9911796707
TMI Blog2019 (2) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... he very basis adopted by Ld. A.O for making the addition for suppressed receipts is fatal, incorrect and has no justification because the document i.e. page-7 of LPS-25 relied on by the Ld. A.O for completing the suppressed receipts has not been examined properly and thus gravely erred in rejecting books of accounts by invoking provision of Section 145(3) of the Act. On our perusal and examination of this document we find that the figures mentioned in the seized document i.e. Page7 of LPS 25 were almost tallying to the figures mentioned in regular books of accounts with a minor difference of the gross receipts which itself cannot lead to be a basis for the additions on account of suppression of receipts @49%. We therefore set aside the findings of both the lower authorities and delete the addition Addition made on undue benefit to Directors - assessee company has constructed commercial complex at city centre and sold some shops to Directors of the company and their family members - assessee company has transferred the said properties at below collector rates prevailing in that area, in order to (a) Provide benefit to directors (b) Suppress the income of Assessee Company - no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the assessee. A.O has not granted the opportunity of cross examination to the assessee with the author of the alleged diary as well as concerned person of M/s. Fortune Group and thus the action of the Ld. A.O of not providing cross examination turns out to be a clear violation of principle of natural justice and therefore the additions made by the Ld. A.O for the unaccounted transactions with M/s. Fortune Group has no foundation to stand for and same needs to be deleted. Addition of unaccounted transactions - Held that:- addition of ₹ 46,86,348/- needs to be set aside to the file of Ld. A.O so as to verify the documents in the shape of confirmation filed by the assessee to his/her satisfaction and decide accordingly as to whether the amount appearing in the seized document are merely estimates or prospective amount to be received or “On-money”. In case Ld. A.O concludes that the alleged amount is “On-money” then the addition for the “net profit” element embedded therein should be added to the income of the assessee which is consistently declared. Needless to mention that proper opportunity is to be provided to the assessee For addition of ₹ 10,00,000/- is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Municipal Corporation, Bhopal. We therefore find no reason to interfere in the finding of Ld. CIT(A) allowing the deduction u/s 80IB(10) of the Act for Assessment Year 2009-10, 2010-11 and 2011-12 - ITA (SS)No 124 to 129/Ind/2017 & ITA(SS) No.317/Ind/2017, ITA (SS)No 141 to 146/Ind/2017 & ITA(SS) No.342/Ind/2017 - - - Dated:- 24-1-2019 - KUL BHARAT, JUDICIAL MEMBER AND MANISH BORAD, ACCOUNTANT MEMBER For the Appellant : Smt. Ashima Gupta, CIT For the Respondent : S/Shri Ashish Goyal N.D. Patwa, Advocates ORDER PER BENCH. The above captioned cross appeals filed at the instance of revenue and assessee pertaining to Assessment Year 2007-08 to 2013-14 are directed against the orders of Ld. Commissioner of Income Tax (Appeals)-3 (in short Ld.CIT(A) ], Bhopal dated 27.03.2017 which are arising out of the order u/s 153A r.w.s 143(3) dated 23.05.2015 framed by DCIT(Central)-II, Bhopal. 2. As the issues raised in these appeals are common these were heard together and therefore are being disposed off by this common order for sake of convenience and brevity. 3. Briefly stated facts as culled out from the records are that the assessee company is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Aggrieved by the order of Ld.CIT(A), now both the department and the assessee are in cross-appeals before the Tribunal. 4. The grounds raised by the assessee are as under; Assessment Year 2007-08 On the facts and in the circumstances of the case: _ I. The ld CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void-ab-initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled. 2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search. 3. That the ld CIT(A) erred in sustaining the addition of ₹ 23,59,830/- on account of alleged suppression of receipt. 4. That without prejudice, in any case, instead of making addition for gross profit , addition should have been mad e for net profit on alleged Suppress ion of receipts. 5. That the ld. CIT(A) erred in not directing the A.O. to consider provisions of section 234B(3) while levying interest u/s 234B. The appellant carves leave to add, amend or modify any of the grounds of appeal . Assessment Year 2008-09 On the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, liable to be annulled. 2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search. 3. That the ld CIT(A) erred in sustaining the addition of ₹ 1,52,00,871/- on account of alleged suppression of receipt. 4. That without prejudice, in any case, instead of making addition for gross profit , addition should have been mad e for net profit on alleged Suppress ion of receipts. 5. That the ld. CIT(A) erred in not directing the A.O. to consider provisions of section 234B(3) while levying interest u/s 234B. The appellant carves leave to add, amend or modify any of the grounds of appeal . Assessment Year 2011-12 On the facts and in the circumstances of the case: _ I. The ld CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void-ab-initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled. 2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search. 3. That the ld CIT(A) erred in sustaining the addition of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,63,49,000/- made on account of alleged suppressed receipt of the year and past years. 8. That the ld CIT(A) erred in sustaining the addition of ₹ 2,00,000 on account of alleged unaccounted payment to CRDAI. The appellant carves leave to add, amend or modify any of the grounds of appeal . Assessment Year 2013-14 On the facts and in the circumstances of the case: _ I. The ld CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void-ab-initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled. 2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search. 3. That the ld CIT(A) erred in sustaining the addition of ₹ 3,02,27,200/- on account of alleged suppression of receipt. 4. That without prejudice, in any case, instead of making addition for gross profit , addition should have been mad e for net profit on alleged Suppress ion of receipts. 5. That the ld CIT(A) erred in sustaining the addition for alleged undue benefits given to Directors of ₹ 2,13,600/-.. 6. That the ld CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,83,49,951/- on account of suppression of receipts and ₹ 26,86,091/- on account of bogus deduction u/s 80IB(10) of the Income Tax Act, 1961 without appreciating the facts and evidences brought into light by the A.O. during assessment proceedings. (2) On the facts and in the circumstances of the case the Ld. CIT(Appeals) erred in estimating Gross Profit @ 34.20% on suppressed receipts, in absence of any evidence of expenditure against the suppressed receipts. (3) The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date; the appeal is finally heard for disposal. Assessment Year 2010-11 (1) On the facts and in the circumstances of the case the Ld. CIT(Appeals) erred in deleting addition made by the A.O. of ₹ 2,92,46,119/- on account of suppression of receipts and ₹ 74,48,422/- on account of bogus deduction u/s 80IB(10) of the Income Tax Act, 1961 without appreciating the facts and evidences brought into light by the A.O. during assessment proceedings. (2) On the facts and in the circumstances of the case the Ld. CIT(Appeals) erred in estimating Gross Profit @ 34.20% on suppressed receipts, in absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date; the appeal is finally heard for disposal. 6. We will first take up assessee s appeal and if common issues are also raised in Revenue grounds, then the same would also be adjudicated along with the assessee s grounds of appeal. 7. As regards the common Ground No.1 raised by the assessee in all the 7 years the same are general in nature therefore needs no adjudication. 8. As regards common Ground No.2 raised by the assessee for Assessment Year 2007-08 to 2013-14 the grievance of the assessee is that the additions made in the impugned assessments are not based on any incriminating material found during the course of search. 9. Ld. Counsel for the assessee submitted that the search proceedings are special proceedings for assessing or reassessing the income which is unearthed during the course of search. Therefore, in respect of non-abated assessments, addition shall be made only in respect of incomes, which are relatable to any material found during the course of search. At the time of search on 29.11.2012, following were the years, where the assessments were either completed, or time limit for issuance of notice u/s 143(2) HAD EXPIRED. Thus, the cases would fall i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns mentioned therein, LPS 25 Page-7 showing various hand written amounts. Thus it is crystal clear that various incriminating material were found during the course of search which related to all the seven assessment years from 2007-08 to 2013-14. We therefore in the facts and circumstances of the case found no merit in common Ground No.2 raised by the assessee and the same deserves to be dismissed as there were incriminating material found during the course of search for all the seven assessment years and therefore this common Ground No.2 deserves to be dismissed. 14. Now we take up the common issue relating to suppression of gross receipts for which assessee has raised Ground No. 3 4 and the revenue has raised in Ground No. 1 2 for all the seven assessment years. The assessee has challenged the addition of ₹ 23,59,830/-, ₹ 76,87,966/-, ₹ 95,37,512/-, ₹ 1,52,00,871/-, ₹ 2,75,25,427/-, ₹ 2,79,63,903/- and ₹ 3,02,27,200/- confirmed by the Ld.CIT(A) and the revenue has challenged the finding of Ld.CIT(A) deleting addition of ₹ 45,40,259/-, ₹ 1,47,85,466/-, ₹ 1,83,49,951/-, ₹ 2,92,46,199/-, ₹ 5,29,58,277/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45,40,259 2 2008-09 4,58,76,392 2,24,79,432 76,87,966 1,47,91,466 3 2009-10 5,69,13,191 2,78,87,463 95,37,512 1,83,49,951 4 201011 9,07,08,144 4,44,46,990 1,52,00,871 2,92,46,119 5 2011-12 16,42,52,458 8,04,83,704 2,75,25,427 5,29,58,277 6 2012-13 16,68,68,975 8,17,65,797 2,79,63,903 5,38,01,894 7 2013-14 18,03,74,750 8,83,83,627 3,02,27,200 5,81,56,427 TOTAL 71,90,75,726 35,23,47,106 12,05,02,709 23,18,44,397 16. Now both the assessee and revenue are in appeal before the Tribunal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... east, was wrong as per the Id AO himself, who later on corrected it to 10.35%. He assumed the sales to be unaccounted for all years on this ratio. There was no basis for such presumption and extrapolation, moreover in search cases, where the addition has to be based on evidence found during the course of search. And this entirely hypothetical, erroneous approach lead to a whooping addition of ₹ 35 crores in the hands of the appellant. Ld CIT(A) in fact did not consider any of the submissions and merely stated that the profit on same shall be estimated. It is therefore submitted that on the very manner in which addition has been made, the addition deserves to be deleted, which is totally based on conjunctives and surmises, presumptions and suppositions and estimation, of estimation, which itself is based on erroneous figures. II . How the entire Sales of the assessee are accounted a. The receipts as per LPS 25 pg. 7 are as under: - Total Receipts as per LPS (PB 363) Total Receipts as per books (Credits in debtors account) PB 364 Net excess recorded in books July 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 4,06,95,248 The closing balance is ₹ 10,54,79,568, which is as under: Advances from customers (PB 378) ₹ 14,37,91,113 Less: Receivable from customers (PB 377) ₹ 3,83,11,545) Rs.10,54,79,568 The entire amount was duly recorded in the books and tallies with the books. There were no unrecorded sales. d. List of party-wise/ flat-wise working of opening amount receivable; sales recorded during the year; refunded/ adjusted; amount received during the year; and closing balance is given. PB 365-375. The figures are same as in the audited accounts. Like Total of sales for the year (PB 375) ₹ 16,40,82,458 tallies with audited accounts PB 195. Total of Closing balance ₹ 10,54,79,568 (PB 375) tallies with net of advances, as above. Total of opening balance ₹ 4,06,96,248 (PB 375) tallies with net of advances, as above. e. In LPS pg. 25 page 7, the taxable receipts are mentioned. The same figure is shown as taxable in LPS 25 page 5. Service-tax paid on the taxable receipts is noted. This figure ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om FS-4, is total receipt for A.Y. 2011-12. Out of which taxable receipts are mentioned in column no.6 and non taxable receipts are mentioned in column no.7 of this page. It means total receipts from July 2010 to March 2011, is ₹ 20,40,72,0191- out of which ₹ 13,12,52,2601- is taxable receipt and ₹ 7,28,19,759/- is non taxable receipt. It is to be noted that the assessee himself has accepted this fact. c. Further the assessee has claimed that all these receipts have been duly reflected in the books of account and there is no receipt which has been received out of books. To verify this, total receipts as per books are to be seen which are as under A.Y. Sales Advance received from customers Advance received from customers in the current year 2010-11 9,07,08,144/- 2,07,81,573/- --- 2011-12 16,42,52,458/- 3,83,11,545/- 1,75,29,972/- d. On perusal of the above table, it is clear that the assessee company has not declared total receipts in it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recalculated the gross receipts of the assessee and made calculation for respective assessment years calculating @49% of the turnover, which was thereafter scaled down by Ld.CIT(A) to gross profit @34.20% of turnover observing as follows; The assessing officer has specifically mentioned in para 2 of the assessment order that various books of accounts, documents were seized. Regular books were produced and checked with the seized documents. Seized documents with special reference to page numbers 5 of LPS-25 and page numbers 7of LPS-25 clearly shows that the details of total receipts are not properly reflected in the books of accounts and do not match. The seized documents and papers are the incriminating material on the basis of which the additions have been made. The AO is not bound by the declared profits - the ITO, even when he accepts assessee's the method of accounting is not bound by the figure of profits shown in the accounts' CIT vs Mcmillan Co. (1958) 33 ITR 182 (SC). In Shyam Bidi Works vs Commissioner of income tax (2014) 89 CCH 179 AIlHC A.O rejected assessee s books of account u/s 152(2) and noticed that gross profit rate shown for the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011-12 164252458 28400613.58 17.30% 2012-13 166868975 52266663.97 31.32% 2013-14 180374750 61673634.49 34.19% 5.4 The Gross profit of 34.20% is considered reasonable keeping in view the gross profit declared by the appellant assessee in the past years. In view of the above, the addition on account of suppressed receipts is worked as under applying a gross profit rate of 34.20% on the enhanced turnover on account of suppressed receipts which is 49% of the total turnover as declared by the appellant assessee in AYs 2007-08 to 2013- 14. Assessment Year Suppression of receipts added by the A.O @ 49% of the turnover. Gross profit @ 34.20% of enhanced turnover 2007-08 Rs.69,00,089/- Rs.23,59,803/- 2008-09 Rs.2,24,79,432/- Rs.76,87,966/- 2009-10 Rs.2,78,87,463/- Rs.95,37,512 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - and the taxable receipt of ₹ 1,22,42,253/-. 22. We also find that the service tax paid figure of ₹ 3,39,341/- is reflected in the tally accounts. The service tax is received from the customers on the taxable amount and non taxable sums appearing at page-7 of LPS-25 refers to the receipts from the customers which is not taxable under service tax as it relates to building material. Copies of the relevant extract of books of accounts were also placed before us wherein from July, 2010 to March, 2011, the total receipt from customers are shown at ₹ 206329022/- which almost tallies to the total receipt of ₹ 20,40,72,019/- shown in page-7 of LPS-25. 23. It is also interesting to note that the regular books of accounts were produced and checked by the Ld.A.O with the seized documents and the Ld.A.O has not given any finding about any defect in the audited books of accounts. One more fact which supports the contention of the assessee is that the assessee who is engaged in the business as a developer of affordable and low housing projects. Complete details of various construction projects undertaken in last seven years were filed. The percentage of receipt fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, presumptions and suppositions and estimation of estimation which itself based on erroneous figures. 26. It is an undoubted fact that the total addition for suppression of receipts has been made by the Ld. A.O only on the basis of page 5 7 of LPS-25 seized during the course of search. In this piece of document the information relating to receipts for the period July 2010 to March 2011 received from various projects run by the assessee were mentioned. Details are also mentioned about the bifurcation of receipts into two categories i.e. taxable and non taxable. As regards total taxable receipts is concerned which amounted to ₹ 13,12,52,260/- Ld. A.O was satisfied that the same is corroborated by the calculation of service tax on month sum @2.57% and he has also observed that the service tax paid figure of ₹ 3,33,39,341/- for October, 2010isduly reflected in the books of accounts maintained in tally software and he also confirmed that all the entries in page 5 7 relating to taxable amount and service tax paid thereon are duly collaborated with the service tax return. As regards the addition of non taxable amount which basically was meant for the service tax calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - as a part of receipts not offered to tax but the fact is this particular amount was never liable for service tax though it was part of gross receipts. Even Ld.CIT(A) was not able to point out in his findings that the basis taken by Ld.A.O for extrapolating of difference was not correct. 28. We find that even when the total receipts shown as per LPS-25, page-7 placed on paper book at page-363 are compared with the total receipts as per books which were credited in the sundry debtors account, we find that the difference is only of ₹ 25,07,052/- which is arrived in the following manner; Total Receipts as per LPS (PB 363) Total Receipts as per books (Credits in debtors account) PB 364 Net excess recorded in books July 2010 2,25,71,265 2,29,72,278 4,01,013 August 2010 1,58,44,947 1,62,44,947 4,00,000 Sept 2010 1,57,74,545 1,64,74,545 7,00,000 Oct. 2010 2,08,35,764 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the books of accounts. We also find that the working of net unaccounted receipts by the Ld. A.O was based on wrong assumptions, incorrect figure, without understanding the laws of service tax about taxable and non taxable services and most importantly no incriminating material for any of the other assessment years except for Assessment Year 2011-12 was found. 30. It is also pertinent to note that the Ld. A.O in para-4, sub-point 2 of the assessment order have accepted that the figures taken by him are not correct and the same can be inferred from the following finding; 4.2 while working of this total receipt for Assessment Year 2011-12 as per return of income, the advances received from customers for Assessment Year 2011-12 were considered wrongly at ₹ 3,83,11,545/- as against the correct figure of ₹ 14,37,91,113/- and the advances received from customers for Assessment Year 2010-11 were considered wrongly at ₹ 2,07,81,573/- as against the correct figure of ₹ 6,14,76,821/-. It is seen that the figures wrongly considered as advances received from customers for Assessment Year 2010-11 and 2011-12 are actually advances received from customers reflec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on by the Ld. A.O for completing the suppressed receipts has not been examined properly and thus gravely erred in rejecting books of accounts by invoking provision of Section 145(3) of the Act. On our perusal and examination of this document we find that the figures mentioned in the seized document i.e. Page7 of LPS 25 were almost tallying to the figures mentioned in regular books of accounts with a minor difference of the gross receipts which itself cannot lead to be a basis for the additions on account of suppression of receipts @49%. We therefore set aside the findings of both the lower authorities and delete the addition of ₹ 69,00,089/-, ₹ 2,24,79,432/-, 12,78,87,463/-, ₹ 4,44,46,990/-, ₹ 8,04,83,704/- ,Rs.8,17,65,797/- ₹ 8,83,83,627/-. 33. We accordingly allow the relevant ground No.3 in all the seven appeals raised by the assessee relating to addition for suppressed receipts and dismiss relevant ground raised by revenue on the issue of suppression of receipts for Assessment Years 2007-08 to 2013-14. Common Ground No.4 raised by the assessee becomes infructuous as we have already allowed Ground No.3 for Assessment Year 2007- 08 to Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82,900/- 5 25.10.2011 Plot No.51, Soumya Estate, Khajuri Kalan, Bhopal Smt. Anjana Sinha 18,50,000/- 19,55,100/- 1,05,000/- 6 14.05.2008 LG-18 19, City Centre, Press Complex, M.P.Nagar, Bhopal Smt. Manju Sharma 26,25,500/- 36,72,200/- 10,46,700/- 7 29.03.2012 Plot No.111, Soumya Estate, Khajuri Kalan, Bhopal Smt. Manju Sharma 26,11,000/- 28,24,600/- 2,13,600/- 36. It was submitted before Ld. CIT(A) that nothing incriminating was found in search to that any unreasonable benefit was given to Directors. The provisions of Sec 43CA, which empower the addition of difference in stamp duty rate and registered sale valuation was applicable from A.Y. 2014-15, thus no addition can be made for A.Y. 2008-09 to A.Y. 2013-14. Collector rate or the stamp duty rate is not best tool to measure fair market value of any immovable property. Further, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non abated assessment as the assessment for AY. 2008-09 was already completed prior to the date of search. ClT vs Continental Warehousing Corporation58 taxmann.com 78 (Bom.) Om Shakthy Agencies (Madras) P Ltd. 1571TD 1062 (Trib. Chennai) Parag M. Sanghvi 63 taxmann.com 118 (Trib. Mumbai) ClT vs Kabul Chawla 380 ITR 573 (Del.) ClT vs Lata Jain (Del HC). (b) Comparable Sales: The Summary of the similar properties sold to persons other then Directors, with their per sqft rate is at PS 426. This when compared to the per sq ft rate of the properties sold to Directors clearly shows that the rate at which the city centre shops are sold to Directors are at or above the price at which the properties were sold to others. (PS 427). The sale price in their cases have been accepted. The registries of City centre office property sold to other then directors are at PS 428- 474. (c) Stamp value not best estimate. Hindustan Motors Ltd Vs Members, appropriate authority (2001) 249 ITR 424 (Mad.). Guideline valued for collection of stamp duty, no application of determining market value. (d) Section 50C/43CA not applicable: The assets under consideration are the commercial shops in City Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us. The addition made by the Ld. A.O relates to difference between the sale consideration shown in the sale deed as against stamp duty valuation adopted by the stamp authority for calculating stamp duty. Though the Ld. A.O has not mentioned section 50C of the Act for making the impugned addition but the basis of making the addition has been adopted from Section 50C of the Income Tax Act. The undisputed facts emerging out of the record are that the alleged transactions were duly recorded in the books. There was no iota of evidence in the form of incriminating documents to show that any on money or underhand dealing took place in the case of the impugned transactions. The properties sold in question were commercial properties which apart from the Directors were also sold to the other unrelated parties. There is no observation of both the lower authorities which could show that the assessee had a different set of rule for the unrelated parties and another for the related parties which means that properties sold to the Directors/relatives/family members were at the fair market price. 43. Now the issue remains whether the provisions of Section 50C of the Act are applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee). Out of the various loose papers and documents impounded, one diary named BS-1, allegedly contained transactions between assessee company and Fortune Group. (Refer CIT{A) order pg. No 63 Para 7.1). It is pertinent to note that this diary was not found during search proceedings carried out at Assessee Company but was recovered during survey operations at M/s Fortune Builders. (as provided in Show cause notice at PB page 491- 492). This diary is not written in the handwriting of any of the employees of assessee. The assessee denied the contents of the diary. Relevant page 113-116 which allegedly relates to assessee, contains date; and amount paid/ received. This relates to period Sept. 2010 to July 2012. The Ld. AO during assessment proceedings issued a show cause notice, dated 12.02.2015, enquiring about the transactions and also whether they were duly recorded in 'books of accounts. In its reply, the assessee company denied to have entered into any such transactions with M/s. Fortune Builders. (PB page 493-494). The Submissions of the assessee company were not found acceptable as the Ld. AO alleged that the diary contains details of Land purchase. Ld. AO related some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000000 113 19.10.2011 900000 113 16.11.2011 600000 113 18.11.2011 2500000 113 21.11.2011 600000 113 23.11.2011 1000000 113 26.12.2011 Read 2200000 114 04.07.2011 Read 500000 114 25.7.2011 Read 1250000 114 05.08.2011 Read 1600000 114 25.08.2011 Read 1750000 114 29.08.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opal. It has been alleged that the said diary at Page 113, 114 and 116 records certain transactions in the name of our Company. It has been further stated in the show cause notice that the genuineness of the transactions mentioned in the diary has been established. 1n this connection we have to state as under:- 1. The categorically deny that our company has entered into any such transaction with M/s. Fortune Builders, Bhopal and the entries mentioned in your show cause notice are hereby categorically denied by us. 2. No reasons have been provided in the show cause notice as to how the genuineness of the diary itself and the transactions mentioned in the diary has been established. Mere statement to this effect is not sufficient. 3. From the sequence of the entries in the diary, as mentioned in the show cause notice, it is clearly established that the entries in the alleged diary have not been recorded in day to day course of business. The diary cannot be treated as a books of accounts . Any liability cannot be fastened on any person merely on the basis of entries in such diary. 4. There is no mentioned in the show cause notice whether M/s. Fortune Builders, Bhopal hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 400000 10 08.05.20l0 400000 Page no. 1 of this diary contains the details of land purchase' Landmark'. This land was purchased from some Patidar family. Bank accounts of this family were perused and it was noticed that the payments as mentioned in the diary are duly reflected in the bank accounts of Patidar Family. The details are as under: S.No. Particulars as mentioned in the impound diary Transactions corroborated by corresponding entries in the bank accounts of Patidar family 1 Payment of ₹ 18,00,000/- on 11.6.2009 Cash deposit of ₹ 18,00,000/- in A/c No.903410110000409, BOI, Misrod in the name of Ravikant Patidar on 11.6.2009. 2 Payment of ₹ 1,30,00,000/- on 29.9.2009 1. Cash deposit of ₹ 28,00,000/- in A/c No.903410110000410, BOI, Misrod in the name of Ravikant Patidar on 01.10.2009. 2. Cash deposit of ₹ 28,00,000/- in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er reference is matching to the credit entries in the bank accounts of Patidar Family. (b) Page no. 1 to 105 of LPS-6 seized from FS-3 in the case of M/s Fortune Builders, contains following details- Copy of Sale deed of agriculture land Khasra No. 390, Rakba 2.54 Hect. Khasra no. 398, Rakba 1.13 Hect. total rakba- 7.68 Hect. situated at Vill. Bharoupur, PHN- 42, Tehsil- Huzur, Distt.- Bhopal total consideration ₹ 523296001- dated 10.07.2007 between (Seller) 1) Smt. Shanti Devi Daga W/o Shri Brijratan daga, Rio 5, yadulal Malik Road Kolkata, 2) Shri Shivkishan Daga S/o Late Shri Gaurishankar Daga, Rio 150/1, Cotton Street, Kolkata (ADIPD4147J) (Purchaser) 1) Shri Ashok Palod S/o Shri Radheshyamji Palod, Rio 151, Zone-I, MP Nagar, Bhopal (ABEPP9496M) 2) Smt. Neeta Mohgaonkar Wlo Shri Ajay Mohgaonkar, Rio E-7/841 Arera Colony Bhopal 3) Smt. Ritu Gupta W /0 Shri Sameer Gupta Rio A-31, Koh-e-Fiza, Bhopal. The property was jointly purchased by Fortune Group alongwith Shri Ashok Palod S/o Shri Radheshyam ji Palod, Rio 151, Zone-I, MP Nagar, Bhopal (ABEPP9496M). Further Page No 26, of LPS-13, Seized from FS-3 contains that an amount of ₹ 20,00,000/-- was paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of a search, it may be presumed that such books of account, other documents, money, bullion, jewellery, or other valuable article or thing belong or belongs to such person, that the content of such books of account and other document are true '. If the assessee disputes the liability for tax, it is the law. In the absence of any proof the A.0 is justified to charge it as taxable income. 8.3 In view of the above discussion, the transaction entries in the above mentioned has business dealing/transactions with the appellant assessee like fourtune soumya homes, clearly shows there were business transactions and dealings between the appellant company and M/s Fortune Builders and the details of transaction as mentioned in the diary BS-l are not recorded in the regular books of account of the appellant company. Thus, the additions as mentioned below made by the AO on this account are confirmed. A.Y Unrecorded transaction with Fortune Builders 2011-12 5,00,000 2012-13 7,63,49,000 2013-14 9,00,000 The grounds of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of employee of assessee. In our knowledge, no statement of that employee was recorded, asking for details in the diary. He was never confronted about the diary. There is no corroborate evidence to prove. In any case, statement, if any, was not confronted to assessee for cross examination. No such statement was referred in the orders. The document which was the basis of addition was not found in Possession of assessee, nor in handwriting of assessee. The person in whose handwriting it was recorded was never confronted. It was only on conjunctures that it was held that these reflect unaccounted payments. It is a trite law, that statement of third parties, entries in books of third parties, do not bind the assessee. They may bind third parties in their own cases, and not the assessee. The latest judgment in the sequence is the case of Common Cause (SC), which follows the locus classics of V.C. Shukla 1998 SCC 410. It is well settled in law that the loose papers and documents cannot possibly be construed as books of account regularly kept in the course of business. Such evidence would, therefore, be outside the purview of Section 34 of the Evidence Act, 1972. Therefore, the revenue wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be used as an evidence against the assessee. No addition for those entries have been made. Statement of Patidar was not recorded to the best of knowledge of assessee. His statement was never brought on record, if any. The source of deposit by Patidar can be explained only by Patidar. Ld. AO choose not to enquire the facts from any of the sellers. The Ld. AO added both debit and credit. Addition for both, in any case, was totally wrong and uncalled for, in any case. Thus, on such loose jottings by third person, which were not found from assessee's premises, cannot be used against the assessee. 53. In light of the various judgments referred above and examining the facts, we find that the alleged diary was not found during the course of search at the assessee s premises and the alleged document i.e. diary BS-1 undoubtedly relates to a third party i.e. Fortune Group in which certain transactions are mentioned which are not owned by the assessee. It is also not disputed that the alleged diary BS-1 was found at the premises of employee of Fortune Group and is prepared by employee of Fortune Group and is having no connection with the assessee company. Ld. A.O has tried to prove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e surveyed person and others connected witness to unearth the truth. 54. Going through the above facts, one glaring fact is that the assessee was not provided any opportunity of cross examining the persons who possessed the alleged diary wherein certain transactions were mentioned under the heading of assessee s name. It is purely violation of principle of natural justice as the Ld. A.O has not granted the opportunity for examination to the assessee even after the request of the assessee and in such circumstances, we are inclined to refer to the judgment of Hon ble Apex Court in the case of CIT V/s Sunita Dhadhha SLP(Civil) No.94392/2018 dated 20.03.2018 wherein the Hon ble Apex Court dismissed the SLP filed by the revenue holding that no interference is called for in the order of Hon ble High Court of Rajasthan in ITA No.197/2012 and others dated 31.07.2017 wherein Hon ble High Court confirmed the finding of the Co-ordinate Bench, Jaipur vide ITA No. 852/JP/2011 order dated 30.12.2011 which held that if the Ld. AO wants to rely upon the documents found with third parties the presumption u/s 292C of the Act against the assessee is not avalable. As per the principle of natural ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 79 of the paper book. This reply was filed after getting copy of letter dated 3-12-2010 alongwith Annexures. Vide this letter, AO was informed about the copies of the sale deed of lands situated in village Mahapura which showed that the land was not being sold aboutRs. 1.00 crore per hectare. Vide this letter, it was stated that Shri Ravinder Singh Thakkar has made a huge windfall in getting the land without investing his share in M/s. Milestone Dwellers Pvt. Ltd . He fabricated the document to show that he has put the cash from his side towards land purchase and towards liaison with the Govt. officials for giving land conversion and permission. The assessee required the AO to ascertain from the officials M/s. Milestone Dwellers Pvt. Ltd. as to whether any cash was paid. Vide this letter, the assessee made request that the copy of the entire statements should be given and an opportunity of cross examination of Shri Ravinder Singh Thakkar be given. M/s. Milestone Dwellers Pvt. Ltd. is a joint venture of Milestone Real Estate Fund and M/s. Unique Dream Builders Contribution in M/s. Milestone Real Estate Fund has been contributed by promimant people of India/ Mumbai for real estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. We had considered the similar issues in the case of Smt. Vijay Laxmi Dhadda, In that case also, the principle of natural justice was violated and the reliance was placed on documents found at the search of third party. It will be useful to reproduce the following paras from that order. 2.17 The revenue authorities recorded the statement of Shri Ravinder Singh Thakkar, a person belonging to M/s. Unique Group on different dates from 28-01-2009. The revenue authorities provided only page 4 of his statement recorded on 28-01-2009. The relevant portion of statement of Shri Ravinder Singh Thakkar is available at pages 40 to 42 0 the paper book. In respect of the document found -in the locker, Shri Ravinder Singh Thakkar explained the transactions with the assessee and her husband. Shri Ravinder Singh Thakkar has clearly mentioned that he negotiated the deal with the assessee and her husband but the deal could not mature and therefore, he received back the cheques which were issued. Thus Shri Ravinder Singh Thakkar has not adinitted of making the payment in cash. The contention of the revenue that Shri Ajit Singh Thakkar has admitted these unaccounted payments and included in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been completed vide order dated 29-12- 2010. Hence all the proceedings have been concluded within a fortnight of issuance of show cause notice. The search was conducted in Jan. 2009 and the statement 'of the assessee was recorded in March 2009. After receipt of the show cause notice, the assessee required the AO to provide him statement of computation of income filed by Shri Ajit Singh Thakkar. After getting the copies, the assessee should have asked for cross examination of Shri Ajit Singh Thakkar . The Hon'ble Gujarat High Court in the case of Heirs and Legal Representatives of Late Laxrnanbhai S. Patel vs. CIT, 327 ITR 290 had occasion to consider the addition in the hands of a person who has signed the promissory note which was found during the course of search at the prermses of the firm in which third party was partner and the firm disclosed such unaccounted income. The Hon'ble High Court held that the amount covered of promissory note could not be assessed as income of the assessee from undisclosed sources as the assessee was not given an Opportunity of cross examination the third party in whose search , promissory note was found. It will be useful to repro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reiterated by the Hon'ble Apex Court in the case of Godhra Electricity Co. Ltd. Vs. CIT, 225 ITR 746. The Hon'ble Apex Court in the case of CIT Vs. Daulatram Rawatmull , 87 ITR 349 observed that there should be necessity of nexus between the conclusion and primary facts. The assessee has not been able to show that he received cheques and the same were returned because the deal could not materialize. The revenue is relying on the disclosure of income by Shri Ajit Singh Thakkar father of Shri Ravinder Singh Thakkar. Thus the primary facts are not confronted to hold that the assessee can be charged with undisclosed income. The Hon'ble Apex Court in the case of Parimisetti Seetharamarnma Vs. CIT 57 ITR 532 held that the case in which the receipt is sought to be taxed as income then burden is upon the Department to prove that it is within the taxing provisions. The AO in his order has not mentioned any section under which he has taxed the receipt. The Hon'ble Jurisdictional High Court in the case of CIT Vs. S.C. Sethi, 295 ITR 351 had an occasion to consider the case in which the addition was made on the basis of entries of. loose papers found during the course of searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other part of such books of, account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.] 2.8 Section uses the word 'may'. The word 'may' leave it to the Court to make or not to make presumption according to the circumstances of the case. Such presumption is optional and the Court is not bound to make it. Section has not contained the word 'shall presume'. Similar wording of 'may presume' is contained in Section 132(4A) of the Act. The Jurisdictional High Court in the case of CIT Vs. SMS Investment Corporation (P) Ltd, 207 ITR 364 has held that presumption is rebuttable. In that case, seized paper showed the calculation of compounding interest while agreement was in respect of receiving the simple interest. The Hon'ble High Court held that presumption in Section 132(4A) is rebuttab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been a gross violation of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross examination is an integral part and parcel of the principles of natural justice. 56. Respectfully following the above judgments of Hon ble Apex Court, High Court of Rajasthan and Co-ordinate Bench and various decisions referred and examining the facts in the instant appeal, we find that the additions made for unaccounted transactions with M/s. Fortune Group are uncalled for as they are merely based on diary BS-1 prepared by a third person who was working with M/s. Fortune Group and the alleged diary was also found during the course of survey at the premises of employee of Fortune Group. The transactions mentioned in one of the page of the diary shows the name of the assessee but those transactions have been denied by the assessee to have taken place with M/s. Fortune Group. Further the other transactions of cash/cheque with Patidar family and other documents for purchase of land have no bearing with the assessee as the name of the assessee is not mentioned therein. No incriminating material relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as under: Name Flat No. Amount as per paper (in Rs.) Whether this amount mentioned the ledger or not Total accounted amount ledger (in Rs.) Shri Rajveer Singh 02201 1,07,500/- No 8,54,711/- Shri Sanjay Singh 02104 1,07,239/- No 9,71,656/- Shri Roshan Singh Negi C4104 92,200/- No 7,84,400/- Shri Manojit Shah 02403 1,38,274/- No 13,67,050/- Shri K.K. Sharma 02304 86,832/- No 8,99,000/- Shri Kulbhushan Deval 04602 98,500/- No 7,90,965/- Shri Ajay Kashyap 04302 5,30,000/- No 9,58,000/- Shri Shashika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 the assessee company was asked to explain this paper and at the same time the assessee company was show cause as why the same should no be added to its income. 9.3.3 Vide reply dated 05.03.2015, the assessee company submitted as under: This paper is derived from pocket diary of employee and records are memorandum of certain payments made during F.Y 2010-11. The entry of ₹ 10,00,000/- refers to payment made for purchase of land. 9.3.5 The claim of the asessee has been considered but the same is not acceptable. In fact all the amount except ₹ 10,00.000/- are reflected in the books of the assessee company. 9.3.6 Likewise amount written as ₹ 23 lakhs against the income tax appeared in the schedule of advance tax payment in the books of the assessee company (FY 2010-11). 9.3.7 The amount of ₹ 91 lacs shown against Atique Ahmed is reflected in the payment schedule. 9.3.8 But the payment shown against the anonymous of ₹ 10 lacs is not a part of books of account. Hence the total amount of ₹ 10 lacs remains unexplained and the same is hereby added in the hands of the assessee company for A.Y. 2011-12. Penalty proceedings u/s 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut failed to succeed as all the three additions of ₹ 46,86,386/-, ₹ 10,00,000/- ₹ 2,60,000/- were confirmed by Ld. CIT(A) observing as follows; 9.2 Page 39 of LPS-28 was seized during the search which contains details of receipt appellant of the persons mentioned on the page 39 of LPS-28. All the persons mentioned on page 39 of LPS-28 are customer of the appellant's company and none of the entries were reconciled with the ledger account of these persons maintained by the appellant assessee Which clearly shows that these receipts are unaccounted or the appellant has received on money which is not reflected in the regular books of account of the appellant assessee. Thus, the-addition of ₹ 46,86,348/- made on this account is confirmed. 9.3 Regarding, page 3 of LPS-4/30 the plea taken by the appellant that the entries derived from pocket diary of employee are certain payments made during F Y 2010-11 and the entry of ₹ 10,00,000/- refers to payment for purchase of land is devoid of any entries mentioned on page 3 of LPS-4/30 are reflected in the books of account of appellant except ₹ 10,00,000/-. The A.O vide questionnaire dated 30.06.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PS 534 4. Shri Kishore Mahajan PS 524 The employee who wrote the entries was not confronted by the Ld AO to ascertain the correct facts. The customers were not confronted. Merely on presumptions, Id lower authorities made the addition. Department, for the reasons best known to them, choose not to enquire from the employee or customers. The payment relates to purchase of land, the ledger account reflecting the same payment is at PB 567. Thus, the same was entered in books of accounts and cannot be treated as unaccounted. The payment is made to Shri Hira Choudhary- for Soumya Ever Green -Kolar Road Project dated 28.03.2011 (by cheque no. 153061 from Axis Bank). The registered purchase deed is on record which contains the details of payment made to seller (Hira Choudhary)(PB 568-573).The basis of addition is a dumb sheet, which is a working sheet of marketing executive. This is a estimate only. Reliance is placed on following decisions; CIT vs Girish Choudhary 163 Taxman 608 (Del.) Bansal Strips 991TD 177 {Del. Trib.) Further the confirmation from Smt Pratibha Mishra is filed now, who had confirmed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year 2011- 12 for statistical purposes. 66. As regards Ground No.7 for addition of ₹ 10,00,000/- is concerned which is based on seized document page-3 of LPS-4/30, we find that similar head having four amounts was found in which one of the amount was ₹ 10,00,000/- and there was no particulars along with this amount. There is no date on this face of document. This amount was not explained by the assessee before Ld. A.O which was therefore confirmed by Ld. CIT(A). However perusal of the document shows this amount of ₹ 10,00,000/- relates to one Shri Hira Choudhary who have been paid by cheque No.153061 of ₹ 10,00,000/- dated 28.03.2011 in connection to purchase of agriculture land at Kolar Road Project. The copy of ledger account and purchase deed are available at paper book at page 567 to 573. Revenue is unable to controvert this document. Moreover on the alleged document seized by the department there is mention of the date or the name or the purpose for which the amount of ₹ 10,00,000/- is mentioned and therefore in these given facts and circumstances of the case explanation given by Ld. Counsel for the assessee needs to be accepted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany was asked to explain whether this payment of ₹ 2,00,000/- was duly accounted in its books of account or not. No explanation of the same has been received. Hence the same remains unexplained expenditure and is hereby added to the total income of the assessee company for A.Y. 2012- 13. Penalty proceedings u/s 271(1)(c) are hereby initiated for A.Y. 2012-13 . 70. When the aggrieved assessee came in appeal before the Ld. CIT(A) failed to get relief to the addition of ₹ 2,00,000/- and was confirmed by Ld. CIT(A) observing as follows; Page 60 of LPS-20 contain details of expenditure made during property Expo 2011. CREDAI is a body of builder association Bhopal. Total amount of ₹ 59.80 lacs was collected by CREDAI from builders and out of total amount of ₹ 2,00,000/- was given by the appellant s company. The appellant assessee was asked by the A.O to reconcile and explain the above transaction but no submission what so ever has been made neither at the assessment stage nor at the appellate stage. Thus it is clear that the appellant has nothing to say in this regard. In absence of any material evidence and proof the addition of ₹ 2,00,000/- mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils of amount collected from various builders the onus was on the assessee to prove whether he had made any payment by cheque or cash of ₹ 2 lacs to CREDAI. No such details have been filed before both the lower authorities and before us. It seems that assessee has no explanation to give for such expenditure and the same has been rightly added to the income of the assessee as an unexplained expenditure. We accordingly confirm the addition of ₹ 2,00,000/- and dismiss Ground No.8 of the assessee for Assessment Year 2012- 13. 75. Now we take up the remaining Grounds 7 8 raised by the assessee in respect of unaccounted transaction of ₹ 59,80,000/- and unaccounted expenditure of ₹ 3,00,000/- for Assessment Year 2013-14. 76. Brief facts relating to addition of ₹ 59,80,000/- on account of alleged unaccounted transaction are that during the search proceedings, LPS-28, pg-29 was seized which contains name of persons along with amount. On enquiry it was submitted that this data is prepared by one of the employee for her personal use. Ld.A.O considered these as hawala entries which were not found entered in books of accounts and added the same to the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o M/s. Ganga Bricks to cross verify. 81. Ld. Departmental Representative vehemently argued and supporting the orders of lower authorities. 82. We have heard rival contentions and perused the records placed before us. 83. As regards addition of ₹ 59,80,000/- challenged by the assessee in Ground No.7, we observe that this addition was based on the seized document appearing at page-29 of LPS-28. Perusal of this document shows that various names are mentioned along with some code and the amount along with these names. For reference we will take two entries from this document; (a) Yogesh (KLM 103795) ₹ 7 lacs (b) Aditya (KLM 0102938) ₹ 6 lacs The above referred sheet page-29 was found in the personal document of Marketing Executive Kumari Vandana Rai. It has been contended before us that Kumari Vandana Rai has jotted the name and salary package of prospective grooms from the matrimonial website. Ld. Counsel for the assessee has placed sample print out of website placed at 563A, 564 and 565. On perusal of this website i.e. www.kalarmatrimony.com we find that a code is issued for the boy (for instance page KLM 1155237) is issued to Mr. Deepak Murkute, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en approved in the name of Soumya Estate on 26.3.2007. The required approval, plan etc in respect of this project have already been filed during the course of original assessment for Assessment Year 2009-10. Ld. A.O did not allow the deduction u/s 80IB(10) observing as follows; The assessee is not undertaking development and construction of housing project. The assessee neither the owner nor the seller of the land on which project is claimed to hay ben undertaken. The assessee is merely acting as a contractor to the customers to whom land has been sold. No registry whatsoever is being made for the construction work done by the assessee. Intention behind any deduction u/s 80IB is to promote investment in a particular sector, which is less profitable. In assessee's case virtually no investment was made to start the project and return on capital or profitability is very substantial. Permission for the project is given to the Sandhya Bhel Shramik Grih Ninnan Sahakari Sanstha Mydt. And not to the assessee, hence it can be definitely said that the assessee has not got any approval for the aforesaid construction which is claimed as a project. Condition for ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 558, it has been held that, at the relevant time was, that the development and construction of the housing project had commenced or commences on or after 01.10.1998.This stipulation has been modified by the amended clause (a). As per amended clause (a) with which we are concerned, the housing project approved before 31.03.2007 by a Local Authority would receive the benefit of deduction provided the ITA.Nos. 40/2012, 36/2012 35/2012 16 development and construction of the housing project has commenced or commences on or after 01.10.1998 and is completed within specified time in that, housing projects approved by the Local Authority before O1. 04.2004 must be completed before 31.03.2008; and the housing project approved on or after 01.04.2004 but before 31.03.2007 should be completed within four years from the end of the financial year in which the housing project was approved by the Local Authority. The amendment further postulates that, the date of completion of construction of the housing project shall be reckoned Oil the basis of the date on which the completion certificate in respect of such housing project is Issued by the Local Authority We accordingly hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the facts and circumstances cited above and the decision of the jurisdictional High Court in the case of CIT v Global reality (2015) 280 CTR (MP) 558, I am of the view that the A0 was not Justified in holding that the appellant assessee has committed that in furnishing inaccurate particulars of income by claiming deduction under section 80IB(10) of the Act. In the appellant s case the facts show that he had fulfilled the conditions laid down in 80IB(10) of the Act, and preferred to make the claim of deduction under the section. The appellant has made claim of deduction U/S 80 IB (l0) wherein, the permission certificate and completion certificate from the local authority have been un ruined within cut off date which is the most basis requirement to claim deduction u/s 80IB (10) 89. Now the revenue is in appeal before the Tribunal. 90. At the outset Ld. Counsel for the assessee submitted that the issue stands squarely covered in favour of the assessee by the decision of the Co-ordinate Bench, Indore in the assesee s own case for Assessment Year 2009-10 which came for hearing against the order of finding by Ld. CIT(A) dated 18.5.2012 which arised from the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was required to undertake construction of the residential unit as a whole. It appears that the Assessing Officer has mis-interpreted various agreements entered by the assessee with its customers. Not only as per project approval letter but also as per the certificate dated 31st October, 2009, issued by the Office of Sub Divisional Officer, the assessee has not only conceived the entire housing scheme but also executed the work as per approval plan. The assessee had entered into comprehensive sale agreement with the customers for the purpose of sale of complete residential units. It is a normal trade practice to receive payment in instalments as per the progress of the project, as most of the customers got houses financed from the bank and the Bank release the funds as per progress of the work. Facility of registration of structure was made available to the customers only with a view to provide them mortgageable securities to avail bank finance. As per the agreement, the possession of residential unit remained with the assessee till final instalment is paid. The customer has no authority to get construction work done by any other person other than the assessee. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erused the records placed before us. We observe that following transactions were appearing in page 185 and 186 of BS-1; (a) ₹ 34,600/- against Khayati Enterprises (b) ₹ 4,00,000/- against Binani Pumps (c) ₹ 1,97,000/- against Tiles Gallery (d) ₹ 49,500/- against Raju Ram Saini (e) ₹ 4,04,000/- against Shubham Enterprises 99. We find that when the issue came up before Ld.CIT(A) certain details along with the ledger statements were filed by the assessee on the basis of which the addition for unaccounted expenditure of ₹ 10,85,100/- was deleted by Ld. CIT(A) observing as follows; 1l.2 Page 185 186 of BS-1 also seized during the search contains details of various payments made on a single day. On perusal of the ledger statement of various beneficiaries filed the following payments are seen:- ₹ 34,633/- has been paid to M/s Khyati Enterprises on 28 09 2012 ₹ 4,00,000/- (Rs.2,00,000/- ₹ 2,00,000/- each) to M/s Binani Pumps and pipes on 28.09.2012. ₹ 1,97,000/- has been paid to M/s Tiles galary on 28.09.2012. ₹ 49,500/-_ has been paid to Raju Ram saini on 28.09.2012 ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
