Assistant Commissioner of Income-tax, Central Circle - 1, Nashik V. M/s. Asian Food Products Ltd, Nashik

ITSSA 72/PUN/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2910 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 01-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Corroborative evidences; Tax effect
• Section: 153A; 64; 72; 13; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, J UDICIAL M EMBER . / I T (SS) A NO. 64 /PUN/20 17 / ASSESSMENT YEAR : 2014 - 15 M/S. ASIAN FOOD PRODUCTS LTD. PLOT NO.25, TULSI VILLA, PURNAVAD NAGAR, NR. AKASHWANI TOWER, OFF. GANGAPUR ROAD, NASHIK - 422 013. PAN : AAACA8715B ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, NASHIK. / RESPONDENT . / IT (SS) A NO S . 70, 71, 72 & 73/PUN/2017 / ASSESSMENT YEAR S : 2011 - 12 TO 2014 - 15 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, NASHIK. ....... / APPELLANT / V/S. M/S. ASIAN FOOD PRODUCTS LTD. PLOT NO.25, TULSI VILLA, PURNAVAD NAGAR, NR. AKASHWANI TOWER, OFF. GANGAPUR ROAD, NASHIK - 422 013. PAN : AAACA8715B / RESPONDENT A SSESSEE BY : SHRI RAKESH JOSHI REVENUE BY : SHRI DEEPAK GARG 2 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 / DATE OF HEARING : 21 . 0 6 .202 1 / DATE OF PRONOUNCEMENT : 21 . 06 .2021 / ORDER PER BENCH : THE APPEAL PREFERRED BY THE ASSESSEE IN IT(SS)A NO.64/PUN/2017 AND THE APPEALS PREFERRED BY THE REVENUE IN IT(SS)A NOS. 70 TO 73/PUN/2017 EMANATES FROM THE COMMON ORDER OF THE LD. CIT(APPEALS) - 12, PUNE DATED 27.06.2017 FOR THE ASSESSMENT YEARS 2014 - 15 & 2011 - 12 TO 2014 - 15 RESPECTIVELY AS PER THE GROUNDS OF APPEAL ON RECORD. FIRST, WE WOULD TAKE UP ASSESSEES APPEAL IN IT(SS)A NO.64/PUN/2017 FOR THE ASSESSMENT YEAR 2014 - 15 FOR ADJU DICATION. IT(SS)A NO.64/PUN/2017 ( BY ASSESSEE) ASSESSMENT YEAR 2014 - 15 2. IN IT(SS)A NO.64/PUN/2017, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE PROCEEDING UNDER S. 153A OF THE IT ACT, 1961 IS NOT LEGAL AND IS VOID AB INITIO AND THE IMPUGNED ASSESSMENT U/S.153A R/W.143(3) OF THE INCOME - TAX ACT, 1961 IS LIABLE TO BE ANNULLED AS DEPARTM ENT HAS NOT CARRIED OUT SEARCH OPERATIONS OVER THE ASSESSEE AT ITS BUSINESS PLACE AT PLOT NO. 25, TULSI VILLA, PURNAVAD NAGAR, NR. AKASHWANI TOWER, OFF GANGAPUR ROAD, NASHIK 422 013. THEREFORE, IT IS PRAYED TO ANNUL THE ASSESSMENT ORDER, PASSED U/S 153A I N THE CASE OF APPELLANT. 2. THE LEARNED CIT(A) ERRED IN UPHOLDING THE INITIATION OF LEGALLY UNTENABLE PROCEEDINGS U/S 153A AND IN ISSUING LEGALLY UNTENABLE NOTICE U/S 153A IN ABSENCE OF ANY INCRIMINATING MATERIAL OR UNEXPLAINED ASSET FOUND DURING SEARCH ACTION AT 7, THAKKERS, NEAR NEHRU GARDEN, NASHIK 244 001. THEREFORE, IT IS PRAYED TO ANNUL THE ASSESSMENT ORDER, PASSED U/S 153A IN THE CASE OF APPELLANT. 3. THE LEARNED CIT(A) ERRED IN UPHOLDING THE ASSESSMENT MADE U/S 153A, IN SPITE OF THE FACT THAT, T HE ASSESSMENT FOR AY. 2014 - 15 HAD ATTAINED FINALITY, AS ON THE DATE OF SEARCH & NO INCRIMINATING MATERIAL OR UNEXPLAINED ASSET WAS FOUND IN THE SEARCH CONDUCTED AGAINST APPELLANT. THEREFORE, IT IS PRAYED TO CANCEL THE ASSESSMENT ORDER, PASSED U/S 153A IN T HE CASE OF APPELLANT. 3 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 4. IN THE FACTS OF THE CASE, EVIDENCES ON RECORD, SUBMISSIONS MADE & CASE LAW RELIED, THE LEARNED CIT(A) ERRED IN HOLDING THAT, 'ON - MONEY' AGGREGATING TO RS . 11,94,19,700/ - WAS PAID BY ALL THE PURCHASERS OF AGRICULTURAL LAND AT S. NOS . 53/2., 54 & 55 OF SAVARGAON, TAL & DIST : NASHIK & APPELLANT'S SHARE THEREIN AMOUNTED TO RS . 2,58,20,476/ - , GIVING RISE TO THE UNEXPLAINED INVESTMENT LIABLE FOR TAXATION IN THE HANDS OF APPELLANT FOR AY. 2014 - 15 AT RS. 2,58,20,476/ - . THEREFORE, IT IS PRAYE D TO CANCEL THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS . 2,58,20,476/ - . 5. THE LEARNED CIT(A) ERRED IN NOT DIRECTING THE AO. TO ADOPT THE LOSS OF RS . 2,30,564/ - , AS INCOME DECLARED IN THE RETURN FOR COMPUTATION OF ASSESSED INCOME, INSTEAD OF RETURNED INCOME ADOPTED BY THE AO. AT NIL. THEREFORE, IT IS PRAYED TO DIRECT THE AO. TO ADOPT THE INCOME DECLAR ED IN THE RETURN AT LOSS OF RS. 2,30,564/ - , AS AGAINST THE NIL INCOME ADOPTED BY HIM. 6. APPELLANT CRAVES LEAVE TO ADD / AMEND / ALTER ANY GROUNDS OF APPEAL AND / OR PRAYERS BEFORE OR AT THE TIME OF HEARING. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THIS ASSESSEES APPEAL, THE ISSUE IS COVERED BY THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN IT(SS)A NO.65/PUN/2017 FOR THE ASSESSMENT YEAR 2014 - 15 AND IT(SS)A NOS. 67 & 69/PUN/2017 FOR THE ASSESSMENT YEARS 2012 - 13 & 2014 - 15 DATED 19.05 .2021. THE TRIBUNAL HAD OBSERVED VIDE PARA 35 TO 38 OF ITS ORDER THAT THE REVENUE HAD FAILED TO ESTABLISH THAT THE ASSESSEE HAD PAID ANY ON - MONEY OVER AND ABOVE STATED CONSIDERATION OF THE SALE DEED TO THE VENDORS OF THE PROPERTY AT THE TIME OF PURCHASE O F SAVARGAON LAND. 4 . THE DECISIVE ISSUE AS PER THE OBSERVATION OF THE TRIBUNAL THAT THERE CANNOT BE ANY ADDITION ON MERE STATEMENT GIVEN BY THE THIRD PARTY. THE HONBLE SUPREME COURT IN THE CASE OF P.V. KALYANASUNDARAM, 294 ITR 49(SC) IN THE IDENTICAL SE T OF FACTS HAS HELD THAT IN ABSENCE OF ANY CORROBORATIVE EVIDENCES, NO ADDITION CAN BE MADE JUST BASED ON THE STATEMENT OF THIRD PARTY. THE RELEVANT PORTION OF THE TRIBUNALS ORDER IS EXTRACTED HEREIN BELOW FOR THE SAKE OF COMPLETENESS: 4 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 35. FURTHER, WE NOTICE THAT BOTH ASSESSING OFFICER AS WELL AS CIT(A) MISDIRECTED THEMSELVES BY APPLYING PRESUMPTION U/S 132(4A) OF THE ACT. THE PROVISION OF SECTION 132(4A) INCORPORATES THE RULE OF EVIDENCE RELATING TO MATERIAL FOUND DURING COURSE OF SEARCH. ON PLAIN READ ING OF SAID PROVISION, IT IS EVIDENT THAT IT HAS APPLICATION IN THE CASE OF SEARCHED PERSON, IN WHOSE HANDS THE MATERIAL WAS FOUND AND SEIZED. THE PRESUMPTION ENVISAGED UNDER SAID PROVISION CANNOT