Pravinbhai H. Patel Vs ACIT (ITAT Ahmedabad)
ITAT Ahmedabad held that payment of cash towards purchase of land exceeding the prescribed limit is duly disallowed under section 40A(3) of the Income Tax Act.
Facts- The order passed by the Appellate Commissioner in confirming addition of Rs.1,72,39,262/- under Section 40A(3) of the Act is under challenge. According to the appellant, the same was ordered without granting an opportunity of being heard. Similarly, estimation of addition of Rs.50 Lakhs is also under challenge on the same ground of not granting opportunity of being heard to the appellant.
Conclusion- Held that considering the provisions of law particularly Section 40A(3) of the Act and the explanation under Rule 6DD of the IT Rules, 1962, 20% of the entire amount of Rs.8,61,96,310/- i.e. Rs.1,72,39,262/- was disallowed under Section 40A(3) of the Act, which, in our considered opinion, admittedly appeared to have been made upon due consideration of the relevant records produced by the appellant’s representative and submission made in support of the case made by the appellant. The impugned order is, therefore, found to be just and proper so as to warrant interference particularly in the absence of any assistance made by the appellant before us.
FULL TEXT OF THE ORDER OF ITAT AHMEDABAD
This bunch of appeals have been filed by the respective parties both different assessees and Revenues, challenging the order passed by the Ld. Commissioner of Income Tax (Appeals)-III, Ahmedabad (in short ‘CIT(A)’), under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) arising out of the order passed by the Ld. AO for different Assessment Years. Few appeals are also preferred by the different assessees challenging the order passed by the Ld. CIT(A) confirming the order of penalty imposed by the Ld. AO. The department is also seeking relief against the order passed by the Ld. CIT(A) granting partial relief in favour of the assessee. Since, all the matters relate mostly to identical issues and co-related to each other arising out of a common search, these are heard analogously and are being disposed of by a common order for the sake of convenience.
2. At the time of hearing of the appeals, none appeared on behalf of the assessee neither any adjournment has been sought for. It further appears from the order sheet that the matters were taken up by the Bench on very many occasions, even after 2014, but the matter was not heard out for some reasons or other for more than 50 occasions. Most of the time matter was adjourned at the request of Ld. AR. We also find that this bunch of appeals have chequered history which will be dealt with at the appropriate stage. However, having regard to the facts and circumstances of the matter as mentioned hereinabove and due to pendency of the matter for a prolonged period, we do not find any reason to keep the matters pending before us. Therefore, we have decided to proceed with the matter ex parte.
3. It further appears from the records that earlier during the pendency of the matters before us, the assessees didn’t appear on number of occasions and in the absence of any assistance rendered by the assessee the Bench dismissed few appeals preferred by the assessees which were further restored back on Miscellaneous Applications filed by the appellants. The incident of unwillingness and inattentiveness of the assessees galore in pursuing the matters before us which creates doubt in our mind whether this is a purported delay for getting issues decided by us. Thus, under this particular facts and circumstances of the case, the appeals have been taken up by us for adjudication of the same ex parte.
4. These appeals are basically comprising of the following common grounds:
(i) The Ld. CIT(A) erred in law and on facts in not accepting the return of income without granting any opportunity of being heard.
(ii) The order passed by the Ld. AO in not accepting the return of income is non-application of mind as the same is without appreciation of the facts and evidences on record. This was filed either by way of grounds of appeal or revised or modified grounds of appeal.
(iii) In some matters, revised/modified grounds against initiation of proceedings under Section 271B of the Act have also been raised.
(iv) In certain matters IT(SS)A Nos. 159, 160, 161, 162 & 163/Ahd/2013 (A.Ys. 2004-05 to 2008-09) revised/modified/additional grounds of appeal filed challenging the order passed by the Ld. AO. rejecting the claim of the appellant.
(v) The appellant had further challenged the proceeding and subsequent order passed under Section 143(3) r.w.s. 153A of the Act with a prayer for quashing the same being void ab initio in the absence of issuance and service of notice under Section 143(2) of the Act by the Ld. AO.
5. We have heard the submissions made by the Ld. DR and perused the entire set of records available before us including the submissions made by the Department by and under office memo No. ITO-3(3)(9)/ITAT/PRAVIN H PATEL/2019-20 dated 28.11.2019 filed before us or 29th November, 2019.
The same was prepared from the office of the ITO, Ward-3(3)(9) addressed to the CIT.DR, ITAT -2, ‘B’ Bench, Ahmedabad. On the basis of the documents filed before us by both the parties by way of paper books, judgments relied upon by the parties and the orders impugned, we now proceed to deal with these appeals.
ITA Nos. 2066/Ahd/2011, 1906/Ahd/2012 & 2034/Ahd/2011 for A.Y. 200304 (Shri Pravinbhai H. Patel)
6. Initially, challenging the order passed by the Ld. CIT(A) dated 30.06.2011, cross appeals were preferred by the respective parties before the Tribunal. In assessee’s appeal additional ground challenging the validity of the re-assessment order under Section 147 r.w.s. 143(3) of the Act was filed. The Tribunal on 11.05.2012 restored the appeal to the file of the Ld. CIT(A), upon which, the order dated 04.07.2012 was passed by the Ld. CIT(A). Challenging the same, ITA No.1906/Ahd/2011 was filed before us by the appellant/assessee. However, the order dated 11.05.2012 was recalled by the Tribunal considering the Miscellaneous Application being No.139/Ahd/2012 dated 19.10.2012 for disposing of other grounds of appeal raised on merits on addition as prayed for by the assessee/appellant. Thus, ITA No. 2066/Ahd/2011 has travelled back inviting us to adjudicate the same on its second innings. When the matter was taken up by the Tribunal on 30.04.2013, the Bench found no valid paper book on record and neither any representative of the assessee appeared on behalf of the assessee to assist the Bench. In fact, no argument on behalf of the assessee was made at the time of hearing of the matter and therefore, with the following observation both ITA Nos.2066/Ahd/2011 & 1906/Ahd/2012 were dismissed.
“4. From both these applications of the Ld. A.R. seeking adjournments, it is clear that the adjournment is sought for by him on vague reasons. Moreover, on this date of hearing ie, on 11.04.2013, neither Ld. A.R. nor any competent representative was present in the court room for pursuing this adjournment application and even no other authorized person was present i.e. a proxy counsel and one Mr. Jivrajbhai B Divecha who is stated to be a clerk with BH Shah & Co, appeared to pursue this adjournment application. On inquiry, it was stated by him that he is only metric pass and is employed with B H Shah & Co. on a monthly salary of Rs.2,000/- per month. It comes out that he is not an authorized person for appearing before the Tribunal even for pursuing this adjournment application. Hence, adjournment application of the Ld. A.R. is rejected and the appeals are being decided ex-parte qua the assessee.
5. Before proceeding further, we would like to note down the brief facts of the case to understand the reasons for having two appeals of the assessee for the same assessment year. It is noted by Ld. CIT(A) in para 2 of his subsequent order dated 04.07.2012 that in this case, an appellate order was passed by him on 30.06.2011. Against this order, the department as well as the assessee preferred appeals before the Tribunal. It is also noted that the assessee raised additional grounds before the Tribunal regarding the validity of the reassessment order u/s 147 read with section 143(3) of the Act and the same was raised by the assessee for the first time. It is further noted that the Tribunal vide order dated 11.05.2012, restored the appeals to the file of Ld. CIT(A) L4. CIT(A) has drawn this from this restored by the Tribunal to the file of LA CIT(A) was to decide the tribunal order that the only issue validity of reassessment proceedings. This issue was decided by Ld. CITA) against the assessee as per this impugned order dated 04.07.2012 and the appeal i.e. ITA.No. 1906/Ahd/2012 has been filed by the assessee against this order of Ld. CIT(A)
6. In the meantime, the assessee moved miscellaneous application before the Tribunal in which it was contended by the assessee that as per the Tribunal order in I.T.A.No. 2066/Ahd/2011 dated 11.05.2012, the Tribunal has decided the issue regarding validity of reassessment order raised by the assessee as per additional grounds of appeal and the matter has been restored back to the file of Ld. CIT(A) but main grounds of the assessee as per appeal memo were note decided by the Tribunal. In the miscellaneous application No.139/Ahd/2012 dated 19.10.2012, the Tribunal recalled its earlier order I.T.A.No. 2066/Ahd/2011 dated 11.05.2012 to the limited extent of disposing off other grounds of appeal relating to the merits or additions and hence, in this manner, the earlier appeal of the assessee being I.T.A.No. 2066/Ahd/2011 is also before us for deciding the issue on merit of various additions.
7. First of all, we would like to note and bring on record that a paper book containing 1044 pages is available on record but the same is not as per the Tribunal rules because in the Index of paper book, there is no certificate given by the assessee as to whether these pages in the paper book were furnished before the authorities below and if yes, then which paper furnished with which authority. Moreover, as per sub-rule 6 of Rule 18 of Appellate Tribunal Rules 1963, only those documents which are referred to and relied upon by the parties during the course of argument shall alone be treated as part of record of the Tribunal. As per sub Rule 7 of Rule 18, it is also prescribed that the papers /paper book not confirming to sub-Rules 1-6 of rule 18 are liable to be ignored. In the present case, the assessee has neither complied with sub-rule 7 of rule 18 nor with sub-rule 1-6 of Rule 18 and hence, this paper book filed by the assessee cannot be treated as part of the record of the Tribunal and the same is liable to be ignored as per sub-rule 6 & 7 of Rule 18 of Appellate Tribunal Rules 1963. We, therefore, ignore the same.
8. As per above discussion, we have seen that there is no valid paper book on record and there is nobody present before the Tribunal on behalf of the assessee to make any argument in respect of these two appeals of the assessee. When we go through both these orders of Ld. CIT(A), we do not find any flaw in the same and hence, we decline to interfere in both these orders of Ld. CIT(A).
9. In the result, both these appeals of the assessee are dismissed.”
7. By and under order dated 07.03.2014, the order passed by the Tribunal on 30.04.2013 whereby and whereunder both the appeals being ITA Nos.2066/Ahd/2011 & 1906/Ahd/2012, both for A.Y. 2003-04 stood rejected were recalled and directed to be taken up on 24.04.2018.
ITA Nos.2066/Ahd/2011 – A.Y. 2003-04 (Assessee’s appeal) (Shri Pravinbhai H. Patel)
On the legal issue:
8. The validity of assessment proceeding initiated under Section 147 of the Act is under challenge before us by way of additional ground filed by the assessee.
9. The assessee, an individual, filed its original return of income on 31.03.2014 declaring total income at Rs.64,060/- and also agricultural income of Rs.1,05,940/-. Subsequently, on 03.06.2009, a search under Section 132 of the Act was carried out in the premises of the assessee, during which, incriminating documents relating to land dealings and other issues were found and seized. It was further found that assessee had undertaken sizeable transaction in lands during Financial Year 2002-03, which was not reflected in the return of income. Therefore, the case for A.Y. 2003-04 was reopened under Section 147 of the Act and notice under Section 148 of the Act was issued on 25.01.2010 after recording reasons for reopening of assessment.
10. The assessee joins issues here.
11. The contention made by the assessee is this that the recording of reasons made by the Ld. DCIT, Central Circle-2(3), Ahmedabad, shows that he himself was not satisfied by conducting any enquiry as to whether what was stated by the search party was correct or not. Neither having any reason to believe that any income escaped assessment in order to reopen the assessment under Section 147 of the Act nor issued any notice under Section 148 of the Act. However, upon perusal of which, the entire set of records and upon hearing of the Ld. DR, fact is found to be just otherwise.
12. We have perused the reasons for reopening of assessment under the signature of the Ld. DCIT, Central Circle-2(3), Ahmedabad, dated 19.01.2010 being part of the records before us, mentioning the fact of Pravinbhai H. Patel selling some plot of lands to different parties and the profits derived from these transactions were not reflected in his return of income. The entire list of lands purchased in Urjanagar – (I) & (II) and Farmhouses alongwith the consideration amount is reflecting in such reasons recorded by him. Upon due application of mind, he was of the prima facie view that as the assessee has not reflected this cash/cheque transactions in his return of income, neither the source of investment in such lands explained, the assessment required to be reopened, which in our considered opinion, sufficient enough in support of such reopening of assessment made by the Ld. AO. So far as the other part is concerned, the assessee has been already issued notice under Section 148 of the Act and the copy of the reason of reopening of assessment was supplied to the assessee on 11.11.2010. Such facts were duly recorded in the order passed by the Ld. AO on 30.12.2010 under Section 143(3) r.w.s. 147 of the Act. Thus, the very fact on which the reopening has been challenged by the assessee appears to be wrong and the grounds, therefore, found to be frivolous and hence dismissed.
On Merit:
13. The order passed by the Appellate Commissioner in confirming addition of Rs.1,72,39,262/- under Section 40A(3) of the Act is under challenge. According to the appellant, the same was ordered without granting an opportunity of being heard. Similarly, estimation of addition of Rs.50 Lakhs is also under challenge on the same ground of not granting opportunity of being heard to the appellant.
14. It appears from the records and as we have gathered from the submissions made by the Ld. DR that transactions made in cash was not intended to be disclosed by the appellant as none of the cash purchases or sales was accounted for by the appellant in the books of accounts till the date of search. But, it is also a fact that the appellant has shown purchases and sales during the year under consideration which has been mentioned categorically in an excel sheet appearing from Page Nos. 8 to 12 of the order passed by the Ld. CIT(A). Certain cash purchases in the books of account prepared after the date of search is also reflecting from Page No.13 of the order passed by the Ld. CIT(A). The receipt or payment made by cheque by the appellant is reflecting at Page No.14 of the said order. Before the Appellate Authority, the copy of the bank statement lying with the Allahabad Bank in SB Account No.4932 was duly submitted by the appellant. The submission in regard to the receipt of source of cash paid for the purchase of lands and other expenses were also made before the First Appellate Authority. In fact, the AR categorically stated that the appellant received cash amount from Urjanagar Society which was used by the appellant for the purchase of lands. In support of the same, the AR produced a cash book prepared by him after the date of search. Considering the entire aspect of the matter and upon granting a proper opportunity of being heard, as we have already discussed above, with the following observation the Ld. CIT(A) proceeded with the matter for final adjudication:
“6.4 In other words, the appellant had shown cash receipts amounting to Rs.927,50,358/- and cheque receipts of Rs.350,09,425/- during the financial year 2002-2003 relevant to assessment year 2003-2004. During this period the appellant has shown cash and cheque payments of Rs.861,96,310 and Rs.349,99,055 respectively. It may be mentioned that the payment of cash by the appellant against the purchase of land and receipt of cash against the sale of the land of Urjanagar Housing Society was not accounted for by the appellant in the books of accounts till the date of such. It can be therefore stated that the appellant had no intention to disclose the cash payment in cash receipts. The contention of the AR before me has been that the appellant first received the amounts from the members of Urjanagar Housing Society as an advance against the sale of the land. This money was utilised by the appellant in purchasing the land from the farmers. The land was then developed by the appellant and converted into NA and then sold to Urjanagar Housing Society. It was stated that since the appellant has already agreed for a particular rate to Urjanagar Housing Society, the appellant in fact incurred a loss as the appellant could not get the land from the farmers at cheaper rate. In order to prove this contention, the AR produced before me the copy of bank statement of the appellant in Allahabad bank SB account number 4932. It was stated that the bank account was opened by the appellant for the first time on 22/7/2002. First the appellant received the cheque from Urjanagar and then that money was utilised for various expenses including the purchase of land. Similar argument was given in respect of the source of cash paid for the purchase of land and other expenses. It was stated by the AR that the appellant received cash amounts from Urjanagar society then that cash was used by the appellant for the purchase of the land. In support of this contention the AR produced the cash book prepared by him after the date of search. In my opinion, in the absence of relevant documents, the authenticity of the cash book prepared after the date of search is doubtful. Because in this case, the search was carried on 3/6/2009. In the absence of any supporting evidence regarding payment and receipt of the cash, it is not possible to prepare cash books for earlier years particularly for the period 20022003. The cash book has been prepared by the appellant in such a manner so that he can explain all the transactions including unaccounted transactions. Therefore, in my opinion not much of reliance can be placed on the cash book prepared after the date of search particularly when the appellant has not been maintaining any books of accounts or supporting documents prior to the date of search and it is not possible to remember the cash transactions carried out by the appellant 6 to 7 years prior to the date of search.”
15. Finally, the appellant, since, shown cash purchases exceeding Rs.20,000/- for total amount of Rs.8,61,96,310/-, the Ld. CIT(A) found applicability of Section 40A(3) of the Act made by the Ld. AO reasonable in respect of the purchase of land from the farmers and the appellant found to be not eligible for explanation under Rule 6DD of the Income Tax Rules, 1962, keeping in view that the property was registered in Gandhinagar where backing facility though available but not availed of with the following observation:
“6.5. As stated earlier the appellant has shown cash purchases exceeding Rs. 20,000 for total amount of Rs. 861,96,310/-. In my opinion, the provisions of section 40 A(3) are applicable in this case in respect of the purchase of land from the farmers: As per the registered documents of the property, the land has been registered at Gandhinagar where there is banking facility available. Therefore, the appellant cannot get the benefit of exceptions of the payments made in cash under Rule 6 DD of the Income Tax Rules. For the purpose of allowing cash payment exceeding Rs. 20,000, the relevant exceptions in this case are:
i. The payment has been made for the purpose of agricultural produce.
ii. The payment has been made at a place where there is no banking facility available
6.6. In the case of the appellant, since the payment has been made at Gandhinagar where the documents had been registered by the appellant in his name and in the name of Urjanagar Housing Society and there is banking facility available there, and also since the payment has not been made against the purchase of agricultural produce but for purchasing the land, in my opinion, the provisions of section 40A(3) are clearly attracted in respect of the cash purchases exceeding Rs.20,000. Therefore, 20% of Rs. 861,96,310=172,39,262 is disallowable under section 40A(3) of the Income Tax Act.”
16. Thus, considering the provisions of law particularly Section 40A(3) of the Act and the explanation under Rule 6DD of the IT Rules, 1962, 20% of the entire amount of Rs.8,61,96,310/- i.e. Rs.1,72,39,262/- was disallowed under Section 40A(3) of the Act, which, in our considered opinion, admittedly appeared to have been made upon due consideration of the relevant records produced by the appellant’s representative and submission made in support of the case made by the appellant. The impugned order is, therefore, found to be just and proper so as to warrant interference particularly in the absence of any assistance made by the appellant before us. This Ground of appeal is found to be frivolous and hence dismissed.
17. The estimation of addition of Rs.50 Lakhs has been alleged to have been made without any basis by the Ld. CIT(A). The question arose before the Ld. CIT(A) as to how much profit could have been earned by the appellant in respect of total sale of Rs.10,94,98,000/- in respect of land sold by the appellant. The Ld. CIT(A), as it appears from the order impugned, was of the opinion that in regard to general practice of the land developer to this effect that when a land sold from the farmers it is developed after converting into NA and the land is thereafter sold within six months to one year from the date of purchase where the profit margin varies from 10% to 20%. As the appellant claimed of not using his own funds but the funds provided by Urjanagar Housing Society, the Ld. CIT(A) worked out the profit on the basis of initial investment in the following manner:
“However, in this case, since the appellant has claimed that he has not used his own funds but the funds have been provided by Urjanagar Housing Society, in my opinion, the statement recorded at the time of search is relevant for the purpose of working out the profit. It may be mentioned that during the course of search the appellant has admitted that in the assessment years 2002-2003 he had earned total profit of Rs. 30 lakhs which was not shown by him to the Department. In my opinion, in the absence of any evidence contrary to it, the statement recorded at the time of search has to be accepted. The statement has been recorded in the month of June 2009 when the appellant had already ascertained the amount of profit earned by him in the year 2002-2003 relevant to assessment year 2003-2004.
6.8. In principle I do not agree with the AO that the whole of land which has been sold during the same assessment year or subsequent years was not accounted for by the appellant in the books of accounts. It may be possible that consideration could have been paid by the appellant in cash which was not disclosed or intended to be disclosed by the appellant. Therefore, there is some truth in the contention of the appellant that during the course of search itself, there was evidence of payment in respect of the purchase of land by the appellant from farmers but the evidence thereof was not seized by the Department. In my view, what is to be seen in this case is that, how much profit could have been earned by the appellant in the sale of land of Rs. 10.94 crores and how much unexplained investment had been made by the appellant himself. It is possible that some unaccounted amount had been invested by the appellant from his own pocket for the purpose of purchasing the land and incurring the expenditure. Therefore, in my considered view, the initial investment in the land to the extent of Rs.50 Lacs can be treated as the unaccounted income of the appellant which is sufficient to prove the purchase of land to the extent of rupees 8.61 crores in cash.”
18. While determining the profit earned by the assessee, the Ld. CIT(A), therefore, took into account of this particular fact that unaccounted amount has been invested by the appellant from his own funds for purchasing of land and also incurred expenditure and having regard to the facts and circumstances of the case, the initial investment in the land to the extent of Rs.50 Lakhs had been rightly treated as unaccounted income of the appellant which is found to be acceptable and thus upheld. We make it clear in spite of repeated opportunity provided to the appellant, no assistance has been rendered by the appellant before us and we do not find any reason to deviate from the stand taken by the Ld. CIT(A) in confirming addition in the hands of the appellant. This Ground of appeal filed by the assessee is, therefore, dismissed.
19. In the result, appeal preferred by the assessee is dismissed.
ITA No. 2034/Ahd/2011 – A.Y. 2003-04 (Revenue’s Appeal) (in case of Shri Pravinbhai H. Patel)
20. When the appeal preferred by the appellant in ITA No.2066/Ahd/2011 was dismissed by the Tribunal for A.Y. 2003-04, the Revenue preferred an MA before the Tribunal being No. M.A. No. 9/Ahd/2015 contending that ITA No. 2034/Ahd/2011 needs consideration on merit since the part relief granted by the Ld. CIT(A) was in favour of the assessee has been challenged before the Tribunal by Revenue. Keeping in view, the order dated 11.05.2012 recalling the order of dismissal of ITA No. 2066/Ahd/2011, the Co-ordinate Bench in M.A. No. 9/Ahd/2015 restored the appeal being ITA No. 2034/Ahd/2011 filed by the Revenue for adjudication on merit. Hence, the said appeal before us.
21. The Revenue has challenged the order passed by the Ld. CIT(A)-III, Ahmedabad dated 30.06.2011 arising out of the order passed by the Ld. ACIT, Central Circle-2(3), Ahmedabad passed under Section 143(3) r.w.s. 147 of the Act dated 30.12.2010 for A.Y. 2003-04 reducing the addition from Rs.4,42,16,407/- to Rs.2,52,39,262/- as estimated unaccounted income.
22. We have already discussed this issue in ITA No. 2066/Ahd/2011 for A.Y. 2003-04, the appeal preferred by the assessee. In the said appeal, the assessee challenged the addition of Rs.1,72,39,262/- under Section 40A(3) of the Act and the estimation addition of Rs.50 Lakhs. Needless to mention that we have upheld the order passed by the Ld. CIT(A). It is also a fact that in the said order the Ld. CIT(A), apart from this, mentioned the profit admitted by the appellant during the course of search to the tune of Rs.30 Lakhs. The total amount, therefore, comes to Rs.2,52,39,262/- being unexplained investment of Rs.50 Lakhs, the profit admitted by the appellant during the search to the tune of Rs.30 Lakhs and disallowance made under Section 40A(3) of the Act of Rs.1,72,39,262/-. Hence, we do not find any reason to interfere this particular appeal preferred by the Revenue. The partial relief granted to the assessee by the Ld. CIT(A) has already been upheld and, thus, consequently, this appeal fails.
23. In the result, appeal preferred by the Revenue is dismissed.
ITA No. 1906/Ahd/2012 – A.Y. 2003-04 (Assessee’s Appeal) (Shri Pravinbhai H. Patel)
24. As we find from the records that the grounds taken in ITA No. 2066/Ahd/2011 for A.Y. 2003-04 preferred by the appellant is similar to the subsequent appeal preferred by the appellant in ITA No. 1906/Ahd/2012, we find no reason to deal with any of the grounds raised herein by the appellant. Hence, no order needs to be passed. This appeal, in fact, becomes infructuous and, thus, dismissed.
IT(SS)A Nos. 159, 160 161, 162 & 163/Ahd/2013– A.Ys. 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 (Assessee’s appeal in case of Shri Pravinbhai H. Patel)
25. The assessee has come up with the additional ground of appeal challenging the proceeding and consequent order under Section 143(3) r.w.s. 153A of the Act with a prayer for quashing of the same as void ab intio since no notice under Section 143(2) of the Act appears to be issued and served upon the appellant.
26. It appears from the records that a search action under Section 132 of the Act was carried out in Pravin H. Patel Group of cases on 03.06.2009. A warrant of authorization under Section 132 of the Act was issued in the name of the assessee in respect of his residence situated at 26, Ghanshyam Nagar, Virat Nagar, Odhav, Ahmedabad. Thereafter, as per DGIT (înv.). Ahmedabad’s order bearing No.DIT/Search/2/2009-10 dated 09/07/2009 this case has been approved for centralization. By the CIT, Ahmedabad-1, Ahmedabad’s order U/s 127(2) of the Act bearing No.CIT/ABD.1/Cent./A-18/Pravin Patel Gr./2009-10 dated 12/10/2009, this case was centralized with DCIT, Central Circle-2(3), Ahmedabad. Consequently a notice U/s 153A was issued on 25/01/2010, requiring the assessee to file the return of income within thirty days of receipt of the said notice upon which the assessee filed return on 14.05.2010.
27. It further appears that subsequently notice under Section 143(2) & 142(1) of the Act were issued pursuant to which the Advocate, namely, Shri Prashant B. Shah duly authorized by the assessee attended from time-to-time to represent the case of the assessee. The same is reflecting from the Page No.2 of the order passed by the Ld. AO dated 26.12.2011 being part of the record before us for A.Y. 2004-05. Moreso, the assessee never took up this particular ground even in the appellate proceeding; in fact the assessee was of the knowledge that the notice under Section 143(2) of the Act was served upon him and only upon receipt of the same the representative of the assessee entered appearance before the Ld. AO. Thus, it seems in order to delay the adjudication of the issue by us this frivolous ground has been taken by the assessee alleging the appeal not maintainable. In that view of the matter, we find that the ground taken by the assessee is devoid of any merit and hence, dismissed.
28. The order of dismissal of this particular ground shall apply mutatis mutandis in all the appeals where identical grounds have been taken.
29. In all the appeals challenging the common order dated 22.02.2013, this order will be applied mutatis mutandis where identical ground has been raised by the appellant.
30. The appellant has also filed revised/modified grounds in the following manner:
“1. The Ld. Appellate Commissioner has erred in Law and on Facts in not accepting the Returned Income without granting any proper opportunity of being heard. The Order is therefore, bad in Law liable to be quashed;
2. The Assessing Officer has erred in Law and on Facts in Assessing the Appellant as such, not accepting the Returned Income without applying mind and without appreciating the facts and evidences on record and those filed during the course of hearing. The Order is therefore, bad in Law liable to be quashed;
3. That the Assessing Officer has erred in Law and on facts in rejecting the Books of Accounts u/s 145(3) of the Act on the ground that the same were rejected in A. Y. 2003-04 without considering the fact that each year is a separate year and thereby, not allowing set off and carry forward of Loss claimed in the Return of Income at Rs. 2,51,977/-;
4. That the Assessing Officer has erred in Law and on facts in disallowing the claim of Purchases u/s 40A(3) of the act at Rs. 9,90,675/- on extraneous grounds even when the Books of Accounts are rejected;
5. That the Assessing Officer has erred in Law and on facts in estimating profit of Rs. 64,52,968/- allegedly on the basis of wrong interpretation of the Statement of the Appellant and without going in to the actual and correct facts of the case. The same may therefore be deleted;
6. That the Assessing Officer has erred in Law and on facts in estimating Income from Land Trading at Rs. 64,52,968/- on the basis of the Order of the Appellate Commissioner for A. Y. 2003-04 without considering the valid documentary evidences record and without applying mind to the facts of the case as on record, for the year since each year is a separate Assessment Year and Assessment has to be carried out on the basis of the facts available on record, independent of that for any other year. The same is therefore, bad in Law, liable to be deleted;
7. That the Assessing Officer has erred in Law and on facts in initiating proceedings u/s 271A of the Act without considering the facts of the case and evidences on record. The same is therefore, liable to be quashed;
8. That the Assessing Officer has erred in Law and on facts in initiating proceedings u/s 271B of the Act without considering the facts of the case and evidences on record. The same is therefore, liable to be quashed;
9. That the Assessing Officer has erred in Law and on facts in initiating proceedings u/s 271(1)(c) of the Act without considering the facts of the case and evidences on record. The same is therefore, liable to be quashed;
10. That the Search and Seizure proceedings initiated are bad in Law as the conditions laid down in the provisions therefore u/s 132 of the Act viz., “information in possession” etc., were non-existent at the relevant time, with the Search Party and hence, the entire proceedings as a result thereof are void ab initio and thus be quashed, being illegal; and / or
11. That the Appellant be granted such other relief as Your Honours may deem just and fit;”
31. So far as the Ground Nos. 2 to 6 are concerned, the same is not liable to be challenged before us but before the Ld. CIT(A). Thus, these Ground Nos. 2 to 6 are dismissed as not maintainable.
32. So far as the Ground No.1 is concerned which relates to the non-granting of proper opportunity of being heard to the appellant by the Ld. CIT(A), we find from the records that the appeals were fixed on various dated from time-to-time and show cause notice was also issued upon the assessee and also directed for filing of written submission by and under order sheet dated 17.01.2013 before the Ld. CIT(A) by 21.01.2013 upon which ultimately on 29.01.2013, the Ld. Counsel appearing for the assessee, namely, Shri Prashant B. Shah himself filed the written submission with the following plea:
“Reference the Appeals, your notice and letter dated the same, at the outset, it would be apt to clarify the issue of requesting for adjournments from time to time.
In fact, the reason for taking adjournments has been overlooked. If, the same was considered in its right spirit, there would’nt have been this occasion to be concerned about. Needless to mention that the reason for adjournments is just, reasonable & fair and\there cannot be rationale to refuse the request for adjournments, even as of today. Why should the Appellant be forced to resort to repetitive Appeals leading to avoidable litigation and wasteful expenditure when it is possible to wait till the decision of the 2nd Appeal in A. Y. 2003-04 which has unfortunately been made the basis for Assessments in all subsequent years.
Secondly, when it is admitted by you that on the dates mentioned in your above referred letter, request for adjournments were made, there does not arise any question of filing written submissions at all.
Thirdly, my letter dated 26-12-2012 is perhaps lost sight of wherein it is stated how the Appeals of all the group matters as well were sought to be taken up for hearing. Precisely conforming to the spirit of that agreement and understanding, the Appeal of Bhartiben for A. Y. 2004-05 was attended and heard on 18-01-2013 notwithstanding the fact that a just and reasonable petition for keeping the Appeals hearing on hold is on record.
That now, the notice fixing all appeals for hearing on 4th instant is an unfair deviation from the understanding arrived at on 26-12-12 w.r.t. the hearing of the Appeals, in letters and spirit too, hereby, depriving the Appellant of his basic and fundamental right to opportunity of being heard granting reasonable and sufficient time, without loosing sight of the fact that the quantum of tax assessed is exorbitantly high.
That no loss is caused to the Revenue in keeping on hold the Appeals for the aforesaid reasons which are quite just, judicious, reasonable and fair. Rather, proper justice would be meted out to the Appellant for which precisely, he has approached your good self.
That by fixing all Appeals of the Appellant and also requisitioning the details of the Other group matters on 4th instant, is depriving the Appellant of his right to be granted a fair and reasonable opportunity of being heard.
That under the guise of hearing the Appellant and serving notice to the Appellant for hearing of his Appeals, it appears from your letter that the Appeals of the group matters, are also sought to be heard and decided on 4th instant.
It is hoped, the submission is considered in its true spirit and hearing of the Appeals be taken up if, at all, allowing a fair and reasonable opportunity of being heard. Regarding paras 3 to 5 of your letter referred to above, it is submitted that the Appellants have filed complete details including copies of Books of Accounts, supporting documentary evidences, explanations and clarifications, etc. during the course of Assessment proceedings which unfortunately were either not considered, or considered and yet not accepted for extraneous reasons. All these submissions are again filed herewith in support to explain each and every entry passed in the Books and prove the genuineness thereof.
Also, it would be a fallacy to adjudicate that the Appellants – Bhartiben and Riddhiben do not have “any other source of Income” when they both are duly Assessed as such on substantial Income since last 10 to 15 years.
Kindly intimate if, the above referred notice is sought to be treated as one for the other group Appeals also and whether no further opportunity of being heard would be granted despite the above facts on record and the fact that these are search related Appeals against harsh, unreasonable, unjust and unfair Assessments.
It is sincerely hoped that a fair and reasonable trial shall be afforded.”
33. Another letter dated 04.02.2013 with the following contention was filed by the said Advocate:
“In furtherance of:
1. Statement of Facts;
2. Submission made thereafter, oral as well as written, including petition doted 08/11/2012 to raise additional ground and notwithstanding the fact that the said ground is pending adjudication till date, and
3. Without prejudice to the petitions for granting adjournment made till date for the reasons mentioned therein, the Appellant submits as hereunder.
That it is an accepted fact that the appellant has filed his Return of Income along with copies of Final Accounts (Para-2 of the Assessment order).
It is also an accepted fact that the Appellant has filed all details called for and the same have been verified by the Assessing Officer (Para-3 of the Asstt. Order).
Admittedly no discrepancy is found either in the Books of Accounts, or details filed which have been thoroughly verified by the A. O. during the course of Assessment proceedings That the Assessing Officer has erred in Law and on Facts in concluding about the nature of modus operandi of Land transactions entered in to by the Appellant (Sub Para-1 of Para- 4 of Assessment Order).
That these facts can be thoroughly verified from the Assessment record which is called for by your goodself at the same is before you. Copy of the Agreement between the Society and the Appellant is again filed herewith for ready reference. Accordingly, the complete Assessment record which has been called for and before you would be a part of the Appellate proceedings record also. Seized material may also be called for on which the Appellant is relying.
In fact, the Appellant first agreed to Sell Land to Urja Nagar Society at a fixed price and then, after executing, this Agreement, he approached different farmers to acquire Land for Urja Nagar Society This fact is on record vide Paras-1 & 7 of submissions dated 22/10/2011 before the Assessing Officer as also in Statements recorded during the course of Search. This modus operandi is fully supported by the Statement dated 3-6-09 of the Secretary of Urjanangar Soc. – Shri Kesrisinh Chauhan vide his reply to Q. No. 6. The same is filed herewith for ready reference despite the fact of its being on record. It is further to be noted that nowhere in his statement recorded during the course of search, the Appellant has ever stated the modus operandi as alleged by the Assessing Officer He has thus, arrived at a wrong conclusion prejudicial to the Appellant.
Proceeding to make an Assessment based on such wrong conclusion is bad in Law.
Similarly, it was conveyed in so many words that the Search party did not impound or see of the documents relating to Sale, or Purchase of Land but instead, left behind many such documents in support, the Appellant had also executed and filed Affidavit before the Assessing Officer during the course of Assessment proceedings for AY-2003-04. Copy of this Affidavit is Annexed here with for ready reference.
The Assessing Officer has thus proceeded on assumption and presumptions instead of the correct facts and evidences on record which is again bad in Law (sub Para-5 of Para- 4 of Assessment Order).
That the A. O. has erred in Law and on facts in rejecting the Books of Accounts of the Appellant on the alleged grounds:
(1) That the same where prepared after search on the basis of seized materials;
(2) That no supporting evidences/documents were available with the Appellant for various cash payments; and
(3) That it was not possible for Appellant to remember the cash transactions of Purchase and Sale of Land carried out Six to Seven Years prior to the date of search (Last Sub Para of Para-4 of the Assessment Order).
In fact, the Appellant was directed by the Assessing Officer himself to prepare Books of Accounts from AY-2003-04 to AY-09-10 vide Para-3.1 of Notice U/s. 142(1) dated 29/10/2010. Copy of the said Notice is Annexed herewith for ready reference.
Further, as stated here in above, the Appellant has prepared Books on the basis of valid documentary evidences only and not on any guess work as alleged.
Rejection of Books of Accounts on wrong & extraneous allegations without having found a single discrepancy therein and also because his predecessor had rejected the same for A. Y. 2003-04 is bad in Law. It is here with requested to accept the Books of Accounts.
It is worth mentioning here the settled and established Legal position that each year is separate and Independent Assessment year and Assessment has to be carried out on the basis of facts and evidences available on record without being influenced by what wrong was done in the Pr. Yr which has not been done by the Assessing Officer He has instead relied on the proceeding of AY-2003-04 which is bad in Law (Para-5 of the Asstt. Order).
Ignoring the validly prepared Books of Accounts duly supported by all documentary evidences and proceeding to make Asstt. on mere conjectures and surmises, on extraneous facts, flimsy grounds, simply following the previous year’s Asstt. of estimating Income @ 20% of Gross Sales without any basis is bad in Law, liable to be deleted.
That the Appellant’s contention that Assessment is carried out unlawfully and prejudicially without any application of mind is fully supported and evidenced in the Assessment Order itself On one hand, the Assessing Officer rejects the Books of Accounts and estimates Income While on the other, He makes addition U/s 40A(3) of the act taking cognizance and considering the same Books of accounts which he has rejected for estimation purpose.
Assessment Order is therefore, without Application of mind, without considering the correct facts and evidences on record, without considering the correct legal position but only on flimsy grounds, surmises & conjectures and earlier year’s Assessment, is bad in Law and additions made to the Returned Income are liable to be deleted.
Under the circumstances, it is requested to accept the returned Income and oblige. Alternatively, an opportunity of being heard may kindly be granted.
6. From this conduct of appellant, it is clear that he is not serious about pursuing the appellate proceedings and his efforts are only to delay the proceedings on one pretext or another. The appeals are therefore decided on the basis of material on record.
7. As per Form no. 35 filed by appellant for AY 2004-05, Ground No. 1. 2, and 3 are as follows:
(1) To delete the addition of Rs. 74,46,643/-
(2) To accept the returned lass of Rs. 2,51,977/-
(3) To accept the returned Income .
These grounds are identical for other years as well with only difference in figures of addition made by AO and loss declared by appellant.
8. At the outset, it will be worthwhile to give a brief background of this case.
Search u/s. 132 was conducted in the case of appellant which revealed that appellant has purchased land from various persons and sold the same after developing and plotting the land in the schemes named as Urja Nagar-1 and Urja Nagar-2. Profits earned from these transactions were not reflected by appellant in returns filed by him. Investment made by him in these plots of land was also not disclosed. Statement of Sh. Pravinbhai Patel was recorded during the course of search and the relevant portion is reproduced below:
Que. No.4:-
State the details of sale or purchase of any property either in your name or in the names of your family members or executed bana khat or carried out deals in third party capacity from 1.4.2002?
Ans. No.4:-
I do not know all the transactions but the following are the details in respect of big transactions:-
(1) ….
(2) In the year 2002-03, I have purchased about 14 acre of land in Randhesan/Kudasan villages of Gandhinagar for Urjanagar Society from the different farmers through registered documents for about Rs 1.25 crores. Thereafter, this land was plotted as per the requirements of the different members of the society and sold to them through registered documents Total documents with development charges are made for about Rs. 14 crores. I earned approximate profit of Rs.30 lacs after deducting the cost of land and development charges. I have not paid any tax on this amount.
Que. No.5:-
Again, I am asking you that how much price on sale of developed land for Urjanagar Society has been received by you?
Ans. No.5:-
As answered earlier, after the cost of land, development charges and other expenses got Rs. 14 crores (Rupees Fourteen Crores) wherein my profit is only Rs 30 lakhs.
Que. No.6:-
State whether you received the sale proceeds of plots from the members of Urjanagar Society in cheque or in cash?
Ans. No.6:-
I received the sale proceeds through cheques and in cash and I have deposited the amounts in my savings bank account with Alahabad Bank, Gandhinagar Branch.
Que. No.7:-
State on which works, the amounts deposited in cheque and in cash were spent?
Ans. No.7:-
I spent this amount mainly in land development, obtaining N.A.
permission approving the plans and paying the amounts to land owners.
Que. No.8:-
State the place where you are keeping the documents(papers) of your land transactions and of business of land brokerage?
Ans. No.8:-
I am keeping the papers and documents of sale and purchase of land and brokerage in my office at Madhuram Park which is located in Odhav and also keeping in my cupboards kept at Plot No. 19 of Urjanagar Society where my brother in law(Jijaji) resides, keys of which have been found during the course of search.
Que. No.9:-
Except depositing the sale proceeds of land in Savings bank account of Alahabad Bank of Gandhinagar, have you any bank accounts or places where these amounts are deposited?
Ans. No.9:-
I am depositing some of amounts in my savings account with Bank of Baroda, Odhav Branch have not keeping these amounts anywhere.
Que. No.13:-
Explain the details on Page No.1 of file marked as Annexure A-1 impounded during the course of survey at Office of Urja Employees Association, Gandhinagar.
Ans. No.13:-
As stated earlier, the details contained in Page No.1 are in respect of land which has been developed and sold for about Rs.14 crores (Rs. 4.02 crores through cheques) and Rs.8.61 crores through cash received by me till date 2.11.2003.
Que. No.14:-
State after showing the papers as to whether the signatures bear on the pages No.166 to 233 of Loose paper file (Annexure A.1) impounded from Gandhinagar office are your signature.
Ans. No.14:-
Yes. I confirm that on all the pages, the my signature is there and all these pages are the photo copies of receipts of money received by me.
Que. No.20:-
The following facts are established from the documents and papers and seized during the course of search at your residence and impounded during the course of survey operations at your office and the places of your business,
1……
2. You have not paid the tax on correct profit from 2003-04 till date on approximate amount of Rs.14crores received by you for development and selling of land of Urja Society.
3.
4.
What you have to explain about all the above matters?
Ans. No. 20:-
I am agreed to all the above matters and for these matters, I am ready to pay the tax liabilities in may name or in the names of my family members. But for working out the same, I need some time and due to not maintaining the books properly and preparing new books of accounts, taking copies of seized papers and analyzing them, I will try to make payment of whatever the tax liability will be there.
9. On the basis of examination of documents seized during the course of search and enquiry conducted during assessment proceedings, flowing observations were made:
1. The appellant admitted to have carried out the transactions of purchasing lands from different farmers for the purpose of developing of land in plots and then selling them to the members of Urjanagar Society who were the employees of Gujarat Electricity Board (now converted in different companies).
2. The appellant also admitted that the transactions have been made through cheques as well as in cash.
3. He also admitted that he did not maintain the books of accounts for recording these transactions and is not able to work out the exact profit on sale of these developed lands to the members of Urjanagar society.
4. He had made investments in other movable and other immovable properties in the years from 2003-04 to 2009-10 out of income generated through these activities in his name or in the name of his family members.
5. Whatever the documents relating to land tractions her by way of purchase through the deeds, agreements, etc. or sales to the members of Urjanagar Society kept at the places covered under the search or survey operations have been seized or impounded and property inventoried lea no scope of having any other documents, evidences which add kept by the appellant at other or hidden places.
10. However, as mentioned earlier, after the search appellant filed returns for various years claiming only huge losses in every year. As per his claim total loss of Rs. (-) 71,59,705/- has been incurred by him in all these years in respect of sale of land of nearly Rs. 15 crore and no positive income was earned in any year.”
34. When the order has been passed upon issuance of show cause and considering number of reply filed by the appellant before the Ld. CIT(A) too which is, further, evident from the order impugned, we do not find any reason to interfere with the same. In fact, sufficient opportunity of being heard was given and compliance was also made by the Ld. Counsel himself by filing written submission before the appellate authority in each and every count of issues raised by the appellant before us. The ground of non-grant of proper opportunity of being heard by the Ld. CIT(A) seems to be frivolous and, thus, dismissed.
35. The order of dismissal of this particular ground shall apply mutatis mutandis in all the appeals where identical grounds have been taken.
36. We also make it clear that procedure initiated by the Ld. AO culminating into addition has already been challenged before the Ld. CIT(A) upon which due consideration has been made and the same has been challenged before us. In that view of the matter in the absence of any assistance rendered by the assessee, this ground taken by the appellant challenging the procedure maintained by the Ld. AO while making addition carries no meaning. The same is found to be frivolous and, thus, the same is dismissed.
37. The order of dismissal of this particular ground shall apply mutatis mutandis in all the appeals where identical grounds have been taken.
38. The order passed by the Ld. AO in initiating proceedings under Section 271A, 271B & 271(1)(c) of the Act have been challenged before us by the appellant which needs to be challenged by filing a separate appeal as the penalty proceeding is a quasi-judicial proceeding and the cause of action, therefore, is, completely different from that of the quantum order passed by the authorities below. Hence, we do not find any jurisdiction to entertain such grounds. These are found not maintainable and, thus, dismissed.
39. The order of dismissal of this particular ground shall apply mutatis mutandis in all the appeals where identical grounds have been taken.
40. All the appeals (i.e. IT(SS)A Nos. 159, 160 161, 162 & 163/Ahd/2013 for A.Ys. 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09) preferred by the assessee are dismissed.
IT(SS)A No. 166/Ahd/2013 (Revenue’s appeal) A/w. Assessee’s CO No. 166/Ahd/2013 A.Y. 2009-10 (in case of Shri Pravinbhai H. Patel)
41. The Revenue has challenged the deletion of addition of Rs.6,10,03,782/- made on account of income from land trading and related activities. Upon hearing the Ld. DR and upon going through the records, it appears that the assessee accepted Rs.15 Crores as unaccounted income from his business of land trading and related activities. The assessee promised that total income tax on the admitted concealed income will be paid within four months. Relying on the submission recorded under Section 132(4) of the Act, the income of the assessee has been estimated by the Ld. AO. Further that, remaining concealed income out of Rs.15 Crores has been taxed for A.Y. 2009-10 to the tune of Rs.6,10,03,782/- in the hands of the assessee. The clear-cut observation of the Ld. AO by making addition has already been reproduced by the Ld. CIT(A) and consideration whereof has been duly made:
“After taking into consideration the evidences shown to assessee, in Ans, 20 of the statement assessee accepted Rs. 15 crores as unaccounted income from his business of land trading and related activities. Assessee promised that total income tax on the admitted concealed income shall be paid by him in 4 months time. Therefore, income of the assessee has to be estimated on the basis of his statement recorded u/s. 132(4) of the I.T. Act which has to be relied upon. From admitted concealed income of Rs. 15 crores deduction have to be given in respect of income which has been assessee from land trading and other activities from AYrs 2003-04 to 2008-09 aos under:
