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Assessee by Sh. Kiran K. Shah –CA Revenue by Ms. Anupma Singla – Sr.DR Date of hearing 18.06.2021 Date of pronouncement 18.06.2021 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by Revenue is directed against the order of learned Commissioner of Income Tax (Appeals)-2, hereinafter referred as “ld. CIT(A)” Surat dated 14.05.2019 for the assessment year (AY) 2008-09. The Revenue has raised the following grounds of appeal:
1. Whether on the facts and circumstances of the case and as per law, the Ld. CIT(A) was justified in deleting the addition of Rs.1,69,62,031/- made by the AO on account of unexplained investment in the land despite the facts that the addition was made on the basis of concrete evidences found & seized during the Search carried out on the premise of one of the seller namely Shri Pitamber B. Runchandani ?
2. Whether on the facts and circumstances of the case and as per law, the Ld. CIT(A) was justified in deleting the addition by treating the seized Shri Govindbhai Savjibhai Patel (AY-2008-09 papers as ‘Dump Paper’ and also the denial of application of Section 132(4A) of the Act?
3. Whether on the facts and circumstances of the case and as per law, the Ld. CIT(A) was justified in deletion of the addition made by the Assessing Officer without appreciating the facts that the part of entries on seized papers are tallied with the figures shown in registered sale deed ?
4. It is, therefore, prayed that the order of the Ld. CIT(A) may be set aside and that of Assessing Officer may be restored to the above extent.
2. At the outset of hearing, the ld. Authorized Representative (AR) of the assessee submits that the grounds of appeal raised by Revenue are covered by the decision of Tribunal in assessee’s co-owners case in to 388, 396/AHD/2017, ITA No. 2220 to 2222 & 2324/AHD/2016, dated 25.10.2019. The ld. AR of the assessee submits that similar additions on account of unexplained investment in land bearing S. No. 104, Magdalla, Surat were made by Assessing Officer (AO) in other co-owners case. On appeal before the ld. CIT(A), the addition in all cases were deleted. The Revenue filed appeal before the Tribunal and in all aforesaid cases the order of ld. CIT(A) was upheld. The ld. AR of the assessee submits that there is no variation in the fact, the assessee is one of the co-owner being having 1/9th share in the said piece of land. The ld. AR of assessee furnished the copy of Tribunal’s order dated 25.10.2019.
3. On the other hand, the ld. Departmental Representative (DR) for the Revenue after going through the grounds of appeal and the order of Shri Govindbhai Savjibhai Patel (AY-2008-09 Tribunal in assessee’s co-owners case submits that he strongly relied upon the order of Assessing Officer (AO).
We have considered the rival submission of both the parties and have gone through the orders of the lower authorities. We have seen that at the time of passing the assessment order the assessing officer made addition of Rs. 1.69 Crore on account of unexplained investment. The ld CIT(A) deleted the additions by taking view that the conclusion drawn by the assessing officer unrealistic and falls beyond scope of probability. We further find that similar additions of equallant amount in each of co- owners were made and in all case the additions were deleted by ld CIT(A). And of further appeal before the Tribunal in all cases the order of ld CIT(A) was upheld. Thus, in our view, the grounds of appeal
raised by Revenue is covered by the decision of Tribunal in assessee’s co-owners case decided by Tribunal vide order dated 25.010.2019 (supra). For completeness of this order, the relevant part of the order of Tribunal is extracted below:
6. On appraisal of the above said finding, we noticed that the search and seizure action was taken on the premises of Shri Pitamber B. Ruchandani where from some paper found and seized. Shri Pitamber B. Ruchandani was one of the co-sellers. The loose papers were marked at page no. 117 to 119. The statement of the Pitamber B. Ruchandani was recorded in which he denied about the execution of the said piece of papers. However, he admitted that the hand-writing of the paper was of Shri Arjundas Rupchandani his brother who had died. He stated that he received an Shri Govindbhai Savjibhai Patel (AY-2008-09 amount in accordance with the sale-deed through cheques. The statement of another co-owner Shri Mahesh G. Patel was also one and the same. The assessee and other 9 purchasers nowhere cross-examined the co-owners. The documents is not signed by any party i.e. buyers and seller. The documents speaks no date of execution, the documents were also contained the brokerage which nowhere claimed by the seller as well as buyers. The documents also speaks about the divided of purchasers amount @ 25% whereas the seller are only two. The loose papers also speak about the property at R.S No. 105 which was not the part of the transaction. All the circumstances nowhere speak about the cogent and convincing reasons to raise the addition on the part of the purchasers. Moreover the document was not found in possession of the purchasers, therefore, the presumption raised in view of Section 132(4A) of the Act becomes non-applicable. We also find that the CIT(A) has sought the remand report from the AO which nowhere clearly speaks about the sale of land is a very high amount as mentioned in the impounded papers. Remand report speaks that the seller nowhere admitted any on money transaction even the documents were not executed by them also. The report obtained from the revenue office also nowhere speaks so high rate as mentioned in the impounded loose papers. The English version of the jantry is also hereby reproduced as under:- “The appellant urges that these are jantry rates of area of Magdalla after 18.04.2011 which is not relevant for transactions in F.Y.2007-08. English version of jantry records Deputy Collector office, Valuation of Stamp Duty Office Surat Patrak No.1, (Revenue Area) District Surat Taluka Choryasi Area Magdalla Rate of stamp duty valuation of land from 01.04.1999 Sr. No R S No Description of Area Rate of land per sq Remarks mtr 48 80 & 81 Agricultural 298/- 49 82 to 84 Other than Agricultural 1190.0 50 85 & 86 Agricultural 298/- Shri Govindbhai Savjibhai Patel (AY-2008-09 51 87 Other tan Agricultural 1190.0 52 88 Agricultural 298/- 53 89 Other than Agricultural 1190/- 54 90 & 91 Agricultural 298/- 55 92 to 102 Agricultural 119/- 56 103 to 105 GIDC Reservation 295/- 57 106 ONGC Acquire 27/29 58 107 & 108 ONGC Acquire 12/53 59 109 Agricultural 8/67 60 110 Agricultural 8/68 Jantry1.04.1999 was revised by 50% from dated 09.02.2007 Jantry of 01.04.1999 was revised by 57.50% from dated 01.04.2007 Village Namuna No.6 Hak Patrak District Surat Taluka Majura Moje Magdalla Nondh no. Date Details of noting Concerned Earlier Endorsement of the officer and Mode of change survey/blo disqualifie sign/date and name and ck no. and d nondh designation sub part no./date and khata no. 2205\11.09.2012 BY Rectification order 85 02 (457) Certified by order of Hon’ble order Mamlatdar City Taluka Reg No. The Appellant Shri Hitendrabhai 1307/12 dt 11.09.2012. Section 135 Dhameliya of Village Magdalla D verified by serving of notice by Taluka City Surat has filed an regd AD certified application to rectify on the base of opinion of Mamlatdhar Shri (S C Gamit) City Taluka no Circle Officer JDK./Magdalla/amendment/Reg No. 1307/12 to 11.09.2012 Order Othwa City Taluka Surat 01.01.2013 On the base of index dt 02.06.2011 the amendment Nondh no. 2109 is made and following persons are deleted. Labhuben Janyantibhai Jalwantbhai Jayantilal Shantaben Danabhai Paresh Danabhai Alphaben Pareshbhai Dhansukh Kanjibhai Shri Govindbhai Savjibhai Patel (AY-2008-09 Suresh Laljibhai Suresh Laljibhai Govindbhai Savjibhai This is being noted on the base of order of Mamlatdhar Shri City Taluka Surat and copy of 7/12 nakat.
Upto 01.04.2008 (Magdalla)
Zone Rate of developed Land + Construction per sq meter Rate of industrial Rate of agricultural open land per sq open land per sq mtr land per sq mtr. meter 41/1 8000 12000 13200 14000 8000 3000 2400 Desciption R S No. 16 to 83 and all other plots include in Zone boundary except government plots. Village namuna No. 6 Hak Patrak District Surat Taluka Majura Moje Magdalla Nondh no Details of noting Concerned Earlier Endorsement Date Mode survey/block no. disqualified of the officer of change and sub part and nondh no./ and sign/date khata No. date and name and designation 2109 Sale of non agricultural land by regd sale Certified On the deed. base of application 02.06.201 along with 7/12 The non agricultural land as mentioned in S nakal, 8-A indexed 1 Sell No. and area hector 0-83-00 sq meters in copy of registered the next column is in the name of persons sale deed and the viz; Labhuben Jayantibhai, Jalwant affidavit of seller, it Jayantihai, Shantaben Danabhai, Paresh is certified after Danabhai, Alphaben Pershbhai, verification by Dhansukhbhai, Kanjibai, Suresh Laljibhai service of notice by Givindbhai Svjibhai and Ahok Mohanbhai. regd AD u/s 135D The said land TPS No. 31 F P No. 62/2/2 bearing area 5395 sq meters is converted Certified (TN for commercial purpose and non- Pachhigar) Oficer agricultural has been sold to Veer Athwa\City Taluka Developers by his partner Hitendra Surat Dahyabai Dhameliya for Rs.47476000/- 13.10.2011 Rupees four crores seventy four lacs seventy six thousands only) The appellat has filed copy of 7/12 nakal, 8-A No.6 patrak, index and affidavit for noting by the seller in the Shri Govindbhai Savjibhai Patel (AY-2008-09 final plot bio.62/2/22 area 5395 sq meters.