TMI Blog2022 (7) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... outgoing Doctors, we at this stage find no reason to deviate from such stand taken by the Coordinate Bench in holding otherwise. We note that since the issue has already been decided there is no basis of agitating the same issue repeatedly by the Revenue in repeated litigation. We, therefore, find no ambiguity in the order passed by the Ld. CIT(A) in deleting the addition passed by the Revenue in view of the order passed by the Coordinate Bench in holding no unaccounted investment found towards purchase of the property in question. We, therefore, upheld the same. The Revenue s appeal is, thus, found to be devoid of any merit and hence dismissed. - I.T.A. No. 305/Ahd/2014 And C.O. No. 132/Ahd/2014 (in ITA No. 305/Ahd/2014) And I.T.A. No. 306/Ahd/2014 And C.O. No. 133/Ahd/2014 (in ITA No. 306/Ahd/2014) - - - Dated:- 15-7-2022 - Shri Dr. Arjun Lal Saini, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Revenue : Shri A. P. Singh, CIT DR And Shri V. K. Singh, Sr. DR For the Assessee : Shri S. N. Soparkar, Sr. Advocate, with Shri Bandish Soparkar, Advocte ORDER PER Ms. MADHUMITA ROY, JM: Both the appeals and the Cross Objection filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 13,45,407/-. It is relevant to mention that assessment proceedings were completed in various cases of Heart Care Group wherein the Assessing Officer had held that for the purchase of land by CCCPL for the purpose of construction of the hospital, besides the cheque payment of Rs.2.50 crores, the Cardiologist and Cardiac Surgeon group paid a total cash of Rs.15.07 crores approximately. According to the Revenue the surgeon group had admitted the payments made in cash and declared the same in the returns filed. Based on various documents seized additions were made in the case of the Cardiologist Group. 6. Being an aggrieved by and/or dissatisfied with the addition made by the Ld. AO the cardiologist group filed appeals before the First Appellate Authority who in turn upheld the addition upon deciding the issue as follows: In view of the above mentioned discussion, I have no doubt in my mind to hold that beside the cheque amount of Rs.2.50 crores, cash of Rs.15.07 crores was paid for the purchase of land from the seven private limited companies namely Matrand Estate Pvt. Ltd; Matang Properties Pvt. Ltd.; Madhuj Realty Pvt. Ltd.; Medhbhuti Complex Pvt. Ltd; Madhumati Realt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned along with date of payment and amount paid mentioning whether by cheque or by cash and also the name of the person to whom it is paid. This document is enclosed with the reasons recorded today as per Annexure-A. On minutely going through this paper it is found that on certain dates cash is mentioned as paid by company CCCPL to land owners. This means that cash paid by the company has to be explained by the company itself and not by the doctors. Therefore, in my view the amount paid by the company has to be taxed in the hands of the company in A.Y.2007-08 or 2008-09 if the company is not able to explain the cash paid satisfactorily. On going through the seized material and evidences found the CIT(A) has also directed that income to the extent of Rs.3,55,00,000/- and Rs.2,17,00,000/- has to be taxed in the case of CCCPL for A, Y. 2007-08 and 2008-09 respectively because this amount was paid by the company. In view of these facts and taking into consideration the entries found on the computer hard disc as per annexure-A, I am satisfied that income has escaped assessment for A. Y.2007-08 and 2008-09 for failure of the assessee to disclose the transactions fully in the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill form part of this return of income. In the absence of new information or evidence/detail and having a reason to form a belief that income has escaped from assessment on the basis of same facts amounts to change of opinion. Such change of opinion does not justify the action of issue of notice u/s 148 of the I.T. Act, 1961. The assessee also relied on the following decision in support of its claim and requested to drop the assessment proceedings. a. M/s Kelvinator of India Ltd. vs. CIT 320 ITR 561 (SC) b. H. K. Buildcon Ltd. vs. Income Tax Officer (2010) 40 DTR 227 (Gujarat High Court) 10. However, such plea of the assessee was not found acceptable by the Ld. AO and relying upon several judgments passed by different Judicial Forum the Ld. AO rejected the objection raised by the assessee. 11. Consequently notice under Section 143(2) dated 05.10.2012 followed by notice under Section 142(1) along with questionnaire was issued on the same date. The assessee was directed to show cause as to why the amount of cash payment of Rs.2,17,00,000/-should not be added to its income as unaccounted investment in the land as these transactions are not reflected in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs.1 lakh received on 1/10/2006, Rs. 2 lacs received on 15/10/2006, Rs. 24 lakh and Rs. 60 Lacs on 13/6/2007 by the company CCCPL. Similarly, the amount of Rs. 1 lakh received on 12/10/2007 and Rs. 45 Lacs received on 31/10/2007 by the company CCCPL from Dr Keyur Parikh in respect of these two amounts does not match with the cheques amount shown by Dr Keyur Parikh. Hence, in these cases, the cash payment has been considered in the case of doctors. In respect of the remaining amount of Rs.4,19,96,000 (Rs.552,96,000/- - 1,33,00,000 ), the same is considered as the unexplained investment of the company CCCPL. Out of the total payment of Rs. 4.19,96,000 the amounts of Rs. 312,96,000 are pertaining to assessment year 2007-08 as it is evident that the payments have been made in F.Y 2006-07 and Rs. 1,07,00,000/- pertains to assessment year 2008- 09. (Addition 3,12,96,000/-) In the case of Dr Milan Chag, the entries in the books of accounts is as under: Dr. Milan Chag 1/3/2007 2,500,000 Laljibhai Savla 4/11/2007 7,500,000 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /4/2007. Further loan of f 10 lakh is also shown on 29/3/20$$ Himanshu DhananL Only the amount of Rs.15 lakh is shown as paid to Shaligram Buildcon Private Limited for the purchase of equity shares tallies with the books of accounts of Dr Anish Chandarana. Thus, Rs. 15 lacs is added in the case of the company CCCPL in the assessment year 2007-08 as payment ahs been made on 19.07.2007. (Addition Rs. 15,00,000) (iii) (Total addition = Rs. 312,96,000/- + 25,00,000 + 15,00,000) Apart from that addition of Rs.25,00,000/- and Rs.15,00,000/- with the following observation: In the case of Dr Milan Chag, the entries in the books of accounts is as under: Dr. Milan Chag 1/3/2007 2,500,000 Laljibhai Savla 4/11/2007 7,500,000 Shaligram buildcom P L 12/28/2007 12,50,000 Aakash Ceramics P.L. Sub Total 11,250,000 On verification, it was found that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown loan and advances as on 31/8/2011 Milan Shah shown loan and advances as on 31/8/2011 4 15/10/07 2.50 No Direct nexus of Payment 5 01/11/07 1.75 No Direct nexus of Payment 6 23/01/2008 2.50 No Direct nexus of Payment Total 46.75 It is seen that cheque of Rs. 30 Lacs dated 24/4/2007 issued in the name of the TORREL Cosmetics Private 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), hence the amount of Rs. 35 Lacs is taxed in the hands of the company CCCPL . As per the direction of the Ld. CIT(A), a letter was written to CCCPL to confirm whether the amount as mentioned above has been received by them. However, the assessee company has not admitted receipt of these cheques. However, from the bank account of Shri Urmil G Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SS)A No. 604/AHD/2011 in the case of Dr Keyur Parikh wherein it was specifically clarified that no element of cash to the outgoing doctors was found. Neither it is being conclusively established by the department that there is an existence of cash component or unaccounted investment towards purchase of the property as decided by the Coordinate Bench in the case of Dr. Keyur Parikh. On this aspect the Ld. A.R. drew our attention to Page 36 of the order passed by the Coordinate Bench. It was further argued by the Ld. Senior Counsel appearing for the assessee that so far as the statement of the doctors admitting cash involvement in such transaction is concerned it was already recorded by the Coordinate Bench that Dr Jain has kept on changing the statement and therefore as far as his statement is concerned, those are not said to be very dependable; a detailed discussion took place in the order passed by the Coordinate Bench as mentioned above in this respect which has been relied by the Ld. AR. It was further argued that all these aspect were duly taken care of by the Ld. CIT(A) while deleting addition made by the Ld. AO in the case of the Doctors. In that view of the matter the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation with the income tax department and also to adjust and legalize your unaccounted income which you may have generated after you took exit from CCCPLRs Ans: I would like state that during the search I confessed that cash was paid for the hospital project. Subsequent to this, we had a meeting where decision to fight the case was taken between the members of CCCPL and I retracted to the statement I made during the search. However, after realizing the amount of material seized from the heart Care Clinic, I felt it was a futile exercise to fight against the income Tax Department, so I declared the cash paid by me towards the hospital project, arranged from undisclosed sources and paid the tax with interest and penalty on the same to avoid further litigation with the income tax Department Que: 26 Do you remember when the questions which you have replied by statement dated 13/04/2010 were given to you by the Income tax Department Rs Ans: No I do not remember the exact date. Que.:26 Can you tell us within how many days from receiving this questions, you must have to replied the same Rs Ans.: No I do not remember the exact date. Que: 27 Can you tell us co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The cash paid for purchase of land by CCPL only has been accepted as undisclosed income. The person who is habituated of not declaring correct income in the return of income might have more undisclosed income than he declared. The modus operand! of earning undisclosed income has not been find out. There is no finding about the other persons who had also contributed cash for purchase of land by CCCPL. The concerned officer had satisfied with the confirmation of payment of cash by the respective doctor and receipt of cash on exit There is no finding that who has returned the cash. From the above submission it is argued that the purpose of recording of so called statement appears to trap the other doctors who are not accepting the cash payment in purchase of land by CCCPL. 4 No body has paid cash directly to the assessee as well as no body has received cash directly from the assessee. All the cash transactions are taken place with the third person. 5 None of the doctors know the land owners. However, Dr Bharat R Trivedi has signed the sale deed as witness for the signatory as seller of land. 6 None of the doctors have never seen or met land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the notings on the seized documents, an amount of f. 5,06,53,799 is considered to have been paid in cash by the assessee company. Since the assessee has furnished inaccurate particulars of its income, penalty proceedings u/s.271AAA of the Act are initiated separately. 7. Shri R.G. Shah, CA, appeared on behalf of appellant and intimated that Hon'ble ITAT, B Bench, Ahmedabad, has passed order dtd. 18/10/2013 in the case of Dr. Keyur Parikh and others. Copy of order of Hon'ble ITAT in IT(ss)A No. 604,610 601/Ahd/2011 was filed. From the perusal of this order it is found that the first ground of the revenue in the case of Dr. Keyur Parikh was as follows: The Ld. CIT(A) has erred in law and on facts and circumstances 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. 8. This ground has been decided by Hon'ble ITAT with the following observation: Next point. It is a universal law that the 'Suspicion howsoever strong cannot take the plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the doctors during the search. 14. Learned AR has stated that ground no.I is general in nature and ground no.2 relates to the main ground of the Revenue. In the light of this submission, these grounds being general in nature and 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 fact and In law in directing the addition of Rs. 1,Q7,OOQ/- in the hands of company CCCPL as unaccounted income in assessment year 2007-08 utilized in acquiring the land. (B) The learned Commissioner (Appeal) erred in fact and in law in directing the addition of Rs 3,15,00,000/- in the hands of company CCCPL as unaccounted income in assessment year 2008-09 utilized in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,00,00 Shaligram buildcon 12/28/2007 12,50,00 Aakash Ceramics Sub Total 1,12,50,0 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 hod shown share application money of Aakash Ceramic Pvt. Ltd. of Rs.13 lacs dated 11.12.2007. Therefore, the assessee has tried to explain the source of the deposit. Learned CIT(A) has examined those facts and thereupon arrived at the conclusion as under: Further, since the amount of Rs.25 lakh has been shown 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 assessment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private 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 appellant appears to be correct as the dates and the amount exactly tally with the seized material. The AO will verify this point. In case CCCPL admits that the cheques 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 balance amount of Rs.11.75 lacs in the hands of the appellant Doctor. Otherwise, the whole amount ofRs.46.75 lacs is to be taxed in the hands of the appellant Doctor. 42. We are not convinced the manner in which learned CIT(A) has held that the balance amount of Rs.11.75 lacs was to be taxed in the hands of the assessee. As far as cash investment towards purchase of property is concerned a view has already been taken which is to be applied in the present case as well. Resultantly, the ground of the Revenue has no fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out because of the statement was made by that person who had been a witness to the transaction as argued by the Ld. D.R. therein similar to the submission made by the Ld. DR before us. In fact, after careful consideration of the statement of Dr. Anil Jain and the cross-examination made by the assessee therein the Coordinate Bench came to a finding that Dr. Anil Jain has kept on changing his statement and therefore, as far as his statements are concerned, those are not said to be very dependable as it is appearing at Page 29 of the order passed by the Coordinate Bench. The relevant extract of the said observation is made hereinbelow: 8.5 Next point. We have also examined the statements of various doctors which were used by the Revenue Department against the assessee. A statement of Dr. Anil R. Jain was recorded on 23rd of September, 2008 u/s. 132(4) of IT Act. In that statement, 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 the direct questions but in those answers there was categorical denial of any investment other than the share capital. Dr. Anil Jain has stated that he had opted out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mutation and combination about the 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 investment 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 correct as there was no fallacy in the transaction happened to be made through bank. 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 capital gain on the alleged cash component from those companies who have sold the property. By not taking any action the Revenue Department had weakened the allegation. We have asked this question from the Revenue Department but failed to get any satisfactory reply. 8.12 From the side of assessee few case laws have 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 company. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make a firm belief that in fact there was the existence of unaccounted investment in the purchase of land. Side by side a second question therefore arises that whether the impugned addition was in the nature of suspicion only. We have carefully examined both these questions and then on critical analysis of the evidences and under the totality of the circumstances, we hereby hold that those were not even the incriminating material but simply computer generated projection sheets, therefore, hard to say, synonymous to clinching material evidence depicting cash transaction, hence erroneously suspected by the Revenue Department. We hereby hold that there was no evidence in possession of the Revenue Department to hold that the assessee had in fact made an unaccounted investment towards the purchase of the property. 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 grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no element of payment of cash to the outgoing Doctors. Finally on that basis the stand taken by the Ld. CIT(A) to the extent that the amount in question is not to be taxed in the hands of Dr. Keyur Parikh ors. has been confirmed by the Coordinate Bench. 20. It is relevant to mention that appeals have been preferred by the Revenue against the order dated 18.10.2013 passed by the Hon ble Tribunal in the matter of Dr. Keyur Parikh and ors. in IT(SS)A No. 604/Ahd/2011 alongwith the appeals preferred by other different Doctors and the appeals preferred by Revenue as mentioned in Paragraph 19 hereinabove which was initially admitted by the Hon ble High Court by and under its order dated 15.10.2014. However, the entire set of appeals have been dismissed on 04.09.2018 since all were withdrawn by the Revenue due to tax effect below the minimum threshold limit provided by the CBDT in its Circular dated 11.07.2018 enabling the Department to prefer and maintain appeals before the High Court. Copy of both the orders passed by the Hon ble High Court were duly been filed before us by the respective parties. Dismissal of this order dated 04.09.2018 passed by the Hon ble Gujarat High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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