ACIT, CC-4, SURAT V. SHRI MAHENDRA B PATEL, SURAT

ITSSA 4/SRT/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1773 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-06-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 27-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY PATEL
• Keywords: Loose papers; Document seized; Period of limitation; Cost of acquisition; Validity of assessment; Documents seized; Capital Gains
• Section: 68; 132; 143(3); 153A; 271D; 271E; 143(2); 192; 139(1); 153C; 20

Judgement Text

आयकर अपीलȣय अͬधकरण,स ु रत Ûयायपीठ,स ु रत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER IT(SS)A Nos. 3 & 4/SRT/2020 & CO No.6 & 7/SRT/2020 (a/o IT(SS)A No.3 and 4/SRT/2020) (AY 2016-17) (Hearing in Virtual Court) Assistant Commissioner of Income-tax, Central Circle-4, Room No.508, 5 th Floor, Aayakar Bhavan, Majura Gate, Surat-395001 Vs Shri Mahendra B Patel 3A-3B, Bien Venue, Acharya Are Marge, Hill Road, Worli, Mumbai-400018 PAN : ABMPP 7047 B Appellant /Revenue Respondent /assessee/ Cross-objector Ǔनधा[ǐरतीकȧओरसे /Assessee by Shri Vijay Patel, Advocate राजèवकȧओरसे /Revenue by Shri H.P. Meena–CIT-DR सुनवाई की तारीख/Date of hearing 20.06.2022 उɮघोषणा कȧ तारȣख/Date of pronouncement 16.08.2022 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by Revenue and Cross Objection (CO) therein by assessee for assessment year 2016-17 are directed against the two separate orders of ld. Commissioner of Income tax (Appeals)-4, Surat [‘CIT(A)’ for short] both dated 21.01.2020, which in turn arise out of assessment order passed by the Assessing Officer under section 143(3) r.w.s IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 2 153Aof the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 28.12.2018 and penalty levied under section 271D of the Act dated 13.09.2019.Facts in both the appeals, IT(SS)A No.03-04/SRT/2020,the Revenue have raised certain common grounds of appeals, and C.O.s filed by the assessee are common except variation of amount. With the consent of the parties both the appeals of Revenue and Cos therein by assessee are clubbed together, heard and are decided by consolidate order to avoid the conflicting decision. For appreciation of fact, the Revenue in IT(SS)A No.03/SRT/2020 has raised the following grounds of appeal:- “1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs.4,14,17,356/- on account of cash receipt on sale of property without appreciating that during the course of search proceeding incriminating document in the form of “Sauda Chithi” depicting the cash transaction was found and seized, where in one of the co sellers (Shri Dharmesh Maganbhai Koshiya) of the ae has signed the said incriminating document. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs.4,14,17,356/- on account of cash receipt on sale of property without appreciating that during the course of search proceeding incriminating document was found and seized, where in the details of cash payments made by the purchasers are recorded. 3. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in holding that “Sauda Chithi” is executed on 02.08.2014 and not on 02.07.2014, as inferred by the A.O. Since, IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 3 the date 02.08.2014 refers to payment date of 34% on 30 days from the execution of “Sauda Chithi”. 4.On the facts and circumstances of the case and in law, the ld. CIT(A) has erred in holding that said “Sauda Chithi” is not a piece of evidence by looking at it in isolation and without considering the fact that. (i) The assessee has offered capital gain on the sale of such 3 pieces of land in his Return of Income sold jointly with Shri Dharmesh M. Koshiya and four others (ii) It was signed by Shri Dharmesh M Koshiya on behalf of sellers, Shri Shantilal K. Suthariya as a boker and Shri Manubyhai Gandabhai Makwana as a buyer. (iii) The final sale deed was executed between the land owners and the purchaser through Shri Manubhai Gandabhai Makwana. 5. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in holding that Annexure A-452, which is a register seized from the premises of K. Star Group does not lead to conclusion that the amount was received by the ae, as the A.O failed to link the assessee as the seller of the land in question, without causing any inquiry u/s 250(4) of the Act. 6. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs.4,14,17,356/- on account of cash receipt on sale of property without appreciating that the purchaser have accepted the cash payments exceeding Rs.33.00 crores for the purchase of land in consideration before Hon'ble Settlement Commission Additional Bench-2, Mumbai. 7. It is, therefore, prayed that the order the Ld. CIT(A)-4, Surat may be set aside and that of the AO may be restored to the above extent.” 2. On receipt of notice of appeal by revenue, the assessee has filed his Cross Objections raising following grounds:- IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 4 “1.That the Ld. CIT(A) erred in law and on the facts of the case in not holding that addition of Rs.41417356 is not sustainable while framing assessment u/s 153A even though no evidence is found from the appellant and on the basis of evidence found from one Mr. Kishor Koshiya belonging to K Star Group on whom search was conducted without following procedure laid down u/s 153C of the Act. 2. That the Ld. CIT(A) erred in law and on the facts of the case in not holding that addition of Rs.41417356 is not sustainable u/s 68 of the Act even though no amount is credited in the books of account of the appellant and even though the AO has considered the amount as additional amount received on sale of land held as long term capital asset. 3. The appellant crave for leave to add, amend, or alter all or any of the grounds of cross objection before or during the course of hearing of this appeal.” 3. Brief facts of the case are that assessee is an individual deriving income from business profession and income from other sources, filed his return of income for assessment year 2016-17on 14.10.2016 declaring income of Rs.17,53,850/-. Subsequently a search action under section 132 of the Act was conducted in the K-Star Group of cases and the assessee was also covered in that search action dated 17.08.2016. The assessee also covered by search action. Consequent upon search, notice under section 153A of the Act was served upon the assessee to file return of income. In response to notice under section 153A, the assessee filed his return of income on 30.11.2018 declaring similar income as declared in his return IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 5 filed originally on 14.10.2016 under section 139(1) of the Act. The Assessing Officer on receipt of return of income, served notice under section 143(2) and proceeded for assessment. During the assessment, the Assessing Officer noted that in the search action, carried out at the premises of K-Star Group, several incriminating documents relating to sale and purchase of various lands were found and seized. The key person of K- Star along with other persons purchased three pieces of land owned by assessee with other various co-owners. The Assessing Officer compiled the