9911796707
TMI Blog2022 (7) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... n repeatedly hold that there was no evidence found in the possession of Revenue to hold that assessee had in fact made unaccounted investment towards the purchase of the property or was there any element of payment of cash to the outgoing Doctors, we at this stage find no reason to deviate from such stand taken by the Coordinate Bench in holding otherwise. We note that since the issue has already been decided there is no basis of agitating the same issue repeatedly by the Revenue in repeated litigation. We, therefore, find no ambiguity in the order passed by the Ld. CIT(A) in deleting the addition passed by the Revenue in view of the order passed by the Coordinate Bench in holding no unaccounted investment found towards purchase of the property in question. We, therefore, upheld the same. The Revenue s appeal is, thus, found to be devoid of any merit and hence dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,407/-. It is relevant to mention that assessment proceedings were completed in various cases of Heart Care Group wherein the Assessing Officer had held that for the purchase of land by CCCPL for the purpose of construction of the hospital, besides the cheque payment of Rs.2.50 crores, the Cardiologist and Cardiac Surgeon group paid a total cash of Rs.15.07 crores approximately. According to the Revenue the surgeon group had admitted the payments made in cash and declared the same in the returns filed. Based on various documents seized additions were made in the case of the Cardiologist Group. 6. Being an aggrieved by and/or dissatisfied with the addition made by the Ld. AO the cardiologist group filed appeals before the First Appellate Authority who in turn upheld the addition upon deciding the issue as follows: "In view of the above mentioned discussion, I have no doubt in my mind to hold that beside the cheque amount of Rs.2.50 crores, cash of Rs.15.07 crores was paid for the purchase of land from the seven private limited companies namely Matrand Estate Pvt. Ltd; Matang Properties Pvt. Ltd.; Madhuj Realty Pvt. Ltd.; Medhbhuti Complex Pvt. Ltd; Madhumati Realty Pvt. Ltd.; Ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter hard disc as per annexure-A, I am satisfied that income has escaped assessment for A. Y.2007-08 and 2008-09 for failure of the assessee to disclose the transactions fully in the books of accounts to the extent of Rs.3,55,00,000 and Rs.2,17,00,000/- respectively and therefore, assessment for both assessment years is reopened u/s. 147 of the I. T. Act. The return in response to the said notice was filed on 15.11.2011. The reasons for issuance of notice was communicated to the assessee on 14.06.2012." 9. In response to the said notice the assessee filed its objection dated 14.12.2012 with the following contents particularly against the maintainability of the notice under Section 148 of the Act as it amounts to change of opinion. "3.1 The assessee raised objection with regard to issuance of notice u/s 148 vide letter dated 14.12.2012. The main contentions of the assessee were as under: The issue of investment in purchase of /and for Hospital project land has been fully examined in the fight of seized material, information gathered by the department, explanation submitted in response to show cause notice during the course of assessment proceedings u/s 143(3) r.w.s. 153A in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of Rs.2,17,00,000/-should not be added to its income as unaccounted investment in the land as these transactions are not reflected in the books of accounts of the company. Considering various submissions made by the appellant the Ld. AO completed the assessment under Section 143(3) read with section 147 on 08.03.20 13 by making addition of Rs.3,12,96,000 /-with the following observation : "5.5.2 This document has been found and seized from the premises of CCCPL. This gives the details of payments by the doctors for hospital project up to 17/10/2007. As per this page cash of Rs. 1 lakh and Rs. 2 Lacs was received by CCCPL from Keyur Parikh on 1/10/2006 and 15/10/2006 respectively. Thereafter, certain payments are shown as made to. Savlas, Chavdas, Hare Krishna Developers and Shaligram Buildcon Private Limited. This means that Dr Keyur Parikh had issued the cheques in the name of the above mentioned parties and handed over the same to the company CCCPL. Further on 13/6/2007 cash of Rs. 24 Lacs and Rs. 60 lakh has been shown as received from Dr Keyur Parikh, In the books of accounts, Dr Keyur Parikh has shown loans and advances to Dr Paras Doshi of Rs. 14 Lacs and Rupal Doshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dcom P L 12/28/2007 12,50,000 Aakash Ceramics P.L. Sub Total 11,250,000 On verification, it was found that in the seized material the first two cheques of Rs. 25 Lacs and Rs. 75 Lacs are shown as issued in favour of Laljibhai Savla and Shaligram Buildcon Private Limited respectively. In the books of Dr. Milan Chag share application money of Akaash Ceramics Private Limited of Rs.13 Lacs as on 11/12/2007 is reflected whereas the company CCCPL has received cash of Rs. 12.50 Lacs on 28/12/2007 hence, the remaining amount of Rs. 1 crore is considered as unexplained investment by CCCPL. Further, since the amount of Rs. 25 lakh has been shown as paid on 3/1/2007, therefore, this amount has been considered as unexplained investment in the hands of CCCPL in assessment year 2007-08 and Rs. 75 Lacs has been considered as unexplained investment in assessment year 2008-09. (Addition Rs. 25,00,000/-) (ii) 5.6.3. In the case of Dr Anish. Chandarana the following amounts have been shown as received by CCCPL from him: Dr. Anish Chandarana 3/26/2007 1,500,000 750000 to CCC 17/3/07 4/13/2007 1,500,000 Shaligram Buildcom P L 5/1/2007 500,000 5/16/2007 750,000 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 175.000 Total 46,75,000 In the books of accounts of Dr. Urmil Shah the following amounts are shown as loans and advances/investment in shares: Sr Date Amount (in lacs) Description Paid to 1 24/04/07 30.00 Ch# 007 Kotak Bank, dt 31/03/07, Torrel Cosmetics Pvt Ltd. shown as investment in shares as on 31/8/2011 2 25/05/07 5.00 Ch# 015 Kotak Bank. dt 01/05/07, 4.50 Lac, Ch# 017 Kotak Bank dt 01/05/07 0.50 Lac U G Shah self withdraw Cash on Hand 3 14/10/07 5.00 Ch# 284 Citi Bank dt. 15/10/07,3.00 Lac Ch#286 Citi Bank dt. 15/10/07, 2.00 Lac Bharat Shah shown loan and advances as on 31/8/2011 Milan Shah shown loan and advances as on 31/8/2011 4 15/10/07 2.50 No Direct nexus of Payment 5 01/11/07 1.75 No Direct nexus of Payment 6 23/01/2008 2.50 No Direct nexus of Payment Total 46.75 It is seen that cheque of Rs. 30 Lacs dated 24/4/2007 issued in the name of the TORREL Cosmetics Private Limited and of Rs. 5 Lacs dated 14/10/2007 in the names of Bharat Shah (Rs. 3 Lacs) and Milan Shah (Rs. 2 Lacs), hence the amount of Rs. 35 Lacs is taxed in the hands of the company CCCPL . As per the direction of the Ld. CIT(A), a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. AO. 14. In reply the Ld. Senior Counsel appearing for the assessee submitted before us that the issue of on money has already been decided in the appeal preferred by the revenue by the Coordinate Bench in IT(SS)A No. 604/AHD/2011 in the case of Dr Keyur Parikh wherein it was specifically clarified that no element of cash to the outgoing doctors was found. Neither it is being conclusively established by the department that there is an existence of cash component or unaccounted investment towards purchase of the property as decided by the Coordinate Bench in the case of Dr. Keyur Parikh. On this aspect the Ld. A.R. drew our attention to Page 36 of the order passed by the Coordinate Bench. It was further argued by the Ld. Senior Counsel appearing for the assessee that so far as the statement of the doctors admitting cash involvement in such transaction is concerned it was already recorded by the Coordinate Bench that Dr Jain has kept on changing the statement and therefore as far as his statement is concerned, those are not said to be very dependable; a detailed discussion took place in the order passed by the Coordinate Bench as mentioned above in this respect which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repared the replies and submitted to the department almost at the same time. Que: 25 You have given this statement dated 16/04/2010 to buy piece of mind and to avoid prolonged litigation with the income tax department and also to adjust and legalize your unaccounted income which you may have generated after you took exit from CCCPLRs Ans: I would like state that during the search I confessed that cash was paid for the hospital project. Subsequent to this, we had a meeting where decision to fight the case was taken between the members of CCCPL and I retracted to the statement I made during the search. However, after realizing the amount of material seized from the heart Care Clinic, I felt it was a futile exercise to fight against the income Tax Department, so I declared the cash paid by me towards the hospital project, arranged from undisclosed sources and paid the tax with interest and penalty on the same to avoid further litigation with the income tax Department Que: 26 Do you remember when the questions which you have replied by statement dated 13/04/2010 were given to you by the Income tax Department Rs Ans: No I do not remember the exact date. Que.:26 Can you tell us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded the concerned officer has not tried to find out the source of undisclosed income and the correct quantum of the undisclosed income. The cash paid for purchase of land by CCPL only has been accepted as undisclosed income. The person who is habituated of not declaring correct income in the return of income might have more undisclosed income than he declared. • The modus operand! of earning undisclosed income has not been find out. • There is no finding about the other persons who had also contributed cash for purchase of land by CCCPL. • The concerned officer had satisfied with the confirmation of payment of cash by the respective doctor and receipt of cash on exit • There is no finding that who has returned the cash. From the above submission it is argued that the purpose of recording of so called statement appears to trap the other doctors who are not accepting the cash payment in purchase of land by CCCPL. 4 No body has paid cash directly to the assessee as well as no body has received cash directly from the assessee. All the cash transactions are taken place with the third person. 5 None of the doctors know the land owners. However, Dr Bhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash component paid by them has been received back. Hence, considering the statements recorded of the outgoing surgeon doctors and the notings on the seized documents, an amount of f. 5,06,53,799 is considered to have been paid in cash by the assessee company. Since the assessee has furnished inaccurate particulars of its income, penalty proceedings u/s.271AAA of the Act are initiated separately. 7. Shri R.G. Shah, CA, appeared on behalf of appellant and intimated that Hon'ble ITAT, 'B' Bench, Ahmedabad, has passed order dtd. 18/10/2013 in the case of Dr. Keyur Parikh and others. Copy of order of Hon'ble ITAT in IT(ss)A No. 604,610&601/Ahd/2011 was filed. From the perusal of this order it is found that the first ground of the revenue in the case of Dr. Keyur Parikh was as follows: "The Ld. CIT(A) has erred in law and on facts and circumstances of the case by providing relief of Rs. 4,22,50,000/-to the assessee out of an addition of Rs.5,52,50,000/- on the issue of unaccounted investment for the purchase of land by holding that the said amount should be taxed in the hands of the company M/s. CCCPL. " 8. This ground has been decided by Hon'ble ITAT with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied, upon dumb documents and computer hard disk found from the office premises of the company namely CCCPL and residence of the doctors during the search. 14. Learned AR has stated that ground no.I is general in nature and ground no.2 relates to the main ground of the Revenue. In the light of this submission, these grounds being general in nature and not raising any particular legal issue, therefore, dismissed being redundant. 15. Ground Nos.3,4 & 5 are reproduced below: "3. The learned Commissioner (Appeal) erred in fact and in law in confirming the addition of Rs.1,30,00,000/- as unaccounted income utilized in acquiring the land by the company CCCPL 4. The learned Commissioner (Appeal) erred in fact and in law in directing the addition of Rs.3,00,000/- as unaccounted income in assessment year 2007-08 utilized in acquiring the land by the company CCCPL 5.(A) The learned Commissioner (Appeal) erred In fact and In law in directing the addition of Rs. 1,Q7,OOQ/- in the hands of company CCCPL as unaccounted income in assessment year 2007-08 utilized in acquiring the land. (B) The learned Commissioner (Appeal) erred in fact and in law in directing the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shaligram buildcon 12/28/2007 12,50,00 Aakash Ceramics Sub Total 1,12,50,0 28. The finding was given that the cheques of Rs.25 lacs and Rs. 75 lacs were found recorded as per the seized material. There was another fact that the appellant hod shown share application money of Aakash Ceramic Pvt. Ltd. of Rs.13 lacs dated 11.12.2007. Therefore, the assessee has tried to explain the source of the deposit. Learned CIT(A) has examined those facts and thereupon arrived at the conclusion as under: "Further, since the amount of Rs.25 lakh has been shown as paid on 3.1.2007, therefore, this amount has to be considered in the hands of CCCPL in assessment year 2007-08. In short, the addition of Rs. 12.50 lacs is sustained in the hands of the appellant Dr. Milan Chug in assessment year 2008-09 and the balance amount of Rs.100 lacs is directed to be assessed in the hands of the company CCCPL in two different assessment years i.e. Rs.25 Lacs in assessment year 2007-08 and Rs. 75 Lacs in assessment year 2008-09." 29. A view has already been taken that in the absence of a direct evidence of cash involvement the impugned addition did not survive. In consequence thereof the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .35 lacs will have to be taxed in the hands of the company CCCPL and the balance amount of Rs.11.75 lacs in the hands of the appellant Doctor. Otherwise, the whole amount ofRs.46.75 lacs is to be taxed in the hands of the appellant Doctor. 42. We are not convinced the manner in which learned CIT(A) has held that the balance amount of Rs.11.75 lacs was to be taxed in the hands of the assessee. As far as cash investment towards purchase of property is concerned a view has already been taken which is to be applied in the present case as well. Resultantly, the ground of the Revenue has no force. Hence dismissed. 43. In the result, appeal of the Revenue is dismissed." 17. It appears from the records that the order passed by the Ld. CIT(A)III, Ahmedabad, dated 27.09.2011 cross appeals respectively filed by the assessee and the Revenue before us in IT(SS)A No. 604/Ahd/2011, IT(SS)A No.610/Ahd/2011, IT(SS)A No.601/Ahd/2011, IT(SS)A No.674/Ahd/2011, IT(SS)A No.603/Ahd/2011, IT(SS)A No.639/Ahd/2011, IT(SS)A No.612/Ahd/2011, C.O. No.29/Ahd/2012, IT(SS)A No.602/Ahd/2011, IT(SS)A No.640/Ahd/2011, IT(SS)A No.634/Ahd/2011, IT(SS)A No.652/Ahd/2011, IT(SS)A No.611/Ahd/2011, C.O. No.28/Ahd/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation is made hereinbelow: "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 than the share capital. Dr. Anil Jain has stated that he had opted out from the project and the amount he has invested was refunded as his share application money. Later on an another statement was recorded by the ITO and in that statement Dr. Anil Jain had taken a turtle-turn and alleged the cash component. If we compare a statement u/s.132(4) with the statement made u/s.131 of IT Act then the law is very clear that a statement u/s132(4) has evidentiary value and not the statement made u/s.131 of IT Act. A statement recorded u/s. 132(4) is a statement on oath. Therefore, a statement recorded on oath can be used as an evidence. As against that a statement recorded u/s.131 is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessment made in the case of the deceased. An another order has also been cited, namely, Sun Metal Factory (I) (P.) Ltd., 124 ITD 14 (Chennai). In this judgment, a search was on the assessee and on the managing director. On appeal CIT(A) had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." ………… "12. With this background, we have heard both the sides. As far as the issue of the existence of cash component in the purchase of the land is concerned, we have already taken a view that it was not conclusively established by the Revenue Department. In addition to the discussion made hereinabove on this issue, again we have noted that while deciding this ground learned CIT(A) has reiterated that the AO had presumed that some of the doctors have contributed cash for the allotment of the shares. This is the point which has been emphasized and vehemently objected by the assessee that the entire proceedings in respect of the involvement of cash towards purchase of property was based upon the presumption made by the AO. Even the learned CIT(A) has opined that, "even if it is presumed that the cash was paid back to the outgoing surgeons, the same was paid by the company CCCPL and not by Keyur Parikh in his individual capacity". Undisputedly it was the company who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was initially admitted by the Hon'ble High Court by and under its order dated 15.10.2014. However, the entire set of appeals have been dismissed on 04.09.2018 since all were withdrawn by the Revenue due to tax effect below the minimum threshold limit provided by the CBDT in its Circular dated 11.07.2018 enabling the Department to prefer and maintain appeals before the High Court. Copy of both the orders passed by the Hon'ble High Court were duly been filed before us by the respective parties. Dismissal of this order dated 04.09.2018 passed by the Hon'ble Gujarat High Court R/Tax Appeal No. 26 of 2014 and ors. confirms the fact of the order dated 18.10.2013 passed by the Coordinate Bench attaining finality. As we have already discussed on the observation made by the Coordinate Bench on the identical issue involved in this matter relation to the addition on the ground of unaccounted investment for the purchase of land whereby and whereunder it has been repeatedly hold that there was no evidence found in the possession of Revenue to hold that assessee had in fact made unaccounted investment towards the purchase of the property or was there any element of payment of cash to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