BE EXTENDED TO ASSESSMENT OF THIRD PARTY. THE CBDT ALSO REC OGNIZED THE PRINCIPLE THAT NO ADDITION CAN BE MADE ON MERE STATEMENT MADE U/S 132(4) WITHOUT BRINGING ANY CORROBORATIVE EVIDENCE. THE CBDT CIRCULAR READS AS UNDER : - ADMISSIONS OF UNDISCLOSED INCOME UNDER COERCION/PRESSURE DURING SEARCH/SURVEY - INSTANC ES/ COMPLAINTS OF UNDUE INFLUENCE/COERCION HAVE COME TO NOTICE OF THE CBDT THAT SOME ASSESSEES WERE COERCED TO ADMIT UNDISCLOSED INCOME DURING SEARCHES/SURVEYS CONDUCTED BY THE DEPARTMENT. IT IS ALSO SEEN THAT MANY SUCH ADMISSIONS ARE RETRACTED IN THE SUBS EQUENT PROCEEDINGS SINCE THE SAME ARE NOT BACKED BY CREDIBLE EVIDENCE. SUCH ACTIONS DEFEAT THE VERY PURPOSE OF SEARCH/SURVEY OPERATIONS AS THEY FAIL TO BRING THE UNDISCLOSED INCOME TO TAX IN A SUSTAINABLE MANNER LEAVE ALONE LEVY OF PENALTY OR LAUNCHING OF PROSECUTION. FURTHER, SUCH ACTIONS SHOW THE DEPARTMENT AS A WHOLE AND OFFICERS CONCERNED IN POOR LIGHT. 2. THE BOARD HAS EMPHASIZED UPON THE NEED TO FOCUS ON GATHERING EVIDENCES DURING SEARCH/ SURVEY AND TO STRICTLY AVOID OBTAINING ADMISSION OF UNDISCLOS ED INCOME UNDER COERCION/UNDUE INFLUENCE. LETTER [F.NO. 286/98/2013 - IT (INV.II)], DATED 18 - 12 - 2014. 36. IN THE PRESENT CASE, THE ADDITIONS ARE MADE MERELY BASED ON STATEMENT OF THIRD PARTIES WITHOUT BRINGING ON RECORD ANY CORROBORATIVE EVIDENCE. NO SUC H ADDITION CAN BE MADE IN THE LIGHT OF ABOVE DISCUSSED LEGAL POSITION. 37. THE HONBLE SUPREME COURT IN THE CASE OF P.V. KALYANASUNDARAM , 294 ITR 49 (SC) IN A CASE INVOLVING THE IDENTICAL FACTS WHEREIN THE VENDORS OF THE PROPERTY ADMITTED ADDITIONAL INCOME IN THE ORIGINAL RETURN OF INCOME AND IT WAS HELD THAT IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE IN THE HANDS OF THE BUYERS, NO ADDIT ION CAN BE MADE. NO DOUBT, THE FACT THAT THE VENDORS HAD ADMITTED ADDITIONAL INCOME ON - MONEY ON SALE OF LAND BEFORE THE SETTLEMENT COMMISSION THOUGH RISES SUSPICIOUS. IPSO FACTO, CANNOT FORM BASIS OF ADDITION IN THE HANDS OF THIRD PERSON IN THE ABSENCE OF ANY INDEPENDENT CORROBORATIVE EVIDENCE. AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. DAULATRAM RAWATMULL, 53 ITR 574 EVEN THE CIRCUMSTANCES RAISES SUSPICION, SUSPICION CANNOT TAKE PLACE OF THE EVIDENCE. THAT APART, THE CONTENTIONS OF THE APP ELLANT I.E. THE ASSESSEE THAT THE VENDORS HAD DECLARED ADDITIONAL INCOME ONLY IN ORDER TO ESCAPE THE RIGOUTS OF THE LAW TO CLAIM THE BENEFITS U/S 54 OF THE ACT REMAINS UNCONTROVERTED. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE FACT THAT THE VENDO RS HAD DISCLOSED ADDITIONAL INCOME ON ACCOUNT OF SALE OF LAND AS ADDITIONAL INCOME BEFORE THE SETTLEMENT COMMISSION CANNOT FORM ANY BASIS FOR THE ADDITION IN THE HANDS OF THE APPELLANT HEREIN. 