details of three pieces of land in the following manner:- Land No.1 SRT/9/CYS/268/2016 Sale consideration reflecting in the deed: Rs.1,35,30,000/- Area of land: 13626 sq.mts. Purchaser Seller Name PAN Name PAN Shri Gagjibha B Koshiya ABNPK6622J Shri Mahendra Bhailal Patel ABMPP7047B Shri Kishorbhai B Koshiya ACPPK2426H Shri Mavjibhai D Koshiya ADIPK5945P Shri Ankit G Koshiya ATWPK4427A Shri Dhaval M Koshiya AKZPK7739B Shri Dharmesh M Koshiya AJLPK1983A Shri Arunbhai M Koshiya AXNPK3996P Smt. Rashmitaben B Patel AMBPP8122D IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 6 Land No.2 SRT/9/CYS/267/2016 Sale consideration reflecting in the deed: Rs.1,35,30,000/- Area of land: 13628 sq.mts. Purchaser Seller Name PAN Name PAN Shri Shardaben B Patel BDJPP9208E Shri Mahendra Bhailal Patel ABMPP7047B Shri Ankit B Patel AXMPP0017H Shri Mavjibhai D Koshiya ADIPK5945P Shri Sagarkumar B Patel BHNPP6072N Shri Dhaval M Koshiya AKZPK7739B Shri Dharmesh M Koshiya AJLPK1983A Shri Arunbhai M Koshiya AXNPK3996P Smt. Rashmitaben B Patel AMBPP8122D Land No.3 SRT/9/CYS/269/2016 Sale consideration reflecting in the deed: Rs.1,80,40,000/- Area of land: 18170 sq.mts. Purchaser Seller Name PAN Name PAN Shri Kishor Bhimji Mavani AFZPM0812N Shri Mahendra Bhailal Patel ABMPP7047B Shri Kishorbhai B Koshiya ACPPK2426H Shri Mavjibhai D Koshiya ADIPK5945P Shri Ankit G Koshiya ATWPK4427A Shri Dhaval M Koshiya AKZPK7739B Shri Dharmesh M Koshiya AJLPK1983A Shri Arunbhai M Koshiya AXNPK3996P Smt. Rashmitaben B Patel AMBPP8122D 4. The total sale consideration in three sale deeds was shown at Rs.4.51 crores, the Assessing Officer prepared the summary of payment of sale consideration in sale deed in the following manner: IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 7 Name of sellers Amt. paid (Rs) as per SRT/9/CYS/268/2 016 Amt. paid (Rs) as per SRT/9/CYS/267/2 016 Amt. paid (Rs) as per SRT/9/CYS/269/ 2016 Total (Rs) % Amt.(Rs) % Amat.(Rs) % Amt.(Rs) Amt.(Rs) Shri Mahendra B Patel 12.22 1653366 12.22 1653366 12.22 2204488 5511220 Shri Mavjibhai D Koshiya 14.6 1983498 14.66 1983498 14.66 2644664 6611660 Shri Dhaval Koshiya 12.30 1664190 12.30 1664190 12.30 2218920 Shri Dharmesh M Koshiya 14.38 1945614 14.38 1945614 14.38 2594152 6485380 Shri Arunbhai M Koshiya 17.11 2314983 17.11 2314983 17.11 308664 7716610 Smt Rashmitab en B Patel 29.33 3968349 29.33 3968349 29.33 5291132 13227830 TOTAL 1000 13530000 100 13530000 100 18040000 45100000 5. From the aforesaid details, the Assessing Officer was of the view that assessee is owner of 12.22% of share in the land and was paid sale consideration of Rs.55,11,212/- on sale of three pieces of land, against which, the assessee has disclosed Long Term Capital Gains by showing full value of consideration at Rs.55,11,212/-. The assessee after taking the benefit of indexation and purchase value offered Long Term Capital Loss of Rs.13,62,063/-. 6. During the course of search action, in the office premises of K- Star Group, document relating on purchase of three pieces of IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 8 land which found and seized as per Annexure A-452. From the seized documents, it is seen that sale deeds of lands were executed by owner and purchaser through Manubhai Gandabhai Makwana, who has been paid an amount of Rs.1.51 crores in the said deals (sale transaction). The payment to Manubhai G Makwana directly paid by the purchaser and no payment made by seller. This fact is mentioned in the “Sauda Chitti” found and seized from the office premises of K-Star Group in the “jpg” images of Asus laptop. The contents of such Annexure are extracted at page-5 of the assessment order. The copy of “Sauda Chitti” is scanned on page-5 in para-7 of the assessment order. The said “Sauda Chitti” prepared on 02.07.2014 and signed by Manubhai Gandabhai Makwana, Dharmeshbhai Maganbhai Koshiya on behalf of seller and Kishorbhai Bhurabhai Koshiya on behalf of purchaser and Shantilal Keshavlal Sutariya as a broker (middleman). 7. The Assessing Officer recorded that as per contents of said “Sauda Chitti”, the sale deed was to be executed only after all the payments made and that sale deed was to be executed at IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 9 Rs.4.51 crores, seller would not remove anything from the property except 4 swings, no Satakhat (agreement to sale) would be prepared and 34% of sale consideration was to be made within 30 days, another 33% by 17.4.2015 and remaining 33% on 02.01.2015. The Assessing Officer further noted that from the contents of “Sauda Chitti”, it is clear that land is purchased by Kishore Bhurabhai Koshiya with a condition that margin money of Rs.1.51 crores would be paid to Manubhai Gandabhai Makwana in three installments. The Assessing Officer further noted that from pages 9-21 of Annexure A-452 seized from the office of K-Star Group contents the complete records of payments by purchasers against the payment of land to various co-owners. The land in question was 45426 square meters, which is 19.10 Vigha. The Assessing Officer recorded that from the evidence, the rate of purchase is Rs.1.92 crores per Vigha, which is written in a coded form as 192. Thus, the total purchase value of said pieces of land is Rs.36.67 crores which is written a coded form as 3667.20 and that a profit of Rs.1.51 crores which is mentioned in coded form as 151.00 was passed on to IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 10 Manubhai Gandabhai Makwana. Thus, the cost of land is Rs.38.182 crores and that an amount of Rs.20 lakh, as a brokerage which is written in a coded form as 20.00. Thus, total land of cost of acquisition was at Rs.38.382 crores. The cheque payment of the said land was Rs.4.510 crores, which is written as coded from as 451.00, which perfectly tallies with the amount featuring on the sale deed. The Assessing Officer was of the view that sale deed has already been executed that there is no doubt that entire payment of Rs.38.382 crores has been made by the purchaser, otherwise sale deed would not have been executed, such observation, the Assessing Officer was of the view that cash payment of Rs.33.872 crores was paid in cash. The Assessing Officer further noted that on Annexure A-452, which was seized from the back office of the purchaser prepared the figure on page 20 of the said Annexure (A-432). The said register contents the details of date-wise unaccounted cash payment. The said Annexure does not contain the details of cheque payment shown in the said sale deed, the only contents of unaccounted cash payment. The Assessing Officer recorded the date, name and source of IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 11 unaccounted cash and figures on pages 7 to 9 and prepared the sale deed about such cash payments by various purchasers in the following manner:- Name F.Y 2014-15 F.Y 2015-16 Total Kishore Koshiya 97500000 105900000 203400000 Bharat Gadhia 22500000 11372000 33872000 Dilip Mavani 37542900 64116000 101658900 8. The Assessing Officer further recorded that the draft of two “Satakhat” of the said pieces of land was also seized. Initially, the “Satakhat” was executed and thereafter the “Sauda Chitti” was prepared. On the basis of such observation, the Assessing Officer took his view that actual cost of three pieces of land was at Rs.38.403 crores against which actual registered shown on the document is at Rs.4.51 crores mentioned in the said sale deed. Accordingly, the difference of the documentary value and actual sale consideration was worked out at Rs.33.893 crores. The assessee was having 12.22% of share; therefore, assessee’s share of cash was worked out at Rs.4.141 crores as undisclosed income was brought to tax under section 68 of the Act. IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 12 9. The Assessing Officer on the basis of addition of cash received of Rs.4.141 crores and presumed that the assessee has violated the provision under section 269SS and is liable for levy of penalty under section 271D of the Act. The Assessing Officer thus initiated penalty under section 271D at the time of passing assessment order on 28.12.2018. The assessing officer made reference to the Joint Commissioner of Income Tax (JCIT) for passing order under section 271D. 10. Aggrieved by the additions made in assessment order, the assessee filed appeal before Ld. CIT(A). Before Ld. CIT(A) the assessee filed detailed written submission. The submission of assessee was recorded on pages 8 to 12 of his order. In the written submission, the assessee submitted that the addition made by Assessing Officer against him (assessee) is not sustainable as no material / relevant material was found from the premises of assessee at the time of search action. It was found at the premises of K-Star Group. The copy of said seized material was never supplied to the assessee. The statement of purchases was not recorded in with regard to such evidence, whether they have admitted to pay such consideration is not IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 13 forthcoming from the assessment order. Even as per the evidence found from K-Star Group, as recorded by Assessing Officer at page-5 of assessment order, which is “Sauda Chitti” revealed that the purchaser is Manubhai Gandabhai Makwana and not the person to whom the assessee has sold the land. The statement of Manubhai Gandabhai Makwana is not recorded. The said pages are not a document but only a photo image in the computer of K-Star Group which cannot partake the character of document. There is no reference of the land in the “Sauda Chitti”, which has been sold by assessee. The said “Sauda Chitti” is dated 02.08.2014 and not dated 02.07.2014 as mentioned by Assessing Officer. If the “Sauda Chitti” is stated to be dated 02.08.2014, then it is not possible that payment in cash was made in July, 2014 as recorded by Assessing Officer. The payment is stated to be made prior to the “Sauda Chitti” itself comes to Rs.5.11 crores. Thus, this fact proved that the “Sauda Chitti” seized & found from K-Star Group is not in respect of land sold by assessee. The “Saud Chitti” is in respect of 19.6 Vigha of land as per conversion matrix 1 Vigha is equal to 1621.34 square meters. Therefore IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 14 19.6 Vigha should translate into 31778.26 square meters. The total land sold by assessee executing three sale deeds is 45426 square meter as noted in the assessment order by Assessing Officer. This fact also proved that the “Sauda Chitti” seized and found from K-Star Group is not in respect of the land sold by assessee. On another page of 20 of Annexure A-452 seized from the K-Star Group as noted in page-6 of the assessment order for making addition is also not relevant. Firstly, the said document was not provided to assessee and said page nowhere refers to the transaction of alleged land sold by the assessee as there is mentioned no “date”. The name of assessee is nowhere mentioned as seller. The statement of said persons from whom such documents was recovered was not recorded nor did he state that the same is in relation to transaction made by assessee or by anyone else. The person in full possession, the document was found has to clarify the nature of such transaction but there is no such statement of such person. Thus, the said page is a dumb document and cannot be relied. The another register of Annexure A-452 seized from K-Star Group referred on pages-7 & 8 of the IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 15 assessment order for making addition is also not relevant. The said document was not provided to assessee. The document nowhere disclosed that the transaction of land sold by assessee and name of assessee as “seller” is not there and no statement of any person stating that register is in relation to the payment by so-called purchaser to the assessee. Amongst the purchaser of land at Survey No.267, none of the purchaser is part of list of persons who have paid alleged money from the purchaser of land. At Survey No.268 only one purchaser name Kishore Koshiya is part of list of persons, who allegedly paid such cash money and other two purchasers have not paid any cash money. From the purchaser of land at Survey No.269 only one of the purchasers namely Shri Bharat Gadhia is part of list of persons who have paid alleged cash money and remaining two purchasers have not paid any cash money. The assessee further explained that Dilip Mavani who has stated to have paid Rs.10.165 crores is not purchaser of any of the property sold by way of three registered sale deeds, which can be verified from the page-3 of the assessment order as the name of purchaser and seller of three documents is tabulated IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 16 at pages 6 & 7 of the assessment order. The said payment shows on pages 6 & 7 of the assessment order cannot be in respect of property sold by assessee. Hence, the said page is a dumb document which cannot be relied for making such huge addition. On the basis of such explanation, the assessee submitted that such pages are dumb documents which cannot be relied for making such addition. The sale deeds were executed at prevailing jantri rate. To support his assessee’s submission the assessee also relied on various case laws. 11. The Ld. CIT(A) after considering the contents of assessment order, the submission of assessee and the seized material as referred by Assessing Officer noted that assessee along with other five co-owners had executed three different sale deeds on 29.03.2016 for a sale of land at Survey Nos. 15, 22, 23/1/b, Block No.26 Khata No.166 at Village Vanakla, Sub-District Choryasi, District Surat admeasuring 45426 square meter. The details of three different sale deeds are recorded by assessing officer in the assessment order. The Assessing Officer has extracted the evidence found in the search action at the premises of K-Star Group in the assessment order. The IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 17 Ld. CIT(A) noted that first such evidence is the “Sauda Chitti” being Annexure A-548, which is photo image found from the computer of K-Star Group. The Ld. CIT(A) on examination of these documents noted that as per said document, purchaser is stated to be Manubhai Gandabhai Makwana; the seller is Dharmeshbhai Maganbhai Koshiya; the