Hotel Hero,, Ankleshwar v. The ACIT, Bhruch Circle,, Bharuch

ITSSA 45/AHD/2008 | misc
Pronouncement Date: 16-12-2010 | Result: Allowed

Appeal Details

RSA Number 4520516 RSA 2008
Assessee PAN AABFH9424N
Bench Ahmedabad
Appeal Number ITSSA 45/AHD/2008
Duration Of Justice 2 year(s) 8 month(s) 12 day(s)
Appellant Hotel Hero,, Ankleshwar
Respondent The ACIT, Bhruch Circle,, Bharuch
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 16-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 16-12-2010
Date Of Final Hearing 07-12-2010
Next Hearing Date 07-12-2010
Assessment Year misc
Appeal Filed On 04-04-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER IT(SS)A NO.45-46/AHD/2008 BLOCK ASSESSMENT FROM:1/4/90 TO 20/10/00 DATE OF HEARING:0712.10 DRAFTED:9.12.10 M/S. HOTEL HERO C/O KETAN H SHAH ADVOCATE 903 SAPPHIRE COMPLEX OPP. RATNAM BUILDING NR. CARGO MOTORS C.G. ROAD NAVANGPURA AHMEDABAD PAN NO.AABFH9424N DCIT BHARUCH CIRCLE BHARUCH V/S . V/S . DCIT BHARUCH CIRCLE BHARUCH M/S. HOTEL HERO C/O KETAN H SHAH ADVOCATE 903 SAPPHIRE COMPLEX OPP. RATNAM BUILDING NR. CARGO MOTORS C.G. ROAD NAVANGPURA AHMEDABAD (APPELLANT) .. (RESPONDENT) ITA NO.1185-1186/AHD/2008 ASSESSMENT YEARS: 2000-01 & 2001-02 M/S. HOTEL HERO C/O KETAN H SHAH ADVOCATE 903 SAPPHIRE COMPLEX OPP. RATNAM BUILDING NR. CARGO MOTORS V/S . DCIT BHARUCH CIRCLE BHARUCH IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 2 C.G. ROAD NAVANGPURA AHMEDABAD (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI KETAN H SHAH AR REVENUE BY:- SHRI RAHIT MEHRA SR-DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THESE FOUR APPEALS ONE BY REVENUE AND THREE BY AS SESSEE ARE ARISING OUT OF ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-VI BARODA IN APPEAL NOS.CAB/VI-384-386/06-07 OF DIFFER ENT DATE 15-01- 2008 & 04-01-2008. THE BLOCK ASSESSMENT AND REGULAR ASSESSMENT WERE FRAMED BY DCIT BHARUCH CIRCLE U/S158BC R.W.S.1 43(3) AND U/S 254 R.W.S 147 OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS DIFFERENT ORDERS DATE 28-12-2006 FOR BLOCK PERIOD FROM 01- 04-1990 TO 20-10-2000 AND ASSESSMENT YEARS FOR 2000 -01 AND 2001-02 RESPECTIVELY. 2. THE FIRST COMMON ISSUE IN THESE CROSS APPEALS O F ASSESSEE IN IT(SS)A NO.45/AHD/2008 AND OF REVENUE IN IT(SS)A NO.46/AHD/2008 IS AS REGARDS TO THE ORDER OF CIT(A) IN RESTRICTING ADDITION AT RS.77 56 575/- AS AGAINST THE ADDITION MADE BY ASSE SSING OFFICER AT RS.1 60 66 066/-. AGGRIEVED ASSESSEE RAISED THE FO LLOWING GROUND NO.1 :- IT(SS)A NO.45/AHD/2008 (FOR ASSESSEE) 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-VI BARODA [THE CIT(A)] ERRED IN FACT AND IN LAW IN C ONFIRMING ADDITION IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 3 OF RS.77 56 575/- BEING DIFFERENCE IN THE VALUATION OF PROPERTY PURELY ON THE BASIS OF ASSUMPTIONS SURMISES AND CO NJECTURES. REVENUE RAISED THE FOLLOWING GROUND NO.1-2 :- IT(SS)A NO.46/AHD/2008 (FOR REVENUE). 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A)-VI BARODA HAS ERRED IN DELETING ADDITION OF RS.55 66 066/- BEING THE DIFFERENT BETWEEN THE VALUATION MADE BY T HE DVO AND THE TRANSACTION PRICE OF RS.1 05 00 000/-. 2. THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE AO IS NOT COMPETENT TO MAKE REFERENCE TO THE DVO AS PART OF THE POST SE ARCH INVESTIGATION DESPITE THE FACT THAT PROVISIONS OF S ECTION 142A INSERTED BY FINANCE ACT 2004 WITH RETROSPECTIVE EF FECT FROM 01.04.1989 CLEARLY EMPOWER THE AO TO DO SO. 3. THE BRIEF FACTS LEADING TO THE ABOVE COMMON ISSU E ARE THAT A SEARCH U/S.132 OF THE ACT WAS CARRIED OUT ON 20-10- 2000 AT M/S.HOTEL HERO ANKLESHWAR AND DURING THE COURSE OF SEARCH AP ART FROM CASH OF RS.1 610/- BOOKS OF ACCOUNT LOOSE PAPER ETC. WERE FOUND AND SEIZED AS PER ANNEXURE-BS-1 TO BS-5 TO THE PANCHNAMA DATED 20 -10-2000. SUBSEQUENTLY NOTICE U/S.158BC OF THE ACT ISSUED ON 01-05-2002 AND RETURN FOR BLOCK PERIOD 01-04-1990 TO 20-10-2000 W AS FILED ON 31-05- 2002 DECLARING UNDISCLOSED INCOME AT RS.NIL IN FORM NO.2B. THE BACKGROUND OF THE CASE ARE THAT IN1993 SHRI HIRALA KANCHANALAL MODI AND SHRI URMISHBHAI UPENDRABHAI GANDHI OF ANKLESHWA R STARTED A PRIVATE LIMITED COMPANY IN THE NAME AND STYLE OF M/ S.MANSI MOTELS PVT. LTD.ALONG WITH OTHER FAMILY MEMBERS OF SHRI UPENDRA GANDHI AND SAID COMPANY HAD PURCHASED A PIECE OF LAND FROM MOHMADKH AN NATHTHAN PATHAN BEARING REVENUE SURVEY NO.512 OF ANKLESHWR A PRIME LOCALITY IN ANKLESHWAR ADMEASURING 1270 SQ.MTS. FOR THE CONSIDE RATION OF RS.3 99 999/-. THEREAFTER SHRI HIRALAL K MODI AND U RMISHBHAI U GANDHI AND OTHER DIRECTORS RESIGNED FROM COMPANY AS DIRECT ORS AND SOME OTHER IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 4 NEW PERSONS TOOK THE COMPANY. THEY DECIDED TO CONST RUCT A COMMERCIAL BUILDING KNOWN AS GALAXY ARCADE ON THE SAID LAND SITUATED AT ADJOINING ANKLESHWAR RAILWAY STATION (EAST) GIDC ANKLESHWAR . MANSI MOTELS PVT. LTD. HAD MADE CONSTRUCTION OF THIS COMMERCIAL BUILDING WITH A MOTIVE TO START HOTEL ON THE 1 ST & 2 ND FLOOR OF THE SAID BUILDING AND ON THE GROUND FLOOR OF THE GALAXY ARCADE THERE ARE 18 SHOPS WHIC H WERE SOLD OUT BY M/S. MANSI MOTELS PVT. LTD. TO DIFFERENT PERSONS. M /S. MANSI MOTELS PVT. LTD. HAD APPLIED FOR HOTEL LICENSE ON 08-03-1999 AN D LICENSE WAS ISSUED ON 30-09-1999 BY SUB-DIVISIONAL MAGISTRATE AND HOTE L BUSINESS WAS STARTED IN THIS BUILDING IN THE NAME AND STYLE HOT EL GUJARAT INTERNATIONAL PROP. M/S. MANSI MOTELS PVT. LTD. AFTER 30-09-1999. SOME SPACE ON GROUND FLOOR IS USED AS RECEPTION HALL. THE AREA AND NUMBER OF ROOMS OF HOTEL GUJARAT INTERNATIONAL ARE AS UNDER:- 1. GROUND FLOOR 65 SQ.MT. RECEPTION COUNTER 2. FIRST FLOOR 1108 SQ.MT. 22 ROOMS 3. SECOND FLOOR 1108 SQ.MT. 16 ROOMS & HALL 4. SUBSEQUENTLY MANAGEMENT OF M/S MANSI MOTELS PVT . LTD. ENTERED INTO A SALE AGREEMENT (BANAKHAT) ON 06-03-2000 WITH SHRI HIRALAL K MODI OF M/S. HOTEL HERO OF ANKLESHWAR TO SELL THE RUNNIN G BUSINESS OF HOTEL ALONG WITH ASSETS OF THE HOTEL. THE VALUE OF SALES CONSIDERATION NOTED IN THE AGREEMENT AT RS.1.05 CRORES AND POSSESSION OF H OTEL HAS BEEN HANDED OVER TO M/S. HOTEL HERO ON 01-04-2000 AND RE GISTERED DOCUMENT WAS EXECUTED IN THE MONTH OF MAR.00 FOR THE RECEPT ION COUNTER AND FIRST FLOOR FOR RS.22 95 998/-. AS PER ASSESSEES CLAIM T HE DOCUMENT OF SECOND FLOOR REMAINS TO BE EXECUTED AND BALANCE AMO UNT OF RS.82 LAKH REMAINED TO BE PAID TILL DATE. FOR NON EXECUTION O F BALANCE PART OF AGREEMENT AND NONPAYMENT OF BALANCE PAYMENT IT WAS STATED THAT THEY IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 5 HAVE RECEIVED LOAN FROM THE ANKLESHWAR NAGRIK SAHAK ARI BANK LTD. AND FROM PRECONE PVT. LTD. DUE TO PERSONAL RELATION WIT H SHRI HIRALAL K MODI AND SHRI MODI WHO IS CHAIRMAN OF THE ANKLESHWAR NA GRIK SAHAKARI BANK LTD. AND ALSO CHAIRMAN & MANAGING DIRECTOR OF PRECONE PVT. LTD. IT IS FURTHER NOTICED THAT MANSI MOTELS PVT. LTD. RECE IVED LOAN OF RS.20 LAKH FOR HOTEL FURNITURE RS.6 LAKH TERM LOAN FOR HOTEL AND RS.46 LAKH FOR CONSTRUCTION OF GALAXY ARCADE BUILDING AND AS SUCH IT HAD RECEIVED LOAN OF RS.72 LAKH FROM THE INSTITUTIONS CONTROLLED BY S HRI HIRALAL K MODI AND IN THE ORIGINAL BLOCK ASSESSMENT THE ASSESSING OFFI CER OBSERVED THAT M/S. HOTEL HERO HAS EXECUTED SALE AGREEMENT ON 6 TH MAR.00 AND SALE CONSIDERATION IS SHOWN AT RS.1.05 CRORES. THE POSSE SSION OF HOTEL BUILDING ALONG WITH RUNNING BUSINESS OF HOTEL WAS T AKEN OVER AND CONTROL AND ADMINISTRATION OF HOTEL BUSINESS WAS ALSO TAKEN OVER BY THE FIRM M/S. HOTEL HERO ON 01-04-2000. THE FIRM M/S. HOTEL HERO HAD CONTINUED THEIR HOTEL BUSINESS IN THE NAME AND STYLE HOTEL GUJARAT INTERNATIONAL TILL LICENSE IN THE NAME OF M/S. HOTEL HERO WAS OBTAINED FROM THE APPROPRIATE AUTHORITY AND FOLLOWING REGISTERED DOCU MENTS WERE ALSO EXECUTED ON DIFFERENT DATES AS UNDER:- DATE OF REGISTRATION REGISTRATION AMOUNT (RS) REGISTRATION EXPENSES (RS) SQ. MT. RATE PER SQ.MT. (RS) REGISTRATION FOR 8.3.2000 314500 40000 65 4838 RECEPTION COUNTER ON GROUND FLOOR 10.3.2000 482500 56000 100 4825 FIRST FLOOR NORTH SIDE 22.3.2000 499000 58000 104 4798 1 ST FLOOR EAST & NORTH SIDE 28.3.2000 499999 NIL 600 833 31.3.2000 499999 284000 304 1644 1 ST FLOOR EAST IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 6 SOUTH SIDE TOTAL 2295998 438000 1173 1956 5. IN VIEW OF THESE FACTS THE ASSESSING OFFICER WHILE FRAMING BLOCK ASSESSMENT DOUBTED THE RATE OF 1173 SQ.MT. FOR GROU ND FLOOR AND FIRST FLOOR AT RS.22 95 998/- AND ALSO DOUBTED THE BALANC E AMOUNT PAYABLE OF RS.82 04 002/- FOR 1108 SQ.MT. OF SECOND FLOOR THO UGH NO SALE DEED EXECUTED LATER ON FOR 1108 SQ.MT. FOR SECOND FLOOR. THE AO REFERRED THE MATTER TO DVO AND THE DVO VALUED THE COST OF PROPER TY AT RS.1 20 69 299/- AND SUBSEQUENT ALTERATION ETC. OF RS.39 96 766/- FOR THE PERIOD FROM 01-04-2000 TO 20-10-2000 AND SINCE THE ASSESSEE SHOWN THE VALUE OF RS.27 43 425/- IN THE BOOKS OF ACCOUNT AND AO INITIALLY IN A FIRST ROUND ADDED RS.1 33 22 641/-. IN A FIRST ROUN D AND CIT(A) CONFIRMED THE ADDITION EXCEPT RS.4 LAKH. THUS THE CIT(A) HAS HELD THAT THE VALUATION OF TOTAL BUILDING SHOULD BE TAKEN AT RS.1 56.66 LAKHS AS AGAINST VALUATION OF DVO AT RS.1 60 66 066/-. THE CIT(A) HA S CONFIRMED THE UNEXPLAINED INVESTMENT AT RS.129.23 LAKHS AS PER PA RA-8.11 OF HIS FIRST ROUND ORDER AND DELETED THE BALANCE ADDITION OF RS. 4 LAKH MADE ON ACCOUNT OF ADDITIONS AND ALTERATIONS CARRIED OUT. T HE MATTER TRAVELED TO TRIBUNAL. THE ASSESSEE CHALLENGED THE ADDITION SUST AINED AT RS.1 29 22 641/- AND DEPARTMENT CHALLENGED THE DELE TION OF RS.4 LAKH. THE TRIBUNAL RESTORED THE MATTER BACK TO THE FILE O F THE ASSESSING OFFICER IN ITA NO.126/AHD/2004 DATED 15-06-2005 WITH THE DIRECTIONS AS UNDER:- IN VIEW OF ABOVE MENTIONED FACTUAL POSITION WE ARE OF THE OPINION THAT THE ISSUE OF ADDITION WIDTH REGARD TO IN-PROPO RTIONATE AMOUNTS SPENT BY ASSESSEE ON PURCHASE OF GROUND FLOOR AND F IRST FLOOR HAS TO BE RESTORED TO THE FILE OF AO FOR RECONSIDERATIO N OF THE SAME IN THE LIGHT OF EXPLANATION FURNISHED BY THE ASSESSEE AND THEREAFTER TO DRAW A CONCLUSION AS PER LAW IN THIS REGARD. NEEDLE SS TO OBSERVE THAT A REASONABLE OPPORTUNITY OF HEARING WILL BE GI VEN TO THE IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 7 ASSESSEE IN THIS REGARD TO SUBSTANTIATE THE EXPLANA TION FURNISHED BY IT. TO SUM UP WE HOLD THAT IT IS A CASE OF OUTRI GHT PURCHASE THE AO CANNOT REFER THE VALUATION OF THE D.V.O THEREFO RE REFERENCE TO D.V.O. WAS NOT CALLED FOR. FOR HOLDING SO WE DERIVE STRENGTH FROM THE CASE LAW RELIED UPON BY THE ASSESSEE IN THIS RE GARD PARTICULARLY THE DECISION OF CO-ORDINATE BENCH IN THE CASE OF SUBHASH CHANDRA CHOPRA VS. ACIT (SUPRA). AS IT RELA TES TO ADDITION WORKED OUT BY CIT(A) WITH REGARD TO IN-PRO PORTIONATE SUM EXPENDED BY ASSESSEE SO AS IT RELATES TO THE PURCHA SE PRICE OF FIRST FLOOR AND SECOND FLOOR WE RESTORE THE ISSUE TO THE FILE OF AO FOR VERIFICATION OF THE EXPLANATION OF THE ASSESSEE GIV EN IN THIS REGARD. THE RESTORATION INCLUDES THE ISSUE RAISED BY ASSESS EE IN ITS GROUND NO.8 REGARDING ADDITION OF A SUM OF RS.1 50 000/-BE ING EXPENSES OF REGISTRATION AND STAMP PAPER CHARGES ADDED TO TH E INCOME OF ASSESSEE UNDER THE PROVISIONS OF SECTION 69C OF THE ACT. THEREFORE THESE GROUNDS ARE PARTLY ALLOWED FOR STA TISTICAL PURPOSES. 6. THE ASSESSING OFFICER FURTHER REFRAMED THE BLOCK ASSESSMENT BY OBSERVING THAT THE TOTAL AREA OF 2281 SQ.MT. AND TH E CONSIDERATION WAS RS.1.05 CRORES AND ASSESSEE GOT THE TOTAL AREA OF 1 173 SQ.MT. FOR RS.22 95 998/- THEREBY LEAVING BALANCE OF RS.82 04 002/- FOR 1108 SQ.MT. THIS WAS NOT ACCEPTABLE TO THE AO AND HE STA TED THAT THE SALE PRICE GIVEN BY THE ASSESSEE IN RESPECT OF GROUND FL OOR AND FIRST FLOOR I.E. 1173 SQ.MT. AT RS.22 95 998/- IS INSUFFICIENT APPAR ENT CONSIDERATION. SINCE IT LEFT A SUM OF RS.82 09 002/- TO BE PAID IN RESPECT OF SECOND FLOOR COMPRISING 1108 SQ.MT. THE AO OBSERVED THAT THE ASS ESSEE IS IN POSSESSIONS OF GROUND AND SECOND FLOOR AND PAID ONL Y RS.22 05 998/- AS REFLECTED IN THE AUDITED BALANCE-SHEET OF THE ASSES SEE. THE AO ALSO RAISED THE ISSUE IN RESPECT OF NON-PAYMENT OF BALAN CE CONSIDERATION OF RS.82 94 002/- WHERE ONLY THE SECOND FLOOR WAS NOT IN POSSESSION OF THE ASSESSEE. HE ALSO PROPOSED WHY THE SAID SUM SHOULD NOT BE TAXED AS UNDISCLOSED INCOME OF THE FIRM AND IN RESPECT OF TH E ABOVE THE ASSESSEE SUBMITTED THE VALUE OF RS.1.05 CRORES AS WAS ASSIGN ED TO THE WHOLE IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 8 HOTEL AND IT COULD NOT BE APPROPRIATED ON THE BASIS OF AREA OF HOTEL. THE ORDER IN DISPUTE PASSED BY AO AS WELL AS THE FINDIN G GIVEN BY THE CIT(A) AND IN THE ORDER IN DISPUTE IS DE FACTO THE SAME FI NDING AS GIVEN EARLIER IN FIRST ROUND OF ASSESSMENT. THE AO IN THE FIRST ROUN D OF ASSESSMENT APPEAL HAS NO RELEVANCY BECAUSE THE ITAT HAS ALREAD Y TAKEN INTO CONSIDERATION ALL THE FINDINGS AND ASSESSEE FAILED TO UNDERSTAND WHY THE CIT(A)/ASSESSING OFFICER WANTS TO RELY UPON THE FIN DING OF EARLIER ASSESSMENT ORDER AND APPELLATE ORDER. THE CIT(A) IN HIS PRESENT ORDER IN DISPUTE RELIED UPON EARLIER QUANTUM ORDER DATED 24- 03-2004 WHICH HAS ALREADY BEEN CONSIDERED BY TRIBUNAL. AGAINST THE AB OVE ADDITION ASSESSEE PREFERRED APPEAL BEFORE CIT(A). 7. THE CIT(A) DELETED THE ADDITION BEING DIFFERENCE IN THE SALE CONSIDERATION NOTED IN THE AGREEMENT TO SALE AND VA LUE AS DETERMINED BY DVO BY GIVING FOLLOWING FINDING IN PARA-4.2.2 OF HIS APPELLATE ORDER:- 4.2.2 I AM IN AGREEMENT WITH THE APPELLANT THAT TH E HONBLE ITAT HAS CLEARLY RECORDED A FINDING THAT THE TRANSACTION BETWEEN THE APPELLANT AND M/S. MANSI MOTELS PVT. LTD. AS PER TH E AGREEMENT DATED 6 TH MARCH 2000 BEING OF OUTRIGHT PURCHASE THE ASSESS ING OFFICER CANNOT REFER THE MATTER FOR VALUATION TO TH E DVO. IT IS ALSO NOTICED THAT HONBLE ITAT HAD RELIED ON THE JUDGMEN T IN THE CASE OF SUBASH CHANDRA CHOPRA VS. ACIT 92 TTJ 1087 (DELHI) AND IN THAT JUDGMENT IT IS HELD THAT REFERENCE TO SECTION 142A COULD ONLY BE MADE DURING THE PENDENCY OF THE PROCEEDINGS AND THAT IN THE BLOCK ASSESSMENT PROCEEDINGS UNDER CHAPTER XV-B THE ADDITION COULD BE MADE ONLY ON THE BASIS OF UNDISCLOSED INCO ME FOUND AS A RESULT OF EVIDENCE RECOVERED DURING THE COURSE OF S EARCH AND IN THE ABSENCE OF SUCH MATERIAL OR EVIDENCE. ASSESSING OFF ICER ISNT COMPETENT TO MAKE A REFERENCE TO DVO AS PART OF POS T SEARCH INVESTIGATIONS. IN VIEW OF THE CLEAR FINDINGS OF TH E HONBLE ITAT THAT REFERENCE TO DVO WAS NOT JUSTIFIED THE ACTION OF A SSESSING OFFICER IN ADOPTING THE VALUE DETERMINED BY DVO OF RS.1 60 66 066/- IS NOT APPROPRIATE. IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 9 8. FURTHER THE CIT(A) CONFIRMED THE ADDITION BEING DIFFERENCE IN THE TRANSACTION PRICE OF RS.1.05 CRORES AND THE REAL PR ICE PAID AT RS.27 43 425/- I.E. THE DIFFERENCE OF RS.77 56 575/ - U/S.69 B OF THE ACT. BY GIVING FOLLOWING FINDING IN PARA-4.2.5 TO 4.2.7 :- 4.2.5 EXAMINATION OF THE INJUNCTION ORDER HOWEVER SUGGESTS THAT THE LOAN OF RS.20 LACS BY ANKLESHWAR NAGARIK SAHAKA RI BANK IS ONLY TOWARDS AC TV AND FURNITURE. IT IS NOT IN DIS PUTE THAT THE ENTIRE GROUND FLOOR AND FIRST FLOOR WAS TRANSFERRED IN MARCH 2000 TO THE APPELLANT WHO HAS ALSO TAKEN THE POSSESSION OF GROUND AND FIRST FLOOR. IT IS ALSO NOT IN DISPUTE THAT THE SEC OND FLOOR OF THE PREMISES WAS ALSO IN POSSESSION OF THE APPELLANT. T HIS FACT IS CONFIRMED BY A XEROX COPY OF THE STATEMENT OF MR. H IRALALL K MODI FOUND AND SEIZED AT PAGE NO.31 OF ANNEXURE BS/5 WHI CH WAS MADE BEFORE SUB DIVISION MAGISTRATE BHARUCH WHERE IT WAS CLEARLY INDICATED THAT THE PREMISES KNOWN AS GALAXY ARCADE HAD BEEN PURCHASED AND THAT THE SAID PREMISES COMPRISED OF 34 ROOMS AND AND THAT ALL THE FACILITIES WERE AVAILABLE FOR RUNNING THE HOTEL. THIS STATEMENT WAS DATED 12.9.2000. IT WAS ALSO VER IFIED FROM BOOKS OF ACCOUNTS BY ASSESSING OFFICER THAT HOTEL H ERO HAD GIVEN ROOMS ON SECOND FLOOR ON HIRE TO THE CUSTOMERS AND THAT ROOM CHARGES WERE RECEIVED FROM THE CUSTOMERS ON SECOND FLOOR AND THAT THE SAID FLOOR WAS IN ACTUAL POSSESSION OF THE APPELLANT AND USED FOR HOTEL BUSINESS. UNDER THESE FACTS AND CIRC UMSTANCES THE CONTENTIONS OF THE APPELLANT THAT THE AGREEMENT FOR SALE BETWEEN THE APPELLANT AND MANSI MOTEL PVT. LTD. IS AN EXECU TORY DOCUMENT AND NOT EXECUTED AGREEMENT DOES NOT APPEAR TO BE CO RRECT. IT IS ALSO NOTED THAT FROM VERIFICATION OF THE SALE DEED EXECUTED ON 31.3.2000 THAT THE ASSESSEE HAD ISSUED THREE CHEQUE S ON 31.3.000 OF ANAKLESHWAR NAGARIK SAHARI BANK LTD. AS PER FOLLOWING DETAILS AND THESE CHEQUES WERE CLEARED AS LATE AS O CTOBER 2000. AMOUNT OF CHEQUES DATE OF CHEQUES CHEQUE NO. DATE OF CLEARING RS 1 50 000 31.3.2000 98398 3.10.2000 RS.1 50 000 31.3.2000 98399 3.10.2000 RS.1 99 000 31.3.2000 98400 31.10.2000 4.2.6 IF THE BANK HAD INDEED INTENDED TO PURSUE REC OVERY OF LOAN AMOUNT IN MAY 2000 AS CLAIMED BY APPELLANT THEN TH E AMOUNT OF RS.4 99 000 ISSUED BY WAY OF AFORESAID CHEQUES COUL D NOT HAVE BEEN PASSED ONTO THE SELLERS AS THE BANK WOULD HAVE APPROPRIATED IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 10 THE SAID AMOUNT DUE TO THE SELLER AGAINST THE LOAN GIVEN BY THE BANK. IT IS ALSO INTERESTING TO NOTE THAT THE MAIN PARTNER OF HERO HOTEL MR. HIRALAL K MODI IS CHAIRMAN OF ANKLESHWAR NAGARK SAHAKARI BANK LTD. WHO HAD SANCTIONED THE LOAN TO M /S. MANSI MOTELS PVT. LTD. FURTHERMORE MR. HIRALAL K MODI I S ALSO CHAIRMAN AND MD OF PREPONE PVT. LTD. WHICH HAD GIVEN A LOAN OF RS.46 LACS IN 1997-98 TO M/S. MANSI MOTELS PVT. LTD. TOWARD S THE HOTEL PROPERTY. THE LOAN OF ANKLESHWAR NAGRIK SAHAKARI BA NK LTD. IS IN REGARD TO FURNITURE AC AND FIXTURES. ANKLESHWAR NA GRIK SAHAKARI BANK LTD. APPEARS TO HAVE FILED AN INJUNCTION WITH REGISTRAR COOPERATIVE SOCIETY IN MAY 2000 AND VIDE ORDER OF DECEMBER 2000 THE CONTENTIOUS PROPERTY HAS BEEN CLAIMED BY T HE BANK WHEREAS DURING THE PERIOD MARCH 2000 TO DECEAMBER 2000 THE SAID BANK HAD ISSUED AND CLEARED CHEQUES IN FAVOUR OF MANSI MOTELS PVT. LTD. BY THE PARTNERS OF THE APPELLANT F IRM. THEREFORE I AM IN AGREEMENT WITH THE ASSESSING OFFICER THAT THE MAIN PLEA OF LIEN OF THE ANKLESHWAR NAGRIK SAHAKARI BANK LTD. WA S A HINDRANCE IN PASSING ON THE ENTIRE SALE CONSIDERATION OF CONT ENTIOUS PROPERTY APPEARS TO BE FALLACIOUS MORE SO WHEN THE CHAIRMAN OF THE SAID BANK IS THE KEY PERSONNEL OF THE APPELLANT FIRM WHO HAD SANCTIONED THE LOAN TO MANSI MOTEL PVT. LTD. IN FACT NON PAYME NT OF THE LOAN OF ANKLESHWAR NAGRIK SAHAKARI BANK LTD. AND THAT OF PR EPONE PVT. LTD. IS NOT ONLY INTRIGUING BUT ALSO POINTS TOWARDS THE REAL NATURE OF THE TRANSACTION. EITHER THE REAL CONSIDERATION HAS ALREADY BEEN ADJUSTED AGAINST THE LOAN AMOUNT OR IT HAS ACTUALLY BEEN PAID FROM UNDISCLOSED SOURCES BY THE APPELLANT. 4.2.7. IT IS UNDISPUTED THAT THE POSSESSION OF THE ENTIRE PREMISES REST WITH HOTEL HERO AND IN FACT THE ENTIRE PREMISE S HAVE BEEN UTILIZED FOR HOTEL BUSINESS RIGHT FROM APRIL 2000. IT WOULD BE STRANGE TO ACCEPT THAT THE SELLER WOULD GIVE THE EN TIRE POSSESSION OF THE READY TO USE PREMISES WITHOUT RECEIVING THE FULL CONSIDERATION FROM THE PURCHASER. FROM THESE FACT I T APPEARS THAT PURCHASER IS IN MUCH STRONGER FOOTING VIZ-A-VIZ THE SELLER TO DICTATE TERMS IN REGARD TO HOW THE TRANSACTIONS ARE TO BE D ECLARED IN THE DOCUMENTS. IN VIEW OF ABOVE I AM OF THE VIEW THAT THE DIFFERENCE OF THE TRANSACTION PRICE I.E. OF RS.1 05 00 000 AND RS .27 43 425 IS THE REAL PRICE WHICH APPEARS TO HAVE BEEN PAID BUT HAS NOT BEEN DECLARED TO THE DEPARTMENT. THE ADDITION TO THE EXT ENT OF RS.77 56 575/- U/S.69B IS CONFIRMED. THE GROUND IS PARTLY ALLOWED. AGGRIEVED BOTH REVENUE AS WELL AS ASSESSEE CAME IN APPEAL BEFORE US. IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 11 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE DIF FERENCE IN RESPECT TO SALE CONSIDERATION AS NOTED IN THE AGREEMENT TO SEL L AT RS.1.05 CRORES AND THE VALUE OF THE PROPERTY ESTIMATED BY THE DVO AT RS.1 60 66 066/- ADDED BY THE ASSESSING OFFICER AND DELETED BY CIT( A) OF RS.55 66 066/- . WE FROM THE TRIBUNALS ORDER PARA-13 IN THE FIRST ROUND DISCUSSED THIS ISSUE AS UNDER:- 13. NOW COMING TO GROUND NOS. 2 TO 3 IT WAS VEHEME NTLY ARGUED BY THE COUNSEL OF THE ASSESSEE THAT NOTHING WAS FOU ND BY WAY OF EVIDENCE DURING THE CURSE OF SEARCH. IN ABSENCE OF ANY EVIDENCE THE AO ERRED IN REFERRING THE MATTER TO DVO. REFERR ING TO THE PROVISIONS OF SECTION 69B IT WAS PLEADED THAT AS PE R REQUIREMENTS OF THE SECTION THERE SHOULD BE A POSITIVE EVIDENCE OF HAVING EXPENDED EXCESS AMOUNT IN THE INVESTMENT AS RECORDE D IN THE BOOKS OF ACCOUNT. THE EMPHASIS WAS LAID ON THE WORD S ASSESSING OFFICER FINDS APPEARING IN THE SECTION. IT WAS VEHEMENTLY ARGUED THAT IN ABSENCE OF SUCH FINDING SECTION 69B COULD N OT BE INVOKED. SIMILARLY IT WAS ARGUED THAT 69 COULD NOT HAVE ANY APPLICATION AS ASSESSEE DID NOT MAKE ANY INVESTMENT IN THE ASSETS WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT. IT WAS ALSO A RGUED THAT 69A HAS ALSO NO APPLICATION TO THE FACTS OF THE CASE. R EFERRING TO SECTION 142A INSERTED BY FINANCE (NO 2) ACT 2004 W ITH RETROSPECTIVE EFFECT FROM 15/11/1972 IT WAS PLEADE D THAT THE SAME COULD NOT BE INVOKED AS CASE OF THE ASSESSEE DID NO T FALL UNDER ANY OF THE PROVISIONS OF SECTION 69 69A AND 69B .. IT WAS FURTHER ARGUED THAT IF IT IS HELD THAT NEITHER OF T HE SECTIONS 69 69A & 69B WAS APPLICABLE THEN IN THAT CIRCUMSTANCES THE A GREEMENT ENTERED INTO BY THE ASSESSEE WITH THE SELLER SHOULD BE ACCEPTED AND THUS THERE SHOULD NOT BE ANY TYPE OF REFERRING THE VALUATION TO THE DVO AS NO SUCH AUTHORITY COULD BE EXERCISED BY AO. WE FIND THAT THE CIT(A) HAS HELD THAT THERE IS NO MATERIAL WHICH COULD WITH THE BASIS FOR REFERRING THE MATTER TO DVO AS T HERE IS A SALE AGREEMENT WHICH HAS RECORDED THE CONSIDERATION TO BE PASSED ON AND EVEN THOUGH IT IS NOT CONCLUSIVE THAT THE PROPERTY HAS TRANSFERRED OR NOT IN LIEU OF ABOVE SALE AGREEMENT.. IT IS A FACT THAT REFERENCE TO SECTION IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 12 142A OF THE ACT COULD ONLY BE MADE DURING THE PENDE NCY OF THE PROCEEDINGS AND IN THE BLOCK ASSESSMENT PROCEEDINGS UNDER CHAPTER XV-B THE ADDITION COULD BE MADE ONLY ON THE BASIS O F UNDISCLOSED INCOME FOUND AS A RESULT OF EVIDENCE RECOVERED DURI NG THE CURSE OF SEARCH AND IN HE ABSENCE OF SUCH MATERIAL OR EVIDEN CE ASSESSING OFFICER IS NOT COMPETENT TO MAKE A REFERENCE TO DVO AS PART OF POST SEARCH INVESTIGATIONS AS IN THE PRESENT CASE THE F ACTS ARE. WE FIND THAT IT IS THE UNIFORM VIEW OF THE COURTS AND ALSO HELD BY HONBLE APEX COURT AS REPORTED IN THE CASE OF K.P.VARGHESE V ITO (1981) 131 ITR 597 (SC) THAT THE BURDEN OF PROVING ACTUAL CONSIDERATION IN SUCH TRANSACTION IS THAT OF THE REVENUE AND CONSIDERING THE ENTIRE GAMUT OF THE CASE WE ARE OF THE VIEW THAT REVENUE HAS FAILED TO DISCHARGE ITS D UTY AND AS HELD BY CIT(A) INSTEAD MADE UP A CASE ON SURMISE AND CONJEC TURE WHICH CANNOT BE ALLOWED. ACCORDINGLY THIS ISSUE OF THE REVENUE S APPEAL IS DISMISSED. 10. IN RESPECT TO THE ISSUE OF ASSESSEE AS REGARDS TO THE CONFORMATION OF ADDITION BEING THE DIFFERENCE ON THE SALE TRANSA CTION I.E. SALE CONSIDERATION OF RS.1.05 CRORES IN THE AGREEMENT TO SELL AND THE ACTUAL AMOUNT PAID AT RS.27 43 425/- THE DIFFERENCE BEING OF RS.77 56 575/- ADDED U/S.69B OF THE ACT AND CONFIRMED BY CIT(A) W E FIND THE FACTS THAT AS PER AGREEMENT TO SALE FOR THE WHOLE PROPERTY THE CONSIDERATION PAYABLE WAS RS.1.05 CRORES SALE DEEDS WERE EXECUTED IN RESPECT OF 1 173 SQ. FT. ONLY. PROPORTIONATE CONSIDERATION AS PER AO THEREFORE WOULD HAVE BEEN RS.53 99 605/-. HOWEVER THE ASSESSEE PAI D RS.22 95 998/- UNDER SALE DEEDS. THE QUESTION TO BE EXAMINED AS TO WHETHER THERE IS JUSTIFICATION FOR PAYING LOWER SUM FOR THE PREMISES FOR WHICH SALE DEED WAS DONE. THERE IS NO EVIDENCE REGARDING FULL CONSI DERATION OF RS.1.05 CRORES HAS BEEN PAID BY ASSESSEE TOWARDS THE PURCHA SE VALUE TO MANSI IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 13 MOTEL PVT. LTD AND IT IS NOT THE CASE OF THE REVENU E THAT MANSI MOTEL PVT. LTD. HAS RECEIVED THE FULL CONSIDERATION AND THE AS SESSEE HAS NOT SHOWN IN THE BOOKS OF ACCOUNT AS PURCHASE VALUE. THERE IS NO EVIDENCE THAT MMPL HAS PAID BALANCE OF RS.77 56 575/- BUT THE S AME HAS NOT BEEN REFLECTED IN THE BOOKS OF ACCOUNT. THE AGREEMENT FO R SALE AGREED INTO BETWEEN ASSESSEE AND MANSI MOTELS PVT. LTD. DATED 0 6-03-2000 FOR TOTAL CONSIDERATION OF RS.1.05 CRORES AND THEREAFTER THE REGISTERED SALE DEED HAS BEEN MADE IN REFERENCE TO 1173 SQ.MT. BECAUSE F OR 1108 SQ. MT. THERE WAS NO POSSESSIONS WITH HOTEL HERO AND AS S UCH FIVE SALE DEEDS HAVE BEEN REGISTERED AT THE VALUE OF RS.22 95 998/- FOR 1173 SQ.MT. AT THE AVERAGE RATE OF RS.1957/- PER SQ.MT. THE ASSESS EE HAS CONTENDED THAT FOR 1108 SQ.MT. THERE WAS NO POSSESSION OF SEC OND FLOOR AND AS SUCH THERE IS NO QUESTION OF MAKING ESTIMATION OF SO-CALLED INVESTMENT. THERE IS NO EVIDENCE THAT THE ASSESSEE HAS PAID CON SIDERATION MORE THAN WHAT IS STATED FOR REGISTERED SALE DEED AT RS. 22 95 998/- FOR 1173 SQ.MT. WE FIND THAT THERE IS NO REASON FOR PRESUMPT ION THAT SINCE THE AGREEMENT FOR SALE WAS ENTERED INTO FOR THE WHOLE P ROPERTY THEREFORE THE SALE DEED IS ALSO REQUIRED TO BE EXECUTED IN RE FERENCE TO THE SAME AREA. THE TRIBUNAL HAS ALSO ACCEPTED THE FACT THAT THE AGREEMENT OF SALE DATED 06-03-2000 HAS NOT BEEN DOUBTED WHEREIN IT WA S SPECIFICALLY STATED THAT THE AGREEMENT FOR SALE WAS WITHOUT POSS ESSION. THE AGREEMENT FOR SALE CANNOT BE READ OVER IN PART I.E. FOR AMOUNT OF RS.1.05 CRORES TO BE BELIEVED BUT THE FACTS THAT WI THOUT POSSESSION CANNOT BE BELIEVED. IT IS FURTHER SEEN THAT IN REFE RENCE TO SECOND FLOOR FOR 1108 SQ.MT. THE DEPARTMENT HAS ATTACHED THE SAID PR OPERTY IN THE NAME OF MANSI MOTELS PVT. LTD. I.E. SELLER TO THE AGREEM ENT FOR SALE DATED 06- 03-2000 FOR TOTAL OF 2281 SQ.MT. COPY OF VARIOUS CO RRESPONDENCES ADDRESSED TO TRO BY THE ASSESSEE AT PAPER BOOK AT PAGE 129 TO 131 REVOCATION ORDER BY TRO FOR GROUND FLOOR AND FIRST FLOOR AT PAGE 132 IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 14 CERTIFICATE FROM ANKLESHWAR NAGAR PANCHAYAT THAT TH E SECOND FLOOR BELONGS TO MANSI MOTEL AT PAGES 133-134 OF ASSESSEES PAPER BOOK LETTER FROM MANSI MOTEL TO TRO AT PAGES 135-136 OF ASSESSEE PAPER BOOK REGARDING ATTACHMENT MADE IS PRODUCED. THE ASS ESSING OFFICER HAS TOTALLY ERRED IN COMING TO THE CONCLUSION THAT FOR REMAINING AREA OF 1108 SQ.MT. HOTEL HERO IS REQUIRED TO PAY RS.82 04 002/- @ RS.7404/- AS AGAINST THE AVERAGE RATE WORKED OUT AT RS.1956/- PER SQ.MT FOR THE AREA OF 1173 SQ.MT. THE NAGAR PANCHAYAT HAS ALSO RA ISED TAX BILL FOR SECOND FLOOR IN THE NAME OF MMPL AND NOT HOTEL H ERO I.E. ASSESSEE THE ASSESSING OFFICER HAS STATED IN HIS ORDER PAGE -6 PARA-3 THAT THE ROOM SITUATED ON SECOND FLOOR HAS BEEN GIVEN TO THE CUSTOMER AND ROOM CHARGES HAS BEEN COLLECTED. IN THIS CONNECTION THE AFORESAID SECOND FLOOR OF 1108 SQ.MT. DOES NOT BELONG TO ASSESSEE AN D AS SUCH ASSESSEE HAS NO CONCERN AS TO WHETHER MANSI MOTELS PVT. LTD. HAS COLLECTED THE ROOM CHARGES OR NOT SINCE THERE WAS NO POSSESSION OF THE SECOND FLOOR AND EVEN NO SALE DEED HAS BEEN EXECUTED. THE ASSESS EE HAS ALSO NOT SHOWN THE SO-CALLED INCOME OF ROOM CHARGES COLLECTE D NOR IT WAS STATED AS UNDISCLOSED INCOME BY THE ASSESSING OFFICER. BUT ASSESSING OFFICER FAILED TO UNDERSTAND HOW THE ASSESSEE CAN COLLECT T HE ROOM CHARGES FOR THE PROPERTY/FLOOR FOR WHICH THE ASSESSEE HAS NO LE GAL OWNERSHIP/POSSESSION. THIS ROOM CHARGES MIGHT HAVE BEEN OFFERED FOR TAXATION BY MANSI MOTELS PVT. LTD. EVEN THE AO HAS NOT MADE ADDITION REGARDING UNDISCLOSED INCOME IF THE SAYING OF THE A SSESSEE IS BELIEVED THAT THE ASSESSEE IS A LEGAL OWNER OF SECOND FLOOR. THE ASSESSEE HAS NOT BEEN ALLOWED TO CROSS-EXAMINE THE SO-CALLED STATEME NT OF ABDUL RASID GULAM RASHUL DIRECTOR OF MANSI MOTELS PVT. LTD. AS REFERRED BY AO IN HIS ORDER PAGE 7 PARAA-4 AND AS SUCH THE AO HAS N O LIBERTY TO MAKE RELIANCE UPON THE SO-CALLED STATEMENT OF DIRECTOR O F MANSI MOTELS PVT. AND ASSESSEE FAILED TO UNDERSTAND AS TO WHY THE DEP ARTMENT HAS MADE IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 15 THE ATTACHMENT OF THE SECOND FLOOR IF THE STATEMENT OF THE DIRECTOR IS PRESUMED TO BE CORRECT ONE. 11. ONE MORE FACT WE WANT TO HIGHLIGHT IS THAT THE AO HAS NOTED A FACT IN THE BLOCK ASSESSMENT ORDER THAT THERE IS AN AGRE EMENT TO SALE DATED 06-03-200 FOR PURCHASE OF PREMISES OF BUILD-UP AREA ABOUT 2281 SQ.MT. FOR A TOTAL CONSIDERATION OF RS.1.05 CROES THE ASSE SSEE CONTENDED THAT THIS CONSIDERATION IS FOR TAKING OVER THE ENTIRE PR EMISES TOGETHER WITH THE FURNITURE AND FIXTURES AND ALSO RUNNING THE BUSINES S OF HOTEL CARRIED OUT BY M/S. MANSI MOTELS PVT. LTD. IN THE NAME OF M/S. HOTEL GUJARAT INTERNATIONAL AT ANKLESHWAR. ACCEDING TO THE ASSESS EE THIS FACT IS NOT DISPUTED ABOUT THE EXISTENCE OF THE AGREEMENT AS TH E SAME IS PART OF SEIZED MATERIAL AND THERE IS NOTHING UNDISCLOSED IN THE SAID AGREEMENT. ACCORDING TO ASSESSEE THIS AGREEMENT IS AN AGREEME NT WHICH IS EXECUTORY AND NOT EXECUTED. FOR THIS WE FIND T HE FACT THAT FROM VARIOUS TERMS AND CONDITIONS OF THE SAID AGREEMENT BOTH THE PARTIES WERE REQUIRED TO PERFORM THEIR RESPECTIVE OBLIGATIO NS IN FUTURE AND THEREFORE THE INTERPRETATION THAT THE ASSESSEE HERE IN HAS ALREADY PERFORMED HIS PART OF THE CONTRACT IS NOT EMERGING OUT OF THE SAID AGREEMENT BUT IS ACTUALLY CONTRARY TO THE FACTS FOU ND AS A RESULT OF SEARCH INCLUDING THE FACTS THAT A PART OF THE PROPERTIES A GREED TO BE PURCHASED BY THE SAID AGREEMENT TO SALE IS UNDER LIEN OF THE BANK AND IT IS NOT POSSIBLE TO TRANSFER THE SAID PREMISES AND THEREFOR E THE SAID SELLER HAS NOT EXECUTED HIS PART OF THE CONTRACT NOR IS HE REA DY AND WILLING TO PERFORM HIS PART OF THE CONTRACT. FURTHER CONDITIO N NO.4 OF THE SAID AGREEMENT READS AS UNDER:- 4. THE PERSON WHO HAD AGREED TO SELL AND PERSON WH O HAD AGREED TO PURCHASE HAVE ALSO ARRIVED AT AN UNDERSTANDING T HAT IN THE CIRCUMSTANCES WHERE THE CONSTRUCTION OF THE 2 ND AND 3 RD FLOOR IS COMPLETED BUT THE SALE DEED IS NOT POSSIBLE TO BE E XECUTED BY THE IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 16 SELLER ON ACCOUNT OF MONIES NOT REPAID TO THE BANK L THEN IN THAT CASE IN THE CIRCUMSTANCES OF THE PURCHASER NEEDING THE SAID PREMISES FOR ITS BUSINESS THEN IN THAT CASE THE SEL LER WILL ALLOW THE USE OF THE SAID CONSTRUCTED PREMISES WITHOUT ANY CO MPENSATION OR CHARGES AND WITHOUT ANY DISTURBANCES WHATSOEVER. WE FIND THAT AT SEVERAL PLACES THERE IS A MENTION O F CHARGE ON THE SAID PROPERTY BY M/S. ANAKLESHWAR NAGRIC BANK AND AN OUT STANDING OF MORE THAN RS.35 LAKH IS OVERDUE FROM THE SELLER AND IN S UCH A SITUATION IT IS NOT POSSIBLE EVEN TODAY TO EXECUTE A SALE DEED OF THE SAID PROPERTY IN THE NAME OF THE PURCHASER. IN VIEW OF THE ABOVE FACTS A ND CIRCUMSTANCES OF THE CASE WE ARE OF THE VIEW THAT ADDITION COULD BE MADE ONLY ON THE BASIS OF UNDISCLOSED INCOME FOUND AS A RESULT OF EV IDENCE RECOVERED DURING THE CURSE OF SEARCH AND IN THE ABSENCE OF SU CH MATERIAL OR EVIDENCE ASSESSING OFFICER IS NOT COMPETENT TO MAKE ANY ADDITION AS IN THE PRESENT CASE THE FACTS ARE. WE FIND THAT IT IS THE UNIFORM VIEW OF THE COURTS AND ALSO HELD BY HONBLE APEX COURT AS REPOR TED IN THE CASE OF K.P.VARGHESE V ITO (1981) 131 ITR 597 (SC) THAT THE BURDEN OF PROVING ACTUAL CONSIDERATION IN SUCH TRANSACTION IS THAT OF THE REVENUE AND CONSIDERING THE ENTIRE GAMUT OF THE CASE WE ARE OF THE VIEW THAT REVENUE HAS FAILED TO DISCHARGE ITS DUTY AND AS HEL D BY CIT(A) INSTEAD MADE UP A CASE ON SURMISE AND CONJECTURE WHICH CAN NOT BE ALLOWED. ACCORDINGLY THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED. FURTHER THIS BEING A BLOCK ASSESSMENT PROCEEDINGS THERE IS NO SEARCH MATERIAL WHICH INDICATE THAT THE HAS RECEIVED OVER AND ABOVE WHAT IS RECORDED IN SALE DEED AT RS.27 43 425/- WHICH IS A REAL PRICE WHICH APPEARS TO HAVE BEEN PAID BY THE ASSESSEE. ACCORDIN GLY THE CIT(A) HAS WRONGLY UPHELD THE ADDITION U/S.69B OF THE ACT BEI NG DIFFERENCE IN THE TRANSACTION PRICE AND REAL PAID PRICE. ACCORDINGLY THIS COMMON ISSUE OF ASSESSEES APPEAL IS ALLOWED AND THAT OF REVENUE IS DISMISSED. IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 17 12. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IN IT(SS)A NO.45/AHD/2008 IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE ADDITION UNDISCLOSED INCOME MADE BY ASSESSING OFFIC ER ON ACCOUNT OF REGISTRATION OF EXPENDITURE AS UNEXPLAINED EXPENDIT URE U/S.69C OF THE ACT AMOUNTING TO RS.1.50 LAKH. 13. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT ASSESSING OFFICER NOTED THAT AMOUNT OF RS.1.50 LAKH WAS INCUR RED FOR PURCHASE OF STAMP PAPERS FOR STAMP DUTY OF RS.1.26 LAKH IN CASH AND REGISTRATION FEE OF RS.7 675/- AND OTHER EXPENSES ON 28.03.2000. ON QUERY FROM ASSESSING OFFICER THE ASSESSEE EXPLAINED TO HAVE I NCURRED THESE EXPENDITURE OUT OF WITHDRAWAL MADE FROM BANK BY CHE QUES ON 29-03- 2000 AMOUNTING TO RS.1.50 LAKH. THE AO ADDED THIS A S UNEXPLAINED EXPENDITURE BY STATING THAT THERE IS NO NEXUS BETWE EN WITHDRAWAL AND THE EXPENDITURE. AGGRIEVED ASSESSEE PREFERRED APPE AL BEFORE CIT(A). THE CIT(A) ALSO CONFIRMED ACTION OF ASSESSING OFFIC ER BY GIVING FOLLOWING FINDINGS IN PARA-5.3 OF HIS APPELLATE ORDER:- 5.3 I HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE APPELLANT AND THE ASSESSMENT ORDER. I AM IN AGREEMENT WITH TH E ASSESSING OFFICER THAT THE SAD EXPENDITURE HAVING BEEN ADMITT ED TO BE INCURRED ON 28.3.2000 IT COULD NOT HAVE BEEN INCURR ED FROM THE WITHDRAWAL OF RS.150 000 ON 29.3.2000. THEREFORE TH E SAID AMOUNT OF RS.1 50 000 HAS RIGHTLY BEEN ADDED BY ASSESSING OFFICER UNDER SECTION 69C. THE GROUND NO.3 IS DISMISSED. 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE FAC TS NARRATED ABOVE THAT AMOUNT EXPANDED IS EXPLAINED BY WAY OF WITHDRA WAL MADE BY ASSESSEE BY CHEQUES ON 29-03-2000 WHEREAS THE EXPE NDITURE WAS INCURRED FOR PURCHASE OF STAMP PAPERS TO THE EXTENT OF RS.1 33 675/- ON 28-03-2000. WE ARE FAILED TO UNDERSTAND HOW THE ASS ESSEE HAS IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 18 EXPANDED THIS AMOUNT ON 28-03-2000 WHEN HE HAS MADE WITHDRAWAL ON 29-03-2000. ACCORDINGLY WE TREAT THE EXPENSES OF R S.1 33 675/- AS UNEXPLAINED AND DIRECT THE ASSESSING OFFICER TO RES TRICT THE ADDITION TO THE EXTENT OF RS.1 33 675/- AS AGAINST THE ADDITION MADE ON 1.50 LAKH. ACCORDINGLY THIS ISSUE OF THE ASSESSEES APPEAL IS PARTLY ALLOWED. 15. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IN IT(SS)A NO.45/AHD/2008 IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING TH E LEVY OF SURCHARGE U/S.133 OF THE ACT. FOR THIS ASSESSEE HAS RAISED THE FOLLOWING GROUND NO.3 :- 3. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING ACTION OF THE AO IN LEVYING SURCHARGE AT 17% ON TAX DETERM INED U/S.113 DESPITE THE FACT THAT THE SEARCH WAS CONDUCTED PRIO R TO THE DATE OF AMENDMENT. 16. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE AS WELL AS LD. DR FAIRLY CONCEDED THAT THIS ISSUE IS SQUARELY COVERED IN FAV OUR OF REVENUE AND AGAINST THE ASSESSEE BY THE DECISION OF HONBLE APE X COURT IN THE CASE OF CIT V.SURESH N GUPTA (2008) 297 ITR 322 (SC). IN VIEW OF THE ABOVE POSITION WE DISMISS THIS ISSUE OF THE ASSESSEES A PPEAL. THIS ISSUE OF THE ASSESSEES APPEAL IS DISMISSED. NOW COMING TO ASSESSEES APPEALS IN ITA NO.1185-118 6/AHD/2008. 17. THE FIRST COMMON ISSUE IN BOTH THE APPEAL OF AS SESSEE IS AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE REOPENING OF ASSESSMENTS BY INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. FOR THIS ASSESSEE HAS RAISED THE COMMON GROUNDS IN BOTH THE YEARS AS THE ISSUE SAME AND FACTS ARE IDENTICAL HENCE WE ARE REPRODUCING THE GROUNDS RAISED BY ASSESSEE FOR ASSESSMENT YEAR 2000-01 AS UNDER:- IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 19 ITA NO.1185/AHD/2008. 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-VI BARODA [THE CIT(A)] ERRED IN FACT AND IN LAW IN C ONFIRMING ACTION OF THE DEPUTY COMMISSIONER OF INCOME TAX BHARUCH C IRCLE [THE AO'] IN REOPENING THE ASSESSMENT BY INVOKING THE PR OVISIONS OF SECTION 147 OF THE INCOME TAX ACT 1961 [THE ACT] AND COMPLETING THE ASSESSMENT COMMENCED UNDER INVALID EXERCISE OF POWERS U/S.147 OF THE ACT. 2. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN C ONFIRMING THE ACTION OF THE AO IN REOPENING THE ASSESSMENT DESPIT E THE FACT THAT THE ASSESSMENT YEAR INCONSIDERATION IS COVERED UNDE R THE BLOCK PERIOD FOR WHICH A VALID ASSESSMENT WAS FRAMED. 3. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN C ONFIRMING ACTION OF THE AO IN REOPENING THE ASSESSMENT ON THE ISSUE WHICH WAS DULY CONSIDERED AT THE TIME OF BLOCK ASSESSMENT. IT MAY BE MENTIONED THAT THE REOPENING IS DONE ONLY TO ADD THE AMOUNT OF CAPITAL INTRODUCED BY THE PARTNERS. THE CIT(A) HAD DELETED THE ADDITION ON THE GROUND THAT THE SAID ISSUE CANNOT B E CONSIDERED IN BLOCK PERIOD. THE AO HAS REOPENED THE ASSESSMENT DE SPITE THE FACT THAT THERE WAS NO INSTRUCTION FROM THE CIT(A) TO REOPEN THE CASE AND TO MAKE THE ADDITION IN REGULAR ASSESSMENT . THE AO HAS ERRONEOUSLY INTERPRETED THE OBSERVATIONS OF THE CIT (A) FOR THE PURPOSE OF REOPENING. 18. THE BRIEF FACTS LEADING TO THE ABOVE COMMON ISS UE ARE THAT A SEARCH U/S.132 OF THE ACT WAS CARRIED OUT ON THE HO TEL HERO ANKLESHWAR ON 20-10-2000 AND BLOCK ASSESSMENT IN PURSUANCE TO SEARCH ACTION WAS COMPLETED FOR THE BLOCK PERIOD 01-04-1992 TO 20-10- 2000. THE ASSESSING OFFICER WHILE FRAMING THE BLOCK ASSESSMEN T MADE ADDITION OF CASH CREDITS AS UNDISCLOSED INCOME U/S.68 OF THE AC T FOR THE ASSESSMENT YEAR 2000-01 AT RS.12.35 LAKH AND FOR 2001-02 AT RS .13 LAKH AND THE STATUS OF ASSESSEE WAS TAKEN AS AOP. FINALLY THE MATTER WAS CARRIED TO CIT(A) WHO DELETED THE ADDITION OF CASH CREDITS VIDE ORDER NO.CAB/III- 226/2002-03 DATE 244/03/2004 ON ACCOUNT OF CASH CRE DIT OF RS.25.35 LAKH WHICH INCLUDES CASH CREDITS OF RS.12.35 LAKH I NTRODUCED DURING THE IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 20 ASSESSMENT YEAR 2000-01 IN THE BLOCK ASSESSMENT. HO WEVER CIT(A) FURTHER OBSERVED THAT ON MERITS OF THE CASE THE ASS ESSEE HAS NOT FULLY DISCHARGE ITS ONUS AS MUCH AS THAT THE IDENTITY OF THE PERSONS WERE ESTABLISHED AND CONFIRMATIONS FROM THE PERSONS MAIN LY PARTNERS WAS FURNISHED MOREOVER CREDITWORTHINESS OF THESE PART NERS AND THE IMMEDIATE SOURCE OF MONEY IN ORDER TO CONTRIBUTE TH E CAPITAL AND ISSUE MAY BE EXAMINED IN THE REGULAR ASSESSMENT PROCEEDIN GS. IN THIS CASE THE ASSESSEE-FIRM HAS NOT FILED ITS RETURN OF INCOM E FOR ASSESSMENT YEAR 2000-01 AS DISCUSSED IN PARA-19 OF THE ASSESSMENT O RDER DATED 31-10- 2002 THE ASSESSEE FOR THE BLOCK PERIOD ENDING ON 2 0-10-2000 AN AMOUNT OF RS.12.35 LAKH HAS BEEN DEPOSITED IN THE A CCOUNT OF THE ASSESSEE IN ANKLESHWAR NAGRIK SAHKARI BANK LTD. AS CAPITAL INTRODUCED BY VARIOUS PARTNERS AS UNDER:- DATE NAME OF THE PARTNER AMOUNT 13/03/2000 ABDUL KAIYUM G RASUL RS. 1 20 000/- 13/03/2000 -DO- RS 30 000/- 29/03/2000 -DO- RS. 2 00 000/- 13/03/2000 HAJI SAIDULLA G RASUL RS. 2 00 000/- 29/03/2000 -DO- RS. 3 20 000/- 29/03/2000 -DO- RS. 15 000/- 13/03/2000 ABDUL SALAM H SULEMAN RS. 1 20 000/- 29/03/2000 -DO- RS. 30 000/- -DO- RS. 2 00 000/- RS.12 35 000/- CONSIDERING THESE FACTS THE ASSESSING OFFICER NOTE D THAT ACTION IN THE REGULAR ASSESSMENT PROCEEDINGS IS TO BE INITIATED A ND ACCORDINGLY ISSUED NOTICE U/S.148 OF THE ACT THAT THE INCOME CHARGEABL E TO TAX TO THE TUNE OF RS.12.35 ESCAPED FOR ASSESSMENT YEAR 2000-01. SIMIL AR ARE THE REASONS IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 21 IN ASSESSMENT YEAR 2001-02 EXCEPT THE AMOUNT AND NA ME OF CREDITORS. THE AO MADE ADDITION OF THESE CASH CREDITS AS UNEXP LAINED EVEN THOUGH ALL THE PARTNERS HAVE INTRODUCED CAPITAL IN THE FIR M AFTER OBTAINING UNSECURED LOANS FROM RELATIVES. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A) AND CIT(A) SUSTAINED THE ADDITION IN RESPECT OF ONLY ONE PARTNER ABDUL K.G. RASUL AMOUNTING TO RS.3.50 LAKH. AGGRIEVED NOW ASSESSEE CAME IN SECOND APPEAL BEFORE US. 19. BEFORE US LD. COUNSEL FOR THE ASSESSEE CONTEN DED THAT ASSESSING OFFICER HAS NOT GIVEN HIS OWN OPINION BUT ACTED ON THE BASIS OF FINDING GIVEN BY THE CIT(A) IN HIS APPELLATE ORDER DATED 24 -03-2004 FOR THE BLOCK PERIOD. LD. COUNSEL STATED THAT CIT(A) HELD THAT IT IS A MATTER WHICH COULD HAVE BEEN CONSIDERED IN A REGULAR ASSESSMENT PROCEE DINGS AND ORDER OF CIT(A) IS NOT SPEAKING ORDER IN BLOCK ASSESSMENT AN D THAT TOO THE WORDS USED IS COULD HAVE BEEN WHICH IS PAST AND IN FUTU RE. FURTHER IT WAS HELD THAT IT COULD HAVE BEEN IN A REGULAR ASSESSMENT A S REASONS RECORDED FOR BOTH THE YEARS IN THE REASONS RECORDED THE WOR D USED IS THEREFORE WHICH ITSELF SHOWS THAT THE ASSESSING OFFICER HAS N OT APPLIED HIS INDEPENDENT MIND BEFORE ISSUING NOTICE U/S.147 OF T HE ACT. FURTHER IT IS SAID THAT SECTION 2(4) THE REGULAR ASSESSMENT IS L IMITED TO 144 OR 143(3) AND CIT(A) RIGHTLY OPINED THAT ASSESSING OFFICER C OULD HAVE BEEN CONSIDERED IT IN A REGULAR ASSESSMENT BUT THE AO H AS MISINTERPRETED THE SAID DIRECTION AND ERRED IN ISSUING NOTICE U/S.147 OF THE ACT. IN THIS CONNECTION HE MADE THE CONTENTION THAT THE REOPENI NG CANNOT BE MADE ON THE BASIS OF OPINION OF APPELLATE AUTHORITY. 20. ON THE OTHER HAND LD. SR. DR ARGUED THAT THE ASSESSING OFFICER HAS ISSUED NOTICE U/S.148 IN LIEU OF DIRECTIONS CON TAINED IN THE ORDER OF CIT(A) VIDE APPEAL NO.CAB/III-226/2002-03 DATED 24- 03-2004 WHEREIN IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 22 THE CIT(A) HAS CATEGORICALLY STATED THAT ON MERITS OF THE CASE THE ASSESSEE HAS NOT FULLY DISCHARGED ITS ONUS AS MUCH AS THE IDENTITY OF THE PERSONS WERE ESTABLISHED AND CONFIRMATION OF THESE PERSONS WERE FURNISHED BUT THE CREDITWORTHINESS OF THESE PERSONS AND THE SOURCE OF CAPITAL CONTRIBUTED HAS NOT BEEN PROVED. ACCORDING TO CIT(A) THIS ISSUE IS TO BE EXAMINED IN THE REGULAR ASSESSMENT PROCEED INGS. ACCORDINGLY LD.SR-DR STATED THAT THE REOPENING U/S.148 IS WITHI N THE PURVIEW OF LAW AND EVEN THE ASSESSING OFFICER HAS RECORDED REASONS FOR ISSUANCE OF NOTICE U/S.148 AS NOTED ABOVE. ACCORDINGLY HE STAT ED THAT THE REOPENING IS AS PER THE PROVISIONS OF LAW. 21. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE ORD ER OF CIT(A) IN APPEAL NO. CAB/III-226/2002-03 DATED 24-03-2004 THA T CIT(A) HAS SPECIFICALLY OBSERVED HOWEVER IT WAS FURTHER OBSERVED THAT ON MERITS OF THE CASE THE APPELLANT HAS NOT FULLY DISCHARGE ITS ONUS AS MUCH AS THAT THE IDENTITY OF THE PERSONS WERE ESTABLISHED AND CO NFIRMATIONS FROM THE PERSONS MAINLY PARTNERS WAS FURNISHED MOREOVER CR EDITWORTHINESS OF THESE PARTNERS AND THE IMMEDIATE SOURCE OF MONEY IN ORDER TO CONTRIBUTE THE CAPITAL. THIS ISSUE MAY BE EXAMINED IN THE REGU LAR ASSESSMENT PROCEEDINGS. WE FIND FROM THE ABOVE OBSERVATIONS THAT IT IS A MATTER WHICH COULD HAVE BEEN CONSIDERED IN REGULAR ASSESSM ENT PROCEEDINGS. WE FIND FROM THE ABOVE REASONS RECORDED WHEREIN TH E ASSESSING OFFICER USED THE WORDS THEREFORE IN THE LIGHT OF THE OBSE RVATION OF CIT(A) WHICH ITSELF PROVES THAT THE AO HAS NOT APPLIED HIS INDEP ENDENT MIND BEFORE ISSUING NOTICE U/S.147 OF THE ACT. IN SIMILAR CIRCU MSTANCES THE TRIBUNAL NAGPUR BENCH IN THE CASE OF M.V. TRADERS V. ACIT (2010) 41 DTR 441 (NAG) HELD THAT RE-ASSESSMENT PROCEEDINGS MUST BE B ASED ON THE BELIEF OF THE ASSESSING OFFICER AND NOT THE BELI EF OF THE APPELLATE IT(SS)A NO.45-46/AHD/08 & ITA NO.1185-86/AHD/08 B.P 1/4/90 TO 20/10/00 & A.Y 00-01 & 01-02 M/S. HOTEL HERO V. DCIT BHARUCH PAGE 23 AUTHORITY I.E. CIT(A) OR THE ITAT. HERE IN THE PR ESENT CASE EVEN THERE IS NO DIRECTION BY CIT(A) WHICH CAN BE CONSIDERED TO B E DIRECTION U/S 150(1) OF THE ACT.. ACCORDINGLY WE ARE OF THE VIEW THAT THE REOPENING IS BAD IN LAW AND ACCORDINGLY QUASHED. 22. COMING TO THE MERITS OF THE CASE AS WE HAVE AL READY QUASHED THE RE-ASSESSMENT PROCEEDINGS WE NEED NOT TO GO INTO T HE MERITS OF THE CASE. 23. IN THE RESULT REVENUES APPEAL IN IT(SS)A NO.46/AH D/2008 IS DISMISSED ASSESSEES APPEALS IN IT(SS)A NO.45/AHD/2008 ITA NO.1185/AHD/2008 & ITA 1186/AHD/2008 ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 16/12/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD DATED : 16/12/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-VI BADORA 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD