2016 (1) TMI 490 - AT - Income Tax

Excess consideration received treated as on money - Held that - In the present case, the materials based on which the additions have been made namely the data obtained from external sources does not seem to have been confronted to Assessee. It is pertinent to observe that for adjudicating any controversy, the adjudicator is required to follow either deductive reasoning method or inductive reasoning method. In the first principle the adjudicator will draw inference in support of his conclusion based on the material already available on record, under the 2nd method, in support of his conclusion, he will induct some material namely data, commentary about any concept etc. In the present case, ld. CIT(A) has followed the 2nd method but failed to establish the nexus from that material vis- -vis the case of the Assessee while arriving at the conclusion and secondly, as observed earlier, failed to provide opportunity of hearing to the Assessee on that material. In view of these facts, we are of the view that the matter needs to be readjudicated by ld. CIT(A) by following the principles of natural justice. Needless to state that ld. CIT(A) shall grant adequate opportunity of hearing to the Assessee. The Assessee shall also be free to place any submissions or details in its support to present its case. - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:

1. Addition of alleged "on money" receipts based on impounded documents.
2. Validity of market rates adopted from websites.
3. Relevance and reliability of impounded documents.
4. Assumptions regarding "on money" receipts.
5. Comparison of impounded documents.
6. Reliance on third-party statements.
7. General practice of "on money" in real estate.
8. Alternative plea for net profit addition.
9. Consideration of submissions made to AO.
10. Levy of interest u/s 234A, 234B, and 234C.
11. Initiation of penalty proceedings u/s 271(1)(c).

Detailed Analysis:

1. Addition of Alleged "On Money" Receipts:
The Assessee, a real estate developer, was subject to a survey under Section 133A of the Income Tax Act, where documents indicating a higher sale price than recorded were found. The AO concluded that the Assessee received "on money" based on these documents and added Rs. 32,56,98,405/- to the Assessee's income. The CIT(A) upheld this addition, noting that the AO's conclusions were based on corroborative evidence from market rates and impounded documents.

2. Validity of Market Rates Adopted from Websites:
The AO used property sale websites like 99acres.com and magicbricks.com to determine the prevailing market rates, which supported the higher rates noted in the impounded documents. The CIT(A) agreed with this approach, stating that these websites are considered authentic and reflect actual market conditions.

3. Relevance and Reliability of Impounded Documents:
The Assessee argued that the impounded documents were "dumb documents" with no direct link to their projects. The AO, however, presumed the documents belonged to the Assessee and pertained to their projects. The CIT(A) found the AO's reasoning logical and consistent with the evidence.

4. Assumptions Regarding "On Money" Receipts:
The AO assumed that the Assessee received significant amounts in cash (60%) and recorded only a portion (40%) through cheques. This assumption was based on the analysis of impounded documents and market rates. The CIT(A) upheld this assumption, noting that the Assessee failed to provide evidence to the contrary.

5. Comparison of Impounded Documents:
The AO compared the impounded documents with actual sale deeds and market rates, finding discrepancies that suggested "on money" receipts. The CIT(A) found this comparison valid and supported the AO's conclusions.

6. Reliance on Third-Party Statements:
The CIT(A) referred to a similar case involving M/s Sambhav Infrastructure Pvt. Ltd., where "on money" receipts were admitted. The Assessee argued that this comparison was irrelevant as there was no business connection between the two entities. The CIT(A) dismissed this argument, finding the comparison indicative of a common practice in the real estate sector.

7. General Practice of "On Money" in Real Estate:
The CIT(A) noted that accepting "on money" is a common practice in the real estate industry, further supporting the AO's conclusions. The Assessee's contention that they did not engage in such practices was not found credible.

8. Alternative Plea for Net Profit Addition:
The Assessee argued that only the net profit from "on money" should be added to their income, not the entire amount. The CIT(A) dismissed this plea, as the Assessee failed to provide detailed evidence of the revenue recorded from flat sales and "on money."

9. Consideration of Submissions Made to AO:
The Assessee claimed that their submissions were not properly considered by the AO and CIT(A). The CIT(A) found that the AO had given detailed reasoning and that the Assessee failed to rebut the conclusions with substantial evidence.

10. Levy of Interest u/s 234A, 234B, and 234C:
The Assessee contested the levy of interest under these sections. The order does not provide specific details on this issue, but it is typically a consequential matter following the determination of tax liability.

11. Initiation of Penalty Proceedings u/s 271(1)(c):
The Assessee also contested the initiation of penalty proceedings for concealment of income. This issue is generally addressed separately following the conclusion of the primary assessment proceedings.

Conclusion:
The Tribunal found that the principles of natural justice were not adequately followed, as the Assessee was not confronted with all the material used against them, including external data and comparisons with other cases. The matter was remanded to the CIT(A) for re-adjudication, ensuring that the Assessee is given an opportunity to respond to all the evidence and reasoning used in the decision-making process. The appeal was allowed for statistical purposes, emphasizing the need for a fair hearing and proper consideration of all relevant facts and submissions.