Income Tax Appellate Tribunal - Ahmedabad
The Dcit, Central Circle-1(4),, ... vs Shri Dilip B. Patel,, Ahmedabad on 10 December, 2018
आयकर अपील
य अ धकरण, अहमदाबाद यायपीठ ।
IN THE INCOME TAX APPELLATE TRIBUNAL,
"C" BENCH, AHMEDABAD
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
AND
SHRI AMARJIT SINGH, ACCOUNTANT MEMBER
IT(SS)A.No.177/Ahd/2017
WITH
CO. No.66/Ahd/2017
नधा रण वष / Asstt. Year: 2009-2010
DCIT, Cent.Cir.1(4) Shri Dilip B. Patel
Ahmedabad. Vs. 1-B, Dastan Model Farm
Naroda Kathwada Road
Kathwada, Tal. : Daskroi
Ahmedabad 382 330
PAN : AALPP 4236 G
(Applicant) (Responent)
Revenue by : Shri O.P. Sharma, CIT-DR
Assessee by : Shri Dhiren Shah, AR
सन
ु वाई क तार ख/ Dateof Hearing : 06/12/2018
घोषणा क तार ख / Date of Pronouncement: 10/12/2018
आदे श/O R D E R
PER RAJPAL YADAV, JUDICIAL MEMBER:
Revenue is in appeal before the Tribunal against order of ld.CIT(A)-13, Ahmedabad dated 16.1.2017 passed the Asstt.Year 2009-10. On receipt of notice on Revenue's appeal, the assessee-respondent filed cross-objection bearing CO.no.66/Ahd/2017.
2. Only grievance raised by the Revenue in its appeal is that the ld.CIT(A) has erred in deleting addition of Rs.1,28,00,000/- on account of undisclosed income.
IT(SS)A No.177/Ahd/2017 with CO 2
3. Brief facts of the case are that the assessee has filed its return of income on 31.3.2010 declaring total income at Rs.1,76,720/-. A search under section 132 of the Income Tax Act was conducted on 21.7.2011. In response to the notice received under section 153A, the assessee has filed return on 9.5.2012 declaring total income at Rs.1,77,010/-. The ld.AO has observed that during the course of search from the office premises of the assessee, one banachitti dated 8.4.2008 was found and inventorised at page no.37 of Annexure B/1. According to this banachitti land admeasuring 7360 sq.yards comprised at Hanspura Block No.120 and Block No.119, Tal. Daskroi, Sub-Dist., Ahmedabad, Naroda was sold to the assessee for consideration of Rs.1,28,00,000/-. The ld.AO has reproduced scanned copy of banachitti on page no.3 of the assessment order. He confronted the assessee with regard to this document. The assessee contended that he had never acquired this land. He has no connection with this land. This fact could be verified from the record. The land lord has sold this land to some other person, and therefore no unexplained investment be construed in the hands of the assessee. The ld.AO was not satisfied with the explanation of the assessee. He observed that the assessee failed to prove that he has not made investment in the land. Accordingly, he made addition of Rs.1,28,00,000/-. Dissatisfied with the addition, the assessee carried the matter in appeal before the ld.CIT(A). The ld.CIT(A) has deleted the addition by recording following finding:
"5. I have perused the assessment order and the written submissions along with paper-book from page no. 1 to 113 filed by the appellant. The A.O. has relied mainly on a banakhat agreement, which was found from the office premises of the appellant. It was submitted by the appellant that he is a legal adviser of the main persons of Galaxy Group and thus, of and on such sales/purchase agreements are given to him for legal advice. The appellant submitted the banachitti relied by the A.O. is one such agreement which was found at his office premises, wherein his name never appeared as a buyer of land No. 120 and 119. It was further pointed out that the land at No. 119 was acquired IT(SS)A No.177/Ahd/2017 with CO 3 sometime in 2006 and 2009, which was ultimately sold to a different entity on 05/06/2009. Relevant documents for sale of this land to the entity other than the appellant, was placed on page no. 57 of the paper- book so filed. Similarly, the land No. 120 at Hanspura block was sold to some other person, other than the appellant on 06/10/2010 and the same is evidenced from page no. 83 of the paper-book so filed. Thus, there is a factual force in the argument of the appellant that appellant has no connection at all with reference to the seized documents, which is relied on by the A.O. The fact cited by the A.O. that the appellant has made a payment of Rs.80 lakhs upto 07/04/2008 and another additional payment of Rs.48 lakhs prior to 08/04/2008, is factually incorrect, as nowhere in the banachitti such fact is evident. In my view, the conclusion drawn by the A.O. in making an addition of Rs.1.28 crores as undisclosed investment by the appellant in acquiring the two blocks of land is devoid of merits. In view of the above, the addition of Rs.1.28 crores is directed to be deleted. This ground raised by the appellant, is therefore allowed."
4. With the assistance of ld.representatives, we have gone through the record. A perusal of the order of the ld.CIT(A) would indicate that the ld.CIT(A) has recorded a categorical finding of fact that the assessee has not made any investment for purchase of these two pieces of land. According to the ld.CIT(A), the AO failed to bring any evidence on record suggesting connection of the assessee with regard to the transaction of these land. We further find that the AO has put a negative onus upon the assessee to prove that he has not made any investment in these pieces of land. We are of the view that it is for the ld.AO to demonstrate that these piece of land have been purchased by the assessee by unexplained sources. This fact could be corroborated, if the AO had recorded statements of land owners appearing in the land revenue record i.e. Shri Chehrabhai Mevabhai Rabari and Shri Kantibhai Nanubhai Prajapati. The AO has not made any such efforts. In the land revenue record name of the assessee never cropped up; then how it can be assumed that the assessee has purchased land merely on the basis of banachitti on which signatures of the assessee was not available ? Therefore, the AO failed to establish any link of the assessee with the transaction. The IT(SS)A No.177/Ahd/2017 with CO 4 ld.CIT(A) has rightly deleted the addition. We do not find any merit in this appeal of Revenue. It is dismissed.
5. So far as Cross objection filed by the assessee is concerned, the ld.counsel for the assessee did not press the CO for adjudication, as the same is merely in support of the order of the ld.CIT(A). Therefore, CO stands dismissed.
6. In the result appeal of the Revenue and CO of the Assessee, both are dismissed.
Order pronounced in the Court on 10th December, 2018 at Ahmedabad.
Sd/- Sd/- (AMARJIT SINGH) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER