2015 (7) TMI 167

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....of persons have given unsecured loan to G.B.E.S and as the assessee has taken over G.B.E.S, loan also belong to the assessee. d) The other additions are Rs. 50,00,000/- being amount received from Shri Bhupinder Singh, Rs. 25,00,000/- being payment in cash to Mr. Raja Singh and Rs. 6,00,000/- on account of sale of four flats. e) The additions of Rs. 50,00,000/-, Rs. 25,00,000/- and Rs. 6,00,000/- are not disputed by the assessee. 3. As regards the other additions, the assessee carried the matter in appeal. 4. The first appellate authority framing the following questions which are extracted from Para 5.5 page 11 of the CIT order:  "5.5 Now the issue to be decided is....... a) Whether there was takeover of M/s G B Educational Society (regd) along with 24282 Sq Mts of land allotted to it by M/s Lovely Bal Shiksha Parishad (regd) through its President Shri R.P. Malik i.e. the assessee? b) If so, what is the amount of unexplained investment made by the assessee for the said takeover to be assessed u/s 68 of the IT Act? 5. In the various reasons given in his order, the first appellate authority allowed the appeal of the assessee. 6. Aggrieved the Revenue is before us on t....

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.... 6) That Ld. Dy. Commissioner of Income Tax, Circle-20, New Delhi filed an appeal before your goodself against the appellate order of Ld. CIT(Appeals-1) New Delhi on 04.06.2010. 7) That the respondent object in respect of the appeal filed by Ld. Dy. CIT, Central Circle-20, New Delhi. Moreover, the appellant has not filed any ground to substantiate their claim in favour of appeal. 8) That the respondent further submits to stand by the submission made at time of hearings in appeal before Ld. CIT(Appeals-1) New Delhi. 8. We have heard Mr. Vivek Wadekar, Ld. CIT DR on behalf of the revenue and Shri V. P. Gupta, the ld. Advocate on behalf of the assessee. 9. Mr. V.P. Gupta submitted that the Cross-objection filed by the assessee do not rise any issue other than the issue on which the appeal has been filed by the Department. 10. The ld. DR Mr. Vivek Wadekar, relied on the order of the AO and submitted that the first appellate authority has not properly appreciated the facts of the case and granted relief. He argued that the land in question is held by the society and it is this land which is targeted for acquisition by the assessee who is in the business of purchase and sale of R....

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....o be made. These payments are recorded in the books of accounts. 16. There is no evidence to prove that the assessee or M/s Lovely Bal Shiksha Parishad had made payments amounting to Rs. 3,12,53,280/-. 17. Though the deal was negotiated, the final transfer had not taken place and this is clear from the letter of the Registrar of Society, given in an inquiry made by AO that there was no change in the list of members of the Society. Copies of the letter are at page nos. 110 to 114 of the paper book. Punjab National Bank confirmed that Mr. R.P. Malik and others were Joint Secretaries between 16.07.2005 to 1.03.2007 and that the account has been closed on 11.08.2008. The AO made reference of hand written slips, a copy of which are at pages 94 & 95 of the paper book. A perusal of the same demonstrates that only payments which are appearing on records are mentioned herein. 18. With this factual background, we find that the first appellate authority has in his order at Para 5.5 upheld the contention of the assessee and deleted the addition. While doing so he held as follows; a) There is no change in the membership of the Society from the date of allotment of land, till the date of iss....

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....ntermediary was returned, cannot be rejected without contrary proof. 22. At Para 5.6 of the order of ld. CIT(A) held as follows: "5.6 I have examined the documentary evidence produced by the assessee and also the basis on which the AO has made additions. In my opinion the stand taken by the AO for making addition towards take over of GBES including 24,282 sq mtrs of land allotted by GNIDA for Rs. 5,34,20,400/- lacks evidence. The unsigned Memorandum of Understanding made for land area measuring 24282 Sq. Mtrs. @Rs.2200/- per Sq. Mtr. can not be taken into cognizance. Primarily both the concerned authorities viz., GNIDA for allotment of land and Registrar of Societies have confirmed that the land was allotted to GBES and that there is no change in either the members or the executive council ever since the date of incorporation to the date of reporting which confirms the fact that the assessee has not taken over neither the society nor the land. The AO himself has rectified the order by allowing payments verified by him in the books of accounts of Rs. 93, 13,320/- and Rs. 1 ,28,53,400/-. Further the GNIDA allotment letter shows that still a sum of Rs. 1, 1 0,48,310/- was not due fo....