9911796707
TMI Blog2014 (4) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... the buyers of the flats was examined by the department to verify the involvement of on-money payment and other charges as alleged by the revenue - Even the understatement of area is not examined by the AO at any stage of proceedings - it cannot be presumed that all the flats were sold by the assessee through the real estate agent and involved brokerage charges. When the statements u/s 133A were recorded at back of the assessee and were subsequently retracted by the witnesses have no evidentiary value to the extent of contents whichever corroborated by documents impounded during the survey proceedings – thus, no addition is warranted with regard to the area, parking charges and brokerage - The addition regarding rate is sustainable only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed that the assessee was selling the car parking area, which was not recorded in the books of account. It was further revealed that the assessee was receiving back the brokerage from the brokers at 40% of the brokerage charged by them from the purchaser of flats and the said amount was also not recorded. While completing the assessment of the assessee for the A.Y. 2006-07, following additions were made: (i) Addition on the alleged On-money received sale of flats Rs. 7,41,08,829/- (ii) Addition towards sale of Parking space Rs. 39,00,000/- (iii) Addition towards unaccounted Brokerage payment received back Rs. 11,70,000/- In this year the A.O. sought explanation of the assessee why the assessment should not be completed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e A.O. has made the identical additions in respect of the alleged on-money received, unaccounted money from the parking space and returned back 40% of brokerage. The assessee has sold 21 flats in A.Y. 2006-07 and in this year the assessee has sold totally 19 flats. For A.Y. 2006-07, the Tribunal has confirmed the order of the Ld. CIT (A), to extent the amount which was found recorded in document no.8 seized and balance addition was deleted in respect of the on money receipts. In this year, as noted by the Ld. CIT (A,) the A.O. was confronted whether any of 19 flats sold during the year relevant to the A.Y. 2007-08, has been mentioned in the impounded loose-paper marked as page no.8. As per the reply given by the A.O. none of the flats, out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly, the statements relied upon by the revenue recorded during the course of survey proceedings and even subsequent to the survey were of Real Estate Agents and not of the assessee or of any person working on behalf of the assessee or connected with the business of the assessee. It is also undisputed fact emerging from the record that Shri Anthony Fernandes and his assistant Shri Kamlesh Yadav were doing their business from the premises of the assessee. We find that the documents impounded during the survey in the shape of loose sheets were also admittedly prepared by the assistant of Shri Anthony Fernandes, Real Estate Agent. 11.1 The AO has made the addition by adopting the estimated rate of sale price of the flat at the rate of Rs. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jority of flats is Rs. 2750 per sq.ft. and in some cases Rs.3280/- per sq.ft.. 13. The CIT (A) has heavily relied upon the impounded document no.8 which is at page 160 of the paper book, wherein the rate and area of the various flats have been mentioned. The CIT (A) has accepted the rates and area given in the said documents but has not accepted the brokerage mentioned in the said documents, therefore, the documents cannot be accepted in part. Moreover, the area of a flat sold by the assessee cannot be more than the area which is transferred by the sale document and the purchaser cannot have legal right and title over the area more than what has transferred under the said document. Even otherwise the area is always constant and subject t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,000/- for each flat for car parking. The AO had not made any inquiry or verification to examine the facts regarding the rate of sale, area, on money payment of brokerage charges and car parking charges from any of the available sources including the buyers of flats as none of the buyers of the flats was examined by the department to verify the involvement of on-money payment and other charges as alleged by the revenue. Even the understatement of area is not examined by the AO at any stage of proceedings. Therefore, it cannot be presumed that all the flats were sold by the assessee through the Real Estate Agent and involved brokerage charges. 16. In view of the above discussion and facts and circumstance of the case, we are of the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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