9911796707
TMI Blog2013 (6) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Dolphin Builder (P) Ltd (hereinafter referred as assessee) constructed 24 flats in two buildings known as "Amardeep Apartments" and "Amarjyoti Apartments" and entered into agreement with Shri BD Agarwal and M/s Goyal Builders, according to which B.D. Agarwal had sold his land/plot to the assessee for a consideration of Rs.1,30,000/-. The assessee had constructed 10 LIG and 2 HIG flats to be sold through Goyal Builders on an agreed commission @2% of the sale proceeds. 3. As per the agreement the LIG flats were to be sold on the cost of 1.25 lakhs each and the HIG flats were to be sold at a cost of Rs.2.5 lakhs each. According to the assessee it received Rs.35,50,000/- on sale of flats, which were duly accounted for in the books of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion that the total sale proceeds of 12 flats in Amardeep Apartments worked out to be Rs.28,65,000/- as against sale proceeds accounted for in the books at Rs.17,50,000/- and thus the assessee had understated the sale proceeds by Rs.11,15,000/-. Similarly, in "Amar Jyoti Apartments" the total sale proceeds of 12 flats as per the figures given in Annexure C-11, worked out to be Rs.28,50,000/- and against sale proceeds accounted for in the book at Rs.18.00 lacs were corroborated by other seized documents. The total sale proceeds as per the seized documents worked out to be Rs.58,50,000/- as against the sale proceed of Rs.35,50,000/- accounted for in the books of accounts. The A.O. had determined the income at Rs.2,84,000/- under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing relief to the assessee by combining the amount of receipts shown and the amounts of undisclosed income. 8 (a) Learned counsel for the appellant has submitted that as the transaction was above Rs.40.00 lacs the A.O.had rightly applied the provisions of Section 44AD of the Act and supported the order of assessment passed by the Assessing Officer. His further submission was that ITAT had wrongly came to the conclusion that Section 44 AD was not attracted and wrongly upheld the finding of IT Commsioner's Order. That M/s Goyal builders had given the authority to sell the plot and commission was to be paid on the sale. As per Section 132 of the Act of 1961 in the case of Shri Ahsok Goyal, Proprietor of M/s Goyal Builders a note book marked a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipts after deducting commission of Rs.22,19,700/-., while the CITA held that the estimation of net income @8% of the gross receipts was not proper. 9. Learned counsel for the respondent submitted that provisions of section 44 AD are not applicable. The books of Accounts were duly audited and assessee was maintaining the vouchers, bills cash memos and other relevant documents so the case of the assessee is not covered under clause-1 of Section 44. The ITAT have rightly determined the net profit rate at 8% on the receipt shown by the assessee. The total receipts shown by the assesssee are of Rs.34,79,000/- which were received from M/s Goyal Builders who was to sale all these flats. The receipts were shown after deducting the Commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om any other place i.e. Goyal Builders, assessee cannot be held liable, so, the tribunal has committed no error. 13. We have also perused the material in the matter and find that there was no evidence in the matter that the excess amount, if any, was collected by M/s Goyal Builders or even if it was collected then it was passed on to the respondent. There was no search, survey or seizure of the premises of the assessee. Apart from this, the department had not examined any purchaser or flat owner to verify the correctness of the aforesaid noting that some higher amount was paid by the said purchaser to M/s Goyal Builders or the fact that actual price was much higher to the price which was recorded in the account books. The Tribunal have als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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