9911796707
TMI Blog2024 (9) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... deration on sale of land. The assessee at any stage of proceedings, has not challenged the rate of sale consideration of such land, as mentioned in the seized documents. Assessee has also not disputed the fact that the documents were recovered from his premises and the said documents also clearly mentioned the name of the assessee. Accordingly, looking into the instant facts, we are of the considered view that the additions have not been made by the AO based on dumped documents. Further, the additions made by the AO have also been confirmed by the Ld. CIT(A) and subsequently by the Hon ble High Court. Accordingly, looking into the instant facts we are of the considered view that Ld. CIT(A) has not erred in facts and in law in confirming levy of penalty under Section 271AAA of the Act. Levy of penalty with respect to protective addition made in the hands of undisclosed capital gain - HELD THAT:- In the case of Mohd. Khasim [ 2014 (10) TMI 140 - ITAT BANGALORE ] the ITAT held that where Revenue itself was not sure as to whether alleged capital gains was to be assessed in the hands of assessee and such addition was made on protective basis, penalty under Section 158BFA could not be le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longwith his father had in fact purchased the property in question. No notices were issued to the so-called sellers of such property to confirm whether any sale of such property had been made to the assessee and his father, no land revenue records were called for to establish that the assessee and his father had in fact purchased the property, there was no sale deed / purchase deed to establish that the assessee and his father had purchased the property in question and the entire additions in these facts were only made on the basis of entries made in seized documents, without any corroborative evidence to support the factum of purchase of such property. Accordingly, in our considered view, this is a fit case where levy of penalty under Section 271(1)(c) of the Act is liable to be deleted. Levy of penalty u/s 271(1)(c) with respect to addition of unexplained deposit in bank - The additions were confirmed by the assessee in the absence of any information regarding source of such cash deposits coming from the assessee and subsequently, the additions were later confirmed by the appellate authorities in quantum proceedings. We also observe that this is an abated assessment year and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14/Ahd/2020) and 332 days (in ITA Nos. 212/Ahd/2020, 213/Ahd/2020, 215/Ahd/2020, 216/Ahd/2020, 217/Ahd/2020 218/Ahd/2020). The assessee has submitted similar Affidavits for the impugned years under consideration in which it has been submitted that the order passed Ld. CIT(A) was to be handed over by the assessee to the concerned Tax Practitioner for filing of appeal before the Hon ble ITAT, however, inadvertently, the assessee forgot to handover such orders to the Practitioner for onward filing. The assessee submitted that he is not well read and was unable to comprehend the orders and further it took the assessee some time to gather the records and thereafter consult the concerned Chartered Accountant. Thereafter, once the matter had been handed over by the assessee to the Chartered Accountant, on further enquiry the assessee found that the Chartered Accountant had also omitted to forward the relevant papers to the concerned Advocate for filing of appeal before ITAT. Therefore, it was also due to negligence of the concerned Chartered Accountant as well that the appeal could not be filed before the ITAT on time. However, as soon as the assessee was aware about the delay in filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue involves levy of penalty under Section 271AAA on two additions made while framing assessment, consequent to search carried out on 21.09.2010: Amt. (Rs.) Particulars Rs. 1,89,43,840/- Undisclosed consideration on sale of land Rs. 1,48,00,000/- Protective addition w.r.t. undisclosed capital gain Penalty on addition of Rs. 1,89,43,840/- 7. The brief facts in relation to this ground of appeal are that the assessee alongwith other co-owners, had sold land bearing Block No. 485 in two lots admeasuring 3521 sq. meters and 880 sq. meters approximately, during the year under consideration and declared capital gain in the return of income. Based on certain materials found during the course of search, the Assessing Officer concluded that the real rate of land in question was Rs. 16,000/- per sq. yard and hence the Assessing Officer held that the actual sale consideration was Rs. 8,42,36,640/- (Rs. 16,000 x 5264.79 sq. yards) and accordingly, the Assessing Officer made addition of Rs. 1,89,43,840/- in respect of undisclosed consideration on sale of land. In appeal, Ld. CIT(A) confirmed the quantum additions in the hands of the assessee. The assessee filed appeal before ITAT against the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue and against the assessee and impugned common judgment and order passed by the learned Tribunal in IT(SS)A No.117/AHD/2015 to IT(SS)A No.122/AHD/2015 is hereby quashed and set aside and the orders passed by the AO as well as learned CIT(A) are restored. All the appeals are allowed accordingly. No costs. In the result, these Tax Appeals are also allowed Impugned common order of the Tribunal is set-aside. 8. Special Leave Petition (SLP) filed by the assessee against the order was dismissed by Hon ble Supreme Court as being barred by limitation. Accordingly, so far as the quantum additions are concerned, the same stand confirmed in the hands of the assessee. 9. With regards to levy of penalty, the Counsel for the assessee submitted before us that it may be noted from Page 407 of the Paper Book (English translation of seized material), that the seized material could not have formed the basis of making addition since the seized material was clearly sketchy in nature, wherein no date has been mentioned, there is no name of the payer of the money, seized material does not bear any signature and on the basis of the said paper no correlation can be made out between the sale of property a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court itself has confirmed the quantum additions by holding that Ld. CIT(A) had decided the matter on merits and had held that the Assessing Officer was justified in making the addition of unexplained investment and thereafter, Ld. CIT(A) was justified in confirming the same, then in these facts and circumstances , Ld. CIT(A) has not erred in facts and in law in confirming the levy of penalty under Section 271AAA of the Act. Secondly, the documents are not dumped documents and the Assessing Officer has clearly correlated the area sold by the assessee as per registered sale deed with the seized documents found during the course of search action. It was also submitted that the seized documents were found at the premises of the assessee and the assessee has not been able to shift the onus that the said documents do not belong to the assessee. The assessee in these facts, has clearly failed to prove that these papers do not belong to him. It is immaterial that the documents are not in the handwriting of the assessee or do not bear mention of any specific deed, since the area mentioned in these documents clearly corresponds to the final conveyance deed entered by the assessee. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- on protective basis in the hands of assessee in respect of undisclosed consideration on sale of land based on Pages 9-22 of Annexure BS-24 found during the course of search, from the premises of the assessee. While making the addition in the hands of the assessee, the Assessing Officer observed that the document relating to the above transaction was seized from the premises of the assessee, the seized documents shows that the name of the assessee was specifically mentioned in every receipt relating to sale of this property and therefore, the sale consideration of Rs. 1.48 crores was actually received by the assessee himself (though he was not the owner of the land, but the land was jointly owned by his brother Shri Ashok C. Thakore and Shri Nagarji Govaji Thakore). Accordingly, the Assessing Officer made substantive addition of Rs. 1.48 crores in the hands of the actual owners of land and the same amount of Rs. 1.48 crores was also added in the hands of the assessee on protective basis, since this amount of Rs. 1.48 crores was directly received by the assessee himself. Subsequently, the Assessing Officer levied penalty under Section 271AAA of the Act @ 10% of the impugned add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in case of one K on substantive basis, in view of fact that substantive additions were already subjected to penalty, no penalty could be levied in respect of said additions protectively made against the assessee. 17. Accordingly, in view of the above judicial precedents and keeping in light the fact that additions have been made in the hands of the assessee on protective basis , we are of the considered view that Ld. CIT(A) has erred in confirming levy of penalty under Section 271AAA of the Act on additions made in the hands of the assessee on protective basis. 18. Accordingly, assessee s appeal with respect to this ground of appeal, succeeds. 19. In the result, the appeal of the assessee is partly allowed. Now we shall take up Appeal No. 217/Ahd/2020 (Ashok Chanduji Thakore for A.Y. 2011-12) 20. The assessee has raised the following grounds of appeal: 1. The Ld. CIT(A) has erred on facts and in law in upholding the assessment order u/s. 271AAA of the Income Tax Act, 1961 passed by the Assessing Officer on 30.03.2016. 2. The Ld. CIT(A) has erred on facts and in law upholding the penalty levied on additions made by the Assessing Officer on account of alleged deposit in bank of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady declared LTCG of Rs. 16,28,303/- in the return of income, Assessing Officer made addition of Rs. 49,00,000/- in respect of undisclosed capital gain on sale of land. Eventually, penalty under Section 271AAA came to be levied on such addition which was confirmed by CIT(A) as well. 24. In this case, we observe that the Ld. CIT(A), after taking into consideration the seized material found during the course of search, confirmed the quantum additions in the hands of the assessee. Further, such quantum additions amounting to Rs. 1.48 crores towards unaccounted sale consideration was later confirmed by order of Hon ble Gujarat High Court (at Pages 21-23 of the Legal Paper Book). Accordingly, in our considered view, looking into the instant facts, the Ld. Assessing Officer and Ld. CIT(A), after analysis of the seized documents on record have come to the conclusion that the assessee had earned undisclosed capital gain on sale of land. The aforesaid additions were also later confirmed by the Hon ble Gujarat High Court vide order dated 09.10.2018. Accordingly, in view of the above facts, we find no infirmity in the order of Ld. CIT(A) while confirming levy of penalty under Section 271AAA o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act provides for levy of penalty for search year . The Counsel for the assessee submitted that it is a settled law that penalty under Section 271AAA only can be imposed in search year and not penalty under Section 271(1)(c) of the Act. The Counsel for the assessee placed reliance on several judicial precedents on this issue. Accordingly, it was submitted by the Counsel for the assessee that on the short count, penalty under Section 271(1)(c) of the Act deserves to be deleted. 30. In response, the Ld. D.R. submitted that he had nothing to further state on this issue and relied on the observations made by the Ld. CIT(A) on the appellate order. 31. We observe that in the case of Dr. Naman A. Shastri vs ACIT 63 taxmann.com 363 (Ahmedabad Bench) , the ITAT held that provisions of sections 271AAA and 271(1)(c) are mutually exclusive and, thus, once penalty is initiated under section 271AAA for specified previous year , there cannot be any occasion to impose penalty under Section 271(1)(c) of the Act. While making the additions, the ITAT made the following observations: 8. The scheme of Section, which governs penalty on undisclosed income for the 'specified previous year', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service here. Learned counsel has also invited our attention to the fact that, on the same set of facts and in connection with the same investment in the land-cash component of which has been treated as 'income from other sources' in the hands of all the persons jointly making this investment, penalties have been levied under section 271AAA in the cases of Dr Anil Jain, Dr Vishal Gupta and B Srinivas Mallaya. It is contended that it cannot be open to the Assessing Officer to take different stand in the cases of different assessees placed in the same situation. However, we see no need to deal with this contention since we have upheld the plea of the assessee on merits that the penalty for undisclosed income', on the given facts and in respect of the assessment year before us, could only be imposed, if at all, only under section 271AAA and not under section 271(1)(c). In any case, once the penalty is initiated under section 271AAA in the assessment order, there cannot be any occasion to impose the penalty under section 271(1)(c). We have perused the copy of the assessment order filed by the assessee which specifically states that the penalty is initiated under section 271 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amend, alter, modify any of the grounds of appeal. 36. The brief facts of the case are that search proceedings was conducted at the premises of the assessee on 21.09.2010. The assessee filed return of income in recourse to proceedings under Section 153A of the Act. 37. During the course of assessment, the Assessing Officer observed that assessee had purchased land bearing Block No.77 on 17.03.2005, situated at Bopal for an amount of Rs. 5,13,833/- for which the assessee was unable to provide any explanation. Accordingly, the assessee made an addition of Rs. 5,13,833/- as unexplained investments in the hands of the assessee. Thereafter, the Assessing Officer proceed to levy penalty of Rs. 1,57,250/- under Section 271(1)(c) of the Act. 38. In appeal before Ld. CIT(A), the assessee submitted that the aforesaid addition was made in the hands of the assessee on the basis of material which was not seized during the course of search proceedings at the residence of Shri Rohit Thakore (brother of the assessee) and the additions were based upon the material which was available in the course of assessment proceedings. Further, it was submitted that additions on merits were confirmed by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that since the instant appeal relates to only levy of penalty and the additions made in the hands of the brother of the assessee with respect to investment of the same amount in the same property has been deleted by ITAT in the hands of the co-owner of the property (being the assessee s brother Shri Rohit C. Thakore), then there is no justifiable basis for levy of penalty under Section 271(1)(c) of the Act. Further, the Counsel of the assessee also submitted that the underlying addition is not based on any incriminating material found and seized during search and hence the very addition itself is not justified since no incriminating material with respect to underlying addition has been found during the course of search carried out in the case of the assessee. It was submitted that even the timeline for issuing statutory notice under Section 143(2) of the Act for the year under consideration expired prior to the date of search being 21.09.2010. This fact also has not been disputed by the Assessing Officer. The Counsel for the assessee submitted that it is settled law that completed assessments can be interfered with by Assessing Officer while framing assessment under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee filed return of income on 1.11.2012. The ld.AO had issued notice under section 143(2) and proceeded to pass assessment order. He passed the assessment order under section 143(3) read with section 153A on 30.3.2013. The ld.AO has observed that the assessee has purchased block no.77 on 17.3.2005 and purchase price of this block was at Rs. 5,13,883/-. The assessee has purchased this block along other family members, and was having 1/6th share. The AO has made addition of Rs. 5,13,883/- on account of unexplained investment in block no.77. Similarly, the assessee has made addition of Rs. 4,48,378/- on account of unexplained deposits in the bank account. The computation of income made by the AO read as under: Total Income Rs. 91,630/- Add: Unexplained investment in block no.77 Rs. 5,13,883/- Add: Unexplained credit in the banks Rs. 4,48,378/- Total Income Rs. 10,53,891/- 14. Appeal to the CIT(A) did not bring any relief to the assessee. 15. The ld.counsel for the assessee at the very outset submitted that time limit for issuing the statutory notice under section 143(2) for passing scrutiny assessment under section 143(3) was expired much prior to the date of search relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax . iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material. v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person searched shall hand over such books of account, documents, or valuables to the Assessing Officer of such other person and thereafter, the Assessing Officer of such other person can proceed against such other person. However, in the case under appeal before us, admittedly, Section 153C is not invoked in the case of the assessee and the assessment is framed under Section 153A. We, respectfully following the above decisions of Hon'ble Jurisdictional High Court, hold that during the course of assessment under Section 153A, the incriminating material, if any, found during the course of search of the assessee only can be utilized and not the material found in the search of any other person. 18. Order of the ITAT Delhi Bench in other cases viz. Asha Rani Lakhotia vs. ACIT and Subhag Khattar Vs. ACIT are on the same line. 19. Hon ble Delhi High Court in the case of Subhag Khattar in Tax Appeal No.60 of 2017 has considered the following question of law: Did the Income Tax Appellate Tribunal (ITAT) fall into error in holding that the additions made under Section 153A read with Section 143(3) of the Income Tax Act, 1961 in the circumstances of the case, were not justified and supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from earlier procedure u/s 158BC r.w.s. 158BB of the Act and by reading into the section, the words 'the incriminating material found during the course of search' which are not there in section 153A? [C] Whether the Tribunal erred in relying on the ITAT order in Sanjay Aggarwal v. DCIT (2014) 47 Taxmann.Com 210 (Del) which has interpreted undisclosed income unearthed during the search to imply incriminating material, as against the finding of the Delhi High Court in Filatex India Ltd. v. CIT-IV (2015) 229 Taxman 555 wherein it is held that during the assessment u/s 153A additions need not be restricted or limited to incriminating material found during the course of search? 22. Hon ble Court concurred with the decision of Hon ble Delhi High Court. We deem it appropriate to take note of relevant part of the decision, which reads as under: 16. Section 153A bears the heading Assessment in case of search or requisition . It is well settled as held by the Supreme Court in a catena of decisions that the heading of the section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect thereof came to be issued on 19.12.2011 seeking an explanation from the assessee. The assessee gave its response by reply dated 21.12.2011 calling upon the Assessing Officer to provide copies of statements recorded on oath of Shri Rohit P. Modi and Smt. Pareshaben K. Modi during the search as well as the copies of the documents upon which the department placed reliance for the purpose of making the proposed addition as well as the copy of the explanation given by Shri Rohit P. Modi and Smt. Pareshaben K. Modi regarding the on-money received, copies of the assessment orders in case of said persons and also requested the Assessing Officer to permit him to cross-examine the said persons. The Assessing Officer issued summons to the said persons, however, they were out of station and it was not known as to when they would return. In this backdrop, without affording any opportunity to the assessee to cross-examine the said persons, the Assessing Officer made the addition in question. 18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court in the case of Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, dismissed. 23. A perusal of the assessment order would indicate that there is no seized material referred by the AO while making additions. Hence, respectfully following proposition of law laid down by the Hon ble Supreme Court, Hon ble jurisdictional High Court in the cases cited (supra), which were followed by the ITAT in earlier similar other cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared in return of income filled by the assessee and accordingly levied penalty on the same by Assessing officer which has been upheld by CIT Appeal. 3. The appellant also request to honourable court for condonation of delay in filling appeal. 4. The appellant craves for liberty to add fresh ground(s) of appeal and also to amend, alter, modify any of the grounds of appeal. 44. The brief facts of the case are that search action was conducted at the premises of the assessee on 21.09.2010. During the course of assessment proceedings, the Assessing Officer observed that assessee had purchased Block No. 77 76 on 17.03.2005, alongwith Shri Rohit C. Thakore and other co-owners for a sum of Rs. 29,75,000/-. Subsequently, the said land was sold by the assessee and other co-owners on 29.12.2005. During the course of search action on 21.09.2010, search documents were seized from the residential premises of Shri Rohit C. Thakore (assessee s brother) and as per the seized documents, the sale consideration of Rs. 4,58,74,125/- was worked out by the Assessing Officer towards the aforesaid block of land. Accordingly, the Assessing Officer made an addition of Rs. 86,60,942/- as Short Term Capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thakore (co-owners of the property) in IT(SS)A Nos. 46 to 50/Ahd/2020 and ITA Nos. 205 to 209/Ahd/2020 vide order dated 23.11.2021, for ready reference. We observe that similar addition towards sale of the same block of land was deleted by ITAT vide the above order at Para 16-24 of the order. The relevant paragraphs of the order passed by ITAT are reproduced for ready reference:- 16. Next dispute agitated by the assessee is that the ld.CIT(A) has erred in confirming addition of Rs. 86,60,942/- which was added by the AO on account of short term capital gain on sale of Bopal land. 17. Brief facts, according to the AO, are that during the course of search, certain loose papers were found and seized under Annexure BS-25. Page no.48 49 of the said seized material do indicate that transactions related to sale of land at Block No.77 and 76. The ld.AO has reproduced brief summary of the seized documents i.e. page nos.48 49 in paragraph 6.5 of the impugned assessment order. The AO was of the view that in these papers, the land was sold at the rate of Rs. 1125/- per square yard which is not duly reflected by the assessee. He has 1/5th share, and therefore, the short term capital gain assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as noticed by the AO, which reads as under: 6.5 The brief of the seized document is as under:- Page -48:- This page shows details of block no.77 at Bopal at the rate of Rs. 1125/- per sq.mt., area of 40777 sq.yd. for the consideration of Rs. 4,58,74,125/-. Purchased by Shri Sanjaybhai Patel, seller is Shri Rohitbhai Thakore. Land of block 76, 18,150 sq.yd. 77 22,627 sq.yd 40,777 sq.yd (multiply by Rs. ) 4,58,74,125/- Rs. 58,74,125/- received on 05.03.05. 1,125 per sq.yd Page-49: These are agreement dated 22.01.05 on plain paper for the block no.73 situated at Bopal admeasuring to 10,000 sq.yd. at the rate of Rs. 33,51,000/- per vigha purchased by Shri Rohitji Chanduji Thakore sold by Shri Ratibhai Kantibhai for which Bana of Rs. 900,000/- is receied. 20. The case of the AO is that both these blocks comprised of 40,777 sq.yards land. The assessee along with Shri Ashok Chanduji Thakore, Maniben C. Thakore, Chanduji Somaji and Shardaben Thakore has purchased land of the above blocks on 17.3.2005 for a consideration of Rs. 29,75,000/-. This land was sold by the assessee and other co-owners to Shri Mahesh Kaniyalal Patel, Smt. Chandrikaben M. Patel and Shri Nitin Patel on 29.12.2005 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned back to Anilbhai after collecting from farmer. On page 42 there is receipt of the money given to Anilbhai. 22. Thus, stand of the assessee is that earlier he has purchased the land along with family members though mainly the land in block no.77 was handled by his father. There is no dispute with regard to the fact that this land was purchased on 17.3.2005 for a consideration of Rs. 29,75,000/-. During the course of search other pages were found which were inventorised as Annexure A-15 and page nos.114 to 140 contain certain other nottings. While explaining all these pages, he deposed that originally the land was purchased in the capacity of a broker. This land was arranged for one Shri Anilbhai of Surat. The assessee took Rs. 60 lakhs from Anilbhai of Surat. However, the deal was not materialized and he has repaid Rs. 60 lakhs. The details of Rs. 60 lakhs, vis- -vis repayment is reflected on page no.42 43. Thus, under compelling consideration, this land was sold subsequently only at Rs. 30,20,0000/-. Thus, his stand is that as far as the rate of Rs. 1125/- written on the paper was never materialized; this is a rough paper and deal was never materialized on this basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on further appeal, the Tribunal reversed this, and held that once in a document, this amount has been mentioned, then it is to be considered as sale consideration, and whose source is required to explain. In this background, Hon ble High Court has examined the scope of sections 91 and 92 of the Evidence Act. The finding recorded by the Hon ble Court reads as under: 4. We have thoughtfully considered the submissions made by the learned counsel and are of the view that they do not warrant acceptance. There is well-known principle that no oral evidence is admissible once the document contains all the terms and conditions. Sections 91 and 92 of the Indian Evidence Act, 1872 (for brevity 'the 1872 Act') incorporate the aforesaid principle. According to section 91 of the Act when terms of a contracts, grants or other dispositions of property has been reduced to the form of a documents then no evidence is permissible to be given in proof of any such terms of such grant or disposition of the property except the document itself or the secondary evidence thereof. According to section 92 of the 1872 Act once the document is tendered in evidence and proved as per the requirements of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere tried to find what could be the deemed consideration for the purpose of computing capital gain under section 48 of the Act. He simply construed rough paper as a gospel truth. It is also pertinent to note that he has taken into consideration that land in block no.76 must have been purchased and sold by the assessee. No efforts were made to collect details of the sale deed or purchase deed; whether any transaction has taken place or not. The assessee has explained that originally some calculations required to be made on account of arranging the land to Shri Anilbhai of Surat, but the deal has never materialized. To rebut this explanation, there is no corroborative material collected by the AO. He simply took shelter under section 292C of the Income Tax Act which has been reproduced by him para 6.11 of the assessment order. He was of the view that section 292C contemplates that whatever document is to be found will carry a premise of truth and it will be presumed as books of accounts; but in the present case, the assessee has explained his position. He has submitted that land at block no.76 was never purchased nor sold in respect of that the AO did not bother to collect truth from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained investment made in the purchase of car that has been remitted back to file of the AO in the Asstt.Years 2007-08, 2008-09 and 2010-11. The ld.AO will be at liberty to initiate or not to initiate penalty proceeding in these assessment years after adjudication the issue on account of unexplained investment made in the car. Thus, in these assessment years, the penalty appeals of the assessee are partly allowed for the statistical purpose, and remaining two assessment years appeals are allowed. 49. Therefore, looking into the instant facts, we are of the considered view that so far as penalty under Section 271(1)(c) of the Act is concerned, it is a fit case where looking into the observations made by ITAT, when similar additions and penalty levied in the hands of the co-owner of the property was deleted, in our considered view, it is a fit case that penalty is not liable to be sustained in the hands of the assessee, for the impugned assessment year. Further, we also with to point out that in case of assessee, the quantum additions have not been decided against the assessee on merits. The ITAT had referred the matter back to the file of CIT(A) for de-novo consideration since adequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has failed to establish unaccounted income from the land transactions at Kasindra Block No. 1104 and 1290 of Rs. 46,26,570/- which was more than the income shown by the appellant in his return of income. Considering the facts discussed herein above, it is held that the appellant had concealed particulars of income as discussed above by filing inaccurate particulars of income. In view of the above discussion and judicial ratios (supra), and in absence of any bonafide explanation, it is held that Assessing Officer was justified in levying penalty of Rs. 15,42,190/- under Section 271(1)(c) of the Act. The grounds of appeal are dismissed. 4. In result, the appeal of the appellant is dismissed. 53. Before us, the Counsel for the assessee submitted that though the quantum appeal has been decided against the assessee on this issue, however, the ITAT in quantum proceedings had remitted back the matter to the file of Ld. CIT(A) for de-novo consideration with a direction to adjudicate and give proper opportunity of hearing of the assessee. However, in view of the order of High Court, the additions made by Ld. CIT(A) were confirmed in the assessee s hands. However, for this particular y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in the seized material without any corroborative evidence. The Counsel for the assessee placed reliance on the following decision: Commmon Cause (A Regd society) vs. UOI 394 ITR 220 (SC) CIT vs. Maulikkumar K. Shah (2008) 307 ITR 137 (Guj.) ITO vs. Bharat A Mehta 60 taxmann.com 31 (Guj.) Thus, it was submitted that in absence of any corroborative material, addition made merely on the basis of entries recorded in the seized material deserves to be deleted. Further, the Counsel for the assessee submitted that in case of Rohit C. Thakore, similar additions were made in the hands of the assessee s brother as well which were based on the same document BS-24 which was in possession of the Assessing Officer pursuant to the search. In the facts of the assessee s brother s case as well, the Assessing Officer has made similar allegation of undisclosed investment made by Rohit C. Thakore alongwith his father and the assessee s brother had also filed his rebuttal stating that he alongwith his father had only entered into a brokerage deal . The ITAT at Para 47-49 of the decision in the case of Rohit C. Thakore vs. DCIT in IT(SS)A No. 46 to 50/Ah/d2020 had deleted additions made under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 271(1)(c) of the Act is liable to be deleted. 56. In the result, the appeal of the assessee is allowed for A.Y. 2007- 08. Now we shall take up ITA No. 214/Ahd/2020 (Ashokji Chanduji Thakore for A.Y. 2008-09) 57. The assessee has taken the following grounds of appeal: 1. The Ld. CIT (A) has erred on facts and in law in upholding the assessment order u/s 271(1)(c) of the Income Tax Act, 1961 passed by the Assessing Officer on 28.03.2016. 2. The Ld. CIT (A) has erred on facts and in law in upholding the penalty levied on additions made by the Assessing Officer on account of alleged unexplained investment of Rs. 2,00,000/- on account of unexplained investment in Kasindra which has been added without considering appreciating the facts of the case. And also the penalty levied on additions made by the Assessing Officer on account of alleged unexplained investment of Rs. 3,49,930/ -/on account of unexplained investment in land at Bopal Block No. 73 which has been added without considering appreciating the facts of the case and accordingly levied penalty on the same by Assessing officer which has been upheld by CIT Appeal. 3. The appellant craves for liberty to add fresh grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, the said investment in property was made by the assessee alongwith his brother Shri Rohit C. Thakore being the co-owner of property. It was submitted before us that assessments were framed in the name of Rohit C. Thakore for the same search carried out on 21.09.2010 and consequential penalty under Section 271(1)(c) of the Act was also levied with respect to the same property in the hands of Shri Rohit C. Thakore, being the co-owner of such property alongwith his brother i.e. the assessee. The matter travelled before the ITAT and the ITAT, Ahmedabad vide order in the case of Rohit C. Thakore vs. DCIT in IT(SS)A No. 45/Ahd/2020 and others, deleted the additions (at Para 13-23 and also deleted the penalty at Para 25 of the order). Therefore, it was submitted that since similar additions have been deleted in the hands of he co-owners, there is no question of levy of penalty under Section 271(1)(c) of the Act. Secondly, so far as the additions of Rs. 3,46,930/- is concerned, the Counsel for the assessee submitted that this is an unabated assessment year and the perusal of the assessment order would clearly show that the underlying addition of Rs. 3,46,930/- towards unaccounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (Ashokji Chanduji Thakore for A.Y. 2009-10) 65. The assessee has taken the following grounds of appeal: 1. The Ld. CIT(A) has erred on facts and in law in upholding the assessment order u/s 271(1)(c) of the Income Tax Act, 1961 passed by the Assessing Officer on 28.03.2016. 2. The Ld. CIT(A) has erred on facts and in law in upholding the penalty levied on additions made by the Assessing Officer on account of alleged undisclosed capital gain of Rs. 2,61,93,070 on account of undisclosed capital gain on Bopal Survey No.73 which has been added without considering appreciating the - facts that that relevant capital gain has been declared in return of income filled by the assessee. And also the penalty levied on additions made by the Assessing Officer on account of alleged deposit in bank of Rs. 53,16,417 on account of unexplained deposits in bank which has been added without considering appreciating the facts that that relevant bank account has been declared in return of income filled by the assessee and accordingly levied penalty on the same by Assessing officer which has been upheld by CIT Appeal. 3. The appellant also request to honourable court for condonation of delay in filling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was deleted in the hands of Shri Rohit C. Thakore by ITAT in IT(SS)A No. 46 47 and ITA No. 205 206/Ahd/2020 vide order dated 23.11.2021. The relevant extracts of the order of ITAT wherein similar additions were deleted in the hands of the co-owner of this property, Shri Rohit C. Thakore are reproduced below for ready reference: 62. Ld.AO harboured a belief that land at block no.73 was sold by these persons for a consideration of Rs. 16,15,40,700/-. He calculated the share of assessee at 1/5th of the total. He further observed that the assessee himself has disclosed Rs. 64.62 lakhs as business income from sale of this land, and remaining amount of Rs. 2,58,46,140/- is added to the total income as undisclosed income for sale of land at survey no.73, Bopal. Appeal to the CIT(A) did not bring any relief to the assessee. 63. With the assistance of the ld. representatives, we have gone through the record carefully. No doubt, during the course of search documents exhibiting certain calculations were found. The case of the assessee is that first it had negotiated with Umangbhai Thakkar, and there were lot of encroachment and measurement problems. Ultimately, the deal was not materialize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence. Therefore, the addition is not sustainable in the hands of the assessee. This ground of appeal is allowed, and addition of Rs. 2,58,46,140/- is deleted. 69. Accordingly, we observe that since similar additions with respect to the same property in which the assessee was the co-owner has been deleted in the hands of the assessee Rohit C. Thakore, therefore, so far as levy of penalty under Section 271(1)(c) is concerned on account of undisclosed capital gain on this property, we are of the considered view that this is a fit case for deletion of levy of penalty, looking into the instant facts. Accordingly, the levy of penalty with respect to undisclosed capital gain on sale of Bopal land is liable to be deleted. 70. So far as levy of penalty with respect to addition of Rs. 53,16,417/- as unexplained bank deposit is concerned, we observe that this is an unabated assessment year and during the course of assessment proceedings despite being specifically asked to produce the source of such bank deposits, the assessee was unable to provide the same. Therefore, the additions were confirmed by the assessee in the absence of any information regarding source of such cash deposits co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition. The Ld. CIT(A) confirmed the additions in the hands of the assessee with the following observations: Even in the present case Appellant has failed to establish unexplained deposits of Rs. 33,83,768/- in bank (cash and cheque) which was more than the income shown by the appellant in his return of income. Considering the facts discussed herein above, it is held that the appellant had concealed particulars of income as discussed above. In view of the above discussion and judicial ratios (supra), and in absence of any bonafide explanation, it is held that Assessing Officer was justified in levying penalty of Rs. 10,38,180/-.under Section 271(1)(c) of the Act. The grounds of appeal are dismissed. 4. In result, the appeal of the appellant is dismissed. 74. The assessee is in appeal before us against the aforesaid order passed by Ld. CIT(A) confirming the levy of penalty under Section 271(1)(c) of the Act. 75. Before us, the Counsel for the assessee submitted that similar addition with respect to unexplained bank deposits had also been deleted in the case of the brother of the assessee Shri Rohit C. Thakore and the Counsel for the assessee placed reliance on the relevant extrac ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
