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TMI Blog2021 (8) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the assessee." 3. The fact in brief is that a search action u/s. 132 was conducted on 7th October, 2009 in the case of Saumaya Construction Pvt. Ltd. During the course of search action document/books of account belonging to the assessee were found and seized. Therefore, proceedings u/s. 132 was initiated by issuing of notice u/s. 153C of the Act on 14th July, 2011. In response, the assessee has filed return of income on 18th August, 2011 declaring total income at Rs. 1,76,18,932/-. The Assessing Officer also stated that as per information received from the ACIT, Circle - 2(4), Ahmedabad a search and seizure operation u/s. 132 of the Act was carried out in the Himalaya Group on 22nd April, 2008. The main persons of the group Shri Rohit Modi had sold land located at block no. 482, 742 at Shilaj Ta Daskroi known as Tapovan land to M/s. Sandesh Ltd. and others. The value of the land as per the deed was Rs. 1.2 crores. Shri Rohit Modi has admitted cash receipt of Rs. 11,05,51,000/- on the sale of the aforesaid land. The Assessing Officer has stated that the total amount received by the assessee for the sale of the land was Rs. 12,25,51,000/- (Cash Rs. 11,05,51,000 and cheque Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e excess of Rs. 3,21,58,352/- as profit in its P & L A/c. The statement of Shri Rohit Modi and Smt.Pareshaben K Modi can bind them only and not The Sandesh Ltd. It has submitted an Affidavit of Shri Rohit P Modi and Smt Pareshabcn K Modi that The Sandesh Ltd. has not paid any amount in cash to them in addition to the documented price of Rs. 1.20 crores. Few judicial decisions were quoted in support of their claim." However, the Assessing Officer has not accepted the aforesaid submission of the assessee on the following reasons:- "* Shri Modi has, in his return of income shown to have received Rs. 11,05,51,000/- as on money in the transaction of said land. * Shri Modi and The Sandesh Ltd. were the first to enter into an agreement for sale of the said land. Saumya Construction Pvt. Ltd, and Aryaman Co-op Housing Society came into picture later. * hi the appellate proceedings Shri Rohit P Modi has shown to have sold the land to The Sandeah Ltd. whereas the sale deed shows that the end buyer is Aryaman Co-op Housing Society Ltd. and Shri Modi was fully aware of it. * In view of the above fact, the affidavit of Shri Rohit P Modi cannot be relied upon. He did not show up in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Rs. 4,00,000/- on 08.05.2006 by cheque no. 825659 drawn on Union Bank of India Rs. 16,00,000/-on 8.05.2006 by cheque no. 825660 drawn on Union Bank of India 7.1 Finally, on 1.6. 2006 a sale deed was executed by Smt Pareshanen Modi and Rohit P. Modi in favour of Aryaman Co-operative Housing Society Limited. No amount was paid to Smt Pareshaben Modi and Rohit Modi at the time of executing this conveyance deed. However, as per the terms of this deed a total amount of Rs. 4,41,58,352/- was paid to The Sandesh Ltd.. 'This consisted of an amount of Rs. 1.20.00',000/- paid by 'the Sandesh Ltd. originally to Smt Pareshabcn Modi and Rohit P. Modi and a sum of Rs. 1,90,58,352/- calculated @ Rs. 368/- per square yard as additional consideration and a further sum of Rs. 1,31,00,000/- for giving tip all its right in the development of the lands which then as per the conveyance deed would be developed by Saumya lo the exclusion of the Sandesh Ltd. In this conveyance deed executed on 1.6.2006 Saumya Construction Ltd and The Sandesh Limited were confirming parties. 7.2 It is seen that during the search in the case of Rohit Modi documents identified as Annex. Al/ 14. page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment and income from land Dealings:- During the course of search at the premises of the assesses many documents indicating the transactions in the lands were found. These documents are Annexure A-I/I4, page no. 48 to 55 and Annexure A-H6, page nO.82 to 85, In page no 48 to 55 of Annexure A-14, seized from the residence of Sh Dasrath Patni, the transaction entered by Himalaya group has been noted. In the no tings the details of lands I properties purchased by the assesses in various area and villages in and around Ahmedabad has been found. As per these documents, the following details of land dealing by Himalaya Group has been noted. (i) Makarba - Purchase - Rs-2,66,07,000/- Sale Rs. 4,91,00,000/- (ii) Haveli - Purchase -Rs. 3,57,00,000/- Sale - Rs. 3,79,00,000/- (iii) Tapovan ~ Purchase -Rs. 11,45,46,000/- Sale ~Rs. 12,25,51,000/- . (iv) Vejalpur-888 - Purchase - Rs. 2,41,39,000/~ SaltiofFP-90 -Rs.l,82,200,00/- Sale FP..28' Rs. 2,00,00,000/- (v) Ghuma-226-228 - Purchase - Rs. 2,31,20,000/- Sale - Rs. 3,05,00,000/- (vi) Sargasan-43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit the source of purchase and reflection of profit earned by him in land dealing. The reply of assessee was that hand written pages, page no.48 to 55 of Annexure. A-I/14, were the projections of different land dealings, fie stated that market survey of prices of various land at different areas were done by them. Thereafter, cost of development, cost of converting them into non-agriculture land, cost of making the land dispute free were also estimated and adding this cost to the purchase value of land, the final purchase price was estimated. In this way, the lands were made marketable and the sale prices were estimated. These projected figures are reflected in seized documents-A- 1/14. page no. 48 to 55. The assessee further stated that the handwritten noting in above pages has been converted in computerized sheet, which has been found as page no.84 & 85 of Annexure- A-1/6. In these pages, 'projection' is clearly written at the top of page and column of market value is also mentioned at the end of table. The assessee stated that actual transactions were taken place in only few cases. During the course of assessment proceedings .the assessee submitted-a chart as per which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saumya Construction Pvt. Ltd.. It would also be seen that no amount was paid by The Sandesh Ltd. when it had entered into a MOU with Rohit Modi for purchase of land. Subsequently, The Sandesh Ltd. had entered into a memorandum of agreed terms on 2.5.2005 with Saumya Construction Pvt. Ltd. for development of the Tapovan land which it ultimately suurendered in faovur of Saumya Construction Pvt. Ltd, Thus even the first amount of cash payment was made after the memorandum of agreed terms were signed by The Sandesh Ltd. with Saumya Construction Pvt. Ltd. 7.10 The CIT(A)-III, Ahmedabad, inferred that the on-money had been paid by the Sandesh Ltd. In fact the payment was made by Saumya Construction Pvt. Ltd. because Saumya Construction Pvt. Ltd. was the purchaser as all the rights of development had been handed over to Saumya Construction Pvt. Ltd. by the conveyance deed dated 1.6.2006 because on payment of Rs. 4,41,58,352/- The Sandesh Ltd. had surrendered all its rights in favour of Saumya Construction Pvt. Ltd. Further Rohit Modi in his affidavit filed has stated that he has not received any payment from The Sandesh Ltd. Though when The Sandesh Ltd. was asked to produce Rohit Modi t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the previous year 2009-10 relevant to assessment year 2010-11. The ld. CIT(A) has discussed the details of land dealing made in the assessment order in the case of Sh. Rohit Modi at page 25 to 27 of the order of ld. CIT(A). The CIT(A) pointed out that Tapovan land was sold to M/s Aryaman Co-operative Housing Society Ltd. and Sh. Rohit Modi has included the entire receipts as consideration in the computation of income in his return of income. The ld. CIT(A) stated that as per the detail filed by the Shri Rohit Modi during the course of appellate proceedings before ld. CIT(A)-3, Ahmedabad he had not taken the name of any person to whom he has paid amount of Rs. 11,05,51,000/- in respect of Tabovan land. It is also pointed out in the finding of ld. CIT(A) that assessee had given all the rights in respect of Tapovan land in favour of the Saumaya Construction Ltd. Subsequently, the Sandesh Ltd. had entered into a memorandum of agreed terms on 2nd May, 2005 with Saumaya Construction for development of Tabovan land which was already surrendered to Saumaya Construction Pvt. Ltd. The ld. CIT(A) after considering the relevant material has elaborated in his finding as reproduced above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 3. The C.I.T.(Appeals) in para 5 of his order dated 29.11.2013 has held that the agreement as referred above was seized from Saumya Construction Pvt. Ltd. and Sandesh Limited was a party to the document. Therefore, though the addition was made on the basis of a letter received from the Assessing Officer of Shri Rohit Modi, the Assessing Officer was justified in invoking the proceedings u/s. 153C of the I.T. Act, 1961. The said ground has not been contested by the Appellant in the present appeal. 4. The Respondent submits that as per the provisions of Rule 27 of Appellate Tribunal Rules. 1963; "The Respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him." Therefore. Ground No. l of C.I.T.(Appeals) with regard to invoking the proceedings u/s.153C of the I.T. Act, 1961 is now contested and submitted that the reopening by way of issue of notice u/s. 153C is illegal and bad at law. 5. It is further submitted that the said document mentioned in the reasons recorded was not an incriminating document at all. A copy of the said document dated 19.04.2008 between Saumya Construction. Sandesh Limited and Pusti Enter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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