2022 (11) TMI 239 - AT - Income Tax

Addition of on-money on sale of land - addition for undisclosed income for on-money - HELD THAT - In the seized documents also reference of payment for purchase of the lands. Thus, in the light of statements of the brokers and seized documents, it cannot be denied that on-money was paid while purchase of land by the assessee. We find that identical issue of addition of on-money in assessments under section 153A for search period i.e AY 2007-08 onward has been restored back to the file of the AO by the Tribunal wide order 2022 (7) TMI 1335 - ITAT MUMBAI therefore, in the Facts and circumstances of the case, we feel it appropriate to restore the issue in dispute involving grounds raised by the assessee to the file of the Learned Assessing Officer for considering the claim of the assessee for making addition for undisclosed income for on-money at the rate of the 10% of the sales after giving set off of the expenses of on-money incurred for purchase of the land. The grounds of the appeal of the assessee accordingly allowed for statistical purposes. Penalty levied under section 271(1)(c) - HELD THAT - Since we have already restored the addition in dispute made in assessment proceedings above to the file of the Learned Assessing Officer, therefore, the penalty levied in respect of the addition cannot survive; accordingly same is also restored to the file of AO for deciding afresh after adjudicating on the issue of addition in quantum proceedings. The grounds of the appeal of the assessee accordingly allowed for statistical purposes.

Issues Involved:
1. Validity of the reopening of the assessment under section 143(3) of the Income Tax Act, 1961.
2. Addition of Rs. 30,58,864/- on account of alleged on-money in respect of the Nagaon project.
3. Consideration of 20% on-money as undisclosed income.
4. Basis of assessment on the statement given by the Director.
5. Imposition of penalty under section 271(1)(c) of the Income Tax Act, 1961.

Comprehensive, Issue-Wise Detailed Analysis:

1. Validity of the Reopening of the Assessment:
The ground challenging the validity of the assessment was not pressed by the assessee's counsel and was dismissed as infructuous.

2. Addition of Rs. 30,58,864/- on Account of Alleged On-Money:
The assessee, a builder and developer, had filed a return of income declaring Rs. 59,66,730/-. A search on 21/03/2013 revealed that the director admitted to receiving on-money on the sale of land. The assessment was reopened under section 147, and the Assessing Officer added Rs. 30,58,864/- as undisclosed income. The CIT(A) upheld this addition. The assessee contended that the addition was based solely on the director's statement, which was later retracted, and that no corroborative evidence was provided. The Tribunal noted that the CIT(A) did not refer to any specific seized documents supporting the addition.

3. Consideration of 20% On-Money as Undisclosed Income:
The assessee argued that the 20% on-money addition was based on assumptions and not supported by facts. The Tribunal observed that the CIT(A) failed to mention specific evidence of on-money in the impugned order. Statements from brokers indicated cash payments for land purchases, which were not recorded in the assessee's books. The Tribunal restored the issue to the Assessing Officer to consider the assessee's claim of adding only 10% of on-money as undisclosed income after accounting for expenses incurred.

4. Basis of Assessment on the Statement Given by the Director:
The assessee argued that the assessment was completed based on the director's statement without considering the facts. The Tribunal noted that the CIT(A) relied on the director's statement and broker statements indicating cash payments for land purchases. The Tribunal directed the Assessing Officer to reassess the addition, considering the expenses incurred for land purchases.

5. Imposition of Penalty Under Section 271(1)(c):
The penalty of Rs. 10,29,613/- was imposed in relation to the addition of Rs. 30,58,864/-. Since the Tribunal restored the addition issue to the Assessing Officer for reassessment, the penalty could not survive and was also restored to the Assessing Officer for fresh adjudication after the quantum proceedings.

Conclusion:
Both appeals were allowed for statistical purposes, with the issues of addition and penalty being restored to the Assessing Officer for reconsideration. The Tribunal emphasized the need for specific evidence and proper consideration of expenses incurred for land purchases in the reassessment process.

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