38. IN THE LIGHT OF THE ABOVE FACTS AND LEGAL POSITION, WE AR E OF THE CONSIDERED OPINION THAT THE DEPARTMENT HAD FAILED TO ESTABLISH THAT THE APPELLANT HAD PAID ANY ON - MONEY OVER AND ABOVE STATED CONSIDERATION OF THE SALE DEED TO THE VENDORS OF THE PROPERTY AT THE TIME OF PURCHASE OF 5 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 SAVARGAON LAND. THEREFORE, NO AD DITION CAN BE MADE ON THE MERE STATEMENT GIVEN BY THE THIRD PARTY. THEREFORE, THE ORDERS OF THE LOWER AUTHORITIES ARE REVERSED, WE DIRECT ASSESSING OFFICER TO DELETE ADDITION OF RS.2,58,20,476/ - FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 5 . THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE AMOUNT INVOLVED ALSO IS SAME FOR THIS YEAR ALSO. THE LD. DR FAIRLY CONCEDED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 6 . IN VIEW OF THE ABOVE DISCUSSION, RESPECTFULLY FOLLOWING THE TRI BUNALS ORDER IN ASSESSEES OWN CASE FOR THE SAME PARITY OF REASONING, WE ALLOW THE APPEAL OF THE ASSESSEE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IN IT(SS)A NO.64/PUN/2017 FOR THE ASSESSMENT YEAR 2014 - 15 IS ALLOWED. IT(SS)A NOS. 70 & 72/ PUN/2017 ( B Y REVENUE) ASSESSMENT YEARS : 2011 - 12 & 2013 - 14 8 . THE LD. D R FOR THE REVENUE SUBMITTED AT THE OUTSET THAT THE APPEALS OF REVENUE ARE LIABLE TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN TERMS OF RECENT CBDT CIRCULAR NO.17/2019 [F NO.279/MISE.142/2007 - ITJ (PT)], DATED 08 - 08 - 2019 READ WITH CIRCULAR NO.3 OF 2018 DATED 11.07.2018 RE VISING THE UPWARD MONETARY LIMITS FOR FILING OF APPEALS IN INCOME TAX CASES BEFORE VARIOUS APPELLATE FORUMS. THE EARLIER CBDT CIRCULAR NO.03/2019 DATED 11.07.2018 FIXED MONETARY LIMIT FOR FILING OF APPEALS BEFORE THE TRIBUNAL AT RS.20 LAKHS. SUCH LIMIT HAS BEEN ENHANCED IN THE RECENT CBDT CIRCULAR DATED 08.08.2019 FROM RS.20 LAKHS TO RS. 50 LAKHS. THUS, THE TAX EFFECT ON THE ADDITION IS LESS THAN RS.50 LAKHS. 9 . THE LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED TO THE SUBMISSIONS PUT FORTH BY THE LD. DR. 6 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 10 . BOTH SIDES HEARD. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF LD. CIT(APPEALS) IN DELETING THE ADDITIONS. UNDISPUTEDLY, THE TAX EFFECT INVOLVED IN THESE APPEALS IS LESS THAN THE MONETARY LIMIT PRESCRIBED BY THE RECENT CBDT CIRCULAR NO.17/2019 [F NO. 279/MISE.142/2007 - ITJ (PT)] DATED 08 - 08 - 2019 READ WITH CIRCULAR NO.3 OF 2018 DATED 11.07.2018 FOR FILING OF APPEALS BEFORE THE TRIBUNAL BY THE DEPARTMENT. THE CBDT VIDE CIRCULAR DATED 08.08.2019 (SUPRA.) HAS AMENDED PARA 3 OF CIRCULAR NO.3 OF 2018 DATED 11 .07.2018 THEREBY ENHANCING MONETARY LIMIT OF TAX EFFECT FROM RS.20 LAKHS TO RS.50 LAKHS FOR FILING APPEALS BY THE DEPARTMENT BEFORE THE TRIBUNAL. THUS, WITHOUT GOING INTO MERIT OF THE ISSUES RAISED IN THE APPEALS, IN VIEW OF THE CBDT CIRCULAR (SUPRA), WE DISMISS THE APPEALS FILED BY THE REVENUE IN IT (SS) A NO S .70/PUN/ 2017 FOR THE ASSESSMENT YEAR 2011 - 12 & IT (SS) A NO. 72/PUN/2017 FOR ASSESSMENT YEAR 2013 - 14 . 11 . BEFORE PARTING, WE CLARIFY HERE THAT THE REVENUE SHALL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RESTORATION OF APPEAL, WITH THE REQUISITE MATERIAL TO SHOW THAT THE APPEAL IS PROTECTED BY THE EXCEPTIONS PRESCRIBED IN PARA 10 OF THE CIRCULAR DATED 11 - 07 - 2018 AND ITS AMENDMENT DATED 20 - 08 - 2018. 12 . IN THE RESULT, APPEALS OF THE REVENUE IN IT( SS)A NO. 70/PUN/2017 & IT(SS)A NO.72/PUN/2017 ARE DISMISSED. IT(SS)A NO S. 71 & 7 3 / PUN/2017 ( BY REVENUE) ASSESSMENT Y EARS : 2012 - 13 & 2014 - 15 13 . IN IT(SS)A NO.71 /PUN/2017 , THE REVENUE HAS RAISED 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.1,56,93,324/ - MADE BY THE AO FOR A.Y.2012 - 13 IN THE CASE OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS THAT THE ADDITION MADE BY THE A O ARE BASED ON THE STRONG CORROBORATIVE EVIDENCES IN THE FORM OF THE SEIZED MATERIALS WITH LOGICAL 7 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 AND JUSTIFIABLE REASONS TO ARRIVE AT THE ADDITION OF RS.1,56,93,324/ - PERTAINING TO THE ASSESSEE IN THE A.Y.2012 - 13 OUT OF THE TOTAL UNDISCLOSED CASH TRANSA CTION WORKED OUT AT RS.65,21,25,992/ - IN RESPECT OF THE LAND DEALING OF THE SAVARGAON PLOTS OF LAND BY THAKKER GROUP. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN REJECTING THE WORKING OF ADDITION MADE BY TH E AO ON THE BASIS OF HIS FINDINGS THAT THE MEMBERS OF KOKANI FAMILY INVOLVED IN SALE TRANSACTION OF SAVARGAON LAND HAVE RECEIVED 50% CONSIDERATION IN CHEQUE AND 50% IN CASH SHOWING UNAC COUNTED CASH AMOUNT OF RS.65,21 ,25,992/ - WHICH IS INCLUDING THE AMOUNT OF RS.11,94,19,700/ - DECLARED BY THE KOKANI GROUP INITIALLY IN THE STATEMENT U/S 132(4) IN THE SEARCH ACTION ON THE PREMISES OF KOKANI GROUP. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 14 . IN IT(SS)A NO.73/PUN/2017, THE REVENUE HAS RAISED 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. 10,06,60,053 / - MADE BY THE AO FOR A.Y.20 14 - 15 IN THE CASE OF THE ASSESSEE WITHOUT APPRECIATIN G THE FACTS THAT THE ADDITION MADE BY THE AO ARE BASED ON THE STRONG CORROBORATIVE EVIDENCES IN THE FORM OF THE SEIZED MATERIALS WITH LOGICAL AND JUSTIFIABLE REASONS TO ARRIVE AT THE ADDITION OF RS. 10,06,60,053 / - PERTAINING TO THE ASSESSEE IN THE A.Y.201 4 - 15 OUT OF THE TOTAL UNDISCLOSED CASH TRANSACTION WORKED OUT AT RS.65,21,25,992/ - IN RESPECT OF THE LAND DEALING OF THE SAVARGAON PLOTS OF LAND BY THAKKER GROUP. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN REJECTING THE WORKING OF ADDITION MADE BY THE AO ON THE BASIS OF HIS FINDINGS THAT THE MEMBERS OF KOKANI FAMILY INVOLVED IN SALE TRANSACTION OF SAVARGAON LAND HAVE RECEIVED 50% CONSIDERATION IN CHEQUE AND 50% IN CASH SHOWING UNAC COUNTED CASH AMOUNT OF RS.6 5,21 ,25,992/ - WHICH IS INCLUDING THE AMOUNT OF RS.11,94,19,700/ - DECLARED BY THE KOKANI GROUP INITIALLY IN THE STATEMENT U/S 132(4) IN THE SEARCH ACTION ON THE PREMISES OF KOKANI GROUP. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 15 . THE LD. DR WITH REGARD TO THESE REVENUES APPEALS SUBMITTED THAT FOR BOTH THESE APPEALS ON THE SAME SET OF FACTS AND CIRCUMSTANCES THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN IT(SS)A NO.65/PUN/2017 FOR THE ASSESSMENT YEAR 2014 - 15 AND IT(SS)A NOS. 67 & 69/PUN/2017 FOR THE ASSESSMENT YEARS 2012 - 13 & 2014 - 15 DATED 19.05.2021 VIDE PARA 53, THE TRIBUNAL HAS HELD AS FOLLOWS : 53. THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE VS. ITO (1981) 131 ITR 597 (SC) HELD THAT THE CAPITA L GAINS IS INTENDED TO TAX THE 8 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 GAINS OF ASSESSEE NOT WHAT AN ASSESSEE MIGHT HAVE GAINED AND WHAT IS NOT GAINED CANNOT BE COMPUTED AS GAIN AND THE ASSESSEE CANNOT FASTENED WITH THE LIABILITY ON A FICTIONAL INCOME. SIMILARLY, THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SHIVAKAMI CO. (P.) LTD. (1986) 159 ITR 71 (SC) HELD THAT UNLESS THERE IS EVIDENCE THAT MORE THAN WHAT WAS STATED WAS RECEIVED, NO HIGHER PRICE CAN BE TAKEN TO BE THE BASIS FOR MAKING ADDITION. IN THE PRESENT CASE, WE DO NOT FIND ANY MATERI AL ON RECORD SUGGESTING THE PAYMENT OF ON MONEY CONSIDERATION AT THE TIME OF PURCHASE OF LAND BY THE RESPONDENT ASSESSEE AND ITS GROUP COMPANIES. THEREFORE, IT CAN BE SAID THAT THE ASSESSING OFFICER HAD FAILED TO BRING ON RECORD ANY RELIABLE EVIDENCE TO PR OVE THAT THE RESPONDENT ASSESSEE HAD MADE INVESTMENT IN PURCHASE OF LANDS OVER AND ABOVE THE STATED CONSIDERATION. THEREFORE, WE DO NOT SEE ANY PERVERSITY IN THE FINDINGS OF THE LD. CIT(A) IN DELETING THE ADDITION BASED ON THE SEIZED MATERIAL. THE FINDINGS GIVEN BY US IN RELATION TO THE APPEAL FILED BY THE ASSESSEE FOR THE SAME YEAR ALSO EQUALLY HOLDS GOOD IN RESPECT OF PRESENT APPEAL AND THEREFORE, WE DO NOT FIND ANY MERIT IN THE APPEAL FILED BY THE REVENUE AND WE DISMISS THE APPEAL. ACCORDINGLY, WE DISMIS S THE APPEAL FILED BY THE REVENUE. 16 . THE LD. DR FAIRLY SUBMITTED THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE. 17 . CONSIDERING THE SAME PARITY OF REASONING, WE DISMISS BOTH THE APPEALS FILED BY THE R EVENUE. 1 8 . IN THE RESULT, APPEALS OF THE REVENUE IN IT(SS)A NO.71/PUN/2017 FOR THE ASSESSMENT YEAR 2012 - 13 AND IT(SS)A NO.73/PUN/2017 FOR THE ASSESSMENT YEAR 2014 - 15 ARE DISMISSED. 19. IN THE COMBINED RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AND APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRO NOUNCED ON 21 ST DAY OF JUNE , 20 2 1 . SD/ - SD/ - INTURI RAMA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 21 ST JUNE , 202 1 SB 9 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 12, PUNE. 4. THE PR. CIT, CENTRAL, NAGPUR. 5. , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, // TRUE COPY // / PRIVATE SECRETARY , / ITAT, PUNE . 10 IT(SS)A NO.64 /PUN/2017 IT(SS)A NOS. 70 TO 73/PUN/2017 DATE 1 DRAFT DICTATED ON 2 1.06 .202 1 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 21 .06 .202 1 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER