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TMI Blog2014 (2) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee - Neither the findings could be controverted nor any other material were brought on record which can be said that findings of CIT (A) are not correct – thus, there was no infirmity in the order of CIT (A) deleting addition made u/s 69B of the Act - Decided against Revenue. - I.T.A. No. 146/JP/2013, I.T.A. No. 149/JP/2013 - - - Dated:- 31-1-2014 - Shri H. M. Maratha And Shri N. K. Saini,JJ. For the Petitioner : Shri D.C. Sharma, D.R. For the Respondent : Shri Mridul Goyal Vijay Goyal ORDER Per: N. K. Saini, A. M. These two appeals by the department are directed against the separate orders each dated 29/11/2012 of the CIT(A)(Central), Jaipur, Rajasthan. Common issues having identical facts are involved in these appeals, which were heard together, so these are being disposed off by this consolidated order for the sake of convenience. 2. First we will deal with ITA No. 146/JP/2013, following grounds have been raised in this appeal. 1. On the facts and in the circumstances of the case, the Ld. CIT(A), Central, Jaipur has erred in deleting the addition made by the A.O. on account of undisclosed investment on purchase of land at Rs. 1,31,02,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he similar addition on the basis of same document was deleted by the Ld. CIT(A) and the ITAT vide order dated 22/9/2012 confirmed the order of the Ld. CIT(A) and the relevant findings has been given in para 7 to 8.2, which read as under:- 7. After going through the written submissions filed on behalf of the assessee, we noted that the written submissions filed here before the Tribunal are almost similar to the written submissions filed before Ld. CIT (A). The Ld. CIT (A) has reproduced the written submissions filed before him in his order which has been incorporated in this order also. We have also taken into consideration the order of Assessing Officer, order of Ld. CIT (A) and argument of Ld. CIT D/R and found that Ld. CIT (A) has given a detailed reasoning for deleting the addition. The finding of Ld. CIT (A) remained uncontroverted. The Ld. CIT (A) has taken into consideration most of the reasons taken by Assessing Officer for making the addition and thereafter explanation filed by assessee before Assessing Officer as well as before him. The Ld. CIT (A) has also taken into consideration the remand report and re-joinder and then only has come to conclusion that there was no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to negate the argument of A.R. by observing that the market value is not mentioned in the column 4 of the impugned seized paper, therefore, as per the A.O., cost must have been mentioned, but A.O. failed to prove by positive evidence that the cost is mentioned in column 4 of the seized paper. Further, the AO failed to explain the nexus of the figures mentioned in column 1 and 3 with reference to figure of the alleged cost mentioned in column 4 of the impugned seized paper. In column 1, the figure 22.50 is mentioned and figure 169 is mentioned in column 3 against Pushp Garden. The AO herself has held that figure 22.50 does not indicate cost or market value per bigha of the land. However, the figure 22.50 cannot be a meaningless figure, particularly when it is written with reference to figure 400 mentioned in column 4 of the impugned seized paper. 5.3 I have also carefully examined another seized paper of Exhibit A-24/A-40 referred by the AO in assessment order. The seized page 142 of Annexure A-24 is an Email correspondence in between Shri G.K. Sharma and [email protected] wherein the land rate and interest in joint venture was asked to send and replies was given. Over this pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial increase in the market rate of the land. We estimated the market rate of each developed land (offered for negotiation for joint venture/ collaboration) at the time of negotiation and such estimated market value of the land was mentioned in column no 4 of the said seized paper. We offered the prospective party that our capital account should be credited by this amount against the capital contribution of land for the joint venture/collaboration, if the joint venture/collaboration is materialized. The figure is written in short at the time of negotiation by omitting five zero . 5.4 From the above affidavit, the assessee wanted to explain that market value of the land was estimated for the joint venture and such joint venture share being estimated upfront amount of market value of the land was mentioned in column 4 of the seized paper. The assessee further mentioned in the same para that its capital account should be credited by this amount against the capital contribution of the land for joint venture. If we read this para of the affidavit with reference to figure mentioned in seized page 159-161 of Annexure A-24, we find that full estimated market value of the land was 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at para 8 of the assessment order. (However, simultaneously, the A.O. has stated that it shatters the explanation of the assessee regarding page 37 of Ann. A-57 given during the course of search that in column no.4 coding was done in two zeros and the figure represented the land area in sq. yd. This observation of A.O. is correct.). 5.6 It was only at the last i.e at the time of fourth opportunity/ show cause that the A.O., on 13.12.10 has now proposed different amount namely Rs 4.00 crore as investment in purchase of land on the basis of the entry at column no. 4 of page 37 of Ann A-57 namely 400 and after being not satisfied with the explanation, in the final assessment order, the A.O. has held Rs. 4.00 crore as total purchase cost. However, on perusal of the reply of the appellant and other relevant details as also discussed in earlier paras, it is seen that the explanation of figure 400 so given by the appellant is acceptable that the same represents the estimated upfront amount to be received by the land owner in respect of some proposed project of joint venture, which is also clear from another specific proposal for such project having details on page 159 to 161 of Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying % also particularly regarding joint sharing being only 18.75% in Sports City, which is on account of the fact that the said land was quite uneconomical having low value as the same was under river bed which is clear from the Jambandi , wherein the land was shown as Khatali which means the land near river bed as is clear from the definition of the khatali furnished by the A.R. in the written submission. Similarly, for high sharing ratio of 80% in R.R. Farm, the A.R. has explained that this was the joint venture of the farmhouse wherein not much of investment is required by the developer and it is mainly the value of the land and accordingly land owner would have the main and major share. These explanations so given by the A.R. cannot be just rejected and are rather plausible. Thus it is clear that explanation of the figure in column no. 1 given by A.R. is not un-acceptable. Even for the moment and for the sake of argument, the explanation of column no. 1, so given by the appellant is not accepted to be correct, as was observed by the A.O. in the assessment order, then on the other hand then it is noticed that the A.O. has not been able to give any sort of explanation for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not be considered to be incorrect and is rather same is found to be plausible and accordingly addition of Rs. 2,61,66,611/- so made by A.O., holding Rs. 4.00 crore to be purchase price of land, is hereby deleted. Thus, the ground No 1, 2 and 3 are decided in favour of the assessee. 8. As stated above, neither these findings could be controverted nor any other material were brought on record which can be said that findings of Ld. CIT (A) are not correct. The Ld. CIT (A) has taken into consideration the aspect that firstly the Assessing Officer s view was that the cost of land was Rs. 4.55 crore or odd. Three show cause notices were given to the assessee for explaining that why the cost of the land be not taken at Rs. 4.50 crore or odd. All the three times, the explanation was filed and the AO was satisfied with the explanation. Therefore, the A.O. has not taken the cost of investment at Rs. 4.50 crore or odd. However, as per column no. 4 of page 37 of Exhibit A-57 which was seized from 73-75, Talkotra, Jaipur where figure of 400 was mentioned, the AO took this value as cost of investment in the property. Contents of page 37 of Annexure A-57 has been tabulated in the order of ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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