The Jt.CIT.,(OSD)Central Circle-2(3),, Ahmedabad v. Dr.Keyur Parikh, Ahmedabad

ITSSA 610/AHD/2011 | 2008-2009
Pronouncement Date: 18-10-2013 | Result: Dismissed

Appeal Details

RSA Number 61020516 RSA 2011
Assessee PAN AFSPP5662G
Bench Ahmedabad
Appeal Number ITSSA 610/AHD/2011
Duration Of Justice 1 year(s) 10 month(s) 24 day(s)
Appellant The Jt.CIT.,(OSD)Central Circle-2(3),, Ahmedabad
Respondent Dr.Keyur Parikh, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 18-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 18-10-2013
Date Of Final Hearing 20-08-2013
Next Hearing Date 20-08-2013
Assessment Year 2008-2009
Appeal Filed On 24-11-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER IT(SS)A NO. 604/AHD/2011 A.YS: 2008-09 DR. KEYUR PARIKH 381-A 17 TH LANE SATYAGRAH CHHAVNI JODHPUR TEKRA AHMEDABAD. PAN: AFSPP 5662G VS THE ACIT CENTRAL CIRCLE-2(3) AHMEDABAD. (APPELLANT) (RESPONDENT) IT(SS)A NO. 610/AHD/2011 A.YS: 2008-09 THE JCIT CENTRAL CIRCLE- 2(3) AHMEDABAD. VS DR. KEYUR PARIKH 381-A 17 TH LANE SATYAGRAH CHHAVNI JODHPUR TEKRA AHMEDABAD. PAN: AFSPP 5662G (APPELLANT) (RESPONDENT) IT(SS)A NO. 601/AHD/2011 A.YS: 2008-09 THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. VS DR. ANISH HARJIVANDAS CHANDARANA 21 SHYAMVIHAR BUNGLOWS THALTEJ-SHILAJ ROAD THALTEJ AHMEDABAD. PAN: ACOPC 3862E (APPELLANT) (RESPONDENT) IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 2 - IT(SS)A NO. 674/AHD/2011 A.YS: 2008-09 DR. ANISH HARJIVANDAS CHANDARANA 21 SHYAMVIHAR BUNGLOWS THALTEJ-SHILAJ ROAD THALTEJ AHMEDABAD. PAN: ACOPC 3862E. VS THE ACIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. (APPELLANT) (RESPONDENT) IT(SS)A NO. 603/AHD/2011 A.YS: 2008-09 THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. VS DR. MILAN CHINUBHAI CHAG 15 HERITAGE RESIDENCY THALTEJ AHMEDABAD. PAN: ACSPM 2531Q (APPELLANT) (RESPONDENT) IT(SS)A NO.639/AHD/2011 A.YS: 2008-09 DR. MILAN CHINUBHAI CHAG 15 HERITAGE RESIDENCY THALTEJ AHMEDABAD. PAN: ACSPM 2531Q. VS THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. (APPELLANT) (RESPONDENT) IT(SS)A NO. 612/AHD/2011 A.YS: 2008-09 THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. VS DR. PARTHASARATHY SESHAN IYENGER BALAJI CLINIC 2 ND FLOOR VRANDAVAN ENCLAVE 132FT. RING ROAD NAVRANGPURA AHMEDABAD. PAN: AABPI4021L (APPELLANT) (RESPONDENT) IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 3 - CO NO. 29/AHD/2012 A.YS: 2008-09 DR. PARTHASARATHY SESHAN IYENGER BALAJI CLINIC 2 ND FLOOR VRANDAVAN ENCLAVE 132FT. RING ROAD NAVRANGPURA AHMEDABAD. PAN: AABPI4021L. VS THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. (APPELLANT) (RESPONDENT) IT(SS)A NO. 602/AHD/2011 A.YS: 2008-09 THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. VS DR. URMIL G. SHAH B/21 ARMAN BUNGLOW THALTEJ-SHILAJ ROAD THALTEJ AHMEDABAD. PAN: AHLPS 1446E (APPELLANT) (RESPONDENT) IT(SS)A NO. 640/AHD/2011 A.YS: 2008-09 DR. URMIL G. SHAH B/21 ARMAN BUNGLOW THALTEJ-SHILAJ ROAD THALTEJ AHMEDABAD. PAN: AHLPS 1446E. VS THE ACIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. (APPELLANT) (RESPONDENT) IT(SS)A NO. 634/AHD/2011 A.YS: 2008-09 THE JCIT CENTRAL CIRCLE- 2(3) AHMEDABAD. VS DR. DHIREN S. SHAH D-204 INDRAPRASTH TOWER NR. DRIVE IN CINEMA MEMNAGAR AHMEDABAD. PAN: AOXPS 4366N (APPELLANT) (RESPONDENT) IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 4 - IT(SS)A NO. 652/AHD/2011 A.YS: 2008-09 DR. DHIREN S. SHAH D-204 INDRAPRASTH TOWER NR. DRIVE IN CINEMA MEMNAGAR AHMEDABAD. PAN: AOXPS 4366N VS THE ACIT CENTRAL CIRCLE-2(3) AHMEDABAD. (APPELLANT) (RESPONDENT) IT(SS)A NO. 611/AHD/2011 A.YS: 2008-09 THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. VS DR. GUNVANT TULSIBHAI PATEL 1 ST FLOOR SANJIVANI COMPLEX NAVA VADAJ ROAD AHMEDABAD. PAN: ABCPP5040Q (APPELLANT) (RESPONDENT) CO NO. 28/AHD/2012 A.YS: 2008-09 DR. GUNVANT TULSIBHAI PATEL 1 ST FLOOR SANJIVANI COMPLEX NAVA VADAJ ROAD AHMEDABAD. PAN: ABCPP5040Q. VS THE JCIT (OSD) CENTRAL CIRCLE-2(3) AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI O.P.VAISHNAV CIT-DR ASSESSEE(S) BY : S/SHRI S.N. SOPARKAR KIRTIBHAI SONI DHIREN SHAH. / DATE OF HEARING : 20/08/2013 / DATE OF PRONOUNCEMENT: 18 /10/2013 IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 5 - / O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THESE ARE CROSS APPEALS RESPECTIVELY FILED BY THE ASSESSEE AND THE REVENUE DEPARTMENT ARISING FROM A CONSOLIDATED ORD ER OF EIGHT DOCTORS PASSED BY LD. CIT(A)-III AHMEDABAD DATED 27.9.201 1. FOR THE SAKE OF CONVENIENCE THESE APPEALS ARE CONSOLIDATED AND HER EBY DECIDED BY THIS COMMON ORDER. A. IT(SS) A NO. 610/AHD/2011 A.Y. 2008-09 (REVENUES APPEAL) (DR. KEYUR PARIKH) 2. FIRST GROUND OF THE REVENUE IS REPRODUCED BELOW: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND CI RCUMSTANCES OF THE CASE BY PROVIDING RELIEF OF RS.4 22 50 000/- TO THE ASSESSEE OUT OF AN ADDITION OF RS.5 52 50 000/- ON THE ISSUE OF UNACCOUNTED INVESTMENT FOR THE PURCHASE OF LAND BY HOLDING THAT THE SAID AMOUNT SHOULD BE TAXED IN THE HANDS OF THE COMPANY M/S. CCCPL. FACTS / ASSESSMENT ORDER : 3. FACTS IN BRIEF AS EMERGED FROM THE ASSESSMENT OR DER PASSED U/S 153A R.W.S. 143(3) DATED 28.12.2012 WERE THAT A SEARCH U/S 132 WAS CARRIED OUT ON THE HEART CARE GROUP ON 21.8.2008. THEREUPON A NOTICE U/S 153A WAS ISSUED AND IN COMPLIANCE A RETURN WAS FILED ON 27.3.2009 DECLARING AN INCOME OF RS.2 04 96 280/-. THE AO HAS NOTED THE BRIEF HISTORY OF THE CASE ACCORDING TO WHICH A GROUP OF CARDIOLOGISTS AND CARDIAC SURGEONS HAVE FORMED A COMPANY NAMELY M/S. CARE CARDIOVASCULAR CONSULTANTS PVT. LTD. (IN SHORT CCCP L) TO PROVIDE TREATMENT PERTAINING TO HEART AILMENT. FOR THAT PUR POSE A LAND WAS ACQUIRED ADMEASURING 13 981 SQ. MT. LOCATED AT PLOT NO.67/1 VILLAGE IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 6 - SOLA THALTEJ AHMEDABAD. ACCORDING TO AO THE TOTAL COST OF THE PROJECT WAS ABOUT RS. 50 CRORES TO RS. 52 CRORES. A T THE TIME OF SEARCH A DOCUMENT WAS SEIZED (MARKED AS ANNEXURE A-2 ) I.E. A REGISTERED DEED FOR RS.2.50 CRORE FOR PURCHASE OF LAND DATED 15.10. 2007 AND THE DETAILS OF PAYMENTS WERE AS UNDER: RS. 29 28 756/- CHEQUE NO.42007 DATED 15.10.2007 RS.24 79 891/- CHEQUE NO.42008 DATED 15.10.2007 RS. 35 83 840/- CHEQUE NO.42010 DATED 15.10.2007 RS. 39 56 842/- CHEQUE NO.42011 DATED 15.10.2007 RS. 34 18 342/- CHEQUE NO.42012 DATED 15.10.2007 RS. 35 96 648/- CHEQUE NO.42013 DATED 15.10.2007 RS. 50 35 681/- CHEQUE NO.42014 DATED 15.10.2007 RS. 2 50 00 000/- 4. THE ALLEGATION OF THE AO WAS THAT IN ADDITION TO THE DOCUMENTED AMOUNT OF RS. 2.50 CRORE THE ASSESSEE HAS ALSO MADE CASH PAYMENT TOWARDS PURCHASE OF LAND. THE BASIS OF THE SAID ALL EGATION WAS STATED TO BE A HARD DISK SEIZED FROM THE OFFICE COMPUTER OF THE ASSESSEE. T HE REVENUE DEPARTMENT HAD TAKEN THE PRINT-OUTS FROM TH E SAID COMPUTER. THOSE PRINT-OUTS WERE ADMITTEDLY IN RESPECT OF THE PROJECT OF THE HOSPITAL. IT WAS ALSO NOT IN DISPUTE THAT CCPL PURCHASED THE LAND FOR THE PURPOSE OF CONSTRUCTION OF THE HOSPITAL. THE MAIN ALLEGATIO N OF THE AO WAS THAT THE ASSESSEE HAD PAID RS.15.07 CRORE FOR PURCHASE O F LAND INSTEAD OF RS.2.50 CRORE. THIS ALLEGATION WAS STATED TO BE BAS ED UPON THE NOTINGS IN IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 7 - THE HARD DISK OF THE COMPUTER WHICH HAD ALLEGEDLY R EVEALED THAT 85% OF THE COST OF THE LAND WAS PAID IN CASH. 4.1 IT HAS ALSO BEEN NOTED BY THE AO THAT THERE WER E DIFFERENCES AMONG THE DOCTORS HENCE FEW CARDIAC SURGEONS HAVE LEFT TH E PROJECT NAMES GIVEN ARE VIZ DR. ANIL JAIN DR. S.N. MALLYA DR. NAMAN S HASTRI DR. VISHAL GUPTA DR. BHARAT TRIVEDI AND DR. CHIRAG MEHTA. THE IR STATEMENTS U/S 131 WERE RECORDED. ACCORDING TO A.O. THEY HAVE ADMI TTED THE PAYMENT OF CASH IN THE RATIO OF THEIR SHARE HOLDING FOR THE PU RCHASE OF LAND. IT HAS ALSO BEEN NOTED BY THE AO IN THE ASSESSMENT ORDER THAT T HOSE DOCTORS HAVE DISCLOSED THE AMOUNT AS UNACCOUNTED INCOME IN THEIR RESPECTIVE RETURNS U/S 153A /153C OF IT ACT AND PAID THE TAXES ALSO. C OPIES OF THEIR STATEMENTS HAVE ALSO BEEN PROVIDED TO THE ASSESSEE. 4.2 THE DOCUMENTS ON THE BASIS OF WHICH THE AO HAD ARRIVED AT THE CONCLUSION THAT THERE WAS A CASH COMPONENT FOR PURC HASE OF LAND WAS AS UNDER: (A) DOCUMENT PAGE NO.1 TO 1C PAGE NO. 2 & 2A FILE N AME MOU FOR HOSPITAL. DOC.- 4.3 IT WAS A MOU BETWEEN THE DOCTORS TO START A HOSPITA L WITH A PROJECT COST OF RS.45 CRORES. THE SAID DOCUMENT WAS SIGNED BY 18 DOCTORS. THE AO HAD NOTED THE NAMES OF THOSE DOCTORS. THERE WAS A PROVISION FOR PROMOTERS EQUITY OF RS.15 CRORES CONTRIBUTION OF C ARDIOLOGISTS RS.6 CRORES RS.2 CRORES FROM DR. ASHIT JAIN AND RS.1 CR ORE FROM FRIENDS. SINCE THE AO HAD PROPOSED THE ADDITION ON THE BASIS OF TH E SAID DOCUMENT IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 8 - THEREFORE THAT DOCUMENT WAS CONFRONTED TO THE ASSES SEE WITH A SHOW CAUSE NOTICE AS TO WHY THE CASH COMPONENT OF THE LA ND SHOULD NOT BE TAXED IN THE HANDS OF THE ASSESSEE. THE ASSESSEES REPLY WAS REPRODUCED BY THE AO THE CONTENTS WERE AS UNDER: NO WHERE IT IS INDICATED THAT PAYMENT FOR THE PURC HASE OF LAND BY CCCPL IS CONTRIBUTED BY DOCTORS IN CASH AND CHEQUES. THE DOC UMENT IS NOT SIGNED BY ANY PERSON AND NO DATE OF EXECUTION IS MENTIONED. T HIS IS DRAFT COPY PREPARED BEFORE FINALIZATION OF DOCUMENT DATE. HOWEVER IF W E READ THE DOCUMENT THE PROJECT COST IS RS.45 00 00 000 AND SHARE CAPITAL O F RS.25 00 00 000 AND IF WE CO-RELATE THE SAME APPENDIX-1 OF PAGE 83 THE ONE C AN SEE THAT IT IS IDENTICAL WITH THE AMOUNT TO BE GIVEN IN TOTAL COLUMN I.E. RS .24.60 CR. THEREFORE WHILE CONCEIVING THE PROJECT IT WAS DECIDED THAT EQUITY B ASE WILL BE RS.25 00 00 000/- AND THE SAME WILL BE BROUGHT BY T HE COMPANY IN PHASED MANNER. THEREFORE IT WAS DECIDED TO BRING 15% AT T HE TIME OF PURCHASE OF LAND AND BALANCE 85% IN A PHASED MANNER. 4.4 THE AOS REBUTTAL OF THE SAID REPLY WAS THAT TH E GROUP OF DOCTORS HAVE DECIDED TO START A HOSPITAL AND THE COST OF TH E PROJECT WAS ALSO NOT IN DISPUTE THEREFORE AS PER PAGES 83 AND 84 THE TOTA L COST OF THE LAND WAS MENTIONED AS RS.17 57 19 000/-. (B) DOCUMENT- FILE NAME MOU 5.17.2008 DOC WHICH ARE I N PAGE NO.3 TO 8. 4.4 THERE IS A REFERENCE OF MOU DATED 17.5.2008 EXE CUTED BETWEEN CCCPL AND THE DOCTORS. THE SAID DOCUMENT HAD GIVEN THE DETAILS OF THE SHARE HOLDING OF THE PARTICIPANTS. THE ASSESSEES R EPLY WAS THAT THERE WAS NO INDICATION OF CASH PAYMENT TOWARDS PURCHASE OF L AND. THE ENTIRE AMOUNT WAS PAID IN CHEQUES AS RECORDED BY THE COMPA NY . THE ASSESSEE HAS ALSO CONTENDED THAT THERE WAS NO SIGNA TURE OF ANY PERSON AND IT WAS SIMPLY A DRAFT PREPARED BEFORE THE FINALIZATION OF THE DOCUMENTS. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 9 - AGAINST THAT THE REBUTTAL OF THE AO WAS THAT THE S AID DOCUMENT WAS FOUND FROM THE COMPUTER OF THE COMPANY WHICH WAS A CLEAR INDICATION OF THE DISCUSSION HELD AMONG THE DOCTORS FOR FUTURE CO MPOSITION OF THE GROUP. C. DOCUMENT- PAGE NO.70 TO 94 OF ANNEXURE A/3 SEIZED F ROM PREMISES OF CCCPL AND PAGE 9 AND 10 OF PRINT OUT FR OM THE COMPUTER OF CCCPL. 