for AY 2012-13 are identically worded with the grounds No.3 to 6 of the Revenue for AY 2011-12, therefore, our findings recorded for AY 2011-12 would apply, mutatis mutandis, to grounds No. 4 to 7 of the Revenue for AY 2012-13. Accordingly, the same are dismissed bereft of merits. Ground No.1 of the Revenue for AY 2012-13. 18. Regarding ground No.1, supporting the assessment order, the ld.CIT-DR drew our attention to relevant para 11. The ld.CIT-DR submitted that the assessee failed to explain the source of amount received out of sale transaction of property especially when the sale deed clearly reveals that the assessee, in the capacity of seller has executed the document and the same was duly reflected in her return of income and tax has already been duly paid thereon. The ld. CIT-DR further pointed out that the AO noted that the assessee did not explain the source of investment in the properties where the assessee was shown as a purchaser. Therefore, the AO was right in treating the transactions mentioned in table-1 as undisclosed income of the assessee from sale of property. The ld. CIT-DR pointed out that the ld.CIT(A) has granted relief to the assessee without any basis, therefore, the impugned first appellate order may kindly be set aside and the order of the AO may be restored. 19. The ld. AR vehemently supporting the findings recorded by the ld.CIT(A), submitted that the assessee had sold an agricultural land situated at village Padora, District Shivpuri, MP, to Shri Jaipal Singh and others and the purchase as well as sale value of the land was same i.e., Rs.4,46,100/-, therefore, no capital gain accrued to the assessee. Therefore, the AO was not right in making addition in this regard and the ld.CIT(A) rightly deleted the same. Further, regarding the remaining impugned IT(SS)As No.157 & 158/Ind/2019 17 amount, the ld. AR submitted that the assessee has sold agricultural land situated at Bhakt Khedi to Shri Ashok Kumar Gupta and while filing the return of income u/s 153A for AY 2012-13, the assessee had also shown a sum of Rs.5,37,272/- as short-term capital gain. The ld. AR pointed out that the books of account of the assessee revealed that other transaction has been shown and disclosed in the books of account and cost of land, registry and other charges paid thereon have also been recorded in the books of account, therefore, the AO was not right in making addition in this regard in the hands of the assessee on the transaction which was properly recorded by the assessee in her books of account. Therefore, the findings recorded by the ld.CIT(A) may kindly be upheld by dismissing the ground No.1 of the Revenue for AY 2012-13. 20. On careful consideration of the above rival submissions, first of all, we may point out that the ld.CIT(A) has granted relief to the assessee with the following findings and observations:- “• Addition of Rs. 2,09,97,100/- (AY 2012-13):- (i) The appellant on 10.05.2011 has sold an agricultural land at village Padora, Shivpuri, MP to Shri Jaipal Singh & Ors for a total consideration of Rs. 4,46,100/-. The market value of the land was Rs. 4,46,100/-. The land was sold in AY 2012-13. On perusal of copy of ledger account and copy of registry it was observed that the land sold by the appellant was an agricultural land and therefore, no capital gain tax was paid. Therefore, the AO was not justified in making addition on account of sales proceeds of agricultural land sold by the appellant. (ii) The appellant on 13.06.2011 has sold land at village Bhatkhedi to Shri Ashok Kumar Gupta for a total consideration of Rs. 2,05,51,000/-. The market value of the land was Rs. 2,05,51,000/-. The land was sold in AY 2012-13. The appellant before me has submitted that the 3 lands have been sold i.e. land at Bhatkhedi (Rs. 19,54,675/-), Land Naktu (Rs. 1,54,86,425/-) and land Naktu Part-2 (Rs. 44,95,164/-) for total sale consideration of Rs. 2,19,36,264/- which includes cost of IT(SS)As No.157 & 158/Ind/2019 18 land of Rs. 2,05,51,000/- and Rs. 13,85,264/- towards development expenses. The appellant also submitted that no STCG was calculated because there was loss of Rs. 13,85,264/-, however, while filing ROI u/s 153A the appellant has not claimed development expense of Rs. 19,22,536/- and surrendered a sum of Rs. 5,37,272/- on account of STCG. On perusal of copy of ROI filed u/s 153A it was observed that the appellant has shown sum of Rs. 5,37,272/- on account of STCG. Further, appellant has also filed copies of ledger account of the impunged lands and it was observed that entire transaction has been shown by the appellant in her regular books of accounts including cost of land, registry and other charges and sales proceeds received on sale of land. Therefore, the AO was not justified in making addition on account of sale of property when all the transactions relating to property are fully recorded in regular books of accounts and STCG has been shown in return filed u/s 153 A of the Act.” 21. In view of the above, first of all, we may point out that the ld.CIT-DR could not dislodge the factual findings recorded by the ld.CIT(A) while adjudicating the grievance of the assessee and considering the explanation supported by documentary evidence filed by the assessee. In our considered opinion, when regarding sale of agricultural land to Shri Jaipal Singh the assessee purchased the land at a consideration of Rs.4,46,100/- and sold the land at a sale consideration, therefore, no capital gain was accrued to the assessee. Regarding other transactions of sale of land, undisputably, in the return of income filed by the assessee for AY 2012-13 in response to notice u/s 153A which was clearly discernible that the assessee has shown short-term capital gain at Rs.5,37,272/- after considering the cost of land, development charges, registration and other charges and all transactions were recorded in the books of account of the assessee, then, no addition in respect of undisclosed investment at the time of purchase of land and on account of undisclosed short-term or long-term capital gain cannot be made in the hands of the assessee without any cogent evidence and justified basis. Therefore, the ld.CIT(A) was right in IT(SS)As No.157 & 158/Ind/2019 19 deleting the addition made by the AO. Accordingly ground No.1 of the Revenue for AY 2012-13 is also dismissed. 22. In the result, both the appeals of the Revenue are dismissed. Order pronounced u/r 34(4) of the Income-tax (Appellate Tribunal) Rules, 1963 on 10.02.2023. Sd/- Sd/- (BHAGIRATH MAL BIYANI) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 10 th February, 2023. dk Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi Date 1. Draft dictated on 02.02.2023 2. Draft placed before the author 03.02.2023 3. Draft placed before the other Member 4. Approved Draft comes to the Sr.PS/PS 5. Order uploaded on 6. File sent to the Bench Clerk 7. Date on which file goes to the Head Clerk. 8. Date on which file goes to the AR 9. Date of dispatch of Order.