The DCIT, Central Circle-2(1), Ahmedabad V. Devadiya Realty Pvt. Ltd., Ahmedabad

ITSSA 23/AHD/2014

AI Insights

The case involves multiple appeals and cross objections related to the assessment years 2009-10 and 2010-11 concerning unaccounted income and brokerage related to land transactions. The primary contention was whether the additions made by the AO for unaccounted income and brokerage should be taxed in the hands of the assessee company, Devadiya Reality Pvt. Ltd., or in the hands of its director, Shri Sanjay Thakkar. The Tribunal examined the roles of the parties involved and the nature of the transactions, ultimately deciding that the additions should not be made in the hands of the assessee but rather in the hands of Shri Sanjay Thakkar, who was the actual beneficiary of the transactions.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135629 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-04-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-01-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 12-01-2014
• Other Referred Cases: National Thermal Power Co. Limited vs. CIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Document seized; Opportunity of being heard; Question of law; Revised return; Documents seized
• Section: 132; 143(3); 153A; 43; 22; 153C

Judgement Text

आयकर आयकरआयकर आयकर अपी अपीअपी अपीलीय लीयलीय लीय अिधकरण अिधकरणअिधकरण अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद यायपीठ यायपीठ यायपीठ यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’A’’ BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER आयकरअपीलसं./IT(SS)A Nos. 22 & 23/AHD/2014 With आयकरअपीलसं./C.O. Nos. 151 & 152/AHD/2014 िनधा रणवष िनधा रणवष िनधा रणवष िनधा रणवष /Asstt. Years: 2009-10 & 2010-11 D.C.I.T, Central Circle-2(1), Ahmedabad Vs. Devadiya Reality Pvt. Ltd. Iscon House, Behind Rembranbt Building, C.G. Road, Ahmedabad-380009 PAN: AACCD8993J (Applicant) (Respondent) आयकरअपीलसं./IT(SS)A No.324/AHD/2019 िनधा रणवष िनधा रणवष िनधा रणवष िनधा रणवष /Asstt. Years: 2009-10 A.C.I.T, Central Circle-2(4), Ahmedabad Vs. Devadiya Reality Pvt. Ltd. Iscon House, Opp. Associated Petrol Pump, Off. C.G. Road, Ahmedabad PAN: AACCD8993J (Applicant) (Respondent) आयकरअपीलसं./IT(SS)A No.325/AHD/2019 िनधा रणवष िनधा रणवष िनधा रणवष िनधा रणवष /Asstt. Years: 2010-11 A.C.I.T, Central Circle-2(4), Ahmedabad Vs. Devadiya Reality Pvt. Ltd. Iscon House, Opp. Associated Petrol Pump, Off. C.G. Road, Ahmedabad PAN: AACCD8993J (Applicant) (Respondent) Revenue by : Shri Vijay Kumar Jaiswal, CIT D.R. Assessee by : Written Submission IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 2 सुनवाईक तारीख/Date of Hearing : 05/01/2023 घोषणाक तारीख/Date of Pronouncement: 05/04/2023 आदेश आदेशआदेश आदेश/O R D E R PER BENCH: The captioned appeals have been filed at the instance of the Revenue and the Cross Objections filed at the instance of the assessee against the order of the Learned Commissioner of Income Tax (Appeals)-I & 6, Ahmedabad dated 28/10/2013 & 26/03/2019 arising in the matter of assessment order passed under s. 143(3) r.w.s. 153C & 143(3) r.w.s. 153A(1)(b) & 143(3) r.w.s. 153A of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Years 2009-10 & 2010-11. First, we take up IT(SS)A No. 22/Ahd/2014, an appeal by the Revenue for A.Y. 2009-10 2. The Revenue has raised following grounds of appeal: “1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in deleting the addition on account of unaccounted income of Rs. 9,82,40,715/-, on the basis of unsubstantiated claim of assessee and ignoring the documentary evidence found at the time of search. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in deleting the addition as above in (1), against established facts that assessee had purchased the land and actual purchase rate of the said land was Rs. 3900/- per sq. yard and that the recorded payment by cheque was made by assessee. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in holding that cash paid over and above the documented price for the lands purchased by appellant is Rs.5,89,18,903/- as against Rs.9,82,40,715/- determined by A.O. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in deleting the addition on account of unaccounted brokerage and commission of Rs.1,92,55,183/-, on the basis of unsubstantiated claim of assessee and ignoring the documentary evidence found at the time of search.” 3. The Revenue has filed additional ground of appeal vide letter dated 19-12- 2022 as reproduced herein below: “On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the ‘on-money’ payment over and above the documented price paid by the assessee- IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 3 company has been owned-up by the Director of the company Shri Sanjay Thakkar as it is seen that subsequent of filing return of income u/s 153A of I.T. Act the undisclosed investment made for purchase of land was retracted by the Shri Sanjay Thakkar in his application filed before Settlement Commission and only brokerage income was offered for taxation by Shri Sanjay Thakkar.” 4. It was pleaded by the Revenue in the application filed for the admission of the additional ground of appeal that the issue raised in the additional ground of appeal goes root of the matter and the necessary facts are available on record. Accordingly, it was prayed by the learned DR for the Revenue that the same should be admitted for adjudication. 4.1 On the other hand, the learned AR did not oppose to admit the additional ground of appeal. 4.2 We have heard both the parties and perused the materials available on record. The Hon’ble Supreme Court in the case of National Thermal Power Co. Limited vs. CIT, reported in 229 ITR 383 has held as under :- “ Under section 254 of the Income-tax Act, 1961, the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, there is no reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of the item. There is no reason to restrict the power of the Tribunal under section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. The Tribunal should not be prevented from considering questions of law arising in assessment proceedings, although not raised earlier. 4.3 From the above, it is transpired that the view that the Tribunal is confined only to those issues arising out of the appeal before Commissioner (Appeals) is too narrow a view to describe the powers of the Tribunal. Undoubtedly, the Tribunal has the discretion to allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 4 facts which were on record during the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. Since the claim of the Revenue is purely legal claim and entire facts are available on record. Thus, it is not justified in not admitting the purely legal ground raised by the Revenue for the first time. Thus we admit the additional ground of appeal of the Revenue. 5. The interconnected issue raised by the Revenue vide additional ground and ground No. 1 to 3 of its appeal is that the learned CIT(A) erred in deleting the addition of Rs. 9,82,40,715/- on account of unaccounted income. 6. The facts in brief are that the assessee is a private limited company and engaged in the business of trading of land and land development. The director/promoter of the assessee company Shri Sanjay Thakkar entered into an agreement with M/s B Nanji Enterprise Ltd to purchase various plots bearing different survey numbers at Godhavi village admeasuring 159084 sq. yd. gross. The plots were divided into 2 parts being western side of Narmada Canal admeasuring 95132 sq. yard and remaining at eastern side of said canal. Out of plots on western side of canal, plot admeasuring 42393 sq. yards after deducting necessary margin for drainage, Narmada Canal and ONGC was registered in the name of the assessee at documented price of Rs. 1,583/- per sq. yards. However, the AO found that there was search proceeding under section 132 of the Act at the premises of B. Nanji Enterprises (group) dated 04-03-2010 where several documents were found and seized. From the seized documents, it was revealed that the land was actually sold at Rs. 3,900/- per sq. yards by B. Nanji Enterprise, thus leading to undisclosed price of Rs. 2317 per sq. yards. Thus, the AO made addition of Rs. 9,82,40,715/- to the total income on account of on money paid on the purchase of lands by the assessee in the following manner: Particulars A.Y. 2009-10 Yards Rate(Rs. Per sq. Total IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 5 yard) Net Area purchases (as per assessment order) 42393 3,900/- 16,53,32,700/- Less : accounted consideration 42393 1,583/- 6,70,91,985/- Balance Unaccounted Consideration 9,82,40,715/- 7. The aggrieved assessee preferred an appeal before the learned CIT(A). 8. The assessee before the ld. CIT-A submitted that it was incorporated on 9 th January 2008 as special purpose vehicle for the purchase and sale of impugned land. It has not entered into any transaction other than purchase of impugned land and the entire negotiation and fund for the purchase of the land were arranged by the Shri Sanjay Thakkar. The on money paid on purchase of impugned land was also owned by Shri Sanjay Thakkar and offered the same in the return filed under section 153A of the Act by showing additional income. This fact can also be established from the facts that it has not yet started business activity. Hence, the question of accumulation of unaccounted income does not arise. 9. The assessee further submitted that the AO held that actual price of the land at Rs. 3,900/- per sq. yards but failed to consider the fact that in case of B. Nanji Enterprises it was held that it only received consideration of 3071/- per sq. yards and remaining amount of Rs. 829 per sq. yards was retained by Shri Sanjay Thakkar as commission. However, the question of paying commission by the assessee company to Shri Sanjay Thakkar who was the beneficial owner of the land purchased by the assessee company does not arise. It is for the reason that one cannot pay any income to itself/ himself. Hence, the actual price at Rs. 3,900/- per sq. yards cannot be taken in its case. 10. The learned CIT(A) after considering the facts in totality deleted the addition made by the AO by observing as under: “6.6 After consideration of the various issues raised during the appellate proceedings, it becomes clear that the important issues which are to be decided are as follows: IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 6 (a) Whether the price paid over and above the documented price for purchase of land on the western side of the canal is required to be taxed in the hands of the appellant or shri Sanjay Thakkar? (b) What is the quantum of unaccounted consideration paid in cash over and above the documented price paid to B. Nanji Enterprise Limited? 6.7 The Assessing Officer has made the addition for price paid over and above the documented price for purchase of land from B. Nanji Enterprise Limited in the hands of appellant company. During the course of the hearing the AR of the Appellant argued that the appellant company was incorporated on 9th January, 2008 and the appellant had not started or commenced any business activity except for purchase of land at Land mark - Godhavi. The Appellant Company was formed as a special purpose vehicle for purchase of land at Landmark - Godhavi. 6.8 The entire initiation for acquisition of land was made by Sanjay Thakkar with B. Nanji Enterprise Limited and its Group. There were various encumbrances and hindrances involved in executing the sale deed which included disputes pending in Courts, drainage line, passing of railway track on one side of the land, etc. This fact is also endorsed by the Assessing Officer by making the following observation in his Assessment Order: "B. Nanji Group had entered into a deal for sale of the above entire land with Mr. Sanjay Thakkar or his nominees, who is director of various companies which includes Devdiya Realty Private Limited and MahavirProcon Private Limited so on and forth. The Sanjay Thakkar Group is also a real estate dealer as well as developer of various properties." 6.9 During the course of appellate proceedings, Sanjay Thakkar has filed a letter confirming the fact that the on-money payment in respect of land purchased in the name of the appellant company was made by him, in respect of net land area transferred to appellant company. He has also confirmed that the consideration specified in the document executed with B. Nanji Enterprise Limited i.e. the recorded consideration, was paid by cheque by the appellant. Thus, the cash consideration paid over and above the documented price to B. Nanji Enterprise Limited has been owned up by Sanjay Thakkar, in so far as, the land situated on the western side of the canal and acquired in the name of the appellant company. It may be mentioned that though the cash consideration paid over and above the documented price was made by Sanjay Thakkar, the documents were executed in the name of the appellant company and accordingly the ownership of the land was vested in the name of the appellant company. This is clear from the fact that the appellant company had no business transactions other than this land purchase and hence could not have accumulated the unaccounted cash consideration for this deal. The unaccounted cash consideration would have to be paid by the person directly interested in the company. In this case, it is Shri Sanjay Thakkar who is a director in the appellant company and has owned up the payment of the unaccounted consideration by cash. The same has to be accepted because Shrj Sanjay Thakkar has filed a return of income for the relevant assessment year showing the unaccounted cash as his income. 