Income Tax Appellate Tribunal - Ahmedabad
Om Shivam Corporation, Baroda vs Assessee on 25 July, 2014
आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद Ûयायपीठ 'डȣ डȣ', डȣ , अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL " D " BENCH, AHMEDABAD ȶ ȣ, लेखा सदःय एवं ौी कुल भारत, Ûयाियक सदःय ।
सम¢ ौी अिनल चतुवद BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER Sl. IT(ss)A Assessment Appeal(s) by No(s) No(s)/ITA No. Year(s) Appellants vs. Respondents Appellant Respondent
1. IT(SS)A No. 2001-02 M/s.Om Shivam The 595/Ahd/2012 Corporation Asst.CIT 45/46, Earth Central Complex Circle-1 Akshar Chowk Old Baroda Padra Road Baroda - 390 020 PAN: AAAFO 0443 E
2. 601/Ahd/2012 2000-01 ITO M/s.Om Ward-2(4) Shivam Baroda Corporation 11, Sudha Nagar, Jetalpur Road Baroda-
390007 PAN:AAAF O 0443E
3. 602/Ahd/2012 2001-02 -do- -do-
4. 603/Ahd/2012 2002-03 -do- -do-
5. 604/Ahd/2012 2003-04 -do- -do-
6. 605/Ahd/2012 2004-05 -do- -do-
7. ITA No. 2005-06 -do- -do-
2773/Ahd/2012
Assessee by : Shri Mukund Bakshi, A.R.
Revenue by : Shri Vimalendu Verma, CIT-DR
सुनवाई कȧ तारȣख / Date of Hearing 11/07/2014
घोषणा कȧ तारȣख /Date of Pronouncement 25/07/2014
आदे श / O R D E R
PER BENCH : Out of these seven bunch of appeals; one appeal by
the Assessee (for Asst.Year 2001-02) and rest of the six appeals by the IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -2- Revenue are directed against the common order of the Ld.Commissioner of Income Tax(Appeals)-IV, Ahmedabad ('CIT(A)' in short) dated 26th September-2012 pertaining to Asstt.Years (AYs) 2000-01 to 2005-06. Since common issues and facts are involved, these appeals were heard together and are being disposed of by way of this consolidated order for the sake of convenience.
2. First, we take up the Assessee's appeal in IT(ss)A No.595/Ahd/2012 for AY 2001-02. The assessee has raised the following ground(s) of appeal:-
1. The Ld.CIT(A)-IV, Ahmedabad has erred in law and in facts confirming the action of the Ld.A.O. in confirming the addition made by the Ld.A.O. of Rs.36,40,000/- out of the total addition of Rs.83,80,000/- being the amount allegedly paid for purchase of land out of undisclosed sources. The addition of Rs.36,40,000/- being contrary to facts and in law is prayed to be deleted.
2. Your appellant craves the liberty to add, alter, amend or delete any or all the grounds of appeal stated above.
2.1. Briefly stated facts are that a search action u/s.132 of the Income Tax Act,1961 (hereinafter referred to as "the Act") was carried out on 04/03/2005, covering the residential and business premises of Kabhai Chauhan and Group of cases and survey u/s.133A on the business premises of M/s.Om Shivam Corporation. During the course of search, certain documents from the residence of Shri Dinesh Patel were seized which pertained to the assessee. After recording the satisfaction note, a notice u/s.153C of the Act was issued and the assessment u/s.153C r.w.s.
143(3) of the Act was framed, thereby the Assessing Officer (AO in short) made addition(s) on account of undisclosed investment in IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -3- construction amounting to Rs.17,740/- in the Asstt.Year in this appeal and unaccounted investment in land amounting to Rs.83,80,000/- against which assessee filed an appeal before the ld.CIT(A), who after considering the submissions, partly allowed the appeal. Matter traveled upto the stage of Tribunal by way of ITA Nos.1232, 1650, 1651, 1652, 1653 1654 and 1655/Ahd/2008 and the Hon'ble ITAT vide order dated 15/07/2008 restored these appeals with the direction that the appeals require fresh adjudication on merits after giving proper opportunity of being heard to the assessees by the ld.CIT(A).
2.2 The ld.CIT(A) in remand proceedings decided the issue of addition on account of alleged undisclosed investment in the cost of construction of Earth Complex in favour of the assessee and the issue of addition of Rs.83,80,000/- on account of unexplained investment was partly allowed, thereby the addition to the extent of Rs.36,40,000/- was confirmed out of total addition made by the AO of Rs.83,80,000/-. The assessee has challenged the present appeal.
3. The ld.counsel for the assessee submitted that the ld.CIT(A) is not justified in partly allowing the appeal and confirming the addition to the tune of Rs.36,40,000/-. He submitted that total amount of Rs.1,68,30,000/- was required to be paid by the assessee by 31/12/2001, but there were litigation between the parties. He submitted that the confirmation is made on the basis of the admission made in the Suit filed for specific performance against the sellers, namely Smt.Parikh & Others. He submitted that payment of Rs.20 lacs was made to IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -4- Smt.Lataben Parikh actually appropriated against allotment of flat in the building prior to date of survey and reflected in the accounts filed. The advance is included in the Schedule of Advance from Members. The payment of Rs.16,40,000/- made to Shri Babul Parikh by way of three cheques and Shri Babul Parikh has discounted these cheques with the Shroff M/s.Punamchand Devchand and recovered the money. He submitted that the evidences indicate that payment is made on a date subsequent to 31.12.2001. He further submitted that the ld.CIT(A) has confirmed the addition on the basis of the settlement arrived in the Suit. He submitted that the Suit is dated 16.09.2002 and, therefore, in absence of any evidence to show that the payment was made in the Financial Year 2000-01, the addition based on the Suit dated 16.09.2002 cannot be taken as made during the year under consideration. He submitted that the addition u/s.69 can be made only in the Financial Year in which the payment is proved to have been made. In support of this contention, ld.counsel for the assessee relied on the judgement of Hon'ble Gujarat High Court rendered in the case of Ushakant Patel vs. CIT reported at 282 ITR 553(Guj.) and the decision of the Coordinate Bench (ITAT Ahdmedabad) rendered in the case of Roshan alias Rakesh G.Shah vs. DCIT reported at 53 TTJ 267 (Ahd.). He submitted that the onus is heavy on the Revenue that any excess payment is made than recorded in making an addition u/s.69 of the Act. He relied on the judgement of Hon'ble Gujarat High Court rendered in the case of DCIT vs. Jivanlal Nebhumal (HUF) reported at 134 Taxman 660 (Guj.) and the decision of Coordinate Bench rendered in the case of Bharat A.Mehta vs. ITO reported at 86 TTJ 369 (Ahd.).
IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -5-
4. On the contrary, ld.S.DR submitted that there is no infirmity in the order of the ld.CIT(A) so far as confirmation of the disputed addition is concerned. He submitted that the assessee itself has made admission before the proceedings in Civil Court that the money has been paid as per agreement dated 29/06/2000.
5. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below as well as the judgements relied upon by the ld.counsel for the assessee. We find that the ld.CIT(A) in para-10.8 of his order has observed as under:-
"10.8. In view of the above, it is clearly inferred that entire payment of Rs.1,24,80,000/- has been made by the appellant firm to Smt.Lata Parikh and Shri Babul Parikh by 31-12-2001 in accordance with the terms of the agreement since the appellant firm has already submitted before the Court by way of suit filed before the Civil Judge, Baroda for specific performance of contract. Therefore, once submission is mae before the Hon'ble Civil Court stating the entire payment of Rs.1,24,80,000/- has been made in accordance with the terms of the contract and paid to the parties concerned by 31-12-2001. It is further noted that in the case of Smt.Lata Parikh, payment of Rs.20,00,000/- is claimed to have made in 2003/2004/2005 whereas the suit has been filed before the Court on 16-09-2002. Further, it is noted that Shri Babul Parikh has already admitted to have received Rs.86,30,000/- (which consists of Rs.69,90,000/- already paid by cheque by 31-12-2001 and Rs.16,40,000/-) from the appellant firm out of the total payment to be received of Rs.1,17,30,000/- which he has disclosed in his revised return of income for AY 2001-02. In the order of Hon'ble ITAT in the case of Shri Babul Parikh also, it is noted by the ITAT also that Shri Babul Parikh has admitted to receipt of Rs.86,30,000/- on account of land which was disclosed in the revised return filed in response to notice u/s.153C for AY 2001-02. Therefore, from the avertments of Shri Babul Parikh as noted in the ITAT's order as well as the fact that Shri Babul Parikh has revised the return of income for AY 2001-02 and shown receipt of Rs.86,30,000/- received from the appellant firm, it is IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -6- concluded that the payment of Rs.20,00,000/- to Smt.Lata Parikh and Rs.16,40,000/- to Shri Babul Parikh claimed to have paid after 31-12- 2001 is contrary to the evidence on record in view of categorical admission of the appellant firm that the entire payment of Rs.1,24,80,000/- has been paid to Smt.Lata Parikh and Shri Babul Parikh by 31-12-2001 in accordance with the terms of the agreement as evidenced from the contents of the suit filed before Civil Court dated 16-09-2002 as well as admission and disclosure of such receipt by Shri Babul Parikh of Rs.86,30,000/- (including the payment of rs.16,40,000/- claimed to have been made after 31-12-2001) in his return of income for AY 2001-02. In view of the above, the total payment of Rs.20,00,000/- to Smt.Lata Parikh and Rs.16,40,000/- to Shri Babul Parikh is held to be made by the appellant firm by 31-12-2001 in terms of the Agreement. Since such payment is not recorded in the books of account of the appellant firm, the same is held to be made out of undisclosed income of the firm."
5.1. The contention of the assessee is that this payment of Rs.36,40,000/- was made to subsequent to the date of 31/12/2001 and not made during the financial year under consideration. The ld.counsel for the assessee has drawn our attention towards page Nos.55 to 59 of the paper-book to buttress the contention that this amount was, in fact, paid on the dates mentioned in the statement of account as enclosed.
6. As per para-3 of the plaint, the assessee made averment that the defendants have received full payment of consideration as stated in the development agreement. However, it is not coming out of the compromise deed as placed before the Ld.Civil Court for settlement as to when the payments were made. Therefore, this issue is remitted back to the file of ld.CIT(A) to verify the contention of the assessee that the amount was paid subsequent to 31/12/2001 and decide this issue in accordance with law. Thus, this ground of assessee's appeal is allowed for statistical purposes.
IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -7- 6.1. In the result, the appeal of the assessee in IT(ss)A No.595/Ahd/2012 for AY 2001-02 is allowed for statistical purposes.
7. Now, we take up the Revenue's appeals in IT(ss)A Nos.601, 602, 603, 604, 605/Ahd/2012 and ITA No.2773/Ahd/2012. The Revenue has raised the following common grounds in IT(ss)A Nos.601, 603, 604, 605 and ITA No.2773/Ahd/2012. Extracted from IT(SS)A No.601/Ahd/2012 for AY 2000-01.
1. On the facts and circumstances of the case and in law, the ld.CIT(A) erred in deleting the addition of `2,78,247/- (`30,30,707/- for AY 2002- 03, `63,82,412/- for AY 2003-04, `80,84,291/- for AY 2004-05 and `78,65,036/- for AY 2005-06) made during the year on account o undisclosed investment without appreciating that the assessee has considerably under-valued cost of construction of the property since the overall difference in the cost of construction of the property estimated by the District Valuation Officer and that by the assessee is `2,64,39,507/- which shows that the accounts submitted by the assessee was not reliable.
2. The appellant craves leave to add to, amend or alter the above grounds as may be deemed necessary.
Relief claimed in appeal It is prayed that the order of the CIT(Appeals) be set aside and that of the Assessing Officer be restored.
7.1 In IT(ss)A No.602/Ahd/2012 for AY 2001-02 the Revenue has raised the following grounds of appeal:-
1. On the facts and circumstances of the case and in law, the ld.CIT(A) erred in deleting the addition of `17,740/- made during the year on account o undisclosed investment without appreciating that the assessee has considerably under-valued cost of construction of the property since the overall difference in the cost of construction of the property IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -8- estimated by the District Valuation Officer and that by the assessee is `2,64,39,507/- which shows that the accounts submitted by the assessee was not reliable.
2. On the facts and in the circumstances of the case and in law, the ld.CIT(Appeals) erred in restricting the addition of `83,80,000/- made on account of unaccounted investment in land to `36,40,000/-
overlooking the fact that no supporting document in respect of the agreement of `1,68,30,000/- between the assessee firm with Smt.Lataben Parikh and Shri Babul Parikh was ever produced by the assessee before the Assessing Officer.
3. The appellant craves leave to add to, amend or alter the above grounds as may be deemed necessary.
Relief claimed in appeal It is prayed that the order of the CIT(Appeals) be set aside and that of the Assessing Officer be restored.
8. Ground No.1 is common in all the appeals and in IT(ss)A No.602/Ahd/2012 for AY 2001-02 ground No.2 has been taken against the confirmation of addition to the extent of Rs.36,40,000/- out of total addition of Rs.83,80,000/-.
8.1. Briefly stated facts are that the Assessing Officer (AO in short) made addition on account of undisclosed investment in construction of 'Earth Complex' based on the DVO's report. The addition made by the AO on account of undisclosed investment in each assessment year on the basis of DVO's report is tabulated as under:-
A.Y. Addition on account of
undisclosed investment (Rs.)
2000-01 2,67,247
2001-02 17,740
2002-03 30,30,707
2003-04 63,82,412
2004-05 80,84,291
IT(ss)A No.595/Ahd/2012 (By Assessee)
and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively -9- 2005-06 78,65,036 2006-07 8,02,075 Total 2,64,39,507 8.2. So far as first ground of Revenue's appeal is concerned, in the year under consideration AY 2000-01, the addition was made amounting to Rs.2,67,247/-. The ld.counsel for the assessee submitted that the addition has been made on the basis of the DVO's report. He reiterated the submissions as were made before the ld.CIT(A) and submitted that the ld.CIT(A) has rightly deleted the addition(s). He relied on the decision of the ld.CIT(A).
8.3. On the contrary, ld.Sr.DR submitted that the ld.CIT(A) was not justified in deleting the addition.
9. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has given a detailed finding in his order in para-6 to 6.6, by observing as under:-
"6. I have carefully considered the submissions made by the appellant and have gone trough the assessment orders passed by the Assessing Officer. I have also gone through the various judicial decisions relied upon by the appellant.
6.1. Section 142A prescribes that for making an assessment or re- assessment under this Act, where an estimate of the value of any investment referred to in sections 69 or 69A or 69B is required to be made, the Assessing Officer may require the Valuation Officer to make an estimate of such value and report the same to the A.O. Further in terms of section 142A(3) of the Act, the Valuation Report has to be used by the AO for making assessment or reassessment.
IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively
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6.2. There is no dispute to the well-settled legal proposition that no addition can be made merely on the basis of valuation report, which is just an estimate prepared by a technical person on the basis of physical inspection and measurement of building, without pointing out specific defects in the construction account kept in the books of account and/or rejecting the books of account under s.145. Whenever the AO wants to adopt the Valuation as made by the DVO, he is first of all required to point out the defects in the construction account maintained by the assessee or to indicate that construction cost shown in the books of account are not correct or that cost of construction could not be correctly deduced due to the information asked from the assessee but not supplied by him to the AO.
6.3. In the present case, the AO has not pointed out any defect in the books of account based on which reference u/s.142A can be justified. There is nothing on record to suggest that there is any defect in the books of account maintained by the appellant firm so as to conclude that books of account maintained by the appellant firm cannot be relied upon so far as the cost of construction is concerned. The AO in the assessment orders has clearly mentioned that the books of account were produced and test checked. However, no defect has been pointed out by the AO.
6.4. In this regard, the decision of the Hon'ble ITAT, Ahmedabad in the case of Rajhans Builders (2010) 41 SOT 331 is quite relevant. The findings of the Hon'ble Tribunal which involves identical facts are reproduced as under:
"Perusal of the assessment order showed that there was no reference to ay material/evidence/information on the basis of which it could be said that the cost of construction shown by the assessee was understated or anything above what was disclosed by the assessee in the books of account. It was a clear cut case that the assessee had produced the books of account but the Assessing Officer had not rejected or no defect was pointed out in the books of account regarding cost of construction of the project. It was also found from the case records that even before verifying the books of account regularly maintained and without painting out any defects in the books the cost of construction was referred to the DVO. It was apparent, on the basis of evidences produced, that the assessee had regularly maintained books of account and various records along with supporting evidences of various raw materials like cement, steel, bricks, sand, wood, labour cost, sanitary wares, etc. The Assessing IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively
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Officer had not found out any defect in the books/records/bills, etc., and had not rejected books of account. Without causing any defects in the books regularly maintained and without rejecting the books under section 145, there was no reason to add any amount on the presumption that the cost/investment in construction was low. Thus, without rejecting the books of account regularly maintained, the addition could not be made only on the basis of the DVO's report."
Further, in the case of Sargam Cinema vs. CIT (2010) 328 ITR 513 (SC), it has been held that the Assessing Authority cannot refer the matter to the DVO without first rejecting the books of account.
6.5. In the present case, the AO has made the addition mainly on the basis of valuation report made by the DVO. The AO has not pointed out any material defects in the books of account regularly maintained by the appellant which are claimed to be supported by relevant bills and vouchers. The AO has not pointed out any specific defects or discrepancies in the books of account regularly maintained by the appellant relating tot h cost o construction of project. Valuation report of the DVO is only information of estimate of cost of construction carried on by the appellant. The infirmities in the said report pointed out by the appellant firm on the basis of Govt.approved Registered Valuer's report has not been considered by the AO. There is not a single stance to show that the appellant had actually incurred the expenditure that was more than that recorded in the books of account. There is no reference to any such evidence found even during the course of search proceedings. It is further noted that at the time of making reference to the DVO as per 42A of the Act regarding ascertainment of cost of construction of the project, assessment proceedings were not pending. The reference was made by the Addl.DIT (Inv.), Baroda on 06-07-2005 whereas notice u/s.153C was issued by the AO on 08-11- 2005. Irrespective of the fact that the Addl.DIT(Inv.), Baroda is not empowered to make an reference u/s.142A as it is only the AO having the valid jurisdiction over the case can exercise the option of making a reference u/s.142A of the Act for the purpose of making an assessment, the crux of the matter as has been decided by the various courts is that before making any reference to the DVO, specific defects in the books of account maintained have to be pointed out so as to indicate that cost o construction as shown in the books of account is not correct or is understated based on which it can be concluded that books of account IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively
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maintained by the appellant are not reliable so far as the cost of construction is concerned.
6.6. Considering the entire facts and circumstances of the case, I am of the considered opinion that so far as the addition on account of unexplained investment made in the construction of the project on the basis of valuation report is concerned, no sole reliance on the DVO's report can be made for the purpose of making addition of entire difference without first pointing out the specific defects in the books o accounts. In view of the above, it is held that since the AO has not rejected the books of account by pointing out any defects in the books of account maintained by the appellant firm, reference to the DVO cannot be held legally valid and, therefore, the DVO's report cannot be utilized for framing the assessment even if such report is considered to be obtained u/s.142A of the Act. In view of the above, the addition made by the AO as undisclosed investment on the basis of DVO's report is deleted in each assessment year. The first ground of appeal is accordingly allowed."
9.1. The undisputed facts remains that the addition is made by relying on the DVO's report and the disputed addition has been made by the AO solely on the basis of DVO's report. The contention of the assessee before the ld.CIT(A) was that no defect in the books of accounts was pointed out by the AO, therefore it is not open to him to make reference u/s.142A of the Act. Reliance is placed on the judgement of Apex Court rendered in the case of Sargam Cinema vs. CIT reported at (2010) 328 ITR 513(SC). Admittedly, the AO has not rejected the books of accounts and proceeded to make reference u/s.142A of the Act and moreover the addition is made solely on the basis of the DVO's report. We find that the ld.CIT(A) has given a finding on fact that there is no reference to any such evidence found even during the course of search proceedings. He has observed that at the time of making reference to the IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively
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DVO as per 142A of the Act regarding ascertainment of cost of construction of the project, assessment proceedings were not pending. The reference was made by the Addl.DIT (Inv.), Baroda on 06/07/2005, whereas notice u/s.153C was issued by the AO on 08/11/2005. These facts are not disputed by the Revenue. Moreover, the ld.CIT(A) has also given a finding on fact that no specific defect in the books of account maintained is pointed out so as to indicate that cost of construction as shown in the books of account is not correct or is understated based on which it can be concluded that books of account maintained by the assessee are not reliable so far as the cost of construction is concerned. This finding of the ld.CIT(A) has not been controverted by the Revenue by placing any contrary material on record. Therefore, we do not find any infirmity in the order of the ld.CIT(A) since he has rightly followed the judgement of the Hon'ble Supreme Court rendered in the case of Sargam Cinema vs. CIT(supra) and also the decision of the Coordinate Bench rendered in the case of Rajhans Builders (2010) 41 SOT 331, same is hereby upheld. Thus, this ground of Revenue's appeal in all the cases are rejected.
10. The second ground is against in restricting the addition to the extent of Rs.36,40,000/- out of the total addition of Rs.83,80,000/-. The ld.CIT-DR supported the order of the AO and submitted that ld.CIT(A) was not justified in restricting the addition to the extent of Rs.36,40,000/-. On the contrary, ld.counsel for the assessee submitted that as per the agreement, the assessee was required to pay to the parties after receiving compensation from the Municipal Corporation.
IT(ss)A No.595/Ahd/2012 (By Assessee) and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively
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11. We have heard the representative of the respective parties and gone through the orders of the authorities below. We find that the ld.CIT(A) has given a finding on fact that out of the total payment to be made of Rs.1,68,30,000/-. The payment made after 31.12.2001 is Rs.36,40,000/- and the amount which is still to be paid is Rs.31 lacs. The ld.CIT(A) has also given finding on fact that out of the total payment received by Shri Babul Parikh of Rs.1,17,30,000/-. He has already admitted to have received Rs.86,37,000/-. While making this observation, ld.CIT(A) has recorded the finding of the Coordinate Bench of this Tribunal passed in ITA No.280/Ahd/2008 dated 01/07/2011. This finding on fact is not controverted by the Revenue by placing any contrary material on record. Therefore we do not see any reason to interfere with the order of the ld.CIT(A) to this extent. Thus, this ground of Revenue's appeal is rejected.
12. In the combined result, Assessee's appeal in IT(ss)A No.595/Ahd/2012 is allowed for statistical purposes, whereas Revenue's appeals in IT(ss)A No.601, 602, 603, 604, 605/Ahd/2012 and in ITA No.2773/Ahd/2012 are dismissed.
Order pronounced in Court on the date mentioned hereinabove at caption page Sd/- Sd/-
(अिनल चतुवद
ȶ ȣ) (कुल भारत)
लेखा सदःय Ûयाियक सदःय
( ANIL CHATURVEDI ) ( KUL BHARAT )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 25/ 07 /2014
टȣ.सी.नायर, व.िन.स./T.C. NAIR, Sr. PS
IT(ss)A No.595/Ahd/2012 (By Assessee)
and IT(ss)A Nos.601 to 605/Ahd/12 & ITA No.2773/Ahd/2012 (By Revenue) M/s.Om Shivam Corporation vs. The ACIT/ITO AYs -2001-02(assessee) and 2000-01 to 2005-06 respectively
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आदे श कȧ ूितिलǒप अमेǒषत/Copy
षत of the Order forwarded to :
1. अपीलाथȸ / The Appellant
2. ू×यथȸ / The Respondent.
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ(अपील) / The CIT(A)-IV, Ahmedabad
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाईल / Guard file.
आदे शानुसार/ BY ORDER, स×याǒपत ूित //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) उप/ आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of dictation ..21.7.14 (dictation-pad 17+4pages attached at the end of this File)
2. Date on which the typed draft is placed before the Dictating Member ......22/23.7.14
3. Date on which the approved draft comes to the Sr.P.S./P.S.................
4. Date on which the fair order is placed before the Dictating Member for pronouncement......
5. Date on which fair order placed before Other Member............
6. Date on which the fair order comes back to the Sr.P.S./P.S.......25.7.14
7. Date on which the file goes to the Bench Clerk.................. 25.7.14
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature on the order..........................
10. Date of Despatch of the Order..................