rate is Rs.1.92 crores per Vigha with total area of land is 19.60 Vigha (aprox.); the “Sauda Chitti” stated to have been executed on 02.08.2014 and not dated 02.07.2014 as inferred by the Assessing Officer; the signature is that of Manubhai Gandabhai Makwana, as a “purchaser” and Dharmeshbhai Maganbhai Koshiya as “seller” after signature of above referred persons, there is some noting that as per above terms and condition with a profit of Rs.1.51 crores, it is kept by Kishorbhai Koshiya, the same is signed by Manubhai Gandabhai Makwana and other persons, which are not legible. However, there is no further signature of “seller” agreeing. The ld CIT(A further recorded that there is no reference of land by Survey No. or any other description which can co-relate the land belonged to assessee. The purchaser as per the documents executed by the assessee are various IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 18 persons and not only Kishorbhai Koshiya, they include “Patel Family, “Mavani Family” and “Gadhia Family” apart from Shri Kishorbhai Koshiya stated to be purchaser as referred “Sauda Chitti” and no other persons is referred the area does not match with that sold by assessee. “Sauda Chitti” mentioned the land to be 19.6 Vigha as per “Sauda Chitti”, the land must be 31778.26 square meters. The total land sold by three sale deeds is 45426 square meters as recorded by the Assessing Officer. No statement of any person from whose possession of such evidence was recorded or the statement of the person stated to be originally seller or group is recorded to co-relate land mentioned in the “Sauda Chitti” sold by the assessee. On the aforesaid basis, the Ld. CIT(A) concluded that “Sauda Chitti” is not a piece of evidence which can be inferred to be a land sold by assessee so as to make the addition. 12. The Ld. CIT(A) also examined the second document in the form of page 20 of Annexure A-452 seized from the office of K-Star Group. The Ld. CIT(A) on his observation noted that it is same calculation of 19.10 multiple by 192 which makes it 3667.20 and thereafter, there are some other calculation of addition IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 19 and deletion. One of such deletion is “451.00 Cheque” which is considered by the Assessing Officer as official consideration and remaining considered as “unaccounted consideration”. There is no reference on this document about the land is 19.10 mentioned thereon is considered as 19.10 Vigha, however, the area sold by assessee and his group is not 19.10 Vigha. On other paper, the area was considered as 19.60 Vigha. Thus, inference is not corrected or cannot be co-relate with the land sold by assessee. Further there is no reference of Survey No. or any description which make co-relate the land sold by assessee. There is no name of “purchaser” or “seller” or signature of either party. Further the statement of any person from whom such evidence was found & seized is not recorded to co-relate the amount mentioned in the paper referred above. On the basis of such observation, the Ld. CIT(A) took his view that this page seized from K-Star Group is not a piece of evidence which can be inferred to be for sale of land by assessee for making such addition. 13. On third document being Annexure A-452 which was also seized from the premises of K-Star Group, which is not IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 20 extracted by Assessing Officer in the assessment order. However, the Assessing Officer summarized the entry of the said register. The Ld. CIT(A) on his examination noted that the entry in the said register is presumed by Assessing Officer by purchaser to seller to make the addition. The Ld. CIT(A) observed that there is no name of person as “purchaser” or “seller” or any signature of either of them on the said register, no description or reference of Survey No. of the land which can co-relate with the land sold by assessee. The person whose name was mentioned on such document are not party with the sale deeds executed by assessee as one of Dilip Mavani who has stated to have paid Rs. 10.165 crores, is not a purchase in all three sale deeds. The Patel Family who has purchased 13.628 square meters of land is not paid any amount in the entire list. The “Sauda Chitti” stated to have been executed on 02.08.2014 and not on 02.07.2014 as inferred by Assessing Officer. If it is true, there could not have been paid to the assessee between 04.07.2014 and 01.08.2014 which comes to Rs.4.11 crores. The Ld. CIT(A) was of the view that on the basis of examination of evidence, relied by Assessing Officer to IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 21 make such addition, does not lead to connect to the land sold by assessee under different sale deeds. There is no reference of any person who has stated to have been received payment as that of assessee or his agent; the same cannot lead to believe that amount stated to have been paid to the assessee only and that too for sale of land by assessee. The person to answer as to what is the nature of evidence found during the search is the persons from whom such document is found. The statement of such person in relation to such document, much less than all that or seller is not recorded. The ld CIT(A) held that assessing officer simply presumed that the evidence seized & found that as in relation to land sold by assessee. However, he failed the link of assessee as “seller” and to the land in question sold by assessee in the entire exercise of the assessment. 14. The Ld. CIT(A) held that presumption, how so ever strong, does not partake the character of evidence as has been held by various Hon'ble higher courts. Merely some evidence found during the search of third party, addition cannot be made in respect of other person, unless there is direct nexus between IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 22 evidence found and un-rebuttable presumption that the same pertain to such other person. On the basis of the aforesaid conclusion, the Ld. CIT(A) deleted the addition of Rs.4.11 crores. 15. Before ld CIT(A), the assessee also challenged the validity of assessment under section 153A on the ground that evidence was found from the premises of K-Star Group and addition was made without following procedure of section 153C. The Ld. CIT(A) held that once he has deleted the addition under section 68, therefore, such ground is not dealt with. On the other legal ground that Assessing Officer made addition under section 68, even though no amount is credited in the books of account of assessee. The Ld. CIT(A) held that as the addition of section 68 is deleted on detailed examination on merit, therefore, this ground of appeal was also not dealt with. Aggrieved by the order of Ld. CIT(A) the Revenue has filed present appeal before the Tribunal. 16. We have heard the submissions of the learned Commissioner of Income Tax-Departmental Representative (CIT-DR) for the Revenue and the learned Authorized Representative (AR) for IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 23 the assessee and have gone through the orders of authorities below. The Ld. CIT-DR for the Revenue submits that order of Ld. CIT(A) is not acceptable on the merit that the addition was made on the basis of evidence seized and found from the office premises of K-Star Group of Surat. During the search action, of K-Star Group various incriminating documents and evidence were found and seized from their office premises. On the basis of such evidence it was revealed that the assessee along with co-owners has received consideration in cash for sale of three piece of land, which is evident on perusal of Annexure A-452, A-548 and the details on page on 20 of Annexure A-452. The Ld. CIT-DR submits that search action was also conducted on the premises of assessee on 17.08.2016. On the basis of document found & seized and impounded during search and on post search investigation, it was revealed that key person of K-Star Group purchased three pieces of land from assessee and his co-owners. The assessee has 12.22% share in the land and has shown sale consideration of Rs.55,11,220/- only on sale of the entire land. The sale consideration of three sale deeds was shown as IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 24 Rs.4.51 crores. The assessee was having 12.22% share, thus received Rs.55,11,220/- as recorded by Assessing Officer in para-7 of the assessment order. On the page 20 of Annexure A-452 certain entry of cash payment was found, which was summarized by Assessing Officer that total cash payment of Rs.33.89 crores was paid in cash. The assessee was having 12.22%. Thus, the cash payment of share of assessee was worked out at Rs.4.141 crores and was added under section 68 of the Act. The Ld. CIT-DR for the Revenue fully supported the order of Assessing Officer. Ld. CIT-DR submits that Ld. CIT(A) deleted the entire addition without appreciating the fact. 17. The ld CIT-DR for the revenue further submits that Assessing Officer in the statement of fact filed before the Bench has also mentioned that all the purchasers have filed application before Ld. Income-tax Settlement Commission (ITSC) Mumbai, where all of them have accepted that they have made payment in cash of Rs.33.87 crores and that before the settlement application that purchasers have paid tax on undisclosed cash money. On the basis of aforesaid submission made by Ld. CIT- IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 25 DR for the Revenue that the findings of Ld. CIT(A) may be reversed by restoring the order of Assessing Officer. 18. On the other hand, Ld. AR of the assessee supported the order of Ld. CIT(A). The Ld. AR for the assessee submits that Assessing Officer made the entire addition on the basis of mere assumption & presumption and that there is no iota of evidence against the assessee for receiving cash amount against the sale of three pieces of land. The Ld. AR of the assessee submits that Assessing Officer relied upon certain documents which were allegedly seized during search on third party. The Assessing Officer neither supplied the copy of such seized evidence used against the assessee during the assessment nor proved that those documents pertains to the assessee. The Ld. AR of the assessee submits that Assessing Officer nowhere in the assessment order recorded that statement of any person either from the office of K-Star Group or any of the person who had allegedly made the payment of cash was recorded during search action or any post search investigation. The Ld. AR of the assessee submits that there is no corroborative evidence to prove that the documents seized IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 26 relate to or pertains to during the search proceedings of land or related or pertains to assessee. The description of the so- called document seized during the search action does not match with the area of the land sold by the assessee. On such document there is no reference of Survey No. description of property for the name of assessee or his co-owners. The Ld. AR of the assessee submits that it is settled law in absence of corroborative evidence, seized or dumb document which has no relation with the assessee cannot be used against assessee. And that said document was found from the premises of third party; such document was never provided to the assessee. The Ld. AR of the assessee submits that Ld. CIT(A) examined all the document in detailed manner and came to the right conclusion before granting relief to assessee. 19. The Ld. AR of the assessee submits that assessee has filed Cross Objection raising ground against addition made by Assessing Officer, is not sustainable while framing the assessment under section 153A, when no evidence was found from the premises of assessee and that such evidence was found from the premises of K-Star Group on which search was IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 27 conducted. The addition in the case of assessee was made on the basis of evidence found & seized from third party, without following the procedure of section 153C. The Ld. AR of the assessee further submits that no addition under section 68 of the Act is sustainable as no such amount is found credited in the account of assessee. The Assessing Officer presumed that additional amount was received on the sale of land. The assessee has shown Long Term Capital Loss on the basis of sale consideration received by assessee. The Ld. AR of the assessee submits that assessee has raised similar ground of appeal as raised in his Cross Objection. However, Ld. CIT(A) after granting relief to the assessee has not adjudicated such ground of appeal by treating as academic. The Ld. AR of the assessee submits that he has filed written submission in support of such ground of appeal before Ld. CIT(A) and those submission may be considered while considering the grounds raised by him in his Cross Objection. 20. We have considered the rival submissions of both the parties and have gone through the orders of authorities below. The assessing officer made the addition under section 68 of Rs. IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 28 4.414 Crore by taking view that during the search action on K- star group document Annexure A-452, was seized from the back office and on page 20 of the said Annexure the details of date-wise unaccounted cash payment is recorded. The Annexure A-452, does not contain the details of cheques payment shown in the sale deeds executed by the assessee. The Assessing Officer prepared the summary of the said cash payment. The Assessing Officer further held that the draft of two “Satakhat” of the said pieces of land was also seized. Initially, the “Satakhat” was executed and thereafter the “Sauda Chitti” was prepared. The Assessing Officer on the basis of entry on the Sauda Chitti took his view that actual cost of three pieces of land was at Rs.38.403 crores against which actual registered shown on the document is at Rs.4.51 crores mentioned in the said sale deed. Accordingly, the difference of the documentary value and actual sale consideration was worked out at Rs.33.893 crores. The assessee was having 12.22% of share; therefore, assessee’s share of cash was worked out at Rs.4.141 crores as IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 29 undisclosed income was brought to tax under section 68 of the Act. 21. On perusal of assessment order, we find that the assessing officer nowhere recorded whether the statement of any person who had purchased three piece of land from the assessee and his co-owners, was recorded or not. There is no reference in the entire assessment order about statement of any other person to corroborate the fact that the seized document from the premises of K-Star relates or pertains to the transactions of the assessee alone. We could not find any reference in the assessment order about the statement of person from who’s possession such seized documents were recovered. Further, there is no reference in the assessment order if any person from K-star made any discloser of any undisclosed income or undisclosed statement under section 132(4). As recorded by us, the assessee before ld CIT(A) filed detailed written submission, the summarized contents of which we have already recorded in para – (supra). No document or evidence to corroborate that the seized material relates to or pertains to the assessee alone is filed on record. IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 30 22. We find that the ld CIT(A) examined the contents of all three seized documents and given his observation. On examination of first seized document which is “Sauda Chitti” being Annexure A-548, from the computer of K-Star Group, the Ld. CIT(A) held that as of these documents purchaser is stated to be Manubhai Gandabhai Makwana; the seller is Dharmeshbhai Maganbhai Koshiya; the rate is Rs.1.92 crores per Vigha with total area of land is 19.60 Vigha (aprox.); the “Sauda Chitti” stated to have been executed on 02.08.2014 and not dated 02.07.2014 as inferred by the Assessing Officer; the signature is that of Manubhai Gandabhai Makwana, as a “purchaser” and Dharmeshbhai Maganbhai Koshiya as “seller” after signature of above referred persons, there is some noting that as per above terms and condition with a profit of Rs.1.51 crores, it is kept by Kishorbhai Koshiya, the same is signed by Manubhai Gandabhai Makwana and other persons, which are not legible. However, there is no further signature of “seller” agreeing. The ld CIT(A) further held that there is no reference of land by Survey No. or any other description which can co- relate the land belonged to assessee. As per the sale deeds IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 31 executed by the assessee there are various persons who purchased the land and not only Kishorbhai Koshiya, they include “Patel Family, “Mavani Family” and “Gadhia Family” apart from Kishorbhai Koshiya stated to be purchaser as mentioned on the said “Sauda Chitti” and no other persons is mentioned, moreover the area does not match with the land sold by assessee. Further, “Sauda Chitti” mentioned the land to be 19.6 Vigha, thus, land should be 31778.26 square meters. Though, the total land sold by way of three sale deeds is 45426 square meters as assessing officer recorded himself. No statement of any person from whose possession of such evidence was recorded or the statement of the person stated to be originally seller or group is recorded to co-relate land mentioned in the “Sauda Chitti” sold by the assessee. Thus, on first document the Ld. CIT(A) concluded that “Sauda Chitti” is not a piece of evidence which can be inferred to be a land sold by assessee so as to make the addition. 23. On examination of second document seized in the form of Annexure A-452 (page 20 is relevant) from the office of K-Star Group, the Ld. CIT(A) held that it is some calculation of 19.10 IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 32 multiple by 192 which makes it 3667.20 and thereafter, there are some other calculation of addition and deletion. One of such deletion is “451.00 Cheque” which is considered by the assessing officer as sale consideration shown on the sale deeds, and remaining considered as “unaccounted consideration”. The ld CIT(A) held that there is no reference on this document about the land is 19.10 mentioned thereon is considered as 19.10 Vigha, however, the area sold by assessee and his group is not 19.10 Vigha. On other paper, the area was considered as 19.60 Vigha. Thus, inference is not corrected or cannot be co-relate with the land sold by assessee. Further there is no reference of Survey No. or any description which make co-relate the land sold by assessee. There is no name of “purchaser” or “seller” or signature of either party. Further the statement of any person from whom such evidence was found & seized is not recorded to co-relate the amount mentioned in the paper referred above. On the basis of such observation, the Ld. CIT(A) held that this page is also seized from K-Star Group, is not a piece of evidence IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 33 which can be inferred to be for sale of land by assessee for making such addition. 24. On third document being Annexure A-452 which was also seized from the premises of K-Star Group, which is not extracted by Assessing Officer in the assessment order, though the entry of the said register is summarized. The Ld. CIT(A) held that on his examination he noted that the entry in the said register is presumed by assessing officer as payment by purchaser to seller to make the impugned addition. The Ld. CIT(A) held that there is no name of person as “purchaser” or “seller” or any signature of either of them on the said register, no description or reference of Survey No. of the land which can co-relate with the land sold by assessee. Further, the person whose name was mentioned on such document are not party with the sale deeds executed by assessee as one of Dilip Mavani who has stated to have paid Rs. 10.165 crores, is not a purchaser in all three sale deeds. The Patel Family who has purchased 13,628 square meters of land is not to have paid any amount in the entire list. The “Sauda Chitti” stated to have been executed on 02.08.2014 and not on 02.07.2014 as IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 34 inferred by assessing officer. If it is true, there could not have been paid to the assessee between 04.07.2014 and 01.08.2014 which comes to Rs.4.11 crores. The Ld. CIT(A) was of the view that on the basis of examination of evidence, relied by Assessing Officer to make such addition, does not lead to connect to the land sold by assessee by way of three sale deeds. The ld CIT(A) also held that there is no reference of any person who has stated to have been received payment as that of assessee or his agent; the same cannot lead to believe that amount stated to have been paid to the assessee only and that too for sale of land by assessee. The person to answer as to what is the nature of evidence found during the search is the persons from whom such document is found. The statement of such person in relation to such document, much less than all that or seller is not recorded. The ld CIT(A) finally concluded that assessing officer simply presumed that the evidence seized & found that as in relation to land sold by assessee. However, the assessing officer missed the link of assessee as “seller” and to the land in question sold by assessee in the entire exercise of the assessment. IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 35 25. We find that the entire addition is based on the mere guise work of the assessing officer. We are in full agreement with the finding of the ld CIT(A) that presumption, how so ever strong, cannot not partake the character of evidence The seized document itself is not admissible unless it is corroborated by bringing any the other oral or documentary evidence on record. None of the person mentioned in the seized documents was examined either under section 132(4) or under section 131. There is no such reference that any attempted was made either during the search action, post search investigation or during the assessment. Further there is no reference, if any similar addition is made against any other co-owners or not. 26. Before, us the ld CIT-DR for the revenue submitted that the purchaser made application before ITSC Mumbai and that they have admitted about undisclosed investment in the land. No such evidence is filed before us about admitting the undisclosed investment by the purchaser. Even otherwise, there is no such finding in the assessment order by the assessing officer about making addition of the similar or addition of equal amount at the hands of the purchaser, IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 36 therefore, it amount to improvement of the case at this stage which is not legally permissible at this stage. However, we may make it clear that our observation and finding is based on the material available on record in the present case. So it may not be treated as precedent in any other case, as none of the party has brought to our notice, if the appeal of any related party covered or assessed as a result of impugned search. With these additional observation, we affirm the order of ld CIT(A). 27. So far as one of the Grounds in the CO of assessee is concerned, which relates the legal objection that no such sums were credited in the books of assessee and no addition under section 68 of such alleged cash amount can be made. The ld CIT(A) in his order held that once the addition is deleted on merit, such grounds of appeal was not adjudicated. We have also noted that the assessing officer made addition under section under 68, which is not permissible under law as such amount is not credited in the accounts of assessee rather it was added on the basis of presumption drawn on the basis of document seized from third party/ purchaser. The assessee has offered long term capital loss in his return, which is not IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 37 disturbed by the assessing officer. Even otherwise, gain if any was only on account of sale of long term capital asset, so additions if any would have been only of capital gain. Thus, the assessee also succeeded on this ground. 28. Now adverting to the other ground in the CO, which relates to the validity of assessment order, as we have already dismissed the appeal of the revenue in upholding the order of ld CIT(A) in deleting the addition on merit, therefore, adjudication on the ground No.1 of C.O. have become academic and dismissed being infructuous. 29. In the result, the grounds of appeal raised by the assessee are dismissed and Cross Objection of assessee is partly allowed. IT(SS)A No.04/SRT/2020 (penalty levied under section 271D) With CO No.07/Srt/2020 30. The revenue has raised following grounds of appeals:- “1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the penalty of rs.1,18,66,598/- levied u/s 271D of the I.T. Act by relying on its appellate order no. ITBA Appeal no. CIT(A), Surat-4/10065/2019-20, dated 21.1.2020 without appreciating that during the course of search proceeding incriminating document in the form of “Sauida Chithi” depicting the cash transaction was found and seized, where in one of the co- IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 38 sellers (Shri Dharmesh Maganbhai Koshiya) of the ae has signed the said incriminating document. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the penalty of Rs.1,18,66,598/- levied u/s 271D of the I.T. Act by relying on its appellate order no. ITBA Appeal no. CIT(A), Surat-4/0065/2019-20, dated 21.-1.2020 without appreciating that during the course of search proceeding incriminating document was found and seized, where in the details of cash payments made by the purchasers are recorded. 3. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the penalty of rs.1,18,66,598/- levied u/s 271D of the I.T. Act by relying on its appellate order no. ITBA Appeal no. CIT(A), Surat-4/10065/2019-20,dated21.01.2020 without appreciating that the purchaser have accepted the cash payments exceeding Rs.33.00 crores for the purchase of land in consideration before Hon'ble Settlement Commission, Additional Bench-2, Mumbai. 4. It is, therefore, prayed that the order the Ld. CIT(A)-4,Surat may be set aside and that of the AO may be restored to the above extent.” 31. The assessee has raised following grounds of appeal in its Cross Objection; “1. That the Ld. CIT(A) erred in law and on the facts of the case in not holding that the order levying penalty u/s 271D is beyond the period of limitation prescribed u/s 275 of the Act. IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 39 2. That the Ld. CIT(A) erred in law and on the facts of the case in not holding that penalty u/s 271D is not justified as the amount is taxed as unexplained cash credit u/s 68 and not as “specified sum” as prescribed u/s 269SS of the Act.” 32. As recorded above, the Assessing Officer while passing the assessment order under section 143(3) r.w.s. 153A on 28.12.2018 made a reference for levying penalty under section 271D. The Assessing Officer / JCIT on receipt of such reference issued show cause notice dated 25.03.2019 under section 269SS r.w.s 271D of the Act. The assessee filed his reply dated 02.04.2019. The Assessing Officer / JCIT recorded that in the reply, assessee has stated that he has filed appeal in the quantum assessment before Ld. CIT(A), accordingly prayed to keep the penalty proceeding in abeyance till the disposal of appeal. The Assessing Officer / JCIT was of the view that penalty under section 271D and 271E are independent of the assessment and that period of limitation is not dependent on the pendency of appeal as per under section 275(1)(a). The Assessing Officer / JCIT further noted that he has given one more opportunity to assessee. The assessee filed his reply through learned advocate, Deepak Shah. The IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 40 Assessing Officer / JCIT after referring the contents of the assessment order in para-4 of his order recorded that assessee filed reply on 15.05.2019. In reply, assessee stated that whether the alleged amount in cash is received or not is the subject-matter of the appeal. The assessee also stated that addition is made on the basis of seized material found in third person and not from the assessee. The assessee never stated that he has received such specified sum neither in the sale document nor the purchaser stated about such cash payment without deciding, whether such sum is in violation of section 269SS as it can be premature to decide the assessee has violated the said section. In without prejudice submission, the assessee stated that he has sold certain land by executing three sale deeds in respect of different Survey numbers and the total sale consideration was only Rs.4.51 crores. The assessee has 12.22% in the share in the land and he declared Rs.55.11 lakhs as his part of consideration and offered capital gains. The assessee reiterated that document relied by Assessing Officer / JCIT was never found & seized from him. Such copy of seized document was never provided to him IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 41 before making such addition and it does not bear the signature of assessee. The assessee also relied on the decision of Hon'ble Supreme Court in the case of Common Cause (A registered Society) Vs Union of India 394 ITR 220 (SC), wherein it was held that loose sheet of paper are wholly irrelevant as evidence being not admissible under section 34 so as to constitute evidence with respect to transaction mentioned therein being no evidentiary value. 33. The Assessing Officer / JCIT not accepted the explanation furnished by assessee and held that the evidence found & seized during the search action shows that actual cost of three pieces of land was at Rs.38.40 crores as against the sale consideration shown on the registered document at Rs.4.51 crores only. Therefore, the difference between the documents valued and actual sale consideration has been received by assessee along with his co-owners. The Assessing Officer / JCIT further noted that from the details of cash payment, the assessee and his co-owners have received cash of Rs.9.710 crores starting from 02.06.2015 to 29.02.2016. The payment received in cash on sale of immovable property in excess of IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 42 Rs.20,000/- after first date of June, 2015 violates the provision of section 269SS. In the present case, sellers (assessee and other co-owners) received amount of Rs.9.7104 crores after cutoff date, the assessee having 12.22% share out of total cash received of Rs.9.710 crores which was worked out at Rs.1.186 crores received in cash. The Assessing Officer / JCIT accordingly levied the penalty of Rs.1.186 crores vide order dated 13.09.2019. 34. Aggrieved by the penalty levied under section 271D the assessee filed appeal before Ld. CIT(A). Before Ld. CIT(A) the assessee raised two fold submissions in his grounds of appeal. In first contention, the assessee submitted that penalty order was passed beyond the period of limitation provided under section 275(1)(a) and on merit, the assessee contended that when the said sum added has been added under section 68 and is not satisfied sum within the meaning of 269SS no penalty can be levied. 35. The ld. CIT(A) after considering the submission of the assessee held that he has already held that the assessee cannot be said to have received any sum over and above mentioned in the IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 43 sale deeds. The additions of Rs. 4.141 Crore was deleted. Consequently it was held that the assessee has not received any sum in violation of section 269SS, therefore, the penalty was also deleted. On the legal issue about the period of limitation, Ld. CIT(A) held that period of six months from the end of month in which penalty was initiated has expired on 30.06.2019, as penalty was initiated in the assessment order passed on 28.12.2018. Thus, the impugned order of penalty was passed on 13.09.2019, is clearly time barred as per section 275(1)(c) of the Act. Thus, the appeal of assessee was allowed on both counts. Further aggrieved Revenue has filed present appeal before the Tribunal. 36. We have heard the submissions of ld. CIT-DR for the Revenue and Ld. AR for the assessee and have gone through the case records carefully. The ld. CIT-DR for the Revenue submits that assessee has received a sum of Rs.4.141 crores in cash in violation of section 269SS. The assessing officer made additions on the basis of evidence found during search on K- Star Group. The Assessing Officer made reference to the JCIT for levying penalty under section 271D. The JCIT initiated IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 44 penalty under section 271D as the assessee has violated the provision of section 269SS. The penalty order was passed within period of six month from the date of issuing notice under section 269SS, which is well within time. The Ld. CIT- DR prayed before the Bench for restoring the order of penalty levied under section 271D. 37. On the other hand, Ld. AR for the assessee submits that addition in quantum assessment has already been deleted by Ld. CIT(A) consequently the penalty order will not survive. The Ld. AR for the assessee submits that there is no cash entry in the books of account or sum shown in the books of assessee. Therefore there is no ground for Assessing Officer / JCIT to levy such penalty. Even otherwise the penalty order was passed beyond the period of six month as prescribed under section 275(1)(c). 38. We have considered the rival submission of both the parties and have gone through the order of authorities below. We find that while considering the appeal of Revenue in quantum assessment, we have already affirmed the order passed by Ld. CIT(A), in affirming the fact that there is no corroborative IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 45 evidence that the assessee has received any sum over and above, consideration shown in registered sale deeds. Once the Ld. CIT(A) deleted / quashed the penalty under section 271D, by taking view that once the addition has been deleted that assessee has not received any sum in cash on sale of lands therefore there is no violation of provision of section 269SS of the Act. Considering the fact that we have already affirmed the order of Ld. CIT(A), therefore, we also affirm the order of Ld. CIT(A) in penalty proceedings as well, in deleting penalty on first count. 39. So far as granting the relief to the assessee on the period of limitation is concerned, we find that the assessee has already got relief on merit, therefore, adjudication on the issue of limitation in passing the penalty order beyond limitation period has become academic. In the result, appeal of the revenue is dismissed and the CO filed by the assessee is also dismissed as infructuous. 40. In combine result, both the appeal of the Revenue are dismissed and that of assessee’s C.O.No.6 is partly allowed IT(SS)A Nos.03-04/SRT/2020 & CO No.06-07/SRT/2020 (A.Y.16-17)Sh. Mahendra B Patel 46 and CO No.7/SRT/2020 is dismissed. A copy of the instant common order be placed in the respective case file(s). Order pronounced in open Court on 16/08/2022 and result was also placed on the notice board. Sd/- Sd/- (लेखा सद᭭य/Dr ARJUN LAL SAINI) (᭠याियक सद᭭यPAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER स ू रत /Surat, Dated: 16/08/2022 Dkp. Outsourcing Sr.P.S. Copy to: 1. Appellant- 2. Respondent- 3. CIT(A)-2, Surat 4. CIT 5. DR 6. Guard File True copy/ By order // True Copy // Sr.P.S/P.S /Assistant Registrar, ITAT, Surat copy/