6.10 Shri Sanjay Thakkar has also filed a return of income for the A.Y. 2009-10 originally in which the cash paid over and above the documented price was not included as his income. However, pursuant to the search action carried out in his case, he has filed a return of income for A.Y.2009-10 was filed in response to notice issued u/s 153A vide acknowledgement No. 820396511161013 on 16.10.2013 showing the cash paid over and above the documented price on account of land referred to as Landmark - Godhavi at Rs. 5,89,18,9037- as his income. The return has been e-filed and a copy of this return has also IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 7 been filed with the jurisdictional Assessing Officer of the appellant company. A copy of the acknowledgement of the return filed before the AO has also been filed during the appellate proceedings.. 6.11 In view of the above, the contention that the appellant company had no business activity and was only incorporated as a special purpose vehicle for acquisition of land and the fact that Shri Sanjay Thakkar has owned up the payment over the documented price and disclosed before the Department by filing a return of income, is correct. In view of the above, no addition in respect of the payment of unaccounted consideration in cash over and above the documented price is warranted in the hands of the appellant. The unaccounted consideration in cash over and above the documented price needs to be taxed in the hands of Sanjay Thakkar. 6.12 The next important issue for consideration is the determination of the quantum of payment over the documented price for the lands purchased by Sanjay Thakkar on the western side of the canal in the name of the appellant. The Assessing Officer has made the addition in the hands of the appellant holding that the cash payment made over and above the documented price paid to B. Nanji Enterprise Limited was @ Rs. 3,900/- per sq. yard minus the declared consideration on the basis of loose paper No. 16 of Annexure - BS/1 seized from the premises of the employee of Shri Sandip Padsala. At the rate of Rs. 3,900/- per sq. yard, the cash payment made over and above the documented price has been worked out to Rs. 9,82,40,715/- by the AO. The rate of purchase of land by the appellant taken by the AO at Rs.3900/- per sq. yard does not appear to be correct rate for the reasons discussed hereunder. (i) The loose paper on the basis of which the AO has based his calculation for the rate of purchase of land by the appellant and computed cash payment made over and above the documented price pertains to the land situated on the eastern side of the canal purchased by Shree Kanhai Realty Pvt. Limited. This can be clearly seen from the heading of the loose paper which mentions that the notings pertain to the land on the eastern side of the canal. The contention of the AR of the Appellant that the land purchased by the Appellant is the land falling on the western side of canal has not been disputed by the AO. Thus, the undisputed fact in this case is that the appellant has purchased land from B. Nanji Enterprise Limited on the western side of the canal. Thus it is clear that the AO has no direct evidence to hold that the total price paid for the land purchased by the appellant was Rs. 3900/- per sq, yard. (ii) In the case of the appellant, in respect of lands sold to Shree Kanhai Reality P Ltd, the AO has held that B. Nanji Enterprise Limited being the seller of land has received only Rs 3071/- per sq yard for the land sold and Rs 829/- per sq yard has been retained as brokerage by the appellant company. Thus the AO has held that the price paid to B. Nanji Enterprise Limited was only Rs. 3071/- per sq, yard. When, according to the AO, B. Nanji has received consideration @ 3071/- per sq yard, for land sold to Shree Kanhai Reality P Ltd, The AO could not be correct in holding that the appellant paid Rs 3900/- per sq. yard to B. Nanji Enterprise Limited because this would mean that the appellant paid Rs. 829/- per sq. yard to itself as brokerage. (iii) Bikhubhai B. Padsala of B. Nanji Enterprise Limited has filed a Settlement Application before the Hon'ble Settlement Commission under Section 245C(1) of the Act. An order under Section 245D(4) was passed by the Hon'ble Commission on 27.12. 2011 in which the Hon'ble Commission had accepted that on-money receipt for the entire deal at Landmark -Godhavi (land falling on both sides of the canal) was at Rs. 18,06,47,852. The observation of the Hon'ble Commission in this regard is as under: IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 8 "16. Issue No. 5 - Amount of 'on-money' in respect of (Landmark) Godhavi lands: This issue has been discussed by the applicant at pages 43 to 45 of the written submissions filed on 27-092012. Briefly speaking, in the Rule 9 Report, the 'on-money' received by the applicant has been computed at Rs. 32,13,44,814, as against the 'on- money' shown to have been received by the applicant at Rs. 17,96,36,000. A detailed verification in respect of the above issue has been made by the Investigation Officers of the Settlement Commission. The applicant has summarised its reply in the above matter at page 45 of the written submissions which is reproduced below: The applicant has not been paid for 21,217 sq. yards either on account of deduction in area which is not available for development or on account of pending buy-back of plots at the end of the applicant. Therefore, amount to the extent of Rs. 6,51,57,407 has not been received by the applicant but included in the workings given in Rule 9 Report. Details of area not paid are given at page 1904 in paper book No. 13. The applicant has also not been paid for land Survey Nos. 731, 741.1 and 746/1/2 except the amount declared in registration documents. The applicant has, therefore, not received 'on-money consideration to the extent of Rs. 6,56,71,678 for these survey numbers. While making payment of 'on-money' consideration, buyers have also deducted cost of stamps, registration fees, expenses incurred on drafting of documents and payments made to advocates for getting title report, etc., and therefore, to the extent of Rs. 1,08,79,729 has been deducted and not realized. 