4.5 THIS DOCUMENT WAS IN RESPECT OF THE IDENTIFICAT ION OF THE LAND SITUATED AT SOLA. OTHER DETAILS IN RESPECT OF THE L AND WERE ALSO MENTIONED. THE LAND IN QUESTION WAS PURCHASED BY CCCPL FROM TH E FOLLOWING PERSONS STATED TO BE 7 COMPANIES AS UNDER: 1. MATANG PROPERTIES PVT. LTD. 2. MARTAND ESTATE PRIVATE LTD. 3. MAITRIK BUILDCON PRIVATE LTD. 4. MEDBHUTI COMPLEX PRIVATE LTD. 5. MADHUMATI REALITY PRIVATE LTD. 6. MADHUJ REALITY PRIVATE LTD. 7. TIRTH DEVELOPERS PRIVATE LTD. 4.6 AN ANOTHER FACT HAS ALSO BEEN NOTED BY THE AO T HAT ORIGINALLY THE LAND BELONGED TO A COOPERATIVE SOCIETY WHICH WAS CO NVERTED INTO THESE PRIVATE LIMITED COMPANIES. THE STAMP DUTY ON THE CONVERSION WAS NOT PAID. LATER ON CCCPL WROTE A LETTER TO THE SUPT . OF STAMPS GANDHINAGAR EXPRESSING THE WILLINGNESS TO PAY THE S TAMP DUTY ON BEHALF OF THOSE COMPANIES. THE ASSESSEE HAS ACCEPTED THOSE FACTS AND INFORMED THAT FOR THE PURPOSE OF THE PAYMENT OF THE STAMP DU TY THE FAIR PRICE OF THE LAND AS NOTED IN JANTRI RATES WAS QUOTED TO THE ASS ESSEE. THE ASSESSEE IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 10 - COMPANY HAD AGREED TO PAY THE STAMP DUTIES ON BEHAL F OF THOSE VENDORS. IT HAS ALSO BEEN NOTED THAT SUBSEQUENTLY THE AGRICULTURAL LAND WAS CONVERTED INTO NON AGRICULTURAL LAND. THE ASSESSEE HAS NOT DISPUTED THOSE FACTS AND AFFIRMED THAT THE DOCUMENTED PRICE AND THE STAMP DUTY WAS PAID ON 15 TH OCTOBER 2007. IT WAS INFORMED THAT IN THAT MANNER THE FORMALITIES OF THE REGISTRATION OF THE LAND WERE CO MPLETED. D. DOCUMENT - THE AO HAS REFERRED PAGE 46 OF THE FILE HOSPITAL SEIZED FROM THE COMPUTER HARD DISK. THE AO HAS RECO RDED THE SYNOPSIS OF THAT PAGE. THE MAIN FEATURE OF THE SAID SYNOPSIS WA S THAT THERE WAS MENTION OF RS.18 CRORES INVESTED IN 2006-2007. IN THE SAID PAPER THERE WAS DETAIL OF THE EXPECTED INVESTMENT FROM ON E SHRI KIRTI PATEL OF RS.4 CRORES. THERE WAS A MENTION OF EXPECTED INVEST MENT FROM (AALST GROUP 4 CRORES). THERE WAS A MENTION OF BUYING PR ICE OF RS.18 CRORE AND THEREUPON IT WAS COMMENTED THAT SINCE THE PURCH ASE PRICE OF THE LAND WAS ONE AND A HALF YEAR OLD THEREFORE THE PRICE HAD INCREASED. IT WAS THUS SAID THAT THE VALUE OF THE LAND HAD DOUBLED THEREFORE THE PRE MIUM GOT ABSORBED WITHIN THE ESCALATED VALUATION OF THE LAND . THE ASSESSEES REPLY WAS AS UNDER: PAGE NO.46 AND 47 IS THE WORKING PREPARED FOR GETT ING THE FINANCE FROM THE PROPOSED FINANCIERS. IN THOSE PAPERS THE LAND COST HAS BEEN SHOWN AT RS.18.50 CRORES. ON PAGE NO.46 IT IS ALSO MENTIONED THAT THE LAND PRICE IS DOUBLED AND IT WAS PURCHASED 1.5 YEARS AGO. FOR GETTING THE FIN ANCE FOR HOSPITAL PROJECT SUCH EXAGGERATED KIND OF WORKINGS MAY HAVE BEEN PRE PARED. FURTHER THE AMOUNT INDICATED AS BUYING PRICE COULD MEAN THE PRICE AS PROPOSED NEW BUYER HAS TO PAY. ON THE HEADING OF PAGE NO.47 ITSELF ON GENERAL COM MENTS IT IS CLEARLY MENTIONED THAT THESE ARE THE ESTIMATES AND REQUIRES DETAIL EXERCISE TO FREEZE THE SCHEDULE AND THEREFORE IT HAS NO VALIDITY. THE COMPANY HAD NOT DISCLOSED THE CORRECT COST OF LAND TO THE PROPOSED INVESTORS. NO WHERE IT IS INDICATED IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 11 - THAT PAYMENT FOR THE PURCHASE OF LAND BY CCCPL IS C ONTRIBUTED BY DOCTORS IN CASH AND CHEQUES. FURTHER THE WORKINGS ARE NOT SIGN ED BY ANY BODY. IT IS A PART OF DUMB DOCUMENT. 4.7 THE AOS ALLEGATION WAS THAT THE FOUNDER DOCTOR S HAVE ALREADY INVESTED A SUM OF RS.18 CRORES TOWARDS LAND. E. DOCUMENT- PAGE NO.18 TO 29 FILE NAME LETTER OF UND ERSTANDING CARDIO CARE 29.03 PDF 4.8 THOSE WERE NOTHING BUT CORRESPONDENCE BETWEEN INVESTOR AND THE CHAIRMAN OF CCCPL. AS PER THE SCANNED COPIES IT WA S FOUND THAT THERE WAS A FILE NAMELY LETTER OF UNDERSTANDING CARDIO C ARE 29.03 PDF. THE AO HAS ALSO REFERRED FEW LETTERS WHICH WERE EXCHANG ED AMONG THE DOCTORS. THE MAIN REPLY OF THE ASSESSEE WAS THAT TH OSE WERE UNSIGNED LETTERS WHICH WERE EXCHANGED DURING THE FORMATION O F THE HOSPITAL. F. DOCUMENT PAGE NO.54 TO 56 IN THE FILE NAME PAYME NT DETAILS FOR HOSPITAL PROJECT. 4.9 IT WAS ALSO A PRINT OUT DOCUMENT. ACCORDING TO AO ON THIS DOCUMENT (PG NO.56) IT WAS MENTIONED RS.18 50 00 00 0/- -LAND ACQUISITION COST. ACCORDING TO AO IT WAS 36% OF TH E COST OF THE PROJECT WHICH WAS ABOUT 51.22 CRORE. THE ASSESSEES REPLY W AS THAT THOSE WERE PROJECTIONS MADE DURING DISCUSSION AND THE AMOUNTS MENTIONED WERE ACCEPTED BY THE DOCTORS. THEREFORE AFTER PREPARING A LIST OF DOCTOR WISE INVESTMENT THERE IS A DOCUMENT OF COST OF PROJECT AND MEANS OF IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 12 - FINANCE. ASSESSEES REPLY WAS THAT ON THOSE DOCUME NTS THERE WAS NO INDICATION FOR PURCHASE OF LAND OF THE IMPUGNED AMO UNT. THE DOCTORS AMONG THEMSELVES HAVE CONTRIBUTED THEIR RESPECTIVE SHARES AND THOSE WERE NOTED AS SHARE HOLDING PATTERN FOR THE PURPOSE OF THE FUTURE CONTROL OF THE COMPANY. G. DOCUMENT PAGE NO.84 PAYMENT DETAILS OF HOSPITAL PROJECT- 4.10 IT WAS A LIST OF THE DOCTORS AND THE AMOUNTS A LREADY GIVEN BY THEM AND THE BALANCE AMOUNT TO BE RECEIVED BY THEM WAS R EPRODUCED IN THE ASSESSMENT ORDER. ON THE BASIS OF THE TABULATION SO REPRODUCED THE AO HAS CONCLUDED THAT THE 15% FIGURES HAVE MATCHED WIT H THE PAYMENT MADE BY THE DOCTORS TO CCCPL BY CHEQUE TOTALING RS.2.5 C RORE. THAT AMOUNT WAS THE SALE CONSIDERATION OF THE LAND. IN REPLY TH E ASSESSEE HAS SUBMITTED THAT DR. PARIKH HAD CATEGORICALLY STATED THAT ENTIR E CONTRIBUTION IN THE HOSPITAL PROJECT WAS THROUGH CHEQUE. THERE WAS A PR OJECTION OF FIGURES NOTED BELOW THE SAID TABULAR-TABLE WHEREIN THE TOTA L LAND COST WAS NOTED AS (150729000 25000000 175729000). THE AO HAS PLA CED STRONG RELIANCE ON THAT PORTION OF THE NOTING WHICH WERE N OTED BELOW THE TABLE. 4.11 THERE WAS SOME OTHER DISCUSSION AS ALSO THE RE FERENCE OF THE STATEMENT OF THE SAID DOCTORS IN THE ASSESSMENT ORD ER. THE STATEMENT OF DR. ANIL JAIN HAS ALSO BEEN REPRODUCED BY THE AO. THAT STATEMENT WAS RECORDED BY THE A.O. IT WAS ASKED THAT WHAT WAS THE TOTAL COST OF THE LAND AND IN COMPLIANCE DR. JAIN HAS REPLIED THAT THE COS T OF LAND WAS SPLIT INTO TWO COMPONENTS CASH AND CHEQUE IN THE RATIO OF 85% AS CASH AND 15% AS IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 13 - CHEQUE. HE HAS STATED THAT THE COST OF LAND WAS 17. 5 CRORE OUT OF WHICH 2.5 CRORE WAS PAID IN CHEQUE AND BALANCE WAS IN CAS H. IT WAS ASKED ABOUT HIS PAYMENT AND IN REPLY HE HAS ADMITTED THAT A SUM OF RS.40 60 688/- WAS PAID BY CHEQUE AND THE BALANCE AMOUNT OF RS.2 1 2 94 000/- WAS IN CASH. HE HAS ACCEPTED THAT HE HAD PAID CASH TOWARDS PURCHASE OF LAND WHICH WAS OUT OF THE UNDISCLOSED SOURCES. DR. JAIN HAS ALSO INFORMED THAT LATER ON HE HAS DECIDED NOT TO BE THE PART OF THE P ROJECT THEREFORE HIS MONEY IN CASH AND CHEQUE WAS RETURNED. SIMILAR STAT EMENT WAS GIVEN BY OTHER DOCTORS. THE ASSESSEE HAS VEHEMENTLY OBJECTED THE SAID STATEMENT OF THOSE DOCTORS. THE ASSESSEES REPLY WAS CONSIDERED BY THE AO AND THEREAFTER HE HAD CONCLUDED AS UNDER: THE REPLY OF THE ASSESSEE IS CONSIDERED. AS ADMITT ED BY SURGEON DOCTORS IN THEIR STATEMENT AND EVIDENCE FROM THE DOCUMENTS FOU ND AND SEIZED DURING THE COURSE OF SEARCH ACTION THERE WAS A RIFT IN SURGEO N GROUP AND CARDIOLOGIST GROUP. IN ORDER TO PAY-OFF THE SURGEON GROUP DR. KE YUR PARIKH HAS PUT-IN FURTHER FUNDS AND SOME MORE DOCTORS WERE ALSO INTRO DUCED. THESE DOCTORS WERE ALSO TO BE ALLOTTED SHARES AS ON 31.03.2008. T HE STATUS OF HOLDING IN THE FILE NAMED SHARE CAPITAL.XLS FOUND FROM THE COMPU TER AT THE RESIDENCE OF DR. MINAL CHAG AND PLACED AT PAGE NO.79 WHICH IS COPY OF DOCUMENT IN THE COMPUTER OF CCCPL. SHARES WERE ALSO TO BE ALLOTTED TO DR. ASHIT JAIN AND KIRTI PATEL ON THIS DAY ALSO. TO THEM SHARES WERE A LLOTTED AT A PREMIUM. IT IS CLEAR THAT THESE PERSONS HAD ALSO BROUGHT IN ADDITI ONAL CASH WHICH HAS BEEN USED FOR PAYING SURGEON GROUP. AFTER EXIT OF SURGEO N GROUP 8 06 838 SHARES WERE ADDITIONALLY ALLOTTED TO ASSESSEE. SINCE THE S URGEON GROUP WERE TO BE PAID OFF OF THEIR CHEQUE AND CASH COMPONENT THEREF ORE THE AMOUNT OF RS.56.67 WERE CONTRIBUTED IN CASH AND AN AMOUNT OF RS.10/- WAS CONTRIBUTED IN CHEQUE BY ASSESSEE AS WELL AS OTHER NEW ENTRANTS . BASED ON THIS COMPUTATION THE ADDITIONAL CASH INTRODUCED BY DOCT OR KEYUR PARIKH AND FRESH CAPITAL IN THE FORM OF CASH BROUGHT BY OTHER DOCTORS IS COMPUTED AS BELOW IN THE COLUMN 85%: SL. NO. NAME NO. OF SHARES ALLOTTED ON 03.02.2008 15% 85% 1. DR. KEYUR PARIKH 806838 80 68 380 4 57 23 509 2. DR. GUNWANT PATEL 45000 4 50 000 25 50 150 IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 14 - 3. DR. P S IYANGER 30000 3 00 000 17 00 100 4. DR. JOYAL SHAH 6000 60 000 3 40 020 5. DR. MIHIR TANNA 6000 60 000 3 40 020 TOTAL. 893838 89 38 380 5 06 53 799 THEREFORE AN AMOUNT OF RS.4 57 23 509/- WAS BROUGH T BY THE ASSESSEE TO PAY BACK THE CARDIAC SURGEONS. IT IS NOT RECORDED IN TH E BOOKS OF ASSESSEE AND IT IS UNACCOUNTED INCOME OF THE ASSESSEE. THE CHART AT PA GE 38 SHOWS THE POSITION OF FUND CONTRIBUTED BY THE DOCTORS AFTER EXIT OF SU RGEON GROUP. THIS CHART SHOWS THE AMOUNT OF RS.9 97 90 000/- AGAINST THE NA ME OF DR. KEYUR PARIKH. IN VIEW OF ABOVE FACTS RS.5 52 50 000/- PAID IN CA SH FOR THE PURCHASE OF LAND AND RS.4 57 23 509/- PAID TO THE SURGEON GROUP TOT ALING TO RS.10 09 73 510/- IS UNACCOUNTED INCOME OF THE ASSESSEE. THE AMOUNT O F RS.10 09 73 510/- IS ADDED TO THE INCOME OF ASSESSEE IN A.Y. 2008-09. TH E ASSESSEE CONCEALED THE PARTICULARS OF INCOME HENCE PENALTY PROCEEDINGS U/S . 271AAA ARE INITIATED AGAINST THE ASSESSEE. 4.12 THE AFORESAID ADDITION WAS CHALLENGED BEFORE T HE FIRST APPELLATE AUTHORITY. DECISION OF FIRST APPELLATE AUTHORITY :- 5. THE FIRST GROUND OF THE ASSESSEE BEFORE LEARNED CIT(A) WAS THAT THE AO HAD ERRED IN RELYING UPON THE DUMB DOCUMENTS . THE AO HAS ERRED IN PLACING RELIANCE ON THE HARD DISK FOUND FROM THE COMPUTER. IT WAS ALSO OBJECTED THROUGH A GROUND RAISED THAT THE AO H AD ERRED IN MAKING AN ADDITION OF RS.5 52 50 000/- AS UNACCOUNTED INCOME UTILIZED IN ACQUIRING 9 75 000/- SHARES OF CCCPL @ RS.56.67 PER SHARES. IN RESPECT OF THE CONTENTION OF DUMB DOCUMENT THE LEARNED CI T(A) HAS GIVEN HIS VERDICT IN ASSESSEES FAVOUR AS UNDER: IN RESPONSE TO THIS LETTER THE STAMP DUTY VALUATIO N CELL HAS COMPUTED THE STAMP DUTY AT RS.12 45 400/- ON THE TOTAL VALUE OF LAND OF RS. 254 16 200/-. ACCORDINGLY CCCPL PAID RS.501 440 TOWARDS STAMP DUT Y ON 6.3.2007 BY CH. NO. 349370 AND 336438 OF RS.250 720 EACH OF ICICI B ANK A/C NO.029505000156. THIS CLEARLY SHOWS THAT CCCPL HAD AGREED TO PURCHASE LAND BEFORE 5.3.2007. IT IS TO BE MENTIONED THAT TH E STAMP DUTY VALUATION CELL IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 15 - IS INTERESTED IN STAMP DUTY COLLECTION ON TRANSFER OF THE LAND ON THE BASIS OF HIGHER OF JANTRI RATE OR THE SALE RATE. IN THE ABSE NCE OF HIGHER SALE RATE FOR THE PURPOSE OF STAMP DUTY VALUATION IS DONE BY THE M ON THE BASIS OF JANTRI RATE WHICH HAS BEEN SHOWN AT RS.254 16 200 FOR THE SAID PROPERTY WHICH WAS BROUGHT BY THE CCCPL AS ON JULY 2007. THEREFORE IT IS WRONG ON THE PART OF THE AR TO CONTEND THAT THE MARKET RATE OF THE PROPE RTY WAS RS.254 16 200. IN FACT IT WAS THE JANTRI RATE AS DECIDED BY THE STAM P DUTY VALUATION CELL FOR THE PURPOSE OF COLLECTION OF STAMP DUTY ON TRANSFER OF THE IMMOVABLE PROPERTY. 5.1 ABOUT THE ADDITION OF RS.10 09 73 510/- THE BRE AKUP GIVEN WAS AS UNDER: THE BREAK UP OF RS.10 09 73 510/- IS AS UNDER: PARTICULARS AMOUNT REMARK UNACCOUNTED INCOME 5 52 50 000 DIRECTLY GIVEN TO CCCPL FOR THE PURCHASE OF LAND UNACCOUNTED INCOME 4 57 23 509 PAID TO SURGEON GROUP ON THEIR EXIT FROM THE HOSPITAL PROJECT. 