Income Tax Appellate Tribunal - Mumbai
Dcit Cc 6(4), Mumbai vs Yug Developers Ltd, Mumbai on 11 July, 2017
आयकर अपीलीय अिधकरण, मुंबई "जी" खंडपीठ म Income-tax Appellate Tribunal -"G"Bench Mumbai सव ी राजे ,लेखा सद य एवं सी. एन. साद, याियक सद य Before S/Sh.Rajendra,Accountant Member and C. N. Prasad,Judicial Member आयकर अपील सं./I.T.A./4744 to 46/Mum/2015, िनधा रण वष /Assessment Year: 2007-08 to 2009-10 Dy. CIT-CC-6(4)(Erstwhile ACCC-39) M/s. Yug Developers Ltd. Cent. Circle-6(14), Room No.32(1), 11 B, Mittal Towers, B Wing, Nariman Vs. Ground Floor, Aayakar Bhavan, M.K. Point, Mumbai-400 021.
Road, Mumbai-400 020. PAN:AAACY 2923 K
(अपीलाथ /Appellant) ( यथ / Respondent)
राज व क ओर से / Revenue by: Smt. Vidish Kalra-CIT-DR
अपीलाथ क ओर से /Assessee by: Shri Vijay Mehta
सुनवाई क तारीख / Date of Hearing: 11/07/2017
घोषणा क तारीख / Date of Pronouncement: 11/07/2017
लेखा सद य,
सद य राजे
के अनुसार/
ार PER Rajendra A.M.-
Challenging the orders ,dated 31.3.2015 of CIT(A)-54,Mumbai the Assessing Officer (AO) has filed the present appeal for the above mentioned assessment years (AY.s). As the issue involved in these appeal are identical,except for the amounts involved,so,we are adjudicating them together for the sake of convenience.The details of filing of return of income, returned incomes, assessed income can be summarised as under :
AY. ROI filed on Returned Income Assessed income Asstt. Order dtd. 2007-08 13/10/2007 (-)Rs.2,106/- Rs.85.04 lakhs 29/12/2010 2008-09 07/09/2008 Rs.12,772/- Rs.83.40 lakhs 29/12/2010 2009-10 25/09/2009 (-) Rs.34,666/- Rs.75.75 lakhs 29/12/2010 ITA/4744/Mum/15(2007-08),Brief facts:
2.Effective Ground of appeal is about deleting the addition of Rs.40.12 lakhs,made by the AO, u/s. 69C of the Act.A search and seizure action was carried out on 5/3/2009 in the cases of Jai Corp Group; its employees and close associates who were involved in acquiring pieces of land.The group was partner in two major up-coming Special Economic Zone-SEZ namely, Navi Mumbai Special Economic Zone (NMSEZ) and Mumbai Special Economic Zone (MSEZ).One Anand Jain was Chairman of both the zones and it had purchased huge chunk of land in the vicinity of the SEZ.s to develop township in the areas.It had also purchased huge agricultural/non agricultural land in the suburbs of Mumbai, Thane, Panvel and Alibaug. One of the land aggregator was Ganesh Atmaram Mukashe (GAM). The Pune business Centre of Jai Corp was surveyed u/s.133A of the Act.Pursuant to the search,notices u/s. 153A were issued and served on various assessees,including the assessee under consideration. After considering the explanation of the assessee with regard to documents seized from the 4744-46/M/15-Yug Developers premises of GAM and the office premises of Jai Corp Group,Pune the AO held that the assessee had made unaccounted cash payment/on money payment amounting to Rs.40.12 lakhs for its land transactions.Treating the investment as unexplained expenditure u/s.69C of the Act,the AO added the same to the total income of the assessee.
3.Aggrieved by the order of the AO the assessee made elaborate submissions. After considering the submission of the assessee and referring to order of the Tribunal in the case of Jai Corp Limited for the AY.s 2007-08 to 2009-10,dated 26/11/2014,he held that facts of the case under appeal were similar to the facts of Jai Corp Ltd., that the additions were made on the same set of documents seized from the premises of GAM or impounded from the Pune office of Jai Corp Group. Following the order of the Tribunal he deleted the addition made by the AO.
4.During the course of hearing before us,the Departmental Representative (DR) supported the order of the AO.The Authorised Representative (AR) referred to the order of the Tribunal ITA.s/6011, 4454,6012/Mum/2012 dated 26/11/2014. We find that the Tribunal had while deciding he above appeals at page-8-11 (para 10 to 13) has dealt the issue as under :-
"Ground No.6
10. Vide ground No.6, the Revenue has agitated the action of the ld. CIT(A) in deleting addition of Rs.35,35,890/- made on the basis of seized material found from the residence of Shri Ganesh Mokashe.
11. Brief facts relating to the issue are that during the course of search and seizure operation in the case of group companies of the assessee, various documents were found and seized, on the basis of which, the statements of Shri Anand Jain, Shri Virendra Jain, Shri Gaurav Jain, Shri L.M. Dhanda, Shri Jeevan Surve, Shri Atul Pawar, Shri Hiren Oza, Shri Dilip Dherai and Shri Sanjay Punkhia were recorded. On the basis of the seized documents and statements recorded during search, the AO issued a show cause notice to the assessee company for submitting the details relating to seized papers. The AO observed that in case of the assessee company, Shri Ganesh Mokashe, Shri Madan Kolambekar and Shri Mahendra Banthia were the land aggregators to whom the assessee company had made payments and they brought offers of land deals to the company. After getting the consent of the assessee company, the land aggregator utilized the money received as advance for making advances to various formers/ investors/sellers. The AO held that the assessee company had made purchases in Naigaon village and unaccounted cash of Rs.35.36 lacs had been paid out of the books and accordingly treated it as undisclosed income u/s. 69B of the Act.
12. The ld. CIT(A), however, deleted the said addition observing as under:
"5.3. I have considered the submissions of the appellant, order of the AO and facts of the present case carefully, it is noticed that this issue has been decided by the Ld. CIT(A)-36 in case of the assessee for A.Y. 08-09 by holding as under:
"I have considered the submissions of the appellant and the order of the AO. The AO made an addition of Rs.70,96,719/- on account of alleged undisclosed investments in the purchase Na gaon land u/s.69B of the Act. I have perused the seized materials relating to this issue carefully. I find that the AO has relied on various seized materials as discussed in the assessment order. On the basis of seized materials found from the residence of Shri Ganesh Mokashe and impounded from the office of the appellant, the AO came to the conclusion that the appellant has made an investment to the tune of Rs.70,96,719/-. A perusal of the seized materials indicates that the impounded materials from the appellant's office as well as from the residence of Shri Ganesh Mokashe does not reveal any fact that the appellant has made investments of the said land in the purchase of 2 4744-46/M/15-Yug Developers land at Naigaon Taluka, Mawal Dist Pune bearing Gat/Survey No.73/78 respectfully. The appellant has only purchased land at these two places and besides this, no land has been purchased by the appellant during the year. The seized material found from the residence of Shri Ganesh Mokashe as well as the seized material impounded from the office of Jai Corp Group at Nakoda does not speak at all about the purchase of this land, rather these papers are related to some other transactions - not done by the appellant during the year under consideration.
8.7 Further, the appellant is dealing with Shri Ganesh Mokashe on principal-to- principal basis. The land purchased by the appellant at Naigaon is duly registered and stamp duty has been paid by the appellant. The consideration paid for the purchase of this land is inconformity with the rates of ready reckoner of the Stamp Duty Authorities. Further, I notice that all the payments in respect of purchase of land were made by cheque only, no evidence of any kind has been either found during the course of search at the residence of Shri Ganesh Mokashe and the appellant. Further, the facts reveal that Jai Corp Ltd entered into an agreement for sale for purchase of agricultural land in Village Naigaon Taluka, Mawal Dist Pune; conditions in the agreement for sale was that the land has to be converted into non-agricultural land and only thereafter, the land will be transferred by a Deed of Conveyance. The possession of land was not given by the seller of the land till date. It is further noticed that before and after entering into an agreement for sale, the seller's name is appearing in 7/12 Abstract and all land records, nowhere the Jai Corp Ltd., as owner of the land is appearing in land records maintained by the Gram Panchayat. Even the latest 7/12 Abstract was issued on 05-01-2012, Name of owner are the sellers of the land are appearing. During the course of appellate proceedings, the appellant filed copies of ready reckoner for the relevant period, wherein Gut No.78 and 73 comes in S. No. I called Dongerpad but no rate given in column Rate per hector. Further, I notice that in Gut No.78 Agreement Value Rs.53,07,250/- has been shown, whereas Market Value Rs.15,46,763/- is given by Sub-Registrar of Vadgaon-Maval. Similarly, in Gut No.73 Agreement Value is Rs.72,45,000/-, whereas the Market Value has been shown at Rs.24,84,000/-by Sub-Registrar of Vadgaon-Maval. Thus, the appellant has purchased this land by paying thrice the market value of the land. When the appellant has purchased land at such an exorbitant rate, the question of incurring any investment in cash seems to be unbelievable. Further, there is no evidence on record to substantiate that the appellant has made any investment in cash. Accordingly, I find that there is no justification of making an addition of Rs.70,96,719/- on account of alleged undisclosed investment. Accordingly, the addition of Rs.70,96,719/- is deleted and the ground of appeal of the appellant is allowed."
