The DCIT, Central Circle-1(4), Ahmedabad V. Shri Dilip B. Patel, Ahmedabad

ITSSA 177/AHD/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9879 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Keywords: Unexplained investment
• Section: 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER IT(SS)A.NO.177/AHD/2017 WITH CO. NO.66/AHD/2017 / ASSTT. YEAR: 2009-2010 DCIT, CENT.CIR.1(4) AHMEDABAD. VS. SHRI DILIP B. PATEL 1-B, DASTAN MODEL FARM NARODA KATHWADA ROAD KATHWADA, TAL. : DASKROI AHMEDABAD 382 330 PAN : AALPP 4236 G ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI O.P. SHARMA, CIT-DR ASSESSEE BY : SHRI DHIREN SHAH, AR / DATE OF HEARING : 06/12/2018 / DATE OF PRONOUNCEMENT: 10/12/2018 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST OR DER OF LD.CIT(A)-13, AHMEDABAD DATED 16.1.2017 PASSED THE ASSTT.YEAR 200 9-10. ON RECEIPT OF NOTICE ON REVENUES APPEAL, THE ASSESSEE-RESPONDENT FILED CROSS-OBJECTION BEARING CO.NO.66/AHD/2017. 2. ONLY GRIEVANCE RAISED BY THE REVENUE IN ITS APPE AL IS THAT THE LD.CIT(A) HAS ERRED IN DELETING ADDITION OF RS.1,28,00,000/- ON ACCOUNT OF UNDISCLOSED INCOME. IT(SS)A NO.177/AHD/2017 WITH CO 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED ITS RETURN OF INCOME ON 31.3.2010 DECLARING TOTAL INCOME AT RS.1,76,720/ -. A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT WAS CONDUCTED ON 21.7.201 1. IN RESPONSE TO THE NOTICE RECEIVED UNDER SECTION 153A, THE ASSESSEE HA S FILED RETURN ON 9.5.2012 DECLARING TOTAL INCOME AT RS.1,77,010/-. THE LD.AO HAS OBSERVED THAT DURING THE COURSE OF SEARCH FROM THE OFFICE PREMISES OF TH E ASSESSEE, ONE BANACHITTI DATED 8.4.2008 WAS FOUND AND INVENTORISED AT PAGE N O.37 OF ANNEXURE B/1. ACCORDING TO THIS BANACHITTI LAND ADMEASURING 7360 SQ.YARDS COMPRISED AT HANSPURA BLOCK NO.120 AND BLOCK NO.119, TAL. DASKRO I, SUB-DIST., AHMEDABAD, NARODA WAS SOLD TO THE ASSESSEE FOR CONS IDERATION OF RS.1,28,00,000/-. THE LD.AO HAS REPRODUCED SCANNED COPY OF BANACHITTI ON PAGE NO.3 OF THE ASSESSMENT ORDER. HE CONFRONTED T HE ASSESSEE WITH REGARD TO THIS DOCUMENT. THE ASSESSEE CONTENDED THAT HE HAD NEVER ACQUIRED THIS LAND. HE HAS NO CONNECTION WITH THIS LAND. THIS FACT COU LD BE VERIFIED FROM THE RECORD. THE LAND LORD HAS SOLD THIS LAND TO SOME O THER PERSON, AND THEREFORE NO UNEXPLAINED INVESTMENT BE CONSTRUED IN THE HANDS OF THE ASSESSEE. THE LD.AO WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE. HE OBSERVED THAT THE ASSESSEE FAILED TO PROVE THAT HE HAS NOT M ADE INVESTMENT IN THE LAND. ACCORDINGLY, HE MADE ADDITION OF RS.1,28,00,000/-. DISSATISFIED WITH THE ADDITION, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) HAS DELETED THE ADDITION BY RECORDING FOL LOWING FINDING: 5. I HAVE PERUSED THE ASSESSMENT ORDER AND THE WRI TTEN SUBMISSIONS ALONG WITH PAPER-BOOK FROM PAGE NO. 1 TO 113 FILED BY THE APPELLANT. THE A.O. HAS RELIED MAINLY ON A BANAKHAT AGREEMENT, WHICH WAS FOUND FROM THE OFFICE PREMISES OF THE APPELLANT. IT WAS S UBMITTED BY THE APPELLANT THAT HE IS A LEGAL ADVISER OF THE MAIN PE RSONS OF GALAXY GROUP AND THUS, OF AND ON SUCH SALES/PURCHASE AGREE MENTS ARE GIVEN TO HIM FOR LEGAL ADVICE. THE APPELLANT SUBMITTED THE B ANACHITTI RELIED BY THE A.O. IS ONE SUCH AGREEMENT WHICH WAS FOUND AT H IS OFFICE PREMISES, WHEREIN HIS NAME NEVER APPEARED AS A BUYER OF LAND NO. 120 AND 119. IT WAS FURTHER POINTED OUT THAT THE LAND AT NO. 119 WAS ACQUIRED IT(SS)A NO.177/AHD/2017 WITH CO 3 SOMETIME IN 2006 AND 2009, WHICH WAS ULTIMATELY SOL D TO A DIFFERENT ENTITY ON 05/06/2009. RELEVANT DOCUMENTS FOR SALE O F THIS LAND TO THE ENTITY OTHER THAN THE APPELLANT, WAS PLACED ON PAGE NO. 57 OF THE PAPER- BOOK SO FILED. SIMILARLY, THE LAND NO. 120 AT HANSP URA BLOCK WAS SOLD TO SOME OTHER PERSON, OTHER THAN THE APPELLANT ON 0 6/10/2010 AND THE SAME IS EVIDENCED FROM PAGE NO. 83 OF THE PAPER-BOO K SO FILED. THUS, THERE IS A FACTUAL FORCE IN THE ARGUMENT OF THE APP ELLANT THAT APPELLANT HAS NO CONNECTION AT ALL WITH REFERENCE TO THE SEIZ ED DOCUMENTS, WHICH IS RELIED ON BY THE A.O. THE FACT CITED BY THE A.O. THAT THE APPELLANT HAS MADE A PAYMENT OF RS.80 LAKHS UPTO 07/04/2008 AND A NOTHER ADDITIONAL PAYMENT OF RS.48 LAKHS PRIOR TO 08/04/2008, IS FACT UALLY INCORRECT, AS NOWHERE IN THE BANACHITTI SUCH FACT IS EVIDENT. IN MY VIEW, THE CONCLUSION DRAWN BY THE A.O. IN MAKING AN ADDITION OF RS.1.28 CRORES AS UNDISCLOSED INVESTMENT BY THE APPELLANT IN ACQUI RING THE TWO BLOCKS OF LAND IS DEVOID OF MERITS. IN VIEW OF THE ABOVE, THE ADDITION OF RS.1.28 CRORES IS DIRECTED TO BE DELETED. THIS GROUND RAISE D BY THE APPELLANT, IS THEREFORE ALLOWED. 4. WITH THE ASSISTANCE OF LD.REPRESENTATIVES, WE HA VE GONE THROUGH THE RECORD. A PERUSAL OF THE ORDER OF THE LD.CIT(A) WO ULD INDICATE THAT THE LD.CIT(A) HAS RECORDED A CATEGORICAL FINDING OF FAC T THAT THE ASSESSEE HAS NOT MADE ANY INVESTMENT FOR PURCHASE OF THESE TWO PIECE S OF LAND. ACCORDING TO THE LD.CIT(A), THE AO FAILED TO BRING ANY EVIDENCE ON RECORD SUGGESTING CONNECTION OF THE ASSESSEE WITH REGARD TO THE TRANS ACTION OF THESE LAND. WE FURTHER FIND THAT THE AO HAS PUT A NEGATIVE ONUS UP ON THE ASSESSEE TO PROVE THAT HE HAS NOT MADE ANY INVESTMENT IN THESE PIECES OF LAND. WE ARE OF THE VIEW THAT IT IS FOR THE LD.AO TO DEMONSTRATE THAT T HESE PIECE OF LAND HAVE BEEN PURCHASED BY THE ASSESSEE BY UNEXPLAINED SOURCES. THIS FACT COULD BE CORROBORATED, IF THE AO HAD RECORDED STATEMENTS OF LAND OWNERS APPEARING IN THE LAND REVENUE RECORD I.E. SHRI CHEHRABHAI MEVABH AI RABARI AND SHRI KANTIBHAI NANUBHAI PRAJAPATI. THE AO HAS NOT MADE A NY SUCH EFFORTS. IN THE LAND REVENUE RECORD NAME OF THE ASSESSEE NEVER CROP PED UP; THEN HOW IT CAN BE ASSUMED THAT THE ASSESSEE HAS PURCHASED LAND MER ELY ON THE BASIS OF BANACHITTI ON WHICH SIGNATURES OF THE ASSESSEE WAS NOT AVAILA BLE ? THEREFORE, THE AO FAILED TO ESTABLISH ANY LINK OF THE ASSESSEE WITH THE TRANSACTION. THE IT(SS)A NO.177/AHD/2017 WITH CO 4 LD.CIT(A) HAS RIGHTLY DELETED THE ADDITION. WE DO NOT FIND ANY MERIT IN THIS APPEAL OF REVENUE. IT IS DISMISSED. 5. SO FAR AS CROSS OBJECTION FILED BY THE ASSESSEE IS CONCERNED, THE LD.COUNSEL FOR THE ASSESSEE DID NOT PRESS THE CO FO R ADJUDICATION, AS THE SAME IS MERELY IN SUPPORT OF THE ORDER OF THE LD.CIT(A). THEREFORE, CO STANDS DISMISSED. 6. IN THE RESULT APPEAL OF THE REVENUE AND CO OF TH E ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 10 TH DECEMBER, 2018 AT AHMEDABAD. SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER SD/- (RAJPAL YADAV) JUDICIAL MEMBER