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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: SH. LALIET KUMAR & DR. M. L. MEENA
ORDER Per Laliet Kumar, J.M. This appeal filed by the Revenue and Cross Objection filed by the assessee is directed against the order dated 08.12.2017 passed by the Ld. Commissioner of Income Tax (Appeals)-5, Ludhiana in respect of A.Y. 2009-10.
2. The Revenue has raised the following grounds of appeal:
“1. Whether on facts and in circumstances of the case, the Ld. CIT(A) is correct in deleting the addition of Rs.3,91,71,875/- made u/s 69B of the Income Tax Act, 1961 ignoring the content of the seized document.
2. Whether on the facts and circumstances of the case, the Ld. CIT(A) is right in allowing relief to the assessee when seized document clearly indicates that the rate recorded in the registered sale deed was much lower than the rate mentioned in the agreement seized.
3. The appellant craves leave to add or amend the grounds of appeal on or before is heard and disposed off.”
3. The assessee has raised the following grounds of cross objections:
1. That the Id. CIT(A) has grossly misdirected himself in law and in facts, to reject the following legal grounds, having direct bearing on the validity of assumption of jurisdiction in this case and comprehensively argued before him, in a most casual, cryptic and perverse manner: (i) That the present proceedings, as admitted by the AO himself; having been initiated following seizure of an agreement in the search of PISCO Group, having direct bearing on assessee, then the jurisdiction could be invoked only under section 153C and not u/s.148. Thus, the order under appeal is not sustainable being illegal on this premise.
(ii) That the Id. ACIT has grossly erred in facts and in law, in assuming jurisdiction in this case by invoking the provisions of section 147/148 and therefore, the impugned order, passed in consequence thereof, is void ab initio.
(iii) That the ACIT Circle, Hoshiarpur, having already issued notice u/s.148 on 26.03.2012, thereby regularizing the revised return filed by assessee on 30.9.2011 offering additional investment of Rs. 69,81,010/- made in the same very plot, issue of another notice u/s.148 dated 22.02.2015 by ACIT CC-I, on the same very issue, was wholly illegal and unwarranted.
(iv) That the Id. ACIT has wrongly held that the notice earlier issued u/s.148 by ACIT Circle Hoshiarpur, was based on entirely different facts and circumstances.
(v) That the statutory notice u/s. 143(2) not having been served on assessee within six months of compliance made against notice dated u/s. 148, the order under appeal is bad in law, being without jurisdiction.
(vi) That when assessee had purchased the land from one Sh Kulwinder Singh, who bought it from PISCO and who had already been assessed by the predecessor AO based on the seized agreement, the assessee could not be assessed all over again by relying upon the same very document. The entire proceedings were thus misconceived and unfounded.
2. That the Id.CIT(A) ought to have decided each of the above grounds separately by way of speaking order, dealing with detailed arguments advanced before him, rather than just brushing aside the most relevant contentions advanced before him, against each ground.
3. That the orders of the authorities below, to the extent disputed hereinabove, are against law and facts of the case.”
Brief submissions 1. At the outset, the Ld. AR for the assessee had submitted that the case of the assessee is covered in favour of the assessee by virtue of the decision of the Jurisdictional Tribunal as well as of the Hon’ble High Court in the matter of Pr. CIT v. Kulwinder Singh in of 2017 whereby the appeal filled by the revenue was dismissed. In Fact additions were made in the hands of the Sh. Kulwinder Singh who had purchased the land from PISCO the Hon’ble High Court returned the following finding:
“14. We have heard the rival contentions and have carefully gone through the material available on record, including the order of the learned C1T(A). The relevant findings given by the learned CIT(A) qua this issue in his order in paras 25 to 29 of the order are as follows:-
“25. The ground of appeal at Sr.No.3 pertains to the claim of the appellant that the Assessing Officer has wrongly made disallowance of Rs. 14,00,000/- under section 36(l)(iii). The Assessing Officer has brought on record that the assessee has made interest free advances and loans to his family members/sister concerns in the following manner:- xxxxxxxxxxx At the same time had debited bank interest to the tune of Rs.22.19 lacs. The Assessing Officer required the assessee to explain as to how the interest bearing funds could be said to be used for the purpose of business especially in face of interest free loans to friends/sister concerns highlighted above. No explanation on the said issue before the Assessing Officer as recorded in the assessment year at para 5.2. The Assessing Officer therefore proceeded to disallow 12% on the entire amount of advances leading to disallowance of Rs. 14 lacs.
During the course of appellate proceedings the AR of the appellant submitted his arguments on the issue as under:-
xxxxxxxxxxxxxxx
1 have considered the facts of the case, the basis, of addition made by the Assessing Officer and the arguments of the AR on the issue. It is seen that the entire set of circumstances show that the appellant has avoided to give data from the books of account to show the business use of Interest bearing funds. In the circumstances the view of the Assessing Officer that the interest bearing funds have been diverted to advance interest free loans cannot be said to be arbitrary. In the circumstances the disallowance is restricted to Rs 10,95,795/-, in view of the comments of the undersigned in para 21 of this appellate order.”