5.4 Keeping in view the facts & circumstances that Ld. CIT(A)-36 has decided this issue in favour of the assessee. The same decision is followed in the present case because the seized papers relied on by Ld. CIT(A)-36 for A.Y. 08-09 are the same for assessment year under consideration. It is pertinent to mention here that the seized papers in the present case are entirely different from the seized papers in case of 52 land companies (group Cos. of the assessee). However the AO has interpreted these pages on the basis of the pages seized in those cases. The interpretation of seized papers has to be made keeping in view the context and the relevant case. There is no mention of cash payment made by the assessee over and above the cheque payment shown in the books of account. Therefore on the basis of the seized papers and other cases the same interpretation cannot be applied in this case. In totality of facts & circumstances, it is held that the seized papers in this case are totally different to the papers seized in other land companies of the assessee group. Therefore, the addition made by the AO is not sustainable, hence deleted. Ground of appeal is allowed."
13. Before us, the ld. D.R. could not show from the record that the alleged documents seized during the search and seizure operation were pertaining to the assessee or that the assessee had made undisclosed investments in the property as alleged.
On the other hand, the ld. counsel for the asessee has successfully brought our attention to the fact that a categorical finding has been given by the ld. CIT(A) that the relation of the assessee with Shri Ganesh Mokashe was on principle to principle basis. Whatever the land was purchased by the assessee at Naigaon was duly registered and stamp duty thereupon had been paid by the assessee. The consideration paid for the purchase of such land was not only inconformity with but was more than the rates of ready reckoner of stamp duty authorities. All the payments in respect of purchase of land were made by cheque only and no evidence of any other kind had 3 4744-46/M/15-Yug Developers been found during the course of search which would show any relation of the assessee with the purchase of land out of undisclosed investments. Under such circumstances, the Revenue has failed to point out any fact or document on the file which can be related to the assessee showing undisclosed investment. We do not find any infirmity in the order of the ld. CIT(A) on this issue also. Accordingly, this ground of the appeal of the Revenue is also hereby dismissed." Respectfully following the above order,we hold that the order of the FAA does not suffer from any infirmity.So confirming his order we decide effective order against the AO.
ITA/4745/Mum/15(2008-09) and ITA/4746/Mum/15(2009-10):
Facts for both the AY.s are identical to the facts of the AY 2007-08. As stated earlier the only difference is the amount involved.So,following our order for AY.2007-08,we uphold the order of the FAA.
As a result, appeals filed by the AO for all the three AY.s stand dismissed.
फलतः िनधा रती अिधकारी
ारा तीन िन.व.के िलए दािखल क गई अपील नामंजूर क जाती ह .
Order pronounced in the open court on 11th,July , 2017.
आदेश क घोषणा खुले यायालय म !दनांक 11,जुलाई, 2017 को क गई ।
(सी. एन. साद / C.N.Prasad ) (राजे
/ Rajendra)
Sd/- Sd/-
याियक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
मुंबई Mumbai; दनांक/Dated : 11.07.2017.
Jv.Sr.PS.
आदेश क ितिलिप अ ेिषत/Copy of the Order forwarded to :
1.Appellant /अपीलाथ 2. Respondent /
यथ
3.The concerned CIT(A)/संब अपीलीय आयकर आयु , 4.The concerned CIT /संब आयकर आयु
5.DR "G " Bench, ITAT, Mumbai /िवभागीय ितिनिध, खंडपीठ,आ.अ. याया.मुंबई
6.Guard File/गाड फाईल स यािपत ित //True Copy// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपीलीय अिधकरण, मुंबई /ITAT, Mumbai.4