5.2 IT WAS EXPLAINED THAT THE LAND WAS NOT PURCHASE D BY THE ASSESSEE DR. KEYUR H. PARIK BUT IT WAS PURCHASED BY THE CCC PL. THE ASSESSEE IS ONLY THE PROMOTER OF THE COMPANY AND ACQUIRED THE S HARES. THE VERDICT OF THE LEARNED CIT(A) WAS THAT THE MAIN DOCUMENTS WERE RECOVERED FROM THE OFFICE COMPUTER OF CCCPL. THE FILE NAME WAS HO SPITAL LAND PAYMENT. THE LEARNED CIT(A) HAS ALSO FOUND THAT ON E OF THE OUTGOING DOCTOR NAMELY DR. ANIL JAIN HAD ADMITTED THE PAYM ENT OF CASH COMPONENT OF RS.2 12 94 000/- WHICH WAS ACCORDING TO HIS STATEMENT REPRESENTED UNACCOUNTED INVESTMENT IN LAND. HIS FIN DING WAS AS UNDER: I DO NOT AGREE WITH THE CONTENTION OF THE APPELLANT DR. KEYUR PARIKH THAT THE ENTRY IS SHOWN UNDER THE HEAD OF 15% AND 85% REPRES ENT THE COST OF THE LAND AND OTHER ASSETS RESPECTIVELY FOR ESTABLISHING THE HOSPITAL PROJECT. I HAVE SEEN ALL THE TABLES AND PROJECTIONS AS PER THE SEIZED RE CORD OF THE APPELLANT DR. KEYUR PARIKH. IN NONE OF THESE PAPERS THE COST OF T HE LAND COMES TO 15% OF THE TOTAL PROJECTED COST. IN FACT THE PROJECTED CO ST OF THE ENTIRE PROJECT IS IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 16 - ESTIMATED AT RS.51 TO 55 CRORES OUT OF WHICH THE L AND COST IS SHOWN AT RS.17.50 CRORES APPROXIMATELY. THE COST OF THE LAND COMES TO APPROXIMATELY 33% TO 35% OF THE WHOLE PROJECT. IF IT IS PRESUMED THAT NONE OF THE DOCTORS HAD CONTRIBUTED TOWARDS CASH COMPONENT AND ONLY CHE QUE OF RS.2.50 CRORES WAS PAID TOWARDS THE COST OF THE LAND IN THAT EVEN T THE COST OF THE LAND COMES TO ONLY 4 TO 5% OF THE ESTIMATED COST OF THE WHOLE PROJECT. DURING THE COURSE OF APPELLATE PROCEEDINGS THE REPRESENTATIVE OF THE APPELLANT DR. KEYUR PARIKH SHRI S.N. SOPARKAR WAS SPECIFICALLY ASKED T O POINT OUT FROM ANY OF THE SEIZED MATERIAL WHEREIN THE COST OF THE LAND COMES TO AROUND 15% OF THE WHOLE PROJECT. TO THIS IT WAS STATED BY HIM THAT T HERE IS NOT A SINGLE SEIZED PAPER WHICH INDICATES THAT THE COST OF THE LAND WAS AROUND 15% OF THE TOTAL PROJECT COST. IN VIEW OF THIS IT IS PROVED THAT TH E ENTRIES UNDER THE COLUMN OF 15% REPRESENT THE CHEQUE PAYMENTS MADE BY THE DOCTO RS FOR PURCHASE OF LAND AND THE ENTRIES UNDER THE 85% CATEGORY ARE THE PAYM ENTS WHICH ARE NOT REFLECTED IN THE BOOKS OF ACCOUNTS OF THE DOCTORS C ONCERNED UNDER THE HEAD OF INVESTMENT OF LAND. 5.3 THE FINAL VERDICT OF THE LEARNED CIT(A) IS REPR ODUCED BELOW: THIS DOCUMENT HAS BEEN FOUND AND SEIZED FROM THE P REMISES OF CCCPL. THIS GIVES THE DETAILS OF PAYMENTS BY THE DOCTORS FOR HO SPITAL PROJECT UP TO 17/10/2007. AS PER THIS PAGE CASH OF RS.L LALCH AND RS. 2 LACS WAS RECEIVED BY CCCPL FROM KEYUR PARIKH ON 1/10/2006 AND 15/10/2006 RESPECTIVELY. THEREAFTER CERTAIN PAYMENTS ARE SHOWN AS MADE TO S AVLAS CHAVDAS HARE KRISHNA DEVELOPERS AND SHALIGRAM BUILDCON PRIVATE L IMITED. THIS MEANS THAT THE APPELLANT DR KEYUR PARIKH HAD ISSUED THE C HEQUES IN THE NAME OF THE ABOVE MENTIONED PARTIES AND HANDEDOVER THE SAME TO THE COMPANY CCCPL. FURTHER ON 13/6/2007 CASH OF RS. 24 LACS AND RS. 60 LALCH HAS BEEN SHOWN AS RECEIVED FROM DR. KEYUR PARIKH. IN THE BOOKS OF ACCOUNTS DR KEYUR PARIKH HAS SHOWN LOANS AND ADVANCES TO DR PARAS DOS HI OF RS.14 LACS AND RUPAL DOSHI OF RS.10 LACS (BOTH JUNIOR DOCTORS ATTA CHED TO DR KEYUR PARIKH). SIMILARLY AGAINST THE ENTRY OF RS. 60 LAKH THE APP ELLANT HAS SHOWN INVESTMENT IN THE SHARES OF AKAASH CERAMICS PRIVATE LIMITED OF RS. 60 LACS. THE AMOUNT OF RS. 24 LACS AND 60 LACS ARE STILL SHOWN AS RECEI VABLE BY DR KEYUR PARIKH FROM THESE PARTIES. IT IS LIKELY THAT THESE PARTIES NAMELY DR PARAS DOS HI RUPAL DOSHI AND AKAASH CERAMICS PRIVATE LIMITED MIG HT HAVE GIVEN CASH OF RS.24 LACS AND RS.60 LACS AGAINST THE CHEQUES IS SUED BY DR KEYUR PARIKH TO THEM BUT THIS FACT HAS NOT BEEN ACCEPTED BY THE APPELLAN T DOCTORS AND THE AMOUNTS GIVEN TO THEM ARE STILL SHOWN AS RE CEIVABLE BY THEM. ACCORDING TO DR KEYUR PARIKH HE HAS NOT GIVEN ANY CASH TO COMPANY CCCPL. WHEREAS IN THE SEIZED DOCUMENT IT IS CATEGO RICALLY WRITTEN THAT CASH HAS BEEN RECEIVED BY CCCPL FROM DR KEYUR PARIKH. THEREFORE IF AS PER THE SEIZED MATERIAL FOUND FROM THE PREMISES OF THE COMP ANY CCCPL AN AMOUNT IS SHOWN AS RECEIVED IN CASH FROM A PARTICUL AR DOCTOR THEN IT IS TO IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 17 - BE PRESUMED THAT THAT PARTICULAR DOCTOR HAS PAID TH E CASH TO THE COMPANY CCCPL; IF ON THE OTHER HAND THE CHEQUE HAS BEEN SHOWN AS RECEIVED BY CCCPL FROM THE CONCERNED DOCTOR THEN THE ONUS IS ON THE COMPANY CCCPL TO EXPLAIN T HE SOURCE OF CASH GIVEN BY THE COMPANY FOR THE PURCHASE OF LAND. IN O THER WORDS THE ONUS IS ON THE DOCTOR TO EXPLAIN THE ENTRY OF CASH IN THE S EIZED MATERIAL. IF THE DOCTOR IS ABLE TO EXPLAIN THE SOURCE OF CASH IN MY OPINION NO ADDITION CAN BE MADE IN RESPECT OF THAT CASH AMOUNT IN THE HANDS OF THE DOCTOR. HOWEVER IF THE DOCTOR IS UNABLE TO GIVE ANY SATISF ACTORY EXPLANATION OF CASH THEN THAT CASH AMOUNT HAS TO BE TREATED AS UNEXPLAINED INCOME OF THE DOC TOR. IF IT IS PROVED BY THE DOCTORS THAT THEY HAVE PAID THE CHEQUES TO THE COMP ANY CCCPL IN VARIOUS NAMES AND THE COMPANY CONFIRMS RECEIPT OF SUCH CHEQ UES FROM THE DOCTOR THEN TO THE EXTENT OF SUCH AMOUNT NO ADDITION CAN B E MADE IN THE HANDS OF THE DOCTORS. BUT SINCE AS HELD BY ME IN EARLIER PAR A THAT CASH HAS BEEN PAID BY THE COMPANY CCCPL TO THE OWNERS OF THE LAND THE ONUS LIES ON THE COMPANY CCCPL TO EXPLAIN THE SOURCE OF SUCH CASH PA YMENT. IF THE COMPANY IS UNABLE TO EXPLAIN THE SOURCE OF THE CASH THEN THE AO WILL TREAT THAT AMOUNT AS UNEXPLAINED INVESTMENT BY THE COMPAN Y CCCPL. 5.4 LEARNED CIT(A) HAS ALSO DIRECTED THAT THE AMOUN T WAS PAID BY CCCPL ON 15.3.2007 THEREFORE THE AO IS DIRECTED TO ASSESS THE INCOME IN A.Y. 2007-08 AND NOT IN A.Y. 2008-09 . ARGUMENTS OF REVENUE : 6. FROM THE SIDE OF THE REVENUE LEARNED CIT-DR. MR . O.P. VAISHNAV APPEARED. THE MAIN CONTENTION OF LEARNED DR IS THAT THE DOCUMENTS WHICH WERE COPIED FROM THE COMPUTER WERE GENUINE DO CUMENTS WRITTEN IN THE NORMAL COURSE THEREFORE RIGHTLY RELIED UPO N BY THE AO. HE HAS PLEADED THAT THE TOTAL COST OF THE PROJECT WAS NOT IN DISPUTE. IN THE SAID TOTAL COST OF THE PROJECT THE COST OF THE LAND HAS ALSO NOT BEEN DISPUTED. THEN HE HAS PLACED RELIANCE ON A DOCUMENT WHICH IS MARKED AS APPENDIX-1 PAGE 46 TITLED AS SYNOPSIS . UNDER THE INVESTMENT FROM FOUNDER DOCTOR IT WAS MENTIONED AS RS.18 00 00 000 /- INVESTED IN 2006- IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 18 - 07. LEARNED DR HAS THEREFORE EMPHASIZED ON THE WORD S INVESTED. HE HAS ARGUED THAT AS FAR AS THE INVESTMENT IN THE LAN D WAS CONCERNED IT WAS NOT NOTED AS A FUTURE PROJECTION. IT WAS AN INVESTM ENT MADE BY THE FOUNDER DIRECTOR. HE HAS ALSO PLEADED THAT A LAND C ANNOT BE PURCHASED IN A PHASED MANNER. ACCORDING TO HIM THE INVESTMENT ON THE LAND WAS ALREADY MADE BY ONE OF THE DIRECTOR AND THE RECOVER IES WERE TO BE MADE IN THE PHASED MANNER. LEARNED DR HAS THEN PLACED RE LIANCE ON PAGE 84 OF APPENDIX 1 WHEREIN THE HOSPITAL PROJECT WAS ELABORATELY NOTED ALONG WITH THE DETAILS OF PAYMENT OF ALL THE DOCTOR S AND AT THE BOTTOM OF THE TABLE IT WAS NOTED AS UNDER: TOTAL LAND COST 150729000 25000000 1 75729000 STAMP & REGISTRATION 1495400 1495400 SUB-REG. EXP 14600 14600 ANGADIA FEES 73200 73200 TOTAL 150816800 26495400 177 312200 DIFF. IN 85% 2 755 533 6.1. ON THE BASIS OF THE SAID NOTING LEARNED DR HAS VEHEMENTLY ARGUED THAT THE TOTAL COST OF THE LAND WAS 17 57 29 000/-. THE ENTIRE PERCENTAGE OF THE CONTRIBUTION BY REST OF THE DOCTORS WAS THER EFORE BASED UPON THE TOTAL COST OF THE LAND. LEARNED DR HAS ALSO HEAVILY PLACED RELIANCE ON THE STATEMENT OF DR. ANIL JAIN. HE HAS PLEADED THAT ALT HOUGH DR. ANIL JAIN HAD PARTED WAYS WITH THE COMPANY BUT AT THE TIME WH EN THE PROJECT WAS STARTED HIS SERVICES WERE AVAILABLE AS HE WAS ALSO ONE OF THE INVESTOR. HIS STATEMENT CANNOT BE RULED OUT BECAUSE THAT STATEMEN T WAS MADE BY THAT PERSON WHO HAD BEEN A WITNESS TO THE TRANSACTION. IN HIS STATEMENT HE IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 19 - HAS CONFESSED THAT THE CHEQUE AMOUNT AND THE CASH A MOUNT WERE RETURNED BY DR. PARIKH TO HIM POINTED OUT BY LD.DR. HE HAS ALSO PLEADED THAT A LAND WHICH WAS OTHERWISE COSTED AT RS. 18 CRORE SHO ULD NOT HAVE BEEN COSTED FOR 2.5 CRORE. THE CHEQUE COMPONENT WAS ONEL Y 15% AND THE REST OF THE COMPONENT OF 85% WAS IN CASH. THEREFORE THE CHEQUE PAYMENTS HAVE MATCHED IN THE RECORDED TRANSACTION. LEARNED D R HAS REFERRED PAGES 56 57 AND 58 OF A COMPILATION FILED FROM THE SIDE OF THE REVENUE. ON THESE PAGES THERE ARE CERTAIN CALCULATIONS ABOUT IN TEREST UPTO 31 ST MARCH 2008. HE HAS ALSO REFERRED THE DETAILS OF PAYMENT A S RECORDED IN THE BOOKS OF ACCOUNT (PAGE 58) WHEREIN THE 15% AMOUNT WHICH WAS STATED TO BE PAID IN CHEQUE WAS DULY RECORDED AND ADMISSIBLE IN THE BOOKS OF ACCOUNTS. BUT THE BALANCE 85% WAS NOT APPEARING. A GAIN DR HAS PLACED STRONG RELIANCE ON THE STATEMENT OF ONE OF THE DOCT OR WHO HAS LEFT THE PROJECT. DR. ANIL JAIN HAS NOT ONLY SURRENDERED THE CASH PORTION OF THE SALE CONSIDERATION OF THE SAID PROPERTY BUT ALSO AF FIRMED THAT IT WAS REPAID IN CASH BY DR. PARIKH. THE PAPER BOOK OF THE REVENU E DEPARTMENT ALSO CONTAINED THE STATEMENTS OF THE PERSONS WHO HAVE SO LD THE PROPERTY TO THE ASSESSEE COMPANY. THERE WAS ONE STATEMENT OF SRI SHEKHAR BHAI GOVIND BHAI RECORDED U/S 131 ON 04.11.2008. IN THIS STATEMENT THOSE SELLERS HAVE DENIED THE CASH COMPONENT IN THE SAID TRANSACTION. SO THE ARGUMENT OF LEARNED DR WAS THAT IF THE STATEMENT OF THOSE SELLERS IS TO BE RELIED UPON THEN IN THE LIKE MANNER THE STATEMENT O F DR. ANIL JAIN SHOULD ALSO BE RELIED UPON. RATHER HE HAS ARGUED THAT A ST ATEMENT OF DR. ANIL JAIN IS MORE RELIABLE BECAUSE HE HAD PAID THE TAXES ON THE DISCLOSED AMOUNT. HE HAS THEREFORE CONCLUDED THAT CONSIDERING THE CONTENTS OF THE HARD DISK OF THE COMPUTER AND OTHER CIRCUMSTANCES O F THE CASE IT WAS CLEAR IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 20 - THAT THERE WAS CASH COMPONENT IN THE IMPUGNED LAND TRANSACTION. HE HAS FINALLY PLEADED TO AFFIRM THE ACTION OF THE AO. ARGUMENTS OF THE ASSESSEE :- 7. FROM THE SIDE OF THE ASSESSEE LEARNED AR MR. S. N. SOPARKAR APPEARED. HE HAS PLEADED THAT THERE WAS NO DOCUMENT ON THE BASIS OF WHICH IT COULD BE ESTABLISHED THAT THE ASSESSEE HAD PAID ON MONEY AT THE TIME OF ACQUISITION OF LAND IN QUESTION. AT FIRST H E HAS EMPHASIZED THAT THE STATEMENT OF DR. ANIL JAIN AND HIS ACTION OF FI LING OF RETURN WAS WITH A PREJUDICE MIND. HE WAS EARLIER INVOLVED IN THE PROJ ECT BUT LATER ON DECIDED TO QUIT THE SAME. HIS STATEMENT WAS RECORDED THREE TIMES BY THE REVENUE DEPARTMENT AND IN THOSE STATEMENTS HE H AD CHANGED THE FACTS. ONE STATEMENT OF DR. ANIL JAIN WAS RECORDED U/S. 1 32(4) OF IT ACT ON 23.09.2008. IT WAS ASKED THAT ARE YOU AWARE THAT CCPL WAS SETTING UP A HOSPITAL. DR. JAIN HAS ANSWERED THAT HE WAS AWARE OF THE SAID PROJECT. HE HAS THEN INFORMED THAT HE HAD DECIDED NOT TO BE ASSOCIATED WITH THE PROJECT. HE HAS ALSO AFFIRMED THAT THE PRINT OUTS W ERE RELATED TO THE HOSPITAL PROJECT. IN ANSWER NO.4 HE HAS AFFIRMED TH AT MOUS WERE PREPARED BETWEEN THE DOCTORS BUT THERE WAS NO FINAL SETTLEMENT. A QUESTION WAS ASKED ABOUT THE PAYMENTS MADE TO DHIRA J RAMJI SAVLA HARI KRISHNA DEVELOPERS ETC. IN THIS REGARD HE HAS INF ORMED THAT HE HAD GIVEN ONLY HIS SHARE IN THE PROJECT AND THERE WAS SOME SH ORT TERM DEPOSIT ON WHICH INTEREST WAS EARNED. RATHER HE HAS DENIED OF ANY PAYMENT OF RS. 2.125 CRORE TO THE HOSPITAL. HE HAS AFFIRMED IN QUESTION NO.9 THAT HIS SHARE OF CAPITAL MONEY WAS THE ONLY PAYMENT. FURTHER HE HAS ALSO INFORMED THAT THE SHARE CAPITAL WAS REFUNDED. THERE WAS ANOTHER IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 21 - STATEMENT RECORDED ON 13.04.2010 U/S 131 OF IT ACT . IN THAT STATEMENT MADE BEFORE THE AO AS PER QUESTION NO.15 HE HAS INF ORMED THAT THE LAND PAYMENT WAS IN TWO PARTS 15% BY CHEQUE AND 85% BY CASH. THE CASH COMPONENT WAS TAKEN AS OUR EQUITY HOLDING IN THE HO SPITAL. ALTHOUGH THE DOCTORS HAVE OFFICIALLY CONTRIBUTED 2.50 CRORE BUT THE TOTAL EQUITY WAS 17.5 CRORE. IT WAS ASKED THAT WHAT HAD HAPPENED WHE N HE HAD LEFT THE PROJECT. IN COMPLIANCE HE HAS INFORMED THAT MONEY W AS RETURNED IN CASH AND THROUGH CHEQUE BY DR. KAYUR PARIKH. DR. ANIL JA IN WAS CROSS- EXAMINED AND INFORMED DURING CROSS-EXAMINATION THAT HE WAS WORKING IN MAYO HOSPITAL BARODA. HE HAS ACCEPTED THAT THERE W ERE TWO MOUS WITH DR. PARIKH. IT WAS ASKED WHETHER OTHER DOCTORS WERE PARTY OF THE SAID MOU BUT HE EXPRESSED HIS IGNORANCE. HE HAS ALSO ANS WERED THAT HE DID NOT REMEMBER THE AMOUNT AND THE WORKING OF THE AMOU NT AS PREPARED IN THE COMPUTER SHEETS. THERE WERE CERTAIN QUESTIONS I N RESPECT OF HIS EARNING OF RETENTION FEES AND THE FEES EARNED FROM SURGERIES. A DIRECT QUESTION NO.19 WAS ASKED THAT WHETHER THE CASH CONS IDERATION WAS PAID. IN ANSWER HE HAS SAID THAT ONLY CHEQUE COMPONENT WA S GIVEN BY HIM TO CCCPL BUT IN RESPECT OF CASH COMPONENT HE WAS ONLY INFORMED. HE HAS ALSO SAID THAT HE WAS NOT PRESENT WHEN THE PURCHASE CONSIDERATION WAS PAID. IT WAS ASKED THAT YOU HAVE MADE A STATEMENT O N 13 TH APRIL 2010 WHEREIN IT WAS STATED THAT TO BUY PEACE OF MIND AND TO AVOID LITIGATION YOU HAVE OFFERED YOUR UNACCOUNTED INCOME TO LEGALIZ E YOUR UNACCOUNTED INCOME. IN AN ANSWER TO THE SAID QUESTION DR.JAIN H AS STATED THAT HE HAS OBJECTION OF THE ALLEGATION MADE. SO LD A.R. HAS CONTENDED THAT HIS STATEMENT SHOULD NOT BE RELIED UPON WHICH WAS CHANG ED FREQUENTLY. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 22 - 7.1 THE NEXT PLANK OF THE ARGUMENT OF THE LEARNED A R WAS THAT THE DOCUMENTS WHICH WERE RECOVERED FROM THE HARD DISK W ERE MERELY THE PROJECTIONS OF THE HOSPITAL CONSTRUCTIONS. THOSE WERE NOT THE ACTUAL PAYMENTS. ON THE BASIS OF THE PROJECTION NO ADDITI ON SHOULD HAVE BEEN MADE. HE HAS PLEADED THAT THERE WAS NO DIRECT EVIDE NCE AGAINST THE APPELLANT EVEN WHEN THE SEARCH OPERATION WAS CARRIE D OUT AGAINST HIM. IF ONE OF THE DOCTORS HAD BECOME HOSTILE THEN IT WAS N OT THE RESPONSIBILITY OF THE ASSESSEE. ACCORDING TO HIM THE ASSESSEES RESP ONSIBILITY IS ONLY IN RESPECT OF THE TRANSACTION IN QUESTION. LD. AR HAS EMPHASIZED THAT THE PAYME NT WAS MADE AFTER CONSIDERING THE FACT THAT THE SAID LAND WAS HAVING CONTROVERSY IN RESPECT OF THE PAYMENT OF THE STAMP DUTY. THAT DISPUTE WAS RESOLVED BY THE EFFORTS OF THE COMPANY. THEREFORE A REASONABLE PAY MENT WAS MADE AND THE PROPERTY WAS TRANSFERRED THROUGH A REGISTERED S ALE DEED. EVEN WHEN THE EXTREME ACTION OF SEARCH WAS CARRIED OUT NO INC RIMINATING DOCUMENTARY EVIDENCE WAS RECOVERED. HE HAS CONCLUDE D THAT MERELY ON THE BASIS OF THE PRESUMPTION THE ADDITION WAS MADE WHICH SHOULD BE DELETED. CONCLUSION/ VERDICT : 8. WE HAVE HEARD BOTH THE SIDES AT LENGTH. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF THE COMPILATIONS FILED FROM BOTH THE SIDES. A COMPANY NAMELY CCCPL WAS FORMED TO ESTABLISH THE HOSPITAL. A PIECE OF LAND WAS PURCHASED FROM FEW CO MPANIES VIDE A SALE DEED DATED 17.10.2007. AS FAR AS THE RECORDS ARE CO NCERNED THE DETAILS OF THE CHEQUES OF RS. 2 50 00 000/- ISSUED IN FAVOUR O F THE SELLER IS ON RECORD IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 23 - ( DETAILS OF CHEQUE PAYMENT IS AS ABOVE) . THE AOS ALLEGATION IS THAT A SUM OF RS.5 52 50 000/- WAS PAID DIRECTLY IN CASH T O THE VENDORS. FURTHER A SUM OF RS.4 57 23 509/- WAS PAID TO THE SURGEONS ON THEIR EXIT FROM THE PROJECT. THESE FIGURES WERE NOTED FROM CERTAIN CALC ULATION SHEETS TAKEN OUT FROM THE COMPUTER. THOSE COMPUTER SHEETS ARE NA TURALLY NOT SIGNED BY ANY PERSON. FACTUALLY THE DOCUMENT WHICH WAS RE COVERED BY THE REVENUE DEPARTMENT ON SEARCH OPERATION ONLY CONTAIN ED THE PAYMENTS WHICH WERE MADE THROUGH CHEQUE. EVEN AFTER TAKING T HE EXTREME STEP OF SEARCH THERE WAS NO DOCUMENT TO DEMONSTRATE THAT S OME SPECIFIC CASH AMOUNT WAS PAID OVER AND ABOVE THE SALE CONSIDERATI ON. AT THE OUT-SET AT THIS JUNCTURE IT IS NOTEWORTHY THAT IN THE ABSENCE OF ANY SPECIFIC DOCUMENT IN OUR CONSIDERED OPINION IT IS NOT JUSTIFIABLE TO PRESUME THAT THE ASSESSEE HAD MADE PAYMENT IN CASH. THE DOCUMENTS HAVE ESTABL ISHED THE SALE CONSIDERATION AND THE PAYMENT OF STAMP DUTY BUT THE RE IS NO OTHER EVIDENCE. ON THE BASIS OF THOSE DOCUMENTS THE ASSE SSEE HAS PASSED CONNECTED ENTRIES IN THE BOOKS OF ACCOUNTS. THERE W ERE SEVERAL WORKING OF THE PROJECT WHICH WERE FOUND FROM THE COMPUTER BUT THERE WAS NO DIRECT EVIDENCE IN POSSESSION OF THE REVENUE DEPART MENT TO CONCLUSIVELY ESTABLISH THAT IN FACT THERE WAS A CASH COMPONENT. THE REVENUE DEPARTMENT HAD MADE INQUIRIES FROM THOSE PERSONS WH O HAVE SOLD THE PROPERTIES. THOSE PERSONS HAVE MADE THE STATEMENT B EFORE THE AO AND AFFIRMED THAT THERE WAS NO CASH COMPONENT. THE AO H AD MADE UP HIS MIND TO THOROUGHLY INVESTIGATE THE EXISTENCE OF THE CASH COMPONENT BUT THEN AFTER THE INQUIRY IT WAS NOTICED THAT THERE WA S NO SUCH MONEY WHICH WAS DELIVERED AT THE TIME OF THE EXECUTION OF THE S ALE DEED. FOLLOWING ARE IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 24 - FEW POINTS WHICH WERE PONDERED UPON BY US SO AS TO DECIDE THE SUBSTANCE IN THE ALLEGATION OF CASH ON-MONEY PAID BY THE ASSE SSEE. 8.1 FACT OF THE CASE HAVE REVEALED THAT THE REGISTE RED SALE DEED DATED 17.10.2007 WAS NOT EXECUTED BETWEEN TWO INDIVIDUALS BUT IT WAS PURCHASED ON BEHALF OF A COMPANY NAMELY CCCPL ON ONE HAND FROM OTHER CORPORATE ENTITIES SEVEN IN NUMBER ON THE O THER HAND. THEREFORE THE TRANSACTION CARRIED OUT WAS A WELL PUBLISIZED T RANSACTION. RATHER FACTS OF THE CASE HAVE FURTHER REVEALED THAT EARLIER THE LAND IN QUESTION BELONGED TO CERTAIN CO-OPERATIVE SOCIETIES. SUCH A SALE DEED THUS CANNOT BE TREATED AS A CLOSE-DOOR-DEAL. BEFORE US IT HAS BEEN VEHEMENTLY ARGUED THAT IT WAS WRONG ON THE PART OF THE REVENUE DEPARTMENT TO ALLEGE THAT THE PURCHASER AND SELLER HAVE CONNIVED WITH EA CH OTHER AND THEREFORE SETTLED A SECRET DEAL WHICH WAS OUT OF THE RECORD. THE ARGUMENT BEFORE US IS THAT SUCH A POSSIBILITY IS ONLY IF A DEAL IS BET WEEN TWO INDIVIDUALS BUT NOT POSSIBLE WHEN TWO CORPORATE ENTITIES ARE DEALIN G WITH EACH OTHER. RATHER THE SALE DEED IN QUESTION WAS EXECUTED BETWE EN NUMBER OF ENTITIES; HENCE SUCH A MULTI-PARTY DEAL MUST NOT B E DOUBTED ESPECIALLY WHEN EACH PARTY OUGHT TO HAVE WATCHED THEIR RESPECT IVE INTEREST. THIS ARGUMENT OF THE ASSESSEE CANNOT BE BRUSHED ASIDE AL TOGETHER. WE CAN JUSTIFIABLY ADJUDICATE ON THIS POINT ONLY AFTER TAK ING INTO CONSIDERATION THE SURROUNDING CIRCUMSTANCES AND CORROBORATIVE EVIDENC E. 8.2 NEXT POINT. OUR ATTENTION HAS BEEN DRAWN ON A L ETTER OF DEPUTY COLLECTOR STAMP DUTY VALUATION OFFICE AHMEDABAD D ATED 16.10.2007 WHEREIN AFTER GOING THROUGH THE SALE DEED IN THE O PINION OF THE VALUATION IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 25 - OFFICE THE MARKET VALUE AS PER STAMP ACT WAS RS.2 54 16 200/- OVER WHICH THE APPLICABLE STAMP DUTY WAS RS.12 45 400/-. THE PURPOSE OF THIS REFERENCE WAS THAT THE STAMP VALUER HAD NOT OBJECTE D THE SALE PRICE AS DECLARED BY THE ASSESSEE. HE HAS CHARGED THE STAMP DUTY ON THE SALE CONSIDERATION AS MENTIONED IN THE IMPUGNED SALE DEE D. IN THIS CONNECTION OUR ATTENTION HAS ALSO BEEN DRAWN ON A LETTER ADDRESSED TO SUPERINTENDENT OF STAMPS DATED 5 TH MARCH 2007 WHEREIN THE ASSESSEE COMPANY HAS EXPRESSED THE DESIRE TO PAY THE STAMP D UTY WHICH WAS LEGALLY REQUIRED TO BE PAID WHEN THE AGRICULTURAL L AND WAS CONVERTED / TRANSFERRED FROM CO-OPERATIVE SOCIETY TO PRIVATE LI MITED COMPANY. THE CCCPL HAS VOLUNTEERED TO PAY THE STAMP DUTY IN RESP ECT OF THE TRANSFER OF THE NAMES. THE ADDITIONAL PAYMENT OF STAMP DUTY WAS THEREAFTER PAID BY THE CCCPL. ON THE BASIS OF THESE EVIDENCES THE VEHEMENT CONTENTION OF THE ASSESSEE IS THAT THE CORRECT FAIR MARKET VALUE AS PER THE REGISTRATION OFFICE WAS ASSESSED ON TWO OCCASIONS; HENCE THERE WAS NO QUESTION OF RAISING ANY DOUBT. IF ONE GOVERNMENT AU THORITY HAS REGISTERED A DOCUMENT ON AN AMOUNT OF CONSIDERATION THEN THAT CONSIDERATION SHOULD NOT BE DOUBTED UNLESS AND UNTI L THERE IS CONCRETE EVIDENCE AGAINST THE SALE VALUE DECLARED. 8.3 NEXT POINT. WE HAVE ALSO EXAMINED THE MEMORANDU M OF UNDERSTANDING (MOU) ARRIVED AT BETWEEN THE CCCPL (H OSPITAL) AND THE GROUP OF DOCTORS. THIS MOU WAS IN POSSESSION OF THE REVENUE DEPARTMENT OBTAINED DURING SEARCH OPERATION. THERE WAS NOTHING INCRIMINATING IN THIS MOU. THE MOU HAS STATED THAT THE HOSPITAL PROJECT WILL COST RS.45 00 00 000/-. THE PURCHASE OF LAND W AS TO BE FINALIZED IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 26 - BEFORE THE END OF 31 ST JANUARY 2007. THE SHARE CAPITAL WAS FIXED AT RS.2 5 CRORES. THROUGH THIS MOU A CHAIRMAN VICE CHAIRMAN MD ETC. WERE SELECTED. THERE IS A CLAUSE OF SEPARATION AND THE E ITHER GROUPS WERE AUTHORIZED TO LEAVE THE PROJECT. THERE WERE CERTAIN RESTRICTIONS FOR LEAVING THE PROJECT AND TO SAFEGUARD THE PROJECT A LOCK-IN -PERIOD HAS ALSO BEEN FIXED. ON THE BASIS OF THIS MOU LEARNED AR HAS CONT ESTED THAT THE TOTAL COST OF THE PROJECT AND THE CONTRIBUTION OF SHARE C APITAL WERE AS PER THE LEGAL NORMS WHICH WERE ALSO DULY RECORDED IN THE B OOKS OF ACCOUNTS. IT IS ARGUED THAT THE GROUP OF DOCTORS WHO HAVE LEFT THE PROJECT HAVE BECOME HOSTILE WITH THE PROJECT OF THE HOSPITAL AND THEREF ORE MADE CERTAIN HARMFUL STATEMENTS. ONE OF THE CLAUSE WAS THAT THE DOCTORS LEAVING THE PROJECT SHALL NOT BE ALLOWED TO PRACTICE WITHIN 100 KMS . OF THE HOSPITAL. BECAUSE OF THIS CLAUSE THE DOCTORS WERE NOT AT EASE WITH THE ASSESSEE COMPANY AND HENCE MADE STATEMENT TO TAKE THE REVENG E. WE ARE NOT DECIDING THE PERSONAL ISSUES CROPPED UP AMONG THE G ROUP OF DOCTORS BUT WE ARE CONCERNED ABOUT THE ALLEGATION OF THE UNRECO RDED INVESTMENT MADE BY THE ASSESSEE. THE POSSIBILITY IS THAT THE DOCTOR S WHO HAVE LEFT THE PROJECT MIGHT BE HAVING SOME GRUDGE AGAINST THE DOC TORS SUBSEQUENTLY RUNNING THE HOSPITAL AND DUE TO THAT REASON MIGHT H AVE MADE THE STATEMENT AGAINST THE ASSESSEE. HOWEVER THE MOU IS GIVING AN INDICATION THAT THE COST OF THE PROJECT WAS DULY UNDERSTOOD BY THE DOCTORS AND THAT INVESTMENT WAS REQUIRED TO BE MADE IN THE YEARS TO COME. THEREFORE A QUESTION CAN BE RAISED IN RESPECT OF THE CORRECTNES S OF THE STATEMENT MADE BY THOSE LEAVING DOCTORS. ON THESE FACTS WE CAN HO LD THAT THE STATEMENT OF THE GROUP OF DOCTORS WHO HAVE LEFT THE PROJECT H AVE MADE A CONTROVERSIAL STATEMENT HENCE THEIR CONDUCT WAS NO T BEYOND DOUBT. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 27 - 8.4 NEXT POINT. THE REVENUE DEPARTMENT HAS PLACED A VEHEMENT RELIANCE ON PAGE 46 APPENDIX-I OF THE SEIZED MATERI AL THE SAME IS REPRODUCED BELOW: SYNOPSIS 1 EURO=RUPEES 57 (APPROX. 60 TO ROUND THE FIGURES EQUITY : RS.22 00 00 000(RS.18 00 00 000 FOUNDER DO CTORS + RS.2 00 00 000 (AT PAR FOR THE FOUNDER DOCTORS OVER 2008) DEBT:RS.20 00 00 000(APPROX.) 1 ST ROUND: FOUNDER DOCTORS: AT PAR RS.18 00 00 000 INVESTED IN 2006-07 2 ND ROUND: FOUNDER PARTNERS RS.400 00 000 AT 100% PREMIUM TO GIVE RS.800 00 000 EXPECTED INVESTMENT FROM KIRTI PATEL M PHARM- (ANGEL INVESTOR FROM UK): RS.200 00 000 AT 100% PREMIUM TO GIVE RS.400 00 000 EXPECTED INVESTMENT FROM AALST GROUP: RS.200 00 000 AT 100% PREMIUM TO GIVE RS.400 00 000 APPROX. EUROS 6 66 000.00 OR LESSER. THE LAND IS 13 500 SQUARE METERS BUYING PRICE-RS.18 00 00 000+ APPROX. 3 MILLIONS EUROS) INTERESTINGLY THE LAND VALUE HAS DOUBTED SINCE THE TIME WE PAID/BOUGHT IT 1.5 YEARS AGO! SO THE PREMIUM IS ALREADY ABSORBED BY VALUATION OF LAND SO IN REALITY YOU ARE GETTING THE EQUITY AT THE ACTUAL NEWER PRICE OF THE LAND. IF YOUR GROUP DOES NOT COME THEN TWO OUTSIDE INVES TORS (NON DOCTORS) ARE WILLING TO COME AT 200% PREMIUM AT RS.6 00 00 0 00. OUR GROUP HAS ENOUGH FUNDS SO WE WOULD RATHER HAVE A VALUE ADDED PARTNER LIKE YOURS AND KIRTI PATEL (WHO WILL DEVELO P MEDICAL TOURISM FOR INDIAN PATIENTS RESIDING IN UK NHS SYSTEM AND B RING THEM TO INDIA) IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 28 - WE HAVE CAREFULLY EXAMINED THE CONTENTS OF THIS PAG E. INDEED IT IS MENTIONED THAT AN AMOUNT OF RS.18 CRORE INVESTED IN 2006-07. BUT THIS PAGE ALONE AND THE WORD INVESTED ALONE DID NOT LE AD TO A DEFINITE CONCLUSION THAT THE SAID AMOUNT OF RS.18 CRORES WAS THE CONSIDERATION OF THE LAND. THE AMOUNT MENTIONED AS RS.18 CRORES COUL D HAVE BEEN NOTED BY ESCALATING THE PRICE TO INFLUENCE THE OTHER PART ICIPANTS SO THAT THE MAXIMUM CAPITAL CONTRIBUTION COULD BE MADE BY THEM. THE IMPUGNED INVESTED AMOUNT COULD HAVE BEEN ESCALATED SO AS TO GIVE AN IMPRESSION THAT AN INVESTMENT IN THE LAND HAD ALREADY BEEN MAD E HENCE A PROPORTIONATE EQUITY WAS TO BE CONTRIBUTED BY THE D OCTORS/INVESTORS DESIROUS TO JOIN THE PROJECT. THIS PRESUMPTION HAS A BASIS BECAUSE IN THE NOTES UNDERNEATH THE CHART THERE WAS A REFERENCE P REMIUM ON THE VALUATION OF THE LAND WHICH WAS REQUIRED TO BE CONT RIBUTED BY THE GROUP OF DOCTORS. BY MENTIONING THE WORD PREMIUM THE LE ARNED AR HAS PLEADED THAT IN FACT NO PREMIUM AMOUNT TOWARDS LAND WAS PAID BUT IT WAS MERELY A PROJECTED FIGURE TO ATTRACT THE HIGHER FIG URE OF INVESTMENT. HE HAS DRAWN OUR ATTENTION ON NUMBER OF SUCH PAGES WHI CH WERE EXTRACTED FROM THE COMPUTER DISK TO DEMONSTRATE THAT THERE WE RE SEVERAL PROJECTIONS OF THE TOTAL VALUE OF THE PROJECT. THE PROJECTED VA LUE HAD CHANGED ON NUMBER OF OCCASION CONSIDERING THE INTEREST SHOWN B Y THE INVESTORS. SO THE ARGUMENT IS THAT SINCE THE PROJECTIONS HAVE NOT DISCLOSED A STATIC OR A CONSTANT FIGURE THEREFORE SUCH FIGURES SHOULD NOT B E HELD AS AN ACTUAL INVESTMENT BY THE ASSESSEE. THIS PROBABILITY WHICH GENERALLY PREVAILS IN SUCH TYPE OF PROJECTS THUS MUST NOT BE BRUSHED ASI DE ON THE FACE OF IT. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 29 - 8.5 NEXT POINT. WE HAVE ALSO EXAMINED THE STATEMENT S OF VARIOUS DOCTORS WHICH WERE USED BY THE REVENUE DEPARTMENT A GAINST THE ASSESSEE. A STATEMENT OF DR. ANIL R. JAIN WAS RECOR DED ON 23 RD OF SEPTEMBER 2008 U/S. 132(4) OF IT ACT. IN THAT STAT EMENT THERE WAS NO SUCH ACCEPTANCE OF INVOLVEMENT OF CASH TRANSACTION. QUESTION NO.7 8 &9 AND ANSWER NO.7 8 & 9 OF THE SAID STATEMENT WERE T HE DIRECT QUESTIONS BUT IN THOSE ANSWERS THERE WAS CATEGORICAL DENIAL O F ANY INVESTMENT OTHER THAN THE SHARE CAPITAL. DR. ANIL JAIN HAS STATED TH AT HE HAD OPTED OUT FROM THE PROJECT AND THE AMOUNT HE HAS INVESTED WAS REFU NDED AS HIS SHARE APPLICATION MONEY. LATER ON AN ANOTHER STATEMENT WA S RECORDED BY THE ITO AND IN THAT STATEMENT DR. ANIL JAIN HAD TAKEN A TURTLE-TURN AND ALLEGED THE CASH COMPONENT. IF WE COMPARE A STATEMENT U/S.132(4) WITH THE STATEMENT MADE U/S.131 OF IT ACT THEN THE LAW IS VERY CLEAR THAT A STATEMENT U/S132(4) HAS EVIDENTIARY VALUE AND NOT T HE STATEMENT MADE U/S.131 OF IT ACT. A STATEMENT RECORDED U/S. 132(4) IS A STATEMENT ON OATH. THEREFORE A STATEMENT RECORDED ON OATH CAN B E USED AS AN EVIDENCE. AS AGAINST THAT A STATEMENT RECORDED U/S.131 IS NOT A STATEMENT ON OATH THEREFORE IT CANNOT BE USED AS AN EVIDENCE HENCE SUCH A STATEMENT HAS NO EVIDENTIARY VALUE. RATHER IN THIS CASE IT WAS MADE IN THE FORM OF A QUESTIONNAIRE HANDED OVER TO THOSE OUT-GOING DOCTOR S WHO HAVE NOT ANSWERED THE QUESTIONS UNDER OATH. THIS IS ONE OF THE REASON THAT WE ARE HESITANT TO UPHOLD THE REVENUES RELIANCE ON A STAT EMENT MADE BEFORE THE AO. MOREOVER DR. ANIL JAIN HAS KEPT ON CHANGING HI S STATEMENT THEREFORE AS FAR AS HIS STATEMENTS ARE CONCERNED THOSE ARE NOT SAID TO BE VERY DEPENDABLE. IN THIS CONNECTION IT IS ALSO WORTH TO MENTION TH AT A THIRD PARTY STATEMENT SHOULD NOT BE MADE THE BASIS OF ADDITION FOR INCOME IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 30 - TAX PURPOSE. THE TAX PROCEEDINGS SHOULD BE BASED UP ON CERTAIN DIRECT EVIDENCE SO THAT THERE MUST NOT BE ANY MISCARRIAGE OF JUSTICE. 8.6 NEXT POINT . THE ASSESSEE HAS ALSO TRIED TO DEMONSTRATE THAT T HERE WAS A DISPUTE AMONG THE DOCTORS AND BECAUSE OF THAT DISPUTE A GROUP OF THE DOCTORS HAVE SEPARATED FROM THE PROJECT. FEW OF THEM HAVE MADE A STATEMENT AGAINST THE ASSESSEE AND ALSO DISCLOSED A N UNACCOUNTED INCOME AS IF IT WAS THE CASH COMPONENT RETURNED TO THEM BY THE COMPANY. THE ASSESSEE HAS ARGUED THAT THOSE WERE HOSTILE TO THE ASSESSEE. THE ARGUMENT IS THAT A THIRD PARTYS (SPECIALLY A HOSTILE PARTY) CONFESSION CANNOT BE USED AGAINST ANY PERSON UNLESS THAT CONFESSION IS INDEPE NDENTLY SUPPORTED BY A COGENT EVIDENCE. A SERIOUS QUESTION HAS BEEN RAISED THA T HOW MUCH CREDIBILITY CAN BE GIVEN TO SUCH INTIMIDATING WITNESSES . NATURALLY A WITNESS IF PROVED TO BE ANTAGONISTIC CANNOT BE WHOLLY RELIED UPON. HIS STATEMENT OR HIS ACTION HAS TO BE WEIGHED IN THE LIGHT OF THE SURROU NDING CIRCUMSTANCES. WE THEREFORE MAKE AN OBSERVATION THAT FEW STATEMEN TS OR THE FILING OF RETURN OF THOSE DOCTORS WHO HAVE PARTED-WAYS FROM T HE ASSESSEE CANNOT BE MADE THE SOLE BASIS FOR THE IMPUGNED ADDITION. THIS LEGAL ISSUE CAN ALSO BE JUDGED FROM A N ANOTHER ANGEL. THE CREDIBILITY OF A WITNESS IN THE EYES OF LAW HAS CER TAIN DEFINITE NORMS AND STANDARDS. A COMMON LAW IS THAT IT IS UNSAFE TO RE LY UPON AN INTERESTED WITNESS. IT IS POSSIBLE THAT AN INTERESTED WITNESS MIGHT BE HAVING REVENGE IN HIS MIND TO THE EXTENT TO IMPLICATE FALS ELY THEREFORE KEEN IN SEEING THE OTHER PERSON PUNISHED. NATURALLY THE LAW SAYS THAT SUCH A TESTIMONY IS NOT TO BE BELIEVED. A DEPENDABLE AS ALSO RELIABLE WITNESS IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 31 - HAS TO BE A THIRD-PARTY DISINTERESTED AS WELL AS UNRELATED WITNESS. IT IS A STARE-DECISIS NOW REST IN PEACE BEING SO OFTEN ADJUDGED. WE ARE RIGHT NOW DEALING WITH THE TAX PROCEEDINGS HENC E CAN NOT EVEN ATTEMPT TO MAKE A SWEEPING GENERALIZATION ON THIS S UBJECT BEING OUT OF THE SCOPE OF THE I T ACT BUT CAN ADD THAT INSTEAD OF FOLLOWING A THUMB- RULE EACH CASE OUGHT TO BE DECIDED ON ITS OWN FACTS . HENCE AS FAR AS THE FACTS OF THE CASE IN HAND IS CONCERNED ONCE IT IS AN UNDISPUTED FACT THAT THE GROUP OF DOCTORS HAVE DISASSOCIATED THEMSELVES DUE TO CERTAIN DIFFERENCES THEREFORE ANY OF THEIR ACTION CAN NOT BE HELD TO BE UNBIASED OR IMPARTIAL. 8.7 NEXT POINT . WE HAVE ALSO PONDERED UPON AN ARGUMENT WHICH WAS RAISED BY LEARNED AR THAT WHAT WAS THE MATERIAL EVI DENCE IN POSSESSION OF THE REVENUE DEPARTMENT ON THE BASIS OF WHICH IT WAS ALLEGED THAT ON- MONEY WAS PAID FOR PURCHASE OF THE LAND. WHAT WAS T HE INCRIMINATING EVIDENCE IN POSSESSION OF THE REVENUE DEPARTMENT IN SUPPORT OF THE SAID ALLEGATION. WE ARE OF THE VIEW THAT A CLINCHING INCRIMINATING MATERIAL CAN BE USED AGAINST A TAX PAYER IF UNEARTHED AT THE TIME OF SEARCH. THE DOCUMENTS WHICH WERE REFERRED BY THE REVENUE DEPART MENT CANNOT BE SAID TO BE FALLING UNDER THIS CATEGORY OF DOCUMENTS . THOSE WERE COMPUTER GENERATED DOCUMENT WHICH WERE NEITHER SIGNED BY ANY PERSON NOR PROPERLY DATED. BE THAT AS IT WAS BUT WHETHER THO SE DOCUMENTS CAN BE SAID TO BE AN AUTHENTIC DOCUMENT TO BE USED AGAINST THE ASSESSEE TO ALLEGE THAT ON-MONEY WAS TRANSACTED FOR PURCHASE OF LAND. WE ARE OF THE VIEW THAT IN THE CONTEXT OF THE PREVAILING FACTS IT SHAL L NOT BE FAIR AND REASONABLE TO TAKE AN ADVERSE VIEW AGAINST THE ASSE SSEE MERELY ON CERTAIN IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 32 - SUPPOSITIONS. THOUGH WE ARE AWARE THAT IN THE PRESE NT ERA A COMPUTER GENERATED RECORD IS IMPORTANT AND TRUSTWORTHY HENC E THE ABOVE OBSERVATION IS NOT TO BE USED UNIVERSALLY AS WE ARE CONSCIOUS NOT TO MAKE A SWEEPING GENERALIZATION IN RESPECT OF THE COMPUT ER RELATED EVIDENCES FOR THAT REASON TO BE ADJUDGED ON THE BASIS OF THE SURROUNDING FACTS OF EACH CASE. 8.8 NEXT POINT . WE HAVE ALSO PONDERED UPON AN ANOTHER POINT ABOUT THE FAIR MARKET VALUE OF THE LAND IN QUESTION. IT WAS NOTED THAT THE AGRICULTURAL LAND WAS CONVERTED INTO NON AGRICULTUR AL BY THE EFFORTS OF THE ASSESSEE/CCCPL. NATURALLY NON- AGRICULTURAL LAND F ETCH HIGHER PRICE IN THE MARKET. WHEN THE LAND IN QUESTION WAS TRANSACTE D THEN ITS NATURE WAS AGRICULTURAL LAND. AN ANOTHER ADVERSE FACTOR WAS THAT THE LAND IN QUESTION WAS UNDER DISPUTE AMONG THE OWNERS. EARLIE R THE LAND WAS OWNED BY FEW INDIVIDUAL PERSONS. THEN THE CO-OPERAT IVE SOCIETY WAS FORMED AND SUBSEQUENTLY CERTAIN COMPANIES WERE FORM ED. THE ASSESSEE HAD ENTERED INTO THE NEGOTIATIONS WITH THOSE PERSON S AND THEREAFTER COMPLETED THE PURCHASE TRANSACTIONS. IN THAT SITUAT ION IT WAS DIFFICULT TO PRESUME THAT THE ASSESSEE HAD PAID ON-MONEY OVER AN D ABOVE THE SALE PRICE AS DETERMINED BY THE REGISTRAR FOR STAMP DUTY PURPOSE. IT HAS BEEN ARGUED THAT THE SALE PRICE WAS ESCALATED BY THE STA MP DUTY AUTHORITY TIME AND AGAIN TO MATCH WITH THE FAIR MARKET PRICE OF TH E LAND OF THAT AREA. DUE TO THIS REASON THE SALE PRICE AS DETERMINED BY THE STAMP DUTY OFFI CER WAS AT PAR WITH THE PREVAILING MARKET PRICE OF THE LAND. THIS ARGUMENT OF THE ASSESSEE HAS SUBSTANTIAL FORCE ESPE CIALLY WHEN THE REVENUE DEPARTMENT HAS NOT PLACED ANY COMPARABLE IN STANCE OF IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 33 - PREVAILING MARKET PRICE. THERE IS NO EVIDENCE ON RE CORD THROUGH WHICH IT COULD BE DEMONSTRATED BY THE REVENUE DEPARTMENT THA T AS PER SOME OTHER SALE INSTANCE THERE WAS INDEED HIGHER PREVAILING MA RKET PRICE THEN THE SALE PRICE RECORDED IN THE SALE DEED. IN THE ABSENC E OF ANY SUCH EVIDENCE IT IS WRONG ON THE PART OF THE REVENUE DEPARTMENT T O PRESUME THAT THE PREVAILING MARKET PRICE WAS HIGHER THAN THE SALE PR ICE AS RECORDED IN THE REGISTERED SALE-DEED. 8.9 AN ANOTHER IMPORTANT POINT HAS ALSO BROUGHT TO OUR NOTICE THAT WHETHER REVENUE DEPARTMENT HAD GATHERED ANY EVIDENC E THROUGH WHICH IT COULD BE DEMONSTRATED THAT THE ASSESSEE HAD GENERATED UNACCOUNTED INCOME WHICH WAS ALLEGEDLY USED FOR THE PURCHASE OF LAND. THERE WERE SEVERAL WORKING SHEETS EXTRACTED FROM THE COMPUTER BUT THOSE WERE FOUND DULY RECORDED IN THE BOOKS OF ACCOUNT. THE BOOKS OF ACCOUNTS OF THE CCCPL AND THE ASSESSEE WERE EXAMINED BY THE REVENUE DEPARTMENT. THERE WAS NO SUCH EVIDENCE UNEARTHED EVEN WHEN THE EXTREME STEP OF SEARCH OPERATION WAS TAKEN AGAINST THE ASSESSEE. TH E REVENUE DEPARTMENT HAS NOT FOUND THAT THE PROFESSIONAL FEES WAS NOT FULLY RECORDED BY THE ASSESSEE. IF THERE WAS NO ELEMENT O F EARNING OF UNACCOUNTED INCOME THEN IT WAS WRONG ON THE PART OF THE REVENUE DEPARTMENT TO PRESUME THAT UNACCOUNTED INCOME WAS U SED FOR PURCHASE OF LAND. WHERE WAS THE ELEMENT OF UNACCOUNTED CASH AVAILABILITY IS THE QUESTION REMAINED UNANSWERED?. WHEN THERE WAS NO EV IDENCE OF GENERATION OF UNACCOUNTED CASH BY THE ASSESSEE THEN THE ALLEGATION OF CASH PAYMENT REMAINED UNSUBSTANTIATED. THERE WAS NO PROOF FOUND EVEN AFTER THE SEARCH TO ESTABLISH THAT THE ASSESSEE HAD GENERATED UNACCOUNTED IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 34 - INCOME FROM MEDICAL PROFESSION. EVEN IT IS DIFFICUL T TO BELIEVE IN THE CASE OF THE CCCPL WHICH WAS IN THE NASCENT STAGE THAT THERE WAS A POSSIBILITY OF AVAILABILITY OF SUCH HUGE UNACCOUNTE D CASH. WE ARE NOT THEREFORE CONVINCED ABOUT THE DIRECTION OF LD. CIT( A) TO EXAMINE THIS ISSUE IN THE HANDS OF CCCPL. 8.10 THE REVENUE DEPARTMENT HAS HELD THAT THE 1 5% PAYMENT WAS IN CHEQUE AND 85% PAYMENT WAS IN CASH WHICH WERE MENTI ONED ON NUMBER OF OCCASION AS PER THE DATA SHEETS OF THE COMPUTER. PRIMA FACIE THOSE SHEETS HAVE DEMONSTRATED THAT THE CONTRIBUTION OF T HE DOCTORS WAS TO BE MADE IN THE SAID PROPORTION. THE EXPLANATION OF THE ASSESSEE IN GENERAL IS THAT PERCENTAGE OF CONTRIBUTION WAS FIXED IN THE LI GHT OF THE PROGRESS OF THE CONSTRUCTION KEEPING IN MIND THE COMPLETION OF THE PROJECT. THE ASSESSEE HAS ALSO EXPLAINED THE 15% OF THE TOTAL PR OJECT WAS IN FACT ALLOCATED TOWARDS THE LAND WHICH WAS REQUIRED TO BE ARRANGED BY THE DOCTORS AT THE TIME OF THE JOINING OF THE PROJECT A ND REST 85% WAS ALLOCATED TOWARDS THE COST OF THE PROJECT. THERE WE RE SEVERAL SHEETS SHOWING VARIOUS PERMUTATION AND COMBINATION ABOUT T HE INVESTMENTS MADE BY THE DOCTORS BUT ALL THAT WHICH WAS RECORDED IN THE COMPUTER HAVE ALSO BEEN SYSTEMATICALLY RECORDED IN THE RESPECTIVE BOOKS OF ACCOUNTS. RATHER THE BANK ACCOUNTS IN SUPPORT OF THE INVESTM ENT HAVE ALSO BEEN PLACED DURING ASSESSMENT PROCEEDINGS. ON THOSE BANK TRANSACTIONS AND THE TRANSACTIONS RECORDED IN THE BOOKS THE REVENUE DEPARTMENT HAS NOT CASTED ANY DOUBT. THOSE WERE FOUND TO BE TRUE AND C ORRECT AS THERE WAS NO FALLACY IN THE TRANSACTION HAPPENED TO BE MADE T HROUGH BANK. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 35 - 8.11 LEARNED AR HAS RAISED AN ARGUMENT THAT NO CORRESPONDING LEGAL ACTION SO FAR WAS TAKEN AGAINST THE SELLERS OF THE PROPERTY. ACCORDING TO HIM REVENUE DEPARTMENT SHOULD HAVE CHARGED THE CAP ITAL GAIN ON THE ALLEGED CASH COMPONENT FROM THOSE COMPANIES WHO HAV E SOLD THE PROPERTY. BY NOT TAKING ANY ACTION THE REVENUE DEPA RTMENT HAD WEAKENED THE ALLEGATION. WE HAVE ASKED THIS QUESTIO N FROM THE REVENUE DEPARTMENT BUT FAILED TO GET ANY SATISFACTORY REPLY . 8.12 FROM THE SIDE OF ASSESSEE FEW CASE LAWS HAV E BEEN CITED IN SUPPORT OF THE CONTENTION THAT LEARNED CIT(A) WENT WRONG IN DIRECTING THE ASSESSMENT TO BE IN THE HANDS OF THE ASSESSEE COMPA NY. IN THE CASE OF CIT VS. KRISHI UDPADAN MANDI SAMITI 336 ITR 77 (AL D) IT WAS HELD THAT THERE WAS NO MATERIAL WITH CIT(A) TO DIRECT TH E RECEIPTS TO BE TAXED IN THE HAND OF THE MANDI PARISHAD. IT WAS HELD THAT SUCH DIRECTIONS WERE WITHOUT JURISDICTIONS. LIKEWISE IN THE CASE OF MRS. BANOO E. CAWASJI 10 TAXMAN 97 (MP) IT WAS HELD THAT CIT(A) WAS NOT COMPETENT TO ISSUE DIRECTION TO CANCEL AN ASSESSMENT MADE IN THE CASE OF THE DECEASED. AN ANOTHER ORDER HAS ALSO BEEN CITED NAMELY SUN METAL FACTORY (I) (P.) LTD. 124 ITD 14 (CHENNAI) . IN THIS JUDGMENT A SEARCH WAS ON THE ASSESSEE AND ON THE MANAGING DIRECTOR. ON APPEAL CI T(A) HAD HELD THAT THE ADDITION MADE IN THE BLOCK ASSESSMENT DID NOT E MANATE FROM THE EVIDENCE FOUND AT THE TIME OF SEARCH HENCE THE ADDI TION WAS NOT SUSTAINED. HOWEVER LEARNED CIT(A) HAS DIRECTED TO ISSUE NOTICE U/S 148 TO BRING TO TAX THE BOGUS ADVANCES. IT WAS HELD THA T THE LEARNED CIT(A) HAS FAILED TO RECORD A CATEGORICAL FINDING JUSTIFYI NG THE DIRECTION GIVEN TO THE AO WHEN THE AO HAD NOT CHOSEN FOR REOPENING OF THE ASSESSMENT IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 36 - THEN THE DIRECTION GIVEN BY LEARNED CIT(A) WERE TO BE SET ASIDE. IN THE LIGHT OF THESE DECISIONS LEARNED AR HAS VEHEMENTLY PLEADED THAT THE DIRECTION MADE BY LEARNED CIT(A) TO ASSESS THE CASH COMPONENT IN THE HANDS OF THE COMPANY WAS BEYOND HIS JURISDICTION TH EREFORE REQUIRED TO BE OVER RULED. CONSIDERING THE CIRCUMSTANCES UNDER WHICH SUCH DIRECTIONS WERE GIVEN IT IS HEREBY HELD NOT VALID IN THE EYES OF LAW. 8.13 NEXT POINT. IT IS A UNIVERSAL LAW THAT TH E SUSPICION HOWSOEVER STRONG CANNOT TAKE THE PLACE OF EVIDENCE. AT BEST IT CAN ONLY LEAD TO INVESTIGATION. NO PERSON CAN BE PUNISHED MERELY ON THE BASIS OF A DOUBT BUT SIDE BY SIDE MUST NOT BE SPARED ON THE BASIS O F UNFAVORABLE EVIDENCE. SO THE PROCEDURE IS THAT A MISTRUST LEADS TO INVEST IGATION AND AN INVESTIGATION LEADS TO COLLECTION OF EVIDENCE. THER E ARE SEVERAL DECISIONS IN THE PAST PRONOUNCED BY THE HONBLE APEX COURT WH EREIN A GENERAL RULE IS FRAMED THAT ALTHOUGH THE ITO IS NOT FETTERED BY THE TECHNICAL RULE OF EVIDENCE BUT ITO IS NOT ENTITLED TO MAKE A PURE GUESS HOWEVER REQUIRED TO MAKE AN ASSESSMENT WITHOUT REFERENCE TO ANY EVIDENCE. THERE MUST BE SOMETHING MORE THAN BARE SUSPICION. I N THE PRESENT APPEAL A FUNDAMENTAL QUESTION IS THAT WHETHER THERE WAS SU FFICIENT CLINCHING EVIDENCE UNEARTHED BY THE REVENUE DEPARTMENT CONSEQ UENT UPON THE SEARCH TO MAKE A FIRM BELIEF THAT IN FACT THERE WAS THE EXISTENCE OF UNACCOUNTED INVESTMENT IN THE PURCHASE OF LAND. SID E BY SIDE A SECOND QUESTION THEREFORE ARISES THAT WHETHER THE IMPUGNED ADDITION WAS IN THE NATURE OF SUSPICION ONLY. WE HAVE CAREFULLY EXAMINE D BOTH THESE QUESTIONS AND THEN ON CRITICAL ANALYSIS OF THE EVID ENCES AND UNDER THE TOTALITY OF THE CIRCUMSTANCES WE HEREBY HOLD THAT THOSE WERE NOT EVEN IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 37 - THE INCRIMINATING MATERIAL BUT SIMPLY COMPUTER GENE RATED PROJECTION- SHEETS THEREFORE HARD TO SAY SYNONYMOUS TO CLINC HING MATERIAL EVIDENCE DEPICTING CASH TRANSACTION HENCE ERRONEOUSLY SUSPE CTED BY THE REVENUE DEPARTMENT. WE HEREBY HOLD THAT THERE WAS NO EVIDEN CE IN POSSESSION OF THE REVENUE DEPARTMENT TO HOLD THAT THE ASSESSEE HA D IN FACT MADE AN UNACCOUNTED INVESTMENT TOWARDS THE PURCHASE OF THE PROPERTY. 9. SECOND GROUND OF THE REVENUE IS REPRODUCED BELOW: THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACT S AND CIRCUMSTANCES OF THE CASE AND DIRECTED TO DELETE THE ADDITION OF RS.4 57 23 509/- IN RESPECT OF UNACCOUNTED INCOME PAID TO OUTGOING SURGEON DOCTORS BY HOLDING THAT SAID AMOUNT SHOULD BE TAXED IN THE HANDS OF THE COMPANY M/S CCCPL. 10. FACTS IN RESPECT OF THIS GROUND HAVE ALREADY BE EN DISCUSSED IN ABOVE PARAGRAPHS. DUE TO DIFFERENCE BETWEEN SURGEO N GROUP AND THE CARDIOLOGIST GROUP THE GROUP OF SURGEONS HAVE DE CIDED TO SEPARATE FROM THE PROJECT. THE ALLEGATION WAS THAT TO PAY-OF F THE SAID GROUP WHO HAD DEPARTED AWAY FROM THE ASSESSEE WERE PAID IN C ASH. IT HAS ALSO BEEN NOTED BY THE AO THAT SOME MORE DOCTORS HAVE BEEN IN TRODUCED IN THE SAID PROJECT. AS PER THE ACCOUNTS THOSE NEW DOCTORS HAVE BEEN ALLOTTED SHARES AS ON 31 ST MARCH 2008. CASE RECORDS HAVE REVEALED THAT SHARE S WERE ALLOTTED AT SOME PREMIUM. OUT OF WHICH 8 06 838 SHA RES WERE ADDITIONALLY ALLOTTED BY CCCPL TO DR. PARIKH. THE A LLEGATION OF THE AO WAS THAT THERE WAS A CASH COMPONENT OF RS.56.67 WH ICH WAS IN RESPECT OF ADDITIONAL SHARES OF RS.8 06 838/- AND THEREFORE THE AMOUNT OF RS.4 57 23 509/- WAS HELD AS 85% BALANCE WHICH WAS TAXED IN THE TOTAL INCOME OF THE ASSESSEE. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 38 - APPELLATE AUTHORITY LEARNED CIT(A) HAS RECORDED TH OSE FACTS IN THE FOLLOWING MANNER:- THE NEXT GROUND OF APPEAL IS AGAINST THE ADDITION OF RS.457 23 509 PAID BY THE APPELLANT DR. KEYUR PARIKH TO THE OUTGOING SURG EON GROUP. THIS ISSUE HAS BEEN DISCUSSED BY THE AO IN PARA NUMBER 4.5 AND 4.6 OF THE ASSESSMENT ORDER. AS STATED EARLIER DUE TO THE DIFFERENCES BETWEEN S URGEON GROUP AND THE CARDIOLOGIST GROUP THE SURGEON GROUP SEPARATED FRO M THE CARDIOLOGIST GROUP. IN ORDER TO PAY OFF THE SURGEON GROUP DR. KEYUR PA RIKH HAD PUT IN FURTHER FUNDS AND SOME MORE DOCTORS WERE ALSO INTRODUCED. T HESE DOCTORS WERE ALSO TO BE ALLOTTED SHARES AS ON 31.3.2008. AS A RESULT OF THIS SHARES WERE ALLOTTED TO DR. ASIT JAIN AND KIRTI PATEL AS ON 31.3.2008. T O THEM SHARES WERE ALLOTTED AT PREMIUM. ACCORDING TO THE AO AFTER THE EXIT OF S URGEON GROUP 806 838 SHARES WERE ADDITIONALLY ALLOTTED BY THE COMPANY CC CPL TO THE APPELLANT DR. KEYUR PARIKH. SINCE THE SURGEON GROUP WAS TO BE PAI D OFF BOTH CHEQUE AND CASH COMPONENTS CASH OF RS.56.67 AND CHEQUE OF RS. 10 PER SHARE WAS CONTRIBUTED BY THE APPELLANT DR. KEYUR PARIKH IN RE SPECT OF THE ADDITIONAL SHARES OF 806 838. AS ON 3.2.2008. AS ON 3.2.2008 AS 806 838 SHARES WERE ALLOTTED THE AO HELD THAT 15% AMOUNT WOULD BE RS.8 0 68 380/- FOR ACQUIRING THESE SHARES AT THE RATE OF RS.10 AND THE BALANCE 8 5% AT RS.457 23 509. ACCORDINGLY THE AO MADE ADDITION OF RS.457 23 503 I N THE TOTAL INCOME OF THE APPELLANT DR. KEYUR PARIKH ON ACCOUNT OF THE CASH C OMPONENT PAID BY THE APPELLANT DR. KEYR PARIKH TO THE SURGEON GROUP. THE AO ALSO HELD THAT THE OTHER DOCTORS NAMELY DR. GUNWANT PATEL DR. P.S. IY ENGAR DR. JOYAL SHAH AND DOCTORS MIHIR TANNA WERE ALSO ALLOTTED NEW SHAR ES AS ON 3.2.2008. IN THEIR CASE ALSO THE AO PRESUMED THAT THEY HAVE ALS O CONTRIBUTED CASH FOR THE ALLOTMENT OF THE SHARES. ACCORDINGLY THE ADDITION WAS MADE IN THEIR HANDS ALSO. 11. AFTER EXAMINING THE STATEMENT OF THE OUTGO ING DOCTORS LEARNED CIT(A) HAS DIRECTED TO TAX THE SAID AMOUNT IN THE H ANDS OF THE COMPANY CCCPL. THE REASONS GIVEN BY LEARNED CIT(A) WERE AS UNDER: FROM THE ABOVE MENTIONED SEIZED DOCUMENT IT IS CL EAR THAT THE SHARE APPLICATION MONEY FROM DR KEYUR PARIKH ALONGWITH FO UR NEW DOCTORS NAMELY DR P. S LYENGER DR JOYAL SHAH DR GUNVANT PATEL AN D DR MIHIR TANNA WAS OUTSTANDING IN THE BOOKS OF CCCPL AS ON 31/3/2008. ON VERIFICATION THE SHARE APPLICATION MONEY WAS RECEIVED FROM THESE 4 D OCTORS DURING 24 TH TO 26 TH MARCH 2008 AND FROM DR KEYUR PARIKH ON OR BEFORE 8/ 2/2008. PRIOR TO THIS DATE AS ON 3/2/2008 NEW SHARES HAD BEEN ALLOTTED B Y THE COMPANY TO VARIOUS DOCTORS. THE AMOUNT PAID BY THE FOUR NEW DOCTORS IS SHOWN AS SHARE APPLICATION MONEY AS ON 31/3/2008 ALONGWITH 806 838 FROM DR KEYUR PARIKH. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 39 - IN THIS TABLE THERE IS NO MENTION REGARDING ANY .P AYMENT OVER AND ABOVE THE FACE VALUE OF RS. 10. UNDER THE LAST COLUMN OF 'OTH ER SHARE APPLICATION MONEY RECEIVED UPTO 31-3-08 OF RS. 66/-+ PREMIUM' T HE NAME OF TWO DOCTORS NAMELY DR. ASHIT JAIN AND TANUJA-KIRTI PATEL IS SHO WN. UNDER THIS COLUMN THE NAMES OF DR KEYUR PARIKH AND FOUR NEW DOCTORS DO NO T FIGURE. IT IS ONLY ON THE BASIS OF STATEMENT OF THE SIX SURGEON DOCTORS THE AO HELD THAT DR KEYUR PARIKH PAID THE CASH TO THE OUTGOING SIX DOCTORS FR OM HIS UNACCOUNTED SOURCES. AS CAN BE SEEN FROM THE ABOVE TABLE 806 8 38 SHARES WERE ALLOTTED TO DR KEYUR PARIKH ON 31/3/2008 BY THE COMPANY CCCPL O UT OF THE SHARE APPLICATION MONEY RECEIVED FROM HIM. THE OUTGOING S IX DOCTORS DID NOT SELL THE SHARES OF THE COMPANY TO DR. KEYUR PARIKH. IT M AY BE MENTIONED-THAT IN THE CROSS-EXAMINATION THE OUTGOING SIX SURGEON DOCT ORS ADMITTED THAT DR KEYUR PARIKH HAD NOT PAID ANY CASH TO THEM DIRECTLY OR THEY HAVE NOT PAID ANY CASH TO HIM DIRECTLY. IN THE CROSS EXAMINATION THEY HAVE MENTIONED THE NAME OF MR NIHIR SHAH AN EMPLOYEE OF CCCPL (MANAGE R) TO WHOM THEY HAVE PAID CASH OR RECEIVED CASH. IN THE CROSS EXAMINATIO N ALL THE SIX DOCTORS CATEGORICALLY STATED THAT-THEY HAVE NOT DIRECTLY TR ANSACTED WITH DR KEYUR PARIKH. THEREFORE EVEN IF IT PRESUMED THAT THE CAS H WAS PAID BACK TO THE OUTGOING SURGEON DOCTORS THE SAME WAS PAID BY THE COMPANY CCCPL AS IT WAS THE COMPANY WHO HAD ALLOTTED THE SHARES TO DR K EYUR PARIKH. I WOULD HAVE ACCEPTED THE FINDING OF.THE AO THAT DR. KEYUR PARIKH HIMSELF HAD PAID CASH TO THE OUTGOING DOCTORS IF THE OUTGOING DOCTO RS HAD SOLD THEIR SHARES TO DR. KEYUR PARIKH. IN THIS CASE SHARES WERE NOT ALL OTTED TO THE SIX OUTGOING DOCTORS BUT THE SHARE APPLICATION MONEY CONTRIBUTED BY THEM WAS REFUNDED BACK TO THEM BY THE COMPANY ON 15/2/2008. ON 3/2/20 08 SHARES HAVE BEEN SHOWN AS ALLOTTED TO THE CARDIOLOGIST GROUP ON THE OTHER HAND NO SHARES ARE SHOWN AS ALLOTTED TO THE SURGEON GROUP. FURTHER DR KEYUR PARIKH HAS PAID APPROX. RS. 80 LAKHS TO THE COMPANY CCCPL TOWARDS S HARE APPLICATION MONEY. AGAINST THIS THE SHARES HAVE BEEN ALLOTTED TO HIM BY THE COMPANY ON 31.03.2008. THEREFORE IF CASH WAS PAID TO THE OUT GOING SURGEON DOCTORS THE SAME WAS PAID BY THE COMPANY CCCPL AND NOT BY DR KE YUR PARIKH IN HIS INDIVIDUAL CAPACITY. THE AO IS THEREFORE DIRECTED TO TAX THE PAYMENT OF CASH TO THE OUTGOING SURGEON DOCTORS IN THE HANDS OF THE COMPANY CCCPL AND NOT IN THE HANDS OF DR KEYUR PARIKH. ' 12. WITH THIS BACKGROUND WE HAVE HEARD BOTH THE SIDES. AS FAR AS THE ISSUE OF THE EXISTENCE OF CASH COMPONENT IN THE PURCHASE OF THE LAND IS CONCERNED WE HAVE ALREADY TAKEN A VIEW THAT IT WAS NOT CONCLUSIVELY ESTABLISHED BY THE REVENUE DEPARTMENT. IN ADDITION TO THE DISCUSSION MADE HEREINABOVE ON THIS ISSUE AGAIN WE HAVE NOTED THAT WHILE DECIDING THIS GROUND LEARNED CIT(A) HAS REITERATED THAT THE AO HAD PRESUMED THAT IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 40 - SOME OF THE DOCTORS HAVE CONTRIBUTED CASH FOR THE A LLOTMENT OF THE SHARES. THIS IS THE POINT WHICH HAS BEEN EMPHASIZED AND VEH EMENTLY OBJECTED BY THE ASSESSEE THAT THE ENTIRE PROCEEDINGS IN RESPECT OF THE INVOLVEMENT OF CASH TOWARDS PURCHASE OF PROPERTY WAS BASED UPON TH E PRESUMPTION MADE BY THE AO. EVEN THE LEARNED CIT(A) HAS OPINED THAT EVEN IF IT IS PRESUMED THAT THE CASH WAS PAID BACK TO THE OUTGOIN G SURGEONS THE SAME WAS PAID BY THE COMPANY CCCPL AND NOT BY KEYUR PARIKH IN HIS INDIVIDUAL CAPACITY. UNDISPUTEDLY IT WAS THE COMPANY WHO HAD ALLOTTED THE SHARES TO DR. KEYUR PARIKH. THEREFORE THE REVENUE OFFICERS WERE NOT SURE WHETHER THE CASH WAS ACTUALLY PAID BA CK TO THE OUTGOING DOCTORS BY CCCPL OR BY DR PARIKH. IN THE ABSENCE OF ANY CONCRETE EVIDENCE IT WAS NOT JUSTIFIABLE FOR THE REVENUE OF FICERS TO TAX THE IMPUGNED AMOUNT IN THE HANDS OF THE ASSESSEEE. LEAR NED CIT(A) HAS RATHER CONFUSED THE ISSUE. IF HE IS OF THE VIEW THA T IT WAS TO BE PRESUMED THAT CASH WAS PAID BACK TO THE OUTGOING DOCTORS THE N WHY AT ALL MERELY ON SUSPICION HE HAS DIRECTED TO ASSESS THE SAME IN THE HANDS OF THE COMPANY CCCPL. SKEPTICISM MUST NOT LEAD TO INFLICT PUNISHME NT. RATHER IN A SITUATION WHEN CIT(A) HAD THE UNCERTAINTY THEN JUDI CIOUS APPROACH WOULD BE THAT HE SHOULD HAVE JUSTIFIABLY DELETED TH E ADDITION ON HIS OWN INSTEAD OF DIRECTING THE AO TO EXAMINE THE FACTS AN D TAX IN THE HANDS OF THE COMPANY CCCPL. IT IS WORTH TO MENTION THAT AS O N DATE NOTHING IS ON RECORD TO SEE WHETHER ANY CONSEQUENTIAL ACTION WAS TAKEN IN THE CASE OF CCCPL. IN A SITUATION WHEN WE HAVE ALREADY TAKEN A VIEW THAT THERE WAS NO ELEMENT OF ON MONEY IN THE PURCHASE OF THE PROPE RTY IN QUESTION THEN IN CONSEQUENCE THEREOF THERE WAS NO ELEMENT OF PAY MENT OF CASH TO THE OUTGOING DOCTORS. WE THEREFORE AFFIRM THE FINDING S OF THE LEARNED IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 41 - CIT(A) TO THE EXTENT THAT THE AMOUNT IN QUESTION IS NOT TO BE TAXED IN THE HANDS OF DOCTOR KEYUR PARIKH. THIS GROUND OF THE RE VENUE IS THEREFORE DISMISSED. IN THE RESULT THE APPEAL OF THE REVENUE IS HEREBY DISMISSED. B. IT(SS)A NO. 604/AHD/2011 A.Y. 2008-09 (ASSESSEE DR. KEYUR PARIKHS APPEAL) 13. GROUND NOS.1 AND 2 OF THE ASSESSEE IS REPRODUCED BE LOW: 1. THE LEARNED COMMISSIONER (APPEAL) FAILED TO UND ERSTAND THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW . 2. THE LEARNED COMMISSIIONER (APPEAL) ERRED IN FACT AND IN LAW IN NOT ACCEPTING THE CONTENTION OF THE APPELLANT THAT THE ASSESSING OFFICER HAS RELIED UPON DUMB DOCUMENTS AND COMPUTER HARD DISK FOUND FR OM THE OFFICE PREMISES OF THE COMPANY NAMELY CCCPL AND RESIDENCE OF THE DO CTORS DURING THE SEARCH. 14. LEARNED AR HAS STATED THAT GROUND NO.1 IS GENER AL IN NATURE AND GROUND NO.2 RELATES TO THE MAIN GROUND OF THE REVEN UE. IN THE LIGHT OF THIS SUBMISSION THESE GROUNDS BEING GENERAL IN NATURE A ND NOT RAISING ANY PARTICULAR LEGAL ISSUE THEREFORE DISMISSED BEING REDUNDANT. 15. GROUND NOS.3 4 & 5 ARE REPRODUCED BELOW: 3. THE LEARNED COMMISSIONER (APPEAL) ERRED IN FACT AND IN LAW IN CONFIRMING THE ADDITION OF RS.1 30 00 000/- AS UNACCOUNTED INCOME UTILIZED IN ACQUIRING THE LAND BY THE COMPANY CCCPL. 4. THE LEARNED COMMISSIONER (APPEAL) ERRED IN FACT AND IN LAW IN DIRECTING THE ADDITION OF RS.3 00 000/- AS UNACCOUNTED INCOME IN ASSESSMENT YEAR 2007-08 UTILIZED IN ACQUIRING THE LAND BY THE COMPANY CCCPL . 5. (A) THE LEARNED COMMISSIONER (APPEAL) ERRED IN F ACT AND IN LAW IN DIRECTING THE ADDITION OF RS.1 07 000/- IN THE HAND S OF COMPANY CCCPL AS UNACCOUNTED INCOME IN ASSESSMENT YEAR 2007-08 UTILI ZED IN ACQUIRING THE LAND. (B) THE LEARNED COMMISSIONER (APPEAL) ERRED IN FAC T AND IN LAW IN DIRECTING THE ADDITION OF RS.3 15 00 000/- IN THE HANDS OF CO MPANY CCCPL AS IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 42 - UNACCOUNTED INCOME IN ASSESSMENT YEAR 2008-09 UTILIZED IN ACQUIRING THE LAND. (C) THE LEARNED COMMISSIONER (APPEAL) ERRED IN FACT AND IN LAW IN DIRECTING THE ADDITION OF RS.4 57 23 509/- IN THE HANDS OF COMPANY CCCPL AS UNACCOUNTED INCOME UTILIZED IN PAYING BACK SURGEONS CASH CONTRIBUTION AT THE TIME OF THEIR EXIT FROM THE HOSPITAL PROJECT. 16. ALL THESE GROUNDS HAVE BEEN RAISED BY T HIS ASSESSEE BECAUSE OF THE REASON THAT THE LEARNED CIT(A) HAS GIVEN DIR ECTION TO ASSESS THE AMOUNTS IN THE HANDS OF THE COMPANY CCCPL EITHER IN THE YEAR UNDER CONSIDERATION I.E. A.Y. 2008-09 OR IN THE A.Y. 20 07-08. IN FACT THESE ADDITIONS HAVE BEEN SUGGESTED PRIMARILY BECAUSE OF THE REASON THAT THE LEARNED CIT(A) HAS TAKEN A VIEW THAT THERE WAS PAYM ENT IN CASH FOR THE PURCHASE OF THE PROPERTY. HOWEVER HE HAS HELD THAT THE SAME WAS REQUIRED TO BE TAXED PARTLY IN THE YEAR 2007-08 AND PARTLY IN THE YEAR 2008-09. LEARNED AR HAS RAISED THE LEGAL ISSUE THAT THE LEARNED CIT(A) WAS NOT EMPOWERED TO DIRECT THE AO TO ASSESS THE AM OUNT IN THE CASE OF A PERSON WHO HAS SO FAR NOT BEEN ASSESSED BY THE AO. MOREOVER THE APPEAL OF THE SAID OTHER PERSON I.E. CCCPL WAS NOT PENDIN G BEFORE THE LEARNED CIT(A). ACCORDING TO LEARNED AR LEARNED CIT(A) HAS GIVEN DIRECTION BEYOND HIS JURISDICTION. AT THE MOMENT WE ARE NOT ANSWERING THE QUESTION OF THE JURISDICTION OF LEARNED CIT(A) BECA USE OTHERWISE ON MERITS WE HAVE TAKEN A VIEW THAT LAND WAS PURCHASED ON THE AMOUNT AS PER THE REGISTERED SALE DEED AND THERE WAS NO PAYME NT OVER AND ABOVE THE AMOUNT SO DECLARED. ONCE THIS VIEW HAS BEEN TAKEN THEREFORE THE DIRECTION GIVEN BY LEARNED CIT(A) AS CHALLENGED IN THESE GROUNDS ARE HEREBY REVERSED. ON MERITS THESE GROUNDS ARE HEREBY ALLOWED. 17. IN THE RESULT ASSESSEES APPEAL IS PARTLY ALLO WED. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 43 - C. IT(SS)A NO. 601/AHD/2011 A.Y. 2008-09 (REVENUES APPEAL) (DR. ANISH CHANDARANA) 18. THIS APPEAL IS ARISING FROM THE COMMON ORDER OF LEARNED CIT(A)- III DATED 27.09.2011 AND THE REVENUE HAS RAISED TH E FOLLOWING GROUNDS: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND CI RCUMSTANCES OF THE CAE BY PROVIDING RELIEF OF RS.15 00 000/- TO THE ASSESS EE ON THE ISSUE OF UNEXPLAINED INVESTMENT FOR THE PURCHASE OF LAND. 19. IN RESPECT OF THE ABOVE AMOUNT THE EXPLANATION OF THE ASSESSEE WAS THAT IN THE BOOKS OF ACCOUNT OF DR. ANISH CHANDARAN A THE IMPUGNED AMOUNT OF RS.15 LACS WAS SHOWN AS PURCHASE OF EQUIT Y SHARES OF A COMPANY NAMELY SHALIGRAM BUILDCON PVT. LTD. ON 16 TH APRIL 2007. THE AOS OBJECTION WAS THAT ON THE SHARE APPLICATION AM OUNT GENERALLY NO INTEREST IS ALLOWED THEN HE HAS ALSO OBJECTED IN RE SPECT OF THE AMOUNT WHICH WAS TRANSFERRED TO THE HUF ACCOUNT. THE ASSES SEES EXPLANATION WAS THAT THE SAID AMOUNT WAS PARKED WITH HUF WHICH WAS LATER ON USED IN THE PROJECT OF THE CCCPL COMPANY. ACCORDING TO A O SINCE DR. ANISH WAS ALLOTTED 82 500 SHARES THEREFORE APPLYING THE R ATE OF 56.67 HE HAS HELD THAT THERE WAS AN INVESTMENT OF CASH TO THE TU NE OF RS.46 75 000/-. 20. WITH THIS BACKGROUND WE HAVE HEARD BOTH THE SI DES. IN THE ABSENCE OF ANY DIRECT EVIDENCE THAT THERE WAS CASH INVOLVEM ENT FOR THE ALLOTMENT OF SHARES WE CANNOT UPHOLD THE BASIS OF THE IMPUGNE D ADDITION WHICH WAS PRIMARILY MADE MERELY ON PRESUMPTION. RESULTANTLY WE FIND NO FORCE IN THIS GROUND OF THE REVENUE. HENCE DISMISSED IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 44 - 21. IN THE RESULT APPEAL OF THE REVENUE IS DISMISS ED. D. IT(SS)A NO. 674/AHD/2011 A.Y. 2008-09 (ASSESSEE-DR. ANISH CHANDARANAS APPEAL) 22. THE MAIN GROUND CONTESTED BEFORE THE TRIBUNAL I S AS FOLLOWS: THE ADDITION OF RS.31 75 000/- ON ACCOUNT OF ALLEGED CASH PAYMENT TREATING THE SAME AS UNACCOUNTED INCOME CONFIRMED BY THE LD. CIT(A) MAY KINDLY BE DELETED. 23. THE FINAL VERDICT ON THIS ISSUE OF LEARNED CIT( A) WAS AS UNDER: IN OTHER WORDS EVEN DOCTOR BHARAT TRIVEDI ADMITTE D THAT THE CASH OF RS.10 LAKH WAS GIVEN BY DR. ANISH CHANDARANA TO SHRI NIHI R SHAH MANAGER OF CCCPL ON 10.4.2007. THIS MEANS THE BALANCE AMOUNT OF RS.31.75 LACS WAS PAID BY HIM FOR THE PURCHASE OF LAND IN CASH. IN SHORT OUT OF THE ADDITION OF RS.46.75 LACS THE ADDITION OF RS.31.75 LACS IS SUS TAINED IN HIS HANDS AND THE BALANCE AMOUNT OF RS.15 LACS IS DIRECTED TO BE ASSE SSED IN THE HANDS OF THE COMPANY CCCPL IN THE ASSESSMENT YEAR 2007-08. 24. IN THE LIGHT OF THE ABOVE DISCUSSION WE HEREBY HOLD THAT IT WAS WRONG ON THE PART OF LEARNED CIT(A) TO HOLD THAT TH E IMPUGNED AMOUNT OF RS.31.75 LACS WAS PAID IN CASH TOWARDS PURCHASE OF LAND. IN THE ABSENCE OF ANY DIRECT COGENT EVIDENCE WE HAVE TAKEN A VIEW THAT MERELY ON PRESUMPTION IT WAS WRONG ON THE PART OF THE REVENUE DEPARTMENT TO HOLD THAT THERE WAS CASH INVOLVEMENT IN THE PURCHASE OF THE LAND. RESULTANTLY THE IMPUGNED ADDITION IS HEREBY DELETED AND THE GRO UND OF THE ASSESSEE IS ALLOWED. 25. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED. E. IT(SS)A NO. 603/AHD/2011 A.Y. 2008-09 (REVENUES APPEAL) (DR. MILAN CHINUBHAI CHAG) IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 45 - 26. THE GROUND OF THE REVENUE IS REPRODUCED BELOW: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND C IRCUMSTANCES OF THE CASE BY PROVIDING RELIEF OF RS.75 00 000/- TO THE ASSESSEE ON THIS ISSUE OF UNEXPLAINED INVESTMENT FOR THE PURCHASE OF LAND. 27. THE EXPLANATION OF THE ASSESSEE IN RESPECT OF T HE PAYMENT MADE TO CCCPL WAS AS UNDER: DR. MILAN CHAG 1/3/2007 25 00 000 LALJIBHAI SAVLA 4/11/2007 75 00 000 SHALIGRAM BUILDCON P L 12/28/2007 12 50 000 AAKASH CERAMICS P.L. SUB TOTAL 1 12 50 000 28. THE FINDING WAS GIVEN THAT THE CHEQUES OF RS.25 LACS AND RS.75 LACS WERE FOUND RECORDED AS PER THE SEIZED MATERIAL . THERE WAS ANOTHER FACT THAT THE APPELLANT HAD SHOWN SHARE APPLICATION MONEY OF AAKASH CERAMIC PVT. LTD. OF RS.13 LACS DATED 11.12.2007. T HEREFORE THE ASSESSEE HAS TRIED TO EXPLAIN THE SOURCE OF THE DEPOSIT. LEA RNED CIT(A) HAS EXAMINED THOSE FACTS AND THEREUPON ARRIVED AT THE C ONCLUSION AS UNDER: FURTHER SINCE THE AMOUNT OF RS.25 LAKH HAS BEEN SH OWN AS PAID ON 3.1.2007 THEREFORE THIS AMOUNT HAS TO BE CONSIDERED IN THE HANDS OF CCCPL IN ASSESSMENT YEAR 2007-08. IN SHORT THE ADDITION OF RS.12.50 LACS IS SUSTAINED IN THE HANDS OF THE APPELLANT DR. MILAN CHUG IN ASS ESSMENT YEAR 2008-09 AND THE BALANCE AMOUNT OF RS.100 LACS IS DIRECTED TO BE ASSESSED IN THE HANDS OF THE COMPANY CCCPL IN TWO DIFFERENT ASSESSMENT YEARS I.E. RS.25 LACS IN ASSESSMENT YEAR 2007-08 AND RS.75 LACS IN ASSESSMEN T YEAR 2008-09. 29. A VIEW HAS ALREADY BEEN TAKEN THAT IN THE ABSEN CE OF A DIRECT EVIDENCE OF CASH INVOLVEMENT THE IMPUGNED ADDITION DID NOT SURVIVE. IN CONSEQUENCE THEREOF THE RELIEF GIVEN BY LEARNED CIT (A) PERTAINING TO THE IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 46 - YEAR UNDER CONSIDERATION IS HEREBY CONFIRMED. THIS GROUND OF THE REVENUE IS THEREFORE DISMISSED. F. IT(SS)A NO. 639/AHD/2011 A.Y. 2008-09 (ASSESSEE-DR. MILAN CHINUBHAI CHAGS APPEAL) 30. THE SUBSTANTIVE GROUND RAISED BY THE ASSESSEE I S REPRODUCED BELOW: THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN SUTAINING THE ADDITION TO THE EXTENT OF RS.12 50 000/- OUT OF TOTAL ADDITION OF RS.1 26 08 333/- MADE BY THE ASSESSING OFFICER FOR THE ALLEGED UNEXPLAINED INVESTMENT IN LAND FOR HOSPITAL PROJECT. 31. A VIEW HAS ALREADY BEEN TAKEN IN THE FOREGOING PARAGRAPHS THAT THERE WAS NO BASIS FOR THE IMPUGNED ADDITION; HENCE THE DIRECTION OF LEARNED CIT(A) UPTO THIS EXTENT ARE HEREBY REVERSED AND THIS GROUND IS ALLOWED. 32. IN THE RESULT ASSESSEES APPEAL IS ALLOWED. G. IT(SS)A NO. 612/AHD/2011 A.Y. 2008-09 (REVENUES APPEAL) (DR. PARTHSARTHY SESHAN IYENGER) 33. THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(A)-III AHMEDABAD DATED 13.09.2011 AND THE GROUND IS REPRODUCED BELOW: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND C IRCUMSTANCES OF THE CASE IN DELETING ADDITION OF RS.17 00 000/- ON ACCOUNT O F UNACCOUNTED CASH PAYMENT FOR PURCHASE OF SHARES OF THE COMPANY M/S. CCCPL. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 47 - 34. AT THE OUTSET FROM THE SIDE OF THE RESPONDENT-A SSESSEE LEARNED AR HAS PLEADED THAT THE VIEW TAKEN IN THE LEAD CASE OF DR. KEYUR PARIKH IS TO BE FOLLOWED IN THIS CASE AS WELL. FURTHER HE HAS P LACED RELIANCE ON A DECISION OF DCIT V/S. MAHENDRA AMBALAL PATEL 40 DTR 243 (GUJ) WHEREIN THE ADDITION WAS MADE ON THE BASIS OF THE S TATEMENT OF A THIRD PARTY. THE HONBLE COURT HAS OPINED THAT THE TRIBUN AL WAS RIGHT IN DELETING THE ADDITION BY HOLDING THAT THE BASIS FOR MAKING THE ADDITION IN THE HANDS OF THE ASSESSEE WAS MERELY ON A BALD STAT EMENT WHICH WAS NOT CORROBORATED BY ANY DOCUMENTARY EVIDENCE FOUND DURI NG THE SEARCH. THE HONBLE COURT HAS CONCLUDED THAT THE TRIBUNAL HAVIN G BASED ITS CONCLUSION ON FINDINGS OF FACTS RECORDED BY IT AFTE R APPRECIATION OF THE EVIDENCE ON RECORD ITS CONCLUSION CANNOT BE HELD T O BE SUFFERING FROM LEGAL INFIRMITY. AN ANOTHER DECISION OF HONBLE GUJARAT HIGH COURT PRONOUNCED IN THE CASE OF DCIT V/S. PRATHNA CONSTRU CTION (TAX APPEAL NO.79 OF 2000) DATED 25.3.2011 IS CITED WHEREIN THE PRESUMPTION AS PRESCRIBED U/S.132(4A) WAS DISCUSSED BUT HELD THAT THE SAME WOULD NOT BE APPLICABLE TO A THIRD PARTY FROM WHOSE POSSESSION DOCUMENTS HAVE BEEN FOUND BY THE REVENUE. 34.1 LEARNED CIT(A) HAS GIVEN THE VERDICT AS FOLLOW S: IN THE CASE OF DR. GUNVANT T PATEL THE SHARE APPLI CATION MONEY OF RS.4 50 000 WAS RECEIVED ON 24 TH TO 27 TH MARCH 2008 AND RS.3 00 000 FROM D.P.S. IYENGER ON 24.3.2008. THERE IS NO DOCUMENT FOUND FROM ANY PREMISES WHICH INDICATE THAT THESE FOUR DOCTORS HAVE PAID CA SH OVER AND ABOVE THE SHARE APPLICATION MONEY OF RS 10 PER SHARE. IN THE CASE OF OTHER DOCTORS WHOSE NAMES ARE APPEARING AT PAGE 84 OF FILE 2-L-08 .KPC I HAVE HELD THAT THEY HAVE PAID AMOUNTS IN THE RATIO OF 85% OVER AND ABOV E 15% AMOUNT PAID BY THEM FOR THE PURCHASE OF LAND. HOWEVER THERE IS NO SUCH EVIDENCE EITHER IN THE SEIZED DOCUMENTS OR IN THE STATEMENTS RECORDED DURING THE COURSE OF SEARCH OR SUBSEQUENT TO THE SEARCH WHICH INDICATES THAT THE APPELLANT 4 IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 48 - DOCTORS HAVE ALSO PAID CASH TOWARDS THE PURCHASE OF SHARES OF CCCPL. IN FACT ON 31/3/2008 THEY WERE ALLOTTED SHARES BY CCC PL. TILL 31/3/2008 THE AMOUNTS RECEIVED FROM THEM HAS BEEN SHOWN UNDER THE HEAD OF SHARE APPLICATION MONEY. IT IS POSSIBLE THAT THE COMPANY MIGHT HAVE CHARGED CASH OF RS. 56.67 OVER AND ABOVE THE CHEQUE OF RS. 10 FROM THESE DOCTORS ALSO. BUT THERE IS NO EVIDENCE IN THE FORM OF SEIZED DOCUMEN TS STATEMENTS RECORDED DURING OR AFTER THE DATE OF SEARCH OR DURING THE AS SESSMENT PROCEEDINGS WHICH PROVES THAT THESE FOUR-DOCTORS HAVE ALSO PAID CASH OVER AND ABOVE THE CHEQUE AMOUNTS. IN THE ABSENCE OF ANY EVIDENCE REGARDING T HE CASH PAID BY THE APPELLANT 4 DOCTORS THE AO IS DIRECTED TO DELETE T HE ADDITION OF UNACCOUNTED INVESTMENTS IN SHARES OF CCCPL MADE IN THEIR CASES. HOWEVER THE AO IS FREE TO EXAMINE THE TAXABILITY IN THE HANDS OF THE COMPA NY CCCPL WHO HAVE ISSUED THE SHARES TO THE APPELLANT DOCTORS AS HELD BY ME IN THE CASE OF DR KEYUR PARIKH. 35. WE HAVE ALREADY TAKEN A VIEW THAT THERE WAS NO EVIDENCE UNEARTHED DURING THE COURSE OF SEARCH TO PROVE THAT THE DOCTORS HAVE ACTUALLY PAID CASH OVER AND ABOVE THE CHEQUE AMOUNT TOWARDS THE PURCHASE OF THE PROPERTY. THEREFORE THE VIEW TAKEN BY LEARNED CIT(A) IS HEREBY CONFIRMED AND THIS GROUND OF THE REVENUE IS DISMISSED. 36. IN THE RESULT REVENUES APPEAL IS DISMISSED. H. CO NO. 29/AHD/2012 A.Y. 2008-09 (ASSESSEE-DR. PART HSARTHY SESHAN IYENGERS CROSS OBJECTION) 37. GROUND OF CO IS REPRODUCED BELOW: THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I II AHMEDABAD AFTER CAREFULLY CONSIDERING THE DETAILS AND SUBMISSIONS M ADE BY THE RESPONDENT HAS RIGHTLY HELD THAT THERE IS NO EVIDENCE IN THE FORM OF SEIZED DOCUMENTS STATEMENTS RECORDED DURING OR AFTER THE DATE OF SEA RCH OR DURING THE ASSESSMENT PROCEEDINGS WHICH PROVES THAT THESE FOUR DOCTORS HAVE ALSO PAID CASH OVER THE ABOVE CHEQUE AMOUNTS. IN ABSENCE OF A NY EVIDENCE REGARDING THE CASH PAID BY THE APPELLANT 4 DOCTORS THE AO IS DIRECTED TO DELETE THE ADDITION OF UNACCOUNTED INVESTMENTS IN SHARES OF CC CPL MADE IN THEIR CASES. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 49 - 38. THE CO HAS BEEN FILED IN SUPPORT OF THE VIEW TA KEN BY LEARNED CIT(A) WHICH HAS ALREADY BEEN APPROVED BY US UPTO T HE EXTENT AS DISCUSSED HEREINABOVE THEREFORE THIS CO HAS BECOM E REDUNDANT; HENCE DISMISSED. 39. IN THE RESULT CO OF THE ASSESSEE IS DISMISSED. I. IT(SS)A NO. 602/AHD/2011 A.Y. 2008-09 (REVENUES APPEAL) (DR. URMIL G. SHAH) 40. THIS APPEAL OF THE REVENUE IS ARISING FROM THE CONSOLIDATED ORDER OF LEARNED CIT(A)-III AHMEDABAD DATED 27.09.2011 AND THE ONLY GROUND RAISED IS AS FOLLOWS: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND C IRCUMSTANCES OF THE CASE BY PROVIDING RELIEF OF RS.35 00 000/- TO THE ASSESSEE ON THE ISSUE OF UNEXPLAINED INVESTMENT FOR THE PURCHASE OF LAND BY HOLDING THAT THE SAID AMOUNT SHOULD BE TAXED IN THE HANDS OF THE COMPANY M/S. CCCPL. 41. IN THIS CASE THE TOTAL AMOUNT STATED TO BE INV ESTED IN CCCPL WAS AS UNDER: DR. URMIL SHAH 4/24/2007 30 00 000 5/2/2007 5 00 000 10/14/2007 5 00 000 10/15/2007 2 50 000 1/23/2008 2 50 000 11/1/2007 1 75 000 SUB TOTAL 46 75 000 IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 50 - 41.1 DURING THE PROCEEDINGS THE ASSESSEE HAS EXPLA INED THE SOURCE IN RESPECT OF THE MAJOR INVESTMENT OF RS.30 LACS AND A LSO IN RESPECT OF THE TWO AMOUNTS OF RS.5 LACS BY STATING THE CHEQUE NUMB ER AND THE PARTIES FROM WHOM THOSE AMOUNTS WERE RECOVERED. LEARNED CIT (A) HAS GIVEN A FINDING THAT UPTO THAT EXTENT THE EXPLANATION OF TH E ASSESSEE WAS CORRECT. HOWEVER HE HAS THEREAFTER HELD THAT RS.35 LACS WAS TO BE TAXED IN THE HANDS OF THE COMPANY CCCPL. IT APPEARS THAT THERE W AS CONTRADICTION IN THE FINDINGS OF LEARNED CIT(A). THE RELEVANT PORTIO N FROM THE ORDER OF LEARNED CIT(A) IS EXTRACTED BELOW: IN SHORT THE CONTENTION OF THE AR IS THAT THE CHEQ UE OF RS.30 LACS DATED 24/4/2007 IN THE NAME OF THE TORREL COSMETICS PRIVA TE LIMITED AND OF RS.5 LACS DATED 14/10/2007 IN THE NAMES OF BHARAT SHAH ( RS.3 LACS) AND MILAN SHAH (RS.2 LACS) WAS GIVEN BY THE APPELLANT DOCTOR TO CCCPL FOR FURTHER ACTION AT THEIR END. THIS CONTENTION OF THE APPELLA NT APPEARS TO BE CORRECT AS THE DATES AND THE AMOUNT EXACTLY TALLY WITH THE SEI ZED MATERIAL. THE AO WILL VERIFY THIS POINT. IN CASE CCCPL ADMITS THAT THE CH EQUES ARE PAID BY THE APPELLANT DOCTOR TO THE OFFICIALS OF CCCPL THEN TO THAT EXTENT THE AMOUNTS CANNOT BE TAXED IN THE HAND OF THE APPELLANT DOCTOR BUT IN THE HANDS OF CCCPL AS HELD BY ME IN OTHER CASES. IN THAT CASE RS .35 LACS WILL HAVE TO BE TAXED IN THE HANDS OF THE COMPANY CCCPL AND THE BAL ANCE AMOUNT OF RS.11.75 LACS IN THE HANDS OF THE APPELLANT DOCTOR. OTHERWISE THE WHOLE AMOUNT OF RS.46.75 LACS IS TO BE TAXED IN THE HANDS OF THE APPELLANT DOCTOR. 42. WE ARE NOT CONVINCED THE MANNER IN WHICH LEARNE D CIT(A) HAS HELD THAT THE BALANCE AMOUNT OF RS.11.75 LACS WAS T O BE TAXED IN THE HANDS OF THE ASSESSEE. AS FAR AS CASH INVESTMENT TO WARDS PURCHASE OF PROPERTY IS CONCERNED A VIEW HAS ALREADY BEEN TAKEN WHICH IS TO BE APPLIED IN THE PRESENT CASE AS WELL. RESULTANTLY T HE GROUND OF THE REVENUE HAS NO FORCE. HENCE DISMISSED. 43. IN THE RESULT APPEAL OF THE REVENUE IS DISMISS ED. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 51 - J. IT(SS)A NO. 640/AHD/2011 A.Y. 2008-09 (ASSESSEE- DR. URMIL G. SHAHS APPEAL) 44. AT THE OUTSET LEARNED AR HAS INFORMED THAT GROUND NOS.1 AND 2 ARE GENERAL IN NATURE HENCE NOT PRESSED. LEARNED AR HA S INFORMED THAT ONLY GROUND NOS. 3 4 & 5 ARE REQUIRED TO BE DECIDED RE PRODUCED BELOW: 3. WITHOUT PREJUDICE ON THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE HAD MADE AN UNDISCLOSED INVESTMENT OF RS.46 75 000 IN CONNECTION WITH THE HOSPITAL PRO JECT OVER AND ABOVE THE CORRESPONDING SUMS SHOWN IN THE ACCOUNT BOOKS OF TH E ASSESSEE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) ERRED IN NOT DELETING RS.35 LACS IN REGARD TO THE CHEQUE PAYMENTS BY THE ASSESSEE AND FURTHER ERRED IN PARTLY SETTING ASIDE THE ASSES SMENT ORDER IN RESPECT OF FURTHER VERIFICATION BY THE ASSESSING OFFICER. 5. WITHOUT PREJUDICE ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE. THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WAS LIABL E TO BE TAXED ON RS.11 75 000 FOR CASH PAYMENTS ALLEGEDLY MADE BY TH E ASSESSEE TO CCCPL IN CONNECTION WITH THE HOSPITAL PROJECT AND HE FURTHER ERRED IN HOLDING THAT THE ASSESSEE CAN ESCAPE TAXATION ON RS.35 LACS ONLY WHI CH IS SHOWN BY THE ASSESSEE AS PAYMENT BY CHEQUES TO CCCPL AND THAT TO O SUBJECT TO VERIFICATION BY THE ASSESSING OFFICER. 44.1 THESE GROUNDS OF THE ASSESSEE ARE COVERED BY T HE DISCUSSION AS MADE HEREINABOVE; HENCE THE ASSESSEE SHALL BE ENTI TLED FOR THE CORRESPONDING RELIEF. AS A RESULT THESE GROUNDS AR E ALLOWED. 45. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. K. IT(SS)A NO. 634/AHD/2011 A.Y. 2008-09 (REVENUES APPEAL) (DR. DHIREN S. SHAH) 46. THE ONLY GROUND RAISED BY THE REVENUE IS REPROD UCED BELOW: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND CI RCUMSTANCES OF THE CASE BY DIRECTING TO DELETE THE ADDITION OF RS.25 15 000 /- OUT OF TOTAL ADDITION OF RS.25 50 000/- ON THE ISSUE OF THE UNACCOUNTED INVE STMENT FOR THE PURCHASE OF LAND. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 52 - 47. LEARNED CIT(A) HAS FOLLOWED THE VIEW TAKEN IN O THER GROUP CASES AND HELD THAT THE AMOUNT WHICH WAS RECEIVED ON 15 TH MARCH 2007 SHALL BE ASSESSED IN A.Y. 2007-08 AND NOT IN A.Y. 2008-09 . HOWEVER IN THE ABSENCE OF ANY ELEMENT OF CASH TOWARDS PURCHASE OF PROPERTY WE HAVE ALREADY REVERSED THE FINDING OF LEARNED CIT(A). AS A RESULT THIS GROUND OF THE REVENUE IS HEREBY DISMISSED. 48. IN THE RESULT APPEAL OF THE REVENUE IS DISMISS ED. L. IT(SS)A NO. 652/AHD/2011 A.Y. 2008-09 (ASSESSEE-DR. DHIREN S. SHAHS APPEAL) 49. LEARNED AR HAS INFORMED THAT GROUND NO.1 AND 2 ARE GENERAL IN NATURE HENCE NOT PRESSED THEREFORE DISMISSED. 49.1. GROUNDS ARGUED ARE AS FOLLOWS: 3. LD. CIT(A) ERRED IN LAW AND ON FACTS IN GIVING A FI NDING THAT THE ADDITION MADE BY AO OF RS.25 50 000/- (READS AS RS.25 15 00 0/- IN APPELLATE ORDER) AS ALLEGED CONTRIBUTION TO THE COMPANY CCCPL FOR PURCH ASE OF LAND FOR HOSPITAL PROJECT AS UNACCOUNTED INCOME OF THE APPELLANT FOR A.Y. 2007/08 WITHOUT ANY CORROBORATIVE EVIDENCE. LD. CIT(A) OUGHT NOT TO HAV E MADE ANY OBSERVATION OR GIVEN A FINDING ONCE HE REACHED THE CONCLUSION T HAT THE SAID ADDITION REQUIRES TO BE DELETED AS INCOME OF THE YEAR UNDER CONSIDERATION. 4. LD. CIT(A) ERRED IN LAW AND ON FACTS IN IGNORING VARIOUS EXPLANATIONS SUBMISSIONS AND EVIDENCES PLACED ON RECORD BY THE A PPELLANT IN ITS PROPER PERSPECTIVE AND FURTHER ERRED IN HOLDING THAT THE A MOUNT OF RS.25.15 LACS WAS RECEIVED BY CCCPL IN CASH FROM THE APPELLANT THAT R EPRESENTED UNACCOUNTED INCOME OF THE APPELLANT. THIS ACTION IS IN CLEAR BR EACH OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 50. IN THE LIGHT OF THE ABOVE VIEW AS A CONSEQUENC E THESE GROUNDS ARE ALLOWED. 51. IN THE RESULT ASSESSEES APPEAL IS PARTLY ALLO WED. IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 53 - M. IT(SS)A NO. 611/AHD/2011 A.Y. 2008-09 (REVENUES APPEAL)(DR. GUNVANT TULSIBHAI PATEL) 52. THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM AN ORDER OF LEARNED CIT(A) DATED 13.09.2011 AND THE ONLY GROUND OF THE REVENUE IS REPRODUCED BELOW: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND CI RCUMSTANCES OF THE CASE BY DELETING ADDITION OF RS.25 50 000/- ON ACCOUNT O F UNACCOUNTED CASH PAYMENT FOR PURCHASE OF SHARES OF THE COMPANY M/S. CCCPL. 53. WE HAVE NOTED THAT AT PAGE 15 OF THE ORDER OF L EARNED CIT(A) A CLEAR CUT FINDING WAS GIVEN BY APPRECIATING THE FAC T THAT QUOTE IN THE CASE OF DR. GUNVANT T PATEL THE SHARE APPLICATION M ONEY OF RS.4 50 000 WAS RECEIVED ON 24 TH TO 27 TH MARCH 2008 AND RS.3 00 000 FROM D.P.S. IYENGER ON 24.3.2008. THERE IS NO DOCUMENT FOUND FR OM ANY PREMISES WHICH INDICATE THAT THESE FOUR DOCTORS HAVE PAID CA SH OVER AND ABOVE THE SHARE APPLICATION MONEY OF RS 10 PER SHARE. IN THE CASE OF OTHER DOCTORS WHOSE NAMES ARE APPEARING AT PAGE 84 OF FILE 2-L-08 .KPC I HAVE HELD THAT THEY HAVE PAID AMOUNTS IN THE RATIO OF 85% OVER AND ABOVE 15% AMOUNT PAID BY THEM FOR THE PURCHASE OF LAND. HOWEVER THE RE IS NO SUCH EVIDENCE EITHER IN THE SEIZED DOCUMENTS OR IN THE S TATEMENTS RECORDED DURING THE COURSE OF SEARCH OR SUBSEQUENT TO THE SE ARCH WHICH INDICATES THAT THE APPELLANT 4 DOCTORS HAVE ALSO PAID CASH TO WARDS THE PURCHASE OF SHARES OF CCCPL. IN FACT ON 31/3/2008 THEY WERE AL LOTTED SHARES BY CCCPL. TILL 31/3/2008 THE AMOUNTS RECEIVED FROM THE M HAS BEEN SHOWN UNDER THE HEAD OF SHARE APPLICATION MONEY. IT IS PO SSIBLE THAT THE COMPANY MIGHT HAVE CHARGED CASH OF RS. 56.67 OVER A ND ABOVE THE IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 54 - CHEQUE OF RS. 10 FROM THESE DOCTORS ALSO. BUT THER E IS NO EVIDENCE IN THE FORM OF SEIZED DOCUMENTS STATEMENTS RECORDED DURI NG OR AFTER THE DATE OF SEARCH OR DURING THE ASSESSMENT PROCEEDINGS WHIC H PROVES THAT THESE FOUR-DOCTORS HAVE ALSO PAID CASH OVER AND ABOVE THE CHEQUE AMOUNTS. IN THE ABSENCE OF ANY EVIDENCE REGARDING THE CASH PAID BY THE APPELLANT 4 DOCTORS THE AO IS DIRECTED TO DELETE THE ADDITION OF UNACCOUNTED INVESTMENTS IN SHARES OF CCCPL MADE IN THEIR CASES. HOWEVER THE AO IS FREE TO EXAMINE THE TAXABILITY IN THE HANDS OF THE COMPANY CCCPL WHO HAVE ISSUED THE SHARES TO THE APPELLANT DOCTORS AS HELD BY ME IN THE CASE OF DR KEYUR PARIKH . UNQUOTE. ON READING OF THIS FINDING IT IS APPARENT THAT IN THE ABSENCE OF ANY DIRECT EVIDENCE THE LEARNED C IT(A) HAS GRANTED RELIEF TO THE ASSESSEE. ONE MORE THING IS APPARENT THAT LEARNED CIT(A) HAD PRESUMED THAT THE COMPANY MIGHT HAVE CHARGED A CASH . BY USING THESE WORDS IT IS CLEAR THAT MERELY ON SUSPICION A VIEW WAS TAKEN BY LEARNED CIT(A). AS DISCUSSED IN ABOVE PARAGRAPHS W E HAVE HELD THAT IT WAS NOT JUSTIFIABLE ON THE PART OF THE REVENUE AUTH ORITIES TO TAX MERELY ON PRESUMPTION. AS A RESULT WE FIND NO FORCE IN TH IS GROUND. HENCE HEREBY DISMISSED. 54. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. N. CO NO. 28/AHD/2012 A.Y. 2008-09 (ASSESSEE-DR.GUNVA NT TULSIBHAI PATELS CO) 55. THROUGH THIS CROSS-OBJECTION THE ASSESSEE HAS SUPPORTED THE RELIEF GIVEN BY LEARNED CIT(A) BUT OBJECTED THE DIRECTION FOR ASSESSMENT IN THE IT(SS)A NOS.601 602 603 604 610 611 612 634 639 640 652 674/AHD/2011 & CO. NOS.28 29/AHD/2012 DR.KEYUR PARIKH DR. ANISH CHANDARANA DR. MILAN CH INUBHAI DR.PARTHASARTHY SESHAN DR. URMIL SHAH DR. DHIREN S. SHAH D. GUNV ANT TULSIBHAI PATEL. A.YS.2008-09 - 55 - HANDS OF CCCPL. A VIEW HAS ALREADY BEEN TAKEN; HENC E THIS CO HAS BECOME REDUNDANT THEREFORE DISMISSED. 56. IN THE RESULT REVENUES APPEAL AS WELL AS CO BOTH ARE DISMISSED. 57. TO SUM UP ALL THE APPEALS OF THE REVENUE AN D CROSS OBJECTIONS OF THE RESPONDENT ASSESSEES ARE DISMISSED WHEREAS TH E APPEALS OF THESE ASSESSEES ARE PARTLY ALLOWED PROTANTO . SD/- SD/- (ANIL CHATURVEDI) (MUKUL KR. SHRAW AT) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 18/10/2013 PRABHAT KR. KESARWANI SR.P.S. TRUE COPY COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A)-III AHMEDABAD 5. DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD