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Ardee Infrastructure Pvt. Ltd., 16th Floor, Dr. Gopal Das Bhawan, 28, Barakhamba Road, Vs Dy.Commissioner of Income Tax, Central Circle-20, New Delhi.
January, 16th 2015
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

                IN THE INCOME TAX APPELLATE TRIBUNAL
                     DELHI BENCHES `E' NEW DELHI

        BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT
                           AND
        SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER

                        IT(SS)A NO.108/DEL/2008
                        Block Period 01.04.96 to 20.09.02

Ardee Infrastructure Pvt. Ltd.,       vs Dy.Commissioner of Income Tax,
16th Floor, Dr. Gopal Das Bhawan,       Central Circle-20,
28, Barakhamba Road,                    New Delhi.
New Delhi-110001
(Appellant)                        (Respondent)
             Appellant by: S/Shri K.Sampath, Adv., Raj Kumar, Adv.
         Respondent by: Shri Gunjan Prashad, CIT DR

                                  O R D E R

PER CHANDRAMOHAN GARG, J.M.

        This appeal has been preferred by the assessee against the order of

the CIT(A)-I, New Delhi dated 20.11.2008 in Appeal No. 106/07-08 for

block period of assessment from 1.4.1996 to 20.9.2002. The assessee has

raised following grounds in this appeal:-


        "1. That on the facts and in the circumstances of the case and
      in law, the ld. CIT(A) has erred in confirming the addition of
      Rs.12,44,06,000/- on account of alleged unaccounted receipt
      on the allotment of plots in Ardee City, Gurgaon.
      2. That on the facts and in the circumstances of the case and
      in law, the ld. CIT(A) has erred in confirming the order passed


                                                                              1
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

      by the assessing authority which is bad in law on account of
      various legal infirmities."
2.      Apropos aforementioned grounds of the assessee, we have heard

arguments of both the sides and carefully perused the relevant material

placed on record. Ld. Counsel appearing for the assessee submitted copies

of ITAT `E' Bench, New Delhi in assessee's own cases for AY 1997-98 dated

30.5.2008 in ITA No. 937/Del/2006 (revenue's appeal) and order dated

8.8.2013 in ITA No. 739/Del/2006 (assessee's appeal) in the same

assessment year i.e. 1997-98. Ld. Counsel of the assessee also submitted a

copy of the decision of ITAT Chandigarh `B' Bench dated 9.11.2006 in

IT(SS)A No. 38, 39 and 40/Chandi/2005 in the case of ACIT, Central Circle-

I, Ludhiana vs Chavan Rishi International, New Delhi.          Ld. Counsel

submitted that the department reopened assessment of the assessee for

1997-98, which is also a year of block period reckoning from 1.4.1996 to

20.9.2002 for the proceedings u/s 158BD of the Income Tax Act, 1961 u/s

147/148 of the Act and the AO during reassessment proceedings made two

additions viz. the first addition of Rs.11,70,56,000 made on account of

receipt from M/s Mittal Group of Companies and second addition of

Rs.73,50,000 on account of alleged unaccounted receipt.        Ld. Counsel

further submitted that the department filed ITA No.937/D/2006 against

the order of CIT-I, New Delhi challenging the deletion of first addition and

at the same time assessee also preferred an appeal before ITAT challenging

                                                                           2
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

the action of the CIT(A) which confirmed the second addition on account of

alleged unaccounted receipt. Ld. Counsel further contended that the appeal

of the revenue has been dismissed by the Tribunal order dated 30.5.2008

(supra) and appeal of the assessee viz. ITA No.739/D/2006 has been

allowed by the Tribunal order dated 8.8.13 (supra) setting aside the orders

of the authorities below and deciding the issue of addition on account of

alleged unaccounted receipts in favour of the assessee and directing the AO

to delete the said addition made on account of unaccounted receipts.





3.      Ld. Counsel of the assessee vehemently contended that while

additions made by the AO in the reassessment order passed u/s 143(3) r/w

section 147 of the Act has been finally deleted by the ITAT `E' Bench, New

Delhi, then the impugned order passed u/s 158BD of the Act has no legs to

stand on the legal footing, therefore, additions made by the AO for block

assessment period reckoned from 1.4.1996 to 20.9.2002 and upheld by the

CIT(A) by passing the impugned order are not sustainable, therefore,

orders of the authorities below may be set aside by directing the AO to

delete the impugned additions of Rs.12,44,06,000 (Rs. 11,70,56,000 +

73,50,000).


4.      Ld. Counsel of the assessee has also drawn our attention towards
order of ITAT Chandigarh Bench `B' in the case of ACIT, Central Circle-I,
Ludhiana vs Chavan Rishi International, New Delhi dated 9.11.2006 (supra)

                                                                          3
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

wherein it was held that when no addition has been made in the hands of
the seller, then it cannot be presumed that the payment was to be made
over and above the price quoted, that was to be made to the seller of the
property but nothing had been brought on record that the same amount
had been considered as income in the hands of seller of the property. Therefore,
ITAT Chandigarh Bench "B" in the case of purchaser viz. Chavan Rishi

International held that additions made by the AO and deleted by the CIT(A)
are not sustainable and, therefore, the ITAT Chandigarh Bench `B'
dismissed the appeal of the revenue by passing the order dated 9.11.2006
(supra). Ld. Counsel of the assessee finally prayed that when the additions
made on the same issues during reassessment proceedings u/s 143(3) r/w
section 147 of the Act in the case of seller i.e. the assessee M/s Ardee
Infrastructure Pvt. Ltd. have not been found to be sustainable by ITAT `E'
Bench New Delhi in assessee's appeals in ITA No. 937/Del/2006 order
dated 30.05.2008 (supra) and in ITA No. 739/D/2006 dated 8.8.2013
(supra) and additions made by the AO and deleted by the CIT(A) in the case
of purchaser viz. Chavan Rishi International have been deleted by the ITAT
Chandigarh `B' Bench order dated 9.11.2006 (supra), then the same
addition on the same count and issues made by the AO during block
assessment proceedings u/s 158BD/158BC of the Act and upheld by the
CIT(A) by the impugned order are not sustainable, therefore, the same may
be directed to be deleted.

5.      Ld. DR supported the orders of the authorities below and fairly

accepted that the additions made during reassessment proceedings u/s

143(3) r/w section 147 of the Act made by the AO have been finally found

to be not sustainable by the ITAT `E' Bench, Delhi. The DR has also not


                                                                               4
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

disputed this fact that the additions made by the AO and deleted by the

CIT(A) in the case of purchaser viz. Chavan Rishi International have been

finally not found to be sustainable by ITAT Chandigarh `B' Bench by passing

the order dated 9.11.2000 (supra).


6.      In view of above submissions of both the sides, at the outset, we

observe that the ITAT `E' Bench Delhi dismissing the appeal of the revenue

i.e. ITA 937/D/2006 order dated 30.05.2008 (supra) upheld the order of

the CIT(A) which deleted the addition made on account of receipts from

M/s Mittal Group of Companies amounting to Rs.11,70,56,000.                The

relevant operative part of this order reads as under:-


         "9. We have carefully considered the rival submissions. The
         very seized paper on the basis of which the addition has been
         made in the case of the assessee has been considered at length
         by the Tribunal in the aforementioned order dated 9th
         November, 2006. It will be relevant to reproduce the
         concluding portion of the order of the Tribunal by which it
         was held that on the basis of the said seized paper no addition
         could be made in the hands of the Mittal group:-


         10. We have considered the rival contentions and carefully
         gone through the material available on record. In the present
         case the whole controversy revolves around the document A-I
         page 5 found during the course of search. In that document
         few entries were noted. The AO opined that the value
         mentioned in the seized document was the actual value of the
         properties which were purchased by the assessee while the
         contention of the assessee was that those were the market
         value and not the actual price. It is true that in the block
         assessment the additions can be made on the basis of

                                                                             5
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         document or material found during the course of search for
         which no plausible explanation is given by the concerned
         person, It is also true that the document should be considered
         as a whole and not in piece meal, in other words, the
         cognizance should be given to the document as a whole and
         not to the part of the document as per doctrine of "Aprobate &
         Reprobate", In the seized document, there were certain
         entries on one page which appears to be a page from some
         cash book since cash book is mentioned at the top of the page
         and the word "payments" had also been printed but that
         document page cannot be considered as "cash book" since in
         the cash book, receipts and payment both pages should be
         there and some opening balance along with closing balance
         should be reflected but in the document i.e. AI-5 neither the
         opening balance of cash is there nor closing balance and even
         the total has not been done but in the case of proper cash
         book_total of the receipts and the payments side is always
         equal since the balance between receipts and payments
         reflects the closing cash in hand. So, it cannot be said that the
         document "A-I page 5" was the copy of the cashbook. Now the
         question arises - whether the entries mentioned in the
         document reflected that market value of various properties or
         those were the actual value. In the said document, three
         entries mentioned at Ardee 850.20, SL-III 56,14 and M, Filed
         72.00 are only the subject matter of adjudication before us.
         The claim of the assessee was that those entries were the
         market value while the AO opined that those were actual
         value in the codes and 850.20 stands for Rs. 8,50,20,000/- like
         wise 56.14 stands for Rs. G6, 14,0001- and 72.00 stands for Rs.
         72.00 lacs.
         10.1 In the present case, it is not in dispute that the value of
         the property purchased from HUDA has been accepted at Rs.
         31,00 lacs which is the amount paid by the assessee to the
         Haryana Government whereas the entry on the document AI-5
         reflected the figure at 132.00 i.e. Rs. 1 crore 32 lacs. Similarly
         the value of the shares was mentioned in the seized document
         at Rs. 8 lacs whereas the actual value of these shares was Rs.
         23.11 lacs. The same was the position with respect to Agra
         property the value of which was mentioned at Rs. 463.90 lacs
         while the actual investment was Rs. 3;58 crores only and that
         had been accepted by the department. Therefore it can be

                                                                              6
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         held that the entries mentioned in the seized document were
         not the actual value but the fair market value. Moreover, the
         department itself had accepted that the aforesaid entries in
         respect of HUDA plot, shares and Agra Properties reflected
         that market value of those assets and not the actual value but
         the version of the department for the properties purchased at
         "Ardee City" Sushant Lok-1I1 and May Field Uppal is reverse
         i.e. the values mentioned had been considered as actual
         investment and not market value. It is well-settled that the
         document should be read as a whole. It is not permissible to
         accept part of the. document and reject the remaining part as
         per the ratio laid down by the Hon'ble Gujarat High Court in
         the case of Glass Lines Equipment Co. Ltd. Vs. CIT, 253 ITR 454
         (supra) wherein it has been held that:
         "It is well settled canon of interpretation that a document has
         to be as a whole. It is not permissible to accept a part and
         ignore the rest of the document." .
         In view of the ratio laid down by the Hon'ble Gujarat High
         Court in the 'aforesaid referred to case, the Assessing Officer
         was not justified in accepting the entries mentioned in the
         document in part i.e. accepting part of the entries and
         rejecting the remaining entries. Therefore, the Id. CIT(A) was
         justified in his action while deleting the addition made by the
         AO.
         10.2 From the above discussion although the case appears to
         be in favour of the assessee if legal aspect is to be seen but at
         this stage, we think it appropriate to discuss the issues in
         question of merit also. As we have already noted in the former
         part of this order that the AO considered the three figures as
         actual investment. Those entries pertained to investment in
         land situated at Ardee City, Sushant Lok- III, and M. Field. The
         AO worked out the value of investment in land in Ardee City
         @Rs. 4533/- per sq. yd. but no instance was quoted wherein
         the same rate was paid by any of the person. The excise done
         by the AO was based on a statement of Shri J.C. Malhotra who
         stated in his earlier statement that he along with his family
         members had paid Rs. 2000/- per sq. yd. over and above the
         documented price of the plot, if that statement was to be
         taken as true even-then rate of the plot should have been at
         Rs. 30001- per S9.yd since the plots were purchased @Rs.

                                                                             7
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         1,000/- per sq.yd_ However, the AO had taken the value @s.
         4533/- per sq.yd . Moreover, the statement had been retracted
         subsequently by Shri J.C. Malhotra. It is relevant to point out
         that Shri J.C. Malhotra was not the witness of the assessee but
         of the department. The contention of the Id. Counsel for the
         assessee that out of 298 plots, 146 plots were sold by Ardee
         group of companies @Rs. 1,000/- per S9.yd. which is the rate
         given by the assessee, had not been rebutted. Out of those 146
         plots, the name of the assessee appeared at 36 places only. So,
         it cannot be said that the assessee only paid extra money
         because there were another comparable instances where the
         same rate had been paid by other persons. It is true that the
         value of plot depends upon so many factors like development
         of the area, location of the site, facilities available etc. In the
         instant case, this contention of the assessee that the
         agreement to purchase the land was entered when the area
         was un-developed and un-licensed has not been rebutted at
         any stage. One of the contention raised by the Id. OR for the
         revenue was that the land has been sold to the assessee at a
         price which was below the average cost price. However, this
         contention that the land purchased in 1995-96 gave an
         average rate of Rs. 5301- per sq.yd. and some land also gave
         average rate of Rs. 200/- per sq.yd. had not been rebutted. It is
         also noticed that the assessee vide its reply dated 15.9.04
         (copy of which is placed at page 11 of assessee's compilation)
         clearly pointed out to the AO about the above facts and that
         contention had not been controverted by the AO in the
         assessment order. It is noticed that few of the cases the rate of
         plots was more than that of the plots purchased by the
         assessee but it is not established that those plots were
         purchased at the same time when the assessee purchased and
         the location was also similar. It is also not established that in
         the cases where the rate was higher, there was an advance
         agreement as was in the case of the assessee and there was a
         clause in the agreement that in case Incense is not awarded to
         the seller the amount would be refunded i.e. the land would
         not be sold to the assessee. So, the cases quoted where the rate
         was higher, cannot be a factor to deny the claim of the
         assessee which was substantiated by the registration deed,
         confirmation by the seller and the fact that the payments
         were made through banking channels. Moreover, no evidence
         was brought on record to establish that the assessee was in a

                                                                               8
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         position to spend more since no evidence about excess
         withdrawal from bank or from any other source, was brought
         on record or was discovered during the course of search. It is
         true that the apparent whatsoever strong, cannot replace the
         actual. In the present case the AO made the additions on the
         basis of presumption. He presumed that the entries mentioned
         in the seized document "A-I page 5" reflected actual cost
         against the claim of the assessee that it was market price. The
         AO while treating the entries noted in seized document as
         actual cost. ignored the vital fact that for some other entries
         noted on the same paper, it had been considered that the
         value was not actual but the market value. The instances were
         of investment in HUDA, Agra property and value of shares &
         FDRs. In view of the above discussion, we do not see any
         infirmity in the order of the ld. CIT(A) on this issue.
         10. From the above observations it can be seen that in respect
         of seized paper on the basis of which the addition is made in
         the case of the assessee, coordinate Bench has held that the
         entries mentioned In the seized document were not the actual
         value, but the fair market value (para 10.1) and the
         contention of the assessee that the land purchase in 1995-96
         gave an average rate of Rs. 530 per sq. yd. and some land also
         gave average rate of Rs.200 per sq. yd was not rebutted (para
         10.2). That the addition was made by the Assessing Officer on
         the basis of presumption as he presumed that the entries
         mentioned in the seized document {A-1, page 5) reflected
         actual cost against the claim of the assessee that it was
         market price and the Assessing Officer while treating these
         entries as actual cost ignored the vital fact that for some
         other entries noted on the same paper, it had been considered
         that the value was not actual but the market value and such
         instances were of investment in HUDA, Agra property and
         value of shares and FDRs. It was, therefore, held that the CIT
         (A) was right in deleting the addition made in. the hands of
         Chavan Rishi International Ltd. These findings of the Tribunal
         given by coordinate Bench will apply mutatis mutandis to the
         present case as the addition has been made on the basis of
         that very seized paper and it is held that the Ld. CIT (A) was
         right in deleting the addition based on these findings of the
         Tribunal given in the case of Mittal group. No extra material
         has been brought on record by the revenue which leads us to

                                                                           9
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         take a different view as has been taken by co-ordinate Bench
         in the aforementioned case. We decline to interfere and the
         appeal filed by the revenue is dismissed."
7.      From careful reading of the decision of ITAT `E' Bench in ITA No.

739/Del/2006 order dated 8.8.2013, we observe that the Tribunal,

allowing the appeal of the assessee, has directed the AO to delete the

addition of Rs.73,50,000 made on account of alleged unaccounted receipt.

The relevant operative part of this order reads as under:-


              "6. We have heard both the counsel and perused the
         records. Ld. Counsel of the assessee submitted that the issue
         now is covered in favour of the assessee, in view of the order
         of the Settlement Commission in the case of Sh. J.C. Malhotra.
         The Settlement Commission vide order dated 25.8.2008 in
         S.A. No. 7/7/04/2-ITAT in the case of Jagdish Chander
         Malhotra has noted that Shri Malhotra in the statement
         recorded during search had admitted that he had made an
         unaccounted investment of Rs. 73,50,000/- in those plots in
         the Ardee City Gurga6n. Shri Malhotra and his family
         members, however, retracted from this statement later on,
         on the ground that the same was recorded under coercion.
         After considering the entire facts and details the Settlement
         Commission has concluded in para 17 as under:-
         "We have taken note of the arguments of the Ld. A.R. We
         agree with him that in the absence of any evidence collected
         in the course of search from the premises of the applicant no
         adverse inference about un-disclosed income can be drawn
         in an assessment u/s. 158BC. On merits also the ITA T's
         decision goes in favour of the appellant. No cognizance can
         be taken up the confession of applicant/ which is not
         corroborated. We hold that the offer made before us does not
         require any change on this basis. "
         7. Thus, the Settlement Commission has held that the
         addition in the case of Mr. J.C. Malhotra of Rs. 73.50 lacs on
         the basis of statement which was subsequently retracted was

                                                                          10
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         not tenable. Since the addition of Rs. 73.50 lacs in the case of
         the assessee is based upon the addition in the hands of Sh. J.c.
         Malhotra, this addition cannot survive in view of the
         Settlement Commission's order as above. Ld. Departmental
         Representative fairly agreed that the issue is now covered in
         favour of the assessee .
         8. In the background of the aforesaid discussion and
         precedents, we set aside the orders of the authorities below
         and decide the issue in favour of the assessee."
8.      We further observe that the ITAT, Chandigarh `B' Bench in the case of

purchaser i.e. Chavan Rishi International order dated 9.11.2006 (supra)

have upheld the conclusion of the CIT(A) which deleted similar addition

made in the hands of purchaser Chavan Rishi International. The relevant

operative part of this order reads as under:-





               "10.4 Similar was the position with regard to the
         investment in "M Field and Uppal". The Assessing Officer had
         not given any basis on which the rate per sq yd was worked
         out at Rs. 3160 instead of Rs. 1,000/- declared by the
         assessee on the basis of registered deed. The Assessing Officer
         made the addition in the investment relating to Uppals on
         the basis of addition made in Ardee city. No other basis had
         been given. Since we have already confirmed the action of
         the Ld. CIT(A) in respect of Ardee city, in that view of the
         matter also this addition made by the Assessing Officer in M.
         Field was not justified and the Ld. CIT(A) had rightly deleted
         the same.
         10.5. Hon'ble Supreme Court in the case of CIT vs. Smt. P.K.
         Noorjahan, 237 ITR 570 has held as under :-
         "In the corresponding clause of the Bill which was
         introduced in Parliament, while inserting section 69 in the
         Income Tax Act, 1961, the word "shall" had been used but
         during the course of consideration of the Bill and on the
         recommendation of the Select Committee, the said word was
         substituted by the word "may"". This clearly indicates that
                                                                            11
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         the intention of Parliament in enacting section 69 was to
         confer a discretion on the ITO in the matter of treating the
         source of investment which has not been satisfactorily
         explained by the assessee as the income of the assessee and
         the ITO is not obliged to treat such source of investment as
         income in every case where the explanation offered by the
         assessee is found to be not satisfactory. The question
         whether the source of the investment should be treated as
         income or not u/s 69 has to be considered in the light of the
         facts of each case. In other words, a discretion has been
         conferred on the ITO u/s 69 of Act to treat the source of
         investment as the income of the assessee if the explanation
         offered by the assessee is not found satisfactory and the said
         discretion has to be exercised keeping in view the facts and
         circumstances of the particular case"
         In the present case the Assessing Officer had not given any
         independent and separate findings while making the
         addition by estimating the market value of the investment in
         M. Field / Uppal property. He only mentioned that the
         assessee purchased this land by applying the method of
         investor's agreement as applied in Ardee city and as the
         addition had been made for the property situated at M Filed
         /Uppal. So, in view of the ratio laid down by Hon'ble
         Supreme Court in the aforesaid referred to case, this addition
         was not called for particularly when the assessee had given
         the explanation that the value mentioned in the seized
         document was the market value and not the actual value.
         The actual value was supported by the registered deed and
         had been confirmed by the seller of the property. No addition
         has been made in the hands of the seller. If any payment was
         to be made over and above the price quoted then that was to
         be made to the seller of the property but nothing had been
         brought on record that the same amount had been
         considered as income in the hands of the seller of the
         property. In view of the above discussion, we do not see any
         merit in this appeal of the department.
         11. The facts relating to another appeals i.e. in IT(SS) A No.
         38 & 40/Chand/2005 are the same and even the rival
         contentions were also similar, therefore, our findings given
         in the former part of this order in respect of IT(SS) A No. 39

                                                                          12
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

         /Chandi/2005 shall apply mutatis mutandis for these two
         appeals also."
9.      In view of above orders of ITAT Delhi `E' Bench in the case of the

assessee for AY 1997-98, we note that the additions made by the AO during

reassessment proceedings u/s 143(3)/147 of the Act have not been found

to be sustainable and both the additions were demolished at the level of

Tribunal. From a copy of the order of Hon'ble High Court of Delhi dated

4.4.2011 in ITA No. 412/2009, as submitted by the assessee, we observe

that appeal of the                Revenue against order of the Tribunal in ITA

No.937/D/2006 (supra) has been dismissed by Hon'ble Jurisdictional High

Court and in this situation and in the light of acceptance of the ld. DR, we

can safely presume that the order of the ITAT `E' Bench in both the cases

viz. ITA No. 937/D/2006 (supra) and ITA NO.739/D/2006 (supra) for AY

1997-98 have attained finality. From the order of the ITAT Chandigarh `B'

Bench, we also observe that dismissing the appeal of the revenue, ITAT

Chandigarh in the case of purchaser have held that the actual value was

supported by the registered deed and additions confirmed by the seller of

the property and no addition had been made in the hands of seller,

therefore, addition on account of undisclosed or undeclared investment in

the hands of purchaser i.e. Chavan Rishi International is not sustainable.


10.     In the case of Shri J.C. Malhotra, the matter was carried for settlement

to the Income Tax Settlement Commission vide application no. 7/7/04/2-II
                                                                              13
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

for AY 1997-98 to 20.9.2002 and also for AY 2003-04 and 2004-05 and the

issue regarding alleged extra payment to the appellant/assessee of the

present case by Shri Malhotra was decided by holding that no extra

payment was discernible and so no addition was to be made on this

account. The observations of the order of the Settlement Commission

dated 25.8.2008(supra) in relevant operative para 17 reads as under:-


              "17. We have taken note of the arguments of the ld. AR.
         We agree with him that in the absence of any evidence
         collected in the course of search from the premises of the
         applicant no adverse inference about undisclosed income
         can be drawn in an assessment u/s 158BC. On merits, also
         the ITAT's decision goes in favour of the applicant. No
         cognizance can be taken up the confession of applicant,
         which is not corroborated. We hold that the offer made
         before us does not require any change on this basis."
11.     In view of above set of facts and circumstances and orders of the

Tribunal in ITA No. 937/D/2006 (supra), ITA No.739/D/2006 (supra),

order of Hon'ble High Court of Delhi in ITA No. 412/2009 dated 4.4.2011

(supra) and also order of the Tribunal in the case of purchaser Chavan

Rishi International in ITA No. 39, 38, 40/Chandi/2005 (supra), we are

inclined to accept the contentions of the ld. Counsel of the assessee that

while passing impugned order, the CIT(A) did not pay heed to the then

existent order of the Tribunal in assessee's appeal for the same AY 1997-98

in ITA No. 937/D/2006 dated 30.5.2008(supra), the order of the Tribunal

in purchaser's case dated 9.11.06 (supra) and the order of the Settlement

                                                                         14
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

Commission in the case of Shri J.C. Malhotra dated 25.8.2008 (supra) and

the CIT(A) passed impugned order on 20.11.2008 ignoring and keeping

aside the aforesaid orders of the Tribunal and Settlement Commission, then

existed and submitted before him during first appellate proceedings which

is not a proper and justified way of working and approach for a quasi

judicial first appellate authority.


12.     In the peculiar facts and circumstances of the present case and

observations of the Tribunal as noted above, we are inclined to hold that

the CIT(A) has erred in confirming the addition of Rs.12,44,06,000/- made

on account of alleged unaccounted receipts on the allotment of plots in

Ardee City, Gurgaon as the same additions made by the AO during

reassessment proceedings u/s 143(3)/147 of the Act have not been found

to be acceptable and sustainable by the Tribunal and the orders of the

Tribunal have attained finality, thus, additions made on the same set of

facts and circumstances on the same issue in the order passed by the AO in

block assessment proceedings u/s 158BD/158BC for block period of

1.4.1996 to 20.9.2002 are not sustainable. As we have already noted above

that the additions made in the hands of purchasers about alleged

investment from undisclosed sources have also not been found to be

unsustainable in the case of Chavan Rishi International by ITAT Chandigarh

order dated 9.11.06 and in the case of Shri J.C. Malhtora, the Settlement

                                                                        15
IT(SS)A No.108/Del/2008
Block Period: 1.4.96 to 20.9.02

Commission vide its order dated 25.8.2008 (supra) wherein it was held

that no adverse inference about undisclosed income can be drawn.


13.      In the result, both the grounds of the assessee are allowed and

consequently appeal of the assessee is allowed, the impugned order is set

aside and the AO is directed to delete the impugned additions.


         Order pronounced in the open court on 15.1.14.

          Sd/-                                        Sd/-

  (G.D. AGRAWAL)                          (CHANDRAMOHAN GARG)
ACCOUNTANT MEMBER                             JUDICIAL MEMBER

DT. 15th January, 2015
`GS'


Copy forwarded to:-

    1.   Appellant
    2.   Respondent
    3.   C.I.T.(A)
    4.   C.I.T. 5. DR
                                                 By Order



                                           Asstt. Registrar




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