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TMI Blog2017 (9) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... project for various years have to be taken into consideration before arriving at the final conclusion. The assessee had claimed that it had suffered a loss in the project. It is found that the AO has not offered any comment with regard to the claim of loss. Thus, there are many an aspects of the assessment that have not been dealt with or have not been adjudicated properly. Therefore, we are of the opinion that matter needs further investigation and verification. Before us, representatives of both the sides also agreed that matter could be sent back to the AO. So, we are remitting back the issue to the file of the AO for fresh adjudication. He is directed to consider the additional evidence filed before us before deciding the taxability of the assessee. He would afford a reasonable opportunity of hearing to the assessee Taxability of the amount arising out of the sale of TDR - year of assessment - Held that:- As stated earlier, the assessee had made the disclosure about future sale of TDR/FSI. The AO and the FAA has not given a clear cut finding about taxability of the amount arising out of the sale of TDR etc. It appears that the statements made during survey and the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non- payment of TDS, that tax was deducted and paid in AY.2009-10,that the assessee wants to submit ledger account of expenses and the challans evidencing payment of TDS,that the additional evidences were not produced before the AO during the assessment proceeding for the AY. 2009-10. He relied upon the case of Prabhavati S. Shah (231ITR1). The Departmental Representative(DR) opposed the additional ground as well as additional evidences. 2 . 1 . We have gone through the applications made by assessee for admitting additional evidence. We find evidences would help the Tribunal to adjudicate the issue. Though the details were made available to the AO in the earlier year, but were not produced for the year under appeal. Therefore, we are admitting the additional evidences as per the provision of Rule 29 of the ITAT Rules,1963. The additional grounds,raised by the assessee,are legal in nature and go to the root of the issue before us. Therefore, same are being admitted. ITA / 5220 / Mum / 2010 - AY . ,2006 - 07 : 3 . First Ground of appeal,raised by AO is about accepting the additional evidences in violation of Rule 46A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed u/s. 40(a)(ia),was offered as income to cover any omission/ error or any addition to be made during the assessment proceedings,that the amount had not been adjusted against the additions made in the assessment,that the assessee had suffered a loss of ₹ 16.12 lakhs in the project,that the AO had disallowed the entire outstanding expenses while at the same time had taxed the income receivable reflected in the balance sheet. After considering the assessment order and submission of the assessee,the FAA held that on the date of survey the assessee had already filed the return of income for AY.2006-07 in which expenses on the project (approx. ₹ 94 lakhs)had been included in the WIP, that the project was completed only in the AY.2008-09,when the entire income and the expenditure was booked. He further observed that the assessee had agreed with the view taken by the AO, that the project should be treated as completed in the AY.2006-07,that it gave a broad estimate of receipt/expenses,that disallowance was primarily of outstanding expenses,that during the assessment proceedings the assessee had filed a revised P L account in which certain figures under the head sales, balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t @650 per sq. ft., that the flats would be sold by the assessee,that the difference between the sale price and agreed price had to be the share of the assessee,that the amount of sale consideration was credited to P L A/c. of the assessee,that payment to assessee was debited in AY.2007-08,that in the earlier years same was shown as advance in the account of SC,that the account was squared off in AY.2007- 08. As per the FAA the assessee had submitted the statements of accounts and copies of returns of SC for AY.s 2004-05 and 2005-06 wherein his share in the flats sold was declared. It also furnished details of flats sold on behalf of SC, name of purchasers areas of flats and profit shares with SC. He found that ₹ 1.09 crores was the net amount that was paid to assessee. He further observed that entire sale proceeds were deposited in a bank account under the control of the assessee,that in the books of assessee (year ending on 31/3/06)profit from investment in the assessee s construction activity was shown as ₹ 72.59 lakhs(net profit),that in the return of income filed by assessee profit of ₹ 72,76,642/- was declared,that fact of obtaining finance from assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not given any clear finding that for what purposes the expenses were incurred,that he had not explained that as on 31/3/2006 which portion of the project was incomplete,that the assessee had made disclosure of ₹ 2 crores, that the FAA had admitted that additional evidence without affording an opportunity to the assessee to examine them. The Authorised Representative(AR) argued that the assessee had incurred the expenses in the subsequent years,that the FAA had given finding of facts that expenses were related with completion of the project, that he had not allowed the administrative expenses. He relied upon the case of Triveni Engineering Industries Ltd. (336ITR374), of the Hon'ble Delhi High Court. 6 . We have heard the rival submissions and perused the material before us. We find that an action u/s. 133A was carried out at the business premises of the assessee at Mumbai and Pune,that it had completed a residential project in Pune, that it had business transactions with SC,that it had entered into agreement with it for purchase of 63 flats,that during the appellate proceedings,the FAA had admitted certain documents which were not made available to AO during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the interest of justice,we are remitting back the issue to the file of the AO for fresh adjudication. He is directed to consider the additional evidence filed before us before deciding the taxability of the assessee. He would afford a reasonable opportunity of hearing to the assesse. Gr.s No.1,2 and 5 raised by the AO are decided in his favour,in part. Additional ground of appeal,filed by the assessee,also stands partly allowed. The AO,as directed earlier,would hear the matter afresh. ITA / 5309 / Mum / 2010 - AY . ,2006 - 07 : 7 . The effective Ground of appeal raised by the assessee for the year under appeal is about declaration of ₹ 2 crores as income. 8 . Before us,the AR argued that the FAA should not have taken the disclosure at ₹ 2 crores, that the disclosure was about sale of TDR, that same was to accrue in future. He referred to pg-9 11 of the PB. The DR supported the order of the FAA. 9 . We have heard the rival submissions and perused the material on record. As stated earlier, the assessee had made the disclosure about future sale of TDR/FSI. The AO and the FAA has not given a clear cut fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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