The ACIT, Circle-3,, Surat v. Shri Mohanbhai Bhimjibhai Patel, Surat

ITA 1081/AHD/2008 | 2004-2005
Pronouncement Date: 31-08-2010 | Result: Dismissed

Appeal Details

RSA Number 108120514 RSA 2008
Assessee PAN AEDPP7400C
Bench Ahmedabad
Appeal Number ITA 1081/AHD/2008
Duration Of Justice 2 year(s) 5 month(s) 4 day(s)
Appellant The ACIT, Circle-3,, Surat
Respondent Shri Mohanbhai Bhimjibhai Patel, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 31-08-2010
Date Of Final Hearing 25-08-2010
Next Hearing Date 25-08-2010
Assessment Year 2004-2005
Appeal Filed On 26-03-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER AND SHRI A.N. PAHUJA ACCOUNTANT MEMBER DATE OF HEARING : 25/08/2010 DRAFTED ON: 2 5/08/2010 APPEAL(S) BY SL. NO(S). IT(SS)A NO / ITA NO(S) BLOCK ASSESSMENT PERIOD/ AY(S) APPELLANT RESPONDENT 1. IT(SS)A NO.78/AHD/2007 A.Y. 90-91 TO 1999-2000 & TO 02/12/1999 DCIT CIRCLE-3 SURAT SHRI MOHAN B.PATEL HIRARAM COMPLEX SUMAN DESAI NI WADI KHATODARA SURAT PAN:AEDPP 7400 C 2. ITA NO. 1081/AHD/2008 ASSESSMENT YEAR 2004-05 ACIT CIRCLE-3 SURAT -DO- 3. ITA NO. 3324/AHD/2008 ASSESSMENT YEAR 2003-04 -DO- -DO- ASSESSEE BY : SHRI J.P.SHAH ADV. REVENUE BY : SHRI VIMALENDU SR.D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THESE ARE THREE APPEALS BY THE REVENUE; ONE IS IN RESPECT OF BLOCK PERIOD AND REST OF THE TWO ARE REGULAR APPEALS IN R ESPECT OF ASSESSMENT YEARS 2003-04 & 2004-05. SINCE THE FACTS IN ALL T HESE APPEALS ARE STATED TO BE IDENTICAL THEREFORE THESE APPEALS ARE CONSO LIDATED AND HEREBY DECIDED BY THIS COMMON ORDER. 2. (A) IT(SS)A NO.78/AHD/2007 THIS APPEAL HAS EMANATED FROM THE ORDER OF LE ARNED CIT(APPEALS)-II SURAT DATED 22/02/2007 AND THE REVENUE HAS RAISED F OLLOWING TWO SUBSTANTIAL GROUNDS: IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 2 - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS.58 52 132/- ON ACCOUNT OF SUPPRESSION OF INCOME FROM SALE OF FL ATS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(A) HAS ERRED IN DELETING IN LEVY OF SUR CHARGE OF RS.4 24 577/- @ 10% ON INCOME-TAX AS PER THE PROVIS IONS OF SECTION 113 OF THE I.T. ACT. 2.1. FACTS IN BRIEF AS EMERGED FORM THE CORRESPONDI NG ASSESSMENT ORDER WERE PASSED U/S.158BD R.W.S.158BC OF THE IT ACT 19 61 DATED 31/03/2006 THAT THE ASSESSEE IN HIS INDIVIDUAL STAT US IS IN CONSTRUCTION BUSINESS. THE ASSESSING OFFICER HAS NOTED THAT TH E COST OF CONSTRUCTION AS SHOWN BY THE ASSESSEE WAS AT THE RATE OF RS.406. 81 PER SQUARE FEET. IT HAS ALSO BEEN NOTED THAT IN RESPECT OF THE SAID VA NITA PARK PROJECT THE ASSESSEE HAD OFFERED FOR TAXATION THE SALE PRICE WH ICH WAS CLAIMED TO BE ACTUALLY RECEIVED AND RECORDED IN THE BOOKS OF ACCO UNT. IT HAS ALSO BEEN NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE HA S CLAIMED THAT THE DOCUMENTS AND MATERIAL SEIZED DURING THE COURSE OF SEARCH CONDUCTED U/S.132 OF THE I.T. ACT 1961 ON 02/12/1999 WERE FR OM THE PREMISES OF M/S.MAHAVIR TIMBER GROUP. THE ASSESSEE HAS EVEN IN CLUDED IN THE BOOKS THE COMPONENT OF THE 'ON-MONEY'. THE ASSE SSING OFFICER HAS NOT ACCEPTED THE RATE OF SALE PRIMARILY ON THE GROUND T HAT THE SELLING PRICE OF THE SURROUNDING AREA WAS HIGHER THAN AS DISCLOSED B Y THE ASSESSEE. IN HIS OPINION THE NORMAL SELLING PRICE OF THAT AREA WOUL D BE IN THE RANGE OF RS.700/- SQ.FT. TO RS.900/- PER SQ.FT. AN INSPECT OR OF THE REVENUE DEPARTMENT WAS DEPUTED TO MAKE THE DIRECT ENQUIRY F ROM THE RESIDENTS OR THE CUSTOMER OF VANITA PARK PROJECT. AS PER THE REPORT OF THE IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 3 - INSPECTOR THE NORMAL SELLING PRICE WAS ABOUT RS.70 0/- PER SQ.FT. IT WAS CONCLUDED BY THE ASSESSING OFFICER THAT ON THE BASI S OF THE SAID REPORT THE PREVAILING MARKET TREND OF THE LOCALITY AND THE SURROUNDING PROJECT WOULD BE RS.700/- PER SQ.FT. THE ASSESSING OFFICE R HAS THEREFORE COMPUTED THAT THE TOTAL SELLING PRICE FOR THE BLOCK PERIOD WAS AT RS.1 39 72 000/- (19 960 X 700) WHEREAS THE ASSES SEE HAD SHOWN THE SELLING PRICE ONLY AT RS.81 19 868/-. THE DIFFERE NCE BETWEEN THE TWO I.E. RS.58 52 132/- WAS HELD AS SUPPRESSED SELLING PRICE OF THE SAID PROJECT WHICH WAS HELD AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. THE MATTER HAD GONE IN APPEAL. THE FIRST APPELLATE AUTHORITY HAS EXAMINED THE FACTS AND CIRCUMSTANCES OF THE CASE AND THEREAFTER HELD IN FAVOUR OF THE ASSESSEE AFTER AN ELABORATE DISCUSSION ON SEVERAL C ASE LAWS CITED FROM THE SIDE OF THE ASSESSEE. IT IS ALSO WORTH TO MENTION THAT THE WRITTEN SUBMISSIONS OF THE ASSESSEE HAVE BEEN COMMUNICATED TO THE CONCERNED ASSESSING OFFICER AND HIS REMAND REPORT WAS CALLED FOR. ON PERUSAL OF THE ORDER OF THE LEARNED CIT(APPEALS) IT WAS NOTIC ED THAT NO SPECIFIC INFORMATION OR MATERIAL WAS QUOTED IN THE SAID REMA ND REPORT. THEREFORE THE LEARNED CIT(APPEALS) HAS SAID THAT T HERE WAS NO EVIDENCE AVAILABLE WITH THE ASSESSING OFFICER ON THE BASIS O F WHICH THE SELLING PRICE AS DECLARED BY THE ASSESSEE COULD BE HELD AS UNDERSTATED. THE DECISION OF THE LEARNED CIT(APPEALS) IS WORTH REPRO DUCTION AS FOLLOWS:- DECISION: 10. I HAVE CAREFULLY CONSIDERED THE VIEWS OF THE AO AS CONTAINED IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPOR T. I HAVE ALSO CONSIDERED THE SUBMISSIONS OF THE AR DTD. 13/10/200 6 AND THE SUBMISSIONS DTD. 12/2/2007 THROUGH WHICH HE HAS RE BUTTED THE AO'S IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 4 - OBSERVATIONS IN THE REMAND REPORT. I AGREE WITH T HE AR THAT THE AO HAD ERRED IN TREATING THE COST OF CONSTRUCTION AS D ECLARED BY THE ASSESSEE AT RS.406.81 AS THE SELLING PRICE AS WELL. CONSEQUENTLY THE AO HAD FAILED TO CONSIDER THE SELLING PRICE OF RS. 463.23 DECLARED BY THE ASSESSEE. IT IS ALSO TRUE THAT THE AO HAD ACCEPTE D THE FACT THAT THE ASSESSEE HAD SHOWN THE FULL AMOUNT OF ON-MONEY RECE IVED AGAINST THE SALE OF THE FLATS. THIS OBSERVATION WAS MADE BY HI M IN PAGE-5 OF THE ASSESSMENT ORDER WHILE ANALYZING THE DETAILS OF PAY MENTS (PAGE-4) FURNISHED BY THE ASSESSEE THAT WERE MADE TO THE LA NDLORD TOWARDS THE PURCHASE OF THE LAND ON WHICH THE VANITA PARK APART MENTS WAS DEVELOPED. THEREFORE THERE REMAINED NO SCOPE FOR MAKING ANY FURTHER ADDITION ON ACCOUNT OF UNDISCLOSED INCOME ON THE SA LE OF THE SAME FLATS. WHILE DOING SO HE IGNORED THE SALE PRICE OF RS.463 .23 DECLARED BY THE ASSESSEE AND FAILED TO GIVE ANY FINDING AS TO WHETH ER OR NOT THE PRICE WAS APPROP0RIATE. IN FACT HE DID NOT EVEN BRING THIS FIGURE ON RECORD. 10.1 ON THE OTHER HAND HE SIMPLY RELIED ON A REPO RT OF THE INSPECTOR WHICH WAS REPRODUCED BY HIM ON PAGE 5 OF THE ASSESS MENT ORDER. ACCORDING TO THE AO THE INFORMATION COLLECTED BY T HE INSPECTOR WAS THAT THE NORMAL SELLING PRICE OF THE FLATS DURIN G THE FINANCIAL YEAR 2002-03 WAS ABOUT RS.700 PER SQ.FT. INCLUSIVE OF THE PRICE OF THE LAND. IN THE REMAND REPORT THE AO HAS RETRACTED THIS OB SERVATION SINCE THE COPY OF THE REPORT OF THE INSPECTOR SHOWS THAT NO M ENTION WAS MADE OF THE FINANCIAL YEAR 2002-03. THE REPORT IS DTD. 24 /3/2006. THE TRANSACTIONS WHICH WERE UNDER CONSIDERATION PERTAIN ED TO THE BLOCK PERIOD ENDED ON 2/12/1999. THE INSPECTOR WAS ALLE GEDLY ASSIGNED THE TASK OF ASCERTAINING THE SELLING PRICE OF THE FLAT DURING THE BLOCK-PERIOD. HIS ASSESSMENT OF THE SELLING PRICE AT RS.700 PER S Q.FT. HOWEVER DID NOT MENTION THE YEAR OR THE PERIOD DURING WHICH SUCH A RATE HAD PREVAILED. MOREOVER THE REPORT OF THE INSPECTOR WAS VERY CRYP TIC AND DID NOT MENTION AS OBSERVED BY THE AR AS TO HOW THE INFOR MATION COLLECTED THE PERSONS WHO WERE INTERVIEWED THE REPLIES THAT THE INTERVIEWEES HAD GIVEN AND WHETHER SUCH INTERVIEWEES HAD PURCHASED T HE FLATS OR WERE RESIDING IN THE SAID APARTMENTS GIVEN SUCH FACTS I AM OF THE VIEW THAT NO RELIANCE COULD BE PLACED ON THE REPORT OF THE IN SPECTOR. LEAVING ASIDE THE OBJECTIONS RAISED BY THE AR THE INSPECTO RS REPORT OUGHT TO HAVE AT LEAST MENTIONED THE YEAR OR YEARS IN WHICH THE SELLING PRICE OF THE SAME FLATS WAS RS.700 PER SQ.FT. ESPECIALLY SIN CE THE INSPECTOR WAS IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 5 - MAKING THE INQUIRIES AFTER A LAPSE OF MORE THAN SIX YEARS FROM THE END OF THE BLOCK PERIOD. 10.2. TAKING INTO ACCOUNT THE TOTALITY OF THE FACT S AND CIRCUMSTANCES OF THE CASE I AM OF THE VIEW THAT THE SELLING PRIC E OF RS.463.23 AS DECLARED BY THE ASSESSEE WAS QUITE APPROPRIATE DU RING THE PERIOD ENDED ON 2/12/1999. IN ANY CASE THERE WAS NO EVID ENCE AVAILABLE WITH THE AO AT LEAST NONE AS RELIABLE WAS BROUGHT ON RE CORD TO SHOW THAT THE SELLING PRICE DECLARED BY THE ASSESSEE WAS UNDE RSTATED. MOREOVER AS DISCUSSED EARLIER WHILE ANALYZING THE DETAILS F URNISHED BY THE ASSESSEE THE AO HAD CLEARLY ACCEPTED THE FACT THAT THE ASSESSEE HAD FULLY DISCLOSED THE ENTIRE RECEIPTS FROM THE SALE O F THE FLATS INCLUDING THE ON-MONEY RECEIVED. THEREFORE I AM OF THE VIEW THA T THERE WAS ABSOLUTELY NO BASIS OR MERIT IN ADOPTING THE ADHOC SELLING PRICE OF RS.700 SQ.FT. AND IN MAKING THE ADDITION OF THE SUM OF RS.58 52 132. THE AO IS DIRECTED TO DELETE THE ADDITION. 3. WE HAVE HEARD BOTH THE SIDES AND ALSO CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT WAS NOTED BY US THAT EVEN AFTER THE STRINGENT ACTION OF SEARCH WAS TAKEN AGAINST THE ASSESSEE BU T THERE WAS NO MENTION OF ANY INCRIMINATING MATERIAL IN THE IMPUGNED ASSES SMENT ORDER ON THE BASIS OF WHICH THE SAID ADDITION WAS MADE. RATHE R IT IS SOMEWHAT STRANGE TO NOTE THAT EVEN AFTER THE SEARCH OPERATIO N THE ASSESSING OFFICER HAD FOUND THE NECESSITY OF THE INSPECTORS REPORT EVENTHOUGH NOTHING SPECIFIC WAS REPORTED. MERELY ON PRESUMPTION THE ASSESSING OFFICER HAS PROCEEDED THAT IN THE NEAR ABOUT VICINITY THE SELLING PRICE WAS HIGHER. BUT THAT PRESUMPTION SHOULD HAVE BEEN SUPPORTED OR AUTHENTICATED BY CONNECTED EVIDENCES OR ANY COGENT MATERIAL. UNLESS AND UNTIL SOME RELIABLE AND SPECIFIC MATERIAL EVIDENCE WHICH IS C OLLECTED DURING THE COURSE OF SEARCH IS NOT MADE THE BASIS OF ADDITION A PRESUMPTIVE IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 6 - ADDITION IS UNWARRANTED IN BLOCK ASSESSMENT. THE F IRST APPELLATE AUTHORITY HAS DECIDED THAT IN THE ABSENCE OF ANY C OGENT EVIDENCE THERE WAS ABSOLUTELY NO BASIS OR MERIT IN THE ACTION OF T HE ASSESSING OFFICER ADOPTING AN ESTIMATED SELLING PRICE OF RS.700/- PER SQ.FT. WHICH WAS THEREFORE DIRECTED TO BE DELETED. WE FIND NO FAL LACY IN THE JUDGEMENT OF LEARNED CIT(APPEALS) BECAUSE THIS JUDGEMENT WAS PAS SED ONLY AFTER THE CORRECT APPRECIATION OF THE FACTS OF THE CASE. WI TH THE RESULT THIS GROUND OF THE REVENUE IS DISMISSED. 4. GROUND NO.2:- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(A) HAS ERRED IN DELETING IN LEVY OF SUR CHARGE OF RS.4 24 577/- @ 10% ON INCOME-TAX AS PER THE PROVIS IONS OF SECTION 113 OF THE I.T. ACT. 4.1. NOW THIS ISSUE OF LEVY OF SURCHARGE U/S.133 OF THE I.T. ACT 1961 STOOD SETTLED BY THE LATEST DECISION OF HON'BLE SUP REME COURT IN THE CASE OF CIT VS. SURESH N. GUPTA REPORTED AS [2008] 297 ITR 322 [SC] . 5. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE HAS INFORMED THAT THE SAID DECISION OF THE HON'BLE SUPR EME COURT HAS NOW BEEN DIRECTED TO BE HEARD BY A LARGER BENCH. HOWE VER AT PRESENT THE DECISION OF SHRI S.N.GUPTA (SUPRA) IS AVAILABLE TO US ACCORDING TO WHICH THE LEVY OF SURCHARGE WAS HELD AS LEVIABLE. HOWEVE R IF IN FUTURE ANY OTHER JUDGEMENT OF A LARGER BENCH OF THE APEX COURT IS PLACED ON IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 7 - RECORD THE SAME SHALL ACCORDINGLY BE DEALT WITH A S PER LAW. THEREFORE THIS GROUND OF THE REVENUE MAY BE TREATED AS ALLOWE D. 6. IN THE RESULT REVENUES APPEAL I.E. IT(SS)A NO .78/AHD/2007 IS PARTLY ALLOWED. (B) ITA NOS.1081 & 3324/AHD/2008 (FOR AYS: 2004-05 & 2003-04 RESPECTIVELY) 7. BOTH THESE REGULAR APPEALS OF THE ASSESSEE ARE I N RESPECT OF THE FACTS AS STATED ABOVE AND THE RELEVANT PORTION IS R EPRODUCED BELOW (YEAR-WISE):- FROM ASSESSMENT YEAR 2003-04 (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(A)-II SURAT HAS ERRED IN HOLDING THAT THERE WAS NO GROUND WITH THE A.O. TO ESTIMATE THE SELLING PRICE AT RS.700/- IN RESPECT OF FLATS AT VANITA PARK PROJECT AS AGAINST RS.48.56 PER SQ.FT. SHOWN BY THE ASSESSEE. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(A)-II SURAT HAS ERRED IN IGNORING THE MATERIALS STRIKING AND HIGHLY EVIDENTIAL EVIDENCES IN THE FORM OF LOOS E PAPERS SEIZED DURING THE COURSE OF SEARCH PROCEEDINGS WHEREIN THE COMPLETE DETAILS/ DESCRIPTION OF ACCURATE AND PRECISE DATE-W ISE QUANTIFICATION OF THE SUMS BEING PAYABLE AND RECEIVABLE ARE CONTAI NED ON THE BASIS OF WHICH THE A.O. HAD WORKED OUT THE SELLING RATES OF RS.700/- PER SQ.FT. IN RESPECT OF SALE OF FLAT OF VANITA PARK PR OJECT. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(A)-II SURAT HAS ERRED IN DELETING THE ADDITION(S) MADE BY THE A.O. OF RS.44 56 750/- (FOR ASSESSMENT YEAR 2003-04 ) AND OF IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 8 - RS.1 64 87 700/- (FOR ASSESSMENT YEAR 2004-05 ) ON ACCOUNT OF SUPPRESSION OF SALES PRICE IN RESPECT OF FLATS AT V ANITA PARK PROJECT. 7.1. THE ASSESSING OFFICER HAS MADE THE ADDITION VI DE AN ORDER U/S.143(3) R.W.S. 147 OF THE I.T. ACT 1961 FOR AS SESSMENT YEAR 2003-04 DATED 26/11/2007 ALMOST ON IDENTICAL FACTS AND CIRC UMSTANCES OF THE CASE AS RECORDED HEREINABOVE. IN THIS YEAR AS WELL THE ASSESSING OFFICER HAS ADOPTED AND APPLIED THE RATE AT THE RATE OF RS.700/ - PER SQ.FT. ABOUT THE CONSTRUCTION OF 20310 SQ.FT. THE TOTAL AMOUNT THUS WORKED OUT AT RS.1 42 17 000/- HOWEVER AS AGAINST THAT THE ASS ESSEE HAS OFFERED RS.97 60 250/-. THEREFORE THE DIFFERENCE WAS TAXE D. 7.2. LIKEWISE FOR ASSESSMENT YEAR 2004-05 THE ASS ESSING OFFICER HAS ADOPTED THE SAME RECOURSE AND HELD THAT THE AVERAGE SELLING PRICE WOULD BE RS.800/- PER SQ.FT. AND APPLYING THE SAME ON THE AREA CONSTRUCTED OF 45555 SQ.FT. THE TOTAL CONSIDERATION WAS SAID TO B E AT RS.3 64 44 000/- (45 555 X 800) AS AGAINST RS.1 99 56 300/- DISCLOS ED BY THE ASSESSEE AS PER THE REGULAR BOOKS OF ACCOUNT. THE DIFFERENCE BETWEEN THE TWO I.E. RS.1 64 87 000/- [ RS.3 64 44 000/- MINUS RS.1 99 56 300/- ] WAS TAXED. 8. THE FIRST APPELLATE AUTHORITY HAS HELD THAT IN T HE ABSENCE OF ANY DIRECT OR COGENT EVIDENCE IT WAS DIFFICULT TO AFFI RM THE ESTIMATED SALE PRICE AS ADOPTED BY THE ASSESSING OFFICER. HIS CON CLUSION FROM THE APPELLATE ORDER FOR ASSESSMENT YEAR 2003-04 IS REPRODUCED BELOW:- IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 9 - FROM THE ABOVE DISCUSSION IT WOULD BE CLEARLY SEE N THAT THE AO SIMPLY DID NOT HAVE ANY EVIDENCE TO PROVE THAT THE FLATS HAD BEEN SOLD AT THE RATE OF RS.800 PER SQ.FT. OR EVEN A RUPEE HIGH ER THAN RS.438 PER SQ.FT. WHICH HAD BEEN DISCLOSED BY THE ASSESSEE. I N THE ABSENCE OF ANY CONCRETE EVIDENCE THE AO ATTEMPTED TO MARSHAL CIR CUMSTANTIAL EVIDENCE WHICH WERE ALSO OF NOT ANY RELEVANT AS HA S BEEN DISCUSSED IN DETAIL IN THE PRECEDING PARAGRAPHS. THE ONLY CONCL USION THAT CAN BE DRAWN FROM THE FACTS AND CIRCUMSTANCES OF THE CASE IS THAT THE ADDITION MADE BY THE AO WAS BASED ONLY ON PRESUMPTIONS AND ASSUMPTIONS. THE ADDITION OF THE SUM OF RS.1 64 87 700 WILL THER EFORE STAND DELETED. 8.1. EVEN FOR ASSESSMENT YEAR 2004-05 HIS FINDING HAD GONE IN FAVOUR OF THE ASSESSEE WHEREIN VIDE PARAGRAPH NO.6.4 IT WAS CONCLUDED AS UNDER:- 6.4. FROM THE ABOVE DISCUSSION IT WOULD BE CLEARL Y SEEN THAT THE AO SIMPLY DID NOT HAVE ANY EVIDENCE TO PROVE THAT THE FLATS HAD BEEN SOLD AT THE RATE OF RS.800 PER SQ.FT. OR EVEN A RUPEE HIGHER THAN RS.438 PER SQ.FT. WHICH HAD BEEN DISCLOSED BY THE ASSESSEE. IN THE ABSENCE OF ANY CONCRETE EVIDENCE THE AO AT TEMPTED TO MARSHAL CIRCUMSTANTIAL EVIDENCE WHICH WERE ALSO OF NOT ANY RELEVANCE AS HAS BEEN DISCUSSED IN DETAIL IN THE P RECEDING PARAGRAPHS. THE ONLY CONCLUSION THAT CAN BE DRAWN FROM THE FACTS AND CIRCUMSTANCES OF THE CASE IS THAT THE ADDITION MADE BY THE AO WAS BASED ONLY ON PRESUMPTIONS AND ASSUMPTIONS. T HE ADDITION OF THE SUM OF RS.1 64 87 700 WILL THEREFORE STAND DELETED. 9. THUS THE TOTALITY OF THE CIRCUMSTANCES OF THE C ASE AND THE EVIDENCE PLACED ON RECORD WE ARE OF THE VIEW THAT THE ASSES SING OFFICER HAS MADE THE ADDITION(S) PURELY ON AN ESTIMATION WHICH IS NO T A SOUND BASIS FOR TAXING THE DIFFERENCE IN THE HANDS OF THE ASSESSEE. WE THEREFORE DO NOT IT(SS)A N O.78/AHD/2007 DCIT VS. SHRI MOHAN B.PATEL BLOCK PERIOD -A Y: 90-91 TO 99-2000 & TO 2/12/99 AND ITA NOS.1081 & 3324/AHD/08 (AYS 2004-05 & 2003-04 RESPECTIVELY) - 10 - FIND ANY FORCE IN THE GROUNDS OF APPEALS (FOR BOTH THE YEARS) OF THE REVENUE HENCE HEREBY DISMISSED. 10. IN THE RESULT THE APPEAL OF THE REVENUE I.E. IT(SS)A NO.78/AHD/2007 IS PARTLY ALLOWED AND THE APPEALS I .E. ITA NOS.1081 AND 3324/AHD/2008 ARE DISMISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 31/ 08 /2010. SD/- SD/- ( A.N. PAHUJA ) ( MU KUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED / /2010 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-II SURAT 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD