9911796707
TMI Blog2016 (1) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is made on 21-10-2010 and that too by the assessee. 30. So far as the other amount of 3,37,500/- is concerned the CIT(A) deleted the same on the ground that the same has been claimed to be paid to Shri Dwarka Prasad Agarwal, an employee of Suyojit Infrastructure Pvt. Ltd. for making payment to departmental labour. Since the assessee was a director of Suyojit Infrastructure Pvt. Ltd. and such entries were already recorded in the books of account of the company, therefore, addition of the same in the hands of the assessee is not justified. The above factual findings given by the Ld.CIT(A) could not be controverted by the Ld. Departmental Representative. - Decided in favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... AO further held that the said receipts are not recorded in the books of account of the assessee and the assessee in his statement recorded u/s.132(4) has offered the same as additional income on account of unaccounted business receipts belonging to Suyojit group. The assessee in his statement recorded u/s.132(4) has also offered total additional income of ₹ 2.98 crores on account of such amount received from Badgujar family from time to time out of which ₹ 19,00,000/- were received during the year under consideration. The AO accordingly made addition of ₹ 19 lakhs to the total income of the assessee. 6. Similar additions were made during A.Y. 2007-08 amounting to ₹ 2,02,00,000/- and A.Y. 2011-12 amounting to ₹ 67 lakhs. 7. Before CIT(A) it was argued that the amount of ₹ 2.98 crores was wrongly offered as additional income and accordingly an affidavit dated 12-11-2010 was immediately filed in the office of Dy. Director of Income Tax (Inv-I), Nashik on 15-11-2010. The copy of the said affidavit was filed before CIT(A). It was argued that the impugned amount is received against proposed sale of Shop Nos. L- 1 & L-2 of the building Suyojit Baug, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm is not in dispute. The appellant has also placed on record the copy of agreement dated 30/08/2006 entered into with Mr. Badgujar on behalf of the appellant. The said firm is also evidenced by the Partnership Deed dated 6th September, 2003 as well as revised Partnership Deed dated 20/07/2006 containing partners M/s. Suyojit Infrastructure Ltd. as well as Mr. Rajesh Balwant Lad. Moreover, the capital contribution in the said firm by M/s. Suyojit Infrastructure Ltd. is also appearing in the audited books of account of the said company. The reasons furnished by appellant for not filing of the return of income as well as not getting the firm registered under the Partnership Act are appeared to be bonafide. The fact that the impugned amount was received from Mr. Badgujar against the proposed sale of shop Nos. L-1 & L-2 in the building namely Suyojit Baug, the construction of which was not yet started during the year under appeal is not in dispute. In such circumstances, the amount received from Mr. Badgujar is liability in the books of account of M/s. Suyojit Baug and the same cannot be treated as income by any stretch of imagination because if the said receipt of money is treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion No.37, had accepted that the cash receipts had been issued and signed by him and further accepted the same as unaccounted business receipts. Assessee subsequently in reply to question No.6, voluntarily surrendered ₹ 2.98 Crores as additional income for the current year 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating the fact that the documents found during the search at the residential premises of the assessee, on the basis of which the alleged addition has been made were in no way connected with M/s. Suyojit Baug. The moreover the linking of the name of above firm and subsequent retraction of the admittance of additional income, after search is nothing but an "after thought" to evade tax. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) was not justified in overlooking the direct evidence found during the search which has been rightly correlated by the AO during the scrutiny with the assessee's business and the parties to the transaction, have confirmed the payment to the assessee. 6. On the facts and the in the circumstances of the case and in law, the Ld.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at 31-03-2008 at Page 28 of paper book No.2 wherein the name of Suyojit Baug is appearing under the head related parties/associate concerns. Referring to clause 10 of the notes forming part of the accounts at page 29 of paper book No.2 the Ld. Counsel for the assessee drew the attention of the Bench to the details of investments in partnership firm wherein the name of Suyojit Baug is appearing. Referring to the copy of the notice addressed by the AO to the Managing Director of M/s. Suyog Infrastructure Ltd. during the assessment proceedings u/s.153A a copy of which is placed at pages 31 to 37 of paper book No.2 the Ld. Counsel for the assessee drew the attention of the Bench to Query No.7 wherein the AO had asked regarding the MOU dated 09-07-2006. He submitted that the above documents and the questionnaire issued by the AO clearly establish the existence of the partnership firm. 13. Referring to the decision of the Ahmedabad Bench of the Tribunal in the case of DCIT Vs. M/s. Om Developers vide ITA No.314/Ahd/2012 and other connected appeals order dated 08-05- 2015 he submitted that the Tribunal in the said decision has held that the amount would be taxable in the year in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores. However, during recording of another statement of the assessee in reply to Question No.6 the assessee submitted that all the said cash receipts shown to have been received from Shri Badgujar family belongs to Suyojit group only and the assessee has offered ₹ 2.98 crores as an additional income. 3. The receipts are specific and speaking one in as much as they are reflecting complete transaction without interpretation. They are having evidentiary value and the same are not recorded in the regular books of account through the same relates to the assessee." 15. We find in appeal the Ld.CIT(A) deleted the addition on the ground that the amount received from Mr. Gulab Maharu Badgujar & Mrs. Badgujar are the liability of the firm and it is not the income of the assessee. According to the Ld.CIT(A) merely because the assessee has admitted in his statement recorded during the course of search u/s.132(4) there is no estoppel against the statute and what is otherwise not taxable cannot become taxable because of the admission of the assessee. We do not find any infirmity in the order of the Ld.CIT(A). From the copy of the audited accounts of Suyojit Infrastructure Ltd. which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9." 17. All the above things establish the existence of a partnership firm called M/s. Suyojit Baug. Therefore, merely because M/s.Suyojit Baug has not filed any return of income or has not been registered in our opinion cannot be a ground for treating the advance received by the said firm as income in the hands of the assessee. 18. We find the Ahmedabad Bench of the Tribunal in the case of M/s. Om Developers (Supra) following the decision of the Hon'ble Gujarat High Court in the case of CIT Vs. Motilal C.Patel Company reported in 173 ITR 666 has held that on-money can be subjected to tax when sale deed is actually executed. The amount would become income for the assessment year in which the sale transaction is completed. When the sale deeds were not executed during the year but were executed subsequent to the year in appeal the authorities below were not justified in taxing the amount received including the on-money during the year under appeal. 19. As regards the contention of the Ld. Departmental Representative that the assessee has admitted in his statement recorded u/s.132(4) during the course of search regarding the additional income we find the same is also without any ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded in the books of account of Suyojit Infrastructure Pvt. Ltd. were rejected by the AO on the ground that there was mismatch in the date of payment as per SMS and books of account of the said company. The AO accordingly made addition of ₹ 5,37,500/- to the total income of the assessee. 24. Before CIT(A) it was submitted that the payment to Shri Dilip Bhatt was made towards the refund of advance received from him which is supported by cancellation deed. Further, the amount paid to Dwarka Prasad Agarwal, i.e. staff member was for payment of departmental labour charges. It was argued that all the above transactions are recorded in the books of account of Suyojit Infrastructure Pvt. Ltd. 25. Based on the arguments advanced by the assessee the Ld.CIT(A) deleted the addition by observing as under : "6.2 I have carefully considered the facts of the case, the assessment order and the rival submissions. On the basis of SMS, the A.O. held that the payment of ₹ 2,00,000/- made by the appellant on 21/08/2010, whereas the Ld A.R. contended that the said SMS was in the form of confirmation of the fact and in the nature of report. The Ld. A.O. has made the impugned addition with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs or before the AO. The entire submission before the CIT(A) was an afterthought to evade tax. The documents found and seized were evidences and the AO after decoding the coded messages correlated the above transactions with business activity of the assessee. Therefore, the addition made by the AO being justified should be upheld and the order of the CIT(A) be reversed. 28. The Ld. Counsel for the assessee on the other hand reiterated the same arguments as made before the CIT(A). He submitted that the AO has not appreciated the fact that SMS was just for confirmation of fact and in the nature of reporting. He has erred in assuming that the date of SMS is the date of payment when no such assertion is made in the SMS that the payments as mentioned in both the SMS are made on 21-08-2010 i.e. on the date of SMS. The account extract of Mr. Dilip Bhatt S as appearing in the books of accounts of the company M/s. Suyojit Infrastructure Pvt. Ltd and cancellation agreement dated 29-11-2010 between M/s. Suyojit Infrastructure Pvt. Ltd and Mr. Dilip Bhatt was submitted to the AO. Likewise the account extract of departmental charges for the period 07-09-2010 to 31-12-2010 was submitted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
