Zaheda Mohd. Salim Shaikh, V. The Dy.CIT.,Bharuch Circle, Bharuch

ITSSA 159/AHD/2007

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8313 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-06-2011
• Assessment Year: misc
• Appeal Filed On: 10-12-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Income from undisclosed sources; Document seized; Opportunity of being heard; Period of limitation; Cost of acquisition; Block assessment; Time period of passing order; Documents seized
• Section: 142(1); 133(6); 132; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI MUKUL SHRAWAT,JM & SHRI A N PAHUJA,AM IT(SS)A NO.159/AHD/2007 [BLOCK PERIOD:-01-04-1996 TO 13-08-2002] SMT. ZAHEDA MOHD. SALIM SHAIKH, MOBINE SOCIETY, ANKLESHWAR, DIST: BHARUCH [PAN: NOT AVAILABLE] V/S DEPUTY COMMISSIONER OF INCOME-TAX, BHARUCH CIRCLE, BHARUCH [APPELLANT] [RESPONDENT] IT(SS)A NO.162/AHD/2007 [BLOCK PERIOD:-01-04-1996 TO 13-08-2002] DEPUTY COMMISSIONER OF INCOME-TAX, BHARUCH CIRCLE, BHARUCH V/S SMT. ZAHEDA MOHD. SALIM SHAIKH, MOBINE SOCIETY, ANKLESHWAR, DIST: BHARUCH [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI M K PATEL, AR REVENUE BY:- SHRI B L YADAV, DR O R D E R A N PAHUJA: THESE CROSS APPEALS AGAINST AN ORDER DATED 14-09- 2007 OF THE LD. CIT(APPEALS)-VI, BARODA RAISE THE F OLLOWING GROUNDS:- IT(SS)A NO.159/AHD/2007[ASSESSEE] THE LEARNED CIT(A) VI HAS ERRED IN LAW AND ON FACTS IN- 1. NOT SETTING ASIDE THE ASSESSMENT ORDER OF THE LE ARNED AO DCIT BHARUCH CIRCLE, BHARUCH ON GROUND THAT THE PROVISIONS OF SECTION 158BD WERE NOT APPLICABLE TO HIM. 2. NOT SETTING ASIDE THE ASSESSMENT ORDER OF THE LE ARNED AO DCIT BHARUCH ON THE GROUND THAT THE ASSESSMENT ORDER WAS TIME BARRED UNDER THE ACT. 3. NOT ACCEPTING THE PLEA OF THE APPELLANT THAT THE ORDER WAS VITIATED AS SUFFICIENT AND PROPER OPPORTUNITY A S REQUIRED U/S 158BG OF THE ACT WAS NOT AFFORDED TO T HE APPELLANT. 2 IT(SS)A NOS.159 & 162 /AHD/2007 2 4. UPHOLDING ADDITION MADE OF RS.2,04,950/- U/S 69 OF THE ACT AND RS.73,461/- AS CAPITAL GAINS. THE APPELLANT THEREFORE PRAYS & APPEALS THAT 1. THE NOTICE ISSUED U/S 158BD BE TREATED AS BEING BAD IN LAW AND THE ASSESSMENT PROCEEDINGS BE TREATED AS NU LL & VOID AB INITIO & HENCE SQUASHED. 2. THE ASSESSMENT ORDER ISSUED HAVING BEEN PASSED BEYOND THE LIMITATION PERIOD PRESCRIBED BED UNDER T HE ACT BE TREATED AS NULL & VOID ABINITIO & HENCE QUASHED. 3. THE FACT THAT THE PROCEDURE REQUIRED BY THE ACT UNDER PROVISION OF SECTION 158BG NOT HAVING BEEN FOLLOWED IN FACT NO OPPORTUNITY GIVEN TO THE APPELLANT AS REQUI RED U/S 158BG BEFORE APPROVING THE ASSESSMENT ORDER THE WHO LE ASSESSMENT PROCEEDINGS ARE BAD IN LAW AND THE SAME BE SQUASHED. 4. THE ADDITION OF RS.73,461/- ON ACCOUNT OF CAPITA L GAIN BE DELETED FROM MY ASSESSED INCOME. 5. THE ADDITION MADE OF RS.2,04,950/- U/S 69 OF THE ACT BE DELETED FROM MY ASSESSED INCOME. 6. THE NOTICE IS U/S 158BFA(2) OF THE INCOME TAX AC T, 1961 BE SQUASHED. WITHOUT PREJUDICE TO THE ABOVE, ASSESSEE RESERVES ITS RIGHT TO MAKE ANY AMENDMENT TO THE GROUNDS OF APPEAL AT THE TIME OF HEARING. IT(SS)A NO.162/AHD/2007[REVENUE] 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ASSESS THE RECEIPT OF RS.278411/- UNDER THE HEAD CAPITAL G AINS INSTEAD OF UPHOLDING THE DECISION OF THE AO TAXING THE SAID AMOUNT AS UNEXPLAINED / UNACCOUNTED MONEY RECEIVED BY THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3 IT(SS)A NOS.159 & 162 /AHD/2007 3 RELIEF CLAIMED IN APPEAL . THE ORDER OF THE CIT(A) DIRECTING THE AO TO ASSESS THE RECEIPT OF RS.278411/- UNDER THE HEAD CAPITAL GAINS INSTEAD OF TAXING THE SAID AMOUNT AS UNEXPLAINED / UNACCOUNTED MONEY RECEIVED BY THE ASSESSEE BE SET ASIDE AND THAT OF THE AO BE RESTORED. 2. ADVERTING FIRST TO GROUND NOS. 1 TO 4 IN THE APP EAL OF THE ASSESSEE, FACTS, IN BRIEF, AS PER RELEVANT ORDERS A RE THAT THE A SEARCH U/S 132 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER RE FERRED TO AS THE ACT] WAS CONDUCTED ON 13-08-2002 IN THE SHROFF GROUP OF CASES AT BHARUCH & ANKLESHWAR, INCLUDING RESIDENTIAL PREMISE S OF SHRI MUKESH M KELAWALA, SITUATE AT 4/5, SWAMI VIVEKANAND SOCIETY, NEAR PRITAM SOCIETY NO.1, BHARUCH. DURING THE COURSE OF SEARCH IN THE RESIDENTIAL PREMISES OF SHRI MUKESH M KELAWALA, CER TAIN INCRIMINATING DOCUMENTS SEIZED AND INVENTORISED AT SR. NOS. 50 & 51 OF ANNEXURE-A/13 REVEALED THAT M/S EKTA CORPORATIO N, A PARTNERSHIP FIRM WAS INITIALLY FORMED ON 13-08-1996 WITH THE FO LLOWING PERSONS AS PARTNERS:- SR. NO. NAME OF PARTNERS SHARE OF PROFIT 1 SHRI HASMAT MOHD. CIRCLE 20 % 2 SHRI MOHD. ASIF N SHAIKH 15 % 3 SHRI MOHD. YOUSUF N SHAIKH 15 % 4 SMT. JOHIDA MOHD. SALI SHAIKH 10 % 5 SHRI MAQSOOD AHMD. G SHAIKH 10 % 6 SMT. SAJEDA BANO M FANOQSAUQ 15 % 7 SHRI GULAM MOHD. H SHAIKH 15 % THE FIRM DID NOT HAVE ANY BUSINESS ACTIVITY EXCEPT THAT THE ORIGINAL PARTNERS HAD PURCHASED A PLOT OF LAND ADMEASURING 3 175 SQ. MTR. AT SURVEY NO. 79, VILLAGE GADKHOL, ANKLESHWAR, VIDE REGISTERED DOCUMENTS DATED 30-10-1996 FOR RS.10 LACS, FOR DEVE LOPMENT BUT, IN FACT, NO DEVELOPMENT ACTIVITY COULD BE TAKEN UP. TH EREAFTER, THE PARTNERSHIP DEED OF M/S EKTA CORPORATION WAS AMENDE D ON 24-09- 1997 AND ALL THE OLD PARTNERS EXCEPT SHRI GULAM MOH D. SHAIKH MENTIONED AT SR. NO. 7 ABOVE, RETIRED AND SHRI MUKE SH M KELAWALA AND SMT. BHARATI M KELAWALA WERE TAKEN AS NEW PARTN ERS. ACCORDING 4 IT(SS)A NOS.159 & 162 /AHD/2007 4 TO THE RECONSTITUTED PARTNERSHIP DEED, THE NEW CONS TITUTION OF M/S EKTA CORPORATION WITH EFFECT FROM 24-09-1997 WAS AS UNDER:- SR. NO. NAME OF PARTNERS SHARE OF PROFIT 1 MRS. BHARATI M KELAWALA 35 % 2 SHRI MUKESH M KELAWALA 50 % 3 SHRI GULAM MOHD. M SHAIKH 15 % THUS, IN EFFECT, SHRI MUKESH M KELAWALA AND HIS WIF E HAVING 85% SHARE IN THE FIRM, INDIRECTLY GOT 85% SHARE OF THE LAND WHICH WAS THE ONLY ASSET OF THE FIRM. M/S EKTA CORPORATION NEVER FILED ANY RETURN OF INCOME NOR ANY BOOKS OF ACCOUNTS WERE STATED TO HAVE BEEN MAINTAINED. IN THE RETURN OF SHRI MUKESH M KELAWALA ,AN AMOUNT OF RS.1,75,000/- AND IN THE RETURN OF HIS WIFE, AN AMOUNT OF RS.2,21,000/- WAS SHOWN AS INVESTMENT AS ON 31-03-1998 IN M/S EKTA CORPORATION. HOWEVER, THE AFORESAID SEIZED DOCUMENTS AS PER PAGE S 50 & 51 OF ANNEXURE-A/13 SHOWED THAT THE SHRI MUKESH M KELAWAL A AND SMT. BHARATI M KELAWALA HAD PAID MUCH HIGHER AMOUNT TO A CQUIRE THE SHARE IN M/S EKTA CORPORATION. AS PER THESE PAGES, THE TOTAL COST OF THE LAND OWNED BY M/S EKTA CORPORATION WAS VALUED A T RS.32.50 LACS AS ON 24-09-1997 I.E. THE DATE ON WHICH SHRI MUKESH M KELAWALA AND SMT. BHARATI M KELAWALA ENTERED AS PARTNERS IN M/S EKTA CORPORATION. SHRI MUKESH M KELAWALA CONFIRMED THAT THE CASH PAYMENTS OF RS.23,66,500/-. WERE GIVEN TO THE RETIRING PARTN ERS OF M/S EKTA CORPORATION ON THE BASIS OF THEIR PROFIT S HARING RATIO. HOWEVER, ON ENQUIRIES U/S 133(6) OF THE ACT , IT TR ANSPIRED THAT THE ASSESSEE DID NOT HAVE ANY INCOME OTHER THAN AGRICULTURAL INCOME AND THEREFORE, NO RETURN OF INCOME WAS FILED NOR ANY APPLICATION F OR ALLOTMENT OF PAN WAS MADE. IN NUTSHELL, THE ORIGINAL PARTNERS I N THE FIRM DID NOT DISCLOSE THEIR RESPECTIVE SHARE IN THE AFORESAID CASH RECEIPTS FOR INCOME TAX PURPOSES NOR EXPLAINED THE SOURCE OF THE IR INITIAL INVESTMENT. CONSEQUENTLY, A NOTICE U/S 158BD OF THE ACT WAS ISSUED ON 29-12-2004 AND SERVED ON THE ASSESSEE ON 5-01-2 005, REQUIRING HER TO FURNISH THE RETURN OF UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 5 IT(SS)A NOS.159 & 162 /AHD/2007 5 HOWEVER, THE ASSESSEE DID NOT FURNISH ANY RETURN FO R THE BLOCK PERIOD. LATER A QUESTIONNAIRE CUM NOTICE U/S 142(1) ISSUED ON 08- 01-2007 WAS SERVED ON REPRESENTATIVE OF THE ASSESSE E SHRI MM SHAIKH ON 12.1.2007 WITH THE ASSISTANCE OF POLICE. IN REPLY, THE ASSESSEE FILED WRITTEN SUBMISSION IN DAK, SEEKING E XTENSION OF TIME FOR COLLECTING THE INFORMATION FOR FILING RETURN BE SIDE SEEKING REASONS FOR INITIATION OF ACTION U/S 158BD OF THE ACT. THE ASSESSEES REPRESENTATIVE VIDE WRITTEN SUBMISSION DATED 17-01- 2007, STATED AS UNDER:- 'WITH REF. TO YOUR ABOVE SAID LETTER AND SUBSEQUENT NOTICE RECEIVED BY ME ON DT. 15/01/2007, ON BEHALF OF MY CLIENTS, 1. MR. HASMAT MOHD. CIRCLE (AGRICULTURISTS) 2. MR. MOHD. YUSUF N. SHAIKH (HE IS AT ABROAD) 3. MR. MOHD. ASIFN SHEIKH (HE IS AT ABROAD SINCE 19 98) 4. SMT. JAHIDA MOHD SOLIM SHAIKH (HOUSE WIFE) 5. SMT. SAJEDABANU MOHD. FAROOK SHAIKH (HOUSE WIFE) 6. MR. MAQSOOD AHMED G. SHAIKH (HE WAS AT ABROAD) I AM ENCLOSING THEIR ANSWER AS PER THEIR INSTRUCTIO N AS BELOW IN THEIR WORDS, 'IN THE CAPTION MATTER, DESPITE THE REASONS GIVEN B Y YOU IN ABOVE SAID LETTER, WE BAG TO DIFFER AND STATE THAT THE PROVISION OF SECTI ON 158BD IS NOT APPLICABLE TO US. THE PROVISIONS OF SECTION 158BD CLEARLY SAYS ASUNDE R: 'WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSONS, OTHER THAN THE PERSONS WITH RESPECT TO WHOM SEARCH WAS MADE U/S.132 OR WHOSE BOOKS OF ACCOUNTS OR OTHER DOCUMEN TS OF ANY ASSETS WHERE REQUISITIONED U/S 132A, THAN THE BOOKS OF ACCOUNTS, OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER SHALL PROCEED (U/S. 158BC) AGAINST SUCH OTHER PERSON AND THE PROVISION OF THIS CHAPTER SHALL APPLY ACCORDINGLY.' AS GIVEN TO UNDERSTAND BY MR, MUKESH KELAWALA, OUR NAMES DO NOT APPEAR IN ANY BOOKS OF ACCOUNTS, OTHER DOCUMENTS, AND ASSETS SEIZ ED U/S.132 OR REQUISITIONED U/S.132 A FROM HIM. WE HAVE IN OUR VARIOUS STATEMENTS IN RESPECT OF SEA RCH OF MR. MUKESH KELAWALA, HAVE STATED THAT WE HAVE NOT RECEIVED THE TOTAL AMO UNT CONTRACTED FOR AS STATED IN YOUR NOTICE DT. 8/01/2007 BUT WE HAVE RECEIVED ONLY VERY SMALL SUMS IN BITS & PIECES. IN VIEW OF THE SOME & THE FACT THAT WE HAVE NOT REC EIVED ANY UNACCOUNTED AMOUNT FROM MR. MUKESH KELAWAIA AS STATED IN YOUR N OTICE. WE ARE NOT LIABLE TO PAY ANY TAX NOR WE LIABLE TO FILE ANY RETURN OF INC OME U/S.158 BD AS WELL AS U/S.139. 6 IT(SS)A NOS.159 & 162 /AHD/2007 6 FURTHER ON READING OF SECTION 158BD R.W.S. 158BE (2 ) AS UNDER. 'THE PERIOD OF LIMITATION FOR COMPLETION OF BLOCK A SSESSMENT IN CASE OF OTHER PERSON REFERRED TO IN SECTION 158BD SHALL BE '(B)' TWO YEARS OF THE END OF THE MONTH IN WHICH THE NOTICE THIS CHAPTER WAS SERVED O N SUCH OTHER PERSON IN RESPECT OF SEARCH INITIATED OR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED ON OR AFTER THE 1 ST DAY OF JANUARY, 1997.' SINCE THE NOTICE WAS SERVED UPON VS 30 TH DECEMBER, 2004 SO THE PROCEEDINGS U/S.158BD ARE TIME BARRED ON 31 ST DECEMBER, 2006. IN VIEW OF THE ABOVE, WE ARE NOT RESPONDING TO YOUR NOTICE DT. 8/01/2007 AND DT 15/01/2007' . 2.1 AFTER THE RECEIPT OF AFORESAID LETTER , THE RE PRESENTATIVE OF THE ASSESSEE WAS PROVIDED WITH A COPY OF PAGE NO.50 & 5 1 OF THE ANNEXURE A-13 IN PROCEEDINGS DATED 23/01/2007 AND HE WAS ASKED TO SUBMIT HIS REPLY BY 29/01/2007. AFTER CONSIDERI NG THE REPLY OF THE ASSESSEE, THE AO WHILE REFERRING TO DECISIONS IN P RIYA BLUE INDUSTRIES PUT. LTD., V. JCIT, 251 ITR 613(GUJ) AND IN ITA ( SS) NOS.265 & 268/AHD/2002(ITAT AHMEDABAD) REJECTED THE CONTENTI ONS OF THE ASSESSEE REGARDING VALIDITY OF ISSUE OF NOTICE U/S. 158BD O F THE ACT WITH THE OBSERVATIONS THAT THE NOTICES U/S 158BD DATED 29/12/2004, SENT BY R.P.A.D., WAS SERVED ON THE ASSESSEE ON 5/01/2005. COPY OF ACKNOWLEDGEMEN T DATED 5/01/2005 WAS ENCLOSED AS ANNEXURE-'C' TO THE ASSESSMENT ORDER. B ESIDES, ON THE BASIS OF SEIZED DOCUMENTS AND STATEMENT OF SHRI MUKESH M. K ELAWALA AND IN THE ABSENCE OF ANY EXPLANATION OF THE ASSESSEE, THE ASS ESSEES SHARE OF RS.2,78,411/- (RS.23.66,500 / 85% X 10%) WAS BROUGH T TO TAX AS UNACCOUNTED INCOME FOR RELINQUISHING RIGHTS IN THE AFORESAID LA ND APART FROM ADDITION OF RS.2,04,950/- U/S. 69 OF THE ACT AS UNEXPLAINED INV ESTMENT IN THE FIRM M/S EKTA CORPORATION DURING THE FY 1996-97. 3. ON APPEAL, THE LEARNED CIT(A) ADJUDICATED THE IS SUES IN THE FOLLOWING TERMS:- 4.1. IT IS SUBMITTED THAT DURING THE COURSE OF SEA RCH NO MATERIAL PERTAINING TO THE APPELLANT WAS FOUND AND THAT SECT ION 158BD CATEGORICALLY REQUIRES THE MATERIAL IN ORDER TO INITIATE PROCEEDI NGS AGAINST THE APPELLANT. 