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TMI Blog2009 (1) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... peals are being decided by a common order. Tax Appeal Nos.1195 and 1196 of 2008 2. Assessee in both these appeals is the same. 3. Appellant Revenue has filed these appeals against order dated 07-12-2007 made by the Income Tax Appellate Tribunal, Ahmedabad Bench 'A' ("The Tribunal" for short). The following identical questions of law have been proposed in both appeals: "(A) Whether on the facts and in law, was the Appellate Tribunal right in deleting the addition of Rs.2,26,78,400/- on account capital gains which had not been offered to tax by the assessee in regular returns of income? (B) Whether on the facts and in law, was the Appellate Tribunal right in allowing the appeals of assessee about undisclosed Capital Gain treated as unaccounted initial payment for Rs.1,07,17,950/- on the basis of interpretation of the only part of entries on the seized documents recording payment by cheque and ignoring the remaining part recording unaccounted cash transaction?" 4. Tax Appeal No.1195 of 2008 arises out of order dated 07-12-2007 made by the Tribunal in IT(SS)A No.338/Ahd/2004 for block period assessment related to P.Y.1996-97 to 2001-2002 and upto 17-07-2002, filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of a piece of loose paper seized from the premises of the assessee during search which shows that the assessee has sold the land at the rate or Rs.175/- per sq.mt. and not at the rate of Rs.125/- per sq.mt., and this has rightly been relied upon by the Assessing Officer, while making the addition. 8. At the very outset,it is required to be clarified that the second question, as proposed, does not arise out of the order dated 07-12-2007 in Tax Appeal No.1195 of 2008, which arises out of IT(SS)A No.338/Ahd/2004, filed by the assessee, as is evident from the order of the Tribunal. In IT(SS)A No.15/Ahd/2005 filed by the Revenue, which is the subject matter of Tax Appeal No.1196 of 2008, the Revenue had taken a specific ground that the Commissioner(Appeals) has erred in law and on facts in directing the deletion of the addition of Rs.1,07,17,950/- made on account of undisclosed capital gains received as unaccounted initial payment at the rate of Rs.50/- per sq.mt. Similarly, in Tax Appeal No.1196 of 2008, the first question, as proposed, does not arise out of the order dated 07-12-2007 of the Tribunal as this appeal arises out of IT(SS)A.No.15/Ahd /2005 filed by the revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , amounting to Rs.2,26,78,400/- were duly entered in the books of the assessee and as the assessee had disclosed these transactions in the return of income for regular assessment, the proceedings under Chapter XIV B of the Finance Act,1995, which deals with special procedure for assessment of search cases, could not have been initiated. 10. It has been found by the Tribunal that no material was brought before it from the file of the assessee to show that the Assessing Officer, on the basis of evidence, found any undisclosed income during the search. 11. On the facts and in the circumstances of the case, the finding of the Tribunal that in view of the fact that the assessee had disclosed the income in the regular returns by filing a note and that the books relating thereto do not show any undisclosed income, is reasonable and justifiable. Any material or evidence, which is unrelated to the search cannot form the basis for computation of undisclosed income, especially when the said income has been disclosed by the assessee in the regular assessment and has been assessed. The said income, therefore, could not be the subject matter of block assessment. No question of law arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment agreements for the land although he negotiated for Rs.50/- per sq.mt. Over and above the same but that did not materialise. The Tribunal has also considered the answer to question No.6 wherein the assessee has explained certain details on pages 1 to 6 of BS/1 and has reiterated that he has received consideration at the rate of Rs.125/- per sq.mt.only. On the basis of the evidence on record, the Tribunal has arrived at a specific finding that no material was seized during the course of the search to prove that the assessee has agreed to sell the land at the rate of Rs.175/- per sq.mt. or that he has actually received Rs.175/- per sq.mt. and not Rs.125/- per sq.mt. The Tribunal noted that different calculations are not reconciled and on the basis of such rough calculations no conclusion can be drawn that the assessee had received consideration from the developers at the rate of Rs.175/- per sq.mt. The findings arrived at by the Tribunal on the basis of evidence on record that the addition of Rs.1,07,17,950/- has been rightly deleted is, therefore, not liable to be interfered with. As a result of the above discussion, it is apparent that no question of law, leave alone any subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when part of noting regarding cheque payments tallied with books of account?" 18. Learned counsel for the Revenue has contended that the Tribunal has erred in upholding the decision of the Commissioner (Appeals) directing the deletion of Rs.25,73.100/-. It is submitted that the loose papers seized during the course of search contained notings which go to prove that Krishna kumar R. Parmar received Rs.175/- per sq.mt. and not Rs.125/- per sq.mt. as payment from the assessee and there is a noting regarding cash payment at the rate of Rs.50/- per sq.mt. and, therefore, the Assessing Officer had rightly made addition of Rs.25,73,100/- on the basis of the notings on the loose papers. 19. The basic facts in these appeals are same as those discussed hereinabove, except that the assessee herein is in the business of development and construction of Projects. Search under Section 132 was carried out at the office premises of the assessee and three other sister concerns on 17-07-2002 wherein various documents and books of accounts were seized, marked as BS1 to BS56 as per panchanama dated 17-7-2003. Return of income was filed by the assessee on 24-4-2003 declaring undisclosed income a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 21. Being Aggrieved by the order dated 31-10-2006 made by the Income Tax appellate Tribunal in IT(SS)A.No.159/Ahd/2005 for block assessment P.Y.1996-97 to 2001-02 and upto 17-07-02,the Revenue has filed this appeal by proposing the following questions: "Whether on the facts and circumstances of the case and in law was the Appellate Tribunal right in deleting the addition made on account of initial investment of Rs.41,82,750/- without considering the fact that the same was made on the basis of loose paper found and seized during the course of search proceedings and when part of noting regarding cheque payments tallied with books of account?" 22. The assessee in this case is one of the developers of the land with whom the owner entered into an agreement for development thereof. The facts of the case as well as the issues involved are the same as in Tax Appeal No.1514 of 2008 except that the assessee is different. A Search was conducted under Section 132 of the Act at the office premises of the assessee on 17-07-2002. The assessee filed return of income on 24-04-2003 declaring undisclosed income at 'Nil', in response to notice under Section 158BC. The assessment was comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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