Income Tax Appellate Tribunal - Ahmedabad
Shri Suresh Ranchhodbhai Patel,, ... vs The Asstt. Commissioner Of Income Tax, ... on 19 August, 2020
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "C" BENCH
Before: Shri Mahavir Prasad, Judicial Member
And Shri Amarjit Singh, Accountant Member
IT(SS)A Nos. 394, 395, 396 & 397/Ahd/2017
A.Y. 2010-2011 & 2012-13 to 2014-15
Shri Suresh Ranchhodbhai The ACIT,
Patel, 1, Shayona Darshan Central Circle-2(4),
Bunglow, Opp. Gujarat Vs Ahmedabad
High Court, S.G. Highway, (Respondent)
Ghatlodia, Ahmedabad
PAN: ACTPP1167A
(Appellant)
Revenue by: Shri O.P. Sharma, CIT-D.R.
Assessee by: Shri Sunil Talati &
Shri R.B. Tank, A.Rs.
Date of hearing : 13-02-2020
Date of pronouncement : 19-08-2020
आदे श/ORDER
PER BENCH:-
These four appeals filed by the assessee for A.Y. 2010-11 & 2012-13 to 2014-15, arise from the order of the Ld. CIT(A)-12, Ahmedabad dated 20- 04-2017, in proceedings under section 143(3) r.w.s. 153A of the Income Tax Act, 1961; in short "the Act".
I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 2 Shri Suresh Ranchhodbhai vs. ACIT
2. Out of these three appeals filed by the assessee vide IT(SS)A No. 395 to 397/Ahd/2017 are against the decision of Id. CIT(A) in upholding addition u/s. 14A of the act and upholding addition u/s. 69 of the act.
3. During the course of appellate proceedings Id. counsel has not pressed ground no. 1 pertaining to the addition made u/s. 69 of the act, therefore, this ground of appeal at serial no. 3 in ITA 395/Ahd/2017 and serial no. 3 in ITA No. 397/Ahd/2017 stand dismissed.
4. In respect of other grounds of appeal pertaining to disallowance u/s. 14A the appeal of the assessee are adjudicated together, since similar facts on identical issue are involved in all the three years contested in the appeals. Therefore, this ground of appeal is adjudicated by taking ITA No. 395/Ahd/2017 as lead case and its finding will be applicable to other two cases.
Disallowance of Rs. 13,96,684/- u/s. 14A assessment year 2012-13
5. During the course of assessment, the assessing officer noticed that assessee had earned share of profit from the firms which was exempt u/s. 10(2A) of the act. Therefore, after invoking the provision of section 14A, the assessing officer has disallowed an amount of Rs. 20,91,532/- as the expenses incurred towards earning exempt income from the investment made in the partnership firm and added to the total income of the assessee.
6. The assessee has preferred appeal before the Id. CIT(A). The Id. CIT(A) observed that the interest free and interest bearing funds with the I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 3 Shri Suresh Ranchhodbhai vs. ACIT assessee are completely mixed up and un-identifiable, therefore, allocated interest expenditure in proportionate basis and the Id. CIT(A) has allocated interest expenditure to the amount of Rs. 13,96,684/- towards earning exempt income.
7. During the course of appellate proceedings before us, the Id. counsel has contended that no disallowance of interest expenditure should be made as the assessee was having more interest free fund and own fund than the amount invested in the partnership firm. The Id. counsel has submitted that assessee was having capital balance of Rs. 2,64,41,387/- and interest free fund to the amount of Rs. 8,10,19,417/- as against total investment made in the partnership firm to the amount of Rs. 3,61,93,058/- for the year under consideration. The Id. counsel has also placed reliance on the decision of Co-ordinate Bench in the case of SureshbhaiRanchhodbhai Patel vs. ACIT vide ITA No, 328/Ahd/2012 dated 12-06-2017. On the other hand, Id. departmental representative has supported the order of lower authorities.
8. We have heard both the sides and perused the material on record. After considering the material on record, it is observed that assessee's own fund as well as interest free fund were more than investment made in partnership firm, therefore, disallowance on account of interest u/s. 14A is not sustainable in view of the decision of the Co-ordinate Bench as cited above by the assessee. The relevant part of the decision of the Co-ordinate Bench is reproduced as under:-
"5. We have carefully considered the orders of the authorities below qua the issue. There is no dispute that the assessee was deriving share profit from the partnership firms. It is also not in dispute that the share profit from partnership firm is exempt from tax under section 10 of the Act. It is equally true that for earning exempt income, disallowance I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 4 Shri Suresh Ranchhodbhai vs. ACIT under section 14A read with rules 8D have to be made. A perusal of statement of assets and liabilities of the assessee shows that the assessee has capital of Rs. 1,46,84,450/- and the total investment in partnership firm is Rs.21,98,88,921/-. Therefore, to the extent of own capital no disallowance ought to have been made But, we find that the assessee has debit balances in partnership firm to the tune of Rs. 1,72.85,958/-. This leaves with balance of Rs. 18,79,18,513/- invested in the partnership firm out of borrowed funds. In our considered opinion, disallowance of interest should be restricted to this investment which is out of borrowed fund. We accordingly direct the Assessing Officer lo recomputes the disallowance by taking investment in the partnership firm amounting to Rs 18,79,18,513/- of borrowed funds We accordingly set aside the assessment to the file of Assessing Officer with the above directions.
6. In the result, the appeal is treated as allowed for statistical purposes. Pronounced in the open court today on the 12' day of June, 2017 "
Respectfully following the decision of the Co-ordinate Bench on identical facts and similar issue, we set aside the issue to the file of assessing officer for re-computing the disallowance of interest after excluding owned funds and interest free funds as directed above in the finding of Co-ordinate Bench in respect of disallowance u/s. 14A for the A.Y. 2012-13 to 2014-15. Accordingly, this ground of appeal of the assessee is allowed for statistical purposes
9. In the result, the appeal of the assessee is allowed for statistical purposes.
ITA No. 394/Ahd/2017 assessment year 2010-1110. The assessee has raised following grounds of appeal:-
"1. The learned Commissioner of Income Tax (Appeal)-l2 Ahmedabad, has grievously erred in facts and law while passing the order under consideration.
2. The learned Commissioner of Income Tax (Appeal)-12 Ahmedabad, failed to appreciate the facts that unabated assessment cannot be disturbed if nothing has been found out against the appellant under the search & seizure proceedings u/s. 132 of the Income Tax Act, 1961.
3. The learned Commissioner of Income Tax (Appeal)-12 Ahmedabad, erred in facts and in law in upholding the addition of Rs. 1,80,00,000 made by the Assessing Officer u/s 69 of Income Tax Ad, 1961."
I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 5 Shri Suresh Ranchhodbhai vs. ACIT
11. A Search u/s. 132 of the Act was carried out in the group cases of Shayona group on 15-10-2013 in which the residence of the assessee, Sh. Suresh Ranchhodbhai was also covered. During the search a survey u/s. 133A was also conducted on shop no. 22/23 Shayona Complex Ghatlodiya Ahmedabad and document pertaining to land transactions was found and impounded as MOU (SamjutiKarar) between assessee Sh. S.R. Patel (Purchaser) and Sh. Rameshbhai N . Desai (Seller) of land of 33898 sq. yd @ Rs. 13501 per sq. yd. at survey no. 210/2 in village Motera for agreed consideration of Rs. 4,57,41,388/-. It is stated that the assessee has paid cash of Rs. 1.8 crores towards part payment of the agreed consideration. The assessee was asked to explain the source of cash paid. The assessee has explained that the document was mere an understanding to be finalized based on the terms and conditions as mentioned in the said understating. The assessee has stated that aforesaid impounded banakhat was cancelled as Sh. Rameshbhai Desai in fact was not owner of the land and area of the land stated by him was also wrong and this land was not sold to the assessee and only part of the said land was sold to Shayona Land Corporation for a consideration of Rs. 1,12,40,000/-. It was also stated that on the sale of land to Shayona Land Corporation Sh. Rameshbhai Desai was included as confirming party as per the registration deed dated 27/04/2010 and land was directly purchased from the farmers. The assessee has explained that MOU was a mere understanding between the assessee and Sh. Ramesbhai Desai and the same was cancelled within 3 days for the reasons as stated above. In addition to above, it was also explained that land was originally held by six persons and the land was in dispute as the original land owner had sold land I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 6 Shri Suresh Ranchhodbhai vs. ACIT to multiple purchasers apart from the assessee. The assessing officer has not accepted explanation of the assessee stating that as per banakhat the assessee has paid the amount of Rs. 1.8 crores and the explanation of the assessee was afterthought. Therefore, the assessing officer has added the amount of Rs. 1.8 crores in the hand of the assessee.
12. Aggrieved assessee has filed appeal before the Id. CIT(A). The Id. CIT(A) has dismissed the appeal of the assessee treating the reasons reported by the assessing officer.
13. During the course of appellate proceedings before us, the Id. counsel has submitted paper book comprising details and documents furnished before the assessing officer and Id. CIT(A) at the time of assessment and appellate proceedings. The Id. counsel has contended that documents on the basis of which the addition made was found and impounded during the survey at some other premises and not found out during the search at the residence or business premises of the assessee. The Id. counsel has referred decision of Hon'ble Gujarat High Court in the case of PCIT vs. Saumya Construction 81 taxmann.com 292 that addition can be only made on the basis of material collected during search. It is also contended that the material impounded during the survey proceedings at some other premises cannot be added u/s. 153 A of the Act in the case of the assessee. On merit, the Id. counsel has contended that only basis of assessment was that in the copy of agreement of sale the assessee had mentioned cash paid to prospective seller Mr. Rameshbhai Desai of Rs. 1.8 crores and only on the I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 7 Shri Suresh Ranchhodbhai vs. ACIT basis of said agreement the assessing officer has come to the conclusion that assessee had unaccounted cash payment of Rs. 1.80 crores to the prospective seller Mr. Rameshbhai Desai. The Id. counsel has contended that both the assessing officer and the Id. CIT(A) has ignored the cancellation agreement as both the agreements were on the non-judicial stamp paper and both were duly notarized. The Id. counsel has also contended that at the time of search us. 132(4) the assessee has clearly stated that the said Banakhat was cancelled. The Id. counsel has further submitted that the assessing officer has not disclosed the fact to the assesse that Mr. Rameshbhai Desai has not made compliance to the summon. The assessing officer has kept it behind the back of the assessee just to make addition without saying the assessee to produce Mr. Rameshbhai Desai. The assessing officer has completely ignored the fact that no sale deed was executed with the assessee. The assessing officer has ignored the documentary evidences that the said person was not the owner of the land and the title of the land was in dispute. On the other hand, the Id. departmental representative has supported the order of the lower authorities.
14. We have heard the rival contentions and perused the material on record. A search action u/s. 132 of the Act was carried out on the group cases on Shayona Group on 15th October, 2013 in which the residence of the assessee was also covered. A survey u/s. 133A of the Act was also conducted at the office premises of the partnership firm in which the assessee was a partner and a banakhat pertaining to land transaction was found and impounded during the course of survey action at the premises of the firm. On the basis of said banakhat impounded during the course of I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 8 Shri Suresh Ranchhodbhai vs. ACIT survey, the assessing officer has made addition of Rs. 1.8 crores in the case of the assessee u/s. 153A of the Act stating that assessee has paid cash of Rs.1.8 crores to Rameshbhai Desai on 28th March, 2010. A search action u/s. 132 of the act was carried out in the case of the assessee on 15th October, 2013 and unabated assessment u/s. 143(3) r.w.s. 153A of the Act was completed for assessment year 2010-11 on 14th March, 2016. It is undisputed fact that during the year consideration there was unabated assessment made in the case of the assessee u/s. 153A of the Act. The assessing officer has made addition of Rs. 1.8 crores on the basis of banakhat impounded during the course of survey u/s. 133A at the premises of the assessee firm. Therefore, it is clear that addition was made only on the basis of material found during the course of survey at the premises of the firm where the assessee was a partner. The Id. CIT(A) has also stated the document on the basis of which addition was made was not seized document but only impounded from assessee's associate firm during survey however the Id. CIT(A) has treated the assessment made u/s. 153 A of the act as valid unabated assessment without any valid reason. It is also noticed that in the related cases of the firm Shayona Land Corporation for assessment year 2010-11 & 2012-13 to 2014-15 in respect of on money receipt based upon document seized from the other group concern of the assessee firm the assessment framed u/s. 153 A of the Act was held as invalid by Id. CIT(A). It is noticed that Id. CIT(A) in his finding has made self assumption by putting question to himself holding that impounded document was neither arbitrary nor baseless for making addition u/s. 153 A of the act. After perusal of the provision of section 153 A of the Act, we do not find any merit in the finding of Id. CIT(A). The section 153 A proceeds on the basis of search u/s. I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 9 Shri Suresh Ranchhodbhai vs. ACIT 132 or requisition u/s. 132A of the act. There is no reference to survey u/s. 133 A of the Act and power u/s. 153 A could only have been exercised in the case of search or requisition. In the case of the assessee there was unabated assessment, therefore, completed assessment could not be disturbed in absence of contrary material found during search. The Jurisdictional High Court in the case of Pr. CIT vs. Shaumya Construction Pvt. Ltd. (2016) 387 ITR 529 held that assessment u/s. 153A in the case of unabated assessment should be connected with money found during the course of search and the Hon'ble Jurisdictional Gujarat High Court in the case of Pr. CIT Vs. Arvind Joshi & Co. ITA 1394/2019 dated 12 Feb, 2019 has held that the assessing officer whiling framing assessment has not relied upon any incriminating material found during search in the case of unabated assessment u/s. 153A(l)(b) unless such assessment is based upon incriminating document seized/impounded during the course of search no addition can be made. In the case of DCIT Central Circle Agra vs. Gupta Academic Pvt. Ltd. vide ITA 692/Agr/2008 dated 25th June, 2019 the Co-ordinate Bench of the IT AT Agra has held that the documentary evidences were seized in the case of the search but in fact they were impounded in the course of survey in the premises of the assessee hence the very basis assuming jurisdiction r.w.s. 153C becomes untenable, therefore, the very order passed u/s. 153A is held to be void. In the light of the above facts and findings and judicial pronouncements, we consider that addition of Rs. 1.8 crores made in the unabated assessment u/s. 153A of the Act on the basis of document impounded during the course of survey at the associated premises of the firm is not valid, therefore, we set aside the order of ld. CIT(A) on this issue and allow the appeal of the assessee. Since we have quashed addition made in I.T(SS).A Nos. 394 to 397/Ahd/2017 A.Y. 2010-11 & 2012-13 to 2014-15 Page No 10 Shri Suresh Ranchhodbhai vs. ACIT the assessment framed u/s. 153A of the Act based on the document found and impounded during survey u/s. 133 A of the Act, therefore, we do not find any need to adjudicate the remaining grounds of appeal on merit. Accordingly, the appeal of the assesse is allowed.
15. In the combined result, appeal ITA 394Ahd/2017 is allowed and all the three ITA appeals 395/Ahd/2017, 396/Ahd/2017 & 397/Ahd/2017 are allowed for statistical purposes.
Order pronounced in the open court on 19-08-2020
Sd/- Sd/-
(MAHAVIR PRASAD) (AMARJIT SINGH)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad : Dated 19/08/2020
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. Assessee
2. Revenue
3. Concerned CIT
4. CIT (A)
5. DR, ITAT, Ahmedabad
6. Guard file.
By order/आदे श से,
उप/सहायक पंजीकार
आयकर अपील य अ धकरण,
अहमदाबाद