9911796707
TMI Blog2014 (11) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... Survey operations u/s 133A of the Act were also carried at business places of the partnership firm as well as private limited companies. From the assessment order of Shri Dixant G Sharma, we notice that the business concerns at which survey / search operations conducted are M/s Builders Alliance Pvt Ltd, M/s GHP Enterprises, M/s Printer alliance Pvt Ltd, M/s Builder Alliance, M/s Dicky Real Estate and Investments, M/s Sharma Stone Crushing Co., M/s GHP Corporation. Pursuant to search/survey operations, the present assessments have been framed. 3. We shall now take up the appeal filed by Shri Dixant G Sharma for assessment year 2006-07. This appeal is barred by limitation by 491 days. The assessee has filed a petition requesting the bench to condone the delay. We heard the parties on this preliminary issue. Having regard to the submissions made in the affidavit, we are of the view that there was sufficient cause for the assessee in filing this appeal belatedly. Accordingly, we condone the delay and admit the appeal for hearing. The Ld Counsel appearing for the assessee did not press Ground No.1 relating to the validity of initiation of proceedings u/s 153A of the Act. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashant Sharma are partners of a partnership firm named M/s GHP Corporation. The above said partnership firm had owned a land near Jaipupr and the said land was agreed to be developed jointly by the partnership firm and M/s Alokik Township Corporation. Pursuant thereto, M/s GHP Corporation received a sum of Rs. 3.00 crores as refundable advance from M/s Alokik Township Corporation, of which Rs. 2.00 crores was received by way of cheque and the remaining Rs. 1.00 crore was received by way of cash. The amount of Rs. 2.00 crore was accounted in the books by directly crediting the same to the capital account of both the partners. The cash receipt of Rs. 1.00 crore was not accounted for in the books of account. In the sworn statement taken during the course of search, both Shri Dixant Sharma and Shri Prashant Sharma agreed to offer Rs. 50.00 lakhs each as income in their respective hands. Since the assessee did not offer the amount of Rs. 50.00 lakhs also in the return filed u/s 153A, the AO assessed the same as unaccounted cash receipt on protective basis, since the same amount was also assessed in the hands of M/s GHP Corporation on substantive basis. 5. In the appellate proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the revised computation of income. Accordingly, the Ld CIT(A) held that the assessee cannot change his stand. The Ld CIT(A) further held that the claim of the assessee that the land was purchased by a private limited company viz., M/s Builders Alliance P Ltd was liable to be rejected, since the above said private limited company was only a facade created by the assessee. The Ld CIT(A) expressed the view that the assessee is the real beneficiary of the impugned investment, since he is the director of the Private Limited company in whose name the land was purchased. The Ld CIT(A) further expressed the view that a Company is indeed a juristic person but it is separate and distinct only for the share holders and not necessarily from the Directors, particularly in a company which is controlled by family or few members. Accordingly, the Ld CIT(A) held that the assessee could not take support from the decision rendered in the case of M/s Haldiram Foods Ltd (supra). The Ld CIT(A) further placed reliance on the decisions rendered by Hon'ble Supreme Court in the cases of CIT Vs. Durga Prasad More (82 ITR 540) and Sumati Dayal Vs. CIT (214 ITR 801) and held that the assessing officer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the Company, which is totally against the established principles. Accordingly, he submitted that the Ld CIT(A) was not correct in observing that the beneficial owners of M/s Builders Alliance (P) Ltd are its directors. The very fact that the assessee had agreed to offer the cash payments as his income, which was pertaining to the land purchased by one of the group companies clearly show that he could not properly apply his mind at that point of time. He further submitted that the assessee had given the statement without verifying the books of account also. Since the assessee was one of the partners/directors in many concerns, it is quite common to refer all of them as his own concerns and the assets belonging to those concerns as his. However, under the eyes of law, each concern is a separate entity having independent rights and liabilities. Accordingly he submitted that the undisclosed investment, if any, involved in the land deal should not be assessed in the hands of the assessee herein. He further submitted that the assessing officer did not conduct further enquiries to ascertain the veracity of the impounded document also. Since the assessee did not actually pay the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to Ld A.R, the said purchase has been duly accounted for by it. Hence, the assessee is contending that the transactions pertaining to the land purchase do not belong to it. Further, the AO has presumed that the amount of Rs. 47.50 lakhs was accounted for and the amount of Rs. 1,02,50,000/- was not accounted in the books of account, which appears to be not correct. We have seen earlier that the sale consideration appears to be Rs. 70.00 lakhs, which is evidenced by the fact that the AO himself records the same in the assessment order. Further, the impounded document says that Rs. 17.50 lakhs (each person). Further the sale consideration mentioned in the conveyance deed itself was Rs. 67.48 lakhs. However, it is seen that the assessing officer did not pose any question to the assessee seeking explanations in this regard, which are apparently visible. Thus it is seen that the only basis on which the impugned amount of Rs. 1,02,50,000/- was decided to be assessed in the hands of the assessee was the sworn statement given by Shri Dixant G Sharma. 11. The discussion made in the previous paragraph would show that there is no clarity, both in the mind of the assessing officer as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess the said amount in the hands of right person. However, with respect to the assessment of Rs. 1,02,50,000/-, no such exercise was carried out and the tax authorities have solely relied upon the sworn statement to assess the amount of Rs. 1,02,50,000/-, without making any further enquiry and also without making any attempt to resolve the contradictions pointed out by us earlier. 13. In view of the foregoing discussions, we are of the view that the facts prevailing in the instant case and surrounding circumstances do not warrant assessment of Rs. 1,02,50,000/- in the hands of the assessee herein. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the AO to delete the addition of the above said amount made in the hands of Shri Dixant G Sharma. 14. We shall now take up the appeals filed by both Shri Dixant G Sharma and Shri Prashant G Sharma for AY 2007-08. Both the assessees are aggrieved by the decision of Ld CIT(A) in not giving set off of Rs. 50.00 lakhs claimed by both of them in their respective hands. The facts relating to the same are discussed in brief. In the statement taken u/s 132(4) of the Act, Shri Dixant G Sharma disclosed a sum of Rs. 67.50 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO is not correct, since the date of purchase of jewellery is not available on record. He submitted that the income of Rs. 1.00 crore was assessed in the hands of M/s GHP Corporation. However there is no material to disprove the claim of the assessees that they had withdrawn the above said amount at Rs. 50.00 lakhs each. The Ld A.R further submitted that, once it is shown that the cash was available with the assessees, the same would explain the sources for cash and jewellery found during the course of search. On the contrary, the ld D.R placed reliance on the orders of tax authorities. 18. It is an undisputed fact that the concern M/s GHP Corporation received Rs. 3.00 crores as advance in the financial year 2005-06 relevant to the assessment year 2006-07. It is also an undisputed fact that the amount of Rs. 2.00 crores received by way of cheque was credited to the capital account of the assessees herein available in the books of M/s GHP corporation. When this fact is accepted, we do not find any reason to reject the claim of the assessees that they had taken away the remaining amount of Rs. 1.00 crores received by way of cash. Further, we notice the revenue did not bring any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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