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TMI Blog2018 (2) TMI 1965X X X X Extracts X X X X X X X X Extracts X X X X ..... h was not recorded in its books of accounts.CIn ground of appeal, it has been stated by the appellant that the AO has not mentioned the section under which the addition was made and he has not verified the bank statement. In this regard, it is stated that non-mentioning of section does not make the assessment bad. Further, for cash transaction, there is no need for verification of the bank statements - Decided against assessee. Admission of additional evidence filed by the assessee - HELD THAT:- Filing of additional evidence by the ld.AR of the assessee has no relevance as the same has already been taken into consideration in the case of the assessee for the Assessment Year 2007-08. In this view of the matter and facts and circumstances of the case, we concur with the findings of the ld. CIT(A) for the Assessment Year 2007-08 and do not find merit in admitting the additional evidence filed by the assessee. Hence, the additional evidence filed by the assessee for the Assessment Year 2007-08 is not admitted. Thus Ground of the assessee is dismissed. - ITA No. 418/JP/2016, ITA No. 109/JP/2017 - - - Dated:- 7-2-2018 - Shri Vijay Pal Rao, JM And Shri Bhagchand, AM Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refully perused the submission of the appellant and the material placed on record. The brief fats of the case are that an MOU was executed between the appellant and M/s. U Turn Housing P Ltd (UTHPL) on 22- 03-2006. As per the said MOU, the appellant agreed to sell 1,25,000 square yards of land to UTHPL which was being developed by the appellant at Sanganer, Jaipur at the rate of 1270/- per square yard. UTHPL has already paid a sum of ₹ 2.20 crores through cheque and ₹ 57,50,000/- in cash till the date of the said MOU i.e. till 22-03-2006. The balance amount was to be paid by UTHPL as per the following schedule. (a) ₹ 5 crore till 10-04-2006. (b) ₹ 4 crore till 10-05-2006. (c) Rs. Balance ₹ 4.10 crore till 04-06-2006 (i) e. 1,25,000 square yard of land was agreed to be sold and purchased for a total consideration of ₹ 15,87,50,000/-. It would be relevant to mention here that the appellant had neither taken any post dated cheques for the balance amount from UTHPL nor mentioned anything about the mode of its payment in the MOU. As per the said MOU, if UTHPL do not make the payment in time, it had to pay additional amount at the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts as discussed above in this order has been mentioned in this regard and the AO did not mention anything about the genuineness or otherwise of the cancellation agreement dated 14-07-2007. Therefore, the said charge sheet is of no help to the appellant. 4.1 It is pertinent to mention here that apparently, the signatures of Shri Nikhil Tripathi and the MOU dated 22- 03-2006 and the so called cancellation agreement and MOU dated 14-07-2007 do not tally. This supports the claim of Shri Tripathi and the cancellation agreement dated 14-07- 2007 is forged one as it do not bear his signatures. 4.2 It would be relevant to mention here that as per the assessment order, UTHPL had shown advance to the appellant at ₹ 2.35 crore against ₹ 1.85 crore claimed to be received by the appellant during the year under consideration through cheques only. It would be appropriate to reproduce here the relevant extracts of the statement of Shri Nikhil Tripathi recorded on oath u/s 131 of the Act by the Investigation Wing at New Delhi, as stated in the assessment order, as under:- Q. No.6: Please go through the copies of balance confirmation for the period 01-04-2005 to 31-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred statement of Shri Tripathi claimed to make cash payment of ₹ 67.50 lacs and ₹ 3.42 crores during the year F.Y. 2005-06 and 2006-07 respectively and the total payment of ₹ 9.83 crores was made by UTHPL to the appellant as is evident from its books of accounts. It is pertinent to mention here that as per the audited financial statement of UTHPL for the FY 2006-07 dated 06-06-2007, it had shown loans and balance to the appellant at ₹ 2.45 crores and ₹ 9.83 crores as on 31-03- 2006 and 31-03-2007 respectively. It was the contention of the appellant that in his statement Shri Tripathi was telling a lie but it failed to cite any reason for Shri Tripathi to make a false statement. Further, it was not able to state any reason why UTHPL would sown such huge payments in its financial statements which were not actually paid by it as claimed by the appellant and that too through cash payments. It is matter of common knowledge that in real estate transactions, at least 30 40% payments are made in cash. It is pertinent to mention here that vide earlier MOU dated 22- 03-2006, 1,25,000 square yards of land was sold by the appellant to UTHPL at the rate of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is rejected. 3.3.2 Determination Ground No. 3 (i) I have carefully perused the submissions of the appellant and material placed on record. This issue has already been dealt in Ground of appeal No. 1, hence this ground of appeal is rejected. 2.2 During the course of hearing, the ld.AR of the assessee filed the written as to the respective grounds raised in the appeal which has been taken into consideration. The ld.AR of the assessee concisely argued that the ld. CIT(A) has erred in confirming the addition of ₹ 67.50 lacs and the AO did not allow the assessee to cross examine the statement given by Shri Nikhil Tripathi during the course of proceedings. 2.3 On the other hand, the ld. DR supported the order of the lower authorities. 2.4 We have heard the rival contentions and perused the materials available on record. Brief facts of the case are that the assessee deals in business of sale, purchase, acquire, convert, develop, construct land building including farm houses, villa residential flats, commercial complex etc. As per the information available with the department, the AO observed that the assessee company had entered into an agreement for sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt Ltd. and it was only a promise to pay in future. As regards receipts of ₹ 2,20,00,000/- through cheques it was stated that ₹ 1,80,00,000/- were received from the company and ₹ 5.00 lacs were received through Director Shri Nikhil Tripathi. Thus the assessee company had received in total a sum of ₹ 1.85 crores from M/s. U-Turn Housing Pvt. Ltd. The AO further noted that the assessee company filed a copy of cancellation agreement of sale agreement dated 22-03-2006 made on 14-07-2007 in which it was stated that the amount of ₹ 57,50,000/- was never received and it was written on the basis of verbal assurance. The AO at para 3.4 has taken into consideration the relevant portion of cancellation agreement. The AO noted that in order to verify the correctness of facts mentioned in various agreements, information u/s 133(6) was called from M/s. U-Turn Housing Pvt. Ltd and on examination of the copy of account of M/s. Rajasthan Land Developers Pvt Ltd. in their books, the following payment had been shown to be made during the year under consideration. Date Cheque details Amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Tripathi in his statement at Answer to Question No. 4 denied that an Ikrarnama dated 14-07-2007 was executed by him on behalf of U-Turn Housing Pvt. Ltd (UTHPL) and his signatures are forged and this ikrarnama is completely forged document. Shri Tripathi confirmed the Answer to Question No. 5 that ₹ 57,50,000/- was paid in the year 2005- 06 upto 22-03-206 in cash to M/s. Rajasthan Land Developers Pvt Ltd.. Thus the copy of the statement of Shri Nikhil Tripathi recorded on 13-03- 2014 was forwarded to the assessee by the AO vide letter No.2306 dated 14-03-2014 to with a request to explain why the amount of ₹ 67,50,000/- should not be treated as income of the assessee company which was not recorded in the books of accounts. In response thereto, the ld.AR of the assessee on 19-03-2014 replied, the contents of the same are narrated at page 6 7 of the assessment order. The submissions of the assessee have been taken into consideration by the AO but the same has not been found convincing by the AO with following observation. 3.11.4 Therefore, the contention of the assessee that no cash of ₹ 57,50,000/- was received at the time of agreement is not found convin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ..It was the contention of the appellant that in his statement Shri Tripathi was telling a lie but it failed to cite any reason for Shri Tripathi to make a false statement. Further, it was not able to state any reason why UTHPL would show such huge payments in its financial statements which were not actually paid by it as claimed by the appellant and that too through cash payments. It is matter of common knowledge that in real estate transactions, at least 30 40% payments are made in cash. It is pertinent to mention here that vide earlier MOU dated 22-03-2006, 1,25,000 square yards of land was sold by the appellant to UTHPL at the rate of ₹ 1270/- per square yard whereas as per the new MOU dated 14-07-2007, as claimed by the appellant, only marketing rights of 72000 square yards of residential land were assigned at the rate of 1270 per square yard to UTHPL by the appellant. These facts coupled with the facts available on record clearly establish that the appellant received a sum of ₹ 67.50 lacs during the year under consideration which was not recorded in its books of accounts.In ground of appeal, it has been stated by the appellant that the AO has not mentioned th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple of natural justice. The copy of this application has already been served on the ld. DR. 3.3 On the other hand, the ld. DR opposed the additional evidence filed by the assessee praying that the same had been taken into consideration by the ld. CIT(A) in its judgement dated 30-12-2016 for the Assessment Year 2007-08. 3.4 We have heard the rival contentions and perused the materials available on record. We find that the ld. CIT(A) vide its judgement dated 30-12-2016 for the Assessment Year 2007-08 had taken into consideration the judgement dated 20-11-2015 of Hon'ble Upper District Judge, Room No. 19, Jaipur Mahanagar and rejected the contention of the assessee by observing as under (Page 20) of ld. CIT(A) s order):- (v) Further vide above referred order, the Hon'ble ADJ has held as under:- (vi) Thus it is evident from the above that the issue of genuineness or otherwise of the MOU dated 14-07-2007 was not before the Court of Hon'ble ADJ and the MOU dated 22-03-2006 was not placed before the Hon'ble Court, according to which balance payment of ₹ 13.10 crore was required to be paid to before 04-06-2006, out of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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