2023 (6) TMI 1475 - AT - Income Tax

Unexplained money u/s 69A - addition of unaccounted on-money receipts - NP determination - assessments have bene made on the basis of survey u/s 133A - HELD THAT - ITAT in its order for A.Y 2017-18 2022 (5) TMI 1670 - ITAT SURAT in the assessee s own case have held that the rate of 8% is held to be the rate applicable to the assessee on the basis of peculiar circumstances and should not be held as a precedent for any preceding or succeeding assessment years. In the case of the assessee the assessments have bene made from A.Y 2015-16 to 2019-20 on the basis of survey u/s 133A and during the course of the said survey evidences of receipt of on-money were found and impounded. The additions in all these 5 assessment years have been made on the basis of incriminating material found during the course of survey. Therefore the facts and circumstances which are applicable to A.Y. 2017-18 are appliable to the impugned assessment year also. The fact of the assessee s case are totally identical to the facts of the A.Y 2017-18. Hence following the decision of the Hon ble ITAT for A.Y 2017-18 in assessee s own case on identical facts the CIT(A) directed the AO to take 8% of on-money receipts as income of the assessee. Set off of IDS declaration disallowed to the assessee - CIT(A) noted that after allowing the benefit of declaration under IDS 2016 no additional income need to be brought to tax - HELD THAT - We note that assessee is entitled for set off of IDS declaration and CIT(A) based on the facts narrated above has rightly allowed the benefit of declaration under IDS 2016. On a careful reading of the CIT(A) order and the findings thereon we do not find any valid reason to interfere with the decision and findings of the CIT(A) in holding that the assessee is entitled for the benefit of declaration under IDS 2016. Unexplained cash credit u/s 68 - Revenue argued that on-money should be taxable u/s 115BBE as such on-money does not pertain to assessee s business - HELD THAT - Income Tax Authorities have recorded the statement of assessee and in that statement the assessee had stated that he had received on-money from the customers to whom the flats were sold. In addition to this in the declaration under IDS 2016 made by the assessee the assessee has mentioned that he is making disclosure on account of onmoney received or to be received from the customers by selling flats of his particular project. Therefore such on-money should be assessed under the normal provisions of the Act and not u/s 115BBE. Abdul Hamid 2020 (8) TMI 141 - ITAT GAUHATI - Thus on-money should be assessed under the normal provisions of the Act and not u/s 115BBE. CIT(A) has erred in re-calculating the total on-money on booking of the flats during the year under consideration as against the on-money calculated by the assessing officer on the basis of incriminating impounded material. - CIT(A) observed that the entire amount of sale proceeds cannot be brought to tax as the assessee has shown the registered sale value of the said flats in the Profit Loss account in the years in which sale deeds of the said flats are executed. In the impugned assessment year no sale deed has been executed and only some flats having area of 45, 018 sq. ft have been booked and entire amount of sale has been received. The assessing officer has not identified the particular flat which is booked during the impugned assessment year. The analysis of sales given by the assessee during the appellate proceedings suggests that the average registered value of the flats sold by the assessee is Rs. 1844 per sq. ft. and the evidences found during the course of survey suggest that the flats are booked at the rate of Rs. 2200 per sq. ft. Thus the average on-money received by the assessee is in the range of Rs. 356/- per sq. ft. (Rs.2200 - Rs. 1844 Rs. 356). Thus the on money received by the assessee on booking of the flats having area of 45018 sq. ft. is of Rs. 1, 60, 26, 408/-and not Rs. 9, 57, 99, 600/- as determined by the assessing officer. We have gone through the above findings of ld CIT(A) and noted that there is no infirmity in the conclusion reached by ld CIT(A) hence we confirm the findings of ld CIT(A) and dismiss the grounds raised by the Revenue. Addition relying upon the whatsapp chats and loose papers found at the premises during the course of survey and extrapolating the amount in random manner - HELD THAT -Revenue has primarily reiterated the stand taken by the AO which we have already noted in our earlier para and is not being repeated for the sake of brevity. We note that addition is part of on-money received by assessee and considering the facts that said money may belong to assessee therefore we confirm the order of ld CIT(A) and dismiss assessee s cross objection.