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TMI Blog2018 (12) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances of these three years are quite identical and similar therefore, we are adjudicating these appeals together. 3. As agreed by both the parties, we are taking up appeal of the assessee for AY 2003-04 as a lead case for deciding these said three appeals. The grounds raised by the Assessee in ITA No. 104/RJT/2012 for AY 2003-04 read as follows: 1. The Honorable CIT (A) IV Ahmedabad has erred in law and on facts in upholding the rejection of books of accounts u/s. 145 of the Income Tax Act, 1961 by the Assessing officer. 2. The Honorable CIT (A) IV Ahmedabad has erred in law and on facts in upholding the contention made by the Assessing officer that Appellant Company has received on-money in respect of sale of all shops and offices based on loose paper found during the course of search proceedings. 3. The Honorable CIT (A) IV, Ahmedabad has erred in law as on facts in upholding the estimation of sales price of shops situated at Ground, 1st and 2nd Floor at Rs. 30,042/- per sq. meter and Rs. 22,000 in respect of offices situated at 3rd, 4th, and 5th Floor for the purpose of estimating the unaccounted receipts of the project "Cosmo Complex". 4. It is humb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for AY 2004- 05, 2005-06 & 2007-08 was completed on the date of search i.e., 15.09.2010 thus, these are the years, where assessment was not abated. The ld. DR also could not controvert the fact that no incriminating material was found during the course of search and seizure operation for these three years revealing the fact of earning on money or undisclosed income and there was not incriminating material in the hands of AO for these three years. 7. In view of above, we are inclined to hold that there was no incriminating material found during the course of search and seizure operation in the hands of assessee for AY 2004-05. Hence, respectfully following the ratio of the decision rendered by Hon'ble Jurisdiction High Court of Gujarat in various cases including judgment in the case of Soumya Construction (supra), therefore, we hold that the AO is not entitled and empowered to make any addition in the assessment order framed u/s. 153A r/w s. 143(3) of the Act for AY 2004-05 in absence of any incriminating material therefore, the addition made by the AO and reduced by the ld. CIT(A) is not sustainable and thus, we direct the AO to delete the entire addition made in absence of incri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly prayed that the reliefs as prayed for hereinabove and such other relief as may be justified by the facts and circumstances of the case and as may meet the ends of justice should be granted. 11. We have heard arguments of both the sides and carefully perused the relevant material placed on the record of the Tribunal inter alia, impugned assessment order framed u/s. 153A r/w. 143(3) of the Act dated 28.12.2011 and first appellate order dated 25.10.2012. The ld. AR submitted that CIT (A) has erred in law and on facts in upholding the rejection of books of accounts u/s. 145 of the Income Tax Act, 1961 by the Assessing officer. The ld. AR further submitted that CIT (A) has erred in law and on facts in upholding the contention made by the Assessing officer that Appellant Company has received on-money in respect of sale of all shops and offices based on loose paper found during the course of search proceedings. It is also submitted that ld. CIT (A) has erred in law as on facts in upholding the estimation of sales price of shops situated at Ground, 1st and 2nd Floor at Rs. 30,042/- per sq. meter and Rs. 22,000 in respect of offices situated at 3rd, 4th, and 5th Floor for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we go up from first floor to top floor. In the present case, undisputedly, the AO adopted rate of Rs. 30,042/- for all six floors equally whereas the ld. CIT(A) approved the rate of Rs. 30,042/- for ground, first and second floor and reduce the same to Rs. 22,000/- for third, fourth and fifth floor. 14. We cannot ignore that the ld. DR could not controvert the weighted average rate submitted by the assessee for all six floors, which cannot be accepted blindly but have persuasive value for estimation of floor wise rate of shops and offices sold by the assessee and for estimation of on money received by the assessee from sale of shops and offices on all six floors. Keeping into consideration totality of the facts and circumstances of the case, the general principle and guidance for valuation of rate of multi-story building from ground to top floor, rate adopted by the AO and ld. CIT(A) and weighted average rate submitted by the appellant, we are of the considered opinion that the assessee has not disputed the rate adopted by the ld. CIT(A) for ground and first floor of Rs. 30,042/-, which is must less than the weighted price of first floor as of Rs. 50,251.77 and little higher than ..... X X X X Extracts X X X X X X X X Extracts X X X X
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