It is seen that the learned CIT(A) has duly taken into consideration and given credit to the assessee of interest payable at the rate of 12% on credit balances of Himsons Exports Rs. 36000/, Jalandhar Construction Co. Limited Rs. 60,000/-, Jaswant Singh & Sons Rs. 60,000/-, Rajindra Deposits & Advances Limited Rs. 66,960/- and Harpreet Singh Rs. 1,62,000/-. The learned C1T(A) has also taken cognizance of the interest chargeable @ 12% on the debit balances of advance for Satpal Cold Rs. 12000/-, Dalbir Singh Rs. 12000/-, Gurbachan Singh Rs. 50,400/-,Harman Builders Pvt. Limited, Rs. 8,96,835/-, Inderpal Singh Rs. 24000/- . Jagjit Singh Rs. 36000/-, Narotam Singh Rs. 6000/-, Raminder Kaur Rs. 3,11,520/-, Ravinder Singh Rs. 12000/-, Satish Kumar Rs. 96000/- and Venus Builders Pvt. Limited Rs. 24000/-. It is in this manner that the disallowance has been restricted to Rs. 10,95,795/- taking out the sum of interest payable amounting to Rs. 24,97,899/- representing the capital brought in by Sh. Kulwinder Singh.
The learned C1T(A) has observed that as available from the calculation chart given by the assessee, even the amount of capital of Shri Kulwinder Singh brought into the business was taken to be a part of the calculation, treating this amount to be funds available free of interest and that the capital is meant to earn profits and separate interest thereon to decide the issue of disallowance could not have been done. It was on this basis that the learned CIT(A) held that no interest was payable to the assessee on this amount of Rs. 24,97,899/-.
We do not find .any error in the order of the learned CITA). The assessee has not challenged the same. Finding no error therewith, the same is hereby upheld. Accordingly ground No.2 is upheld.”
The findings recorded by the Tribunal on this issue have not been shown to be illegal or erroneous by the learned counsel for the appellant-revenue.”
On the other hand, the Ld. DR for the relied upon the order passed by the Assessing Officer.
We have heard the rival contention, the parties and perused the material available on record. In the present case the reassessment proceedings in the case of the assessee were initiated for the reason mentioned as under:
“02. During the course of search action in PISCO group of cases at various premises, the following documents/papers were seized and also some transactions are noticed. You are requested to explain the source of investment/explanation with supporting evidences and explain its relevance with the respective financial year/assessment year:- 03. Your attention is drawn to an agreement written on stamp papers dated 10.05.2007, entered into between Sh. Ravneet Takhar S/o Sh. Ravinder Singh, M.D. of PISCO, G.T. Road, Jalandhar as a 1st Party & Sh. Mohinder Singh, S/o Sh. Gopal Singh r/o Model Town, Jalandhar & Sh. Joginder Singh S/o Sh. Labh Singh r/o Vill. Rollian Distt. Hoshiarpur as 2nd party. This agreement is in respect of the property M/s PISCO Ltd., in Vill. Birring, Distt. Jalandhar. The agreement was made at the rate of Rs. 11.05 Crore per acre (measurement taken at 1 marla= 272 sq. ft.). This agreement has been duly signed by the respective parties in the presence of Witnesses Sh. Ramesh Inder Singh, S/o Sh. Pavittar Singh & Sh. Vinay Kumar. This agreement has been duly honoured by the respective parties which is evident from payments made by the buyers to the sellers between 10.05.2007 to 07.08.2008, copy of agreement was provided to you, still same copy is attached with this letter and in the light of this agreement, you are requested to justify the purchase rates shown in the properties purchased by you vide registration deed dated 13-02-2009 amounting to Rs. 71,00,000/- from M/s Punjab Iron & Steel Co. Ltd., Jalandhar through Kulwinder Singh.
In view of the seized documents as referred above, considering the actual sale rate Rs. 11.05 crore per acre, the cost of purchase of land 67 Marlas by you worked out to Rs. 4,62,71,875/- as against the value of purchase as per the registration made by you at Rs. 71,00,000). In view of the above considering the facts of the case you are requested to show cause as to why the difference of purchase value of Rs. 3,91,71,875/- of your said property should not be considered as suppressed the investment to the tune of Rs.3,91,71,875/- (Rs. 4,62,71,875 (-) 71,00,000) should not be added to the total income of the respective relevant A.Y. i.e. A.Y. 2009-10 and taxed accordingly.
Considering all the facts and supporting evidences seized by the department during the course of search as discussed above in detail. you are requested to show cause as to why the difference of actual sale rate of the said land amounting to Rs. 11.05 Crore per acre and the rate of lands purchased by you from M/s Punjab iron & Steels Co. Ltd. Jalandhar worked out to Rs. 3,91,71,875/- should not be treated as investment suppressed by you & also show cause as to why the said suppressed investment of Rs. 3,91,71,875/- should not be added to your income of A.Y. 2009-10 relevant to F.Y. 2008- 09.
This letter may please be treated as notice u/s 142(1) of the I.T. Act, 1961. Hearing in your case is now refixed on 04-03-2016 as one more & final opportunity of being heard in your case. Please ensure that non-compliance or non-attendance in this regard will be treated as you have nothing to say on the issues discussed above and accordingly your case will be decided on merit.
In respect of this office letter No. 1146 dated 29-02-2016 and show cause notice No. 1147 dated 29-02-2015, assessee submitted a reply on 2d 22-03- 2016 which is carefully considered and thereafter following observations are made.”
4. From the perusal of the reasons/satisfaction note, it is clear that a search was carried out in the premises of Punjab Iron & Steel Company Ltd.( PISCO) on 03.08.2011. During the search proceedings an agreement was found from the residential premises of Sh. Vinay Kumar, Accountant of PISCO wherein an agreement deed of the land was found showing the rate of land as 11,05,00,000/- per acre (1 marla = Rs.690625).
5. It is the case of the Assessing Officer that the assessee had purchased the land from Sh. Kulwinder Singh who in turn had purchased land from PISCO admeasuring 65.67 marla. 6. The Assessing Officer in this regard had made an addition of Rs.3,91,71,875/- to the income of the assessee as mentioned in paragraph 7.5 to the following effects: “7.5 Considering the above facts and circumstances and issues discussed above there is documentary evidence on record on the basis of which it is very well proved that the assessee has purchased land from Kulwinder Singh, who in turn, purchased land from M/s Punjab Iron & Steel Co. Ltd., Jalandhar measuring 3 Kanals 7 marlas @ Rs. 11,05,,00,000/- per acre whereas registration deed is made a at the value of Rs. 71,00,000/-. Therefore, Rs. 3.91,71,875/ (4,62,71,875 – 71,00,000 = 3,91,71,875/- is being treated as unaccounted and undisclosed investment u/s 69B of the IT Act 1961 and hereby added to the returned income of the assessee company and taxed accordingly. Since the assessee has furnished inaccurate particulars of his income, penalty u/s 271(1)(c) of the I.T. Act, 1961 have been initiated in this regard separately.
Returned Income Rs. 7,49,390/- Addition as per para 7.5 Rs. 3,91,71,875/- Assessed Income Rs. 3,99,21,265/- Assessed, charge tax and interest as per law. Issue demand notice along with copy of this order. Penalty proceedings u/s 271(1)(c) of the I.T. Act, 1961 have been initiated separately as the assessee has furnished inaccurate particulars of income.” 7. Feeling aggrieved by the order passed by the assessing Officer , the assessee preferred an appeal before the CIT(A) and the CIT(A) had deleted the addition made by the Assessing Officer by observing in order as under:
The AR has argued that the facts of the case under consideration are similar to the facts of the cases decided by the Hon’ble ITAT in its order referred above and accordingly, the addition made by the AO was requested to be deleted. The facts of the case, the basis of addition made by the AO and the arguments of the AR during the appellate proceedings have been considered. A perusal of the assessment order dated 23.03.2016 shows that the facts of the cases decided by the Hon’ble ITAT are similar to the facts of the present case under consideration. The Hon’ble ITAT has decided the issue on merit in favour of the assessee. Therefore, on the basis of the findings given by the Hon’ble ITAT, the addition in the case of the appellant is also not found sustainable since the basis of the addition is the same, i.e., the documents in the form of agreement seized where the rate of the land of M/s PISCO was mentioned as Rs.11.05 crores per acre. Therefore, respectfully following the above mentioned decision of the Hon’ble ITAT, the addition made by the AO in this case is also deleted.
As mentioned hereinabove the assessee had purchased the land from Mr. Kulwinder Singh in whose hands the additions were made by the Revenue alleging that Sh. Kulwinder Singh had paid on money on the purchase of the land from PISCO.
In our considered opinion when the additions made in the hand of Kulwinder Singh for allegedly purchasing land from PISCO were deleted by the Tribunal and the finding of the Tribunal were confirmed by the Hon’ble High Court. In our considered opinion no additions can be sustained in the hands of the assessee, more particularly when the additions made in the hands of seller were deleted by the Tribunal and confirmed by the Hon’ble High Court. In fact there is no evidence or document in possession of the Assessing Officer on the basis of which the satisfaction can be withdrawn of the Assessing Officer in respect of escapement of income as record in the order. In our considered opinion, once the addition in the hands of Sh. Kulwinder Singh (seller) have been deleted, there is no reason upholding the same in the case of the purchaser (in the assessee before us), therefore, respectively following the decision in the identical case as referred by the CIT(A) in paragraph 4.2 of the appellate order and also decision of the Hon’ble High Court in of 201.We do not find any merit, in the appeal of the Revenue and accordingly the same is dismissed. 10. As we have dismissed the appeal filed by the Revenue, we do not deem it to appropriate to adjudicate the grounds raised by the assessee in the cross objection, as the same had became infructuous.
In the light of the above, the appeal of the Revenue is dismissed and the CO filed by the assessee is dismissed being infructuous.
Order pronounced in the open court on 14.07.2021 Sd/- Sd/- (Dr. M. L. Meena) (Laliet Kumar) Accountant Member Judicial Member Dated: 14.07.2021 GP/Sr. Ps. Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T.