Cuttack Hospital Pvt. Ltd., Cuttack V. ACIT, Central Circle , Cuttack

ITSSA 38/CTK/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9535 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 27-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: J M PATTNAIK
• Keywords: Unexplained investment; Unexplained expenditure; Depreciation; Search and seizure; Reasonable cause; Reason to believe
• Section: 143(3); 153A; 201; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM ( ) / IT(SS)A NO S . 36 TO 42 /CTK/201 9 ( / ASSESSMENT YEAR : 20 1 0 - 201 1 TO 2 016 - 2017 ) M/S CUTTACK HOSPITALS PVT. LTD., SECTOR - 1, CDA, CUTTACK VS. ACIT, CENTRAL CIRCLE, CUTTACK ./ PAN NO. : A ACCC 7143 B ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI J.M.PATTNAIK, AR /REVENUE BY : SHRI S.M.KESHKAMAT, CIT DR / DATE OF HEARING : 19 / 11 /2019 / DATE OF PRONOUNCEMENT : 02 / 01 /20 20 / O R D E R PER BENCH : TH ESE ARE THE APPEALS FILED BY ASSESSEE AGAINST THE CONSOLIDAT ED ORDER OF CIT(A) - 2 , BHUBANESWAR, ALL DATED 11.03.2019, FOR THE ASSESSMENT YEARS 2010 - 2011 TO 2015 - 2016, OUT OF WHICH SIX APPEALS ARE ARISING OUT OF THE ORDER DATED 14.07.2017, PASSED BY THE AO U/S.153A OF THE ACT AND ANOTHER APPEAL FOR THE ASSESSMENT YEA R 2016 - 2017, IS ARISING OUT OF THE ORDER DATED 14.07.2017 PASSED BY THE AO U/S.143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . 2. FIRST OF ALL, FOR CLARITY, WE WOULD LIKE TO MENTION THE DATE OF ORDERS OF THE AUTHORITIES BELOW AT DIFFERENT STAGES F OR DIFFERENT ASSESSMENT YEARS IN RESPECTIVE APPEALS, AS UNDER : - IT (SS) A NO. 36 - 42 /CTK/201 9 2 SL. NO IT (SS) A NO. NAME OF ASSESSEE ASSESSMENT YEAR ASSESSMENT ORDER ORDER U/S.143(3) /153A CIT(A)S ORDER 1. 36 /CTK/ 19 M/S CUTTACK HOSPITAL PVT. LTD. 2010 - 2011 14.07.2017 153A 11.03.2019 2. 37 /CTK/ 19 M/S CUTTACK HOSPITAL PVT. LTD. 2011 - 2012 14.07.2017 153A 11.03.2019 3. 38 /CTK/ 19 M/S CUTTACK HOSPITAL PVT. LTD. 2012 - 2013 14.07.2017 153A 11.03.2019 4. 39 /CTK/ 19 M/S CUTTACK HOSPITAL PVT. LTD. 2013 - 2014 14.07.2017 153A 11.03.2019 5. 40 /CTK/ 19 M/S CUTTACK HOSPITAL PVT. LTD. 2014 - 2015 14.07.2017 153A 11.03.2019 6. 41 /CTK/ 19 M/S CUTTACK HOSPITAL PVT. LTD. 2015 - 2016 14.07.2017 153A 11.03.2019 7. 42 /CTK/ 19 M/S CUTTACK HOSPITAL PVT. LTD. 2016 - 2017 14.07.2017 143(3) 11.03.2019 3. SINCE THE ISSUES INVOLVED IN ALL THE APPEALS ARE IDENTICAL TO EACH OTHER, EXCEPT DIFFERENT IN FIGURE, THEREFORE, WITH THE CONSENT OF BOTH THE PARTIES, ALL THE APPEALS ARE HEARD ANALOGOUSLY AND DISPOSED OFF BY THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE INTO CONSIDERATION THE FACTS AND GROUNDS MENTIONED IN IT (SS) A NO. 36 /CTK/201 9 FOR THE ASSESSMENT YEAR 20 10 - 20 11 FOR DECIDING ALL THE APPEALS. GROUNDS TAKEN BY THE ASSESSEE IN THE SAID APPEAL FOR ASSESSMENT YEAR 20 10 - 20 11 ARE AS UNDER : - ADDITION OF RS. 5,46,000/ - ( A) FOR THAT THE LEARNED AO IS ERR ED IN MAKING ADDITION OF RS.5, 46,000/ - THEREBY UNSETTLING A SETTLED POSITION OF LAW IN ABSENCE OF ANY INCRIMINATING MATERIALS SEIZED IN COURSE OF SEARCH AND SEIZURE OPERATION THAT TOO IN A PIECE MEAL/AD HOC BA SIS. (B) FOR THAT ANY OTHER GROUNDS INCIDENTAL TO THE GROUNDS OF THIS CASE MAY KINDLY BE PERMITTED TO URGE AT THE TIME OF HEARING OF THIS CASE; (C) FOR THAT ANY OTHER EVIDENCES INCIDENTAL TO THIS CASE MAY KINDLY BE PERMITTED TO ADDUCE AT THE TIME OF HEARING OF THIS CASE. 4 . THE ASSESSEE COMPANY IS IN THE BUSINESS OF HEALTHCARE AND OWNS A SUPER SPECIALTY HOSPITAL IN THE NAME AND STYLE 'ASHWINI HOSPITAL'. THERE WAS A SEARCH AND SEIZURE OPERATION U/S.132 OF THE INCOME TAX IT (SS) A NO. 36 - 42 /CTK/201 9 3 ACT, 1961 CONDUCTED ON 03.09.2015 AT THE BUSINESS PREMISES OF THE ASSESSEE AT CUTTACK AND RESIDENTIAL PREMISES OF ITS DIRECTORS AT CUTTACK AND BHUBANESWAR. SUBSEQUENTLY, NOTICES U/S. 153A OF I.T. ACT, 1961 WERE ISSUED AND ORDERS U/S. 153A OF I.T. ACT, 1961 WERE PASSED FOR THE SIX ASSESSMENT YEARS I.E.A.Y.2010 - 2011 TO 201 5 - 201 6 AND FOR THE ASSESSMENT YEAR 201 6 - 201 7 THE AO FRAMED THE ASSESSMENT U/S.143(3) OF THE ACT . DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE SIX ASSESSMENT YEARS, THE ASSESSING OFFICER FOUND THAT THE AS SESSEE HAS CLAIMED RENT AND SALARY IN RESPECT OF INFORMATION CENTRES LOCATED AT SEVENTEEN PLACES IN ODISHA AND NEIGHBOURING STATES. ACCORDING TO THE ASSESSING OFFICER, THE EXPENSES ARE NOT FULLY GENUINE AND HE DISALLOWED IN THE FOLLOWING MANNER FOR THE RES PECTIVE ASSESSMENT YEARS UNDER CONSIDERATION : - A.Y. RENT SALARY TOTAL (IN RS.) ADDITION MADE (IN RS.) 2010 - 11 7,80,000 0 7,80,000 5,46,000 2011 - 12 8,22,000 13,68,000 21,90,000 15,33,000 2012 - 13 1,08,000 1,98,000 3,06,000 2,14,200 2013 - 14 1,57,500 2,7 0,000 4,27,500 2,99,250 2015 - 16 19,20,000 11,34,000 30,54,000 21,37,800 2016 - 17 11,46,000 20,97,6001 32,43,600 22,70,600 TOTAL 49,33,500 50,67,600 1,00,01,100 70,00,850 FOR THE ASSESSMENT YEAR 2014 - 2015, THE AO ALLOWED 30% OF THE EXPENDITURE CLAIME D BY THE ASSESSEE AND ADDED BALANCE OF 70% I.E. RS.21,37,800/ - ON ACCOUNT OF RENT AND SALARIES PAID TO THE EMPLOYEES. THE AO FURTHER ADDED RS.70,00,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT AND FRAMED THE ASSESSMENT ACCORDINGLY. IT (SS) A NO. 36 - 42 /CTK/201 9 4 5 . AGGRIEVED FROM THE ORDER OF AO, THE ASSESSE E PREFERRED APPEAL BEFORE THE CIT(A), HOWEVER, THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND FINDINGS OF AO, THE CIT(A) OBSERVED THAT IT CANNOT BE DENIED THAT THE ASSESSEE HAS ESTABLISHED INFORMATION CENTRE S AT SEVENTEEN PLACES IN RENTED PREMISES AND HAS APPOINTED STAFF MEMBERS TO FACILITATE TREATMENT OF PATIENTS FROM THESE PLACES AT ITS HOSPITAL IN CUTTACK. ACCORDINGLY, THE CIT(A) RESTRICTED THE DISALLOWANCE TO 30% OF THE TOTAL EXPENDITURE CLAIMED BY THE ASSESSEE IN THE FOLLOWING MANNER FOR THE RESPECTIVE ASSESSMENT YEARS UNDER CONSIDERATION : - A.Y. TOTAL EXPENDITURE CLAIMED ADDITION MADE BY T HE AO ADDITION CONFIRMED ADDITION ORDERED TO BE DELETED 2010 - 11 7,80,000 5,46,000 2,34,000 3,12,000 2011 - 12 21,90,000 15,33,000 6,57,000 8,76,000 2012 - 13 3,06,000 2,14,200 91,800 1,22,400 2013 - 14 4,27,500 2,99,250 1,28,250 1,71,000 2015 - 16 30,54,000 21,37,800 9,16,200 12,21,600 2016 - 17 32,43,600 22,70,600 9,73,080 12,97,5201 TOTAL 1,00,01,100 70,00,850 30,00,330 40,00,520 FOR THE ASSESSMENT YEAR 2014 - 2015, THE CIT(A) PARTLY DELETED THE ADDITION MADE BY THE AO ON THE TOTAL EXPENDITURE CLAIMED BY THE ASSESSEE AFTER RESTRICTING TO 30% AND CONFIRMED THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT. 6 . NOW, AGAINST THE ABOVE ORDER OF CIT(A), THE ASSESSEE IS IN FURTHER APPEALS BEFORE THE TRIBUNAL FOR THE RESPECTIVE ASSESSMENT YEARS UNDER CONSIDERATION. IT (SS) A NO. 36 - 42 /CTK/201 9 5 7. AT THE OUTSET, LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE DOES NOT WANT TO PRESS LEGAL GROUND CHALLENGING THE ADDITION MAD E BY THE AO AND PARTLY CONFIRMED BY THE CIT(A) ON THE GROUND THAT THE ADDITIONS HAVE BEEN MADE IN ABSENCE OF ANY INCRIMINATING MATERIAL SEIZED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION IN THE PIECEMEAL AND ADHOC BASIS. THEREFORE, THE LEGAL GROUND O F ASSESSEE ON THE SAID POINT IS DISMISSED AS NOT PRESSED. 8. AS AGREED BY BOTH THE PARTIES, WE ARE TAKING OF IT(SS)A NO.36/CTK/2019 FOR THE A.Y.2010 - 2011 AS A LEAD CASE AND GROUNDS AGITATED BY THE ASSESSEE IN THIS APPEAL HAVE BEEN REPRODUCED HEREINABOVE IN PARA 3 (SUPRA). KEEPING IN VIEW THE CONSENT OF THE LEARNED REPRESENTATIVES OF BOTH THE SIDES THAT THE FACTS AND CIRCUMSTANCES OF THE CASE IN ALL SEVEN APPEALS PERTAINING TO THE ADDITION MADE BY THE AO AND PARTLY CONFIRMED BY THE CIT(A) ON ACCOUNT OF TOTAL CLAIM OF EXPENDITURE AND RENT PAID TOWARDS INFORMATION CENTERS. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. 10. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT T HE ASSESSEE HAS SUBMITTED AUDITED BOOKS OF ACCOUNTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE AO WITHOUT POINTING OUT ANY DISCREPANCY OR DEFECTS MADE THEREIN HAS MADE ADDITION BY WAY OF DISMISSING THE 70% IT (SS) A NO. 36 - 42 /CTK/201 9 6 CLAIM OF THE ASSESSEE TOWARDS INCURRING O F EXPENDITURE AND PAYMENT OF RENT TOWARDS ITS INFORMATION CENTERS SITUATED AT VARIOUS PLACES IN STATE OF ODISHA. LD. AR VEHEMENTLY POINTED OUT THAT THE FIRST APPELLATE AUTHORITY KEEPING IN VIEW THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE AND THE UNSUSTA INABLE BASIS TAKEN BY THE AO AGREED TO THE CONTENTION OF ASSESSEE BUT ONLY DELETED 70% ADDITION AND REMAINING 30% OF THE ADDITION HAS BEEN SUSTAINED WITHOUT ANY BASIS. THEREFORE, THE ENTIRE ADDITION AS CONFIRMED BY THE CIT(A) MAY KINDLY BE DELETED. LD.AR F URTHER SUBMITTED THAT SINCE THE AO HAS MADE DISALLOWANCE/ADDITION REGARDING EXPENSES INCURRED BY THE ASSESSEE AND RENT PAID BY THE ASSESSEE FOR OPERATING INFORMATION CENTERS AT VARIOUS LOCATIONS IN THE STATE OF ODISHA TO FACILITATE ITS PROSPECTIVE PATIENTS AND TO CREATE AWARENESS OF THE HEALTH AMONG THE PEOPLE OF WEAKER SOCIETY OF THE STATE OF ODISHA, THEREFORE, THE EXPENDITURE HAS BEEN INCURRED FOR THE BUSINESS PURPOSE OF THE ASSESSEE WHICH CANNOT BE DISALLOWED. LD. COUNSEL STRENUOUSLY CONTENDED THAT MEREL Y BECAUSE THE ASSESSEE COULD NOT PRODUCE SOME BILLS AND VOUCHERS WHICH WERE PREPARED AT THE INFORMATION CENTERS AND COULD NOT REACH AND COLLECT AT CENTRAL ACCOUNT OFFICE OF THE ASSESSEE, THE ADHOC ADDITION OF 30% CANNOT BE HELD AS JUSTIFIED AND REASONABLE. ALTERNATIVELY, THE ASSESSEE CONCLUDED HIS ARGUMENT WITH A PRAYER THAT IF IT IS FOUND NECESSARY THEN THE IT (SS) A NO. 36 - 42 /CTK/201 9 7 PERCENTAGE OF ADHOC DISALLOWANCE AND ADDITION MAY KINDLY BE REDUCED IN THE INTEREST OF JUSTICE TO 5 TO 10%. 11. REPLYING TO THE ABOVE, LD. DEPARTMENTAL REPRESENTATIVE (DR) TOOK US THROUGH THE RELEVANT PART OF THE ASSESSMENT AND FIRST APPELLATE ORDER AND SUBMITTED THAT THE LD. CIT(A) HAS ALREADY GRANTED RELIEF TO THE ASSESSEE BY REDUCING TO THE ADDITION FROM 100% TO 30% AND NO FURTHER REDUCTION IN THE ADD ITION SHOULD BE GRANTED. LD. CITDR ALSO SUBMITTED THAT DESPITE OPPORTUNITY WAS GIVEN BY THE LOWER AUTHORITIES THE ASSESSEE FAILED TO SUBMIT RELEVANT DOCUMENTARY EVIDENCE, BILLS AND VOUCHERS IN SUPPORT OF HIS CLAIM OF INCURRING OF EXPENDITURE AND PAYMENT O F REN T TOWARDS OPERATING INFORMATION CENTERS, THEREFORE, THE ADDITION CONFIRMED BY THE CIT ( A) MAY KINDLY BE UPHELD. LASTLY, IN ALL FAIRNESS, LD. CITDR SUBMITTED THAT IF IT IS FOUND JUST AND PROPER THEN THE ADDITION , PARTLY CONFIRMED BY THE CIT(A) @30% OF THE TOTAL CLAIM , MAY BE REDUCED TO 25%. 12. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSIONS AND ON PERUSAL OF THE ASSESSMENT ORDER, WE OBSERVE THAT THE AO HAS MADE ADDITION BY OBSERVING THAT THE AR OF THE ASSESSEE ONLY PRODUCED THE LEDGER ACCOUNT OF C LAIMED EXPENSES AND COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THAT CLAIM AND COULD OFFER ANY SATISFACTORY EXPLANATION AND IN ABSENCE OF DETAILS AS REQUIRED IN THE SHOW CAUSE NOTICE THE CLAIM OF EXPENSES AGAINST OPERATION OF IT (SS) A NO. 36 - 42 /CTK/201 9 8 INFORMATION CENTE RS IS NOT ACCEPTABLE. WITH THESE OBSERVATIONS, THE AO DISALLOWED 70% OF THE CLAIM OF THE ASSESSEE TOWARDS INCURRING OF EXPENDITURE AND PAYMENT OF RENT PERTAINING TO INFORMATION CENTERS. FROM THE RELEVANT PARA 6 OF THE FIRST APPELLATE ORDER, WE OBSERVE THAT THE CIT(A) FIRST HELD THAT THE MODUS OPERANDI OF THE ASSESSEE IS INFLATING EXPENDITURE ON INFORMATION CENTRES WHICH WAS DISCOVERED AND THUS, HE HAS STRONG REASON TO BELIEVE THAT THIS MODUS OPERANDI OF THE ASSESSEE HAS BEEN FOLLOWED BY THE ASSESSEE IN ALL ASSESSMENT YEARS AND FOR THIS REASON HE DENIED THE BENEFIT OF DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA, [2016] 380 ITR 573 (DELHI) . FURTHER THE CIT(A) NOTED THAT IT CANNOT BE DENIED THAT THE ASSESSEE HAS ESTABLISHED INFORMATION CENTERS AT 17 PLACES IN RENTED PREMISES AND HAS ALSO APPOINTED STAFF MEMBERS TO FACILITATE TREATMENT OF PATIENTS FROM THESE PLACES AT ITS HOSPITAL LOCATED AT CUTTACK. WITH THIS OBSERVATIONS THE CIT(A) REDUCED THE DISALLOWANCE FROM 70% TO 30% AND ASSESSEE IS AGITATING THIS ADDITION WITH A MAIN PRAYER TO DELETE THE SAME AND ALTERNATE PRAYER TO REDUCE THE SAME TO A REASONABLE EXTENT. WE MAY ALSO POINT OUT THAT THE LD. CITDR HAS STRONGLY SUPPORTED THE FIRST APPELLATE ORDER BY STATING THAT THE CIT(A) HAS ALREAD Y GRANTED RELIEF TO THE ASSESSEE AND NO FURTHER RELIEF SHOULD BE GRANTED. IT WAS ALSO ADDED BY HIM THAT IF IT IS FOUND JUST AND PROPER THEN THE ADDITION MAY BE REDUCED TO A REASONABLE PERCENTAGE OF 25%. IT (SS) A NO. 36 - 42 /CTK/201 9 9 13. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTAN CES OF THE CASE AND THE RIVAL SUBMISSION OF BOTH THE PARTIES, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW HAVE NOT DISPUTED THAT THE ASSESSEE HAS ESTABLISHED INFORMATION CENTRES AT 17 PLACES IN THE RENTED PREMISES AND HAS APPOINTED STAFF MEMBE RS TO FACILITATE THE TREATMENT OF PATIENTS OF THESE PLACES TO CUTTACK, MEANING THEREBY THE INFORMATION CENTRES WERE ESTABLISHED FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE TO SECURE HIGH NUMBER OF PATIENTS FROM REMOTE AREAS BY WAY OF GUIDING THEM AND FACIL ITATING THEM TO REACH CUTTACK FOR TREATMENT AND GETTING BENEFITED FROM THE INFORMATION GIVEN BY THESE CENTERS TO THE PATIENTS LOCATED AT REMOTE, RURAL AND SEMI - URBAN AREAS. THE AUTHORITIES BELOW HAVE NOT DOUBTED THIS FACT THAT THE ASSESSEE ESTABLISHED INFO RMATION CENTERS IN THE RENTED PREMISES AND ALSO DEPLOYED THEREIN. THEREFORE, INCURRING OF EXPENDITURE TOWARDS PAYMENT OF RENT AND SALARY TO THE EMPLOYEES IS OBVIOUS AND THIS WAS FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. THE MAIN ALLEGATION OF THE AO IS THAT THE ASSESSEE COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM AND COULD NOT SATISFACTORILY EXPLAINED FOR NON - PRODUCTION OF THE SAME. IN THIS REGARD, WE ARE IN AGREEMENT WITH THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT SINC E THE PAYMENT WAS MADE AT THE CENTERS LOCATED AT VARIOUS SEVENTEEN LOCATIONS AND AFTER PAYMENT , RESPECTIVE DOCUMENTS, EVIDENCE, BILLS AND VOUCHERS WERE TO BE SENT TO THE ASSESSEES CENTRALLY IT (SS) A NO. 36 - 42 /CTK/201 9 10 LOCATED ACCOUNTS OFFICE FOR RECORD AND DUE TO MISCOMMUNICATION B ETWEEN THE INFORMATION CENTERS AND CENTRAL ACCOUNTING OFFICE AND NEGLIGENCE OF THE STAFF WORKING AT INFORMATION CENTERS THESE RELEVANT DOCUMENTS COULD NOT REACH TO THE CUTTACK AND, THEREFORE, THE SAME COULD NOT BE PRODUCED BEFORE THE AO. KEEPING IN VIEW TH E TOTALITY OF FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE ESTABLISHMENT OF INFORMATION CENTERS, INCURRING OF EXPENDITURE TOWARDS RENT AND SALARY IS NOT IN DISPUTE, HOWEVER, ENTIRE CLAIM OF THE ASSESSEE CANNOT BE ALLOWED IN ABSENCE OF SUPPORTING DOCUMENTS, BILLS AND VOUCHERS ETC., THEREFORE, THE ADDITION IS NECESSARY AND OBVIOUS ON FAILURE OF ASSESSEE IN PRODUCING THE RELEVANT DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM. HOWEVER, THE CIT(A) HAS CONFIRMED 30% OF THE AMOUNT OF CLAIM OF ASSESSEE WH ICH IS EXCESSIVE AND SEEMS TO BE UNREASONABLE, THEREFORE, WE HOLD THAT IN THE INTEREST OF JUSTICE, TO COVER UP THE POSSIBLE LEAKAGE OF REVENUE THE ADDITION CONFIRMED BY THE CIT(A) I.E. 30% OF THE TOTAL CLAIM OF THE ASSESSEE IS REDUCED TO 15 % AND THE AO IS DIRECTED TO RECALCULATE THE DISALLOWANCE ACCORDINGLY. CONSEQUENTLY, THE GROUND OF THE ASSESSEE ON MERITS FOR A.Y.2010 - 2011 IS PARTLY ALLOWED WITH A DIRECTION TO AO AS GIVEN HEREINABOVE. SINCE FACTS AND CIRCUMSTANCES IN ALL THE SEVEN APPEALS ARE IDENTICAL AND SIMILAR, THEREFORE, OUR OBSERVATIONS AND THE CONCLUSION DRAWN IN THE A.Y.2010 - 2011 WOULD APPLY MUTATIS MUTANDIS TO THE GROUNDS RAISED IN OTHER APPEALS ALSO I.E. IT (SS) A NO. 36 - 42 /CTK/201 9 11 FOR A.Y.2011 - 2012 TO 2016 - 2017 AND ACCORDINGLY GROUND RAISED IN ALL THE APPEALS OF THE ASSE SSEE FOR THE RESPECTIVE ASSESSMENT YEARS UNDER CONSIDERATION ARE PARTLY ALLOWED. 14. THE REMAINING SOLE GRIEVANCE OF THE ASSESSEE IN THE APPEAL FOR THE ASSESSMENT YEAR 2014 - 2015 IN IT(SS)A NO. 40/CTK/2019 IS WITH REGARD TO CONFIRM ATION OF THE ADDITION OF RS .70 LAKHS BY THE CIT(A) WHICH WAS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT . 15. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS THE AO PERSUADED BY THE FINDINGS OF HIS PREDECESSOR ON THE GROUND THAT THE AR OF THE ASS ESSEE COMPANY FAILED TO FURNISH INFORMATION FROM INSTITUTE OF PROFESSIONAL STUDIES & RESEARCH (IPSAR), WHICH IS NOT CORRECT ON THE FA CE OF THE AUDITED BALANCE SHEET, CASH FLOW STATEMENT AND EXPENDITURE TOWARDS CONSIDERATION OF RENOVATION OF THE BUILDING. L D. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT THE CIT(A) HAS NOT DISPUTED THE STATEMENT RECORDED ON OATH OF DR.J.K.MISHRA OWNER/DIRECTOR OF IPSAR WHEREIN HE DENIED HAVING RECEIPT OF AMOUNT OF RS.70 LAKHS FROM THE ASSESSEE TOWARDS SALE OF LAND AND BUILD ING FROM IPSAR. LD. COUNSEL OF THE ASSESSEE STRENUOUSLY CONTENDED THAT THE FIRST APPELLATE AUTHORITY HAS WRONGLY SHIFTED THE ONUS ON THE ASSESSEE COMPANY TO DISPROVE THE NEGATIVE THAT THE ASSESSEE HAS NOT PAID AMOUNT OF RS.70 LAKHS . THE ASSESSEE CANNOT BE COMPELLED TO PROVE THE NEGATIVE FACT AFTER THE STAND OF THE PURCHASER SHRI J.K.MISHRA, THAT IF THE IT (SS) A NO. 36 - 42 /CTK/201 9 12 ONUS WAS SHIFTED TO THE AO TO PROVE THAT THE ASSESSEE HAS PAID RS.70 LAKHS OVER AND ABOVE THE AMOUNT STATED IN THE REGISTERED SALE DEED. 16. LD.COUNSEL FURTH ER SUBMITTED THAT THE DOCUMENT (SEIZED MATERIAL INDEXING NO.AH - 55) WAS SEIZED FROM THE CUSTODY OF CHIEF FINANCIAL