Millennium Park Holdings Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(1), Ahmedabad

ITSSA 363/AHD/2011

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2916 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 14-03-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 05-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR; P M MEHTA WITH SHRI PARIN SHAH
• Keywords: Unexplained investment; Depreciation; Loose papers; Question of law; Revenue expenditure; Capital expenditure
• Section: 143(3); 153A; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS . 359 TO 363/AHD/2011 (ASSESSMENT YEAR S: 2002-03 TO 2006-07) MILLENNIUM PARK HOLDINGS PVT. LTD. B-403, SHAPATH-IV, OPP. KARNAVATI CLUB, S. G. HIGHWAY, AHMEDABAD APPELLANT VS. ACIT, CENTRAL CIRCLE 1(1), AHMEDABAD RESPONDENT & IT(SS)A NOS. 366 & 367/AHD/2011 WITH C.O. NOS.143 & 144/AHD/2011 (ASSESSMENT YE ARS: 2005-06 & 2006-07) ACIT, CENTRAL CIRCLE 2(4), AHMEDABAD APPELLANT VS. MILLENNIUM PARK HOLDINGS PVT. LTD. B-403, SHAPATH-IV, OPP. KARNAVATI CLUB, S. G. HIGHWAY, AHMEDABAD RESPONDENT PAN: AACCM9648R /BY ASSESSEE : SHRI S. N. SOPARKAR AND SHRI P. M. MEHTA WITH SHRI PARIN SHAH, A.R. /BY REVENUE : MS. VIBHA BHALLA, CIT. D.R. IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 2 - /DATE OF HEARING : 14.03.2017 /DATE OF PRONOUNCEMENT : 30.03.2017 ORDER PER BENCH THIS BATCH INVOLVES NINE CASES. THE ASSESSEE HAS F ILED ITS APPEALS IT(SS)A NOS. 359 TO 361/AHD/2011 FOR ASSESSMENT YEA RS 2002-03 TO 2004-05 AGAINST THE CIT(A)-I, AHMEDABADS COMMON ORDER DATE D 28.02.2011 IN CASE NOS. CIT(A)-I/CC.1(1)/273,274&275/2008-09; RESPECTI VELY. NEXT ASSESSMENT YEAR 2005-06 INVOLVES ASSESSEES AND REV ENUES CROSS APPEALS IT(SS)A NOS.362 & 366/AHD/2011 FOLLOWED BY FORMERS CO NO.143/AHD/2011 AGAINST THE VERY CIT(A)S ORDER OF THE SAME DATE IN CASE NO. CIT(A)-I/CC.1(1)/276/2008-09. LAST ASSESSMENT YEAR 2006-07 CONTAINS ONCE AGAIN ASSESSEES AND REVENUES CROSS APPEALS I T(SS)A NOS. 363 & 367/AHD/2011 WITH FORMERS CO NO.144/AHD/2011 PREFE RRED AGAINST THE SAID VERY CIT(A)S ORDER OF EVEN DATE IN CASE NO. CIT(A) -I/CC.1(1)/277/2008-09. RELEVANT PROCEEDINGS IN ALL CASES ARE U/S.153A R.W. S. 143(3) OF THE INCOME TAX ACT, 1961, IN SHORT THE ACT. LEARNED COUNSEL REPRESENTING BOTH PARTIES STATE AT THE OUTSET THAT ALL THE ABOVESTATED NINE CASES RAISE IDENTICAL ISSUES. WE THUS TAKE UP ASSESSEES FIVE APPEALS IT(SS)A NOS. 359 TO 363/AHD/2011 PERTAINING TO THE ABOVESTATED ASSESSMENT YEARS FIRST RAISING AS MANY SUBSTANTIVE GROUNDS THEREIN. 2. SHRI SOPARKAR INFORMS THE BENCH THAT THE ASSESSE E DOES NOT WISH TO PRESS FOR ITS FIRST SUBSTANTIVE GROUND CHALLENGING LEGALITY OF SECTION 153A PROCEEDINGS IN ALL THE IMPUGNED ASSESSMENT YEARS. WE THUS DECLINE THIS FIRST SUBSTANTIVE GROUND IDENTICALLY PLEADED IN ALL FIVE APPEALS AS NOT PRESSED. IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 3 - 3. THE ASSESSEES SECOND SUBSTANTIVE GROUND IN ALL OF ITS FIVE APPEALS CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIE S ACTION DISALLOWING DEDUCTION OF DEPRECIATION, EMPLOYEES EXPENDITURE A ND GENERAL ADMINISTRATIVE EXPENSES INVOLVING VARYING AMOUNTS IN ALL THE IMPUG NED ASSESSMENT YEARS. 4. WE ADVERT TO THE RELEVANT FACTS. THIS ASSESSEE IS A COMPANY INCORPORATED ON 15.12.2000 FOR THE PURPOSE OF CARRY ING REAL ESTATE BUSINESS. IT PURCHASED LAND IN VILLAGES METAL AND DEVDHOLERA; SITUATED AT A DISTANCE OF AROUND 40KMS. FROM AHMEDABAD, FOR A PROJECT INCLUDI NG DEVELOPMENT OF 18HOLES CHAMPIONSHIP GOLF COURSE AND A TOWNSHIP. T HERE IS NO DISPUTE THAT THE ASSESSEE COULD DEVELOP ONLY TWO OUT OF THE SAID 18HOLES IN ITS GOLF COURSE IN THESE IMPUGNED ASSESSMENT YEARS. IT CLAIMED OFF ICE, PERSONAL AND ADMINISTRATIVE EXPENSES; TOTALING TO RS.23,63,914/- IN ASSESSMENT YEAR 2004- 05 ALONGWITH VARIOUS OTHER HEADS. THE ASSESSING OF FICER DISALLOWED THE SAME IN A REGULAR ASSESSMENT. THE CIT(A)S ORDER D ATED 26.02.2007 REVERSED THE SAID DISALLOWANCES PERTAINING TO ASSESSEES GOL F COURSE. THE REVENUE FILED APPEAL ITA NO.1803/AHD/2007 BEFORE THIS TRIBU NAL. THE ASSESSEE PREFERRED ITS CROSS OBJECTION NO.155/AHD/2007 THERE IN. A CO-ORDINATE BENCH RESTORED THE ABOVESTATED DISALLOWANCE IN ITS ORDER DATED 14.09.2007 READING AS UNDER: 2. LEARNED DR CONTENDS THAT ASSESSEE HAD ACQUIRED LAND IN RESPECT OF CONSISTING OF GOLF COURSE AND BUILDING. NO BUSINESS ACTIVITY WAS STARTED AS YET, INASMUCH AS OUT OF 18 GOLF COURSES TWO HOLES WERE C OMPLETED WHICH WERE NOT USEFUL FOR ANY COMMERCIAL ACTIVITY. ASSESSEE CLAIME D COMPLETION OF TWO HOLES TO BE COMMENCEMENT OF BUSINESS ACTIVITY WHICH IS HOT TENA BLE. NEITHER ANY MEMBERSHIP HAS BEEN INVITED NOR ENROLLED NOR ANY BUSINESS ACTI VITY WAS UNDERTAKEN, THEREFORE, EXPENDITURE INCURRED BY THE ASSESSEE HAS TO BE TREA TED AS PRE-OPERATIVE/PRE- EXPENDITURE AND TO BE CAPITALIZED. CIT(A) HAS HELD THAT EXPENSES IN RESPECT OF OFFICE, PERSONAL, ADMINISTRATIVE AND DEPRECIATION O N OFFICE' ITEMS HAVE TO BE ALLOWED AS ROUTINE OFFICE EXPENSES IN CONNECTION WI TH OTHER BUSINESS OBJECTS. AO HAS BEEN DIRECTED TO RECOMPUTE LOSS IN LIGHT OF THE SE DIRECTIONS. LEARNED DR FURTHER CONTENDS .THAT OFFICE, PERSONAL AND ADMINISTRATIVE EXPENSES ARE DIRECTLY RELATABLE TO THE COMPLETION O F GOLF COURSE, AS THERE WAS- NO IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 4 - OTHER ACTIVITY, THEREFORE, THESE EXPENDITURE ARE PR OJECT SPECIFIC, WHICH IS INCOMPLETE. THEREFORE, AS PER THE ACCOUNTING STANDA RD AND LEGAL PROPOSITION, THESE EXPENSES CANNOT BE HELD AS REVENUE EXPENDITUR E AND ARE TO BE TREATED AS PRO- OPERATIVE EXPENSES AND CAPITALIZED TOWARDS COST OF PROJECT. RELIANCE PLACED BY THE CIT(A) IN THE CASE OF CIT VS. CLUB RESORTS PVT. LTD ., 287 ITR 552 IS MISPLACED, INASMUCH AS, IN THIS CASE ALREADY SOME COTTAGES WER E MADE READY AND PUT FOR SALE AND THE PROFITS THEREFROM WAS CREDITED TO PROFIT & LOSS ACCOUNT, THEREFORE, BUSINESS ACTIVITY OF THE ASSESSEE IN THAT CASE ALRE ADY COMMENCED BECAUSE OF THESE SALES, WHICH HAS NOT BEEN APPRECIATED BY THE CIT(A ). IN THIS CASE NO BUSINESS ACTIVITY EXCEPT PART COMPLETION OF GOLF COURSES WHI CH ALSO NOT PUT IN USE FOR COMMERCIAL USE AND BUSINESS ACTIVITY HAD NOT COMMEN CED AT ALL. THEREFORE, EXPENSES UNDER THE HEAD OFFICE, PERSONAL, ADMINISTR ATIVE AND DEPRECIATION CANNOT BE ALLOWED TO THE ASSESSEE. LEARNED COUNSEL FOR THE ASSESSEE IS HEARD WHO RELIE D ON THE DECISION IN THE CASES OF (I) CIT VS. CLUB RESORTS P. LTD. (SUPRA) A ND CIT VS. SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD., (1973) 91 ITR (GUJ). 5. I HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATER IAL AVAILABLE ON RECORD. IT IS CLEAR THAT NO BUSINESS ACTIVITY WAS UNDERTAKE N BY THE ASSESSEE SO AS TO GENERATE REVENUE INASMUCH AS NEITHER GOLF COURSE WA S READY NOR ANY MEMBERSHIP WAS ENROLLED NOR ANY BUSINESS ACTIVITY WAS UNDERTAK EN. ASSESSEE WAS AT A VERY EARLY STAGE OF COMPLETION OF GOLF COURSES, THEREFOR E, IT CANNOT BE HELD THAT ASSESSEE'S BUSINESS ACTIVITY HAD COMMENCED. IN THE CASE OF SAURAHSTRA CEMENT & CHEM. INDU. LTD. (SUPRA) ALSO ASSESSEE WAS IN THE B USINESS OF MINING ON LEASE FOR QUARRY LIME STONE AND THE BUSINESS HAS COMMENCED BY ACTIVITY OF EXTRACTION OF LIME STONE, SO ALSO IN THE CASE OF CLUB RESORTS P. LTD. (SUPRA), BUSINESS ACTIVITY BY WAY OF SALE OF COTTAGE HAS COMMENCED, THEREFORE, THESE CASE LAWS ARE NOT APPLICABLE TO THE ASSESSEE'S CASE. IN VIEW THEREOF, I FIND MERIT IN THE ARGUMENTS OF THE LEARNED DR THAT EXPENSES CONNECTED WITH OFFICE, PERSONAL, A DMINISTRATIVE EXPENSES CANNOT BE ALLOWED TO THE ASSESSEEE, THEY ARE TO BE CAPITAL IZED. REVENUE'S APPEAL IS ALLOWED. COMING TO ASSESSEE'S CO, REGARDING GROUND NO.L FOR ALLOWING DEPRECIATION ON JCB MACHINE AND BOREWELL IS NOT PRESSED, HENCE D ISMISSED. GROUND NO.2 IS ONLY IN SUPPORT OF CIT(A)'S ORDER, WHICH IS INFRUCT UOUS. IN VIEW THEREOF, ASSESSEE'S CO IS DISMISSED. 5. THE ASSESSEE THEREAFTER FILED ITS MISCELLANEOUS APPLICATION NO.7/AHD/2010 U/S.254(2) OF THE ACT. THE SAID CO-O RDINATE BENCH DID NOT FIND ANY MERIT THEREIN. IT THEREFORE REJECTED ASSE SSEES MISCELLANEOUS APPLICATION. THERE IS NO MATERIAL IN CASE RECORDS TO INFER THAT THIS TRIBUNALS FINDING HAVE EVER BEEN MODIFIED IN HONBLE HIGHER F ORUMS. THE SAME ACCORDINGLY HAVE ATTAINED FINALITY. IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 5 - 6. THE DEPARTMENT IN THE MEANTIME CONDUCTED SEARCH IN QUESTION IN ASSESSEES CASE ON 14.02.2007. THIS SEARCH ACTION CULMINATED IN INITIATION OF THE INSTANT SECTION 153A PROCEEDINGS. THE ASSESSEE AGAIN CLAIMED THE VERY EXPENSES INSPITE OF THE FACT THAT THE SAME HAD BEEN DISALLOWED IN ABOVE FIRST ROUND. THE ASSESSING OFFICER QUOTED TRIBUNALS ORD ER HEREINABOVE TO DISALLOW ASSESSEES IMPUGNED CLAIM RAISED THIS TIME IN ALL FIVE ASSESSMENT YEARS. THE CIT(A) AFFIRMS ASSESSING OFFICERS FIND INGS BY ADOPTING IDENTICAL REASONING PLACING RELIANCE UPON THIS TRIBUNALS EA RLIER ORDER. 7. HEARD BOTH SIDES. RELEVANT FINDINGS PERUSED. B OTH THE LOWER AUTHORITIES QUOTE THIS TRIBUNALS FINDINGS THAT THE ASSESSEE HAD NOT STARTED ANY BUSINESS ACTIVITY IN THE IMPUGNED ASSESSMENT YEARS AS IT COULD DEVELOP ONLY TWO OUT OF THE SAID 18HOLES IN ITS GOLF COURSE WHIC H WERE OTHERWISE NOT USEFUL FOR ANY COMMERCIAL ACTIVITY. AND THAT THE ASSESSEE HAD NOT ENROLLED / INVITED ANY MEMBERSHIP NOR IT UNDERTOOK ANY BUSINESS ACTIVI TY. THEY ACCORDINGLY TREAT ASSESSEES EXPENSES AS PRE-OPERATIVE TO BE CA PITALIZED. SHRI SOPARKAR QUOTE HONBLE JURISDICTIONAL HIGH COURTS DECISION IN CIT VS. SARDAR SAROVAR NARMADA NIGAM LTD. [2013] 37 TAXMANN.COM 344 (GUJ. ) AS FOLLOWED IN THE VERY ASSESSEES TAX APPEALS NO. 449/2004 DECIDED ON 07.06.2016 AS UNDER: 7. LEARNED SENIOR ADVOCATE MR. SOPARKAR SUBMITTED THAT THE EXPENSES CLAIMED BY THE ASSESSEE ARE REVENUE IN NATURE AND A RE REQUIRED TO BE ALLOWED AS DEDUCTION WHILE COMPUTING INCOME FROM BUSINESS. I T WAS SUBMITTED THAT THE STAND ADOPTED BY REVENUE THAT BUSINESS CAN BE SAID TO HAVE COMMENCED ONLY ON COMPLETION OF THE CANAL IS MISCONCEIVED. WHAT IS TO BE LOOKED INTO IS THE SETTING UP OF A BUSINESS AND NOT THE COMMENCEMENT OF BUSINESS. ALL EXPENSES INCURRED AFTER THE SETTING UP OF THE BUSINESS BUT, BEFORE ITS COMM ENCEMENT, WOULD BE PERMISSIBLE AS DEDUCTION U/S.10(2) OF THE INCOME TAX ACT. IT WA S FURTHER SUBMITTED THAT INTEREST EXPENDITURE U/S.57 OF THE ACT ARE PART OF THE BUSIN ESS EXPENSES OF THE ASSESSEE AND THEREFORE, THEY OUGHT TO HAVE BEEN CONSIDERED AS AL LOWABLE DEDUCTIONS. LEARNED SENIOR ADVOCATE, THEREFORE, SUBMITTED THAT THE TRIB UNAL COMMITTED SERIOUS ERROR IN REJECTING THE APPEALS FILED BY THE ASSESSEE. 7.1 IN SUPPORT OF HIS SUBMISSIONS, RELIANCE HAS BEE N PLACED ON A DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F COMMISSIONER OF INCOME TAX, GANDHINAGAR V. SARDAR SAROVAR NARMADA NIGAM LTD. RE PORTED IN [2013] 37 IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 6 - TAXMANN.COM 344 (GUJARAT) AND MORE PARTICULARLY, ON THE OBSERVATIONS MADE IN PARA17, WHICH READS AS UNDER; 17. WE ARE OF THE FIRM OPINION THAT THE ACTIVITIE S MENTIONED IN THE OBJECT CLAUSE OF MEMORANDUM OF ASSOCIATION DO NOT CONTEMPL ATE A SINGLE ACTIVITY. UNDER THE FISCAL LEGISLATION WHEN IT IS VITAL TO DE TERMINE WHAT IS THE BUSINESS OF THE ASSESSEE AND WHAT ARE THE ACTIVITIE S WHICH CONSTITUTE SUCH BUSINESS, IT CAN BE NOTED THAT EXECUTION OF THE SAR DAR SAROVAR PROJECT COMPRISES OF A DAM ACROSS THE RIVER NARMADA, CANAL SYSTEM AS ALSO THE POWER HOUSE AT THE FOOT OF THE DAM AND AT THE CANAL HEAD AND ALL OTHER WORKS. IT CAN NOT BE SAID THAT SUCH OBJECTS COULD B E ACHIEVED WITHOUT CONTEMPLATING DIFFERENT STAGES OF COMPLETION. IT WO ULD BE WHOLLY WRONG TO UPHOLD THE CONTENTION OF THE REVENUE THAT ONLY ON C OMPLETION OF WORK OF ENTIRE CANAL, THE ASSESSEE' BUSINESS CAN BE SAID TO HAVE SET UP. IN A PROJECT LIKE SARDAR SAROVAR, THERE ARE BOUND TO BE DIFFEREN T STAGES WHERE DIFFERENT ACTIVITIES TAKE PLACE AND THOSE ACTIVITIES BEING IN TEGRAL PARTS OF THE BUSINESS AND WHEN THEY ARE SET UP PHASE VICE, ASSESSEE CANNO T BE DEPRIVED OF BENEFITS OF FISCAL LEGISLATION IN DISREGARD TO WELL SETTLED PRINCIPLES ON THE ISSUE BY ADOPTING OVER TECHNICAL APPROACH. FOR DETERMINING AS TO WHEN THE BUSINESS CAN BE SAID TO HAVE BEEN SET UP, THE FLOW OF THE WATER FROM NARMADA CANAL IN THE GIV EN CIRCUMSTANCES NEEDED TO BE VIEWED AS AN INTEGRAL AND INSEPARABLE ACTIVITY OF THE BUSINESS OF THE ASSESSEE. THE TRIBUNAL HAS RIGHTLY APPROACHE D THE ISSUE BY HOLDING THAT TEST IN SUCH EVENTS WILL HAVE TO BE APPLIED WH ICH MUST APPEAL TO THE COMMON SENSE. IT IS APPARENT FROM THE RECORD THAT T HE ASSESSEE SUPPLIED WATER THROUGH ITS MAIN CANAL, ONE OF THE PURPOSES O F SETTING UP THE COMPANY IS TO SUPPLY THE WATER THROUGH THE CANAL & EVEN IF THE ENTIRE STRETCH OF CANAL IS YET TO COME INTO EXISTENCE, IN A PROJECT OF THIS BIG A SIZE, IT WILL SURELY BE NOT RIGHT TO HOLD THAT THE BUSINE SS OF THE ASSESSEE- RESPONDENT HAS NOT BEEN SET UP. THE CONSTRUCTION OF DAM AND CANAL ARE ESSENTIAL AND INSEPARABLE PARTS OF THE ACTIVITY WHI CH WOULD NECESSARILY PRECEDE OTHER ACTIVITIES. AS WELL LAID DOWN BY THIS COURT IN THE DECISIONS IN CASE OF SAURASHTRA CEMENTS AND CHEMICALS LTD. (SUPR A) AND OTHER JUDGMENTS, WHEN EACH ONE OF THE ACTIVITIES ESSENTIA L & VITAL, COMBINED TOGETHER, CONSTITUTES BUSINESS OF THE ASSESSEE AND THIS BEING A CONTINUOUS PROCESS, ALL THE ACTIVITIES WHICH GO TO MAKE A BUSI NESS NEED NOT BE STARTED SIMULTANEOUSLY IN ORDER TO HOLD THAT THE BUSINESS H AS COMMENCED. THOSE OF THE ACTIVITIES WHICH FORM INTEGRAL PART OF ENTIRE T ERM BUSINESS WHEN PRECEDED OTHER ACTIVITIES, NO FAULT CAN BE FOUND IN THE APPROACH OF THE TRIBUNAL WHEN IT HELD THE BUSINESS TO HAVE BEEN SET UP WITHOUT THE SAME BEING COMMENCED. THE TRIBUNAL, BY ELABORATION SOUND AND LOGICAL REASONINGS, HAS DEALT WITH THE ENTIRE ISSUE. NO QUESTION OF LAW MUCH LESS ANY SUBSTANTIAL QUESTI ON OF LAW ARISES. RESULTANTLY, TAX APPEAL IS DISMISSED. 8. MR. SUDHIR MEHTA, LEARNED COUNSEL APPEARING FOR THE REVENUE, SUBMITTED THAT THE BUSINESS HAD NEITHER COMMENCED NOR IT HAD BEEN SET UP, AS THE PROJECT UNDERTAKEN BY THE ASSESSEE WAS NOT ONLY FOR THE CON STRUCTION OF CANAL BUT, ALSO TO IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 7 - OPERATE AND EARN INCOME BY SUPPLYING WATER AND GENE RATING ELECTRICITY. IT WAS SUBMITTED THAT THE ASSESSEE WAS NOT DOING THE CONST RUCTION WORK FOR SOMEBODY ELSE BUT, WAS CONSTRUCTING IT FOR ITSELF IN ORDER TO EAR N INCOME AND THEREFORE, UNLESS IT IS READY TO GIVE RESULT OR THE INCOME, IT CANNOT BE SA ID TO HAVE COMMENCED OR SET UP THE BUSINESS. HENCE, THE ASSESSING OFFICER WAS JUST IFIED IN HOLDING THAT THE ASSESSEE HAD NOT COMMENCED ITS BUSINESS. 8.1 LEARNED COUNSEL MR. MEHTA FURTHER SUBMITTED THA T FOR ALLOWING INTEREST U/S.57 OF THE ACT, THE EXPENDITURE MUST NOT BE IN T HE NATURE OF CAPITAL EXPENDITURE BUT, OF REVENUE EXPENDITURE. THE EXPENDITURE MUST H AVE BEEN LAID OUT OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF MAKING OR EARNING INCOME FROM OTHER SOURCES. IF THERE IS NO EVIDENCE TO SHOW THAT THE EXPENSES INCURRED BY THE ASSESSEE WERE TO FACILITATE THE EARNING OF OR AT LEAST FOR P ROTECTING THE INCOME, IT CANNOT BE AN ALLOWABLE DEDUCTION. THEREFORE, THE ASSESSING OF FICER WAS JUSTIFIED IN NOT ALLOWING INTEREST EXPENDITURE U/S.57 OF THE ACT. 9. THE ISSUE RAISED BY WAY OF QUESTION NO.1 HAS ALR EADY BEEN ANSWERED IN THE DECISION REPORTED IN CIT, GANDHINAGAR V. SARDAR SAR OVAR NARMADA NIGAM LTD. (SUPRA). FOR DETERMINING THE QUESTION, IT IS NECESS ARY TO KNOW AS TO WHAT CONSTITUTES THE BUSINESS OF THE ASSESSEE AND FOR DE TERMINING THAT, WHAT ARE THE ACTIVITIES WHICH CONSTITUTE SUCH BUSINESS NEEDS TO BE ASCERTAINED. THE VERY OBJECT FOR WHICH THE ASSESSEE COMPANY HAS BEEN SET UP IS T O CONSTRUCT A DAM ACROSS THE RIVER NARMADA, TO CREATE A CANAL SYSTEM EMANATING F ROM THE RESERVOIR CALLED THE SARDAR SAROVAR AND TO SET UP A HYDROPOWER PLANT AT THE FOOT OF THE DAM AND AT THE CANAL HEAD. TO PROMOTE AND FACILITATE NAVIGATION IN THE NARMADA RIVER AND ALSO FOR IRRIGATION AND WATER SUPPLY IN THE STATE. THESE ARE SOME OBJECTS SET OUT IN THE OBJECT CLAUSE OF THE MEMORANDUM OF ASSOCIATION OF T HE ASSESSEE. IN OUR OPINION, THE ACTIVITIES MENTIONED IN THE OBJECT CLAUSE OF ME MORANDUM OF ASSOCIATION DO NOT CONTEMPLATE A SINGLE ACTIVITY. 10. WHAT IS TO BE REGARDED IS AS TO WHETHER THE BUS INESS OF THE ASSESSEE HAS BEEN SET UP OR NOT SO THAT THE ASSESSEE COULD AVAIL BENEFITS UNDER THE ACT. BROADLY SPEAKING, THE ACTIVITY OF THE ASSESSEE COULD BE DIV IDED INTO THREE CATEGORIES (I) CONSTRUCTION OF DAM AND RELATED WORKS (II) HYDRO PO WER PLANT AND (III) NARMADA MAIN CANAL. CONSIDERING THE DIFFERENT CATEGORIES O F WORK, IT CAN NOT BE SAID THAT SUCH OBJECTS COULD BE ACHIEVED WITHOUT CONTEMPLATIN G DIFFERENT STAGES OF COMPLETION. 11. IT WOULD BE WRONG TO UPHOLD THE CONTENTION OF R EVENUE THAT ONLY ON COMPLETION OF WORK OF ENTIRE CANAL, THE ASSESSEES BUSINESS CAN BE SAID TO HAVE BEEN SET UP. IN A PROJECT LIKE THE SARDAR SAROVAR , THERE ARE BOUND TO BE DIFFERENT STAGES WHERE DIFFERENT ACTIVITIES TAKE PLACE AND TH OSE ACTIVITIES BEING INTEGRAL PART OF BUSINESS AND WHEN THEY ARE SET UP PHASE WISE, TH E ASSESSEE CANNOT BE DEPRIVED OF THE BENEFITS OF FISCAL LEGISLATION IN DISREGARD OF THE WELL SETTLED PRINCIPLES ON THE ISSUE. IN VIEW OF THE ABOVE, WE ANSWER BOTH QUESTIO NS NO.1 AS ALSO QUESTION NO.2 IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 8. SHRI SOPARKAR VEHEMENTLY CONTENDS THEREAFTER THA T WE MUST ALSO HOLD THE ASSESSEE TO HAVE SET UP ITS GOLF COURSE BUSINES S EVEN IN CASE OF HAVING IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 8 - DEVELOPED TWO OUT OF 18 HOLES THEREIN. WE HOWEVER DO NOT FIND ANY MERIT IN THIS ARGUMENT. WE MAKE IT CLEAR THAT FIRST OF ALL THIS TRIBUNALS FINDINGS IN THE VERY FACTS IN FIRST ROUND (SUPRA) HAVE ATTAINED FIN ALITY. WE FURTHER OBSERVE THAT HONBLE JURISDICTIONAL HIGH COURT HAS FOLLOWED HONBLE APEX COURTS DECISION IN SAURASHTARA CEMENT AND CHEMICALS LTD. ( SUPRA) IN PARA5 WHICH ALREADY STANDS DISTINGUISHED IN THE ABOVE EXTRACTED CO-ORDINATE BENCHS DECISION. WE THUS FIND NO REASON TO DISTURB THE CI T(A)S IDENTICAL CONCLUSION UPHOLDING ASSESSING OFFICERS ACTION. THE ASSESSEE S SECOND SUBSTANTIVE GROUND IDENTICALLY PLEADED IN ALL APPEALS EXCEPT VA RIATIONS IN FIGURES INVOLVED IS THUS DECLINED. 9. THE ASSESSEES THIRD SUBSTANTIVE GROUND PLEADED IN ALL OF ITS FIVE APPEALS AVERS THAT THE CIT(A) HAS ERRED IN NOT ACCE PTING ITS ALTERNATE PLEA THAT ITS ENTIRE EXPENDITURE AND NOT MERELY 2/3 RD AS DIRECTED; WAS REQUIRED TO BE ADDED AS WORK-IN-PROGRESS VALUE RELATING TO TOWNSH IP PROJECT. THE CIT(A) QUOTED THIS TRIBUNALS ORDER IN FIRST ROUND (SUPRA) TO OBSERVE THAT SINCE ASSESSEES TOWNSHIP AND GOLF COURSE PROJECT COVERED 2/3 RD AND 1/3 RD AREA IN QUESTION, THE VERY PROPORTION IS TO BE ADOPTED REGA RDING CAPITALIZATION OF THE COST THEREOF TO BE DISALLOWED AFTER MAKING ADDITION IN VALUE OF THE WORK-IN- PROGRESS. 10. WE HAVE HEARD RIVAL SUBMISSIONS REITERATING THE IR RESPECTIVE STANDS. THERE IS NOT MUCH QUARREL THAT THE ASSESSEES TOWNS HIP AND GOLF COURSE BROADLY COVERS 2/3 RD AND 1/3 RD AREA OF ITS LAND. THE CIT(A) ADOPTS THE VERY PROPORTION IN ALLOCATION OF EXPENSES TO BE CAPITALI ZED/ADDED AS WORK-IN- PROGRESS. THE ASSESSEE ITSELF IS VERY FAIR IN NOT DISPUTING THE FACT THAT THE SAID ALLOCATION IS TO BE DONE HEADWISE AS PER THE CIT(A) S ORDER QUOTING TRIBUNALS OBSERVATION. WE THUS ARE OF THE VIEW THAT THE CIT( A)S ORDER EXCEEDS THIS TRIBUNALS OBSERVATIONS FROM GOING BEY OND HEADWISE ALLOCATION IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 9 - TO LAND PROPORTION. WE OBSERVE IN THESE FACTS THAT THE SAID PROPORTION FORMULA IS NOT A FULL PROOF ONE AS BOTH THESE ARE DISTINCT PROJECTS OF RESIDENTIAL TOWNSHIP AND A CHAMPIONSHIP GOLF COURSE. WE THUS D IRECT THE ASSESSING OFFICER TO STRICTLY ALLOCATE EXPENDITURE IN QUESTIO N PRORATAWISE OF THE TWO PROJECTS WITHOUT TAKING INTO ACCOUNT THE LAND COMPO NENT THEREIN. IN OTHER WORDS, HE SHALL FINALIZE THE CONSEQUENTIAL COMPUTAT ION GOING BY THE GROSS AMOUNT OF EXPENDITURE VIS--VIS THE TWO HEADS AND T HE PROPORTION INVOLVED THEREIN. THE ASSESSEES THIRD SUBSTANTIVE GROUND IN ALL OF ITS APPEAL IS ACCORDINGLY ACCEPTED FOR STATISTICAL PURPOSES. 11. THE ASSESSEES FOURTH SUBSTANTIVE GROUND IDENTI CALLY PLEADED IN ITS FIVE APPEALS IS THAT THE CIT(A) HAS ERRED IN NOT SPECIFI CALLY ADJUDICATING ITS PLEA THAT IF THE ABOVESTATED EXPENDITURE HAD TO BE DISAL LOWED ON ACCOUNT OF NON COMMENCEMENT OF BUSINESS AND IT OUGHT TO BE CAPITAL IZED, CORRESPONDING INCOME OF EACH ASSESSMENT YEAR HAS TO BE DIRECTED TO BE ADJUSTED AGAINST SUCH COST OF THE TWO PROJECTS. LEARNED DEPARTMENTA L REPRESENTATIVE FAILS TO DISPUTE THE ABOVE NONADJUDICATION IN THE CIT(A)S O RDER. SHRI SOPARKAR AT THIS STAGE QUOTES HONBLE DELHI HIGH COURTS JUDGME NT IN NTPC SAIL CO. PVT. LTD. VS. CIT [2012] 25 TAXMANN.COM 401 (DELHI) IN S UPPORT OF ASSESSEES PLEA RAISED IN THE INSTANT SUBSTANTIVE GROUND. WE HOWEVER ARE OF THE OPINION THAT THIS ISSUE REQUIRES A DETAILED ADJUDICATION AT ASSESSING AUTHORITYS LEVEL FIRST. MORE SO WHEN IT IS ALREADY SUPPOSED TO FRAM E CONSEQUENTIAL COMPUTATION AS DIRECTED IN THE PRECEDING SUBSTANTIV E GROUND HEREINABOVE. WE THUS ACCEPT ASSESSEES INSTANT SUBSTANTIVE GROUN D IN ALL OF ITS FIVE APPEALS FOR STATISTICAL PURPOSES. NEEDLESS TO SAY, THE ASS ESSING OFFICER SHALL AFFORD THE ASSESSEE ADEQUATE OPPORTUNITY OF HEARING BEFORE TAKING THE FINAL CALL ON THIS ISSUE. IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 10 - 12. THE ASSESSEES FIFTH SUBSTANTIVE GROUND RAISING THE ISSUE OF SECTION 234B INTEREST IS TREATED AS CONSEQUENTIAL IN NATURE AS STATED BY BOTH THE LEARNED REPRESENTATIVES. 13. THE ASSESSEES FIVE APPEALS IT(SS)A NOS. 359 TO 363/AHD/2011 ARE PARTLY ACCEPTED FOR STATISTICAL PURPOSES. 14. WE NOW ADVERT TO REVENUES TWO APPEALS IT(SS)A NOS. 366 & 367/AHD/2011 IN ASSESSMENT YEARS 2005-06 AND 2006-0 7 ALONGWITH ASSESSEES CROSS OBJECTIONS THEREIN CO NOS. 143 & 1 44/AHD/2011; RESPECTIVELY. THE REVENUES IDENTICALLY PLEADED SU BSTANTIVE GROUND IN ITS APPEALS IS THAT THE CIT(A) HAS ERRED IN DELETING UN ACCOUNTED TRANSACTION OF LAND PURCHASES ADDITION OF RS.56,62,497/- IN ABOVE FORMER AND RS.17,24,265/- RESPECTIVELY IN LATTER ASSESSMENT YE AR FOLLOWED BY YET ANOTHER ADDITION OF DISALLOWANCE OF ADVANCES OF RS.88,85,80 0/- IN SAID LATTER YEAR; RESPECTIVELY. 15. THE ASSESSEES CROSS OBJECTIONS ON THE OTHER HA ND IDENTICALLY PLEAD THAT ALTHOUGH THE CIT(A) HAS DELETED THE ABOVE ADDITIONS OF UNEXPLAINED INVESTMENTS IN THE TWO ASSESSMENT YEARS, HE ERRED I N TREATING ITS PLEA THAT THE ADDITION IN QUESTION COULD NOT EXCEED THE AMOUNTS E MANATING FROM LOOSE PAPERS CONCERNED; AS RENDERED INFRUCTUOUS. 16. IT IS EVIDENT TO US THAT THE CIT(A)S FINDINGS CONTAINING IDENTICAL REASONING IN BOTH ASSESSMENT YEARS DISCUSS THE ISSU E AT LENGTH AS FOLLOWS: 15. I HAVE GIVEN A CAREFUL CONSIDERATION TO THE RE LEVANT FACTS HAVING BEARING-ON THIS ISSUE AND HAVE PERUSED THE NOTINGS ON THE SEIZ ED PAPERS NO. 138, 139 AND 140.1 HAVE ALSO GIVEN DUE CONSIDERATION TO THE REAS ONS GIVEN BY THE ASSESSING OFFICER FOR THE CONCLUSIONS DRAWN BY HIM AND THE WR ITTEN AND VERBAL SUBMISSIONS MADE BEFORE ME ON BEHALF OF THE APPELLANT-COMPANY. I DO AGREE WITH THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT-COMPANY THAT THE CONCLUSIONS DRAWN BY THE ASSESSING OFFICER FROM THE NOTINGS ON THE SE IZED PAPERS ARE BASED ON ONLY IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 11 - ASSUMPTIONS AND SURMISES AND THERE ARE SEVERAL ANOM ALIES OR CONTRADICTIONS IN SUCH CONCLUSIONS. IT IS TRUE THAT OUT OF THE SURVEY NUMBERS MENTIONED ON SEIZED PAPER NO. 138, ONLY 7.4 VIGHAS WERE PURCHASED BY TH E APPELLANT-COMPANY DURING THIS YEAR. EVEN IF THE RATE OF RS.70,000 PER VIGHA IS APPLIED, THE TOTAL COST WOULD COME TO RS.5,18,000/-. IN RESPECT OF THIS LAND THE COST, INCLUDING PREMIUM PAID AS PER THE BOOKS OF ACCOUNT COMES TO RS.1,50,909. THUS , THE DIFFERENCE IS ONLY RS.3,67,010 WHICH IS ADEQUATELY COVERED BY THE DISC LOSURE OF RS.5 LACS. SIMILARLY, FURTHER ADDITION OF RS.37,10,000 BASED ON THE NOTIN GS ON PAGE NO.138 DOES NOT HAVE ANY BASIS. I HAVE GONE THROUGH THE NOTINGS AND IN MY VIEW NO ASSUMPTION CAN BE DRAWN THAT THE ASSESSEE PAID ADVANCE OF RS.37,10 ,000. OBVIOUSLY, THIS ADDITION IS OVERLAPPING WITH THE ADDITION OF RS.24,52,497, W ITH REGARD TO WHICH I HAVE ALREADY HELD ABOVE THAT THE SAME IS NOT JUSTIFIED. THE ASSESSING OFFICER APPLIED THE RATE OF RS.70,000 PER VIGHA TO THE AREA OF THE TOTA L LAND PURCHASED DURING THIS YEAR, IRRESPECTIVE OF THE SURVEY NUMBERS AND FURTHE R MADE ADDITION ON THE ASSUMPTION THAT THE ASSESSEE HAD PAID ADVANCE. OBVI OUSLY, IF ADVANCE IS PAID, THERE WOULD BE NO QUESTION OF FURTHER PAYMENT BY TH E ASSESSEE. THE SEIZED PAPERS BEAR SOME ROUGH NOTINGS FROM WHICH NO CONCLUSION CA N BE DRAWN THAT THESE NOTINGS REPRESENT ACTUAL TRANSACTIONS AND PROVE ACT UAL UNACCOUNTED PAYMENTS MADE BY THE APPELLANT-COMPANY. IT IS NOT KNOWN AS T O BY WHOM THESE PAPERS WERE WRITTEN. THE ASSESSING OFFICER HAS MENTIONED THAT S OME OF THE INTERMEDIARY FARMERS WERE EXAMINED BY THE DEPARTMENT DURING THE COURSE OF THE SEARCH. HOWEVER, THERE IS NO MENTION IN THE ASSESSMENT ORDE R AS TO WHETHER ANY OF THESE FARMERS ADMITTED HAVING RECEIVED UNACCOUNTED CASH T O-BE PAID TO THE FARMERS FROM WHOM LANDS WERE PURCHASED. EXCEPT THE AFORESAID THR EE SEIZED PAPERS, NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE DEPARTMENT TO SHO W THAT THE ASSESSEE ACTUALLY PAID ON-MONEY ON PURCHASE OF LAND. IN THE WRITTEN S UBMISSIONS, IT HAS BEEN CONVINCINGLY EXPLAINED BY THE APPELLANT-COMPANY THA T EVEN IF IT IS ASSUMED THAT THE APPELLANT-COMPANY ACTUALLY PURCHASED AGRICULTURAL L AND SHOWN IN THE SEIZED PAPERS AT THE RATE OF RS.70,000 OR AT THE RATE OF R S.1,15,000, AS ASSUMED BY THE ASSESSING OFFICER IN THE SUBSEQUENT ASSESSMENT YEAR S, THE POSITION REGARDING THE ASSUMED EXCESS PAYMENT COULD BE MUCH LESS THAN THE VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER DURING THE ASSESSMENT YEARS 2 005-06, 2006-07 AND 2007-08. THIS FACTUAL POSITION HAS BEEN EXPLAINED IN THE FOR M OF A CHART WHICH IS PLACED AT PAGE 34 OF THE PAPER-BOOK. AFTER TAKING INTO ACCOUN T THE PREMIUM PAYABLE ON CONVERSION TOGETHER WITH THE COST ACCOUNTED IN THE BOOKS OF ACCOUNT, AS COMPARED TO THE COST ESTIMATED BY THE ASSESSING OFFICER ON T HE BASIS OF THE ASSUMED RATES IN RESPECT OF 53 VIGHAS (PAGE 138) AND 81 VIGHAS (PAGE 140), THE DIFFERENCE WOULD COME TO A TOTAL SUM OF RS.41,34,406/-. AS AGAINST THE ASSESSEE MADE OVER ALL DISCLOSURE OF RS.1,20,00,000 WHICH HAS BEEN BROUGHT TO THE CHARGE OF TAX DURING DIFFERENT ASSESSMENT YEARS. 16. IN MY VIEW, HAVING REGARD TO THE FACTUAL POSITION M ENTIONED ABOVE AND IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE REGARDING PAYMENT OF ON-MONEY IN EXCESS OF THE DISCLOSED SUM OF RS.1,20,00,000, ADDI TIONS ARE WARRANTED MERELY ON THE BASIS OF ASSUMPTIONS FROM THE NOTINGS ON THE SE IZED PAPERS. THE CASES WHICH HAVE BEEN RELIED UPON BY THE APPELLANT-COMPANY IN THE WRITTEN SUBMISSIONS REPRODUCED ABOVE SUPPORT THIS VIEW. ACCORDINGLY, THE ADDITION OF RS.56,62,497 MADE BY THE ASSESSING OFFICER IS DELETED . IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 12 - 17. GROUND NO. 8 IS ONLY AN ALTERNATIVE GROUND WITH OUT PREJUDICE TO THE MAIN GROUNDS WITH REGARDS TO THE ASSUMED ADDITIONS MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE SEIZED PAPERS. THIS GROUND HAS BEE N RAISED FOR A.Y. 2005-06, 2006- 07 AND 2007-08 AND THE SAME IS SELF-EXPLANATORY AS REPRODUCED BELOW: '8) WITHOUT PREJUDICE TO THE ABOVE AND WITHOUT AGRE EING THE APPELLANT SUBMITS THAT THE AO HAS CONSIDERED LOOSE PAPER PAGE S NO. 138/139/140 ARE IN RESPECT OF PURCHASE OF LAND IN AY 2005-06, AY 20 06-07 AND AY 20-07-08 AT THE RATE OF 70000/115000 PER VIGHA AND THEREBY T HE EXCESS ADDITIONS MADE BY AO WORKS OUT AS UNDER' AY VIGHAS OF LAND PURCHASED RATE APPLIED AS PER LOOSE PAPER LAND VALUE COST AS PER ASSESSEE SALE DEED ADDITIONS ON THE BASIS OF LOOSE PAPERS ADDITIONS MADE AS PER ASSESSMENT ORDER DIFF. OF EXCESS ADDITION MADE 2005-06 40.58 70000 2840600 426053 2414547 5662497 3247950 2006-07 29.65 70000 2075500 386545 1688955 10110065 8421110 2007-08 160.59 115000 18467850 1297493 17170357 17275057 104700 TOTAL 230.82 23383950 5944091 21273859 33047619 11773760 18. IT MAY BE MENTIONED THAT THIS GROUND OF APPEAL HAS BEEN RAISED BY THE APPELLANT COMPANY WITHOUT PREJUDICE TO THE MAIN ARG UMENT THAT NO ADDITION ON THE BASIS OF SEIZED PAPERS IS CALLED FOR. THUS, IT IS O NLY AN ALTERNATIVE GROUND. WHILE DECIDING THE MAIN GROUND, I HAVE ALREADY HELD THAT FOR THE PRESENT ASSESSMENT YEAR NO ADDITION CAN BE MADE ON THE ALLEGED GROUND OF PA YMENT OF UNACCOUNTED ON- MONEY ON PURCHASES OF LAND. IN VIEW OF THIS, THIS A LTERNATIVE GROUND BECOMES INFRUCTUOUS AND DOES NOT REQUIRE TO BE ADJUDICATED. 17. WE HAVE HEARD BOTH THE PARTIES AT LENGTH. IT E MERGES THAT THE CIT(A) HAS ALREADY EXAMINED ASSESSING OFFICERS CONCLUSION S IN LIGHT OF ASSESSEES DISCLOSURE DURING SEARCH AS SPREAD OVER TO VARIOUS ASSESSMENT YEARS TO BE ALREADY MORE THAN THE AMOUNTS IN QUESTION. IT IS F URTHER EVIDENT THAT THE ASSESSING OFFICER PRESUMED THE ASSESSEE TO HAVE PAI D THE ON MONEY IN QUESTION IN RESPECT OF ALL OF ITS LAND PURCHASED RE GARDLESS OF THE SURVEY NOS INVOLVED AND ALSO WITHOUT INDICATING ANY EVIDENCE C OLLECTED DURING SEARCH BUTTRESSING SUCH AN ASSUMPTION. MS. BHALLA FAILS T O INDICATE ANY EVIDENCE IN THE CASE FILE WHICH COULD LEAD US TO A CONCLUSION T HAT THE ASSESSEE HAS ACTUALLY PAID ANY ON MONEY IN RESPECT OF ALL THE LAND PURCHA SES. WE THUS FIND NO IT(SS)A NOS. 359 TO 363, 366 & 367/AHD/11 WITH C.O . NOS. 143 & 144/AHD/11 (MILLENNIUM PARK HOLDINGS PVT. LTD.) A.YS. 2002-03 TO 2006-07 - 13 - MERIT IN REVENUES ARGUMENT EVEN QUOTING SECTION 29 2(C) OF THE ACT. SHRI SOPARKAR AT THIS STAGE STATES VERY FAIRLY THAT THE ASSESSEE DOES NOT WISH TO PRESS FOR ITS PLEADINGS IN THE ABOVE CROSS OBJECTIO NS KEEPING IN MIND THE FACT THAT WE HAVE ALREADY UPHELD CIT(A)S ORDER DELETING THE IMPUGNED ADDITIONS IN PRINCIPLE. WE THUS DECLINE REVENUES SOLE SUBST ANTIVE GROUND AS WELL AS ITS TWO APPEALS IT(SS)A NOS. 366 & 367/AHD/2011. T HE ASSESSEES CO NOS. 143 & 144/AHD/2011 ARE RENDERED INFRUCTUOUS AS NOT PRESSED. 18. WE FOLLOW OUR ABOVE DETAILED DISCUSSION TO PART LY ACCEPT ASSESSEES FIVE APPEALS IT(SS)A NOS. 359 TO 363/AHD/2011 FOR S TATISTICAL PURPOSES. THE REVENUES APPEAL IT(SS)A NOS. 366 & 367/AHD/2011 AR E DISMISSED. THE ASSESSEES CROSS OBJECTION THEREIN CO NO.143 & 144/ AHD/2011 ARE RENDERED INFRUCTUOUS SINCE NOT PRESSED. ORDERED ACCORDINGLY . [PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF MARCH, 2017.] SD/- SD/- ( MANISH BORAD ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 30/03/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0