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TMI Blog2020 (1) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... e : Shri Rishabh Mehta (AR) For the Revenue : Shri Padamapani Bora (DR) ORDER PER AMARJIT SINGH, JM: The assessee as well as revenue have filed the above mentioned appeals against the order dated 20.03.2017 passed by the Commissioner of Income Tax (Appeals)-1, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Y.2012-13. ITA NO. 3787/M/2017 2. The assessee has filed the present appeal against the order dated 20.03.2017 passed by the Commissioner of Income Tax (Appeals)-1, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Y.2012- 13. 3. The assessee has raised the following grounds: - 1. (a) The learned Commissioner of Income Tax (Appeals) erred in facts and law in upholding the addition to the tune of ₹ 1.38.65.636/- on account of difference in rate per sq.tt charged to various customers visa- vis the market rates per sq.ft on the date of booking by these customers. (b) The learned Commissioner of Income Tax (Appeals) erred in facts and law in sustaining the addition on accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected for scrutiny under CASS. Notices u/s 143(2) 142(1) of the Act were issued and served upon the assessee. The assessee is an entity belonging to Triveni Group which is a reputed builder and has developed a project namely Bhoomi Towers at Kamothe. The saleable area of this project was 79847 sq. ft. The land cost was ₹ 3,16,61,870/-. The project commenced on 26/06/2008 and was completed on 17.04.2012. The assessee adopted the project completion method to recognize the profit and disclosed the income for the first time during the year under consideration wherein the project was completed. During the year, the assessee has disclosed a sale of ₹ 19,55,98,477/- on which the assessee has disclosed a net loss of ₹ 1,47,36,855/-. The assessee was asked to furnish the detail of sale with the area of the flat/shops, sale consideration on the date of agreement and on the date of possession etc. On verification, huge rate difference was found. The assessee explained that the variation on account of sale of unfurnished flats and some flats were sold with extra amenities on higher price. Thereafter, on verification, some flats were sold with from low price and whereas som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of ₹ 3,13,85,432/- after allowing the 15% discount. It can be said that the addition has been raised on estimation basis without any conducting inquiry. The matter of controversy has been adjudicated by the Hon ble ITAT in the assesse s own group case titled as Triveni Construction Vs. DCIT Group concerns (ITA. No.3779/Mum/2017 Others) (Mum). The relevant finding has been given in para no. 17 which is hereby reproduced as under.:- 17. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decision are given below. In the instant case, the AO has proceeded to make an addition of ₹ 8,76,70,801/- allegedly on account of on-money receipts without brining any cogent evidence/material on record. There is no evidence whatsoever with the AO to demonstrate that the assessee-firm received the differential amount of ₹ 8,76,70,801/- in cash from the buyers of flats/shops. The AO noticed that flats/shops were sold to different customers at varying rates. The assessee explained to the AO that it had invited booking of the flats from February 2007 onwards and due to recession in the real estate market in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there being any evidence unearthed during search operations. Similar is the ratio laid down in Shri Rustam Soli Sethna (supra), M/s Shah Realtors (supra) and K.S. Constructions (supra). 17.2 In Krishna Enterprise (supra), following the decision of Honble Madras High Court in the case of Sugantha Ravindran 353 ITR 488, it is held that since transfer was made prior to the amendment of section 50C w.e.f. 01.10.2009, the provisions of section 50C would not be applicable. In M/s John Fowler (India) Pvt. Ltd. (supra), since the value of sale consideration reported by the assessee was less than the value as per the stamp duty authority, the difference between the two amounting to ₹ 33,48,684/- was proposed to be added back to the income of the assessee. In the above case, as the difference between the valuation adopted by the stamp valuation authority and the one declared by the assessee was less than 10%, therefore, the Tribunal directed the AO to adopt the value as declared by the assessee. In Smt. Sita Bai Khetan (supra), it is held that the fair market value of the property is to be adopted on the basis of comparable sale instances. 17.3 We find that section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue is dismissed. 6. Since the matter of controversy is quite similar to the case Triveni Construction Vs. DCIT Group concerns, therefore, we are of the view that the finding in this case is quite applicable to the facts of the case also. The Hon ble ITAT has relied upon the number of decisions such as M/s. Mangalmurti Realtors. Vs. ITO, Neelkamal Realtors Erectors India (P.) Ltd. M/s. Runwal Projects Pvt. Ltd. Since the matter of controversy is the same, therefore, in view of the finding given by Hon ble ITAT in the assessee s own case(supra), we delete the addition raised by AO and decide this issue in favour of the assessee against the revenue. ISSUE NO.2 7. This issue has not been pressed by the Ld. Representative of the assessee, therefore, this issue is being decided in favour of the revenue against the assessee being not pressed. ISSUE NO.3 4 8. Since the issue no.2 has been decided in favour of the assessee, therefore, there is no need to decide the issue no.3 4 being academic in nature. ITA. NO.4400/Mum/2017 9. The facts of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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