OFFICER MR. RAJENDRA KUMAR SAHOO (FCA) AND THE STATEMENT OF MR. SAHOO WAS RECORDED BY THE INVESTIGATING OFFICER, WHO HAD CATEGORICALLY DENIED REGARDING ALLEGED PAYMENT OF RS.70 LAKHS TO DR. J.K.MISHRA (SELLER) AND THE SAID ASPECT HAS ALSO BEEN RE - AFFIRMED BY SHRI SUBRAT KUMAR JENA, THE DIRECTOR OF THE ASSESSEE AND HIS STATEMENT WAS ALSO RECORDED BY THE SAME INVESTIGATING OFFICER. LD. COUNSEL FUR THER POINTED OUT THAT DR. J.K.MISHRA, OF IPSAR WAS ALSO SUMMONED U/S.131(1A) OF THE ACT BY THE DDIT (INVESTIGATION) UNIT - I(I), BHUBANESWAR AND DR. MISHRA AGAIN DEPOSED IN HIS STATEMENT AND DENIED HAVING RECEIPT OF RS.70 LAKHS OVER AND ABOVE THE COST OF LAN D SHOWN IN THE REGISTERED SALE DEED. 17. LD. COUNSEL FURTHER SUBMITTED THAT THE AUTHORITIES BELOW FAILED TO TAKE NOTICE OF ABOVE RELEVANT FACTS AND DIRECTED THEMSELVES IN MAKING THE ADDITION AND SUSTAINING IT AS UNEXPLAINED INVESTMENT WITHOUT ANY CORROBOR ATIVE EVIDENCE TO SUBSTANTIATE SUCH ADDITION. LD. COUNSEL ALSO SUBMITTED THAT THE ADDITIONAL ADDITION OF RS.70 LAKHS IN THE GUISE OF UNEXPLAINED INVESTMENT LEADS TO DOUBLE TAXATION AS THE BOOK VALUE OF BUILDING INCLUDING RENOVATION COST INCURRED DURING TH E YEAR HAS NOT IT (SS) A NO. 36 - 42 /CTK/201 9 13 BEEN DISPUTED AND THE SAID AMOUNT HAS BEEN INVESTED TOWARDS RENOVATION OF SAID BUILDING WHICH FACTS HAS BEEN SUPPORTED BY THE CFO OF THE ASSESSEE COMPANY. THE STATEMENT OF THE DIRECTOR OF THE ASSESSEE COMPANY RECORDED U/S.132(4) OF THE ACT, SUBMISSION MADE BEFORE THE DDIT, SUBMISSION MADE BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS AND AFFIDAVIT, STATEMENT DURING THE REMAND PROCEEDINGS BEFORE THE AO JUSTIFIES THAT THE ADDITION OF RS. 70 LAKHS IS NOT SUSTAINABLE IN THE EYES OF LAW AS SOURCE OF INVESTMENT OF RS.70 LAKHS HAD ALREADY BEEN DISCLOSED IN THE RETURN FILED ON 28.09.2014 FOR THE PRESENT AY 2014 - 2015 ALONG - WITH CASH FLOW STATEMENT SUBMITTED IN COURSE OF ASSESSMENT PROCEEDING . HE FURTHER EXPLAINED THAT SEARCH WAS CONDUCTED ON 03.09.201 5 AFTER PASSAGE OF SUBSTANTIAL TIME . LD. COUNSEL ALSO SUBMITTED THAT THE OBSERVATIONS AND CONCLUSION DRAWN BY THE LD. CIT(A) HAVE BEEN BASED ON THE REMAND REPORT WHERE THE AO HAS STATED THAT THE ASSESSEE COMPANY HAS FAILED TO FURNISH THE SOURCE OF PAYMENT OF RS.70 LAKHS BUT FACTS REMAINS THAT SUCH AMOUNT HAD NEVER BEEN PAID BY THE ASSESSEE OVER AND ABOVE THE AMOUNT STATED IN THE REGISTERED SALE DEED AND RATHER IT WAS SPENT ON RENOVATION OF BUILDING AND THEREAFTER ADDED TO THE BOOK VALUE OF THE SAID LAND AND BUILDING. LD. COUNSEL FURTHER SUBMITTED THAT THE SOURCE OF AMOUNT OF RS.70 LAKHS SPENT BY THE ASSESSEE ON RENOVATION WAS GROSS RECEIPTS DISCLOSED BY THE ASSESSEE COMPANY IN THE I.T. RETURN FOR A.Y.2014 - 2015 WHICH COMES TO IT (SS) A NO. 36 - 42 /CTK/201 9 14 RS.30,52,23,808/ - , THEREFORE, THE CONCLUSION ARRIVED AT BY THE LD. CIT(A) BASED ON THE REMAND REPORT WITHOUT ANY INTERPRETATION OF FACTS AND CIRCUMSTANCES AND WITHOUT EXPRESSING HIS INDEPENDENT VIEW POINT IS NOT SUSTAINABLE IN THE EYES OF LAW. 18 . IT WAS ALSO VEHEMENTLY CONTENDED BY THE L D. COUNSEL THAT THE FACT OF INCURRING EXPENDITURE ON RENOVATION CANNOT BE DISPUTED BY THE AUTHORITIES BELOW ON THE BASIS OF SHAM AND MEANINGLESS DOCUMENTS. LD. COUNSEL FURTHER SUBMITTED THAT IN PARAGRAPH 4.3 OF THE FIRST APPELLATE ORDER, THE CIT(A) HAS MIS - DIRECTED HIMSELF WHILE SUSTAINING THE ADDITION AS IN THE SEIZED MATERIAL AH - 55 AS REFLECTED, IN THE ORDER OF THE ASSESSMENT NOWHERE THE FACTS AND FIGURES HAVE BEEN MENTIONED WHICH HAVE BEEN BROUGHT IN PARA 4.3 BY THE CIT(A ) TO TILT THE CASE IN FAVOUR OF T HE REVENUE. 19. LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT THE ADDITION HAS BEEN BASED ON TWO DOCUMENTS I.E. (I) AH - 55 WHICH WAS EXTRACT OF MAIL RECEIVED FROM SHRI RAJENDRA KUMAR SAHOO, THE CHIEF FINANCIAL OFFICER TO DR. MISHRA (IPSAR) AND (II) PAG E 38, WHICH IS A HANDWRITTEN NOTING ON DAIRY. LD. COUNSEL SUBMITTED THAT IN THESE DOCUMENTS NO SPECIFIC DATE OF PAYMENT OF RS.70 LAKHS HAS BEEN WRITTEN AND IT HAS BEEN MENTIONED THAT THIS AMOUNT HAS BEEN PAID AFTERWARDS BUT WHEN IT HAS BEEN PAID IT IS NOT CLEAR, THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN ABSENCE O F ANY OTHER SUSTAINABLE AND ACCEPTABLE IT (SS) A NO. 36 - 42 /CTK/201 9 15 CORROBORATIVE EVIDENCE ESTABLISHING THE PAYMENT OF RS.70 LAKHS OVER AND ABOVE THE CONSIDERATION WRITTEN IN THE REGISTERED SALE DEED CANNOT BE T REATED AS UNEXPLAINED INVESTMENT OF THE ASSESSEE TOWARDS PURCHASE OF LAND AND BUILDING AND, HENCE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE CIT(A) MAY KINDLY BE DELETED. 