ACIT, Bangalore v. M/s Ashed Valmark, Bangalore

ITA 1366/BANG/2012 | 2008-2009
Pronouncement Date: 11-04-2014 | Result: Dismissed

Appeal Details

RSA Number 136621114 RSA 2012
Assessee PAN AACTA0157C
Bench Bangalore
Appeal Number ITA 1366/BANG/2012
Duration Of Justice 1 year(s) 5 month(s) 24 day(s)
Appellant ACIT, Bangalore
Respondent M/s Ashed Valmark, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 11-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 11-04-2014
Date Of Final Hearing 03-04-2014
Next Hearing Date 03-04-2014
Assessment Year 2008-2009
Appeal Filed On 17-10-2012
Judgment Text
ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 1 OF 12 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE CBENCH BANGALORE BEFORE SHRI GEORGE GEORGE K. JUDICIAL MEMBER AND SHRI JASON P. BOAZ ACCOUNTANT MEMBER ITA NO.1366/BANG/2012 (ASSESSMENT YEAR: 2008-09) ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1(1) BANGALORE VS. M/S. ASHAD VALMARK NO.807 BARTON CENTRE 8 TH FLOOR NO.84 MG ROAD BANGALORE 560001 PAN: AACTA 0157 C (APPELLANT) (RESPONDENT) C.O. NO.67/BANG./2013 (ARISING OUT OF ITA NO.1366/BANG/2012) M/S. ASHAD VALMARK NO.807 BARTON CENTRE 8 TH FLOOR NO.84 MG ROAD BANGALORE 560001 PAN: AACTA 0157 C VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1(1) BANGALORE (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY: SHI BIJU M.K. (DR) ASSESSEE BY: SHRI K. SHESHADRI CA DATE OF HEARING: 03/04/2014 DATE OF PRONOUNCEMENT: 11/04/2014 O R D E R PER GEORGE GEORGE K. J.M. 1. THIS APPEAL OF THE REVENUE AS WELL A S THE CROSS OBJECTION OF THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE CIT (A)-VI BANGALORE DATED 30.7.2012. THE RELEVANT A SSESSMENT YEAR IS 2008-09. ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 2 OF 12 2. THE REVENUE HAS IN ITS MEMORANDUM OF A PPEAL RAISED A SOLITARY ISSUE NAMELY THAT THE CIT (A) HAD ERRED IN DELETING AN ADDITION OF RS.3 39 22 177/- MADE BY THE ASSESSING OFFICER. 3. THE ASSESSEE HAD IN ITS CROSS OBJECT IONS CONTESTED THAT (I) THE ASSESSMENT ORDER U/S 147 R. W. S. 143(3) WA S NOT VALID IN LAW AND REQUIRES TO BE CANCELLED; (II) NO NOTIC E U/S 143(2) WAS ISSUED AND FAILURE OF ISSUANCE OF SAID NOTICE IS NO T CURABLE U/S 292BB; & (III) AND THAT THE ORDER OF THE AO WAS A N ON-SPEAKING ORDER ETC. 4. AS THE REVENUES APPEAL AS WELL AS TH E ASSESSEES CROSS OBJECTIONS BEING RELATED TO THE SAME ASSESSEE FOR THE SAKE OF CONVENIENCE THEY WERE HEARD TOGETHER AND DISPOSED OF IN THIS CONSOLIDATED ORDER. 5. BEFORE VENTURING TO ANALYSE THE ISSUES RAISED BY EITHER OF THE PARTY IT WAS OBSERVED THAT THERE WAS A DELAY O F 21 DAYS IN PREFERRING THE CROSS OBJECTIONS BY THE ASSESSEE. T HE ASSESSEE IN ITS AFFIDAVIT DATED 16.7.2013 HAS SUBMITTED AS UNDER: 4. THAT INITIALLY RULE 27 OF THE APPELLATE TRIBUNA L RULES WAS THOUGHT TO BE ADEQUATE TO SUPPORT THE ORD ER OF THE LEARNED CIT (A) IN RESPONDENTS FAVOUR BASED ON VARIOUS JUDICIAL PRECEDENTS INCLUDING THE JUDGMENT OF THE HONBLE SUPREME COURT IN HUKUMCHAND MILLS LTD. V. CIT (63 ITR 232); 5. THAT HOWEVER A SUBSEQUENT JUDGMENT OF HONBLE BOMBAY H.C IN B.R. BAMASI V. CIT (83 ITR 223) HAS TAKEN A VIEW WHICH APPEARS TO LIMIT THE AMBIT OF RU LE 27; ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 3 OF 12 6. THAT CONSEQUENTLY AS A MATTER OF ABUNDANT PRECAUTION THE CROSS OBJECTIONS HAVE BEEN FILED ON THE ADVICE OF SR. ADVOCATE THOUGH WITH A DELAY OF 21 DA YS; 7. THAT IN THIS MANNER THERE IS A DELAY OF 21 DAYS FOR WHICH A LETTER OF CONDONATION HAS BEEN FILED ALONG WITH MEMORANDUM OF CROSS OBJECTIONS ON 26 JUNE 2013; 8. THAT DELAY IN FILING THE MEMORANDUM OF C O IS BECAUSE OF A GENUINE BELIEF OF THE APPLICABILITY OF A PARTICULAR PROVISION AND THE SUBSEQUENT ADVICE OF T HE SR. ADVOCATE; & 9. THAT THERE WAS NO INTENTION TO JEOPARDISE THE INTEREST OF THE REVENUE BY DELAYING THE FILING OF T HE MEMORANDUM OF CROSS OBJECTIONS. 5.1. AFTER CAREFUL CONSIDERATION OF THE ASSES SEES SUBMISSIONS ON THE ISSUE (SUPRA) THE DELAY IN FILING THE CROSS OBJECTIONS BY THE ASSESSEE IS CONDONED AND PROCEED TO ADJUDICATE THE REVENUES APPEAL AS WELL AS THE ASSESSEES CROSS OBJECTIONS AS UNDER: BRIEFLY STATED THE FACTS OF THE ISSUE ARE AS BELOW: THE ASSESSEE IS A AOP. IT HAS TWO MEM BERS NAMELY M/S ASHAD PROPERTIES AND INVESTMENTS PVT LTD (APIPL) AN D VALMARK BUILDERS. CONSEQUENT ON A SEARCH CONDUCTED U/S 132 OF THE ACT IN THE PREMISES OF ZEENATH TRANSPORT COMPANY BELLA RY M/S. ASHAD PROPERTIES AND INVESTMENTS PVT. LTD A MEMBER OF THE ASSESSEE WAS SURVEYED U/S 133 A ON 25-02-2009. BASE D ON SURVEY ON THE MEMBER OF THE ASSESSEE ASSESSMENT OF THE ASSESSEE WAS REOPENED BY ISSUANCE OF NOTICE U./S 14 8 OF THE ACT. IN COMPLIANCE TO THE ISSUANCE OF A NOTICE U/S 148 O F THE ACT THE ASSESSEE FURNISHED A RETURN OF INCOME ADMITTING A TOTAL INCOME OF RE. NIL. DURING THE COURSE OF ASSESSMENT PROCEE DINGS U/S ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 4 OF 12 147 OF THE ACT THE ASSESSEE WAS REQUIRED TO EXPLAI N THE DIFFERENCE BETWEEN THE MARKET VALUE OF RS.6 79 18 4 77/- AND THE ACTUAL COST OF RS.3 39 96 600/- (RECORDED IN SALE D EED) MADE TO SHRI B.G.CHENNAPPA AND SRI JAGADEESHCHANDRA ANKALAG I AND AS TO WHY THE SAME SHOULD NOT BE ADDED AS ITS INCOME F OR THE RELEVANT AY UNDER CONSIDERATION BY HOLDING THAT TH E DIFFERENCE WAS AN ON MONEY PAYMENT. AFTER TAKING INTO ACCOUN T THE ASSESSEES SUBMISSIONS AS RECORDED IN THE ASSESSMEN T ORDER THE AO HAD HOWEVER ADDED A SUM OF RS.3.39 CRORES TO T HE TAXABLE INCOME OF THE ASSESSEE FOR THE FOLLOWING REASONS: THE SHOW-CAUSE NOTICE WAS SENT TO THE ASSESSEE PROPOSING THE ADDITIONS BASED ON THE IMPOUNDED MATERIALS AND THE ASSESSEE HAS NOT PRODUCED ANY ADDITIONAL EVIDENCES IN SUPPORT OF ITS CLAIM. THE TAX LIABILITIES IN CASE OF SUSPICIOUS TRANSACTIONS HAVE TO BE ASSESSED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD SURROUNDING CIRCUMSTANCES AND HUMAN CONDUCT AND PREPONDERANCE OF PROBABILITY. THEREFOR E THE CLAIM OF THE ASSESSEE IS NOT ACCEPTED AND AN AMOUNT OF RS.3 39 22 177/- IS ADDED TO THE TOTAL TAXABLE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR [REFER: PAGES 4 & 5 OF THE ASST. ORDER] 6. AGGRIEVED THE ASSESSEE TOOK UP THE ISSUE IN AN APPEAL BEFORE THE CIT (A). AFTER HAVING CONSIDERED THE CONTENTIONS PUT-FORTH BY THE ASSESSEE AS WELL AS TH E REMAND REPORT OF THE AO AND THE REJOINDER OF THE ASSESSEE ON THE ISSUE THE CIT (A) DELETED THE ADDITION MADE BY THE AO FOR THE FOLLOWING REASONING: (ON PAGE 14)THE DETAILS FURNISHED BY THE ASSESSEE THE ACCOUNTS THAT HAS BEEN PRESENTED ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 5 OF 12 BEFORE ME AND THE REMAND REPORT HAS BEEN GIVEN THE FOLLOWING SITUATION EMERGE: 1. THE AO HAS ADDED RS.33922177/- BASED ON A TABLE PREPARED BY ADIT (INVESTIGATION) BELGAUM. THE TAB LE WAS BASED ON IMPOUNDED EXCEL SHEETS PREPARED ONE YEAR AFTER THE PURCHASE TRANSACTION. THE EXCEL SHE ETS WHEN READ TOGETHER ESTABLISH THAT THESE WERE INTERN AL CALCULATIONS OF ESTIMATED SALES AND COST BASES/ESTIMATES TO FACILITATE AN OVERALL VIEW OF TH E FINANCE AND THE VIABILITY OF THE PROJECT. IN THE CALCULATIONS CONSTRUCTION COSTS HAVE ALSO BEEN TAKE N INTO ACCOUNT. THE COST BASES OF THE LAND BEING THE PREVAILING FAR COST ARE NOT RELATABLE TO THE PURCHA SE TRANSACTION/VALUES. THE CONSIDERATION AS PER THE REGISTERED SALE DEED IS SHOWN IN BOOKS OF ACCOUNT A ND AUDITED FINANCIAL STATEMENTS. THE BOOKS OF ACCOUNT HAVE NOT BEEN REJECTED BY THE AO. THE FULL NAME AN D ADDRESS OF THE VENDOR ALONG WITH PAN NUMBERS ARE AVAILABLE IN THE SALE DEED. 2. THE BASIC FEATURES THAT EMERGE ARE THAT THE COST TO THE APPELLANT IS 3.39 CRORES PLUS STAMP DUTY. THE CALCULATIONS ON WHICH THE ADIT/ACIT HAS RELIED ARE CALCULATIONS MADE 1 YEAR AFTER THE ACTUAL TRANSACTI ON. THESE CLARIFICATIONS WERE AVAILABLE WITH THE ADIT A ND ALSO BEFORE DCIT (CENTRAL) AND THEREFORE THE DCIT (CERNTRAL) ERRED IN RELYING ON ADITS CONCLUSION RA THER THAN MAKING HIS OWN INDEPENDENT ENQUIRIES. NO INDEPENDENT CORROBORATIVE ENQUIRIES HAVE BEEN MADE AND NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO ESTABLISH THE GENUINENESS OF T HE TRANSACTION OR THE LOOSE SHEETS. THE AO DID NOT BRING ON RECORD ANY CORROBORATIVE EVIDENCE IN SUPPORT OF HIS CLAIM THAT THERE WAS UNACCOUNTED PAYMENT. VENDORS HAVE NOT BEEN SUMMONED AND EXAMINED FOR ASCERTAINING THE FACTS. 3. THE AO HAS RELIED ON A STATEMENT MADE BY MR MEHMOOD AGA TO ADIT BELGAUM AND TREATED IT AS AN ADMISSION. MR AGA HAD GIVEN THE STATEMENT THAT THE ACQUIRED VALUE MENTIONED ON THIS COMPUTER SHEET IS THE VALUE WHICH WE HAVE PAID TO THE LAND OWNER FOR ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 6 OF 12 PURCHASE OF THE RELEVANT PROPERTIES. THE AMOUNT SHOWN AS MARKET VALUE IS OUR OWN CALCULATION BASED ON THE PRESENT MARKET RATES OF THE SAID PROPERTY. THE FACT IS THAT APIPL HAS NOTHING TO DO WITH THESE TRANSACTIONS. THIS IS CLEAR FROM ASSESSMENT ORDERS ALSO. IT IS OBVIOUS THAT THERE ARE MISCONCEPTIONS AND CONFUSION IN THE MINDS OF BOTH MR AGA AND THE QUESTIONER ADIT (INV) BELGAUM; EXCEL SHEETS GIVE COMPUTATIONS WITH REFERENCE TO TH E PROPERTY OF MR SRINIVASA RAJU ALSO THOUGHT THE APPELLANT DID NOT BUY ANY PROPERTY FROM HIM. THERE IS NO REASON FOR THE APPELLANT TO RECORD ON MONEY TRANSACTED WITH HIM IN APPELLANTS RECORDS ESPECIAL LY MORE THAN TWO YEARS AFTER THE SALE DEED WHEN THE TW O HAVE HAD NO TRANSACTION WITH EACH OTHER. THIS SUPPORTS APPELLANTS CONTENTIONS THAT THE SHEETS GI VE INTERNAL CALCULATIONS ONLY. UNDER THE CIRCUMSTANCE S THE STATEMENT OF MR AGA CANNOT BE TREATED AS AN ADMISSION. 4. THE FOLLOWING DECISIONS ARE RELEVANT IN THIS CONTEX T: (I) IN EMBASSY CLASSIC PVT. LTD AND ANOTHER V. ACIT (7 ITR (TRIBUNAL) 287) THE HONBLE ITAT BANGALORE JURISDICTIONAL ITAT A CASE OF ON MONEY SHOULD BE SUPPORTED BY OTHER DETAILS LIKE MODE OF PAYMENT PARTICULARS OF ON MONEY AND CALCULATIONS (REF PARA 27); (II) CIT V. P.V. KALYANASUNDARAM (282 ITR 259) HONBLE MADRAS HIGH COURT - UPHELD BY HONBLE SUPREME COURT IN 294 ITR 49 BURDEN OF PROVING ACTUAL CONSIDERATION IN SUCH TRANSACTIONS WAS THAT OF REVENUE. THE ASSESSING OFFICER DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO VALUE OF THE PROPERTY PURCHASED. HE MERELY RELIED ON THE STATEMENT GIVEN BY THE SELLER. THE DELETION OF THE ADDITION WAS JUSTIFIED. THE ASSESSING OFFICER HAS NOT DISCHARGED HIS ONUS OF PROVING THE DISCREPANCY OF THE ACCOUNTS. ADDITION WITHOUT INDEPENDENT ENQUIRY RELYING ON SELLERS STATEMENT IS NOT SUSTAINABLE. ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 7 OF 12 5. THE DECISION IN HERSH W CHADHAS CASE (43 SOT 5440) IS INAPPLICABLE ON FACTS OF THE PRESENT CASE AND DISTINGUISHABLE. CHADHAS CASE RELATED TO THE TAXABILITY OF COMMISSI ON RECEIVED ABROAD IN BOFORS GUN DEAL. AO IN THAT CAS E RELIED ON SUBSTANTIVE CORROBORATIVE EVIDENCE LIKE T HE ENQUIRY REPORT OF SWEDISH NATIONAL AUDIT BUREAU CHARGE SHEET FILED BY CBI TRAIL DEMONSTRATED BY TH E AO ASSESSEES MAINTENANCE AND OPERATION OF KEY BANK ACCOUNTS ABROAD OBSERVATIONS OF HIGH COURT AN D SUPREME COURT AGREEMENTS INVOICES ETC. TO TAX TH E COMMISSION. THIS IS NOT THE CASE HERE. THERE IS NO SECRECY IN APPELLANTS TRANSACTION AND BUYERS/VENDORS ARE AVAILABLE LOCALLY. VENDORS ADDRESSES AND PAN NUMBERS ARE KNOWN. THUS THE PRINCIPLES OF PROBABILITY ETC. DO NOT APPLY. THER E ARE NO INTERNATIONAL TRANSACTIONS OR FOREIGN BANK ACCOU NTS INVOLVED. THE ADDITION IN MR CHADHAS CASE WAS VERY WELL SUBSTANTIATED AND BACKED UP BY INDEPENDENT ENQUIRIE S OF THE ASSESSING OFFICER. IN THE PRESENT CASE NO INDEPENDENT ENQUIRY HAS BEEN DONE. THE REMAND REPORT OF THE ASSESSING OFFICER STATES T HAT THE REPORT OF ADIT (INV) BELGAUM WAS RELIED ON FOR THE ADDITION. THEREFORE THERE HAS NOT BEEN ANY INDEPENDENT EXERCISE OF MIND NO ENQUIRIES AND A NO N- SPEAKING ORDER. IN LIGHT OF THE OBSERVATIONS MADE ABOVE IT IS VERY CLEAR THAT THE ONLY BASIS FOR THE ADDITION IS ONE STATEME NT OF MR AGA ON THE BASIS OF INCORRECT APPRECIATION OF FA CTS WITHOUT ANY ENQUIRY. THE ASSESSING OFFICER HAS NOT MADE ANY INDEPENDENT ENQUIRY AND NO EVIDENCE HAS BEEN BROUGHT ON RECORD. THERE IS NO BASIS FOR THE CONCLUSION ARRIVED AT BY THE ASSESSING AUTHORITY EXCEPT FOR THE LOOSE SHEET WITH AD- HOC WORKINGS THERE IS NOTHING ON RECORD TO PROVE T HAT THE PAYMENT OF ON-MONEY TO THE COMPANY HAS BEEN MADE. THERE ARE NO SUPPORTING EVIDENCE AVAILABLE I N ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 8 OF 12 ANY OTHER SEIZED MATERIAL TO COME TO A LEGITIMATE CONCLUSION THAT RS.3 39 22 177/- WAS ON-MONEY. THE DEPOSITION OF MR.AGA WAS OUT OF CONTEXT AND HAD NOTHING TO DO WITH THIS TRANSACTION AS THE PROPERTY DID NOT BELONG TO HIM. THEREFORE THE STATEMENT OF MR A GA DID NOT HAVE MUCH RELEVANCE IN THE TOTAL GAMUT OF AFFAIRS. THEREFORE THERE WAS NO EVIDENCE OF ON-MO NEY PAYMENT. ADDITION ON INCONCLUSIVE FACTS WITHOUT AN Y ENQUIRY WITHOUT ANY CORROBORATE EVIDENCE IS NOT CORRECT. THEREFORE THE ADDITION MADE IS DELETED. 7. AGGRIEVED THE REVENUE HAS COME UP BEFORE US WITH THE PRESENT APPEAL. DURING THE COURSE HEARING THE LEARNED DR SUBMITTED THAT THE CIT (A) HAD ERRED ON FACTS AND A LSO IN LAW IN DELETING THE ADDITION OF RS.3 39 22 177/- MADE BY T HE AO ON ACCOUNT OF UNACCOUNTED INVESTMENT MADE BY THE ASSES SEE IN PURCHASE OF THE SUBJECT PROPERTY. IT WAS FURTHER ARGUED THAT THE DIRECTOR OF APIPL HAD ON OATH ADMITTED THAT T HE ACQUIRED VALUE MENTIONED IN THE SEIZED MATERIAL (COMPUTER SH EET) WAS THE VALUE WHICH WAS PAID TO THE LAND OWNERS FOR THE PUR CHASE OF THE PROPERTY BY THE ASSESSEE. THIS FACT HAS NOT BEEN D ISPUTED BY THE ASSESSEE WITH ANY MATERIAL EVIDENCE. THE LEARNED D R FURTHER SUBMITTED THAT THE AO HAVING CONSIDERED ALL THE RE LEVANT FACTS CAME TO A RIGHT CONCLUSION THAT THERE WAS UNDENIABL Y UNACCOUNTED TRANSACTION IN THE PURCHASE OF THE SUBJ ECT PROPERTIES TO THE EXTENT OF RS.3.39 CRORES. IT WAS THEREFORE URGED THAT THE ADDITION REQUIRES TO BE SUSTAINED. 7.1. ON THE OTHER HAND THE LEARNED AR SU BMITTED THAT AS THE REVENUE HAS FAILED TO PUT-FORTH ANY DOCUMENTARY EVIDENCE TO FIND FAULT WITH THE FINDINGS OF THE CIT (A) THE ST AND OF THE CIT (A) IN DELETING THE IMPUGNED ADDITION DESERVES TO BE UP HELD. ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 9 OF 12 8. WE HAVE CAREFULLY EXAMINED THE RIVAL SUBM ISSIONS PERUSED THE RELEVANT MATERIALS ON RECORD AND ALSO T HE EXHAUSTIVE REASONING OF THE CIT (A) IN DELETING THE ADDITION M ADE BY THE AO IN THE ASSESSEES HAND. AS ALREADY MENTIONED IT W AS A FACT THAT THERE WAS A PROCEEDING U/S 133A OF THE ACT ON THE P REMISES OF ASHAD GROUP OF COMPANIES. ASHED VALMARK THE ASSESS EE IS AN ASSOCIATION OF PERSONS WITH TWO MEMBERS SHARING PR OFITS EQUALLY ASHED PROPERTIES AND INVESTMENTS (P) LIMITED AND VALMARK BUILDERS (VALMARK). THOUGH THE ASSESSEE HAD SHARED AN OFFICE SPACE WITH ASHED PROPERTIES AND INVESTMENTS (P) LTD [APIPL] THERE WAS NO SURVEY CONDUCTED IN THE ASSESSEES PRE MISES. HOWEVER DURING THE COURSE OF REASSESSMENT PROCEEDI NGS U/S 147 OF THE ACT IN THE ASSESSEES CASE BASED ON THE SUR VEY CONDUCTED IN THE PREMISES OF APIPL A MEMBER OF AOP AND CERTA IN DOCUMENTS WERE IMPOUNDED DURING THE SAID OPERATION THE ASSESSEE WAS REQUIRED TO EXPLAIN THE DIFFERENCE OF RS.3.39 CRORES BETWEEN THE MARKET VALUE OF RS.6.79 CRORES AND THE ACTUAL COST OF RS.3.39 CRORES MENTIONED IN THE BOOKS OF THE ASS ESSEE IN RESPECT OF THE PROPERTIES PURCHASED FROM SHRI CHENN APPA AND SHRI JAGADISH CHANDRA ANKALAGI. AFTER DUE CONSIDER ATION OF THE ASSESSEES CONTENTIONS THE AO HAD HOWEVER TREATE D THE DIFFERENCE IN COST OF THE PROPERTIES PURCHASED AS T AXABLE INCOME OF THE ASSESSEE. 8.1. ON AN APPEAL BY THE ASSESSEE THE CIT (A) HAD CALLED FOR A REMAND REPORT WHEREIN THE AO ADMITTEDLY CON CEDED THAT THE SAID ADDITION WAS MADE IN THE HANDS OF THE ASSE SSEE PURELY BASED ON THE REPORT OF THE ADIT (INV). SURPRISINGL Y THE ADIT ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 10 OF 12 (INV) CAME TO A CONCLUSION BY RELYING ON THE STATEM ENT OF SRI AGA DIRECTOR OF APIPL ON OATH. 8.2. AS A MATTER OF FACT APIPL HAD NOTH ING TO DO WITH THE TRANSACTION BETWEEN THE ASSESSEE AND THE SELLERS OF THE SUBJECT PROPERTY NAMELY SHRI CHENNAPPA AND SHRI JAGADISH CHANDRA ANKALAGI. THIS FACT HAS SINCE BEEN EXHAUSTIVELY VE RIFIED BY THE CIT (A) IN HER FINDINGS AND CAME TO A CONCLUSION TH AT (A) IF THE STATEMENT OF MR AGA WERE TO BE TREATED AS A DMISSION THEN ALSO IT CANNOT BE A SOUND FOOTING FOR SUSTAINI NG THE ADDITION OF RS.3.39 CRORES IN THE HANDS OF THE ASSE SSEE; (B) OBVIOUSLY NO CORROBORATE DOCUMENTS/EVIDENCES WERE BROUGHT ON RECORD TO JUSTIFY THE ADDITION IN THE HA NDS OF THE ASSESSEE; (C) THE CONTENTIONS PUT-FORTH BY THE ASSESSEE DURING TH E COURSE OF RE-ASSESSMENT PROCEEDINGS HAVE NOT BEEN EFFECTIVELY CONTRADICTED BY THE AO; (D) THE ADDITION WAS MADE BASED SOLELY ON THE ADIT(INV) S REPORT AS FAIRLY CONCEDED BY THE AO IN HIS REMAND REPORT AND THUS IT WAS EXPLICITLY TRUE THAT NO ATTEMPT WAS MADE BY THE AO TO HAVE AN INDEPENDENT ENQUIRY TO ARRIVE AT A FACTUAL CONCLUSION; (E) NO ATTEMPT WAS MADE BY THE AO BRING ON RECORD ANY CREDIBLE DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CON CLUSION THAT THERE WAS INDEED AN UNACCOUNTED PAYMENT OF RS. 3.39 CRORES IN THE LAND DEAL; (F) NO ATTEMPT WAS MADE WHATSOEVER TO EXAMINE THE VENDO RS ON OATH TO BRING OUT THE FACTUAL FACTS; (G) THOUGH THE ALLEGED TRANSACTION WAS BETWEEN THE ASSE SSEE AND THE LAND OWNERS THE AO HAD SOLELY RELIED ON TH E ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 11 OF 12 STATEMENT OF MR AGA WHO ADMITTEDLY NOWHERE CONCER NED WITH THE SAID DEALING; (H) NO ATTEMPT WAS MADE BY THE AO TO CROSS-EXAMINE THE VERACITY AND AUTHENTICITY OF THE STATEMENT OF SRI A GA BY SUMMONING THE VENDORS TO RECORD THEIR STATEMENTS. 8.3. SINCE THE ISSUE WHICH HAS BEEN EXAMIN ED IN DETAIL BY THE CIT (A) HAS NOT BEEN DISPUTED BY THE REVENUE WI TH ANY DOCUMENTARY EVIDENCE EVEN DURING THE COURSE OF HEAR ING BEFORE US WE ARE OF THE VIEW THAT THE CIT (A) WAS JUSTIFI ED IN DELETING THE ADDITION MADE BY THE AO. IT IS ORDERED ACCORDI NGLY. 9. BEFORE PARTING WITH WE WOULD LIKE TO POINT OUT THAT INCIDENTALLY IN AN IDENTICAL ISSUE IN THE CASE OF M/S. VALMARK BUILDERS AN ADDITION OF RS.2 50 70 500/- MADE BY T HE AO BASED ON THE STATEMENT OF SRI AGA BEFORE THE ADIT (INV) O N OATH WAS DELETED BY THE CIT (A) FOR ALMOST SIMILAR REASONS R ECORDED BY HER IN THE APPELLATE ORDER FOR THE AY 2007-08. THE STA ND OF THE CIT (A) HAS BEEN UPHELD BY THE EARLIER BENCH OF THIS TR IBUNAL IN ITA NO.1365/BANG/2012 DATED 13.9.2013. CROSS OBJECTIONS: (C.O.NO.67/BANG/2013) 10. WITH REGARD TO THE ASSESSEES GRI EVANCE IN ITS CROSS OBJECTIONS VIZ. (I) THE ASSESSMENT ORDER WAS NOT VALID IN LAW; & (II) NO NOTICE U/S 143(2) WAS ISSUED ETC. THE LEARNED AR HAD MORE OR LESS REITERATED WHAT HAS BEEN REPRESENTED B EFORE THE CIT (A). HOWEVER NO NEW MATERIAL HAS BEEN BROUGHT ON RECORD TO REBUT THE FINDING OF THE CIT (A). WE HAVE DULY PE RUSED THE FINDINGS OF THE CIT (A) ON BOTH THE ISSUES AND OF T HE VIEW THAT ITA NO.1366 OF 2012 MESSERS ASHED VALMARK BANGALORE PAGE 12 OF 12 THERE ARE NO INFIRMITIES IN HER FINDINGS WARRANTING OUR INTERVENTION. IT IS ORDERED ACCORDINGLY. 11. IN THE RESULT : (I) THE REVENUES APPEAL IS DISMISSED; & (II) THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH APRIL 2014. SD/- SD/- (JASON P. BOAZ) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE DATED 11 TH APRIL 2014. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR ITAT BANGALORE 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES BANGALORE