IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR BEFORE: SHRI A.D. JAIN, JM & SHRI VIKRAM SINGH YADAV, AM ITA No. 79/JP/2016 Assessment Years : 2008-09 I.T.O M/s Apple Buildstates, Ward 5(2), Vs. B-304, Janta Colony, Jaipur. Jaipur PAN/GIR No.: AAGCA 0957 R Appellant Respondent Revenue by: Shri R.A. Verma (Addl.CIT) Assessee by : Shri Vijay Goyal (CA) Date of Hearing : 15/09/2016 Date of Pronouncement : 16/09/2016 ORDER PER: A.D. JAIN, J.M. This is appeal filed by Revenue against order of ld. CIT(A)-II, Jaipur dated 30/11/2015 for assessment year 2008-09, contending that ld. CIT(A) has erred in deleting addition of Rs. 50,04,650/- made on account of undisclosed investment in purchase of land/immovable property. 2. facts as per record are that search under section 132 of IT Act was conducted on 6/8/2008 at Lashkary group in Jaipur & M/s 2 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates Apple Buildestate Pvt. Ltd. belongs to this group. During search proceedings loose paper being page no. 37 of annexure A-57 was found and seized from 73-75, Talkatora which is reproduced below:- Column 1 Column 2 Column 3 Column 4 26.66 Bhavgarh 166 330 22.5 Pushp Garden 169 400 50 Mahal Rd 14.5 30 40 Dabla Khurd 70 120 60 Chaksu 88 200 60 Gunsi 50 100 95 Vatslya 90 18.75 Sports City 120 80 RR Farm 108 440 666 18.30 In this table, column 2 represents name of property owned by companies in Lashkary group and Dable Khurd belongs to Apple Buildestate Pvt. Ltd. Assessing Officer made addition of Rs. 18,19,350/- by stating, total purchase cast in hands of company is Rs 1,20,00,000/- as opposed to Rs. 51,04,500/- given in balance sheet as on 30.3.2008 by allowing benefit of capitalization of costs incurred by assessee considering that assessee and incurred expenditure for conversion/jamabandi etc. and figures in page 37 is considered to be cost in hands of assessee inclusive of all charges. Thus total unaccounted investment of Rs. 68,96,000/- has been 3 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates made by assessee and out of which Rs. 18,91,350/- has been made during F.Y. 2006-07 relevant to Assessment Year 2007-08 . Similar addition were also made to other companies of Lashkary group on basis of same seized paper found during search proceedings at Talkatora, Jaipur i.e. (page no. 37 of annexure A-57 was found and seized from 73-75, Talkatora). In case of Rising Buildestate Pvt. Ltd. and Country Wide Buildestate Pvt. Ltd. addition was made on basis of same documents and on same facts and circumstances and addition was deleted by CIT(A) Central Jaipur. This issue is decided in favour of assessee by Hon'ble ITAT in case of M/s Rising Buildestate Private Limited (ITA No. 962/JP/2011, Asstt. Year: 2007-08) as follows- As stated above, neither these findings could be controverted nor any other material were brought on record which can be said that findings of Ld. CIT (A) are not correct. Ld. CIT (A) has taken into consideration aspect that firstly Assessing Officer s view was that cost of land was Rs. 4.55 crore or odd. Three show cause notices were given to assessee for explaining that why cost of land be not taken at Rs. 4.50 crore or odd. All three times, explanation was filed and Assessing Officer was satisfied with explanation. Therefore, A.O. has not taken cost of investment at Rs. 4.50 crore or odd. 4 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates However, as per column no. 4 of page 37 of Exhibit A-57 which was seized from 73-75, Talkotra, Jaipur where figure of 400 was mentioned, AO took this value as cost of investment in property. Contents of page 37 of Annexure A-57 has been tabulated in order of ld. CIT (A) at page 4 which has also been reproduced somewhere above in this order while incorporating facts of case. Neither AO could co- relate figure of 22.5 mentioned in column no. 1 nor figure mentioned in column no. 3 as per books of account. Therefore, there cannot be presumption that figure of 400 mentioned in column no. 4 is figure of cost of land purchased by assessee. There must be some corroborative evidence to hold that this figure is related to cost of land purchased by assessee. We are not repeating explanation/findings of ld. CIT(A) as finding of ld. CIT (A) in its entirety have been reproduced in above para of this order. However, as stated above, findings of ld. CIT (A), in our considered view, are findings of fact which does not require any interference. Ld. CIT (A) also found that cases relied upon by AO were not relevant on facts of present case whereas cases relied upon by Id. Counsel of assessee are in support of case. ratio of all these cases have also been reproduced somewhere in order of ld. CIT 5 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates (A) which is also part of this order. In view of above facts and circumstances, we find no infirmity in findings of ld. CIT (A) who has deleted addition made by AO by holding that he has not brought any material to make any addition under section 69B. In view of these facts and circumstances and in view of detailed reasoning given by Ld. CIT (A) which is reproduced somewhere above in this order, we hold that Ld. CIT (A) was justified in deleting addition made by Assessing Officer. Accordingly we confirm his order. 3. ld. CIT(A) deleted addition made, following aforesaid Tribunal order (PB 130-161) dated 22/6/2012, passed in case of M/s Rising Buildstate Pvt. Ltd., for A.Y. 2007-08. ld. CIT(A) has held as under:- In view of above findings of Hon ble Tribunal, since addition made in this case relates to same documents, additions made by Assessing Officer of Rs. 50,04,650/- as unexplained investments in land are hereby deleted. grounds of appeal are allowed. 4. ld Sr. DR has contended that department has not accepted Tribunal order dated 22/6/2012 passed in case of M/s Rising Buildstate Pvt. Ltd. for A.Y. 2007-08 and has filed appeal before 6 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates Hon'ble High Court, which is hither-to pending. ld Sr. DR submits that as such, ld. CIT(A) s action of following said Tribunal order, to delete addition made in case of present assessee, be cancelled and assessment order be confirmed. 5. ld. Counsel for assessee, on other hand, has placed strong reliance on impugned order. 6. We have heard rival contentions of both parties and have perused material available on record. It is not disputed that search was conducted on Lashkary Group in Jaipur and that assessee company belongs to this group. It is not disputed that Rising Buildstate Pvt. Ltd. and Country Wide Buildstate Pvt. Ltd. are also companies belonging to Lashkary group. It is not disputed that similar additions, as one made herein, were made in cases of these two companies, on basis of very same seized paper (page 37 of Annexure-A-57) found in search, as formed basis of addition in present case. It is not disputed that additions in cases of these two companies were deleted by ld. CIT(A). It is not also disputed that in case of M/s Rising Buildstate Pvt. Ltd., vide order (supra), dated 22/6/2012, passed in ITA No. 962/JP/2011 and C.O. 7 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates 88/JP/2011, for immediately preceding assessment year, i.e., A.Y. 2007-08, Tribunal upheld ld. CIT(A) s action of deletion of addition and dismissed department s appeal. It is further not disputed that facts and circumstances in present case are exactly similar to those in case of M/s Rising Buildstate Pvt. Ltd. 7. ld. CIT(A) has followed aforesaid Tribunal order dated 22/6/2012 in case of M/s Rising Buildstate Pvt. Ltd., in A.Y. 2007-08. Now, in view of fact that in case of M/s Rising Buildstate Pvt. Ltd., for A.Y. 2007-08, ld CIT(A) had deleted addition made and in present case, ld. CIT(A) has followed order of Tribunal upholding said deletion of addition in case of M/s Rising Buildstate Pvt. Ltd., and in view of fact that facts and circumstances in present case are undisputedly in pari materia with those in case of M/s Rising Buildstate Pvt. Ltd., for A.Y. 2007-08, consistency demands that said Tribunal order in case of M/s Rising Buildstate Pvt. Ltd., be followed herein, as has correctly been done by ld. CIT(A) vide impugned order. This, irrespective of department having statedly not accepted aforesaid Tribunal order, and having appealed there-against before Hon'ble High Court. 8 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates law will taken its own course and bearing of fate of department s appeal before Hon'ble High Court in case of M/s Rising Buildstate Pvt. Ltd., shall be examined at relevant time. As of now, consistency prevails. 8. In this regard, it is also seen that as per record, even in case of M/s Country Wide Buildstate Pvt. Ltd., vide order (APB 162-193) dated 29/06/2012, passed for A.Y. 2007-08, in ITA No. 961/JP/2011 and C.O. 87/JP/2011, Tribunal has, following their aforesaid order in case of M/s Rising Buildstate Pvt. Ltd., similarly confirmed CIT(A) s action of deletion of similar addition, by holding as under:- 16. We have already decided similar case in case of M/s Rising Buildstate Pvt. Ltd. in ITA No. 962/JP/2011 by order dated 22/6/2012 in which identical facts are involved. addition was made on basis of column No. 4 of page 37 Annexure A-57. addition was deleted by Ld. CIT(A) and order of Ld. CIT(A) has been confirmed by us. Since facts are identical in present case, therefore, in view of above facts and circumstances discussed above and in view of reasoning given by us in that case i.e. M/s Rising Buildstate Pvt. Ltd., we confirm order of ld. CIT(A) in this case also. 9 ITA 79/JP/2016_ ITO Vs M/s Apple Buildstates 9. For above, finding no merit in grievance sought to be raised by department, same is rejected. 10. order under appeal is confirmed. 11. In result, appeal of department is dismissed. Order pronounced in open court on 16/09/2016. Sd/- Sd/- (Vikram Singh Yadav) (A.D. Jain) Accountant Member Judicial Member Dated:- 16th September, 2016 Ranjan Copy of order forwarded to: s 1. Appellant- ITO, Ward-5(2), Jaipur. 2. Respondent- M/s Apple Buildstates, Jaipur. 3. CIT 4. CIT(A) 5.DR, ITAT, Jaipur 6. Guard File (ITA No. 79/JP/2016) By order, Asst. Registrar I.T.O., Ward 5(2), Jaipur v. M/s Apple Buildstate