20 . REPLYING TO THE ABOVE, LD. CITDR REITERATED HIS SUBMISSION DATED 29.11.20 19 AND SUBMITTED THAT GLARING DOCUMENTARY EVIDENCE IN THE FORM OF HANDWRITTEN NOTING (PAGE 38) AND MAIL MESSAGE SENT BY SHRI R.K.SAHOO, CFO OF ASSESSEE TO THE OWNER/DIRECTOR OF IPSAR DR. J.K.MISHRA(AS PER THE SALE DEED OF THE ASSESSEE) (AH - 55) , IT IS AMPLY CLEAR THAT THE ASSESSEE HAS MADE PAYMENT OF RS.70 LAKHS OVER AND ABOVE PAYMENT RECORDED IN THE REGISTERED SALE DEED, THEREFORE, THE AO WAS RIGHT IN MAKING ADDITION ON THE ALLEGATION OF UNEXPLAINED INVESTMENT AND THE CIT(A) WAS ALSO CORRECT IN SUSTAINING T HE SAME. LD. CITDR FURTHER SUBMITTED THAT DURING THE COURSE OF HEARING ON 28.11.2019, THE ASSESSEES REPRESENTATIVE HAS ACCEPTED THAT THE PURCHASE CONSIDERATION OF LAND AND BUILDING PURCHASED FROM IPSAR IS RS.4.95 CRORES, WHICH IS EVIDENT FROM THE AGREEMEN T TO SALE DATED 24.09.2013 AND SALE DEED DATED 08.11.2013. LD. DR ALSO SUBMITTED THAT IN BOTH THESE DOCUMENTS THERE IS NO IOTA OF EVIDENCE THAT ASSESSEE HAS REQUIRED TO SPEND ANY AMOUNT OF RENOVATION OF THE BUILDING AND , AT NO STAGE , INCLUDING BEFORE THE T RIBUNAL , THE ASSESSEE HAS PRODUCED ANY IT (SS) A NO. 36 - 42 /CTK/201 9 16 MEMORANDUM OR AGREEMENT THAT ANY AMOUNT WAS REQUIRED TO BE SPENT AS PART OF THE PURCHASE DEAL TOWARDS RENOVATION. LD. CITDR VEHEMENTLY POINTED OUT THAT I F AT ALL ANY RENOVATION IS TO BE MADE, IT IS THE RESPONSIBILITY OF THE PURCHASER AFTER PURCHASING THE BUILDING AND SUCH RENOVATION HAS NOTHING TO DO WITH THE TRANSACTION OF PURCHASE OF THE PROPERTY. THEREFORE, MENTIONING OF RS.70 LAKHS IN THE MAIL COMMUNICATION AND NOTING IN THE DIARY CLEARLY INDICATES THAT IT WAS UNEX PLAINED INVESTMENT OF THE ASSESSEE TOWARDS PURCHASE OF LAND AND BUILDING WHICH WAS NOT MENTIONED IN THE SALE DEED AND THE AMOUNT WAS PAID OVER AND ABOVE OF THE AMOUNT WHICH WAS WRITTEN IN THE SALE DEED. 21 . IT WAS ALSO THE CONTENTION OF LD. DR THAT IF IT IS A S SUM ED THAT RS.70 LAKHS IS THE PART OF RS.4.95 CRORE WHICH WAS WITHHELD BY THE ASSESSEE AND THE SAME WAS SPENT IN CASH , THEN ALSO THE TOTAL AMOUNT SHOULD HAVE BEEN PAID BY THE CHEQUE/DD TO THE VENDOR SHOULD HAVE BEEN RS. 4.25 CRORE(4.95 CRORE - 0.70 CRORE). THE FACT THAT THE PAYMENT TO THE VENDOR IS RS. 4.95 CRORE BY CHEQUE/DD CLEARLY PROVES BEYOND DOUBT THAT THE TOTAL TRANSACTION ON RECORD WAS RS. 4.95 CRORE AND RS. 70 LAKHS WAS ADDITIONALLY PAID IN CASH OVER AND ABOVE THE CONSIDERATION MENTIONED IN THE REG ISTERED SALE DEED, WHICH IS EVIDENT FROM THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. LD. DR FURTHER SUBMITTED THAT THE MAIL SENT BY THE CFO OF THE ASSESSEE SHRI R.K.SAHOO CONFIRMED THE TOTAL PAYMENT OF 5.65 CRORES WHICH INCLUDES RS.70 LAK HS IN CASH IT (SS) A NO. 36 - 42 /CTK/201 9 17 AND, THEREFORE, IN THE SAID MAIL HE INSISTED FOR REFUND OF EXCESS PAYMENT OF RS.94,750/ - AND THIS AGAIN SUPPORTS FACTUM OF PAYMENT OF RS.70 LAKHS TOWARDS PURCHASE OF LAND AND BUILDING. LD. DR SUBMITTED THAT THE SECOND INCRIMINATING MATERIAL I.E THE NOTING IN THE DIARY (PAGE 38 OF THE ANENXURE - AH - 23) SEIZED FROM THE OFFICE BEARERS OF THE ASSESSEE WHEREIN HANDWRITTEN NOTING CONFIRMS THAT RS.70 LAKHS HAVE BEEN PAID SUBSEQUENT TO THE REGISTRATION OF SALE DEED AND , THUS, TOTAL AMOUNT PAID TOWARDS PUR CHASE OF LAND AND BUILDING COMES TO RS.5.65 CRORES. 22 . CONFRONTING TO THE CONTENTION OF LD . AR, LD. CITDR SUBMITTED THAT IF THE AMOUNT HAS BEEN SPENT ON RENOVATION OF THE BUILDING , THEN THE FIXED ASSETS SCHEDULE AS ON 31.03.2014 SHOWS THAT THE COUNSEL OF THE ASSESSEE INTEND TO PROVE THAT THE IMPUGNED AMOUNT OF RS.70 LAKHS IS PART OF ADDITION MADE TO THE BUILDING IN THE BALANCE SHEET AS ON 30.09.2013 OF RS.62,04,100/ - AND UPTO 31.03.2014 OF RS.1,00,69,345/ - , WHICH SHOWS THAT THE ASSESSEE HAS SPENT TOTAL AMO UNT OF RS.1.63 CRORES TILL 31.03.2014 ON THE BUILDING PURCHASED BY IT FROM IPSAR. THE LD. COUNSEL ALSO SUBMITTED THAT THE MOST IMPORTANT QUESTION ARISES THAT IF THE COST OF RENOVATION WAS RS.1.63 CRORES TILL 31.03.2014 AND THE SAME WAS BEING MADE TO SUIT THE REQUIREMENT OF THE ASSESSEE IN SUCH CASE THERE IS NO QUESTION OF RAISING THE ISSUE OF RENOVATION AT THE TIME OF PURCHASE OF THE LAND AND BUILDING. THEREFORE, THE EXPLANATION OF THE ASSESSEE BEING AFTERTHOUGHT MAY KINDLY BE DISMISSED. IT (SS) A NO. 36 - 42 /CTK/201 9 18 23 . PLACING REJOIN DER TO THE ABOVE, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT DURING THE NEGOTIATION GOING ON BETWEEN SHRI J.K.MISHRA OF IPSAR AND DI RECTOR OF THE ASSESSEE COMPANY AND DIRECTORS OF THE ASSESSEE THE SALE PRICE WAS TO BE DETERMINED BY KEEPING IN VIEW THE ACTU AL PHYSICAL POSITION OF THE BUILDING AND COST OF RENOVATION , WHICH WAS REQUIRED TO MAKE THE BUILDING SUITABLE FOR USE AND COST OF RENOVATION WAS ESTIMATED AT RS.70 LAKHS. KEEPING IN VIEW THE REQUIREMENT TO START A NURSING COLLEGE THEREIN THE SCOPE OF RENOV ATION WAS ENLARGED AND RENOVATION COST WAS ENHANCED TO RS.1.63 CRORES FROM ESTIMATE OF RS.70 LAKHS AND THIS KIND OF ENHANCEMENT IS A NATURAL PROCESS AS THE RENOVATION IS NOT DONE FOR BEAUTIFICATION OF THE BUILDING AND BUT FOR THE PURPOSE OF RUNNING A NURSI NG COLLEGE. LD. COUNSEL ALSO SUBMITTED THAT DURING THE NEGOTIATIONS OF PURCHASE OF BUILDING, COST OF RENOVATION HAS TO BE KEPT IN MIND BY BOTH THE PARTIES TO DETERMINE AND TO ARRIVE TO THE REASONABLE CONSIDERATION TO BE PAID BY THE PURCHASER TO THE SELLER, THEREFORE, FACTS AND FIGURES PERTAINING TO RENOVATION FINDS PLACE IN THE COMMUNICATION . HE FURTHER POINTED OUT THAT IN ABSENCE OF ANY SPECIFIC DATE AND MODE OF PAYMENT OF RS.70 LAKHS, THE ADDITION ON ALLEGATION OF UNEXPLAINED INVESTMENT CANNOT BE SUSTAINE D AGAINST THE ASSESSEE. LD. COUNSEL ALSO SUBMITTED THAT THE AO HAS ALLOWED DEPRECIATION ON THE TOTAL COST OF RENOVATED BUILDING WHICH INCLUDES AMOUNT OF RS.70 LAKHS. THEREFORE, IF ANY FURTHER ADDITION IS MADE ON THE IT (SS) A NO. 36 - 42 /CTK/201 9 19 ALLEGATION OF UNEXPLAINED EXPENDITURE TH AT WOULD AMOUNT TO DOUBLE TAXATION, HENCE, IN THE INTEREST OF JUSTICE, THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) MAY KINDLY BE DELETED. 24. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUBMISSIONS, FIRST OF ALL, WE OBSERVE THAT THE MAIN BASIS FOR MAKING AND CONFIRMING THE ADDITION IS TWO DOCUMENTS VIZ. (I) AH - 55, WHICH IS AN EMAIL FROM CFO SHRI R.K.SAHOO OF ASSESSEE TO DR. J.K.MISHRA OF IPSAR, ,THE SELLER, WHICH WAS EXTRACTED FROM THE COMPUTER OF CFO OF THE ASSESSEE; AND (II) HAND WRITTEN NOTIN G ON PAGE NO.38 OF A DIARY SEIZED DURING THE COURSE OF SEARCH. IN BOTH THESE DOCUMENTS AMOUNT OF RS.70 LAKHS HAS BEEN WRITTEN WITH A SPECIFIC MENTIONING THAT RS.70,00,000/ - HAS BEEN PAID AFTERWARDS . IN BOTH DOCUMENTS THERE IS NO MENTION OF ANY DATE ON WH ICH PAYMENT HAS BEEN MADE AND MODE IN WHICH PAYMENT HAS BEEN MADE. FURTHER EXCEPT THESE DOCUMENT THERE IS NOTHING IN THE HANDS OF THE AUTHORITIES BELOW FOR MAKING AND SUSTAINING THE IMPUGNED ADDITION. 25. FURTHER FROM THE COPIES OF AGREEMENT TO SALE DATED 24.09.2013 AND REGISTERED SALE DEED IN FAVOUR OF THE ASSESSEE ON 08.11.2013, THE SALE CONSIDERATION HAS BEEN WRITTEN AS RS.4.95 CRORES AND STAMP DUTY HAS BEEN PAID THEREON. FURTHER, THE DDIT(INV.) RECORDED STATEMENT OF DR.J.K.MISHRA (IPSAR) , SELLER WHEREI N HE SPECIFICALLY AND CATEGORICALLY DENIED HAVING RECEIVED AN AMOUNT OF RS.70 LAKHS OVER AND ABOVE AS IT (SS) A NO. 36 - 42 /CTK/201 9 20 STATED IN THE REGISTERED SALE DEED. ON BEING ASKED BY THE BENCH, LD.CIT - DR COULD NOT ASSIST THE BENCH AS TO WHETHER ANY AMOUNT HAS BEEN ADDED IN THE CASE OF IPSAR, THE SELLER, FOR WHICH PURPOSE OF CALCULATING THE CAPITAL GAIN ON SALE OF IMPUGNED LAND AND BUILDING OR ANY ACTION HAS BEEN TAKEN IN THE CASE OF SELLER IN THIS REGARD. 26. THE LD. CIT - DR COULD NOT CONTROVERT THE FACTUM THAT IN ADDITION TO SALE CON SIDERATION OF RS.4.95CRORES, THE STAMP DUTY PAID THEREON, THE ASSESSEE HAS ALSO INCURRED EXPENDITURE OF RS.1.63 CRORES ON RENOVATION OF BUILDING DURING F.Y.2013 - 2014 PERTAINING TO PRESENT ASSESSMENT YEAR 2014 - 2015 AND THE AO HAS ALLOWED DEPRECIATION THEREO N WHICH INCLUDES IMPUGNED AMOUNT OF RS.70 LAKHS. KEEPING IN VIEW THE WAY IN WHICH NEGOTIATION FOR PURCHASE AND SALE OF IMMOVABLE PROPERTY IS DONE, WE ARE IN AGREEMENT WITH THE CONTENTION OF LD. AR THAT AT THE TIME OF NEGOTIATION BETWEEN THE SELLER AND PURC HASER, THE COST OF RENOVATION HAS TO BE CONSIDERED FOR ARRIVING TO AN AGREED PRICE ON WHICH DEAL OF SALE OF PROPERTY IS FINALIZED, THEREFORE, MENTIONING OF RS.70 LAKHS IS NOT AN UNNATURAL AND UNWARRANTED. 27. AT THE COST OF REPETITION , WE MAY AGAIN POINT OUT THAT IN ABSENCE OF ANY SPECIFIC DATE OF PAYMENT AND MODE OF PAYMENT OF RS.70 LAKHS BY THE ASSESSEE - PURCHASER TO SELLER IN THE SO - CALLED INCRIMINATING MATERIAL AH - 55 AND PAGE NO.38 OF AH - 23, THERE IS NO OTHER EVIDENCE OR IT (SS) A NO. 36 - 42 /CTK/201 9 21 INCRIMINATING MATERIAL IN THE HA NDS OF AO TO SUPPORT THE ALLEGATION OF UNEXPLAINED INVESTMENT. 28. FURTHER FROM PARA 4.3 OF THE FIRST APPELLATE ORDER, WE OBSERVE THAT LD. CIT(A) WRITES THAT, THE APPELLANT HAS NOT FURNISHED ANY MUTUAL AGREEMENT TO SUPPORT ITS STATEMENT THAT RS.70,00,000/ - WAS WITHHELD BY THE APPELLANT COMPANY . IT IS NOT THE CASE OF THE ASSESSEE THAT THERE WAS ANY MUTUAL AGREEMENT BETWEEN THE ASSESSEE AND THE SELLER REGARDING WITHHOLDING OF RS.70,00,000/ - . OBVIOUSLY, IF THE AMOUNT OF SALE CONSIDERATION WOULD HAVE BEEN DET ERMINED INCLUDING RS.70 LAKHS THEN SUCH KIND OF EXPECTATION OF THE FIRST APPELLATE AUTHORITY COULD HAVE BEEN SATISFIED BY WAY OF MOU OR ANY OTHER WRITTEN AGREEMENT BUT WHEN AT THE TIME OF MAKING AGREEMENT TO SALE THE AMOUNT OF SALE CONSIDERATION WAS DETERM INED BETWEEN THE PARTIES AT RS.4.95 CRORES, THERE WAS NO NEED OF ANY OTHER AGREEMENT OR MOU THAT THE PURCHASER HAS WITHHELD AMOUNT OF RS.70 LAKHS OUT OF THE SALE CONSIDERATION. THE AO HAS NOT TAKEN ANY ACTION AGAINST THE SELLER BY WAY OF ANY MODE OR PROCED URE PROVIDED IN THE ACT AND SHOW - CAUSING HIM AS TO WHY THE AMOUNT OF RS.70 LAKHS SHOULD NOT BE TREATED AS UNEXPLAINED INCOME WHILE DETERMINING THE CAPITAL GAIN ACCRUED TO HIM ON SALE OF LAND AND BUILDING TO THE ASSESSEE THEN THE AO CANNOT MADE ANY ADDITION IN THE HANDS OF THE ASSESSEE ONLY ON THE BASIS OF TWO DOCUMENTS, WHICH DOES IT (SS) A NO. 36 - 42 /CTK/201 9 22 NOT REVEAL ANY DATE AND MODE OF PAYMENT, AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE TOWARDS PURCHASE OF LAND AND BUILDING. 29. KEEPING IN VIEW THE ENTIRE FACTS AND CIR CUMSTANCES AND TOTALITY OF OUR CONCLUSION RECORDED IN THE EARLIER PARAGRAPHS OF THIS ORDER AND AFTER CONSIDERING THE SUBMISSIONS AND CONTENTIONS OF BOTH THE SIDES, WE REACHED TO A LOGICAL CONCLUSION THAT ALTHOUGH THE DEPARTMENT HAS T W O DOCUMENTS IN THEIR H ANDS FOR MAKING ADDITION IN THE HANDS OF THE ASSESSEE BUT WITHOUT ANY OTHER CORROBORATIVE AND SUBSTANTIVE EVIDENCE. AT THE SAME TIME, AS WE HAVE ALREADY OBSERVED THAT BOTH THE DOCUMENTS AS RELIED ON BY THE AUTHORITIES BELOW, CONTAINS MENTIONING OF PAYMENT OF RS.70 LAKHS BUT IT HAS BEEN STATED THEREIN THAT RS.70 LAKHS HAS BEEN PAID AFTERWARDS AND THERE IS NO POSITIVE EVIDENCE OR MATERIAL TO ESTABLISH THAT ON WHICH DATE OR BY WHOM THIS PAYMENT WAS MADE BY THE ASSESSEE OR ON BEHALF OF THE ASSESSEE TO THE SEL LER (IPSAR). THEREFORE, IN ABSENCE OF SUCH SUBSTANTIVE EVIDENCE, WE ARE COMPELLED TO HOLD THAT THERE WAS NO OVER AND ABOVE PAYMENT OF RS.70 LAKHS BY THE ASSESSEE TO THE SELLER. IN THIS SITUATION, WHEN DR. J.K.MISHRA, DIRECTOR OF IPSAR (SELLER) IN HIS STATE MENT BEFORE THE AO CATEGORICALLY DENIED HAVING RECEIVED THE AMOUNT OF RS.70 LAKHS OVER AND ABOVE AND THERE IS NO ACTION AGAINST THE SELLER BY THE DEPARTMENT IN THIS REGARD DISBELIEVING HIS STATEMENT, THUS, THE SOCALLED RECEIVABLE OF OVER AND ABOVE MONEY IS DENIED HAVING RECEIVED THE IMPUGNED AMOUNT. HENCE, IT (SS) A NO. 36 - 42 /CTK/201 9 23 THE ACTION OF AO LOSES ITS LEGS TO STAND ON THE PLATFORM OF JUSTIFIED AND REASONABLE CAUSE FOR MAKING ADDITION. 30. IN VIEW OF THE ABOVE, WE HAVE NO HESITATION TO HOLD THAT NEITHER THE AO NOR THE CIT(A) BY WAY OF CORROBORATIVE AND COGENT EVIDENCE COULD NOT ESTABLISH AND SUBSTANTIATE THAT THE ASSESSEE HAS MADE PAYMENT OF. RS.70 LAKHS OVER AND ABOVE CONSIDERATION OF RS.4,95,00 , 0 00 / - AS HAS BEEN SHOWN IN THE REGISTERED SALE DEED. THEREFORE, NO ADDITION IN THIS REGARD IS CALLED FOR AND, THUS, WE DIRECT THE AO TO DELETE THE ENTIRE ADDITION. ACCORDINGLY, THE GROUND NO. (A) RAISED BY THE ASSESSEE FOR A.Y.2014 - 2015 IS ALLOWED. THUS, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 31 . IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02 / 01 / 20 20 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 02 / 01 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - M/S CUTTACK HOSP ITALS PVT. LTD., SECTOR - 1, CDA, CUTTACK 2. / THE RESPONDENT - ACIT, CENTRAL CIRCLE, CUTTACK 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD F ILE. //TRUE COPY//