'On-money' received to applicant works out to Rs. 17,96,36,36,000 only. 16.1 As regards the reduction of Rs, 1,08,79,729 claimed by the applicant (APC-15 at page 2072), the verification revealed that the applicant's claim for Rs. 10,11,852 towards legal fees cannot be accepted. In the spirit of settlement, the applicant has agreed to increase the amount of 'on-money' receipt by the above amount of Rs. 10,11,852. The balance amount and the working as mentioned in the APB-10 at pages 1293 to 1297 have been verified and found to be acceptable. Accordingly, the applicant has increased the offer of additional income in respect of the above issue buy a sum of Rs. 10,11,852 which pertains to the following assessment years: I. Assessment year I. Amount II. 2009-10 II. 4,58,862 III. 2010-11 III. 2,58,650 IV. 2011-12 IV. 2,94,340 V. Total V. 10,11,852 6.13 On close examination of the order passed by the Hon'ble Commission accepting the on-money receipt at Rs. 18,06,47,852, read with the workings filed before the Hon'ble Commission, it is clear that Bikhubhai Padsala of B. Nanji Enterprise Limited had received consideration @ Rs. 3,071/- per sq. yard from which deduction on account of accounted consideration and other costs were to be made. In view of the above, the observation of the AO in the remand report that the AO was correct in taking the rate of Rs. 3,900/- per sq. yard, is not justified. If the Income Tax Settlement Commission has accepted that the land has been sold by Shri Bhikhubhai Padsala at the rate of Rs. 3,071/- per sq. yard then the same rate has to be adopted by the AO in computing the price paid by the purchasers who have purchased lands directly from Bhikhubhai Padsala. On the basis of the rate of purchase price of lands by the appellant to be Rs. 3,071/- per sq. yard, the quantum of cash paid over and above the documented price would work out as under: IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 9 Particulars A.Y. 2009-10 Area (Sq. yards) Rate (Rs. Per sq. Yard) Amount (Rs.) Net land Area Less: Cheque Component paid through the appellant company Stamp Duty 42,322 3,071/- 1,584/- 94/- 12,99,70,862/- 6,70,91,985/- 39,59,974/- Undisclosed Consideration paid to B. Nanji Group by Shri Sanjay Thakkar 5,89,18,903/- 6.14 In view of the above, the cash paid over and above the documented price for the lands purchased by the appellant is held to be Rs. 5,89,1 8,9037-. As discussed in the preceding paras, This unaccounted cash payment held to be the income of the appellant is actually the income of Shri Sanjay Thakkar, since no evidence of cash paid over and above the documented price by the appellant has been found during the course of search. The appellant did not have any business transactions before the purchase of these lands. The cash paid over and above the documented price who has already offered as income in the return of income filed by Sanjay Thakkar. 6.15 In view of the above, the addition made by the Assessing Officer in the case of the appellant of Rs. 9,82,40,715/- is deleted.” 11. Being aggrieved by the order of the learned CIT(A), the Revenue is in appeal before us. 12. The learned DR before us filed a paper book running from pages 1 to 240 and submitted that the main party of the assessee company being Shri Sanjay Thakkar has not owned up the undisclosed investment made by the assesse in the purchase of the land as alleged by the AO. As per the learned DR Shri Sanjay Thakkar has only disclosed income before the settlement commission on account of commission received on the sale of the lands to parties. The learned DR in support of his contention has drawn our attention on the order of the settlement commission and the submission made by the assessee before the settlement commission. According to the learned DR, the land in dispute has been purchased by the assessee and therefore any payment made by the assessee over and above the documented price is liable to be taxed in the hands of the assessee. IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 10 13. On the other hand, the learned AR before us filed a paper book and the written submissions running into pages from 1 to 297 and 1 to 6 respectively. It was contended that the assessee company was formed as the special-purpose vehicle just to hold the lands which was subsequently sold to 3 rd party. The assessee besides the purchase and sale of the impugned lands, that too at the book value, has not carried out any other activity of commercial nature. Accordingly, there is no possibility of the availability of unaccounted income in the hands of the assessee and consequently the question of making any addition in the hands of the assessee does not arise. 13.1 As per the learned AR, the entire affairs of the land purchase and sales were managed and looked after by Shri Sanjay Thakkar who is the real beneficiary of the transactions in dispute. As such, the assessee being a special purpose vehicle cannot be made subject to the addition on account of purchase of the land. 13.2 The learned DR and the learned AR before us vehemently supported the order of the authorities below as favourable to them. 14. We have heard the rival contentions of both the parties and perused the materials available on record. In the present case, there were 30 different plots admeasuring 159084 sq. yd. with the group known as B Nanji Group at village Godhavi Talluka Sanand, Dist. Ahmedabad. The B. Nanji Group was about to develop the impugned plots in the name and style of “Landmark Godhavi”. However, due to some reason, the group entered into an understanding with Shri Sanjay Thakkar for sale of entire land. Finally, the impugned land was sold by the group to the following parties: S.N o. Purchaser party A.Y. 2009-10 A.Y. 2009-10 Area Sq.Yd. Docume nted Rate Area Sq.Yd. Document ed rate IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 11 15. Out of the above 3 parties 2 companies namely Devadiya Reality Pvt Ltd (respondent assessee in present case) and Mahavir Procorn Ltd were controlled and managed by Shri Sanjay Thakkar. 16. However, the AO observed that during the search proceedings at the premises of B Nanji Group dated 04-03-2010 several incriminating materials were found which were suggesting that the lands were sold @ Rs. 3900 per sq. yd. Thus, the AO treated the difference between the documented price and price established from incriminating materials as undisclosed income of the assessee. Accordingly, addition of Rs. 9,82,40,715/- was made by the AO to the total income of the assessee for the year under consideration. On appeal by the assessee, the learned CIT(A) held that impugned land registered in the name of the assessee was sold at Rs. 3071/- per sq. yd. and not at Rs. 3900/- per sq. yd. as observed by AO. The learned CI.T(A) further held that the assessee being newly formed SPV was not having any source of income and the actual beneficiary of the transaction was Shri Sanjay Thakkar (promoter/director of assessee). Therefore, Shri Sanjay Thakkar is the person liable to be taxed on account of on money paid in the transaction of purchase of land by the assessee. The learned CIT(A) also found that Shri Sanjay Thakkar already offered the income on account of on money in the return filed under section 153A of the Act. Against the said finding of learned CIT(A) the department is in appeal before us. From the preceding discussion the questions before us are as under: (a) Whether the actual purchase consideration stand at Rs. 3900/- per sq. yd. or at Rs. 3071 per sq. yd.? (b) Whether the director promoter of the assessee company Shri Sanjay Thakkar is the actual beneficiary and whatever addition on account of on- money required to be made is liable to be made in his hand only? 1 Devadiya Reality Pvt Ltd 42322 1585 12271 980 2 MahavirProconPvtLtd 15942 301 19357 800 3 Shree Kanhai Reality Ltd 8039 2892 11453 1291 IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 12 17. As regards the question No. 1, we note that the learned CIT(A) given clear finding that in the case of the vendor being B Nanji Group, the sale consideration against the sale of lands to the assessee company and other parties has been accepted at ₹ 3071/- per sq. yard. The finding of the learned CIT(A) has not been disputed by the learned DR appearing at the time of hearing. The relevant finding of the learned CIT(A) has made reference to the order passed by the settlement commission wherein the sale consideration at ₹ 3071 was accepted. The relevant finding of the learned CIT(A) has already been reproduced somewhere in the preceding paragraph. 18. We further note that the promoter/director of the assessee company namely Shri Sanjay Thakkar also made application before the settlement commission wherein it was submitted that he reached to the understanding with B Nanji Group to purchase the land held by them at Godhavi Village. Finally, after negotiation, land at western side of Narmada Canal was decided to be transferred to his two newly formed SPV being assessee company and Mahavir Procon Pvt Ltd @ rate of 3071 per sq. yard. Subsequently, the land was purchased by him in the name of the two SPV which were subsequently sold to third party namely Iscon Group @ 3900 per sq. yard. The Relevant submission of Shri Sanjay Thakkar before settlement commission is extracted as under: “34. To summarise, the Applicant on one hand negotiated with B. Nanji Group at a total deal value of Rs. 3,071 per sq. yd. and got the land transferred to the two companies formed as Special Purpose Vehicle meant and thereafter transferred the shares of these companies to the ISCON Group at a consideration of Rs. 3,900 per sq. yd., resulting into an income of Rs. 829 per sq. yd. It is also understood that Bhikubhai Padsala of B.Nanji Group had filed settlement application in which the sale rate of Rs. 3,071 per sq. yd. has been accepted by the Commission. Further, the rate of Rs. 3,900 per sq. yd. is also accepted by the Assessing Officer while framing the assessment of Shri Kanhai Realty Pvt. Limited who purchased the land on the eastern side of the canal which is discussed in subsequent para. The year-wise break-up of Real Income is placed at Exhibit – 35.” 19. The above facts were accepted by the learned settlement commission which were not controverted by the learned DR at the time of hearing. Accordingly, we hold that, the actual purchase consideration for the land purchased by the assessee stands at ₹ 3071 per square yard. IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 13 20. Regarding the question No. 2 as discussed above, we note that Shri Sanjay Thakkar was the person involved in the entire land deal transaction with the B Nanji Group who was director in many companies and engaged in the business of real estate dealer as well as developer of various properties. Shri Sanjay Thakkar to acquire the land from the B Nanji Group has formed special purpose vehicles being the assessee company and other concerned namely Mahavir ProconPvt. Ltd. This fact was also noted by the AO in the assessment order which reads as under: “B Nanji Group had entered into a deal for sale of the above entire land with Mr. Sanjay Thakkar or his nominees, who is director of various companies which includes Devdiya reality Private Limited and Mahavir Procon Private Limited so on and forth. The Sanjay Thakkar Group is also a real estate dealer as well as developer of various properties. Out of above area of 159083 Sq. yards, Mr. Sanjay Thakkar executed sale deeds in respect of the land admeasuring Gross area of 95,132 Sq. yards situated at Western side of the Narmada canal. Village Godhavi, Taluka Sanand District Ahmedabad, which was developed and titles were also clear & marketable, in favour of his own companies newly formed for the specific purpose, whose name is as under: - • Devdiya Reality Private Limited : 59835 Sq. yards (Gross) • Mahavir Procon Private Limited : 35297 Sq. yards (Gross) For remaining area, after lapse of substantial period of time, Mr Sanjay Thakkar Director contacted the directors of the company i.e. Shree Kanhai Reality Private lamited and agreed to sell the land admeasuring Gross area of 63950 Sq. Yds-jsituated at Eastern side of the Narbada canal, Village Godhavi, Taluka Sanand District Ahmedabad,. The payments were to be released in the names of Mr. Sanjay Thakkar or his nominees.” 21. From the above what is transpired is that it was Shri Sanjay Thakkar acquired the land at western side of the Narmada Canal from B Nanji Group by incorporating special purpose vehicle/ companies which includes Assessee Company as well. The remaining lands at the eastern side of Canal was sold to the third party being Shree Kanhai Reality Pvt Ltd and for that transaction, the payment was also to be received by the Shri Sanjay Thakkar and his nominee. 22. Further, Shri Sanjay Thakkar owned up the transaction of purchase of land by the assessee company and its sister concern namely Mahavir Procon Pvt Ltd and offered the additional income being on-money paid over and above documented price to B Nanji Group in the return filed under section 153A of the IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 14 Act. Shri Sanjay Thakkar later on filed an application before the settlement commissioner wherein he once again owned up the purchase of land by the Assessee Company and Mahavir Procon Pvt Ltd. However he submitted that the impugned lands were subsequently sold to third party at a profit of Rs. 829 per sq. yard i.e. purchased at Rs. 3071/- and sold at Rs. 3900/- per sq. yard and both the purchase and sale price include accounted and unaccounted income. Accordingly, he prayed to the settlement commissioner that only net income at the rate of Rs. 829 per sq. yard should be taxed in his hand from the transaction of purchase and sale of impugned land. The relevant submission of Shri Sanjay Thakkar before the settlement commission is already reproduced somewhere in previous paragraph. The prayer of the Shri Sanjay Thakkar was accepted by the learned settlement commission vide order dated 29-09-2016. 23. We further note that the above submission of Shri Sanjay Thakkar before the settlement commission was objected by the learned PCIT only for quantum of additional income to be taxed in the transaction of impugned land. As such the proposition of owing up of the purchases and sale of land in the name of assessee company by Shri Sanjay Thakkar was not objected which implies that the department has accepted that the Shri Sanjay Thakkar was the actual beneficial. The relevant objection of learned PCIT before the settlement commissioner reads as under: Regarding transaction with B. Nanji Group for Godhavi Land- (i) The applicant has withdra wn undisclosed investment of Rs. 8,38,62,664 paid in cash to B. Nanji for purchase of the land. (ii) In the return filed under Section 153A, total profit from land transaction with N. Nanji was declared at Rs. 11,38,664 whereas now it is claimed that actual profit is Rs,9,95,20,468. (iii) Applicant has claimed cash expenditure of Rs.50 lacs on this transaction but no evidence has been submitted. Brief facts of the transaction are as under: (i) B. Nanji had agreed with the applicant to sell its land at Rs. 3,071 per sq. yd. Simultaneously, applicant persuaded Iscon Group and Shree Kanhai Realty P. Ltd. to purchase this land at a rate of Rs.3,900 per sq. yd. Thus an income of Rs. 829 per sq. yd. would accrue to the applicant as facilitator. In this transaction also the Applicant-earned a profit a sum @ 829 per sq. yd. This was his real profit even though he acted as facilitator in the transaction. IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 15 (ii) When Rs. 829 per sq. yd. is multiplied with area of the land so sold to Shri Kanhai Realty Pvt, Limited, the real profit to the Applicant would come to Rs.1,61,58,868. The difference out of Rs. 3,00,00,000, received by cheque (being Rs. 1,38,41,132) is not the real income of the Applicant though it had received by cheque. (iii) However, in the spirit of settlement, the Applicant declares the entire sum of Rs. 3,00,00,000 as its income for the transaction of the land on the eastern side of the canal as against the actual profit of Rs. 1,61,58,868. The cheque of Rs. 2,00,00,000 (which is part of Rs.11.38 crores return of Sanjay H. Thakkar has been credited in the books of Relic Entertainment Pvt. Limited. (iv) In the return of income filed under Section 153A, the total profit from the land transactions of B. Nanji has been declared at Rs.11,38,62,64 (8,38,62,664+3,00,00,000), which is shown in Exhibit-7 & 8, as against actual profit of Rs.9,95,20,468. (v) Instead of declaring correct and real brokerage-cum-facilitator income @ Rs.829 per sq. yd. the applicant had declared the unaccounted payment as income in the return. (vi) The Applicant has also incurred expenditure on account of sub-broking, removing all encroachments, peaceful possession, resolving disputes etc. to the extent of Rs.50,00,000 in executing the 'Landmark Godhavi' Transaction. There can be no computation of such profits and gains until the expenditure which is necessary for earning such receipts is deducted therefrom. True, no evidence was found during the course of search, but in reality the Applicant had incurred such expenditure. Since the said transaction was nearly 2-3 years old, no noting of such expenditure was available. The Applicant claims such expenditure from the total income of Godhavi Transaction. 24. From the above discussion, there is no ambiguity to the fact that Shri Sanjay Thakkar is the actual beneficiary of transaction of purchase of land from B Naji Group at Godhavi village in the name of the assessee company. Therefore, whatever addition on account of purchase and sale of impugned land is required IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 16 to be made, the same should be made in the hands of Shri Sanjay Thakkar only which he also owned up and offered income earned from such transaction of purchase and sale of land. 25. Be that as may be, we also view the issue involved in the case before us from a different angle. Is it possible for the assessee to make the unaccounted investment? The answer stands in negative. It is for the reason that the assessee company was newly incorporated, not having any source of income and not entered into any other transaction except for purchase of impugned land. Further the amount paid through banking channel was also arranged by the Shri Sanjay Thakkar being the promoter and main person of the assessee. Thus it can be presumed that the unaccounted payment was also arranged by the Shri Sanjay Thakkar. This presumption is also supported by the fact that Shri Sanjay Thakkar who originally entered into understanding with B Nanji Group to purchase the impugned land which later on registered in the name of his two concern one being assessee company and other being M/s Mahavir Procorn Ltd. It is further supported by the fact that Shri Sanjay Thakkar firstly offered the income on money paid on purchase of impugned land by the assessee and Mahavir Procorn Ltd in the revised return but later on, he withdrew and offered income from entire land @ 829 per sq. yard before settlement commissioner who also accepted the same. Therefore, we are of the opinion that, if any addition is sustainable, then it can be subject matter of dispute/addition in the hands of the Shri Sanjay Thakkar and not in the hands of the assessee company. 26. In view of the above and considering the fact in totality, we do not find any reason to interfere in the finding of learned CIT(A). Hence, the ground of appeal of the Revenue is hereby dismissed. 27. The next issue raised by the Revenue is that the learned CIT(A) erred in deleting the addition made by the AO for Rs. 1,92,55,183/- being brokerage income. IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 17 28. The necessary facts are continuing from the previous issue which are that the land admeasuring 23,227 sq. yards held by the B Nanji Enterprise Ltd at the eastern side of the Narmada Canal was registered in the name of Shree Kanhai Reality Pvt Ltd. The AO from the document gathered during the search proceeding found that Shree Kanhai Reality Pvt Ltd purchased impugned land at Rs. 3900/- per sq. yards out of which as mount of Rs. 3071 given to B Nanji Enterprise Ltd and remaining amount of Rs. 829 was retained by the intermediary which happen to be the present assessee. Thus, the AO added an amount of Rs. 1,92,55,183/- (23,227 sq. yd. x Rs. 829) being brokerage to the total income of the assessee. 28.1 The aggrieved assessee preferred an appeal before the learned CIT(A) and contended that there was no material found suggesting that it has first purchased the land form B Nanji Enterprise Ltd at Rs. 3071 per sq. yd. and then sold the same to Shree Kanhai Reality Pvt. Ltd. From the MOU and registered sale deed it can be observed that there was direct dealing between the B Nanji Enterprise Ltd and Shree Kanhai Reality Pvt. Ltd. and there was no mentioned of any beneficiary or confirming party. Therefore, addition made by the AO on account of brokerage in the impugned land needs to be deleted. 29. The assessee further submitted that impugned land was sold by the B Nanji Enterprise Ltd to impugned party with help of Shri Sanjay Thakkar. Therefore, if any adverse inference is drawn then the same should be against Shri Sanjay Thakkar. 30. The learned CIT(A) after considering facts in totality deleted the addition made by the AO by observing as under: “9.2 As discussed earlier in this order, the entire process for purchase of land was carried out by Shri Sanjay Thakkar, Though there is a memorandum of understanding between B. Nanji Enterprise Limited and Shree Kanhai Realty Pvt. Limited in which the appellant is a confirming party, no direct evidence has been found showing that the appellant had entered into any transaction with B. Nanji Enterprise Limited for lands situated on the eastern side of the canal prior to its sale by B. Nanji Enterprise Limited to Shree Kanhai Realty Pvt. Limited. Thus, it is clear that the appellant company had no interest in the land IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 18 on the eastern side of the canal. On the contrary, Sanjay Thakkar in his confirmation letter filed before me had accepted that he had introduced Mr. Janak Barot of Shree Kanhai Realty Pvt. Limited to purchase land from B. Nanji Enterprise Limited on the eastern side of the canal. 9.3 In view of the above, the action of the AO in taxing the brokerage/commission on the transaction of land purchased by Shree Kanhai Realty Pvt. Limited from B. Nanji Enterprise Limited in the hands of the appellant company, is not justified for the following reasons: (i) Assessing officer has not brought any evidence or material to show, that the appellant company had made any payment to B. Nanji Enterprise Limited for land subsequently purchased by Shree Kanhai Realty Pvt. Limited, to indicate that appellant had any vested or financial interest in the said land. (ii) The land purchased by Shree Kanhai Realty Pvt. Limited was a direct purchase between Shree Kanhai Realty Pvt. Limited and B Nanji Enterprise Ltd. The appellant has; never been party to such sale deed. (iii) There is also no evidence to suggest that appellant had received any consideration from Shree Kanhai Realty Pvt. Limited to show that there was any interest involved for purchase of land on the eastern side of the canal. (iv) The appellant company is not a confirming party in the final registered sale deed between B. Nanji Enterprise Limited and Shree Kanhai Realty Pvt. Limited, which clearly, shows that legally the appellant did not have any rights over the Landmark- Godhavi land situated on the eastern side of the canal otherwise Shree Kanhai Realty Pvt. Limited would have insisted that the appellant should be asked to sign as a confirming party to ensure clarity of title. 9.4 Further, Sri Sanjay Thakkar in the confirmation letter filed during the appellate proceedings and also in a letter sent to his assessing officer alongwith the return of income filed in response to notice u/s 153, has accepted that he had negotiated with Shree Kanhai Realty Pvt Limited for the purchase the land from B. Nanji Enterprise Limited. He has accepted that he had retained commission @829A per sq. yard and had passed on the remaining consideration @ Rs. 3,071/- per sq yard to B. Nanji Enterprise Limited. In view of the brokerage/commission income earned by @ Rs. 829/- per sq. yard is the income of Shri Sanjay Thakkar and not that of the appellant. 9.5 In view of the above, the commission income to be taxed in the hands of Sanjay Thakkar. Consequently no addition is warranted in the hands of the appellant company. 10. It may not be out of place to mention that the AO has also erred in computing the brokerage income on the purchase of the above land by Shree Kanhai Realty Pvt. Limited from B. Nanji Enterprise Limited at Rs. 1,92,55,183/-. The AO has computed brokerage income @ Rs. 829/-per sq. yard which is correct. However, the AO has applied this rate for the entire land purchased by Shree Kanhai Realty Pvt. Limited consisting of land with clear title as well as land which was litigated and sub-judice land. Whereas, the same AO while computing the undisclosed investment in the purchase of land from B. Nanji Enterprise Limited in framing the assessment order in the case of Shree Kanhai Realty Pvt. Limited has considered the area pertaining to only the clear land. The stand taken by the AO computing the brokerage income at Rs. 1,92,55,183/- is contrary to the stand taken in the case of Shree Kanhai Realty Pvt. Limited. Also, no brokerage can be said to have been earned on the litigated and sub-judice land for which the AO himself has held that no IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 19 payment in cash was made over and above the documented price for the said land while framing the assessment order in the case of Shri Kanhai Realty Pvt. Limited. The comparison of the same is summarised as under: Particulars ASSESSMENT YEAR 2009-10 Area inSq. Yards Rate (Rs.) Amount (Rs.) (a) Area on which brokerage computed as per assessment order of the appellant company 23,227 829/- 1,92,55,183/- (b) Clear land area of land purchased by Shree Kanhai Realty Pvt. Limited 8,036 829/- 66,61,844/- (c) Litigated and Sub-judice area 15,191 829/- 1,25,93,339/- 10.1 It is clear that the AO has erred in holding that the appellant had earned brokerage income from the transaction of purchase of land by Shree Kanhai Realty Pvt. Limited from B. Nanji Enterprise Limited. The AO in the remand report has again not appreciated the fact that no brokerage could have been earned by the appellant since neither the funds of the appellant company were used nor the appellant company had any legal right in respect of the land purchased by Shree Kanhai Realty Pvt. Limited from B. Nanji Enterprise Limited. As already discussed the brokerage income in respect of this transaction was earned by Shri Sanjay Thakkar. The amount of brokerage earned by Shri Sanjay Thakkar was Rs. 66,61,844/-. The addition made on account of unaccounted brokerage/commission income in the hands of the appellant company of Rs. 1,92,55,183/- is not justified. The same is deleted.” 31. Being aggrieved by the order of the learned CIT(A) the Revenue is in appeal before us. 32. The learned DR before us vehemently supported the order of the AO. 33. On the other hand, the learned AR before us vehemently supported the order of the ld. CIT-A. 34. We have heard the rival contention of both the parties and perused the material available in record. From the preceding discussion we note that the learned CIT(A) has given clear finding that there was no material on record suggesting that assessee company was party of transaction of transfer of land (situated at western side of Narmada Canal) by B Nanji Group to M/s- Shree Kanhai Reality Pvt Ltd in any manner. The finding of the learned CIT(A) has not been controverted by the learned DR before us. Further we note that the Shri Sanjay Thakkar has owned up commission income to the tune of Rs. 3 crore from IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 20 the impugned transaction of transfer of land by B Nanji Group to M/s Shree Kanhai Reality Pvt Ltd. Thus, considering the facts that the promoter of the assessee company Shri Sanjay Thakkar has already owned up commission income and also paid taxes on the same before the settlement commissioner, no addition in the hand of the assessee company can be sustained. Therefore, we do not find any reason to interfere in the finding of the learned CIT(A) and direct the AO to delete the addition made by him. Hence, the ground of appeal of the Revenue is hereby dismissed. 35. In the result, the appeal of the Revenue is hereby dismissed. Coming to CO No. 151/Ahd/2014 in ITA No 22/Ahd/2014 by the assessee 36. The assessee in first ground of objection challenged the validity of assessment framed under section 143(3) r.w.s. 153C of the Act. 37. At the outset, we note that on merit of the case the learned CIT(A) deleted the addition made by the AO and the order of the learned CIT(A) has been also confirmed by us in revenue appeal bearing IT(SS)A No. 22/Ahd/ 2014. Thus, considering the fact that that entire addition on merit has been deleted and decided in favour of the assessee concurrently by the learned CIT(A) and us, we hereby restrain ourselves from deciding the issue on technical ground. Hence, the ground of objection raised by the assessee is hereby dismissed. 38. The next issue raised by assessee in ground Nos. 2 to 4 of the objection are either consequential or general in nature. Hence, the same are dismissed accordingly. 39. In the result, CO filed by the assessee is hereby dismissed. Coming to IT(SS)A No. 23/Ahd/2014 an appeal by the Revenue for A.Y. 2010-11 IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 21 40. At the outset, we note that the issue raised by the Revenue in its grounds of appeal and additional grounds of appeal for the AY 2010-11 are identical to the issues raised by the Revenue in IT(SS)A No. 22/AHD/2014 for the assessment year 2009-10. Therefore, the findings given in IT(SS)A No. 22/AHD/2014 shall also be applicable for the year under consideration i.e. AY 2010-11. The appeal of the Revenue for the AY 2009-10 has been decided by us vide paragraph No. 35 of this order against the Revenue. The learned AR and the DR also agreed that whatever will be the findings for the assessment year 2009-10 shall also be applied for the year under consideration i.e. AY 2010-11. Hence, the grounds of appeal filed by the Revenue is hereby dismissed. 41. In the result appeal of the Revenue is hereby dismissed. Coming to CO No. 152/Ahd/2014 in ITA No 23/Ahd/2014 by the assessee 42. At the outset, we note that the grounds raised by the assessee in its CO for the AY 2010-11 are identical to the objection raised by the assessee in CO No. 151/AHD/2014 for the assessment year 2009-10. Therefore, the findings given in CO No. 151/AHD/2014 shall also be applicable for the year under consideration i.e. AY 2010-11. The cross objection of the assessee for the AY 2009-10 has been decided by us vide paragraph No. 39 of this order against the assessee. The learned AR and the DR also agreed that whatever will be the findings for the assessment year 2009-10 shall also be applied for the year under consideration i.e. AY 2010-11. Hence, the grounds of objection filed by the assessee is hereby dismissed. 43. In the result cross objection of the assessee is hereby dismissed. Coming to IT(SS)A No 324 & 325/Ahd/2019 an appeal by the Revenue for A.Y. 2009-10 and 2010-11 IT(SS)A No.22&23/AHD/2014 & 324&325/AHD/2019 & C.O. No. 151&152/AHD/2014 A.Ys. 2009-10 & 2010-11 22 44. At the outset, we note issue in the captioned appeal for captioned assessment arise from the assessment order passed under section 143(3) r.w.s. 153A of the Act dated 30 th March 2015. On earlier occasion an assessment under section 143(3) r.w.s. 153C/153A was also framed by the AO vide order dated 30 th December 2012. The same addition was made by the AO in both the assessment years. The issue from the earlier assessment order dated 30 th December 2012 traveled before us in IT(SS) A No. 22 & 23/Ahd/2014 which has been decided by us vide paragraphs no. 35 & 41 of this order against the Revenue. Therefore, following the same, the grounds of appeal raised by revenue in the captioned appeal are hereby dismissed. 45. In the result, appeal of the Revenue is hereby dismissed. 46. In the combined result, all the four appeals filed by the Revenue are dismissed and the cross objections filed by the assessee are also dismissed. Order pronounced in the Court on 05/04/2023 at Ahmedabad. Sd/- (MADHUMITA ROY) JUDICIAL MEMBER Sd/- (WASEEM AHMED) ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 05/04/2023 Manish TRUE COPY