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TMI Blog2017 (11) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... ound, as under :- " That on the facts and circumstances of the case and in law, the CIT (Appeals) erred in rejecting the appellant's contention that the assumption of jurisdiction by the Assessing Officer for making assessment u/s 153C was bad on facts and in law on the ground that the Assessing Officer of the searched person had not recorded satisfaction in the file of the searched person, for assuming jurisdiction u/s. 153C of the Act in the case of the appellant. " 3.1 Assessee is one of the group company of M/s BPTP Ltd, which is the Flagship company, engaged in the development of real estates. The assessee has either acted as a land holding company purchasing land and transferring the development rights in respect of land purchased to BPTP Ltd. or accumulating development rights in respect of land purchased by other group companies and transferring these land development rights to BPTP Ltd. A search was conducted on M/s BPTP Ltd on 15.11.2007 whereby some documents were seized. As some documents were found to belong to the assessee i.e. M/s Countrywide Promoters Pvt. Ltd, action u/s 153C of the Act was taken and a notice u/s 153C of the Act was issued to the assessee on 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances of the case and in law, the CIT (Appeals) erred in holding, to quote, "that seized documents definitely proves that interest is paid on PDC' in view of the fact that no enquiries were made from any of the alleged recipients of interest to that effect and none was confronted with the relevant document(s); 3.1 That the findings of the Assessing Officer and CIT (Appeals) are based on mere surmises and conjectures without proof and corroboration by independent evidence that any interest was actually paid by the appellant and received by the recipient. " 5. Ground No.1 of Department Appeal : This ground is as under :- " 1. On the facts and in the circumstances of the case, the CIT (Appeals) has erred in deleting the addition of Rs. 1,72,42,433/- made by the Assessing Officer in assessment year 2006-07 on account of interest on PDCs paid outside the books of account. " 5.1 The grounds of the assessee and the Department are dealt with together. 5.2 It has been pointed by the assessee that the addition of Rs. 1,72,42,433/- has since been rectified to Rs. 77,36,402/- by the Assessing Officer vide order u/s 154 dated 31.03.2010 and copy of order u/s 154 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 in ITA Nos. 1674/D/2013 and 1765/D/2013 for assessment year 2008-09. In this order, in para 3, the Tribunal held as under :- " The CIT (Appeals) directed to recalculate the interest on PDCs and there was a sound logic for such direction. His direction is based on material found and seized at the time of search. In view of the above, we do not find any justification to interfere with the order of learned CIT(A) in this regard and accordingly, we reject ground No.1 of the Revenue's appeal. " 6.1 It was submitted by the learned AR that the facts of the case of M/s IAG Promoters and Developers Pvt. Ltd. (supra) and those of the assessee are identical. It was stated that the said order in M/s IAG Promoters and Developers Pvt. Ltd. has been accepted by the Department and no appeal has been filed to the Hon'ble High Court. It was also pointed that the said order has since been followed in number of the cases by the Coordinates Benches, of ITAT, Delhi for which a compilation was filed. It was therefore submitted that the order in case of M/s IAG Promoters and Developers Pvt. Ltd. may be followed and the appeal of the Department on Ground No. 1 be dismissed. 6.2 The learned CIT-DR i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned AR filed copies of those seized documents which were relied and argued by the Ld. CIT-DR and show that most of these documents either do not belong to the assessee or did not pertain to the year under consideration. 6.4 It was submitted that in the assessment order of M/s IAG Promoters and Developers Pvt. Ltd. also, same 54 seized documents were used by the Assessing Officer. Not only that the same seized documents were used in the assessment of M/s IAG Promoters and Developers Pvt. Ltd., the conclusion drew by the Assessing Officer in that case was also identical. The Assessing Officer had worked the addition of interest on PDCs of Rs. 506625/- in that case. 6.5 We were also taken through the relevant portions of the orders of the learned CIT (Appeals) in the two cases. The learned CIT (Appeals) in both the cases specifically dealt with the very same 54 seized documents and gave his finding. In the case of M/s IAG Promoters & Developers Pvt. Ltd., the learned CIT (Appeals) dealt with the seized documents in para 5 at pages 4 to 15 and gave his finding in para 5.4; the concluding portion of the finding was this :- " If it is not possible to work out the extension of PDCs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a vs. Paras Laminates Pvt. Ltd. 1991 AIR 696, where it was held :- " It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question. -------------------------------. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of Tribunals or Courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters. Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the administration of justice. " Hon'ble MP High Court in Agarwal Warehousing and Leasing Ltd v. CIT 257 ITR 235 (MP) has held that the orders passed by the Tribunal are binding on all the tax authorities functioning under the jurisdiction of the Tribunal. While so holding it followed the decision of the Hon'ble Supreme Court in UOI v. Kamlakshi Finance Corporation Ltd AIR 1992 SC 711, 712 which has ruled thus :- " The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n M/s Saraswati Kunj Infrastrucure Pvt. Ltd in ITA No. 1369/Del/2013 & 1766/Del/2013 for the assessment year 2007-08; Order of ITAT 'C' Bench, New Delhi dated 29.04.2015 in M/s Business Park Builders Pvt. Ltd in ITA No. 1768/Del/2013 & 1530/Del/2013 for the AY 2006-07 and ITA No.1733/Del/2013 for the assessment year 2007-08; Order of ITAT 'C' Bench, New Delhi dated 29.04.2015 in M/s Anupam Tower Pvt. Ltd in ITA No.1740/Del/2013 & 1536/Del/2013 for the assessment year 2006-07; Copy of order of ITAT 'C' Bench, New Delhi in case of M/s ISG Estate Pvt. Ltd. in ITA. Nos. 1532/Del/2013 and 1756/Del/2013 dated 23.01.2015 for the assessment year 2006-07; Copy of order of ITAT 'B' Bench, New Delhi in M/s Fragrance Construction Pvt. Ltd in ITA No. 2547/Del/2013 & 2314/Del/2013 for the assessment year 2008-09; Copy of order of ITAT 'B' Bench, New Delhi in case of M/s Druzba Overseas Pvt. Ltd in ITA No. 2545/Del/2013 dated 25.02.2015 for the assessment year 2008-09; Copy of order of ITAT 'B' Bench, New Delhi in case of M/s Eventual Builders Pvt. Ltd in ITA No. 1368/Del/2013 for the assessment year 2007-08; Copy of order of ITAT 'A' Bench, New Delhi in M/s Business Park Ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T (Appeals) has been affirmed by the Tribunal in the case of M/s IAG Promoters & Developers Pvt. Ltd. (supra). By the principle of judicial discipline and doctrine of precedent and as there is no change in the facts of two cases, we are bound by the order in the case of M/s IAG Promoters & Developers Pvt. Ltd., which has also been consistently followed by various Coordinate Benches of the ITAT. 7. Before concluding, it may be stated that the learned CIT-DR argued some of the seized documents. In rejoinder the learned AR has explained in writing those documents and submitted that most of these seized documents not belong to assessee and none of these seized document relate to period under consideration. We are afraid that we cannot take cognizance of the arguments made by the CIT-DR on the seized documents and also of the rejoinder by the learned AR on them, because that would be amounting to revisiting the same documents, which have already been considered in the M/s IAG Promoters & Developers Pvt. Ltd. (supra) by the Tribunal and on which decision has already been given and also by the successive Benches in the cases which followed the order of M/s IAG Promoters & Developers Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged the addition made before the learned CIT (Appeals). It was submitted that no deduction has been claimed by assessee with regard to the additional payment for the purchase of land and hence, no disallowance can be made. The learned CIT (Appeals) did not accept the contention of the assessee. The learned CIT (Appeals) held that there is no violation of any of the provisions of stamp duty and provisions of Section 37(1) are not applicable in respect of disallowance of Additional payment. He gave certain directions to quantify the disallowance made. These directions were to the following effect in para 7.3.8 :- " Additional Payment made is in connection with possession of particulars land, therefore, it is in business expediency. Therefore, additional payment to the extent of enhancement in land price is an allowable expenditure, as the same is not covered to be included for stamp duty, as it is subsequent phenomena. However, as in some cases, the additional payment itself is questioned or payment is not made to owner of land, etc., Those payment, I do not find for business expediency as these person to not have legal right over the land in question, the same is not mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.1733/Del/2013 for the assessment year 2007-08; Order of ITAT 'C' Bench, New Delhi dated 29.04.2015 in M/s Anupam Tower Pvt. Ltd. in ITA Nos. 1740/Del/2013 & 1536/Del/2013 for the assessment year 2006-07; Copy of order of ITAT 'C' Bench, New Delhi in case of M/s ISG Estate Pvt. Ltd. in ITA. Nos. 1532/Del/2013 and 1756/Del/2013 dated 23.01.2015 for the assessment year 2006-07; Copy of order of ITAT 'B' Bench, New Delhi in M/s Fragrance Construction Pvt. Ltd in ITA Nos. 2547/Del/2013 & 2314/Del/2013 for the assessment year 2008-09; Copy of order of ITAT 'A' Bench, New Delhi in M/s Business Park Overseas Pvt. Ltd in ITA Nos. 1731/Del/2013 & 1403/Del/2013 for the assessment year 2006-07. 9.3 The learned CIT-DR contended that the order of the Co-ordinate Bench in M/s Westland Developers Pvt. Ltd (supra) be not followed on the ground that the facts in the present case were different from the facts in the case of M/s Westland Developers Pvt. Ltd (supra). It was argued by her that Additional payment is not recorded in books of account. It was pleaded that the expenditure was required to be considered in the hands of the assessee. It was also contended that the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenditure was never claimed as assessee's business expenditure the occasion to make a disallowance of the same does not arise. On this fact there is no dispute as admittedly the expenditure was not claimed as an expense by the assessee and consequently has not been routed through its P & L A/c. In the circumstances, the occasion to make an addition of the same by way of a disallowance in these peculiar facts and circumstances of the case does not arise. The reasoning and finding given while considering the arguments qua Ground No. 4 would fully apply here also. The difference that here the entire amount is added u/s 37 as opposed to part of the expenditure disallowed U/S 40A(3) is not so material as the finding is arrived at taking cognizance of the material fact that herein also no such claim of expenditure has been made. The fact that the additional payments were warranted in order to avoid potential disputes amongst the claimants of the land holding which have been passed through to the land holders from generation to generation wherein there may be informal arrangements of ownership and or the payments were for commercial expediency to facilitate peaceful possession and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding the disallowance u/s. 40A(3) of Rs. 32,28,037/- in respect of which no deduction was claimed by the appellant. 5.1 That even on merits the disallowance was not justified. " 10.1 The assessee company had made cash payments for acquiring certain lands. The Assessing Officer invoked provision of section 40A(3) and disallowed 20% amounting to Rs. 32,28,037/-. The assessee being aggrieved filed appeal before the learned CIT (Appeals), who confirmed this disallowance. Being aggrieved, the assessee is in appeal before us. 10.2 The learned AR submitted that the issue in question is fully covered in favour of the assessee by the order of the Tribunal in case of Westland Developers Pvt. Ltd in ITA No.1752/Del/2013 vide order dated 22.08.2014 for the AY 2006-07. It was submitted that this order of the Tribunal has been accepted by the Department and no appeal has been filed before the Hon'ble High Court. It was also submitted that on identical facts the order of the Westland Developers Pvt. Ltd. (supra) has been followed in the following cases by the various Coordinate Benches :- Order of ITAT 'C' Bench, New Delhi in case of M/s Glitz Builders and Promoters Pvt. Ltd 1747/Del/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d supra) which has been relied upon before us for the proposition that reimbursement of expenses cannot be treated to be a Revenue receipt. How the judgement of the Apex Court in Tuticorin Alkali Chemicals & Fertilizers is applicable to the facts of the present case has not been set out in the order of the authorities nor has the Ld. DR been able to address the applicability of the said judgement to the issue at hand. We have taken ourselves through the said judgement and seen that it proceeds on entirety different facts and circumstances and has no applicability to the facts of the present case. Consequently, it is seen that from the ratio of the judgements relied upon before the CIT(A) and also before us which have been discussed in the earlier part of this order no arguments have been advanced by the Revenue so as to contend how they are not applicable to the case at hand, no distinguishing fact, circumstance or position of law has been relied upon so as to come to a contrary finding than the one arrived at. Accordingly on a consideration of the peculiar facts and circumstances of the case and the judgements relied upon considering the relevant provision of the Act namely Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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