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TMI Blog2021 (8) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... ed additional evidences before learned CIT(A). It was duly submitted that the amount received was booking advance and name of the party, his confirmation and photocopy of the PAN was also submitted. CIT(A) simply rejected the additional evidence on the ground that it was not submitted earlier - issue may be remitted to the Assessing Officer - Appeal by the assessee is allowed for statistical purposes. Rectification of mistake u/s 154 - Addition had been made on the order but the same remained to be added in the computation of total income - HELD THAT:- We find ourselves duly in agreement with the order of learned CIT(A). The Assessing Officer having made addition by discussing in the assessment order and making the addition in the body thereof and has mistakenly omitted it from the computational part. Hence, in our considered opinion there is no infirmity in the order under section 154 correcting the same. As rightly pointed out by learned CIT(A) the merits in this regard could not have been gone into by the Assessing Officer in the proceedings under section 154 of the Act. Hence, we uphold the order of learned CIT(A). Addition u/s 68 - sundry creditors and advances for booking as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppressed profit on sale of its project named 'Morya Apartment', Plot No. E- 33, Sector-3, Kharghar sold to M/s. Yerala Medical Trust and Research Centre. As per the registered agreement dated 13.06.07 the sale consideration has been shown at ₹ 1,00,00,000/-. However, as per the statement of Shri Madan Kolambekar recorded on 23.01.09 in reply to Q. No.9, he has stated that he had received cash of ₹ 25 lakhs on sale of the above project and had offered the same for taxation. Moreover, page No.45 of Annexure A-3 seized from the residence of Shri Madan Kolambekar during the course of search on 22.01.09 is copy of duly signed receipt dated 27.01.07 in respect of ₹ 25,00,000/- showing this amount of cash received by Shri Madan Kolambekar from M/s. Yerala Medical Trust and Research Centre. The copy of this seized page no. 45 is also enclosed as Annexure O-l to the assessment order. The AO has further observed that this seized page no. 45 is duly signed receipt dated 27.01.07 which shows the total sale consideration for this project at ₹ 1,75,00,000/- which establishes that ₹ 75,00,000/- was received in cash which was not accounted for by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale consideration was shown at ₹ 1,00,00,000/-. But, as per the statement of Shri Madan Kolambekar and the seized page no, 45 of Annexure A-3 seized from his residence, it is duly signed receipt dated 27.01.07 in which the sale consideration of this project was shown at ₹ 1,75,00,000/-. Thus, there was a suppression of ₹ 1,75,00,000/- received in cash by the assessee. Accordingly, the AO has given a show cause notice to the assessee to explain the same. In response to this show cause notice, the AR of the appellant has submitted its reply which is reproduced at page 15 of the assessment order in which the assessee has admitted the sale price at ₹ 1,75,00,000/-. From the perusal of the P & L account, the AO has noticed that the assessee has shown the profit at ₹ 85,87,525/- but as per the computation chart filed alongwith the return, the total income has been shown at ₹ 89,50,560/-. But in the return of income filed, the total income has been shown at ₹ 54,73,530/-. Thus, the AO has adopted the total income at ₹ 89,50,560/- as computed in the computation chart. On the other hand, the AR of the appellant has failed to submit any reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at page 18 of the assessment order amounting to ₹ 13,85,565/-. During the year under consideration, the assessee has booked sale in respect of 'Morya Apartment' project and computed the profit accordingly. The amount of ₹ 13,85,565/- which was disallowed to be capitalized during the AYs. 2005-06 to 2007-08 on account of non-deduction of TDS was disallowed in the computation of total income and added back to the taxable income. During the assessment proceedings, the AO has called for the details of TDS. In response to this show cause notice, the AR of the appellant has submitted the details from the perusal of which the AO has noticed that expenses of ₹ 9,12,107/- on account of construction expenses and ₹ 4,34,100/- on account of labour charges were claimed but no TDS was deducted on these expenses. Accordingly, the AO has given a show cause notice to the assessee to explain the same. In response to the show cause notice, the assessee has not submitted any detail. Thus, the AO has presumed that the AO has not deducted tax nor deposited in the government account. Therefore, the AO has made a disallowance of ₹ 13,46,207/- u/s. 40(a)(ia) of the IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(ia) would be attracted. Keeping in view the totality of facts and circumstances, it is held that the case of the appellant is covered by the decision of Hon'ble Mumbai Tribunal in case of Bharati Shipyard and the Hon'ble Calcutta Tribunal in case of DCIT vs. Ashika Stock Broking Ltd. Therefore, it is held that the case of the assessee is covered u/s. 40(a)(ia) and the addition made by the AO on this account is upheld and the ground of appeal is dismissed." 10. Upon hearing learned Departmental Representative and perusing the records, we find that learned CIT(A) has taken correct view of the matter and it does not need any interference in our part. Accordingly, we uphold the same. Apropos ground No. 3 11. Brief facts are that assessee has received cash of ₹ 1,15,000/- during the year under consideration. Accordingly, a show cause notice was issued to the assessee to explain the same but no information was submitted before the AO, therefore, he has treated this amount as unexplained cash credit u/s. 68 of the I.T. Act. Before learned CIT(A) the AR of the assessee submitted that it was booking amount received from Shri Sahul Hameed and photocopy of confirmation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provisions of the Act and oblige. 15. The facts of the case are that in this case, order u/s. 143(3) r.w.s. 153C of the I.T. Act, 1961 was passed on 29.12,2010 determining the total income at ₹ 1,08,02,973/-. On perusal of the record, it was found by the Assessing Officer that - (i) addition of ₹ 6,00,000/- had been made in para 10.3 of the order but the same remained to be added in the computation of total income. (ii) addition of ₹ 5,83,174/- had been made as per para 10.7 of the order but the same remained to be added in the computation of total income. 16. With a view to rectify the mistake in calculation of the total income, the assessee was issued notice u/s. 154 dated 29.09.2012 wherein the mistake was pointed out to it and its reply was called for by 05.10.2012. But the assessee did not submit any reply. Therefore, the Assessing Officer presumed that the assessee had nothing to say in the matter. The mistake being apparent from the record, the same was rectified as per the provisions of section 154 and the amounts of ₹ 6,00,000/- and ₹ 5,83,174/- were added to the total income of the assessee. 17. Against this action of the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 6,00,000/- and ₹ 5,83,174/- was not correct cannot be taken cognizance of in an appellate proceeding against an order passed u/s. 154 of the IT. Act, 1961. What is required to be seen by the Appellate Authority is not the merits of the addition but whether there is a mistake apparent from the records which is rectifiable u/s. 154(1) of the IT. Act, 1961. 4.2 Perusal of the order u/s. 143(3) rw.s. 153C dated 29.12.2010 shows that in para 10.3 of the assessment order, the Assessing Officer has clearly given a finding in which an amount of ₹ 6,00,000/- has been held as undisclosed and has also observed that the same is added to the total income. Similarly, in para 10.7, the Assessing Officer has given a clear finding that the amount of ₹ 5,83,174/- is disallowed and added back to the total income of the assessee. However, the Assessing Officer has omitted to add the above amounts while computing the total income of the assessee in the assessment order. This would clearly amount to a mistake apparent from the records within the provisions of section 154(1) of the IT. Act, 1961. Hence, the action of the Assessing Officer is as per law. The same is, therefore, uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout prejudice to ground no.5, and on the facts and in the circumstances of the case and in law/the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of ₹ 48,77,140/-. 7. Without prejudice to ground no. 5 and on the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of ₹ 6,734/-. 8. Without prejudice to ground no. 5 and on the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of ₹ 3,16,009/-. 23. Brief facts are that the it is observed from the record that in the course of assessment proceedings verification letters u/s.133(6) of the Act were issued to 17 parties in order to verify the genuineness of flat purchase advances given by the parties and the sundry creditors' balances claimed as outstanding as on 31.03.2010. In this connection, replies were received from only 3 parties confirming the transactions with the appellant. 10 out of 17 letters were returned undelivered by Postal Authorities with the remar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s income of the appellant. Similarly, in respect of sundry creditors also, upon its failure to file the confirmation letters from concerned parties, the same were treated as unexplained credits u/s.68 and thus, an addition of ₹ 51,93,149 (₹ 48,77,140 + ₹ 3,16,009) was made to the loss returned by the appellant. 25. Upon assessee's appeal learned CIT(A) held as under :- "I have considered the "Statement of Facts" and perused the impugned order. It is observed that the A.O. made addition of ₹ 51,99,883/- u/s. 68 on account of unexplained cash credits as the appellant failed to furnish necessary confirmations in respect of its sundry creditors as well as other parties from whom advances were shown to have been received towards allotment/sale of flats. It is now well-settled that the onus lies on the appellant to establish the identity of the creditors, the financial capacity of the creditors to advance the money and the genuineness of the transactions. In the instant case, it is observed from the record that the appellant failed to discharge such onus at the time of assessment. Even in the course of appellate proceedings, the appellant has neither ..... X X X X Extracts X X X X X X X X Extracts X X X X
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