The ITO, Ward-8(1),, Ahmedabad v. Top Impex Pvt. Ltd.,, Ahmedabad

ITA 2475/AHD/2009 | 2004-2005
Pronouncement Date: 29-01-2010 | Result: Dismissed

Appeal Details

RSA Number 247520514 RSA 2009
Bench Ahmedabad
Appeal Number ITA 2475/AHD/2009
Duration Of Justice 5 month(s) 3 day(s)
Appellant The ITO, Ward-8(1),, Ahmedabad
Respondent Top Impex Pvt. Ltd.,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 29-01-2010
Date Of Final Hearing 27-01-2010
Next Hearing Date 27-01-2010
Assessment Year 2004-2005
Appeal Filed On 25-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'SMC' (BEFORE SHRI N S SAINI ACCOUNTANT MEMBER) ITA NO.2475/AHD/2009 (ASSESSMENT YEAR:- 2006-07) THE INCOME-TAX OFFICER WARD-8(1) AHMEDABAD V/S TOP IMPEX PVT. LTD. 2 CHANDRAVALI APARTMENTS SHREYAS COLONY STADIUM CORNER AHMEDABAD [APPELLANT] [RESPONDENT] APPELLANT BY :- SHRI MAHESH KUMAR SR. DR RESPONDENT BY:- SHRI D K PARIKH AR O R D E R THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) DA TED 25-05- 2009 FOR ASSESSMENT YEAR 2006-07. 2 GROUND NO.1 READS AS UNDER:- THE LD. CIT(A)-XIV AHMEDABAD ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.180000/- BEING PROFESSIONAL CONS ULTANCY CHARGES . 3 THE FACTS OF THE CASE ARE THAT THE A.O. NOTICED THAT THE APPELLANT HAD PAID PROFESSIONAL FEES OF RS.2 51 000 /- AND ALSO PAID RS.1 26 439/- AGAINST PREPARATION OF EXPORT RELATIN G DOCUMENT. THE A.O. ASKED THE APPELLANT TO SHOW CAUSE AS TO WHY TH E SAME SHOULD NOT BE DISALLOWED IN REPLY TO WHICH IT WAS SUBMITT ED THAT THE EXPENDITURE OF RS.1 26 439/- WAS ESSENTIAL FOR THE BUSINESS AND IN RESPECT OF EXPENDITURE OF RS.2 51 000/- THE APPELL ANT SUBMITTED DETAILS OF EXPENSES INCURRED INCLUDING THE NAMES OF PERSONS TO WHOM SUCH PAYMENTS HAS BEEN MADE. HOWEVER THE A.O. DID NOT ACCEPT THE EXPLANATION BY OBSERVING THAT THE APPEL LANT DID NOT 2 SUBMIT ANY SPECIFIC REPLY TO THE SHOW CAUSE LETTER AND IT WAS NOTICED THAT BOTH THE AMOUNTS WERE BEING SHOWN AS H AVING BEEN PAID FOR EXPORT RELATING DOCUMENTS. HE THEREFORE DISALLOWED THE SAME AS UNEXPLAINED EXPENDITURE. 3 DURING THE COURSE OF APPELLATE PROCEEDINGS THE A.R. OF THE APPELLANT SUBMITTED DETAILS OF PAYMENTS MADE TO SHRI NALIN M. SHAH AS PER THE ACCOUNTS. AS COULD BE SEEN THERE-FR OM THAT FOR ALL THE BILLS WHICH HAVE BEEN RAISED THE PAYMENTS HAVE BEEN MADE BY WAY OF ACCOUNT PAYEE CHEQUES AND TDS HAS ALSO BEEN DDUCTED AS PER THE PROVISIONS OF THE INCOME TAX ACT. THE A.R. FILED COPY OF INCOME TAX RETURN FILED BY SAID SHRI NAILINBHAI M. SHAH FOR A.Y. 2006-07 AT PAGES-2 TO 13 OF THE PAPER BOOK . IT WAS STATED THAT THE AFORESAID AMOUNT OF PROFESSIONAL FEES WAS SHOWN BY SHRI NALINBHAI M. SHAH IN HIS PERSONAL PROFIT & LOSS ACCOUNT WHIC H IS EVIDENT FROM PAGE NO. 13 OF THE PAPER BOOK. IT WAS ARGUED THAT I N VIEW OF THE DETAILS AND CONSIDERING THE FACT THAT THE PAYMENT I S MADE WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE BUSINESS IN RESPECT OF THE SERVICES RENDERED BY SHRI NALINBHAI M. SHAH THE DI SALLOWANCE OF RS.1.80 000/- IS WHOLLY AND PATENTLY ERRONEOUS. IT WAS THEREFORE PRAYED THAT CONSIDERING THE GENUINENESS OF THE PAYM ENT AND THE FACTUM OF SERVICES RENDERED BEING NOT IN DOUBT THE EXPENSES BE ALLOWED IN FULL AS CLAIMED. 4 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE D ELETED THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER. 5 THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTE D THE ORDER OF THE LOWER AUTHORITIES. 3 6 THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). 7 I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. IN THE INSTANT CASE THE LEARNED ASSESSING O FFICER DISALLOWED RS.1 80 000/- OUT OF PROFESSIONAL FEES EXPENSES CLA IMED BY THE ASSESSEE ON THE GROUND THAT NO SPECIFIC REPLY TO SH OW CAUSE NOTICE WAS FURNISHED BY THE ASSESSEE AND THE DETAILS SHOWS THAT THE PROFESSIONAL FEE RELATES TO EXPORT DOCUMENTATION. T HE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) DELETED THE AB OVE DISALLOWANCE BY OBSERVING AS UNDER:- 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE PERUS ED THE ASSESSMENT ORDER AND CONSIDERED THE SUBMISSIONS MADE AS REGARDS DISA LLOWANCE OF RS.1 80 000/- BEING PROFESSIONAL CHARGES PAID TO SH RI NAILN M. SHAH (MENTIONED WRONGLY AS NITIN B. SHAH) . I FIND THAT THE DISALLOWANCE HAS BEEN MADE ON THE GROUND THAT THE APPELLANT HAS NOT SUBMITTED ANY SPECIFIC REPLY TO THE SHOW CAUSE NOTICE. BEFORE ME THE COMPLETE STATEMENT IN THE FORM OF COPY OF ACCOUNT FOR PAYMENT MADE IN RESPECT OF PROFESSIONAL FEES TO AFORESAID PERSON HAS BEEN SUBMITTED AT PAGE -1 OF THE PAPER BOOK WHERE FROM IT IS SEEN THAT PAYMENT HAS BEEN MADE ON THE BASIS OF PROFESSIONAL BILLS RAISED BY THE SAID CONSULTANT. I NCOME TAX AT SOURCE HAD ALSO BEEN DEDUCTED FROM THE PAYMENTS MADE. ALSO COP Y OF HIS RETURN OF INCOME FOR ASST. YEAR 2006-07 HAS BEEN PLACED ON RE CORD AT PAGE 3 TO 13 AND IN THE PROFIT & LOSS ACCOUNT FOR THE PERIOD END ED 31-3-2006 THE PROFESSIONAL FEES OF RS.1 80 000/- IS SHOWN AS HAVI NG BEEN EARNED BY SHRI NALIN M SHAH. UNDER THESE CIRCUMSTANCES IDENTITY O F THE PERSON TO WHOM THE PAYMENT HAS BEEN MADE IS ESTABLISHED AS ALSO TH E PERSON HAS BEEN REGULARLY ASSESSED TO INCOME TAX AS PER COPY OF HIS RETURN OF INCOME. IT IS SUBMITTED IN THE STATEMENT OF FACTS THAT THE DETAIL ED REPLY REGARDING PROFESSIONAL FEES PAID TO VARIOUS PERSONS WAS FURNI SHED BY THE APPELLANT UNDER THE COVER OF ITS LETTER DATED 17-12-2008 WHER EIN THE DETAILS OF SERVICES RENDERED AMOUNT PAID AND AMOUNT OF TDS FO R EACH OF THE CONSULTANT/PROFESSIONAL PERSON WAS GIVEN. AN EXPLAN ATION WAS ALSO FURNISHED WITH REGARD TO THE NATURE OF PROFESSIONAL SERVICES. HOWEVER THE AO WITHOUT ANY INQUIRY OR FURTHER QUERY STRAIGHT AW AY DISALLOWED THE SAME IN THE ORDER PASSED ON THE VERY NEXT DAY I.E. 19-12 -2008 AND THAT TOO ON ADHOC BASIS. CONSIDERING THE FACT THAT NEITHER IN T HE ASSESSMENT ORDER NOR 4 IN THE QUERY PUT TO THE APPELLANT THE A.O. HAS DOUB TED ABOUT THE SERVICES RENDERED THE ABOVE CONSULTANT AND FURTHER LOOKING T O THE SUBMISSION MADE REGARDING NATURE OF SERVICES RENDERED BY THE A FORESAID PERSON WHOSE IDENTITY HAS BEEN ESTABLISHED AND GENUINENESS OF PAYMENT HAS BEEN NOT DOUBTED FOR ANY OTHER YEARS. I HOLD THAT THE A.O. WAS NOT JUSTIFIED IN MAKING DISALLOWANCE OF RS.1 80 000/- W ITHOUT ANY COGENT EVIDENCE . AS A MATTER OF FACT IN THE REPLY THE AP PELLANT HAS SUBMITTED THAT THE PAYMENT WAS MADE FOR RENDERING VARIOUS SERVICES RELATING TO EXPORT/IMPORT WORK AS WELL AS FOLLOW UP PROCESS. TH E DISALLOWANCE OF RS.1 80 000/- IS THEREFORE DELETED AND THIS GROUND OF APPEAL IS ALLOWED. 8 I FIND FROM THE ORDER OF ASSESSMENT THAT THE NAT URE OF BUSINESS OF THE ASSESSEE IS EXPORT / IMPORT AND TRA DING OF THE ENGINEERING ITEMS FERROUS AND NON-FERROUS METAL E TC. IT IS OBSERVED THAT NO ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) COULD BE POINTED OUT BY THE LE ARNED DEPARTMENTAL REPRESENTATIVE. IN ABSENCE OF ANY ERRO R BEING POINTED OUT IN THE ORDER OF THE LEARNED COMMISSIONER OF INC OME-TAX (APPEALS) I FIND NO GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). IT IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8 GROUND NO.2 READS AS UNDER: THE LD. CIT(A)-XIV AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.748677/- BEING DIFFE RENCE IN VALUE OF THE SHOP. 9 THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. NOTICED FROM THE D ETAILS SUBMITTED THAT THE VALUE OF THE SHOP WHICH WAS SHO WN AT RS.9 00 000/- IN THE SALE DEED HAS BEEN ENHANCED TO RS.16 48 677/- AS PER JANTRI RATE BY THE SUB-REGISTRAR. IT WAS ALS O NOTICED THAT IT HAD PAID THE DIFFERENCE AMOUNT OF RS.83 927/- AS ST AMP FEE PAID FOR THE ENHANCEMENT WHICH WAS ALSO INCLUDED IN THE COST OF THE SHOP BUT THE VALUE OF THE SHOP HAS NOT BEEN ENHANCED. TH E APPELLANT WAS 5 ASKED BY THE A.O. TO EXPLAIN AS TO WHY RS.7 48 677/ - I.E. DIFFERENCE AMOUNT BY WHICH THE VALUATION OF SHOP HAS BEEN ENHA NCED SHOULD NOT BE ADDED TO ITS INCOME BY ENHANCING THE VALUE O F THE SHOP. IN RESPONSE TO THE SAME IT WAS SUBMITTED THAT PURCHAS E COST OF THE PROPERTY WAS ONLY THE AMOUNT WHICH WAS PAID BY THE PURCHASER. THE DIFFERENT OPINION OR ESTIMATION OF VALUE WAS NOT MA TERIAL FACTOR ON COST OF PURCHASE AND SUB-REGISTRAR TOOK DIFFERENCE AMOUNT OF JANTRI RATE WHICH DEPENDED ON OVERALL AREA ONLY WITHOUT TA KING INTO CONSIDERATION OF THE SITUATION OF THE BUILDING CON STRUCTION QUALITY ENVIRONMENT LOCATION OF PARTICULAR PROPERTY CORNE R MAIN ROAD GARDEN AND OTHER FACILITY ETC. HOWEVER THE SUB-REG ISTRAR DID NOT CONSIDER THE SAID FACTOR AND MERELY ESTIMATED THE P ROPERTY. HOWEVER AS PER INCOME TAX ACT THE COST OF PROPERT Y WILL BE ACTUAL AMOUNT PAID FOR PURCHASE OF PARTICULAR PROPERTY AND THERE WAS NO QUESTION ON ESTIMATION. HOWEVER THE A.O. DID NOT A CCEPT THE EXPLANATION OF THE APPELLANT BY OBSERVING THAT THE JANTRI RATE HAS BEEN INTRODUCED ONLY TO STOP THE UNDERVALUING OF PR OPERTIES BY PAYMENT OF UNRECORDED CASH FOR THE PROPERTY. THE JA NTRI RATE IS NOT BASED ON ANY ESTIMATION BUT IT IS BASED ON SOME SCI ENTIFIC REASONING. IN THIS TYPE OF TRANSACTIONS THE ELEMEN T OF PAYMENT OF UNRECORDED CASH IS ALWAYS THERE. AS THE PAYMENT ARE UNRECORDED IT IS HARD TO GET ANY EVIDENCE OF THIS. HE THEREFORE MADE AN ADDITION OF RS.7 48 677/- BEING DIFFERENCE AMOUNT TO THE TOT AL INCOME OF THE APPELLANT. 10 DURING THE COURSE OF APPELLATE PROCEEDINGS TH E A.R. OF THE APPELLANT SUBMITTED THAT THE A.O. HAS MADE THE AFORESAID ADDITION WHOLLY ON THE ERRONEOUS PRESUMPTION THAT T HERE COULD BE SOME ELEMENT OF PAYMENT OF UNRECORDED CASH. IT WAS SUBMITTED THAT THE APPELLANT HAD PURCHASED OFFICE PREMISES AT NIRN ESH PARK FOR AN AMOUNT OF RS.9 LAKHS AS PER THE COPY OF SALE DEED F URNISHED TO THE 6 A.O. THE COST OF THE SAID PREMISES ALONG WITH STAMP DUTY PAID AT THE TIME OF EXECUTING THE PURCHASE DEED AND PAYMENT OF REGISTRATION FEES AMOUNTED TO RS.10 14 725/-. THIS IS EVIDENCED BY THE COPY OF OFFICE PREMISES ACCOUNT. THE APPELLANT HAD ACCORDIN GLY SHOWN THE ADDITION IN THE FIXED ASSET BLOCK FOR THE ABOVE OFF ICE PREMISES IN THE RETURN FOR ASST.YEAR 2004-05 INASMUCH AS THE SA ID OFFICE PREMISES WAS PURCHASED BY EXECUTING THE PURCHASE DE ED DATED 19- 6-2003. IT WAS MENTIONED THAT THE APPELLANT HAD CLA IMED DEPRECIATION ON THIS OFFICE PREMISES FOR A.Y. 2004- 05 ON THE AFORESAID COST AND THE SAID BLOCK CONTINUED EVEN FO R A.Y. 2005-06 AS CAN BE SEEN FROM THE STATEMENT OF INCOME AND DEPREC IATION BLOCK FOR A.Y. 2005-06 AND ALSO CONTINUED FOR THE YEAR UN DER APPEAL I.E. FOR A.Y. 2006-07. THE A.O. IGNORED THESE FACTS THAT THE PROPERTY PURCHASED WAS A SHOP USED FOR THE PURPOSE OF BUSINE SS HAVING ACTUAL COST AS PER PURCHASE DEED WHICH WAS DEBITED IN THE BOOKS OF ACCOUNTS AND ON WHICH DEPRECIATION HAS BEEN GRANTED YEAR AFTER YEAR INCLUDING THE YEAR UNDER APPEAL AT THE SAME CO ST MAKING AN ADDITION ON THE BASIS THAT FOR THE PURPOSE OF STAMP DUTY THE SUB- REGISTRAR HAS ENHANCED THE VALUE TO RS 16 48 677/- AND THAT THE DIFFERENTIAL STAMP DUTY AMOUNTING TO RS.83 927/- WA S PAID IN THE CURRENT YEAR. IT WAS SUBMITTED THAT MAKING OF ADDIT ION ON THE BASIS OF STAMP VALUATION IN THE HANDS OF THE PURCHASER IS NOT PERMISSIBLE UNDER ANY PROVISION OF THE INCOME TAX ACT. IT IS TH EREFORE VERY CLEAR FROM THE ABOVE STATEMENT OF THE A.O. THAT THERE IS ABSOLUTELY NO EVIDENCE OF APPELLANT HAVING MADE ANY PAYMENT IN AD DITION TO WHAT WAS SHOWN IN THE PURCHASE DEED TOWARDS THE COST OF ABOVE OFFICE BUILDING. UNDER THE ABOVE CIRCUMSTANCES THE A.O. WA S NOT JUSTIFIED BY ANY MEANS IN MAKING THE ADDITION OF RS.7 48 677/ - IN RESPECT OF PROPERTY PURCHASED LONG BACK AND SIMPLY BECAUSE SOM E STAMP DUTY DIFFERENCE WAS PAID BY THE APPELLANT DURING THE YEA R UNDER APPEAL NO ADDITION COULD BE MADE IN RESPECT OF SO CALLED PAYMENT. THE AR 7 FURTHER SUBMITTED THAT THE AFORESAID PROPERTY WAS U LTIMATELY SOLD DARING THE PREVIOUS YEAR RELEVANT TO ASST. YEAR 200 7-08 AND THE STATEMENT OF DEPRECIATION WHEREIN ALSO THE APPELLA NT HAS CREDITED THE SALE PROCEEDS OF THE SAID OFFICE BEING RS.15 LA KHS FROM THE DEPRECIATION BLOCK OF BUILDING AND IN THAT YEAR ALS O AS PER THE WDV BLOCK METHOD DEPRECIATION WAS CALCULATED ONLY ON TH E WDV AS BROUGHT FORWARD FROM EARLIER YEARS. THE A.R. IN THI S REGARD SUBMITTED THAT THE COURTS HAVE UNANIMOUSLY HELD THA T NO ADDITION CAN BE MADE IN RESPECT OF SO CALLED UNEXPLAINED INV ESTMENT IN PURCHASE OF PROPERTY ON THE BASIS OF VALUATION TAKE N FOR STAMP DUTY PURPOSES BY THE SUB-REGISTRAR. THE A.R. RELIED UPON THE FOLLOWING CASE-LAWS IN THIS REGARD. (1) ITO VS. SATYANARAYAN AGARWAL (2007) 112 T TJ (JD) 717 (2) ACIT VS. SWAMI COMPLEX (P) LTD. ILL TTJ (JP) 531 IT WAS MENTIONED THAT THE A.O. WAS DEALING WITH THE CASE OF APPELLANT WHO WAS THE PURCHASER OF THE PROPERTY AN D NOT THE SELLER THE ADOPTION OF STAMP VALUATION IS PROVIDED IN THE ACT ONLY IN SEC. 50C FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN BECAUSE THERE IS A DEEMING FICTION IN SEC. 50C OF THE INCOM E TAX ACT 1961 AND THE SAID DEEMING FICTION I APPLICABLE MERELY F OR THE PURPOSE OF COMPUTING CAPITAL GAIN IN THE HANDS OF THE SELLER. HOWEVER AS FAR AS THE APPELLANT WHO BEING A PURCHASER NO ADDITION U /S. 69 OR 69B CAN BE MADE UNLESS IT IS FOUND THAT ACTUAL PAYMENT HAS BEEN MADE WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNT. IN O THER WORDS THERE HAS TO BE AN EVIDENCE REQUIRING THE EXPLANATION FRO M THE ASSESSEE REGARDING UNEXPLAINED INVESTMENT AND THERE IS NO DE EMING FICTION AS FAR AS SEC. 69 IS CONCERNED. THE A.R. ALSO PLACE D RELIANCE ON THE RECENT DECISION OF MUMBAI TRIBUNAL IN THE CASE OF I NDERLOK HOTELS (P) LTD. VS. ITO (2009) 122 TTJ (MUMBAI) 145 WHEREIN TH E TRIBUNAL HAS 8 HELD THAT SECTION 50C IS APPLICABLE ONLY FOR THE PU RPOSE OF DETERMINING THE SALE CONSIDERATION FOR COMPUTATION OF CAPITAL GAIN AND IT CANNOT BE APPLIED FOR DETERMINING THE INCOME UNDER OTHER HEADS. THE TRIBUNAL HAS ALSO RELIED UPON THE EXPLANATION G IVEN IN THE CBDT CIRCULAR NO.8 OF 2002 DATED 27 TH AUGUST 2002. CONSIDERING THE ABOVE SUBMISSION AND FACTUAL POSITION REGARDING THE ACTUAL PAYMENT HAVING BEEN DEBITED IN THE BOOKS OF ACCOUNT S IN THE EARLIER YEAR WHEN PROPERTY WAS PURCHASED AND THE SAME WDV B EING CARRIED FORWARD TILL THE DATE OF SALE THERE BEING NO EVIDEN CE (AS ADMITTED BY THE AO) REGARDING ANY PAYMENT MADE OUTSIDE BOOKS OF ACCOUNTS IT WAS ARGUED THAT THE A.O. FELL INTO PATENT ERROR ON FACT AND LAW IN MAKING THE ADDITION OF RS.7 48.677/- MERELY ON SURM ISES AND CONJECTURES. THE ADDITION BEING WHOLLY UNJUST AND A GAINST THE SANCTION OF LAW DESERVES TO BE DELETED. 11 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DELETED THE ADDITION. 12 THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORT ED THE ORDER OF THE LOWER AUTHORITIES. 13 THE LEARNED AUTHORISED REPRESENTATIVE OF THE AS SESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). 14 I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. IN THE INSTANT CASE THE LEARNED ASSESSING O FFICER ADDED RS.7 48 677/- TO THE INCOME OF THE ASSESSEE ON THE GROUND THAT THE VALUE OF SHOP SHOWN AT RS.9 LACS IN THE SALE DEED W AS ENHANCED TO RS.16 48 677/- AS PER JANTRI RATE BY THE SUB-REGIST RAR. THE LEARNED 9 COMMISSIONER OF INCOME-TAX (APPEALS) DELETED THE AB OVE ADDITION BY OBSERVING AS UNDER: 3.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND T HE GROUND ON WHICH THE ADDITION HAS BEEN MADE AS WELL AS SUBMISSIONS MADE BY THE LEARNED A.R. I AM FULLY INCLINED TO AGREE THAT SIMPLY ON THE BASIS OF STAMP DUTY VALUATION NO ADDITION CAN BE MADE IN THE HANDS OF THE PURCHAS ER OF THE PROPERTY UNLESS THERE IS ANY INDICATION OR EVIDENCE REGARDIN G THE PAYMENT MADE TOWARDS PURCHASE OF THE PROPERTY OVER AND ABOVE WHA T HAS BEEN SHOWN IN THE SALE DEED. THE ADDITION IS ALSO NOT CORRECTLY M ADE SIMPLY BECAUSE THE APPELLANT HAS MADE PAYMENT OF ADDITIONAL DUTY DURIN G THE YEAR UNDER APPEAL AND IT DOES NOT LEAD TO THE MAKING OF PAYMEN T TOWARDS THE COST OF PURCHASE OF PROPERTY AS PER STAMP DUTY VALUATION. F URTHER IT IS ALSO SEEN THAT FOR ALL THE YEARS RIGHT FROM A.Y. 2004-05 DURI NG WHICH THE PROPERTY WAS PURCHASED TILL A.Y. 2007-08 WHEN THE SAME WAS U LTIMATELY SOLD BY THE APPELLANT THE COST AS WELL AS WDV FOR THE PURPOSE OF CLAIM OF DEPRECIATION WAS SHOWN WHICH WAS THE COST AS PER THE PURCHASE D EED AS DEBITED IN THE BOOKS OF ACCOUNTS WHICH FACT IS EVIDENT FROM THE R ETURNS OF INCOME OF ABOVE ASSESSMENT YEARS WHICH ARE PLACED AT PAPER B OOK PAGE 19 TO 33. THE A.O. HIMSELF HAS GRANTED DEPRECIATION IN ACCORD ANCE WITH THE SAME VALUE AND HAS THUS CONSIDERED THE ACTUAL COST AS PE R BOOKS AS CORRECT. UNDER THESE CIRCUMSTANCES CONSIDERING THE ENTIRETY OF THE FACTS AND SUBMISSION MADE BY THE LEARNED A.R. AND CONSIDERING THE LEGAL PROVISIONS OF THE INCOME TAX ACT AND THE LEGAL PRONOUNCEMENTS CITED IT IS HELD THAT THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITION O F RS.7 48 677/- TO THE INCOME OF THE APPELLANT. THE ADDITION IS THEREFORE DELETED. THE APPELLANT SUCCEEDS ON THIS GROUND. 15 I FIND THAT NO SPECIFIC ERROR IN THE ABOVE ORDE R OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) COULD BE POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. I FIND THAT THE VIEW OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AB OVE FINDS SUPPORT FROM THE DECISION OF THE HON'BLE SUPREME CO URT IN THE CASE OF K P VARGHESE VS. ITO 131 ITR 597 (SC). THUS I DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEAR NED COMMISSIONER OF INCOME-TAX (APPEALS). IT IS CONFIRM ED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 10 16 GROUND NOS.3 AND 4 OF THE APPEAL ARE GENERAL IN NATURE AND REQUIRE NO SEPARATE ADJUDICATION BY ME. 17 IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. O RDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 29 - 01 - 20 10 SD/- (N S SAINI) ACCOUNTANT MEMBER DATE : 29 -01-2010 COPY OF THE ORDER FORWARDED TO : 1. TOP IMPEX PVT. LTD. 2 CHANDRAVALI APARTMENTS SHREYAS COLONY STADIUM CORNER AHMEDABAD 2. THE ITO WARD-8(1) AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-XVI AHMEDABAD 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD