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TMI Blog2011 (3) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... overed u/s 132 of the Act. 2.2 The Assessing Officer noted that the group is basically real estate brokers branched out into civil construction and their first residential building project in the name of Sudha in the Khar (W) was nearing completion when action u/s 132 was conducted. The project consists of 3 apartments and one unit was claimed to have been sold by taking advance at the time of action u/s 132. All the group members are assessed to Income Tax and have admitted real estate brokerage income in their respective regular returns and were assessed with CIT-19 Mumbai. 2.3 The Assessing Officer noted that during the course of search, the Batra brothers admitted ₹ 70 lacs as their undisclosed income in real estate brokerage and another ₹ 5 lacs towards the profit on the sale of one residential apartment in their building project Sudha . However, the undisclosed income was not reflected in any of the returns filed by Shri Chaturbhuj T Batra and Shri Premkumar T Batra. 2.4 On verification of some of the entries in the seized materials at page no.8 of Annexure A-1 and page 81 of Annexure A-3, the Assessing Officer noted that there is unaccounted cash comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise of the facts or content so stated would have to be proved by admissible evidence. Various other decisions were also brought to the notice of the Assessing Officer. 2.7 However, the Assessing Officer was not satisfied with the explanation given by the assessee. He noted that no return of income relating to Assessment Year 2002-03 has been filed. Therefore, he estimated the brokerage income at ₹ 1 lacs on reasonable basis. While doing so, he observed that the assessee is receiving 50% of the brokerage income in cash which is unaccounted in the books, which is clearly proved by the fact that in respect of the transactions in four of the Chinar properties with M/s Vinita Estate P Ltd, Shri C T Batra has received about 51% of the brokerage in cash. The entries relating to the above transactions are found in the seized paper page 4 in Annexure A seized from the residence of Shri C T Batra during the course of search. He referred to the assessment order of Shri C T Batra, in which the total commission payable to Shri C T Batra in respect of Chinar properties is ₹ 24,01,940/- and out of the above, an amount of ₹ 12,50,000/- is paid in C , which according t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry has been made with the purchaser or seller of the flats to find out if any cash component is involved in the transaction. No further action has been taken in the hands of buyer and seller. 11.2 With regard to the first flat at Ragiland , the appellant contends that this trade enquiry is related to the sale of the flat by Mrs Saeeda Memon and others in the accounting year relevant to Asst Year 2008-09 and the trade enquiry is recorded in the seized papers during the financial year 2006-07. In this regard the appellant has filed evidences. In the seized papers, in certain page date is mentioned i.e. on page no.6 of Annexure A1 is dated 27.6.206. In view of this the appellant contends that the entire made in page 8 should be also in that period and hence contends that the seized material is not at all connected with financial year 2004-05. Considering all these facts, submissions and evidences filed, it appears that the entry is a trade enquiry made in the FY 2006-07. It is suffice to say that there is no conclusive evidence to hold that this seized paper belongs to asst year 2005-06 and there is no conclusive evidence to prove that any cash component is involved in the sale. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year. Similarly, as regards the flat at Sommerset, the same has not been sold and there is no material found relating to the current year. Further, the assessee has not challenged the addition of ₹ 98,765/- confirmed by the CIT(A) on account of unexplained bank deposit. The only income of the assessee is from brokerage. Accordingly, it was submitted that there cannot be any estimated addition on account of brokerage. 5.1 The ld DR on the other hand relied on the orders of the Assessing Officer and the CIT(A). 6 I have considered the rival submissions made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the paper book filed on behalf of the assessee. I find, the Assessing Officer relied on the order in the case of Shri C B Batra and held that the assessee is receiving 50% of the brokerage in cash which is unaccounted in the books. I find, the Assessing Officer has taken this view on the basis of seized documents with regard to two properties namely Regiland Flat in 5th Floor and Flat at Sommerset Building. No independent enquiry from the purchasers has been made. I find, the CIT(A) had mentioned in para 11.1 of his order that at the out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to tax in the AY 2004-05. 8 Facts of the case, in brief, are that during the course of assessment proceedings, the Assessing Officer noted from page no.78 of the impounded material in the loose paper file containing pages 1 to 116 impounded from the premises of M/s sunrise Enterprises at No.321 Trilok, Khar West that the above page is a proforma bill dated 23.2.2003. The same is in the name of Shri Pritam Dayal chowduary, HUF for the services rendered for arranging a leave and licence arrangement in respect of the premises no.4B at Diamond House, CHS, Plot no.515, TPS-III, 35th Road, Bandra West Mumbai for an amount of Rs,23,140/- including service tax of ₹ 1,640/-. The Assessing Officer asked the assessee to explain the above proforma bill. It was submitted by the assessee that the amount of ₹ 23,140/- has been received by him by cheque dated 22.2.2003 and it has been accounted for. On verification of the assessee s bank account with M/s Saraswat Co-op Bank, Khar and IDBI Bank, Khar this amount of ₹ 23,140/- was not found to be credited in any of these bank accounts. The Assessing Officer, therefore, held that the assessee has received the amount in cash w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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