7 IT(SS)A NOS.159 & 162 /AHD/2007 7 4.2. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT. IT IS AN ADMITTED FACT THAT THE APPELLANT WAS ONE OF T HE RETIRING PARTNER OF M/S. EKTA CORPORATION AND HAD 20 % SHARE IN THE SAID FIR M. IT HAD ALSO BEEN ADMITTED IN WRITING DURING THE COURSE OF INVESTIGAT ION BY DCIT, CENTRAL CIRCLE-1, BARODA THAT HE HAD INVESTED RS.2,04,950/- AS HIS SHARE FOR PURCHASE OF LAND MEASURING 3175 SQ.METER AT SURVEY NO.79, VILLAGE GADKHOL, AT ANKLESHWAR ON 30.10.1996. 4.2.1. DURING INVESTIGATION AND SCRUTINY OF PAGE NO . 50 - 51 OF ANNEXURE 13 IT IS REVEALED THAT THE NAME 'LIYAKAT REFERS TO MR. HASMAT MOHD. CIRCLE. FURTHER NAME 'FAROOQ' REPRESENTS SMT. SAJEDA BANO M . FANOQSAUQ. MR. MUKESH KELAWALA HAS ALSO ADMITTED THAT THE ENTRIES IN PAGE NO. 50 & 51 OF ANNEXURE A-13 REPRESENTED FOLLOWING CASH PAYMENTS T O THE ERSTWHILE PARTNERS OVER AND ABOVE THE PAYMENT OF RS.3,73,265/ - BY CHEQUE FROM BANK OF BARODA, ANKLESHWAR BRANCH. SR. NO. TO WHOM PAID DATE OF PAYMENT AMOUNT (RS.) 1 SHRI MOHAMMAD YOUSUF SHAIKH 30-09-97 09-10-97 118690 53460 2 SHRI HASMAT MOHAMMAD CIRCLE 30-09-97 09-10-97 24284 10640 3 SMT. JAHIDA MOHAMMAD SHAIKH 30-09-97 09-10-97 102225 17820 4 SHRI MAQSOOD MOHAMMAD SHAIKH 30-09-97 09-10-97 102225 17820 TOTAL 447164 4.2.2. MR. MUKESH KELAWALA AND HIS WIFE HAD ADMITTE D INVESTMENT IN BOOKS OF ACCOUNTS OF RS.3,96,000 FOR PURCHASE OF PL OT AND HAD ALSO ADMITTED THAT BALANCE OF RS.23,66.500 WAS INVESTED OUT OF THEIR UNACCOUNTED INCOME. ACCORDINGLY, THE SHARE OF THE A PPELLANT IN SUCH UNACCOUNTED INVESTMENT COMES TO RS.2,78,411/- (RS.2 3,66,500 / 85% X 10%). FURTHER THE HON'BLE ITAT HAD ALSO RECORDED TH E FACT IN ITS ORDER NO, IT(SSA) A NO. 35/AHD DATED 30.12.2005 (THE RELEVANT PORTION IS REPRODUCED IN PARA 4.2.3 BEIOW) THAT THE CONTENTION OF THE RETIRING PARTNERS THAT THEY HAVE NOT RECEIVED THEIR SHARE ON UNDISCLO SED INVESTMENT TILL 2004 WAS A MAKE BELIEF EVIDENCE AND THAT NONE OF THEM WO ULD HAVE WAITED FOR A PERIOD OF 7 YEARS FOR THEIR SHARES OF OWN MONEY. 4.2.3. THE HON'BLE ITAT AFTER CONSIDERING THE SEIZE D MATERIAL AND THE VARIOUS SUBMISSIONS IN THE CASE OF SHRI MUKESH KELA WALA VIDE ORDER NO. IT(SSA) A NO.35/AHD DATED 30.12.2005 CONCLUDED AS U NDER: 8 IT(SS)A NOS.159 & 162 /AHD/2007 8 '(I) THAT NONE OF THESE REPLIES SUPPORTS THE ASSESS EE'S PLEA THAT PAYMENT OF UNDISCLOSED INVESTMENT IN M/S. EKTA CORPORATION HAD BEEN MADE DURING THE PERIOD 27.09.1997 TILL THE DATE OF SEARCH. ON THE OTHER HAND, THESE REPLIES SEEM TO BE A MAKE BELIEF EVIDENCE AT THE BEHEST OF THE ASSESSEE, OTHERWISE, THE STYLE AND CONTENTS OF ALL THESE REPLIES WOULD NOT H AVE BEEN ALMOST SIMILAR. SINCE, NONE OF THESE PERSONS S EEMS TO BE A RELATIVE OR CLOSE FRIENDS OF THE ASSESSEE, NON E OF THEM WOULD HAVE WAITED FOR 'ON-MONEY' TILL A PERIOD OF A BOUT SEVEN YEARS, I.E. FROM SEPTEMBER, 1997 TILL JULY T 2004 AS HAS BEEN STATED IN THESE REPLIES. SUCH ASSERTION, ON THE OTHER HAND, BELIES NOT ONLY THE CLAIM OF THE ASSESS EE, BUT THE STAND OF THE RETIRING PARTNERS ALSO. (II) THAT, FAILURE TO MENTION THE AMOUNT RECEIVED B Y THEM TILL JULY, 2004 ALSO GOES TO SHOW THAT NOTHING WAS DUE FROM THE ASSESSEE. 19. IN VIEW OF ABOVE DISCUSSION AND TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE FACT THAT THE ASSESSEE HAS NOT BROUGHT ANY EVIDENCE TO ESTABLISH THAT THE UNDISCLOSED INVESTMENT IN PARTNERSHIP FIRM WAS MADE AFTER 24.09 . 1997 AND TILL THE DATE OF SEARCH, WE ARE, UNABLE TO DEVIATE FROM THE FINDINGS OF THE REVENUE AUTHORI TIES. CONSEQUENTLY, THE SAME ARE CONFIRMED. 4.2.4. FROM THE ABOVE DETAILS, THE FINDING OF THE I TAT AS WELL AS THE DOCUMENTS FOUND AT THE TIME OF SEARCH AND THE STATE MENT OF SHRI MUKESH KELAWALA, IN MY VIEW THE ASSESSING OFFICER HAD J USTIFIABLE REASONS TO PROCEED UNDER SECTION 158 BD READ WITH SECTION 158 BC. SECTION 158 BD READS AS UNDER. 'UNDISCLOSED INCOME OF ANY OTHER PERSON.WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY UNDISCLOSED INCOME BELONGS TO AN Y PERSON, OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS WERE REQUI SITIONED UNDER SECTION 132A, THEN, THE BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSE TS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURI SDICTION OVER SUCH OTHER PERSON 9 IT(SS)A NOS.159 & 162 /AHD/2007 9 AND THAT ASSESSING OFFICER SHALL PROCEED UNDER SECT ION 158BC AGAINST SUCH OTHER PERSON AND THE PROVISIONS OF THIS CHAPTER SHALL APP LY ACCORDINGLY' 4.2.5. HERE THE DCIT, CENTRAL CIRCLE 1 WAS SATISFIE D, BASED ON THE 'DOCUMENTS SEIZED IN THE CASE OF MUKESH KELAWALA AN D THE STATEMENTS RECORDED AND ALSO THE DETAILS GATHERED THROUGH SUBS EQUENT ENQUIRIES THAT UNDISCLOSED INCOME WAS RECEIVED BY OTHER PERSONS, A ND ACCORDINGLY INFORMED THE ASSESSING OFFICER DCIT, BHARUCH CIRCLE , BHARUCH WHO HAD JURISDICTION OVER THE APPELLANT AND THE LATTER PROC EEDED TO ISSUE NOTICE U/S. 158BD. IN MY VIEW THEREFORE THERE IS NO INFIRMITY I N TERMS OF INITIATING PROCEEDINGS U/S. 158BD. THE SATISFACTION FOR 158BD PROCEEDINGS NEED NOT BE IN WRITING AND IT IS ONLY AN ADMINISTRATIVE ACTI ON. IT HAS BEEN SO HELD IN THE CASE OF DYNAMIC UNIVERSAL LTD. VS. DCIT - 4 SOT 825(DE!HI). IN THE CASE OF VIJAY SEHGAL(HUF) VS ACIT 102 TTJ 904(AMRUTSAR) THE INITIATION OF PROCEEDINGS UNDER SECTION 158BD BASED ON DIRECTI ON OF THE ITAT SAME WAS FOUND TO BE JUSTIFIED AND IT WAS HELD THAT THE SATISFACTION OF THE ASSESSING OFFICER SHOULD BE DISCERNABLE FROM MATERI AL ON RECORD. 4.2.6. IN VIEW OF ABOVE THE PROCEEDINGS UNDER 158BD ARE HELD TO BE PROPER. GROUND NO. 1 IS THUS DISMISSED. 5. GROUND NO. 2 IS WITHOUT PREJUDICE TO GROUND NO. 1 AND IS AGAINST NOT FOLLOWING THE : PROPER PROCEDURE AS PRO VIDED IN PROVISION OF SECTION 158BG BY JCIT, BHARUCH CIRCLE BEFORE APPROV ING THE ASSESSMENT ORDER U/S. 158BC READ WITH 158BD. 5.1. IT IS ARGUED THAT JCIT, BHARUCH ISSUED NOTICE UNDER SECTION 158BG ON 15.1.2007 AND CONDUCTED THE HEARING ON 23. 1.2007 I.E. EVEN BEFORE THE ASSESSMENT PROCEEDINGS IN PROGRESS BEFOR E THE ASSESSING OFFICER (DCIT, BHARUCH) WERE COMPLETED. THE APPELLA NT ARGUES THAT PROVISION OF 158BG REQUIRES THE JCIT TO GIVE THE AP PELLANT AN OPPORTUNITY OF BEING HEARD BEFORE THE ASSESSMENT ORDER WAS PASS ED. IN THIS CASE THE HEARING WAS CONCLUDED EVEN BEFORE THE ASSESSMENT OR DER WAS PASSED. THUS THE PROCEEDINGS UNDER 158BG ARE BAD IN LAW. TH E DECISION IN THE CASE KIRTILAL KALIDAS & CO. VS. DCIT - 67 ITD 573(M AD) WAS RELIED UPON. 5.2. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT. IT HAS BEEN ADMITTED BY THE APPELLANT THAT VIDE LETTER DATED 15.1.2007 JCIT, BHARUCH HAS GIVEN AN OPPORTUNITY OF BEING HEARD BEF ORE CONVEYING A PPROVAL OF THE BLOCK ASSESSMENT ORDER. THE AUTHORIZ ED REPRESENTATIVE DID APPEAR BEFORE THE JCIT ON 23.1.2007 AND ALSO FURNIS HED A WRITTEN REPLY REITERATING THE POINTS SUBMITTED VIDE LETTER DATED 17.1.2007 TO DCIT, BHARUCH. HAVING CONSIDERED THE FACTS ON RECORD AND THE PROVISIONS OF THE ACT IT IS SEEN THAT THE LEGISLATURE DID NOT PROVIDE SPECIFICALLY UNDER SECTION 158BG THAT THE AFFECTED PARTY SHALL HAVE A RIGHT OF HEARING. HOWEVER A SPECIFIC HEARING WAS GIVEN BY THE JCIT, BHARUCH. NO OBJECTION WAS RAISED THAT PROPER OPPORTUNITY WAS NOT GIVEN. IN FACT THE SAME ASSERTION AND 10 IT(SS)A NOS.159 & 162 /AHD/2007 10 ISSUES RAISED BEFORE THE ASSESSING OFFICER WERE ADV ANCED BEFORE THE JCIT. IT IS ALSO SEEN FROM THE ASSESSMENT ORDER THA T AIL THE PLEAS OF THE APPELLANT HAVE BEEN EXHAUSTIVELY DEALT WITH IN THE ASSESSMENT ORDER BY THE ASSESSING OFFICER. IN MY VIEW THEREFORE THE ARG UMENT OF THE APPELLANT IS WITHOUT ANY BASIS AND DESERVES TO BE REJECTED . 3.1 AS REGARDS THE TWO ADDITIONS MADE BY THE AO, THE LEARNED CIT(A) CONCLUDED AS UNDER:- 6. THE NEXT GROUND IS AGAINST ADDITION OF RS.2,04, 950 U/S. 69 BEING INITIAL INVESTMENT IN EKTA CORPORATION AND AD DITION OF RS.2,78,411/- ON ACCOUNT OF UNACCOUNTED MONEY RECEIVED FROM MUKES H KELAWALA FOR RELINQUISHMENT OF RIGHT IN LAND. 6.1. THE FACTS IN THIS REGARD ARE ALREADY ENUMERAT ED AT PARAS 3 TO 3.5 ABOVE. 6.2. IN APPEAL IT IS ARGUED THAT THE ASSESSING OFF ICER HAD ASSUMED THAT THE FULL CONSIDERATION FROM THE INCOMI NG PARTNERS OF RS.2,78,411/-WAS RECEIVED AND THAT THE ASSUMPTION I S BASED ON STATEMENT OF MR. KELAWALA AND NOT BACKED BY ANY INDEPENDENT C ORROBORATIVE EVIDENCE. THUS THE ADDITION ON THIS GROUND DESERVES TO BE DELETED. IT IS ALTERNATIVELY SUBMITTED THAT IF AT ALL THE ADDITION IS TO BE SUSTAINED ONLY THE GAIN OF RS.73,461/- COULD BE TREATED AS CAPITAL GAI NS. 6.3. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT AS WELL AS GONE THROUGH THE ASSESSMENT ORDER. IT HA S BEEN SEEN THAT DURING THE COURSE OF INVESTIGATION BY DCIT, CENTRAL CIRCLE-1 NO SPECIFIC DETAILS OR EVIDENCES COULD BE PRODUCED REGARDING SO URCE OF INITIAL INVESTMENT BY THE APPELLANT IN PLOT OF LAND. NO SUC H EVIDENCES COULD BE PRODUCED DURING THE ASSESSMENT PROCEEDINGS. EVEN IN APPELLATE PROCEEDINGS BEFORE ME NO SUBMISSIONS WERE MADE IN R EGARD TO THE INVESTMENT OF RS.2,04,950/-. UNDER THE CIRCUMSTANCE S THE ASSESSING OFFICER WAS JUSTIFIED IN TREATING THE SAID AMOUNT O F RS.2,04,950/- AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT. 6.3.1. REGARDING THE ADDITION OF RS.2,78,411/- IT I S HELD THAT, IN VIEW OF SPECIFIC FINDING OF HON'BLE ITAT IN THE CASE OF MUK ESH KELAWALA AND THE ADMISSION BY MR. KELAWALA, THE ASSESSING OFFICER WA S JUSTIFIED IN CONCLUDING THAT THE AMOUNT OF RS.2,78,411/- WAS THE SHARE OF UNACCOUNTED MONEY RECEIVED BY THE APPELLANT FROM MR. MUKESH KEL AWALA FOR RELINQUISHMENT OF HIS RIGHT IN LAND. HOWEVER, I AM IN AGREEMENT WITH THE APPELLANT THAT ONLY THE DIFFERENCE BETWEEN THE TWO I.E. RS.2,78,411 - RS.2,04,950 SHOULD BE TAXED AS CAPITAL GAINS AND NO T THE ENTIRE UNACCOUNTED AMOUNT OF RS.2,78,411/- AS INCOME OF TH E APPELLANT THE ASSESSING OFFICER IS THEREFORE DIRECTED TO COMPUTE THE CAPITAL GAINS. THE GROUND IS THUS PARTLY ALLOWED . 11 IT(SS)A NOS.159 & 162 /AHD/2007 11 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A) UPHOLDING THE VALIDI TY OF ISSUE OF NOTICE U/S 158BD OF THE ACT AND THE PROCEDURE FOLL OWED BY THE AO/JCIT IN ALLOWING SUFFICIENT OPPORTUNITY TO THE A SSESSEE AND NOT SETTING ASIDE THE ORDER OF THE AO BESIDES UPHOLDING ADDITIONS OF RS.2,04,950/- U/S 69 OF THE ACT AND RS.73,461/- AS CAPITAL GAINS. THE REVENUE IS ALSO IN APPEAL BEFORE US AGAINST TH E DIRECTIONS OF THE CIT(A) TO ASSESS THE RECEIPTS OF RS.278411/-UND ER THE HEAD CAPITAL GAINS. AT THE OUTSET, THE LD. AR ON BEHALF OF THE ASSESSEE, WITHOUT MAKING ANY SPECIFIC ARGUMENTS ON THE VARIOU S ISSUES RAISED IN THEIR GROUNDS OF APPEAL, SUBMITTED THAT ISSUES W ERE REQUIRED TO BE ADJUDICATED AGAINST THE ASSESSEE IN VIEW OF DECISIO N DATED 29.4.2011 OF A CO-ORDINATE BENCH IN THE CASE OF ANO THER PARTNER SHRI MAKSUD AHMED GULAM SHAIKH IN IT(SS)A NO.157/AHD/20 07. THE LD. DR, ON THE OTHER HAND, SUPPORTED THE FINDINGS OF TH E AO. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE AS ALSO THE AFORESAID DECISION OF THE ITAT . IN VIEW OF CATEGORICAL SUBMISSIONS OF THE LD. AR THAT ISSUES I N THEIR APPEAL HAVE TO BE ADJUDICATED AGAINST THE ASSESSEE IN THE LIGHT OF AFORESAID DECISION OF THE ITAT IN THE CASE OF ANOTHER PARTNER , SHRI MAKSUD AHMED GULAM SHAIKH IN IT(SS)A NO.157/AHD/2007, WE M AY REFER TO THE FOLLOWING FINDINGS OF THE CO-ORDINATE BENCH IN THE SAID DECISION : 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN TH IS CASE SEARCH WAS CONDUCTED ON 13-8-2002, THEREFORE, PROVI SIONS OF SECTION 158BE (2) (B) OF THE IT ACT WOULD APPLY WHI CH PROVIDE THAT THE PERIOD OF LIMITATION FOR COMPLETION OF BLO CK ASSESSMENT IN THE CASE OF OTHER PERSONS REFERRED IN SECTION 15 8 BD OF THE IT ACT SHALL BE (B) TWO YEARS FROM THE END OF TH E MONTH IN WHICH THE NOTICE UNDER THIS CHAPTER SHALL BE SERVED ON SUCH OTHER PERSONS IN RESPECT OF SEARCH INITIATED OR BOO KS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUI SITIONED ON OR AFTER 01-01-1997. IN THE PRESENT CASE, IT IS ADMITTED FACT THAT NOTICE U/S 158 BD OF THE IT ACT WAS ISSUED TO THE 12 IT(SS)A NOS.159 & 162 /AHD/2007 12 ASSESSEE ON 29-12-2004. ACCORDING TO THE AO, THE SA ID NOTICE WAS SERVED UPON THE ASSESSEE ON 5-1-2005 WHICH WAS ALSO BROUGHT TO THE NOTICE OF THE AUTHORIZED REPRESENTAT IVE AT THE BLOCK PROCEEDINGS. COPY OF THE ACKNOWLEDGEMENT DATE D 5-1- 2005 WAS MADE PART OF THE ASSESSMENT ORDER AS ANNEX URE C COPY OF WHICH IS FILED BY THE LEARNED COUNSEL FOR T HE ASSESSEE ON RECORD. THE ASSESSEE HOWEVER, CLAIMED THAT THE S AID NOTICE HAS BEEN SERVED UPON HIM ON 30-12-2004. DURING T HE COURSE OF ARGUMENTS THE LEARNED COUNSEL FOR THE ASSESSEE S UBMITTED THAT THERE IS NO SIGNATURE OF THE ASSESSEE ON THE A /D CARD COPY OF WHICH IS SUPPLIED DURING THE COURSE OF ARGU MENTS (ANNEXURE C). THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE IS DEVOID OF MERIT BECAUSE IF THE ASSESSEE S SIGNATURE IS NOT APPEARING ON THE A/D CARD, THERE I S NO QUESTION OF ASSESSEE RECEIVING THE REGISTERED COVER CONTAINING THE NOTICE U/S 158BD OF THE IT ACT. THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE IS, THEREFORE, REJ ECTED BECAUSE THE ASSESSEE ADMITTED BEFORE THE AUTHORITIE S 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 SHO WS THAT THIS REGISTERED COVER MIGHT HAVE BEEN DELIVERED TO THE POSTAL AUTHORITIES BEING REGISTERED LETTER (RL) ON 4-1-200 5, THEREFORE, THERE IS NO QUESTION OF SERVICE OF THE SAME LETTER UPON THE ASSESSEE ON 30-12-2004. FURTHER, WHEN THIS FACT WAS BROUGHT TO THE NOTICE OF THE LEARNED COUNSEL FOR THE ASSESS EE AT THE ASSESSMENT STAGE, HE DID NOT REACT TO THE STATEMENT OF THE AO AT THE ASSESSMENT STAGE. THEREFORE, THE AO WAS JUST IFIED IN HOLDING THAT THE NOTICE U/S 158 BD OF THE IT ACT DA TED 29-12- 2004 HAS BEEN SERVED UPON THE ASSESSEE ON 5-1-2005. THEREFORE, THE BLOCK ASSESSMENT ORDER PASSED ON 31- 1-2007 IS LAWFULLY PASSED WITHIN THE PERIOD 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 O R DOCUMENT HAS BEEN FILED ON RECORD TO PROVE THAT THE NOTICE U /S 158 BD OF THE IT ACT WAS SERVED UPON THE ASSESSEE ON 30-12-20 04. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. THE SAME IS, THEREFORE, R EJECTED AND THIS GROUND OF APPEAL OF THE ASSESSEE IS REJECTED. .. 11. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. IT IS ADM ITTED FACT THAT THE ASSESSEE CONTRIBUTED TO THE CAPITAL WITH M/S. EKTA CORPORATION IN WHICH HE 13 IT(SS)A NOS.159 & 162 /AHD/2007 13 WAS A PARTNER ALONG WITH OTHER SIX PERSONS AND THE FIRM HAS PURCHASED THE PLOT OF LAND FOR DEVELOPMENT. THE ASSESSEES SHARE OF PROFIT IS 10%. THE AO CALLED FOR THE DETAILS OF SOURCE OF INCOME, BANK ACCOUNT AND DETAILS OF EARNING OF AGRICULTURAL INCOME, BUT THE NOTICE REMA INED UN-COMPLIED WITH AND NO DETAILS OR EVIDENCES HAVE BEEN FURNISHED. IT WAS ALSO FOUND THAT THE FIRM M/S. EKTA CORPORATION IN WHICH THE ASSESSE E WAS A PARTNER DID NOT MAINTAIN ANY BOOKS OF ACCOUNTS AND NO RETURN OF INC OME HAS BEEN FILED. IT IS ALSO NOT IN DISPUTE THAT LATER ON THE SIX PARTNE RS INCLUDING THE ASSESSEE RETIRED FROM M/S. EKTA CORPORATION AND THEIR SHAREH OLDING WAS TAKEN BY SHRI MUKESH M. KELAWALA AND HIS WIFE IN THE RATIO O F 85%. IT IS, THEREFORE, UNBELIEVABLE THAT THE PARTNERS WHO HAD INVESTED IN THE PROPERTY INITIALLY WOULD NOT HAVE RECEIVED THE AMOUNT OF CONSIDERATION ON RETIREMENT FROM THE FIRM WHICH WAS HOLDING THE PLOT OF LAND. THUS, THE ASSESSEE HAS RECEIVED THE CONSIDERATION ON RETIREMENT FROM THE F IRM WHICH WAS ALSO NOT OFFERED FOR TAX. THE UNACCOUNTED INCOME WAS COMPUTE D AS PER THE SHAREHOLDING AT 10%. THESE FACTS WOULD CLEARLY PROV E THAT THE ASSESSEE MADE INVESTMENT IN THE PLOT OF LAND OF THE FIRM AS A PARTNER FOR WHICH NO RETURN OF INCOME WAS FILED AND NO SOURCE OF INCOME IS EXPLAINED 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.73,46 1/-. WE, THEREFORE, DO NOT FIND ANY PERVERSITY IN THE APPROACH OF THE LEAR NED CIT(A). THE ASSESSEE HAS MISERABLY FAILED TO EXPLAIN BOTH THE A DDITIONS BEFORE THE AUTHORITIES BELOW BY NOT PRODUCING ANY MATERIAL OR EVIDENCE ON RECORD WHICH WERE BASED UPON THE INCRIMINATING DOCUMENTS F OUND DURING THE COURSE OF SEARCH. WE, THEREFORE, DO NOT FIND ANY ME RIT IN THE APPEAL OF THE ASSESSEE ON THIS GROUND. THE SAME IS ACCORDINGLY DI SMISSED . 6. IN THE LIGHT OF AFORESAID FINDINGS IN THE CASE OF A CO-PARTNER, ESPECIALLY WHEN THE LD. AR DID NOT MAKE ANY SUBMISS IONS ON ANY OF THE GROUNDS IN APPEAL BEFORE US AND INSTEAD REQUEST ED US TO FOLLOW MERELY THE AFORESAID DECISION OF THE ITAT ,FACTS & CIRCUMSTANCES IN THE SAID DECISION BEING PARALLEL TO THE FACTS AND C IRCUMSTANCES IN THE APPEAL BEFORE US, FOLLOWING THE VIEW TAKEN IN THE A FORESAID DECISION, WE HAVE NO ALTERNATIVE BUT TO REJECT ALL THE GROUND S IN THE APPEAL OF THE ASSESSEE SUBJECT TO OUR DIRECTIONS FOR RECOMPUTATION OF CAPI TAL 14 IT(SS)A NOS.159 & 162 /AHD/2007 14 GAINS IN THE CONTEXT OF GROUND RAISED BY THE REVENU E IN PARA 7 BELOW. 7. AS REGARDS GROUND NO.1 IN THE APPEAL OF THE REVENUE, WE FIND THAT THE AO IN THE ASSESSMENT ORDER DID NOT WORK O UT ANY CAPITAL GAINS NOR EXAMINED THE APPLICABILITY OF THE RELEVAN T PROVISIONS OF LAW. INSTEAD, THE AO ASSESSED ONLY 10% OF THE SHARE OF THE ASSESSEE IN THE UNACCOUNTED MONEY OUT OF RS. 23,66, 500 [27,62,500(CASH)-3,96,000(CHEQUE)] TOWARDS UNDISCLO SED INVESTMENT MADE BY SHRI MUKESH M KELAWALA BY BECOMING PARTNER IN THE FIRM, CONSTITUTED ON 13.8.1996 AND HOLDING LAND. AS POINT ED OUT BY THE AO, THE ORIGINAL SEVEN PARTNERS HAD PURCHASED THE L AND ADMEASURING 3175 SQ MTRS. VIDE REGISTERED DEED DATED 30.10.199 6 FOR A CONSIDERATION OF ONLY RS. 10 LACS. THUS, THE COST O F ACQUISITION OF LAND TO THE EXTENT OF SHARE HOLDING OF THE ASSESSEE COULD NOT BE RS.2,04,950/- BUT MUCH LESS. IN ANY CASE, THE LD. C IT(A) DID NOT ATTEMPT TO DETERMINE THE COST OF ACQUISITION OF RIG HTS IN LAND, WHICH ACCORDING TO THE AO AND THE LD. CIT(A) WERE TRANSFE RRED BY THE ASSESSEE. APPARENTLY, THE LD. CIT(A) DID NOT EXAMI NE THE ISSUE RELATING TO DETERMINATION OF QUANTUM OF CAPITAL GAI NS IN PROPER PERSPECTIVE IN THE LIGHT OF RELEVANT PROVISIONS OF LAW NOR HAD THE BENEFIT OF THE AFORESAID FINDINGS OF THE ITAT IN TH E CASE OF A COPARTNER. THE LD. DR APPEARING BEFORE US DID NOT THROW ANY LI GHT ON THIS ASPECT NOR MADE ANY SPECIFIC SUBMISSIONS ON TH E ISSUE RAISED IN THEIR APPEAL. IN VIEW OF THE FOREGOING, ESPECIA LLY WHEN THE LD. CIT(A) HAVE NOT PASSED A SPEAKING ORDER WHILE DETER MINING THE QUANTUM OF CAPITAL GAINS, WE CONSIDER IT FAIR AND A PPROPRIATE TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE ISSUE OF DETERMINATION OF QUANTUM OF CAPITAL GAINS , TO HIS FILE FOR DECIDING THE MATTER AFRESH IN ACCORDANCE WITH LAW, AFTER ALL OWING SUFFICIENT OPPORTUNITY TO BOTH THE PARTIES AND KEEPING IN VIEW THE AFORESAID FINDINGS OF THE ITAT. NEEDLESS TO SAY THAT WHILE RE DECIDING THE APPEAL, THE LEARNED CIT(A) SHALL PASS A SPEAKING OR DER, KEEPING IN 15 IT(SS)A NOS.159 & 162 /AHD/2007 15 MIND, INTER ALIA, THE MANDATE OF PROVISIONS OF SEC. 250(6) OF THE ACT. SUBJECT TO THESE DIRECTIONS, GROUND NO. 1 IN THE AP PEAL OF THE REVENUE IS DISMISSED. 8. GROUND NO. 2 IN THE APPEAL OF THE REVENUE BEING GENERAL IN NATURE, DOES NOT REQUIRE ANY SEPARATE ADJUDICATION WHILE NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN T ERMS OF RESIDUARY GROUND IN THE APPEAL OF THE ASSESSEE, ACCORDINGLY, THESE GROUNDS ARE DISMISSED. 9. IN THE RESULT, BOTH THE APPEAL OF THE ASSES SEE AS ALSO OF THE REVENUE ARE DISMISSED SUBJECT TO OUR DIRECTIONS IN PARA 7 ABOVE FOR RECOMPUTATION OF QUANTUM OF CAPITAL GAINS. ORDER PRONOUNCED IN THE COURT TODAY ON 17-06-2011 SD/- SD/- (MUKUKL SHRAWAT) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATED : 17 -06-2011 COPY OF THE ORDER FORWARDED TO: 1. SMT. ZAHEDA MOHD. SALIM SHAIKH, MOBINE SOCIETY, ANKLESHWAR, DIST: BHARUCH 2. DEPUTY COMMISSIONER OF INCOME-TAX, BHARUCH CIRCL E, BHARUCH 3. CIT CONCERNED 4. CIT(A)-VI, BARODA 5. DR, ITAT, AHMEDABAD BENCH-D, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD