2021 (6) TMI 1150 - AT - Income Tax

Assessment u/s 153A - Unexplained cash credits u/s 68 - whether incriminating material found during the course of search pertaining to investment made by various group members in share capital of the assessee company or receipt of cash/unaccounted money against sale of investments by the assessee company found? - HELD THAT - Addition made u/s 68 cannot be upheld and are required to be deleted as no incriminating material found during the course of search. Further additions made by Ld. A.O. by estimating unexplained expenditure as required to be deleted and held that these additions are beyond the scope of AO passed u/s 153A of the Act and finally addition made u/s 68 and unexplained expenditure for both the Assessment Years were deleted. On-money receipt - Whether same will be taxed in the year in which sales are recognized in the books of account and that too at the rate are 17.5% of the On-money receipt? - HELD THAT - As settled law that on-money is required to be taxed in the year in which amount received through cheque is taxed. Addition on account of 22 unsold units have been offered in the year of sale in subsequent years hence addition of the same cannot be made considering that the assessee has made any unaccounted sale of such units during A.Y. 2014-15. And further stated that similar units sold by other group cases being M/s. autocare Services, M/s. Sumangal Enterprise etc. which have filed Settlement Petition before Hon ble Income Tax Settlement Commission, Mumbai has estimated net profit @ 17.5% being profit estimated on on-money as well as turnover shown in books of account. And further stated that it is settled legal law and entire on-money cannot be taxed but only profit embedded on alleged on-money can be taxed. Additions made for 51 units in AY 2014-15, the amount worked (subject to verification by the AO) out above for 30 units only remains for A.Y. 2014-15, the amount to be worked out for 18 units and 2 units as discussed before are to be taxed in A.Y. 2015-16 and A.Y. 2016-17 respectively and the amount to be worked out for remaining/unsold 1 unit is to be taxed in the year when it may be sold.

Summary

Issues Involved:
1. Incriminating material found during search proceedings.
2. Addition of unexplained cash credits under Section 68 of the I.T. Act.
3. Addition of unexplained expenditure.
4. Addition of undisclosed sales receipts as 'On-money'.
5. Taxation of 'On-money' based on the year of receipt or recognition in books of account.
6. Estimation of net profit on 'On-money' receipts.

Issue-wise Detailed Analysis:

1. Incriminating Material Found During Search Proceedings:
The Revenue argued that the CIT(A) erred in holding that no incriminating material was found during the search for A.Y. 2011-12, thereby deleting the addition of ?8,33,10,000/- for unexplained cash credits and ?41,65,500/- for unexplained expenditure. The Revenue contended that the statement recorded under Section 132(4) of the Act is part of the search proceedings and should be considered incriminating material. The CIT(A) and Tribunal, however, found that the additions made by the AO were not based on any incriminating material found during the search but rather on post-search inquiries and statements, which cannot justify additions under Section 153A of the Act.

2. Addition of Unexplained Cash Credits Under Section 68:
The AO added ?8,33,10,000/- for A.Y. 2011-12 and ?1,62,40,000/- for A.Y. 2012-13 as unexplained cash credits under Section 68. The CIT(A) found that these additions were not based on any incriminating material found during the search and thus were beyond the scope of Section 153A. The Tribunal upheld the CIT(A)'s decision, noting that the transactions were recorded in the books prior to the search and no incriminating material was found to support the additions.

3. Addition of Unexplained Expenditure:
The AO also made additions for unexplained commission paid to alleged entry providers, amounting to ?41,65,500/- for A.Y. 2011-12 and ?8,12,000/- for A.Y. 2012-13. The CIT(A) deleted these additions, stating that they were beyond the scope of Section 153A as they were not based on any incriminating material found during the search. The Tribunal agreed with the CIT(A)'s findings.

4. Addition of Undisclosed Sales Receipts as 'On-money':
The AO made additions for undisclosed sales receipts ('On-money') for the project "Sky Harmony," based on the statement of the Site Supervisor. The CIT(A) held that 'On-money' should be taxed in the year in which sales are recognized in the books of account and at a rate of 17.5% of the 'On-money' receipt. The Tribunal upheld the CIT(A)'s decision, noting that the AO's reliance on the Site Supervisor's statement was incorrect and that the Director's statement admitting a sale rate of ?2,100/- per sq. ft. was more reliable.

5. Taxation of 'On-money' Based on the Year of Receipt or Recognition in Books of Account:
The CIT(A) held that 'On-money' should be taxed in the year in which sales are recognized in the books of account, not when received. The Tribunal agreed, citing case law that supports taxing 'On-money' in the year of recognition in the books of account.

6. Estimation of Net Profit on 'On-money' Receipts:
The CIT(A) estimated net profit at 17.5% on both accounted and unaccounted turnover, based on the Income Tax Settlement Commission's approach in similar cases. The Tribunal upheld this estimation, noting that it was consistent with the approach taken in other group cases and supported by case law.

Conclusion:
The Tribunal upheld the CIT(A)'s detailed and reasoned order, dismissing the Revenue's appeals. The additions for unexplained cash credits, unexplained expenditure, and undisclosed sales receipts were deleted as they were not based on incriminating material found during the search. The 'On-money' was directed to be taxed in the year of recognition in the books of account, with net profit estimated at 17.5%. The Assessee's appeal was dismissed as not pressed.