9911796707
TMI Blog2016 (5) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,48,42,565/- confirmed by the Ld. CIT(A) may kindly be deleted. 2. Disallowance of compensation paid to Frontline Financial Services Pvt Ltd of Rs. 27,28,000/- confirmed by the Ld. CIT(A) may kindly be deleted. 3. The brief facts of these cases are that the assesseecompanies were the co-owners of land bearing Plot No.67/1, in TP No.42, Village Sola, Thaltej, Ahmedabad. The land had been purchased by M/s. Care Cardiovascular Consultant Pvt. Ltd (herein after referred as 'CCCPL' for the sake of brevity) from the following 7 assessee-companies, including this assessee. i. Matang Properties Pvt Ltd, ii Martand Estate Pvt Ltd iii Maitrik Buildcon Pvt Ltd iv Medbhuti Complex Pvt Ltd v Madhumati Realty Pvt Ltd vi Madhuj Realty Pvt Ltd vii Tirth Developers Pvt Ltd 3.1 The land was sold by assessee-companies to CCCPL on 17.10.2007 for a consideration of Rs. 2.50 crore as per the documents registered. M/s. CCCPL is a company run by group of Heart Specialist Doctors, who are popularly known as "Heart Care Group' and this is headed by Dr. Keyur Parikh, who is a renowned Cardiologist. The main persons of the group are as under :- Cardiologists (1) Dr Keyur Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 236,81,275 5 Madhumati Realty Pvt Ltd 1998 215,36,270 6 Madhuj Realty Pvt Ltd 1997 215,25,492 7 Tirth Developers Pvt Ltd 2796 301,37,845 Against the above additions, all the seven companies have filed appeal before the CIT(A), wherein various contentions were raised by the assessee which are reproduced herein below:- "Addition on account of alleged cash payment received from CCCPL - Rs. 2,15,36,270/- In continuation of the Synopsis of Arguments dated 15.04.2011, the appellant company has to submit the bullet points arguments in a summarized manner as under:- i) There was no search proceedings in the case of the appellant company and other six co-owners appellant companies. ii) That the Notice u/s 153C dated 11.06.2009 was issued in the case of the appellant company and other five coowners appellant companies. The appellant company challenged the validity of notice issued u/s 153C of the Act dated 11-6-2009 and similarly and other five coowners appellant companies have also challenged the validity of the notices issued u/s. 153C dated 11-62009. iii) That the Ld A.O. informed the appellant company that the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material, there was no incriminating material where the name of the appellant company and other six co-owners appellant companies were appearing for the alleged cash transactions as well as in none of the given by the Directors of CCCPL and/ or any persons in the management of CCCPL the name of the appellant company or other six co-owners appellant companies referred to or found to be stated for alleged cash transaction. v) The appellant company has to submit that the first notice issued u/s. 153C of the Act has been admitted as invalid notice by the Ld A.O himself and even when the first notice was issued on 11.06.2009, the Ld. AO has not even recorded the satisfaction note for issuance of notice u/s. 153C of the Act. From the submissions made in earlier paras, it seems that the Ld. AO for the first time recorded the satisfaction note on 7-9-2010. vi) The appellant company has to submit that the material found and seized from the premises of CCCPL which has been referred to by the Ld. A0 in the assessment order does not contain the name of the appellant company and/or other six co-owners appellant companies. Even the seized material referred to in the assessment order does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octors are also stereo type and therefore, it can be interpreted that it is not a statement recorded on oath, but seems to be that the Ld. A.O issued the questionnaire to the Six Doctors and the Six Doctors in common consensus basis submitted the reply in writing as a self serving statement to buy peace and to avoid litigation with the department. Whatever, the income the offered in their return of income, they have not stated the source of income and the same has been stated to be from undisclosed sources. From the analysis of the statements of six doctors as no where the name of the appellant company and other six co-owners appellant companies have been mentioned or referred by the six doctors, therefore, the said statement cannot be used against the appellant company. For the sake of arguments, your Honour as Ld. CIT (A) proposes to consider the said six doctors statements in the case of appellant company, then as the Ld. A.O has 'not granted the opportunity of cross examination of six doctors even though the appellant company and other six co-owners companies have requested time and again to the Ld. A.O to grant the opportunity of cross examination of six doctors who are de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also not referred the matters to the DVO to ascertain the fair market value on the date of land deal transaction. The appellant company has to submit that the Ld. A.O has not discharged his burden that the sales consideration stated in the sale deed is understated. As and when the Assessing Authority makes an allegation that the sales consideration stated in the sale deed is understand, the burden is on the Assessing Authority to discharge the said burden which has not been discharged in the present case of the appellant company and other six coowners appellant companies while bringing on record any independent clinching material and/or evidence. viii) The appellant company relies upon the decision of Hon'ble Supreme Court in the case of K.P. Varghese vs. ITO & Others (1981) 131 ITR 597 and the decision of ITAT, Ahmedabad in the case of Gaurang B. Solanki Vs. ACIT - ITAT Ahmedabad Bench-A (120 Taxman 162. Considering the above facts and legal submissions as well as the contentions and legal submissions put forth before your honour in the synopsis of arguments dated 15.04.2011, the addition on account of alleged cash payments received from CCCPL of Rs. 2,15,36,270/- des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have executed conveyance deed for sale of land to Care Cardiovascular Consultants Private Limited and the sale consideration stated in the conveyance deed has only been received by the 7 companies as the Co-owners. The companies have not received any amount over and above the sales consideration stated in the conveyance deed. Q.23. I am now showing you a document recovered from the computer of CCCPL at its office premises from a file namely copy of Hosp.det.xls. The document clearly reveals that the CCCPL has purchased a piece of land for hospital construction. Cost of this land comprises of 85% amount to be paid in cash and 15% amount to be paid in cheque. The value of cheque amount is Rs. 2.5 crores while the value of cash component is Rs. 15.07 crores. This is also brought to your notice that the group has purchased only one piece of land i.e. the land referred above and sold by the 7 companies managed by you. The payment of Rs. 2.5 crores mentioned, in the document matches with the payment, made to your companies. Since the payment of cheque amount, matches with payment made to your companies, there is every reason to infer that the payment made in cash also have been made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Keyur Parikh and his associates for the purchase of land. The assessee denied having received any cash amount and instead requested for the cross examination of the six Doctors namely (i) Dr. Anil Jain, (ii) Dr. Bharat R. Trivedi, (iii) Dr. Basrur Srinivas Mallya, (iv) Dr. Vishal M Gupta, (v) Dr. Chirag B. Mehta and (vi) Dr. Naman A Shastri. However, the Assessing Officer did not allow the opportunity of cross examination of the above mentioned 6 doctors to the assessees on the ground that it was not necessary that cross examination should be allowed to each and every person. According to the Assessing Officer, it is sufficient to give the copy of the statements recorded from the 6 doctors for the comments of the appellants. Further, the AR also contended that the notice under section 153C of the Income-tax Act issued by the Assessing Officer was bad in law as in the seized documents the names of the assessee did not appear anywhere and that there was no documents indicating unaccounted income of the assessee. 3.6 In nutshell, it was prayed that the addition made by the Assessing Officer on account of alleged cash receipt on sale of land requires to be deleted for the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer in the month of April, 2010, who made the addition cash component paid by them for the purchase of land. The same Assessing Officer has issued notice under section 153C on 7/9/2010. Further, in the case of other cardiologist doctors who have not accepted the payment of cash for purchase of land, the Assessing Officer has made addition in their hands of the cash component on the basis of the seized documents found from the possession of CCCPL and other doctors prior to issue of notice by the Assessing Officer. Therefore, there was enough material before the Assessing Officer to believe that the assessees have received cash of Rs. 15.07 crores over and above the cheque of Rs. 2.50 crores shown in the books of accounts. Accordingly, the CIT(A) did not find any infirmity in the notice issued u/s 153C by the Assessing Officer in respect of the assessees. Accordingly, the CIT(A) rejected the contention of the assessee in this regard. 4. Before us, the ld. Authorized Representative reiterated the submissions as were made before the lower authorities. On the contrary, ld. Departmental Representative supported the order of the lower authorities. 5. We have heard the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash of Rs. 15.07 crores over and above the cheque of Rs. 2.50 crores and finally concluded as under:- "7.3 I have considered the submissions of the appellant Dr. Keyur Parikh. As can be seen from the questions and answers recorded during the course of examination and cross-examination of the six surgeon doctors, all of them have admitted that they have paid cash over and above the cheque amount for the purchase of land and that at the time of their separation from CCCPL, they received back the cheque as well as the cash amount paid by them." Thus, CIT(A) gave clear cut finding in the appellate order dated 23.09.2011 of Dr.Keyur Parikh and others that besides the cheque of Rs. 2.50 crores, cash of Rs. 15.07 crores was paid by the doctors and the CCCPL for the purchase of land from the 7 assessee-companies. Finally, the CIT(A) in case of purchaser concluded as under:- "9.5. In other words, the proceedings under Income-tax Act are civil proceedings and the strict law of evidences prescribed in the criminal proceedings does not apply to civil- proceedings. It is not necessary for the revenue to prove beyond doubt. To discharge onus in Income-tax proceedings, degree of proof re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision in the case of Dr. Keyur Parik & Others vide No. IT(SS)A No. 604/Ahd/2011 1810-2013. In this background, it is submitted that in the case of assessee-company the addition has made consequent to the addition made in the searched assessees case Dr. Keyur Parikh & Others , wherein the addition has been made in the order u/s. 153A r.w.s 143(3) of the Act and consequently in assesseecompany's case, the order was rendered u/s. 153C r.w.s. 143(3) of the Act, once the Tribunal has deleted the addition made in searched assessees case in respect of addition made in the assessment order u/s.153A r.w.s 143(3) of the Act, assessee company's case became a covered case by the order of the ITAT, Bench "B" Ahmedabad, vide common order dated 18-102013 in ITA (SS) No.604/Ahd/2011 for A.Y. 2008-09 and others. The ld. Authorized Representative for the assessee drew our attention to the concluding/verdict paragraph of the aforesaid decision, which is reproduced here under: "8. We have heard both the sides at length. We have perused the orders of the authorities below in the light of the compilations filed from both the sides. A company, namely, CCCPL was formed to establish the hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried out was a well publisized transaction. Rather facts of the case have further revealed that earlier the land in question belonged to certain co-operative societies. Such a sale deed thus cannot be treated as a "close-door-deal". Before us it has been vehemently argued that it was wrong on the part of the Revenue Department to allege that the purchaser and seller have connived with each other and therefore settled a secret deal which was out of the record. The argument before us is that such a possibility is only if a deal is between two individuals but not possible when two corporate entities are dealing with each other. Rather the sale deed in question was executed between number of entities; hence, such a multi-party deal must not be doubted, especially when each party ought to have watched their respective interest. This argument of the assessee cannot be brushed aside altogether. We can justifiably adjudicate on this point only after taking into consideration the surrounding circumstances and corroborative evidence. 8.2 Next point. Our attention has been drawn on a letter of Deputy Collector, stamp duty valuation office Ahmedabad, dated 16.10.2007, wherein after going t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the hospital and therefore made certain harmful statements. One of the clause was that the doctors leaving the project shall not be allowed to practice within 100 kms. of the hospital. Because of this clause the doctors were not at ease with the assessee company and hence made statement to take the revenge. We are not deciding the personal issues cropped up among the group of doctors, but we are concerned about the allegation of the unrecorded investment made by the assessee. The possibility is that the doctors who have left the project might be having some grudge against the doctors subsequently running the hospital and due to that reason might have made the statement against the assessee. However the MOU is giving an indication that the cost of the project was duly understood by the doctors and that investment was required to be made in the years to come. Therefore, a question can be raised in respect of the correctness of the statement made by those leaving doctors. On these facts, we can hold that the statement of the group of doctors who have left the project have made a controversial statement, hence their conduct was not beyond doubt. 8.4 Next point. The Revenue Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in fact no premium amount towards land was paid but it was merely a projected figure to attract the higher figure of investment. He has drawn our attention on number of such pages which were extracted from the computer disk to demonstrate that there were several projections of the total value of the project. The projected value had changed on number of occasion considering the interest shown by the investors. So the argument is that since the projections have not disclosed a static or a constant figure therefore such figures should not be held as an actual investment by the assessee. This probability, which generally prevails in such type of projects, thus must not be brushed aside on the face of it. 8.5 Next point. We have also examined the statements of various doctors which were used by the Revenue Department against the assessee. A statement of Dr. Anil R. Jain was recorded on 23rd of September, 2008 u/s. 132(4) of IT Act. In that statement, there was no such acceptance of involvement of cash transaction. Question No.7, 8 &9 and Answer No.7, 8 & 9 of the said statement were the direct questions but in those answers there was categorical denial of any investment other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew statements or the filing of return of those doctors who have parted-ways from the assessee cannot be made the sole basis for the impugned addition. This legal issue can also be judged from an another angel. The credibility of a witness in the eyes of law has certain definite norms and standards. A common law is that it is unsafe to rely upon an 'interested witness'. It is possible that an 'interested witness' might be having revenge in his mind to the extent to implicate falsely, therefore, keen in seeing the other person punished. Naturally the law says that such a testimony is not to be believed. A dependable as also reliable witness has to be a 'third-party disinterested' as well as 'unrelated' witness. It is a 'stare-decisis' now rest in peace being so often adjudged. We are right now dealing with the tax proceedings hence can not even attempt to make a sweeping generalization on this subject being out of the scope of the I T Act, but can add that instead of following a thumbrule each case ought to be decided on its own facts. Hence as far as the facts of the case in hand is concerned, once it is an undisputed fact that the group of doctors have disassociated themselves d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mp duty purpose. It has been argued that the sale price was escalated by the stamp duty authority time and again to match with the fair market price of the land of that area. Due to this reason, the sale price as determined by the stamp duty officer was at par with the prevailing market price of the land. This argument of the assessee has substantial force especially when the Revenue Department has not placed any comparable instance of prevailing market price. There is no evidence on record through which it could be demonstrated by the Revenue Department that as per some other sale instance there was indeed higher prevailing market price then the sale price recorded in the sale deed. In the absence of any such evidence it is wrong on the part of the Revenue Department to presume that the prevailing market price was higher than the sale price as recorded in the registered sale-deed. 8.9 An another important point has also brought to our notice that whether Revenue Department had gathered any evidence through which it could be demonstrated that the assessee had generated unaccounted income which was allegedly used for the purchase of land. There were several working sheets extract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has not casted any doubt. Those were found to be true and correct as there was no fallacy in the transaction happened to be made through bank. 8.11 Learned AR has raised an argument that no corresponding legal action so far was taken against the sellers of the property. According to him, Revenue Department should have charged the capital gain on the alleged cash component from those companies who have sold the property. By not taking any action the Revenue Department had weakened the allegation. We have asked this question from the Revenue Department but failed to get any satisfactory reply. 8.12 From the side of assessee few case laws have been cited in support of the contention that learned CIT(A) went wrong in directing the assessment to be in the hands of the assessee company. In the case of CIT Vs. Krishi Udpadan Mandi Samiti, 336 ITR 77 (Ald), it was held that there was no material with CIT(A) to direct the receipts to be taxed in the hand of the Mandi Parishad. It was held that such directions were without jurisdictions. Likewise in the case of Mrs. Banoo E. Cawasji, 10 Taxman 97 (MP) it was held that CIT(A) was not competent to issue direction to cancel an assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not even the incriminating material but simply computer generated projectionsheets, therefore, hard to say, synonymous to clinching material evidence depicting cash transaction, hence erroneously suspected by the Revenue Department. We hereby hold that there was no evidence in possession of the Revenue Department to hold that the assessee had in fact made an unaccounted investment towards the purchase of the property." 5.4 In this background, we find that the addition has been made on the allegation that the assessee-group has received Rs. 15.07 crores as discussed above as on-money from sale of land in question from CCPL. As discussed above, in the case of Dr. Keyur Parikh and others in IT(SS)A Nos. 604/Ahd/2011, it has been held by the ITAT that there was no evidence in possession of Revenue to hold that the assessee made unexplained investments towards the purchase of land in question. Nothing contrary was brought to our knowledge on behalf of the Revenue. Since the assessee is a recipient in respect of the same property and it has been held by ITAT that in case of purchaser no unexplained investment has been made in respect of said property as discussed above. So, the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontline Financial Services Ltd amounting to Rs. 39,56,800/-, from the gross sale consideration. The assessee was asked to justify the same. In response to this, the assessee submits that a development agreement was executed in respect of land plot no.67/2 in T.P. Scheme No.42 at Sola, Thaltej with Frontline Financial Service Ltd on 27.03.2007. An agreement in this regard was submitted, As per the agreement, M/s. Frontline Financial Services Ltd was to develop the land for Rs. 2,510/- per sq. mtr totaling to Rs. 4,31,49,900/-. But if due to some reason the land is not decided to be developed then M/s. Frontline Financial Services Ltd will be paid compensation @ Rs. 1600/- per sq. meter. The assessee submitted that the land was not developed hence another agreement dated 18.08.2007 with M/s. Front Line Financial Services Ltd was executed as per which the 7 land owners had to pay the amounts of compensation to M/s. Frontline Financial Services Ltd within 15 months of the agreement. The assessee stated that payment of Rs. 39,56,800/- is made by it to the Frontline Financial Services Ltd hence the same is reduced from the sale consideration of land. 5.2 The assessee was asked to subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: "1. The appellant company would like to submit that it along with other 6 co-owners Companies have entered into-a Development Agreement in respect of land with party namely Frontline Financial-Services Ltd. (hereinafter referred to as FFSL for the sake of convenience). The copy of Development Agreement was provided 'to the Ld. A.O. (Refer Page No.129 to 135 of Paper Book No.1). As per the said development agreement, if the co-owners companies sold the land without development, then the said development agreement is required to be cancelled and for that compensation of Rs. 1600/- per sq. mtr. is required to be paid for relinquishment of rights of the development for the developer FFSL. During the financial year 2007-08 relevant to A.Y. 2008-09, the land under question has been sold by the appellant along with other co-owner companies and they have paid the compensation for relinquishment of rights of development to FFSL by entering into an agreement for relinquishment of rights of the development by all 7 companies with the said FFSL as per the Termination Agreement dated 18-08-2007 (Refer No.136 to 141 of Paper Book No.l) 2. As per the said Termination Agreement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated 05.03.2007 was written by CCCPL to Superintendent of Stamps and Inspector General of Registration, Gandhinagar. From the contents of aforesaid letter, the CIT(A) observed that the company CCCPL has already negotiated the purchase of the land bearing plot number 67 of TPS 42 situated at Sola, district Ahmedabad admeasuring 17,190 m2 and therefore they have written to the Superintendent of Stamps and Inspector General of registration, Gandhinagar to provide the amount of pending stamp duty. The AR of the assessee-company was confronted for same. The assessee have disowned the contents of the letter dated 5/3/2007 written by the company CCCPL to the registrar of stamp duty inter alia stated that the letter is not written by the CCCPL. This contention of the assessee was not found correct by CIT(A). The genuineness of development agreement dated 27/03/2007 entered by assessees with FFSL was termed doubtful by CIT(A). According to revenue Shri Tushan Shah, the director of FFSL (Frontline Financial Services Ltd.) stated before the ADIT (investigation) that he had not received any amount in question. He also doubted termination of same and made disallowance in question. 6.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his own witness. Therefore, the question of allowing the cross examination of Shri Tushar Shah to the assessee did not arise. In other words, the assessee has no right whatsoever to ask for the cross examination of his own witness Shri Tushar Shah. Accordingly, the CIT(A) has written a letter dated 17/11/2011 to the assessee companies as under: "To The Principal Officer - (1) Matrand Estate Pvt. Ltd (2) Matang Properties Pvt. Ltd. (3) Madhuj Realty Pvt. Ltd. (4) Medhbhuti Complex Pvt.Ltd (5) Madhumati Realty Pvt.Ltd. (6) Tirth Developers Pvt. Ltd. (7) Maitrik Buildcon Pvt. Ltd. 'Ganesh Corporate House' 100 Ft. HebatpurThaltej Road, Nr.Sola Bridge, Off S.G. Highway, Ahmedabad. Sub: Your request for cross examination of Shri Tushar S. Shah, Director of Frontline Financial Services Ltd.- regarding - Please refer to your letter filed in this office on 15/11/2011 by Shri Dhiren Shah, your chartered accountant, requesting to allow cross examination of Shri Tushar S. Shah, the Director of Frontline Financial Services Ltd (FFSL in short). In this connection it is to be mentioned that since Frontline Financial Services Ltd. was your creditor in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record we find that assessee companies claimed to have paid Rs. 2,75 crores to M/s Front Line Financial Services. Assesseewise break up of the same is as under :- i) M/s Martand Estate Pvt. Ltd. Rs. 32,22,400/- ii) M/s Matang Properties Pvt. Ltd. Rs. 27,28,000/- iii) M/s Maitrik Builders Pvt. Ltd. Rs. 39,42,400/- iv) M/s Medhbhuti Complex Pvt. Ltd. Rs. 43,53,600/- v) M/s Madhumati Realty Pvt. Ltd. Rs. 37,60,000/- vi) M/s Madhuj Realty Pvt. Ltd. Rs. 39,56,800 vii) M/s Tirath Developers Pvt. Ltd. Rs. 55,40,800/- Case of assessees is that all assessee companies have entered into a Development Agreement in respect of land with M/s Frontline Financial Services Ltd. As per said agreement, in case of assessee co-owners had to sale the land in question without development as agreed with FFSL. then assessee companies would have to pay compensation of Rs. 1600/- per sq. meter. According to assessees situation arose in such way that it had to sell the land in question without development and for relinguishment of development right assessees paid in total Rs. 2.75 crores to FFSL as discussed above. Same was disbelieved by CIT(A) for reasons discu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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