TMI Blog2017 (1) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... vations made by the Settlement Commission which has been reproduced by the learned Tribunal in para 16, we are in complete agreement with the view taken by the learned Tribunal. No error has been committed by the learned Tribunal in holding so and in deleting the addition treating it as undisclosed income. Under the circumstances, the aforesaid question No.B is answered against the Revenue and in favour of the assessee Unaccounted cash payment made by the assessee in respect of booking of the plot in Radhe Acre Scheme - Held that:- Department is not in a position to point out from the order passed by the Assessing Officer that the addition was made by the Assessing Officer on the allegation of any onmoney received from the assessee. Therefore, the learned Tribunal has rightly deleted the addition of ₹ 1 Crore and ₹ 38,98,600/for AY 199596 and AY 199697 respectively by passing a reasoned order. Considering the reasons assigned by the learned Tribunal while making the above addition, we are in complete agreement with the view taken by the learned Tribunal. When the Assessing Officer made the addition solely on the basis of statements of Shri Ashish Patel dated 25.04.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable Finstock Services Ltd. which were deposited in 32 unaccounted bank accounts. Once that is so and once a peak is considered, there cannot be any double taxation as rightly held by the learned Tribunal. We are in complete agreement with the view taken by the learned Tribunal. Under the circumstances, question No.G is also answered against the Revenue and in favour of the assessee. - TAX APPEAL NO. 1330 of 2006 - - - Dated:- 10-11-2016 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE APPELLANT : MR MANISH BHATT, SR. ADVOCATE with MRS MAUNA M BHATT, ADVOCATE FOR THE OPPONENT : MR B S SOPARKAR, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal, Ahmedabad Branch C , Ahmedabad (hereinafter referred to as ITAT ) in ITA No.4849/Ahd/96 for assessment period 198687 to 199596, the Revenue has preferred the present Tax Appeal raising the following substantial questions of law for the determination of this Court. (A) Whether the Appellate Tribunal is right in law and on facts in rejecting the preliminary objection r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was around marginal limits of maximum income not chargeable to tax. However, after a survey under Section 133A in November 1992 in the case of assessee, certain undisclosed bank accounts (32 in number) were detected. He furnished in December 1993 an application to Settlement Commission in which a total additional income of ₹ 2.74 Crores was dicslosed for tax made for the 5 years period from 1988 to 1993. The assessee admitted to have operated 48 undisclosed bank accounts in different names in various banks for carrying out unconnected transactions of investment etc. That application of the assessee was admitted by the Commission vide order dated 09.08.1994 under Section 245D(1). That at the time when the assessment order was passed it appears that Settlement Petition was pending. [2.2] That on 29.09.1995, a search and seizure action under Section 132(1) was carried out in the case of the assessee wherein his residence as well as the office were searched. The search was temporarily concluded on 20.09.1995. By separate warrant of authorization two lockers being Nos.F89 and K95 at Prerna Finsafe Ltd. (private locker company) standing in the name of his minor son Hemil Shah a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/for Assessment Year 199596 and 199697 respectively in respect of unaccounted cash paid by the assessee in respect of booking of plot in Radhe Acre Scheme. The AO also made the addition of ₹ 1,68,70,889/for Assessment Year 199596 on account of unexplained investment in unexplained bank accounts peak balance by computing the credit period of 120 days. The AO also made the addition of ₹ 4,51,500/for Assessment Year 199697 in respect of unaccounted cash receipt on premium of transfer of booking of Plot No.181 of Radhe AcreII. The AO also made the addition of ₹ 10 lakh and ₹ 14,36,000/for Assessment Year 199495 and 199596 respectively in respect of unaccounted investment application and allotment as well as profit on sale of shares of Niko Set Limited. The AO also made the addition of ₹ 61,54,735/in respect of the unexplained cash payment of Shri Girish Ruparel in view of entry from Reliable Finstock Services Ltd. [2.4] Feeling aggrieved and dissatisfied with the assessment order passed by the AO making above addition, the assessee preferred the appeal before the learned ITAT. That by impugned detailed judgment and order the learned ITAT has deleted (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n facts in deleting the addition of ₹ 1,68,70,889/for A.Y 199596 which was made on account of unexplained investment in unexplained bank accounts peak balance? (E) Whether the Appellate Tribunal is right i law and on facts in deleting the addition of ₹ 4,51,500/for A.Y 199697 in respect of unaccounted cash receipt on premium on transfer of booking of plot No. 181 in Radhe Acre II? (F) Whether the Appellate Tribunal is right in law and on facts in deleting by giving benefit of telescoping in respect of addition of ₹ 10 lakhs and ₹ 14,36,000/for A.Y 199495 and 199596 respectively, made in respect of unaccounted investment in application and allotment as well as profit on sale of shares of Niko Set Ltd.? (G) Whether the Appellate Tribunal is right in law and on facts in giving relief by way of telescoping in respect of addition of ₹ 61,54,735/made in respect of unexplained cash payment to Shri Girish P. Ruparel in lieu of entry from Reliable Finstock Services Ltd.? (H) Whether the Appellate Tribunal is right in law and on facts in giving relief by way of telescoping in respect of addition made on account of investment in assets against the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt on premium on transfer of booking of plot No. 181 in Radhe Acre II? 199-212 326-330 F Whether the Appellate Tribunal is right in law and on facts in deleting by giving benefit of telescoping in respect of addition of ₹ 10 lakhs and ₹ 14,36,000/for A.Y 199495 and 199596 respectively, made in respect of unaccounted investment in application and allotment as well as profit on sale of shares of Niko Set Ltd.? 331 to 332 (para 61 of ITAT) G Whether the Appellate Tribunal is right in law and on facts in giving relief by way of telescoping in respect of addition of ₹ 61,54,735/made in respect of unexplained cash payment to Shri Girish P. Ruparel in lieu of entry from Reliable Finstock Services Ltd.? 264-267 H Whether the Appellate Tribunal is right in law and on facts in giving relief by way of telescoping in respect of addition made on account of investment in assets against the addition on account of sources of unaccounted income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon the statements of one Shri Ashish Patel made on 25.04.1996 and 01.05.1996. However, it is required to be noted that subsequently the said Shri Ashish Patel retracted from his above statements when at the request of the assessee he was put for crossexamination and in the examinationinchief itself he retracted from the statements dated 25.04.1996 and 01.05.1996. That thereafter he was declared hostile by the Department. It is required to be noted that prior thereto there was one another statement of the said Shri Ashish Patel on 14.03.1996 when a search and seizure action was carried out in the RDIL s Group in which he specifically denied having received any onmoney from the assessee. [5.0] Shri Bhatt, learned Counsel appearing on behalf of the Revenue has submitted that considering the fact that the price of the land per Acre was stated to be much higher, however the sale transaction was for merely 50% of the same and therefore, there is a presumption of onmoney paid. However, it is required to be noted that the Assessing Officer had not made any addition on the aforesaid ground. Shri Bhatt, learned Counsel appearing on behalf of the Department is not in a position to poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the Revenue and in favour of the assessee. [5.2] Now, so far as the proposed question Nos.E and F i.e. whether the learned Tribunal is right in law and on facts in deleting the addition of ₹ 4,51,500/for AY 199697 in respect of unaccounted cash receipt on premium of transfer of booking of Plot No.181 in Radhe AcreII and whether the learned Tribunal is right in law and on facts in deleting the same by giving benefit of telescoping in respect of addition of ₹ 10 lakh and ₹ 14,36,000/for AY 199495 and 199596 respectively, made in respect of unaccounted investment in application and allotment as well as profit on sale of shares of Niko Set Ltd. are concerned, with the consent of learned Counsels appearing for respective parties, both the aforesaid questions are remitted back to the learned Tribunal to consider the same afresh. Therefore, the deletion of addition of ₹ 4,51,500/for AY 199697 in respect of unaccounted cash receipt of premium on transfer of booking of Plot No.181 in Radhe AcreII and the deletion of addition of ₹ 10 lakh and ₹ 14,36,000/for AY 199495 and 199596 respectively are hereby quashed and set aside and both the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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