M/S OM DEVELOPERS, V. THE DY,CIT CENT CIR.1,

ITSSA 320/AHD/2002

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0662 (ITAT-AHMEDABAD)
• Duration Of Justice: 12 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-04-2015
• Assessment Year: misc
• Appeal Filed On: 29-11-2002
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VS AHD AY TO AY
• Keywords: Capital asset; Document seized; Deemed to accrue or arise in india; Corroborative evidences; Block assessment; Documents seized
• Section: 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD .., , BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER SL. NO(S) IT(SS)A NO(S) NOS. BLOCK PERIOD APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 314/AHD/2002 AY 1990-91 TO AY 1999- 2000 AND PERIOD UPTO 29/10/1999 THE DY.CIT CENTRAL CIRCLE- I, SURAT (REVENUE) M/S.OHM DEVELOPERS C/O.ASUTOSH P.NANAVATY, NANAVATY & ASSOCIATES A/18, 3 RD FLOOR NARAYAN CHAMBERS ASHRAM ROAD AHMEDABAD- 380009 PAN: AAAFO4652 Q (ASSESSEE) 2. 320/AHD/2002 -DO- M/S.OHM DEVELOPERS REVENUE 3. 321/AHD/2002 -DO- M/S. ORGANISERS KADWA PATIDAR WADI, SARDAR BRIDGE ADAJAN ROAD,SURAT PAN:AAFO 5736 D REVENUE REVENUE BY : SHRI T.P.KRISHNAKUMAR, CIT-DR ASSESSEE BY : MS.URVASHI SHODHAN WITH SHRI A.P.NANAVATY, ARS / DATE OF HEARING 10/04/2015 !' / DATE OF PRONOUNCEMENT 08/05/2015 IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 2 - / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS BUNCH OF THREE APPEALS; ONE APPEAL BY THE RE VENUE AND THE OTHER TWO APPEALS BY DIFFERENT ASSESSEES HAVE BEEN FILED PERTAINING TO BLOCK ASSESSMENT PERIOD AYS 1990-91 TO 1999-2000 AN D UPTO 29/10/1999. SINCE COMMON ISSUES AND FACTS ARE INVO LVED IN THESE APPEALS, (ARISING OUT OF SEPARATE TWO ORDERS PASS ED BY THE LD.CIT(A)-II, AHMEDABAD BOTH DATED 24/09/2002), THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THIS IS SECOND ROUND OF LITIGATION. IN THE EARL IER ROUND, BOTH THE REVENUE AND THE ASSESSEE HAD FILED AGAINST HAD FILE D AGAINST TWO SEPARATE ORDERS OF THE TRIBUNAL DATED 17/10/2008 (IN REVENUE S APPEAL) & 12/11/2003 (IN ASSESSEES APPEALS) IN IT(SS)A NO.31 4/AHD/2002 AND IT(SS)A NOS.320 & 321/AHD/2002 RESPECTIVELY APPEALS BEFORE THE HONBLE GUJARAT HIGH COURT REGISTERED AT TAX APPEAL NOS.214 OF 2004, 215 OF 2004 AND 692 OF 2009. THE HONBLE JUIRISDIC TIONAL GUJARAT HIGH COURT WAS PLEASED TO QUASH AND SET ASIDE THE ORDERS AND REMITTED THE APPEALS BEFORE THIS TRIBUNAL VIDE ORAL JUDGEMENT DA TED 12/08/2014 FOR DECISION AFRESH IN ACCORDANCE WITH LAW. IN RESPECT OF THE APPEALS OF THE IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 3 - ASSESSEE, THE REGISTRY OF THIS TRIBUNAL RECONSTRUCT ED THE FILE AND FIXED FOR HEARING THE APPEALS ACCORDINGLY. HOWEVER, IN RESPE CT OF THE REVENUES APPEAL IN IT(SS)A NO.314/AHD/2002, THE ORIGINAL FIL E WAS PLACED BEFORE THIS TRIBUNAL. 3. IN REVENUES APPEAL, I.E.(IT(SS)A NO.314/AHD/201 2), THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A), AHMEDABAD HAS ERRED IN REDUCING THE UNDISCLOSED INCOME WORKED OUT AT RS.3,08,01,600/-, AS PER THE S EIZED MATERIALS AND AS ADMITTED BY THE WORKING PARTNER OF THE ASSESSEE FIRM, SHRI SUNIL H. DESAI, TO RS.2,29,20,847/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF THE AO BE RESTORED TO THE ABOVE EXTENT. 3.1 IN ASSESSEES APPEALS; I.E. IT(SS)A NOS.320 & 3 21/AHD/2002 FOR BLOCK PERIOD AYS 1990-91 TO 1999-2000 UPTO 29.10.19 99, THE ASSESSEES HAVE RAISED THE FOLLOWING GROUNDS OF APPEALS IN ITS RESPECTIVE APPEALS:- (A) IT(SS)A NO.320/AHD/2002 (IN THE CASE OF M/S.OH M DEVELOPERS) 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION TO THE TUNE OF RS.2,18,34,648/- ON ACCOUNT OF PROFIT ALLEGED TO HAVE BEEN EARNED BY THE APPELLANT FIRM FROM CONSTRUCTION AND SALE OF FLATS AT CHANDAN PARK APARTMENTS, CITY LIGHT ROAD, SURAT. IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 4 - 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN LAW AND ON FACTS IN UPHOLDING THE TIME BARRED ASSESSMEN T ORDER PASSED BY THE LEARNED ASSESSING OFFICER. 3) IT IS, THEREFORE, PRAYED THAT THE ABOVE ADDITIO N BE DELETED AND THE TIME BARRED ORDER BE QUASHED AS INVALID AND VOID AB -INITIO. 4) THE APPELLANT PRAYS FOR GRANTING SUCH OTHER REL IEF AS MAY BE DEEMED JUST AND PROPER BY YOUR HONOURS CONSIDERING THE FAC TUAL AND LEGAL ASPECTS OF THE CASE OF THE APPELLANT. 5) THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, DELETE, SUBSTITUTE OR MODIFY ANY OR ALL OF THE GROUNDS OF G ROUNDS OF APPEAL. (B) IT(SS)A NO.321/AHD/2002 (IN THE CASE OF M/S.OH M ORGANIZERS) 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION TO THE TUNE OF RS.1,65,89,696/- ON ACCOUNT OF PROFIT ALLEGED TO HAVE BEEN EARNED BY THE APPELLANT FIRM FROM CONSTRUCTION AND SALE OF FLATS/SHOPS AT YOGI C OMPLEX APARTMENTS, NEW RANDER ROAD, SURAT. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN LAW AND ON FACTS IN UPHOLDING THE TIME BARRED ASSESSMEN T ORDER PASSED BY THE LEARNED ASSESSING OFFICER. 3) IT IS, THEREFORE, PRAYED THAT THE ABOVE ADDITIO N BE DELETED AND THE TIME BARRED ORDER BE QUASHED AS INVALID AND VOID AB -INITIO. 4) THE APPELLANT PRAYS FOR GRANTING SUCH OTHER REL IEF AS MAY BE DEEMED JUST AND PROPER BY YOUR HONOURS CONSIDERING THE FAC TUAL AND LEGAL ASPECTS OF THE CASE OF THE APPELLANT. IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 5 - 5) THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, DELETE, SUBSTITUTE OR MODIFY ANY OR ALL OF THE GROUNDS OF G ROUNDS OF APPEAL. 3.2. BRIEF FACTS UPTO THE STAGE OF THE LD.CIT(A) AS RECORDED IN THE IMPUGNED APPELLATE ORDER IN THE CASE OF M/S.OHM DEV ELOPERS ARE REPRODUCED HEREUNDER:- 03. BRIEF FACTS OF THE CASE ARE THAT THE APPELLAN T FIRM IS ENGAGED IN THE BUSINESS OF CONSTRUCTION ACTIVITIES. A SEARCH UNDE R SECTION 132 OF THE ACT TOOK PLACE ON 29.10.1999 AT THE BUSINESS AND RE SIDENTIAL PREMISES OF THE APPELLANT WHICH WAS CONCLUDED ON 03.11.1999. THE APPELLANT FILED A RETURN DISCLOSING UNDISCLOSED INCOME OF RS.10,86,199/- ON 17.02.2000 IN RESPONSE TO NOTICE UNDER SECTION 158 BC OF THE ACT. THE APPELLANT CONSTRUCTED A RESIDEN TIAL COMPLEX NAMELY CHANDAN PARK, CITY LIGHT ROAD, SURAT DURING THE PER IOD RELEVANT TO BLOCK ASSESSMENT. THE APPELLANT RECEIVED ON MONEY OF RS.5,39,63,889/- WHICH WAS DETECTED DURING THE SEAR CH THROUGH AN INDEPENDENT AND EXCLUSIVE EVIDENCE. THE RECEIPT OF ON MONEY AND INCOME OF RS.3,08,01,600/- WAS ADMITTED BY THE WORK ING PARTNER DURING A STATEMENT ON OATH UNDER SECTION 132(4) OF THE ACT . HOWEVER, THE APPELLANT RETRACTED FROM THE STATEMENT ON OATH AND TRUTH OF THE SEIZED MATERIAL WHILE DECLARING UNDISCLOSED INCOME OF RS.1 0,86,199/- ONLY THROUGH THE BLOCK RETURN. THE GLARING PHENOMENON O F THE APPELLANTS CASE IS THAT NO RETURN OF INCOME WAS EVER FILED THO UGH BUSINESS OF CONSTRUCTION WAS BEING CARRIED ON SINCE FINANCIAL Y EAR 1996-97. DURING THE POST SEARCH PERIOD THE APPELLANT HAS SHI FTED A STAND THAT INCOME IS DISCLOSED ON ACCRUAL BASIS. 05. THE MAIN ISSUE IS REGARDING RECEIPT OF ON MONE Y WHICH HAS BEEN ACCEPTED BY THE APPELLANT. ANNEXURES B-2/25 A ND B-2/26 SEIZED FROM THE SITE OFFICE OF M/S.CHANDAN PARK AT CITY LI GHT, SURAT ARE ACTUAL IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 6 - LEDGER OF THE FLAT HOLDERS WHICH CONTAIN THE DETAIL S OF PAYMENTS RECEIVED UPTO 31.03.1999. ANNEXURE B-2/26 REFLECTS THE RECE IPT OF PAYMENTS FROM 01.04.99 TO THE DATE OF SEARCH. SHRI KETAN O.DER A DMITTED IN A STATEMENT ON OATH THAT THE TOTAL SALE CONSIDERATION OF FLATS IN CHANDAN PARK IS RS.7,88,02,178/- WHICH INCLUDED BOTH ON MO NEY AND OFFICIAL PRICE WHERE AS THE DOCUMENT PRICE IS AT RS.2,48,38, 289/- ONLY, THUS DIFFERENCE OF BOTH AT RS.5,39,63,889/- IS THE ON M ONEY. SHRI KETAN O. DER IDENTIFIED THE FLAT HOLDERS AND ACCEPTED THE VE RACITY OF DETAILS CONTAINED IN THE SAID DOCUMENTS. 3.3. THE LD.CIT(A) HAD PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. WHILE PARTLY ALLOWING THE APPEAL, THE LD.CIT(A) DIR ECTED THE AO TO ADOPT THE NET PROFIT AT RS.2,29,20,847/- AND AFTER ALLOW ING THE BENEFIT OF UNDISCLOSED INCOME OF RS.10,86,199/- IN THE BLOCK R ETURNS, TAKE THE TOTAL UNDISCLOSED INCOME AT RS.2,18,34,648/- AND ACCORDIN GLY CHARGE TAX. NOW, BOTH THE REVENUE AND THE ASSESSEE ARE IN APPEA LS BEFORE US. 4. IN ASSESSEES APPEAL THE ISSUES TO BE DECIDED AR E WHETHER THE DEFINITIONS OF TRANSFER AS EMBODIED IN SECTION 2(47 ) AND SECTION 269UA(F) OF THE ACT WOULD BE APPLICABLE OR NOT AND WHAT SHOU LD BE THE CORRECT YEAR OF TAXING THE RECEIPT OF ON MONEY AND RECORDED CO NSIDERATION. HOWEVER, THE ONLY EFFECTIVE GROUND IN THE REVENUES APPEAL IS AGAINST REDUCING THE UNDISCLOSED INCOME. THE LD.CIT-DR SUB MITTED THAT THE LD.CIT(A) IS NOT JUSTIFIED IN REDUCING THE ADDITION . HE SUBMITTED THAT THE AO HAS OBSERVED THAT THE ASSESSEE HAD RECEIVED ON MONEY OF RS.5,39,63,889/-. WORKING PARTNER OF THE ASSESSEE- FIRM ACCEPTED THE IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 7 - RECEIPT OF THIS ON MONEY AND ADMITTED INCOME DURI NG THE COURSE OF SEARCH OF RS.3,08,01,600/-. HOWEVER, AGAINST THIS UNDISCLOSED INCOME, THE ASSESSEE HAD FILED ONLY UNDISCLOSED INCOME OF R S.10,86,199/-, MAINLY ON THE BASIS THAT THE SALE-DEED OR POSSESSION WAS N OT HANDED OVER TO THE FLAT OWNERS TILL THE DATE OF SEARCH IN ALL CASES. HE SUBMITTED THAT ON THE BASIS OF THE SEIZED MATERIAL AND THE STATEMENT OF T HE PARTNER ON THE SAID SEIZED PAPER, THE UNDISCLOSED INCOME WAS DETERMINED AT RS.3,08,01,600/-. THE LD.CIT-DR SUBMITTED THAT IN EARLIER ROUND OF LITIGATION, THIS TRIBUNAL HAD HELD THAT IN VIEW OF SECTION 2(47) OF THE ACT, EFFECTIVE TRANSFER IS TAKEN PLACE AND THE ASSESSEE HAS RECEIVED THE NET PROFIT OF RS.2,29,20,849/-. HE PLACED RELIANCE O N THE ASSESSMENT ORDER. 4.1. ON THE CONTRARY, LD.SR.COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE CONTROVERSY IN ALL THESE APPEALS IS WITH REGARD TO THE FACT WHETHER THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE CAN BE SUBJE CTED TO TAX IN THE YEAR UNDER APPEAL AND/OR OTHERWISE SAME IS TO BE TAXED A S DECLARED BY THE ASSESSEE ON THE BASIS OF REGISTRATION OF THE SALE-D EED. HE SUBMITTED THAT THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH E ASSESSEE HAS DECLARED ON MONEY MORE THAN THE ON MONEY DECLARED DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PURCHASE OF LAND AND CONSTRUCTION, THEREFORE THE FLATS ARE SHOWN AS STOC K-IN-TRADE. HE IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 8 - SUBMITTED THAT THE ASSESSEE HAS TREATED THE FLATS A S STOCK-IN-TRADE AND NOT AS CAPITAL ASSET, THEREFORE THE PROVISIONS OF SECTI ON 2(47) OF THE ACT WOULD NOT BE APPLICABLE IN THE CASE OF THE ASSESSEE. HE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY TH E DECISION OF COORDINATE BENCH (ITAT D BENCH AHMEDABAD) IN THE CASE OF ITO VS. SHRI SIDDHARTH S.PATEL PASSED IN ITA NOS.1852 & 185 3/AHD/2003 FOR AYS 1997-98 & 1998-99, DATED 23/04/2010. THE LD.SR .COUNSEL FOR THE ASSESSEE ALSO PLACED ON RECORD THE CHART SHOWING TH E TOTAL AREA SOLD, RECORDED CONSIDERATION RECEIVED, ON MONEY RECEIVE D AND TOTAL SALE CONSIDERATION RECEIVED. HE POINTED OUT THAT AS PE R THIS CHART, THE ASSESSEE HAS DECLARED UPTO 29/10/1999 SALES OF 32,0 50 SQ.FT., OFFICIAL CONSIDERATION RECEIVED IS RS.44,87,102/-, ON MONE Y CONSIDERATION OF RS.99,01,675/- AND TOTAL CONSIDERATION OF RS.1,39,8 8,777/-. IN RESPECT OF AY 2000-01 TOTAL SQ.FT. AREA SOLD IS 33,715 AND REC ORDED SALE CONSIDERATION AMOUNT OF RS.49,65,000/-, ON MONEY CONSIDERATION IS RS.94,17,237/- AND TOTAL CONSIDERATION IS OF RS.1, 43,82,237/-. SIMILARLY, FOR AYS 2001-02, 2002-03, 2003-04, 2004-05 & 2006-0 7 THE ENTIRE RECEIPTS RECEIVED BY THE ASSESSEE BOTH RECORDED IN THE BOOKS OF ACCOUNTS AND ON MONEY HAS BEEN OFFERED FOR TAX. HE SUBMIT TED THAT THE ONLY CONTROVERSY IS WHETHER THE RECEIPTS SO OFFERED FOR TAXATION IS TO BE OFFERED DURING THE BLOCK PERIOD OR THE SAME HAS TO BE SPREA D AS PER THE SALE-DEED EXECUTED. HE SUBMITTED THAT THE HONBLE GUJARAT HI GH COURT IN THE CASE IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 9 - OF CIT VS. ASHALAND CORPORATION REPORTED AT 133 IT R 55(GUJ.) HAS HELD THAT UNLESS THE TITLE OF THE ASSESSEE WAS EXTINGUIS HED, THE TITLE OF THE PURCHASER COULD NOT ARISE. BOTH COULD NOT BE THE E XCLUSIVE OWNERS OF THE SAME PROPERTY AT THE SAME TIME. SO LONG AS THE ASS ESSEE CONTINUED TO BE THE OWNER, IT COULD NOT BE SAID THAT HIS TITLE WAS DIVESTED AND THAT THE SALE HAD RESULTED IN ANY PROFIT TO HIM. HE SUBMITTED T HAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. MOTILAL C.PATEL & CO. REPORTED AT 173 ITR 666(GUJ.) HAS HELD THAT THE ONLY RIGHT WHICH TH E AGREEMENT FOR SALE CONFERRED WAS THE RIGHT TO OBTAIN ANOTHER DOCUMENT, NAMELY, THE SALE DEED. HE SUBMITTED THAT THE HONBLE HIGH COURT FUR THER HELD THAT IT WAS ONLY ON THE COMPLETION OF THE SALE THAT THE AMOUNTS WHICH THE ASSESSEE HAD RECEIVED IN SAMVAT YEAR 2027 AND THE BALANCE OF THE SALE PRICE WHICH IT HAD RECEIVED IN SAMVAT YEAR 2028 BECAME THE PROF IT OF THE ASSESSEE. HE SUBMITTED THAT IN THE CASE IN HAND THE FACTS ARE IDENTICAL, THEREFORE IN THE LIGHT OF THE RATIO LAID DOWN IN THE DECISION OF THE COORDINATE BENCH IN ITA NOS.1852 & 1853/AHD/2003 AND IN THE JUDGEMENT O F HONBLE GUJARAT HIGH COURT IN THE CASE(S) OF CIT VS. ASHALA ND CORPORATION(SURPA) AND CIT VS. MOTILAL C.PATEL & CO .(SUPRA), THE LD.CIT(A) WAS NOT JUSTIFIED IN TAKING THE UNDISCLOS ED INCOME AT RS.2,18,34,648/-. IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 10 - 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAS DECIDED THIS ISSUE A S UNDER:- 10. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE APPELLANT AND ALSO GONE INTO THE MERITS OF ADDITION ON ACCOUNT OF UNDISCLOSED INCOME. THE APPELLANT HAS TOTALLY RETR ACTED FROM THE STATEMENT RECORDED ON OATH DURING SEARCH REGARD THE PROFIT FROM CONSTRUCTION BUSINESS AND TAKEN AN ALTOGETHER DIFFE RENT STAND THAT INCOME IN THE BLOCK RETURN HAS BEEN SHOWN AS PER TH E ACTUAL SALE OF FLATS BASED ON EXECUTION OF SALE DEED. HOWEVER, IN THE FACE OF PLETHORA OF SEIZED DOCUMENTS CONTAINING MINUTE DETAILS OF INCOM E AND EXPENDITURE, THE APPELLANT CANNOT GET AWAY SO EASILY. THE ASSES SING OFFICER HAS WORKED OUT NET PROFIT AT RS.2,61,78,438/- AT PAGE 2 8 OF THE ASSESSMENT ORDER. SHRI SUNIL DESAI, PARTNER ADMITTED ESTIMATE D PROFIT FROM RS.2,08,65,000/- TO RS.3,08,01,600/- ON THE BASIS OF COST OF CONSTRUCTION INVOLVED. SHRI KETAN O.DER ADMITTED RECEIPT OF ON MONEY AT RS.5,39,63,889/- IN A STATEMENT UNDER SECTION 132(4 ) OF THE ACT. SHRI SHANTILAL PATEL, PARTNER ADMITTED PROFIT OF RS.2,29 ,20,847/- ON THE BASIS OF ANNEXURE BS-1/11. THE FIGURES CONTAINED IN INCO ME EXPENDITURE STATEMENT REPRODUCED IN PARA 6 ABOVE CANNOT BE IMAG INARY AND ALSO THE APPELLANT CANNOT BRUSH ASIDE THE SAME BY CALLING IT A SOLITARY PAPER PREPARED BY THE PARTNER FOR SOME OTHER PURPOSE. TH E JUDICIAL PRONOUNCEMENT RELIED UPON BY THE APPELLANT ARE NOT HELPFUL BECAUSE I) THESE ARE NOT DELIVERED IN THE CASE OF BLOCK ASSESS MENT, (II) THE APPELLANT HAS BEEN FOUND IN POSSESSION OF ON MONEY AS EVIDE NCED BY SEIZED MATERIAL WHICH WAS NOT THERE IN BOTH THE JUDGEMENTS AND (III) IT IS A CASE OF GLARE TAX EVASION WHEN THE APPELLANT IS CAUGHT W ITH THE SUPPORTING EVIDENCE AND IT IS NOT THE CASE OF APPLYING DEFINIT ION OF TRANSACTION AND (IV) THE APPELLANT HAS ADMITTED CERTAIN INCOME UNDER SECTION 132(4) OF THE ACT. HOWEVER, LOOKING TO THE OBJECTIONS RAI SED BY THE APPELLANT THAT COST OF CONSTRUCTION WORKED OUT BY THE PARTNER WAS NOT RS.500/- PER SQ.FT. BUT RS.450/- PER SQ.FT. AND THE ASSESSING O FFICER ADOPTED RS.3,08,01,600/- INSTEAD OF RS.2,08,65,000/-. THE APPELLANT CANNOT TREAT THE AMOUNT OF SALES WHICH HAS GONE INTO HIS POCKET JUST A BOOKING IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 11 - AMOUNT NOW WHEN THROUGH OUT THE SEARCH PROCEEDINGS THE PARTNERS ADMITTED THE CORRECTNESS OF PROFIT WORKED OUT IN TH E SEIZED DOCUMENTS. THE CHART PREPARED BY THE APPELLANT IS AS PER HI OW N CONVENIENCE AND DOES NOT REFLECT TRUE PICTURE OF STATE OF AFFAIRS O F THE BUSINESS. UNDER THESE CIRCUMSTANCES I WOULD DIRECT THE ASSESSING OF FICER TO ADOPT NET PROFIT AT RS.2,29,20,847/- AND AFTER ALLOWING THE B ENEFIT OR UNDISCLOSED INCOME OF RS.10,86,199/- IN THE BLOCK RETURN, TAKE THE TOTAL UNDISCLOSED INCOME AT RS.2,18,34,648/- AND ACCORDINGLY CHARGE T AX. 5.1. THE CONTENTION OF THE LD.SR.COUNSEL FOR THE AS SESSEE IS THAT THE INCOME SHOULD NOT HAVE BEEN TAXED IN THE YEAR UNDER APPEAL AS THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF THE LAND. THE ASSESSEE HAS TREATED THE FLATS AS STOCK-IN-TRADE AN D THE ADVANCE RECEIVED FROM THE BUYERS AS ADVANCES. IT IS ALSO THE CONTEN TION OF THE ASSESSEE THAT THE PROVISION OF SECTION 2(47) OF THE ACT WOUL D NOT BE APPLICABLE IN THE CASE IN HAND. RELIANCE IS PLACED ON THE DECISI ON OF THE COORDINATE BENCH IN THE CASE OF ITO VS. SHRI SIDDHARTH S.PATEL PASSED IN ITA NOS.1852 & 1853/AHD/2003(SUPRA), WHEREIN THE HONBL E BENCH HAS HELD AS UNDER:- 12. WE HAVE HEARD BOTH THE SIDES AND PERUSED MATER IAL PLACED BEFORE US. WE FIND THAT THE ISSUE UNDER CONSIDERATION IS C OVERED BY THE FOLLOWING THE DECISIONS OF THE JURISDICTIONAL HIGH COURT: I) CIT VS. MOTILAL C. PATEL & CO., 173 ITR 666 (GUJ) IN WHICH THE RELEVANT OBSERVATIONS OF THE HON'BLE COURT IS AS UN DER: 'THAT AFTER CORRECTLY APPRECIATING THE POSITION IN LAW AND HOLDING THAT THE ONLY RIGHT WHICH THE AGREEMENT FOR SALE IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 12 - CONFERRED WAS THE RIGHT TO OBTAIN ANOTHER DOCUMENT, NAMELY, THE SALE DEED, THE TRIBUNAL FELL INTO AN ERROR IN REACH ING THE CONCLUSION THAT THE AMOUNT OF RS.66,066 WHICH THE A SSESSEE HAD RECEIVED IN SAMVAT YEAR 2027, REPRESENTED ITS INCOM E EARNED IN THAT YEAR. THE AMOUNT WHICH THE ASSESSEE RECEIVED I N SAMVAT YEAR 2027 WAS ONLY AN ADVANCE AND WOULD BECOME PROF ITS IN ITS HANDS ONLY ON COMPLETION OF SALE IN FAVOUR OF THE S OCIETY. IT WAS ONLY ON COMPLETION OF THE SALE THAT THE AMOUNTS WHI CH THE ASSESSEE HAD RECEIVED IN SAMVAT YEAR 2027 AND THE B ALANCE OF THE SALE PRICE WHICH IT HAD RECEIVED IN SAMVAT YEAR 2028 BECAME THE PROFIT OF THE ASSESSEE. ' II) CIT VS. ASHALAND CORPORATION, 133 ITR 5 5 (GUJ) WHEREIN THE FOLLOWING HAS BEEN HELD: 'I) THAT THE ASSESSEE RECEIVED A TOTAL SUM OF RS. 2 ,13,772 IN ADVANCE TOWARDS THE SALE PRICE OF THE LAND WHICH IT HAD AGREED TO SELL TO THE SOCIETY, BUT THE RECEIPT COULD NOT BE C ONSIDERED TO BE ITS INCOME. THE BUSINESS OF THE ASSESSEE WAS TO PUR CHASE AND SELL LAND. UNLESS THE TITLE OF THE ASSESSEE WAS EXTINGUI SHED, THE TITLE OF THE PURCHASER COULD NOT ARISE. BOTH COULD NOT BE TH E EXCLUSIVE OWNERS OF THE SAME PROPERTY AT THE SAME TIME. SO LO NG AS THE ASSESSEE CONTINUED TO BE THE OWNER, IT COULD NOT BE SAID THAT HIS TITLE WAS DIVESTED AND THAT THE SALE HAD RESULTED I N ANY PROFIT TO HIM. ' 5.2. THE LD.SR.COUNSEL FOR THE ASSESSEE HAS ALSO PL ACED RELIANCE ON THE DECISION OF COORDINATE BENCH (ITAT C BENCH AHMEDA BAD) IN THE CASE OF M/S.D.R. CONSTRUCTION VS. ITO IN ITA NO.2735/AHD /2010 FOR AY 2008-09, DATED 08/04/2011. THE HONBLE COORDINATE BENCH IN PARAS-14 AND 15 OF ITS ORDER HAS HELD AS UNDER:- IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 13 - 14. ONCE WHAT IS TO BE TAXED IS 'ON MONEY' THEN I T HAS TO BE EXAMINED WHEN CAN IT BE TAXED. WHETHER IT CAN BE TAXED IN AS ST. YEAR 2008-09 ON THE BASIS OF STATEMENT OF SHRI RAVI KHANDELWAL ALON E? IN OUR CONSIDERED VIEW THE STATEMENT THAT ON MONEY IS INC OME IS A GENERIC FORM OF SAYING RECEIPT AS INCOME AND NOT IN THE SENSE OF TRUE INTERPRETATION OF THE TERM INCOME AS PER I.T. ACT . 'ON MONEY' AS SUCH CANNOT BE TAXED ALONE UNLESS IT IS PROVED THAT ALL THE EXPENDITURE INCURRED ON THE PROJECT WAS RECORDED IN THE BOOKS OF ACCOUNT AND 'ON MONEY' COMPONENT WAS OVER AND ABOVE THE RECEIPTS RE CORDED IN THE BOOKS. NO SUCH EVIDENCE HAS BEEN FURNISHED. TO THE CONTRARY IT IS UNDISPUTED POSITION THAT OUT OF THIS ON MONEY ASSE SSEE HAS INCURRED VARIOUS EXPENDITURE/INVESTMENT. THEREFORE, ON MONE Y AS SUCH AND AS A WHOLE CANNOT BE TAXED OVER AND ABOVE THE INCOME A CCRUING ON THE BASIS OF ENTRIES RECORDED IN THE BOOKS OF ACCOUNT. FROM THIS IT FOLLOWS THAT 'ON MONEY' HAS TO BE TREATED AS REVENUE RECEIP T AND NOT PURELY INCOME. THE EXPLANATION OF THE ID. AR IN THIS REGAR D HAS TO BE ACCEPTED WHICH IS ALSO SUPPORTED BY THE STATEMENT OF SHRI RAVI KHANDELWAL WHEN READ AS A WHOLE. THUS RS. 10 CRORES AS SUCH CA NNOT BE INCOME SEPARATELY TAXABLE TAKING IT IN ISOLATION OF EXPEND ITURE INCURRED BY THE ASSESSEE AGAINST SUCH RECEIPT. THEREFORE, BOTH 'ON MONEY' AS WELL AS EXPENDITURE/INVESTMENT HAS TO BE SEPARATELY ACCOUNT ED FOR/ADDED TO THE DECLARED RECEIPTS AND DECLARED EXPENDITURE/INVESTM ENT AS PER BOOKS TO WORK OUT TOTAL INCOME ACCRUED TO THE AS SESSEE AND TOTAL EXPENDITURE/INVESTMENT INCURRED BY IT. 15. THE NEXT ISSUE COMES AS TO WHEN THE INCOME OUT OF SUCH RECEIPT WOULD ACCRUE TO THE ASSESSEE. IN OUR CONSIDERED VI EW RECEIPT OF ON MONEY IS PART AND PARCEL OF MONEY RECEIVED ON SALE OF FLATS BY CHEQUE. THE AMOUNT RECEIVED BY CHEQUE BEFORE ACTUALLY TRANS FERRING THE FLATS TO THE PURCHASERS WILL BE IN THE NATURE OF ADVANCE AND CANNOT BE SAID TO HAVE ACCRUED TO THE ASSESSEE. ASSESSEE HAS INCURRE D EXPENDITURE/INVESTMENT IN THE PROJECT IN VARIOUS YE ARS BUT INCOME TO IT WILL ACCRUE ONLY WHEN FLATS ARE SOLD TO THE BUYERS. ADVANCE MONEY RECEIVED BY THE ASSESSEE CAN NEVER BE HIS INCOME. IT WOULD ONLY BE A LIABILITY SHOWN IN THE BALANCE SHEET AS ADVANCES FR OM THE CUSTOMERS AND WILL BE ADJUSTED AGAINST THE SALE PROCEEDS OF THE F LATS WHEN FLATS ARE IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 14 - TRANSFERRED TO THE PURCHASERS. THEREFORE, ACCRUAL OF INCOME TO THE ASSESSEE WILL NOT ARISE ON THE DATE WHEN IT RECEIVE S CHEQUE OR CASH AGAINST SALE ON FLATS BUT WILL ARISE WHEN FLATS ARE TRANSFERRED TO THE BUYERS. TILL THEN IT WILL ONLY BE AN ADVANCE. WE NOTICE THAT ASSESSEE HAS BOOKED THE FLATS FROM ASST.YEAR 2008-0 9 ON WARDS AND RECEIVED ADVANCES BY WAY OF CHEQUE. IT HAS ALSO RE CEIVED ADVANCE IN CASH WHICH IS NOW DECLARED AS ON MONEY IN THE STA TEMENT GIVEN BY SHRI RAVI KHANDELWAL. IN A CHART GIVEN BEFORE US B Y THE ASSESSEE, NAMES OF THE PROSPECTIVE BUYERS AND THEIR PANS HAVE ALSO BEEN GIVEN AND ALSO THE DATE OF BOOKING. THERE WERE 122 SUCH BUYERS AND FROM WHOM ON MONEY IN CASH TO THE EXTENT OF RS.10 CROR ES IS STATED TO BE RECEIVED. THE OUTSTANDING AMOUNT AGAINST THEM IS A LSO SHOWN. THE AREA OF THE PREMISES BOOKED, RATE AT WHICH IT IS BO OKED AND THE DATE OF BOOKING ALL FALL IN THE FY 2006-07 AND 2007-08. BU T AS PER CERTIFICATE OF THE AUDITOR WHOSE CONTENTS ARE REFERRED TO ABOVE , ASSESSEE HAS SOLD TOTAL 149 UNITS IN FY 2009-10 AND 55 UNITS IN FY 20 10-11 UPTO 15-03- 2011. IT HAS SHOWN TO HAVE ADJUSTED A SUM OF RS.4, 18,68,899/- OUT OF RS.10 CRORES AGAINST SALE OF 149 FLATS/SHOPS AND OF RS.1,82,09,630/- AGAINST SALE OF 55 FLATS/SHOPS. THE REVENUE IS ACC ORDINGLY RECOGNIZED ONLY WHEN FLATS/SHOPS ARE SOLD AND, THEREFORE, BOTH CHEQUE PORTION/CASH PORTION BEING THE ON MONEY WOULD ACCRUE TO THE AS SESSEE IN THE YEAR WHEN FLATS/SHOPS ARE SOLD. THEREFORE, IN NO WAY SU M OF RS.10 CRORES AS A WHOLE CAN BE TAXED IN ASST.YEAR 2008-09 ON THE BA SIS OF EXPENDITURE AS DEEMED INCOME U/S.69C. 5.3. FURTHER, THE HONBLE TRIBUNAL HELD AS UNDER:- 17. THERE CANNOT BE TWO OPINIONS ON THE PROPOSITIO N THAT THE SALE OF IMMOVABLE PROPERTY TO PURCHASER WOULD BE COMPLETE O N ACTUAL CONVEYANCE OF THE TITLE. IN K.C. PAL CHOWDHURY VS. CIT (1962) 46 ITR 01 (CAL.) IT IS HELD EVEN WHERE THERE IS AN AGREEME NT FOR SALE AND DELIVERY OF POSSESSION AND FULL CONSIDERATION WAS P AID BUT SALE DEED WAS EXECUTED ON LATER DATE THEN TITLE WOULD PASS WHEN S ALE DEED WAS EXECUTED. CAPITAL GAINS WOULD ACCRUE AT THAT POINT OF TIME. HOWEVER, AFTER INSERTION OF SECTION 53A IN TRANSFER OF PROPE RTY ACT AND CLAUSE (V) IN SECTION 2(47) THE POSITION OF LAW HAS CHANGED AN D CAPITAL GAINS IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 15 - WOULD ACCRUE ON PAYMENT OF FULL CONSIDERATION AND H ANDING OVER OF THE POSSESSION. IN MECCANE INDUSTRIES LTD. VS. CIT (20 02) 254 ITR 175 (MAD.) HON. MADRAS HIGH COURT HELD THAT CAPITAL GAI N WOULD ACCRUE IN THE YEAR IN WHICH SALE DEED WAS EXECUTED. HON.ANDH RA PRADESH HIGH COURT IN CIT VS. NAWAB MAHMOOD JUNG BAHADUR (1988) 172 ITR 592 HELD THAT CAPITAL GAIN WOULD ARISE ON TRANSFER OF A SSET LIABLE TO BE TAXED FOR THE YEAR IN WHICH TRANSFER TOOK PLACE. HON.GUJ ART HIGH COURT IN CIT VS. MORMASJI MANCHARJI VAID (2001) 250 ITR 542 (GUJ) HELD THAT TRANSFER OF IMMOVABLE PROPERTY IS EFFECTED ON THE D ATE O EXECUTION OF TRANSFER DEED AND REGISTRATION OF TRANSFER DEED IS EFFECTED FROM THE DATE OF EXECUTION. FROM THESE AUTHORITIES IT FOLLOWS TH AT THERE SHOULD BE AN IMMOVABLE PROPERTY IN EXISTENCE AND TRANSFER DEED I S EXECUTED WHICH IS LATER REGISTERED. THUS CAPITAL GAIN WOULD ACCRUE O R ARISE ONLY WHEN TRANSFER DEED IS EXECUTED. IN THE PRESENT CASE ASS ESSEE IS DEALING IN SEVERAL IMMOVABLE PROPERTY I.E. FLATS AND SHOPS WHI CH HE HAS CONSTRUCTED. A SINGLE FLAT IS A CAPITAL ASSET FOR THE PURCHASER BUT FOR THE ASSESSEE ALL THE FLATS TOGETHER CONSTITUTE STOCK-IN -TRADE. AS ASSESSEE IS DEALING IN CAPITAL ASSET, AS STOCK-IN-TRADE, THE BA SIC PRINCIPLE OF ACCRUAL OF INCOME WILL REMAIN THE SAME I.E. PROFIT ON SALE OF FLAT WILL ACCRUE TO THE ASSESSEE WHEN FLAT IS IN EXISTENCE AND THE SAME IS TRANSFERRED TO THE PURCHASER THROUGH THE TRANSFER DEED. THE PROFIT WO ULD ARISE TO THE ASSESSEE ONLY ON EXECUTION OF TRANSFER DEED WHICH M AY BE REGISTERED IN THE SAME YEAR OR MAY BE IN THE SUBSEQUENT YEAR. HO N.SUPREME COURT HAD OCCASION TO CONSIDER THE CONCEPT OF ACCRUAL OR ARISING OF INCOME IN THE CASE OF E.D. SASSOON & CO.LTD. & ORS. VS. CIT ( 19154) 26 ITR 27 (SC) WHEREIN IT IS HELD THAT THERE IS NO DIFFICULTY IN UNDERSTANDING WHAT IS RECEIPT. IT CONVEYS A CLEAR AND DEFINITE MEANIN G AND THERE CANNOT BE ANY EXPRESSION WHICH MAKES ITS MEANING PLAIN THEN T HE WORD RECEIVING ITSELF. THE WORDS ACCRUAL/ARISE ARE NO T DEFINED IN THE ACT. ACCRUING IS SYNONYMOUS WITH ARISING IN THE SENSE OF SPRINGING AS A NATURAL GROWTH OR A RESULT. ACCRUAL WOULD INDICA TE A SENSE OF GROWING UP BY WAY OF ADDITION OR INCREASE OR AS AN ACCESSION OR ADDITION WHILE ARISE WOULD MEAN COMING INTO EXISTEN CE OR NOTICE OR PRESENTING ITSELF. ACCRUAL CONNOTES AN INTANGIBL E GROWTH WHILE ARISE A TANGIBLE SHAPE SO AS TO BE RECEIVABLE. FROM THES E CONCEPTS IT FOLLOWS THAT ACCRUAL IS ANTERIOR IN POINT OF TIME THAN ARIS E. POINT OF TAXABILITY IN IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 16 - THE CONTEXT OF TRANSFER OF AN IMMOVABLE PROPERTY WO ULD BE THE MOMENT WHEN TRANSFER DEED IS EXECUTED AND AT THAT MOMENT P ROFIT TO THE ASSESSEE WOULD ACCRUE AND A RIGHT OF THE ASSESSEE TO RECEIVE CONSIDERATION FOR SUCH TRANSFER WOULD ARISE. PRIOR TO THIS, WHEN ASS ESSEE HAVING NO RIGHT ACCRUED OR AROSE AS THERE WAS NO TRANSFER OF ANY AS SET WITH THE MEANING OF SECTION 2(47) OF THE ACT. WHATEVER THE ASSESSEE HAD FROM THE PROSPECTIVE BUYER WOULD ONLY BE A LIABILITY AND THE LIABILITY AS SUCH CANNOT BE TREATED AS INCOME AS NO SUCH INCOME ACCRU ED OR AROSE TO THE ASSESSEE. MERELY RECEIVING A SUM FOR FUTURE PURCHA SE OF AN IMMOVABLE PROPERTY CANNOT BE A SALE CONSIDERATION EVEN WITHIN THE MEANING OF SECTION 53A OF TRANSFER OF PROPERTY ACT AS PROPERTY BEING NOT IN EXISTENCE. THE POSSESSION THEREOF CANNOT BE GIVE T O THE PROSPECTIVE BUYERS AND, THEREFORE, THE SUM RECEIVED FOR BEING A DJUSTED AGAINST SALE CONSIDERATION WILL CONTINUE TO CARRY THE CHARACTER OF ADVANCE ONLY AND A LIABILITY IN THE BOOKS OF THE ASSESSEE. MERELY B ECAUSE SUCH RECEIPT IS NOT DECLARED OR RECORDED IN THE BOOKS OF ACCOUNT WI LL NOT CHANGE THE CHARACTER WHICH HAS TO BE DECIDED IN THE LIGHT OF T HE PURPOSE FOR WHICH IT IS GIVEN. FURTHER SUCH RECEIPT (ON MONEY IN THE PRESENT CASE) CANNOT BE DISCUSSED FROM OTHER PART OF RECEIPT THROUGH BAN KING CHANNELS AS BOTH ARE INTEGRAL PART OF SALE CONSIDERATION. IF T HE AMOUNT GIVEN BY CHEQUE CARRIES THE CHARACTER AS AN ADVANCE AGAINST SALE CONSIDERATION THEN ON MONEY IN CASH WILL ALSO CARRY THE SAME CH ARACTER. BOTH TYPES OF RECEIPTS I.E. RECEIPT THROUGH CHEQUES AND RECEIP T THROUGH CASH AS ON MONEY WILL ARISE AS INCOME TO THE ASSESSEE AS SOON AS TRANSFER OF IMMOVABLE PROPERTY IS EXECUTED AND NOT BEFORE, OR P OSSESSION THEREOF IS HANDED OVER AND FOR THIS IT IS NECESSARY THAT SUCH IMMOVABLE PROPERTY SHOULD BE IN EXISTENCE. THEREFORE, WE ARE OF THE C ONSIDERED THAT ON MONEY RECEIVED BY THE ASSESSEE DID NOT HAVE THE CH ARACTER OF INCOME BUT WAS ONLY AN ADVANCE LIKE THE ONE RECEIVED THROU GH CHEQUE. BOTH WILL BECOME PART OF THE SALE CONSIDERATION TO THE A SSESSEE SIMULTANEOUSLY ON EITHER HANDING OVER THE POSSESSIO N OF THE FLATS OR ON EXECUTION OF TRANSFER DEED WHICHEVER HAPPENS EARLIE R. 18. THUS ON THE BASIS OF ABOVE JUDGMENTS WE HOLD T HAT ADVANCE MONEY RECEIVED EITHER BY WAY OF CHEQUE OR BY WAY OF CASH WILL PARTAKE THE CHARACTER OF TAXABLE INCOME WHEN REGISTERED SALE DE ED OF THE FLATS IS IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 17 - EXECUTED IN SUBSEQUENT YEARS. AS A RESULT, THE SUM OF RS.10 CRORES WILL NOT TAXABLE IN ASST.YEAR 2008-09. THE APPEAL OF AS SESSEE IS ACCORDINGLY ALLOWED. 5.4. IN THE CASE IN HAND, THE ADMITTED POSITION IS THAT DURING THE COURSE OF SEARCH, CERTAIN DOCUMENTS WERE SEIZED. ON THE B ASIS OF THE DOCUMENTS, THE AO OBSERVED THAT THE TOTAL PRICE RELATED TO THE SALE OF FLATS WAS RS.7,88,02,178/- AGAINST THE DOCUMENTED PRICE OF RS .2,48,38,289/-. THE AO OBSERVED THAT ON THE STATEMENT TAKEN ON OATH OF SHRI SHANTILAL PATEL ADMITTED THAT THE RECEIPTS CONTAIN NET PROFIT OF RS .2,29,20,847/-. BEFORE THE AO, THE EXPLANATION OF THE ASSESSEE WAS THAT SU BSTANTIAL AMOUNT OF THE SALE CONSIDERATION WAS PENDING FOR COLLECTION. BEFORE THE AO, IN RESPONSE TO THE NOTICE ISSUED, THE ASSESSEE SUBMITT ED THAT TOTAL SALE CONSIDERATION IS RS.1,39,88,777/- ONLY RATHER THAN RS.7,53,83,326/- AS ENTERED IN THE ASSESSEES WORKING (RS.7,88,02,178/- ) IS THE TOTAL RECEIPT AS PER ANNEXURE B-2/25 AND B-02/26. THE ASSESSEE OBJE CTED TO THE ADDITION ON THE GROUND THAT EVEN THOUGH THE SALE CONSIDERAT ION OF THE PROJECT WAS RECEIVED, THE INCOME HAS NOT ACCRUED AS SALE DEED H AS NOT BEEN SIGNED OR POSSESSION IN RESPECT OF FLATS HAS NOT BEEN HANDED OVER. THE ASSESSEE RELIED ON THE JUDGEMENTS OF HONBLE GUJARAT HIGH CO URT IN THE CASE(S) OF CIT VS. ASHA LAND CORPORATION (133 ITR 55)[GUJ], CI T VS. SHAH DOSHI & CO. (133 ITR 23)[GUJ.], CHDAMBARAM CHETTIAR VS. C IT (4 ITR 309)[MAD.] AND KUNJEMAT & SONS VS. CIT (9 ITR 359)[ ALL.]. THE AO IN PARA-10 OF THE ASSESSMENT ORDER COMPUTED THE TOTAL UNDISCLOSED INCOME IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 18 - FOR THE BLOCK PERIOD AT RS.2,61,78,438/-. HOWEVER, THE AO OPTED TO ADOPT THE UNDISCLOSED INCOME ON THE BASIS OF THE ST ATEMENT ON OATH OF ONE SHRI SUNIL H.DESAI BEING HIGHER OF THE TWO FIGURES. THE CONTENTION OF THE ASSESSEE IS THAT THE ENTIRE RECEIPTS HAVE BEEN DISC LOSED AND DECLARED IN THE INCOME-TAX RETURN IN THE SUBSEQUENT YEARS. IT IS T HE CONTENTION OF THE ASSESSEE THAT AGAINST THE TOTAL SALE CONSIDERATION ADOPTED BY THE AO AT RS.7,88,02,178/-, THE ASSESSEE HAD DISCLOSED THE SA LE CONSIDERATION AT RS.8,68,55,671/- AND THE TAXES ON SUCH INCOME HAS B EEN PAID. THEREFORE, THE ASSESSEE CANNOT BE SUBJECTED TO DOUB LE TAXATION. 6. THE UNDISPUTED FACTS EMERGED FROM THE ABOVE DISC USSION IS THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION . THE ASSESSEE HAS BEEN SHOWING THE FLATS IN QUESTION AS STOCK-IN-TRAD E, THEREFORE IN VIEW OF THE DECISION OF THE COORDINATE BENCH RENDERED IN TH E CASE OF ITO VS. SHRI SIDDHARTH S.PATEL IN ITA NOS.1852 & 1853/AHD/2003(S UPRA). THE PROVISIONS OF SECTION 2(47) WOULD NOT BE APPLICABLE . THE ASSESSEE HAS DISCLOSED THE ON MONEY IN THE RETURN OF INCOME IN THE YEAR IN WHICH THE SALE-DEED WAS EXECUTED. THE REVENUE HAS NOT REBUTT ED THIS CONTENTION. THEREFORE, IN THE LIGHT OF THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. MOTILAL C.PATEL AND CO. REPORTED AT 173 ITR 666 (GUJ.), SUCH AMOUNT CAN BE SUBJECTED TO TAX WHEN SALE-DEED IS ACTUALLY EXECUTED. SINCE THE HONBLE GUJARAT HIGH COURT HAS HELD THAT IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 19 - THE AMOUNT WOULD BECOME FOR THE ASSESSMENT YEAR IN WHICH THE SALE TRANSACTION IS COMPLETED. IN THE CASE IN HAND, IT IS NOT DISPUTED THAT SALE- DEEDS WERE EXECUTED IN THE YEAR SUBSEQUENT TO THE Y EAR UNDER APPEAL. THEREFORE, IN VIEW OF THE BINDING PRECEDENT, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN TAXING THE AMOUNT INCLUDING ON MONEY DURING THE YEAR UNDER APPEAL. FURTHER, THE ASSESSEE HAS SUBMITTED THAT IT HAS OFFERED FOR TAX THE AMOUN T INCLUDING ON MONEY IN THE YEAR WHENEVER SALE-DEED WAS EXECUTED. THIS FACT IS ALSO NOT CONTROVERTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THEREFORE, THE AO IS HEREBY DIRECTED TO VERIFY WHET HER THE ASSESSEE HAS OFFERED FOR TAXING THE AMOUNT AS ITS INCOME IN THE YEAR WHEN THE SALE- DEED WAS EXECUTED. IF IT IS FOUND THAT THE ASSESS EE HAS OFFERED THE AMOUNT IN THE YEAR IN WHICH THE SALE-DEED WAS EXECU TED, THEN THE AO WOULD DELETE THE ADDITION MADE IN THIS YEAR. WE AR E CONSCIOUS OF THE FACT THAT THIS TRIBUNAL HAD TAKEN A CONTRARY VIEW, SINC E NOW THE DECISION OF THE COORDINATE BENCH IN THE CASE OF ITO VS. SHRI SI DDHARTH S.PATEL IN ITA NOS.1852 & 1853/AHD/2003 IS BROUGHT TO OUR NOTI CE AND NO DISTINGUISHING FACT IS POINTED OUT BY THE LD.SR.D.R . IN THE LIGHT OF THE ABOVE DISCUSSION, THE APPEAL OF THE ASSESSEE (IN TH E CASE OF M/S.OHM DEVELOPERS) IS ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS AS INDICATED HEREINABOVE. IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 20 - 7. NOW, WE TAKE UP THE REVENUES APPEAL IN IT(SS)(A NO.314/AHD/2002. 7.1. THE RESPECTIVE REPRESENTATIVES OF THE PARTIES HAVE ADOPTED THE ARGUMENTS AS WERE MADE IN ASSESSEES APPEAL IN IT(S S)A NO.320/AHD/2002(SUPRA). THE LD.CIT-DR SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN REDUCING THE ADDITION. 7.2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE LD.CIT(A) HA S GIVEN FINDING IN PARA-10 OF HIS ORDER, WHICH IS REPRODUCED HEREUNDER :- 10. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE APPELLANT AND ALSO GONE INTO THE MERITS OF ADDITION ON ACCOUNT OF UNDISCLOSED INCOME. THE APPELLANT HAS TOTALLY RETR ACTED FROM THE STATEMENT RECORDED ON OATH DURING SEARCH REGARD THE PROFIT FROM CONSTRUCTION BUSINESS AND TAKEN AN ALTOGETHER DIFFE RENT STAND THAT INCOME IN THE BLOCK RETURN HAS BEEN SHOWN AS PER TH E ACTUAL SALE OF FLATS BASED ON EXECUTION OF SALE DEED. HOWEVER, IN THE FACE OF PLETHORA OF SEIZED DOCUMENTS CONTAINING MINUTE DETAILS OF INCOM E AND EXPENDITURE, THE APPELLANT CANNOT GET AWAY SO EASILY. THE ASSES SING OFFICER HAS WORKED OUT NET PROFIT AT RS.2,61,78,438/- AT PAGE 2 8 OF THE ASSESSMENT ORDER. SHRI SUNIL DESAI, PARTNER ADMITTED ESTIMATE D PROFIT FROM RS.2,08,65,000/- TO RS.3,08,01,600/- ON THE BASIS OF COST OF CONSTRUCTION INVOLVED. SHRI KETAN O.DER ADMITTED RECEIPT OF ON MONEY AT RS.5,39,63,889/- IN A STATEMENT UNDER SECTION 132(4 ) OF THE ACT. SHRI SHANTILAL PATEL, PARTNER ADMITTED PROFIT OF RS.2,29 ,20,847/- ON THE BASIS OF ANNEXURE BS-1/11. THE FIGURES CONTAINED IN INCO ME EXPENDITURE STATEMENT REPRODUCED IN PARA 6 ABOVE CANNOT BE IMAG INARY AND ALSO THE APPELLANT CANNOT BRUSH ASIDE THE SAME BY CALLING IT A SOLITARY PAPER PREPARED BY THE PARTNER FOR SOME OTHER PURPOSE. TH E JUDICIAL PRONOUNCEMENT RELIED UPON BY THE APPELLANT ARE NOT HELPFUL BECAUSE I) IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 21 - THESE ARE NOT DELIVERED IN THE CASE OF BLOCK ASSESS MENT, (II) THE APPELLANT HAS BEEN FOUND IN POSSESSION OF ON MONEY AS EVIDE NCED BY SEIZED MATERIAL WHICH WAS NOT THERE IN BOTH THE JUDGEMENTS AND (III) IT IS A CASE OF GLARE TAX EVASION WHEN THE APPELLANT IS CAUGHT W ITH THE SUPPORTING EVIDENCE AND IT IS NOT THE CASE OF APPLYING DEFINIT ION OF TRANSACTION AND (IV) THE APPELLANT HAS ADMITTED CERTAIN INCOME UNDER SECTION 132(4) OF THE ACT. HOWEVER, LOOKING TO THE OBJECTIONS RAI SED BY THE APPELLANT THAT COST OF CONSTRUCTION WORKED OUT BY THE PARTNER WAS NOT RS.500/- PER SQ.FT. BUT RS.450/- PER SQ.FT. AND THE ASSESSING O FFICER ADOPTED RS.3,08,01,600/- INSTEAD OF RS.2,08,65,000/-. THE APPELLANT CANNOT TREAT THE AMOUNT OF SALES WHICH HAS GONE INTO HIS POCKET JUST A BOOKING AMOUNT NOW WHEN THROUGH OUT THE SEARCH PROCEEDINGS THE PARTNERS ADMITTED THE CORRECTNESS OF PROFIT WORKED OUT IN TH E SEIZED DOCUMENTS. THE CHART PREPARED BY THE APPELLANT IS AS PER HI OW N CONVENIENCE AND DOES NOT REFLECT TRUE PICTURE OF STATE OF AFFAIRS O F THE BUSINESS. UNDER THESE CIRCUMSTANCES I WOULD DIRECT THE ASSESSING OF FICER TO ADOPT NET PROFIT AT RS.2,29,20,847/- AND AFTER ALLOWING THE B ENEFIT OR UNDISCLOSED INCOME OF RS.10,86,199/- IN THE BLOCK RETURN, TAKE THE TOTAL UNDISCLOSED INCOME AT RS.2,18,34,648/- AND ACCORDINGLY CHARGE T AX. 7.3. IT IS NOT DISPUTED THAT THE AO ADOPTED THE MAX IMUM FIGURE OF NET PROFIT ON THE BASIS OF STATEMENT OF SHRI SUNIL DESA I PARTNER OF ASSESSEE- FIRM, HOWEVER, THE LD.CIT(A) ADOPTED THE FIGURE DEC LARED BY SHRI KETAN O.DER ANOTHER PARTNER. BOTH THE AUTHORITIES HAVE B ASED THEIR FINDINGS ON THE BASIS OF THE STATEMENT OF PARTNERS, WITHOUT ANY OTHER CORROBORATIVE EVIDENCE. HOWEVER, IN RESPECT OF TAXABILITY OF TH IS FIGURE WE HAVE ALREADY DECIDED THE ASSESSEES APPEAL IN IT(SS)A NO .320/AHD/2002 (SUPRA). THEREFORE, THE AO IS DIRECTED TO COMPUTE THE TAXABLE INCOME IN ACCORDANCE WITH THE DIRECTION GIVEN IN IT(SS)A NO.3 20/AHD/2002 (SUPRA). HENCE, THE GROUND OF THE REVENUES APPEAL IS DISMISSED. IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 22 - 8. NOW, WE TAKE UP THE ASSESSEES APPEAL (IN THE CASE OF M/S.OHM ORGANISERS) IN IT(SS)A NO.321/AHD/2002. 8.1. THE RESPECTIVE REPRESENTATIVES OF THE OF THE P ARTIES HAVE ADOPTED THE ARGUMENTS AS WERE MADE IN ASSESSEES APPEAL IN IT(SS)A NO.320/AHD/2002(SUPRA). 8.2. WE HEARD BOTH THE PARTIES. THE ISSUES ARE SIM ILAR TO THE ISSUES IN ASSESSEES APPEAL NO.IT(SS)A NO.320/AHD/2002 IN THE CASE OF M/S.OHM DEVELOPERS, WHEREIN WE HAVE ALLOWED THE APPEAL OF T HE ASSESSEE FOR STATISTICAL PURPOSES, BY OBSERVING AS UNDER:- 6. THE UNDISPUTED FACTS EMERGED FROM THE ABOVE DIS CUSSION IS THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION . THE ASSESSEE HAS BEEN SHOWING THE FLATS IN QUESTION AS STOCK-IN-TRADE, TH EREFORE IN VIEW OF THE DECISION OF THE COORDINATE BENCH RENDERED IN THE CA SE OF ITO VS. SHRI SIDDHARTH S.PATEL IN ITA NOS.1852 & 1853/AHD/2003(S UPRA). THE PROVISIONS OF SECTION 2(47) WOULD NOT BE APPLICABLE. THE ASSE SSEE HAS DISCLOSED THE ON MONEY IN THE RETURN OF INCOME IN THE YEAR IN WHICH THE SALE-DEED WAS EXECUTED. THE REVENUE HAS NOT REBUTTED THIS CONTEN TION. THEREFORE, IN THE LIGHT OF THE JUDGEMENT OF HONBLE GUJARAT HIGH COUR T RENDERED IN THE CASE OF CIT VS. MOTILAL C.PATEL AND CO. REPORTED AT 173 ITR 666 (GUJ.), SUCH AMOUNT CAN BE SUBJECTED TO TAX WHEN SALE-DEED IS ACTUALLY EXECUTED. SINCE THE HONBLE GUJARAT HIGH COURT HAS HELD THAT THE AMOUNT WOULD BECOME FOR THE ASSESSMENT YEAR IN WHICH THE SALE TRANSACTION IS CO MPLETED. IN THE CASE IN HAND, IT IS NOT DISPUTED THAT SALE-DEEDS WERE EXECU TED IN THE YEAR SUBSEQUENT TO THE YEAR UNDER APPEAL. THEREFORE, IN VIEW OF TH E BINDING PRECEDENT, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW W ERE NOT JUSTIFIED IN TAXING THE AMOUNT INCLUDING ON MONEY DURING THE YEAR UND ER APPEAL. FURTHER, THE ASSESSEE HAS SUBMITTED THAT IT HAS OFFERED FOR TAX THE AMOUNT INCLUDING ON MONEY IN THE YEAR WHENEVER SALE-DEED WAS EXECUTED . THIS FACT IS ALSO NOT CONTROVERTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THEREFORE, THE AO IS HEREBY DIRECTED TO VERIFY WHET HER THE ASSESSEE HAS OFFERED FOR TAXING THE AMOUNT AS ITS INCOME IN THE YEAR WHEN THE SALE-DEED WAS IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 23 - EXECUTED. IF IT IS FOUND THAT THE ASSESSEE HAS OF FERED THE AMOUNT IN THE YEAR IN WHICH THE SALE-DEED WAS EXECUTED, THEN THE AO WOULD DELETE THE ADDITION MADE IN THIS YEAR. WE ARE CONSCIOUS OF THE FACT TH AT THIS TRIBUNAL HAD TAKEN A CONTRARY VIEW, SINCE NOW THE DECISION OF THE COORD INATE BENCH IN THE CASE OF ITO VS. SHRI SIDDHARTH S.PATEL IN ITA NOS.1852 & 18 53/AHD/2003 IS BROUGHT TO OUR NOTICE AND NO DISTINGUISHING FACT IS POINTED OUT BY THE LD.SR.D.R. IN THE LIGHT OF THE ABOVE DISCUSSION, THE APPEAL OF THE AS SESSEE (IN THE CASE OF M/S.OHM DEVELOPERS) IS ALLOWED FOR STATISTICAL PURP OSES IN THE TERMS AS INDICATED HEREINABOVE. 8.3. SINCE THE FACTS AND ISSUES ARE IDENTICAL TO TH E CASE OF M/S.OHM DEVELOPERS(SUPRA), WE, FOR THE SAME REASONING, ALL OW THE APPEAL OF THE ASSESSEE (M/S.OHM ORGANISERS) FOR STATISTICAL PURP OSES IN THE TERMS AS INDICATED HEREINABOVE. 9. IN THE COMBINED RESULT, THE APPEAL OF THE REVEN UE IS DISMISSED, WHEREAS ASSESSEES APPEALS ARE ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 8 TH DAY OF MAY, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 08/ 05 /2015 (..,.../ T.C. NAIR, SR. PS IT(SS)A NO.314/AHD/2002 (BY REVENUE) DCIT VS. M/S. OHM DEVELOPERS AND IT(SS)A NOS.320 & 321/AHD/2002(BY ASSESSEES) M/S.OHM DEVELOPERS & M/S.OHM ORGANISERS VS. DCIT RE SPECTIVELY BLOCK PERIOD AY 1990-91 TO 1999-2000 AND UPTO 29/1 0/1999 - 24 - !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. )* +, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. /0/12 3 / CONCERNED CIT 4. 3 ( )* ) / THE CIT(A)-II, AHMEDABAD 5. 45-12 , )* )12' , )0 / DR, ITAT, AHMEDABAD 6. 5789 / GUARD FILE. / BY ORDER, .4*- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..16&17.4.15 & 1.5.15(DICTATION- PAD 21+4 PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 17.4.15/1.5.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S..S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.8.5.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.5.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER