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TMI Blog2017 (5) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount. - Decided in favour of the assessee and against the department. - D.B. Income Tax Appeal No. 145/2012, D.B. Income Tax Appeal No. 146/2012, D.B. Income Tax Appeal No. 147/2012, D.B. Income Tax Appeal No. 148/2012 And D.B. Income Tax Appeal No. 149/2012 - - - Dated:- 30-5-2017 - Mr. K.S. Jhaveri And Dr. Virendra Kumar Mathur JJ. For the Appellant(s) : Mr. Anil Mehta For the Respondent(s) : Mr. Raj Kumar Yadav Judgment 30/05/2017 1. In all these appeals identical questions of law and facts are involved and as they relate to the same assessee, they are heard together and decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal after considering the additional evidence which was produced by the assessee under Rule 29 has allowed the appeal of the assessee and dismissed the appeal of the department. 3. This court while admitting the appeals on 3.12.2012 (145/2012, 146/2012, 147/2012, 148/2012 149/2012) framed following common substantial questions of law:- (i) Whether on the facts and circumstances of the case the tribunal was justified and right in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case also the initial burden to explain the nature and source of the investment in land not recorded in the books of assessee, lies on the assessee. But as explained above he has failed to discharge this initial burden and therefore the unexplained investment has been rightly added by the CIT(A) u/s 69. In his submissions, the assessee has also claimed that the advances received from prospective plot owners are reflected in the diaries seized during the search operations. It may be noted that during the assessment and first appeal proceedings the assessee made this general statement only but never explained which entries in the diaries were related to which payments for land. The assessee has furnished the copies of such diaries in the paper book at pg. 38 to 185. From these diaries, it can bee seen that many of the pages are blank. On some of the pages names of the persons and amounts are mentioned but no dates are given. The assessee has not linked the entires on these pages with the cash flow summary submitted by him to the AO and CIT(A) to explain the source of money invested in the land. In many cases the names appearing in the diary are different from the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramji is mentioned. However, when society issued pattas in respect of above plots, the names are different. The details of names of the person in whose name, the pattas were issued were given to the AO. The name of the society was given and if the AO wanted to make further enquiry then such details could have been collected. 3.2 The AO in his assessment order has estimated the profit in the project at ₹ 19,98,070/- and since such project yielded profit in three assessment years from 2003-04 to 2005-06 and accordingly profit to be taxed for the year under reference was taken at ₹ 6,66,023/- which represented 1/3rd of ₹ 19,98,070/-. The findings of the AO are as under:- The assessee is not maintaining regular books of account. The assessee has not produced any evidence for verification of profit as computed as above and has not declared in the return of income. Assessee has taken minimum development expenses ₹ 169 Sq. Yard and has given bifurcation is as under:- S.No. Particulars Rate per Sq. Yard 1. Roads-Internal 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that asset theory should have been applied. 6.6 We have heard both the parties. In respect of Govind Vatika Project , the assessee was able to explain the sources of investment. The assessee is doing the real estate business on the basis of the funds provided by bulk purchaser and retail purchaser. One will have to apply the theory of human probability. One is required to be taxed on the real income and best judgment assessment is to be made on the basis of overall circumstances of the case. Our attention was drawn towards the account prepared for Govind Vatika Project . The amounts were received from bulk purchasers before the amount was paid as per agreement. A sum of ₹ 21,000/- was paid on 9.2.2003 and ₹ 5,00,000/- was paid on 4.3.2003 and a sum of ₹ 5,11,000/- was mentioned in the agreement. In the case of Govind Vatika Project , a sum of ₹ 21,000/- was paid before the date of agreement and a sum of ₹ 10,00,000/- was paid on 15.10.2004. The assessee has also filed the cash flow statement also. Looking to the modus operandi of the business which is verifiable from the execution of the project of Govind Vatika Project , we hold that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant's claim about the amount being her winning from races is not genuine. It cannot be said that the explanation offered by the appellant in respect of the said amounts has been rejected unreasonably and that the finding that the said amounts are income of the appellant from other sources is not based on evidence. In the circumstances, no case is made out for interference with the order passed by the Settlement Commission. The appeals, therefore, fail and are accordingly dismissed with costs. (7.4) In Commissioner of Income Tax vs. Narendra Mohan Paliwal (2004) 271 ITR 347 wherein it has been held as under:- (i) that there was no material on record that the marble blocks, which were sold were of different quality, but the fact on record which had been found by the Assessing Officer was not in dispute that the weight which had been shown in the bills was not correct. The Tribunal had wrongly deleted the addition of ₹ 7,48,800/-. (ii) When the bills and vouchers for the expenses claimed are not produced, the only course left to the assessing officer is to estimate the disallowance. He has estimated the disallowance on 25 per cent of the total expen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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