9911796707
TMI Blog2021 (4) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... e case as gathered from the orders of Lower Authorities are that assessee is a firm engaged in the business of construction and development of properties, filed its Return of Income for assessment years (A.Y.) 2014-15 on 30.11.2011 declaring total income of Rs. 27,49,030/-. During the relevant period, the assessee was developing three projects, namely (i) Vaishnodevi Sky; (ii) Vaishnodevi Height and (iii) Vaishnodevi Farm Ville. A search action under section 132 of the Act was carried out on assessee's group on 28.11.2013. During the search, certain incriminating documents showing unaccounted income of firm relating to the current year were found and impounded. Statement of partner of firm was recorded. On confronting the impounded material, the partner of the firm disclosed unaccounted income of Rs. 56,42,157/- over and above the regular income. The Authorised Officer also recorded statement of Shri Anand Gaur and Shri Sudhirbhai Parikh who visited the office premises of assessee during search/survey proceedings. In the statement of Shri Anand Gaur stated that he booked Flat No. B204 admeasuring in 1094 sq.ft. in project Vaishnodevi Heights on 17.10.2013. Shri Anand Gaur made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etailed written submission. The submission of assessee is duly recorded in para 5.1 of the impugned order. Besides the other submission, the assessee explained that a search action was carried out in case of assessee on 28.11.2013. The assessee declared unaccounted income of Rs. 56,42,157/- as additional income. The AO worked out the figure of 'on money' on the basis of statement of two persons/buyers, recorded during the search/survey. The assessee further explained that if the statement of those two persons are investigated in deep, actual reality, both the persons stated about the rate of flat booking, payment terms, money paid from time to time and nowhere in the statement they stated about any 'on money' payment. The partner of the firm in his statement, recorded during the search also stated that the rate of booking of shop at Rs. 2000 to 1800 and that some bookings are at the high figures due to extra work. No single piece of evidence found during the search to prove that assessee received any 'on money' over and above documented and accounted figures of sales. During assessment, in response to show cause notice, the assessee explained the difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land by bank on the basis of which it was discussed, has not been proved wrong by the AO. As per statement of partner recorded under section 132(4) of the Act that in some flats, extra work is carried out according to the flat holders choice and therefore booking amounts rates were differ. The ld. CIT(A) held that there was no justification to assume 'on money' payments on shops and in respect of project, the assessee has already declared Rs. 50 lakhs earned outside the books of accounts on the project, Vaishnodevi Heights and deleted the entire addition, thus, aggrieved by the deletion of alleged 'on money' the Revenue has filed the present appeal before this Tribunal. 5. We have heard the submission of the Ld. Commissioner of Income tax-departmental representative (CIT-DR) for the Revenue and Ld. Authorised Representative (AR) of the assessee and perused the order of Lower Authorities carefully. The Ld. CIT-DR for the Revenue supported the order of the AO. The Ld. CIT-DR further submits that a search action was carried out on the assessee group on 28.11.2013. During the search, certain incriminating material was found. The statement of partner of assessee as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that they made any payment on account of 'on money'. The Ld. AR for the assessee further invited our attention on the additional work agreement of both the buyers, copy of which are available at page No. 314 to 318, 327 to 332 of PB respectively. The Ld. AR for the assessee also invited our attention on the housing loan sanctioned letter dated 09.03.2017 from HDFC Bank, issued to Anand Gaur, copy of which is available at page No. 333 to 335 of PB. The Ld. AR for the assessee finally; while summing up his submission reiterated that there is no evidences at all against for receipt of 'on money', the AO made additional purely on estimation basis. To support his submission, the Ld. AR of the assessee relied upon the following decisions: * CIT Vs. S. Khader Khan Son [2012] 25 taxman.com 413 (SC), * CIT Vs. Shardaben K. Modi [2013] 35 taxman.com 264 (Gujarat), * CIT-III Vs. Golden Finance [2013] 40 taxman.com 329 (Gujarat), * CIT Vs. Happy Home Corporation [2019] 103 taxmann.com 22 (SC), * CIT Vs. Happy Home Corporation [2018] 94 taxmann.com 292 (Gujarat) (Gujarat). * ACIT Vs. Happy Home Corporation ITA No. 2270/Ahd/2014 (ITAT, Surat). * D. Construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration 68,14,68,890/- Less: Document Price (338114 X 1400) 47,33,59,600/- Total on money involved 20,81,09,290/- 8. Further with regards to thirty shops the A.O. made following estimations; Saleable area Rate per sq ft (Rs.) Total sale consideration Rate shown in documents As per documents consideration On money 14480 3400 4,92,32,000 2000 28960000 20272000 9. Thus, on the basis of the working shown in the aforesaid table the A.O. worked out the total 'on money' on the project of Rs. 22,83,81,290/- (20,81,09,290 + 2,02,72,000). 10. The ld. CIT(A) after considering the submission of assessee, working of AO and the statement of parties held that there is no documentary evidence to substantiate, the receipt of 'on money'. No documents were recovered from the position of firm during the search or survey proceedings. The AO estimated the figures of 'on money' on the basis of statements of two buyers namely Shri Anand Gaur and Sudhirbhai Parikh, recorded during the survey. We have further noted that ld. CIT(A) independently examined the statement of both these two flat buyers, the ld. CIT(A) on examination of their statement held that both t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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