Madhumita Roy ORDER
Madhumita Roy, Member (J)
1. The instant appeal filed by the Revenue is directed against the order dated 24.09.2015 passed by the Commissioner of Income Tax (Appeals) -4, Ahmedabad arising out of the order dated 27.03.2014 passed by the ITO, Ward-9(2), Ahmedabad under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to 'the Act') for Assessment Year 2011-12.
2. The deletion of addition of Rs. 3,50,00,000/- made on account of unexplained investment under Section 69 of the Act has been challenged before us.
3. The appellant is engaged in the business of real estate development. On 31.12.2009 an agreement was entered into by and between one Shri Deepakkumar Vadilal Patel and M/s. Vadilal Maganlal & Co. with a company namely Tripada Infrastructure Pvt. Ltd. (TIPL) through its Director Keyur Babulal Modi for selling of two plots of land lying and situated at Survey Nos. 1712 & 1713 admeasuring about 6186 sq. mtrs. and 708 sq. mtrs. respectively at Bavla for a total consideration of Rs. 1,14,82,000/- whereupon the said Tripada Infrastructure Pvt. Ltd. Company paid a cash of Rs. 1 lakh to the sellers and further an amount of Rs. 3 lakhs to the sellers between 09.06.2010 to 31.07.2010.
4. Subsequently, the said company conveyed the sellers it's unwillingness to purchase the said lands and then the appellant came into the picture as the intending purchaser of the said properties. As a result, a new tripartite agreement being Banakhat dated 07.09.2010 was entered into and executed between the said sellers namely Shri Deepakkumar Vadilal Patel and M/s. Vadilal Maganlal & Co. and the appellant M/s. Atmiya Infrastructure as the purchaser. Tripada Infrastructure Pvt. Ltd. has been made a confirming party to the said tripartite banakhat dated 07.09.2010 with the condition that the said confirming party would be paid Rs. 3,50,00,000/- for waiving its right on the said lands in terms of the original Banakhat dated 31.12.2009 and the original sellers would get Rs. 1,37,55,466/-. It is relevant to mention that on 12.10.2010 the original banakhat dated 31.12.2009 executed between the sellers and the Tripada Infrastructure Pvt. Ltd.(TIPL) was cancelled and resultantly the purchaser i.e. the appellant herein paid a total sum of Rs. 3,54,00,000/- to the said Tripada Infrastructure Pvt. Ltd.(TIPL) through banking channel by cheques. Relevant to note that the cancellation deed specifically mentioned of Rs. 4 lakhs paid by the TIPL to the sellers as advance at the time of entering into the original Banakhat dated 31.12.2009. In fact, the total consideration was Rs. 4,38,06,069/- and Rs. 49,49,397/- as per the sale deed dated 01.11.2010 and dated 25.10.2010 respectively for both the plots aggregating to Rs. 4,87,55,466/- out of which 3,50,00,000/- was paid to TIPL with the consent of the sellers for waiving their rights acquired by virtue of Banakhat dated 31.12.2009 as return on their investment and profit on the same.
5. During the assessment proceeding since the confirming party namely Tripada Infrastructure Pvt. Ltd. (TIPL) did not remain present in terms of the summons issued by the Ld. AO, the amount paid to the said company has been added to the total income of the assessee under Section 69 of the Act as unexplained investment. It is relevant to mention that the summons could not be served upon the said parties as their office was found closed. In appeal the addition was deleted by the Ld. CIT(A). Hence, the instant appeal before us by Revenue.
6. At the time of hearing of the instant appeal the Ld. Counsel appearing for the assessee submitted before us that the impugned addition was made entirely on surmise and conjecture and without proper consideration and appreciation of the facts of the case duly supported by comprehensive evidences furnished as available on record. In fact, during the assessment proceeding the entire set of documents namely........