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TMI Blog2021 (8) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings. Further, the Assessing Officer has also not brought any incriminating material or evidence on record which could substantiate that the assessee has actually received any on-money from the sale of units in The View and Almas Elements projects. We also found that the assessee has duly shown the income by having regard to the provisions of section 50C of the Act. Therefore, we are of the considered view that the Assessing Officer has made the additions purely on his guess work and surmises which do not have any basis whatsoever. We do not find any reason to interfere with the findings of the Ld. CIT(A). Accordingly, the action of the Ld. CIT(A) in deleting the additions on account of The View and Almas Elements projects respectively, is hereby sustained. - Decided against revenue. Unexplained investment in property - AO noted while examining the books of account of the assessee family, this payment was not found recorded in the regular books of account of any of the assessees of Chugh family - HELD THAT:- We find that the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any corroborative material on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (45) of section 2 of the Act and according to which, the expression total income means the total amount of income referred to in section 5, computed in the manner laid down in the Act. Thus, in our considered opinion, even in the assessment proceedings u/s. 153A, the total income has to be computed in the same manner in which it is computable under the normal assessments under the provisions of s.143(3) of the Act and no discriminatory treatment can be given for computation of total income in pursuance of the assessment made u/s. 153A of the Act. We also find that the position of law for giving a different treatment has got changed only by way of insertion of a new section 115BBE in the statute by way of the Finance Act, 2012 w.e.f. 1-4-2013, which is not applicable for the assessment year under consideration. Thus, we are of the considered view that the assessee is eligible for claim of deduction u/s. 54F of the Act in respect of the on-money of Rs.2,08,00,000/- received from sale of subject capital asset. This view is supported by the decision of the Coordinate Bench of ITAT, Pune in the case of Shri Manish Madhav Malpani [ 2015 (5) TMI 1232 - ITAT PUNE] as also relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the registered sale deeds. In such circumstances, we are of the considered view that the Ld. CIT(A) has rightly deleted the addition made by the Assessing Officer in the assessee s income on the allegation of payment of on-money by the assessee Provisions of section 43CA which have been inserted in the Statute by the Finance Act, 2013 w.e.f. 1-4-2014, were not applicable in the case of the assessee firm for the assessment year under consideration. Therefore, we do not find any reason for making addition by the Assessing Officer in the assessee s income on this count. Unexplained expenditure in Sun City project - HELD THAT:- No addition in the assessee s income merely on guess work without bringing any cogent and corroborative material or evidence on record. - IT(SS)A Nos.267 & 268/Ind/2016, 239/Ind/2017, 77/Ind/2017, 22/Ind/2017, 122/Ind/2017 And 238/Ind/2017 - - - Dated:- 23-8-2021 - SHRI RAJPAL YADAV HON'BLE VICE PRESIDENT AND SHRI MANISH BORAD, ACCOUNTANT MEMBER Appellant by Shri S.S. Mantri, CIT-DR Respondent by S/Shri Anil Kamal Garg Arpit Gaur, Ars ORDER PER MANISH BORAD: The above captioned appeals at the instance of Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition Rs.2,08,00,000/- made by the AO on account of on-money received on sale of agricultural land without appreciating the facts and evidences brought into light by the AO during assessment proceedings. Grounds of appeal in ITANo.122/Ind/2017, Shri Nitesh Chugh 1. On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition Rs.3,39,000/- made by the AO on account of cash loan given from unaccounted income and Rs.1,75,48,900/- on account of unexplained investment in purchase of plots without appreciating the facts and evidences brought into light by the AO during assessment proceedings. Grounds of appeal in ITANo.238/Ind/2017, M/s Chugh Reality 1. On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition made by the AO of Rs.22,71,000/- on account of sale consideration from the sale of units of The Mark Project and Rs.5,26,74,600/- on account of unexplained investment in Pulak City project and Rs.3,81,11,476/- on account of undisclosed investment in Sun City project without appreciating the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er registered sale deeds. The Assessing Officer also noted that in real estate business, normally the actual sales considerations are at least twice of the amounts shown in the registered sale deeds. The Assessing Officer further noted that 19% profit shown to have been derived by the assessee on sale of units in The View Project is contrary to the actual scenario. The AO made a comparison of The View project with one residential project of the assessee titled as Almas Elements . The Assessing Officer further added that the cost of construction would have been lower in commercial project as the quality of finishing varies drastically in both the type. The Assessing Officer also noted that the various members of the group were involved in receiving onmoney in land transactions. As per the Assessing Officer, some incriminating documents were found by the Search Party in this regard and Shri Nitesh Chugh had also confirmed the receipt of onmoney in his case. In another case, it was found that Shri Vivek Chugh had received cash of Rs.35 lakhs and the same was not accounted for in his books of account. Accordingly, the Assessing Officer estimated the net profit of the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents found in the hands of other members of the assessee s family have no relation with the issue on hand. The Ld. CIT(A) further noted that the two projects The View and Almas Elements cannot be compared as the first one is commercial and the second is residential, they are situated at different locations and time period of construction is also different. The Ld. CIT(A) further observed that the assessee had produced all the bills and vouchers in support of cost of construction of the project and no defect or discrepancy in such bills and vouchers was found by the Assessing Officer. The Ld. CIT(A) noted that the assessee and his wife have jointly shown short term capital gain of Rs.1,20,21,991/- on deemed sales consideration of Rs.6,55,18,000/- u/s 50C which works out to 18.34%. Further, the assessee and co-owner have not claimed any other administrations expenses, financial expenses or depreciation as the assessee carried out the activities of development of project as an investor and not as a builder. The Ld. CIT(A) also noted that without bringing any corroborative evidence on record the profit of the project cannot be estimated @30%. In respect of the other project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any corroborative material on record to justify the additions made by the Assessing Officer. We find that the assessee had duly shown the short-term capital gain from sale of units in The View project and business income from sale of units in Almas Elements project in his original returns of income furnished u/s 139 of the Act. We further find that during the course of the assessment proceedings, the assessee had duly furnished all the necessary details, documents, bills, vouchers etc. in respect of both the projects before the Assessing Officer. We also find that the Assessing Officer has also not made any independent enquiry or investigation from the buyers of the property as regard to actual receipt of sale consideration despite specifically being insisted by the assessee during the course of the assessment proceedings. Further, the Assessing Officer has also not brought any incriminating material or evidence on record which could substantiate that the assessee has actually received any on-money from the sale of units in The View and Almas Elements projects. We also fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unexecuted, unsigned, undated sale agreement between partners of M/s. Gold Terrace Apartment and Chugh family for sale of 16.34 acres land at village Bhorasala for Rs.18,00,00,000/- was found and seized vide Page No. 112 to 116 of LPS-6. During the course of the assessment proceedings, the Assessing Officer required the assessee to explain the sources of payments made in respect of such sale agreement and to show cause as to why an addition of Rs.1,75,00,000/- be not made on account of undisclosed payment from undisclosed sources. In response, the assessee stated that such agreement was not executed and ultimately, the deal has got cancelled. The assessee further stated that in respect of the said land, only token money of Rs.50,00,000/- was paid through account payee cheque dated 23-05-2012 and except making such payment, no further payment was made. The Assessing Officer rejected the explanation of the assessee and stated that if the agreement was cancelled, the amount would have been refunded to the Chugh family. However, the said amount of Rs.50,00,000/- was not found returned by the seller to the assessee family. Thus, the Assessing Officer noted that the installment of Rs.1,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies wherein it has been held that when the seized papers have not been corroborated by any independent evidence, it cannot be considered as acceptable piece of evidence. Finally, the Ld. CIT(A) made a finding that the Assessing Officer has simply proceeded to make additions on the basis of the documents in question without bringing any evidence on record to show that Rs.1,75,00,000/- was paid by the assessee towards the first installment as per the terms of the unsigned, undated agreement seized during the course of search which is not an acceptable, sustainable and justified approach. Accordingly, the Ld. CIT(A) deleted the addition of Rs.1,75,00,000/- made by the Assessing Officer in the hands of the assessee. 11.2 Felt aggrieved, the Revenue is in appeal before this Tribunal. The ld. CIT-DR vehemently argued supporting the order of the Assessing Officer. The ld. DR also filed a Paper Book which is carefully perused and placed on record. Per contra Ld. counsel for the assessee referred and relied on the findings of Ld. CIT(A). 11.3 We have heard the rival contentions and carefully perused the records placed before us. We find that the Ld. CIT-DR, except placing his reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer, as against the guideline value of Rs.1023/- per sq ft., the assessee has shown purchase of these plots at Rs.400/- per sq. ft. only. The Assessing Officer further noted that Shri Vivek Chugh (son of the assessee) has also purchased 27 plots (total area 31,372 sq. ft.) in Pulak City for a total sale consideration of Rs.1,23,40,800/- (excluding registry expenses) as against the government guideline value of Rs.3,07,00,996/-. The Assessing Officer also observed that in another search group namely Jhaveri Group of Indore , evidences were found that in their project namely Silicon City located in the vicinity of the Pulak City, prevailing rate of plots in A.Y. 2012-13 was Rs.750/- per sq. ft. and in A.Y. 2013-14, it was Rs.1100/- per sq. ft. The AO further noted that during the course of simultaneous assessment proceedings in the case of Shri Vivek Chugh, an undertaking was filed by the assessee that if any undisclosed income/ expenditure/ investment is found, the same may be added to the total income of the assessee, being father of Shri Vivek Chugh and main earning member of family. Therefore, the AO noted that the undisclosed investment found in Pulak City in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nating document or material was found to show that the assessee had made payment over and above the amount stated in the purchase deeds for the plots in Pulak City. The Ld. CIT(A) also observed that estimation of the additions on the basis of the assumption that as the group members indulge in receiving onmoney in land transactions, there is undisclosed consideration paid for purchase of plots in Pulak City is not an acceptable, sustainable and justified approach. The Ld. CIT(A) relied upon the decision of Hon ble Supreme Court in the case of K.P. Varghese vs. ITO Anr. (1981) 131 ITR 597 (SC) wherein it has been held that the onus lies on the Revenue to establish that an assessee has understated the consideration for transfer of an immovable property and unless such onus is discharged by the Revenue, there cannot be any presumption as regard to the understatement. Thus, the Ld. CIT(A) held that the addition of Rs.3,79,04,952/- made on account of undisclosed investment for purchase of plots in Pulak City on account of purchase consideration paid being less than the guideline value cannot be sustained. Accordingly, the Ld. CIT(A) deleted the entire addition of Rs.3,79,04,952/- made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of s.56(2)(vii) have been introduced in the statute by the Finance Act, 2013 w.e.f. 1.4.2014 only and such provisions are not retrospective in the nature. In such circumstances, merely on the presumption basis, any difference in the guideline value and apparent consideration paid by an assessee for purchase of an immovable property cannot be deemed as income of the assessee. Undisputedly, in the present case, no positive evidence has been brought on record to establish that the assessee has parted with any consideration over and above that shown in the registered sale deeds. In such circumstances, we are of the considered view that the Ld. CIT(A) has rightly deleted the addition of Rs.3,79,04,952/- made by the Assessing Officer in the assessee s income on the allegation of payment of on-money by the assessee and his son Shri Vivek Chugh. Accordingly, this ground of the Revenue for the A.Y. 2013-14 is dismissed. 13. In the result, the appeals of the Revenue for the A.Ys. 2011-12, 2012-13 and 2013-14 are dismissed. SMT. REENA DEVI CHUGH (A.Y. 2011-12) 14. Revenue has filed the present appeal for A.Y. 2011-12 before this Tribunal raising the only ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011- 12]. Besides, the Assessing Officer also noted that assessee and the co-owner might have received on-money equivalent to the value stated in the registered sale deeds, on sale of various units in The View Project and therefore, he made additions equivalent to the amount stated in registered sale deeds by dividing such amount between the assessee and her husband equally in three assessment years viz. A.Ys. 2010-11 to 2012-13 in the same proportion in which the sale registries were executed by the assessee [Rs.1,89,38,425/- for A.Y. 2011-12]. 15. Being aggrieved, the assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A) observed that although the assessee has herself claimed not to have maintained any regular books of account u/s 44AA of the Act, but the bills, vouchers and details in respect of the projects were duly produced before the Assessing Officer. The Ld. CIT(A) also noted that in the original return u/s 139 as well as return furnished in compliance to notice u/s 153A, the assessee has duly shown income from short-term capital gain from sale of units in The View project. The Ld. CIT(A) noted that the Assessing Officer has added Rs.30 on account of profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A). 17 We have heard the rival contentions and carefully perused the records placed before us. We find that the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any corroborative material on record to justify the additions made by the Assessing Officer. We find that the assessee had duly shown the short-term capital gain from sale of units in The View project in his original return of income furnished u/s 139 of the Act. We further find that during the course of the assessment proceedings, the assessee had duly furnished all the necessary details, documents, bills, vouchers etc. in respect of the project before the Assessing Officer. We also find that the Assessing Officer has also not made any independent enquiry or investigation from the buyers of the property as regard to actual receipt of sale consideration despite specifically being insisted by the assessee during the course of the assessment proceedings. Further, the Assessing Officer has also not brought any incriminating material or evidence on record which could substantiate that the assessee has actually received any on-money from the sale of units in The View pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e admissibility of additional evidences nor offered any comments. The Ld. CIT(A) stated that the assessee submitted a copy of ledger account of house construction for F.Y. 2013-14 wherein an expenditure of Rs.47,61,258/- has been incurred by the assessee during F.Y. 2013-14. In support of the expenditure of Rs.47,61,258/-, the assessee furnished a copy of relevant bank statement along with copies of bills. The Ld. CIT(A) noted that after including the said expenditure of Rs.47,61,258/-, the total investment of the assessee towards the property amounts to Rs.4,08,01,360/- which is more than the value of Rs.4,03,15,000/- determined by the DVO. Accordingly, the Ld. CIT(A) deleted the addition so made by the Assessing Officer on the basis of the DVO s report. Now, aggrieved with the order of Ld. CIT(A), the Revenue is in appeal before this Tribunal against the additions deleted by the Ld. CIT(A). The Ld. CIT-DR relied upon the order of the Assessing Officer. Per contra Ld. counsel for the assessee referred and relied on the findings of Ld. CIT(A). 19. We have heard the rival contentions and carefully perused the records placed before us. We find that the construction of the House at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration, the total cost of construction shown by the assessee herself would work out to be at Rs. 4,08,01,360/- which is much higher than the cost of construction of Rs.4,03,15,000/- determined by the DVO. Thus, in our considered opinion, the assessee has fully established the total cost of construction of Rs.4,08,01,360/- with supporting evidences which remained unrebutted by the Assessing Officer. In such circumstances, we don t find any infirmity in the action of the Ld. CIT(A) in deleting the addition so made by the Assessing Officer on account of unaccounted investment in house property. Accordingly, we hereby confirm the action of the Ld. CIT(A) in deleting the addition of Rs.2,49,482/- made in the hands of the assessee. Therefore, this ground of Appeal of the Revenue is dismissed. 20. In the result, the appeal of the Revenue for the A.Y. 2011-12 is dismissed. SHRI NITESH CHUGH (A.Y. 2012-13 A.Y. 2013-14) Ground No. 1 for A.Y. 2012-13: 21. This ground of appeal of the Revenue pertains to addition of Rs.2,08,00,000/- made by the AO on account of on-money received on sale of agricultural land of the assessee. Briefly stated facts as culled out from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a normal receipt on sale of capital asset and therefore, no claim under any section of the Income Tax Act is allowable against this receipt. According to the Assessing Officer, since the said amount was admitted only after search action, the entire undisclosed receipts are taxable under the head Income from Other Sources and no deduction under s.54F will be available against this receipt. The Assessing Officer further stated that the claim of the assessee u/s. 54F is also not admissible in view of the provisions of s.115BBE. The AO also averted that although the section 115BBE is applicable w.e.f. A.Y. 2013-14 but the same is applicable for earlier years also. Finally, the Assessing Officer made an addition of Rs.2,08,00,000/- in the assessee s income on account of on-money received on sale of agricultural land for the A.Y. 2012-13. 22 Being aggrieved, the assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A) observed that the decision of the Coordinate Bench of ITAT, Pune in the case of Shri Manish Madhav Malpani vs. ACIT, Central Circle-1(1), Pune is applicable to the facts of the case of the assessee. The ld. CIT(A) further noted that section 54F provides options t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justify the addition made by the Assessing Officer. We find that there is no dispute as regard to the receipt of sale consideration of Rs.2,60,00,000/- from sale of a capital asset (agricultural land) by the assessee. It is also not disputed that against sale of the aforesaid land, the assessee has purchased one residential house situated at 18, Manishpuri, Indore for a total consideration of Rs.1,89,15,088/-. We find that the Assessing Officer has also not disputed the claim of deduction u/s. 54F made by the assessee in respect of the investment in purchase of residential house. The only point of dispute raised by the Assessing Officer is that the on-money of Rs.2,08,00,000/- admitted during the course of search u/s. 132(1) by the assessee to have received from sale of agricultural land is to be declared in the return of income under the head income from other sources and no deduction u/s. 54F is allowable to the assessee against the receipt of on-money of Rs.2,08,00,000/-. We also find that as per the provisions of section 14 of the Act, for the purpose of charge of income-tax and computation of total income, an income has to be divided into five heads. We also find that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of s.54F of the Act, the assessee is entitled to claim deduction u/s. 54F to the Act. Further, the decision of the Hon ble Bombay High Court in the case of CIT vs. Sheth Developers (P) Ltd. (2012) 208/25 taxmann.com 173, as also relied upon by the assessee and the ld. CIT(A), is also applicable to the case of the assessee. The Hon ble Court, at para (11), was pleased to hold as under: 11. The further case of the appellant-revenue that in view of section 69A of the said Act the benefit of deduction under Chapter VIA of the said Act would not be available to the respondent-assessee is not well founded. In the present facts it is not the case of the revenue that the money found in possession of the respondent assessee could not be explained and/or its source could not be explained to the satisfaction of the Assessing Officer. In the present case undisclosed income found in the form of cash was explained as having been acquired while carrying on business as a builder and this explanation was accepted by the Assessing officer by having assessed the undisclosed income for the block period as income from profits and gains of business or profession. Therefore, the reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue for the A.Y. 2012-13 is dismissed. Ground No. 1 for A.Y. 2013-14: 25. This ground of appeal of the Revenue for A.Y. 2013-14 pertains to addition of Rs.3,39,000/- made by the Assessing Officer on account of cash loan given from unaccounted income and Rs.1,75,48,900/- on account of unexplained investment in purchase of plots by the assessee. 26. As regard the addition of Rs.3,39,000/-, the briefly stated facts as culled out from the records are that during the course of search proceedings, various incriminating loose papers were found and seized vide LPS-7 (page no. 63 64), LPS-2 (page no. 24) and LPS-7 (page no. 56, 57 59) from the assessee s premises. As per the Assessing Officer, these papers show that the assessee had given loans in cash and against these loans, he had obtained undated cheques from the borrowers. As per these loose papers, the assessee had given cash loans aggregating to Rs.8,39,000/- during A.Y. 2013- 14. During the course of the assessment proceedings, the assessee was required to make his explanation. The assessee, in his reply, admitted to have made cash loans aggregating to Rs.1,89,000/- i.e. Rs.50,000/- (page no. 56), Rs.39,000/- (page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the A.Y. 2013-14. Now, aggrieved with the order of Ld. CIT(A), the Revenue is in appeal before this Tribunal. The Ld. CITDRrelied upon the order of the Assessing Officer. The ld. DR also filed a Paper Book which is carefully perused and placed on record. Per contra Ld. counsel for the assessee referred and relied on the findings of Ld. CIT(A). 28. We have heard the rival contentions and carefully perused the records placed before us. We find that the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any further material on record to justify the addition made by the Assessing Officer. We find that the assessee himself had offered a sum of Rs.1,89,000/- as additional income on account of cash loans in his return of income filed post-search for the A.Y. 2013-14. Thus, the Assessing Officer was not justified in re-making the addition to the tune of Rs.1,89,000/- in the assessee s income for the relevant assessment year. Even, as regard the addition of Rs.1,50,000/- made by the AO on the basis of page no. 59 of LPS-7, we find that the said loose paper is in the form of a promissory note dated 25.03.2007 given by Shri Sanjay Wadhwan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, the prevailing rate of plots was Rs.750/- per sq. ft. in A.Y. 2012-13 and Rs.1100/- per sq. ft. in A.Y. 2013-14. During the course of appellate proceedings before the Ld. CIT(A), additional evidences were submitted under Rule 46A which were duly forwarded to the Assessing Officer for comments. According to the Ld. CIT(A), the Assessing Officer has neither objected to the admissibility of additional evidences nor offered any comments. The Ld. CIT(A) further noted that the colony Pulak City was being developed by Shri Ritesh Ajmera and due to some encroachments, various cases were pending before the judicial forums in respect of the said colony. Such fact is seen from the newspaper cuttings which have been placed on record. The Ld. CIT(A) also noted that the details of other parties who have purchased the plots in same colony at Rs.400/- per sq. ft. have also been placed on record. The Ld. CIT(A) further observed that during the course of search, no incriminating document or material was found to show that the assessee had made payment over and above the amount stated in the purchase deeds for the plots in Pulak City. The Ld. CIT(A) also observed that estimation of the additions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not brought any incriminating document or material on record to establish that the assessee has paid any amount over and above the purchase consideration stated in the registered sale deeds. We noted that the Assessing Officer has made a reference of some rates prevailing in Silicon City of Jhaveri Group of Indore but, in our considered opinion, it cannot be a parameter or yardstick for determining the purchase price of the plots in another colony. Thus, in our view, the onus was lying on the assessing officer to establish that the assessee had paid any on-money over and above that stated in the registered sale deeds. However, the Assessing Officer failed to discharge such onus and made the addition merely on presumption and assumption. We further find force in the contention of the assessee that the impugned transactions of purchases were carried out during the financial year 2012-13 relevant to A.Y. 2013-14 and for such year, the provisions of s.56(2)(vii) were not made applicable. It is worth notable that the provisions of s.56(2)(vii) have been introduced in the statute by the Finance Act, 2013 w.e.f. 1.4.2014 only and such provisions are not retrospective in the nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that during F.Y. 2010-11 to F.Y. 2012-13, the assessee firm has sold 69570.70 sq. ft. floor area in six floors of The Mark project and as per guideline, the sales ought to have been shown by the assessee atleast for a sum of Rs.16,21,48,315/-. However, upto 31.03.2013, the assessee had shown sales consideration in its books at Rs.14,47,46,500/- only which, as per the Assessing Officer, makes it clear that the assessee had understated its sales in its books by a sum of Rs.1,74,01,815/-. During the course of the assessment proceedings, the Assessing Officer required the assessee to show cause as to why the difference of Rs.1,74,01,815/- be not added as undisclosed estimated sales consideration in A.Y. 2011-12 to A.Y. 2013-14. In reply, the assessee firm stated that it had recorded sales consideration aggregating to a sum of Rs.17,49,93,500/- in its books of account in respect of The Mark Project, upto 31-03-2013, whereas the sales value adopted by the Stamp Valuation Authority for the purpose of stamp duty was to the extent of Rs.18,08,30,500/- thereby giving a difference of Rs.58,37,000/-. The assessee further submitted that it had furnished the entire details as regard to unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izers (P) Ltd. (2012) 208 Taxman 478, the ITAT, Indore Bench in the case of ACIT vs. Danish Housing Cooperative Society Ltd. (2013) 22 ITJ 447 wherein it has been held that provisions of s.50C would have no application where the transfer of immovable property is on account of sale of stock-intrade. The ld. CIT(A) also observed that the provisions of s.43CA can also not be invoked in this case as the same have been inserted by the Finance Act, 2013 w.e.f. 1-4-2014. Thus, the ld. CIT(A) deleted the addition of Rs.22,71,000/- made by the Assessing Officer on account of alleged understatement of sales by the assessee in its The Mark project for the A.Y. 2013-14. Now, aggrieved with the order of Ld. CIT(A), the Revenue is in appeal before this Tribunal against the addition deleted by the Ld. CIT(A). The Ld. CIT-DR relied upon the order of the Assessing Officer. The ld. CIT-DR also filed a Paper Book which is carefully perused and placed on record. Per contra Ld. counsel for the assessee referred and relied on the findings of Ld. CIT(A). 34. We have heard the rival contentions and carefully perused the records placed before us. We find that the Ld. CIT-DR, except placing his relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable in the case of the assessee firm for the assessment year under consideration. Therefore, we do not find any reason for making addition by the Assessing Officer in the assessee s income on this count. Accordingly, the action of the ld. CIT(A) in deleting the entire addition of Rs.22,71,000/- for the A.Y. 2013-14 is confirmed. 35. Now, as regard the addition of Rs.5,26,74,600/- on account of unexplained investment for purchase of plots in Pulak City, the briefly stated facts as culled out from the records are that the assessee purchased 46 plots (total area 79,721 sq. ft.) in Pulak City Colony located at Rau Pithampur Road. The assessee has shown purchase of these plots in March 2013 at a total sale consideration of Rs.3,19,78,400/- (excluding registry expenses). However, it was seen from the registry documents that as per the government guideline value for these plots was Rs.8,46,53,000/-. According to the Assessing Officer, as against the guideline value of Rs.1062/- per sq ft., the assessee has shown purchase of these plots at Rs.401/- per sq. ft. only. The Assessing Officer also observed that in another search group namely Jhaveri Group of Indore , evidences were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purchase of plots in Pulak City is not an acceptable, sustainable and justified approach. The Ld. CIT(A) relied upon the decision of Hon ble Supreme Court in the case of K.P. Varghese vs. ITO Anr. (1981) 131 ITR 597 (SC) wherein it has been held that the onus lies on the Revenue to establish that an assessee has understated the consideration for transfer of an immovable property and unless such onus is discharged by the Revenue, there cannot be any presumption as regard to the understatement. Finally, the Ld. CIT(A) held that the addition of Rs.5,26,74,600/- made on account of undisclosed investment for purchase of plots in Pulak City on account of purchase consideration paid being less than the guideline value cannot be sustained. Accordingly, the Ld. CIT(A) deleted the entire addition of Rs.5,26,74,600/- made by the Assessing Officer in the assessee s income. Being aggrieved with the order of Ld. CIT(A), the Revenue is in appeal before this Tribunal against the addition deleted by the Ld. CIT(A). The ld. CIT-DR vehemently argued supporting the order of the Assessing Officer. The ld. CIT-DR also filed a Paper Book which is carefully perused and placed on record. Per contra L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, merely on the presumption basis, any difference in the guideline value and apparent consideration paid by an assessee for purchase of an immovable property cannot be deemed as income of the assessee. Undisputedly, in the present case, no positive evidence has been brought on record to establish that the assessee has parted with any consideration over and above that shown in the registered sale deeds. In such circumstances, we are of the considered view that the Ld. CIT(A) has rightly deleted the addition of Rs.5,26,74,600/- made by the Assessing Officer in the assessee s income on the allegation of payment of on-money by the assessee. Accordingly, the action of the ld. CIT(A) in deleting the aforesaid addition of Rs.5,26,74,600/- is confirmed. 37. Now, as regard the addition of Rs.3,81,11,476/- on account of unexplained expenditure in Sun City project, the briefly stated facts as culled out from the records are that during the course of search proceedings, at the residential premises of the partners of the assessee firm, certain documents pertaining to development of Sun City project at Rau, Indore, mentioned as page no. 11 to 21 of LPS-2 were found and seized. During t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er made an addition of Rs.3,81,11,476/- in the assessee s income for the A.Y. 2013-14 on account of unexplained expenditure in respect of Sun City project at Rau. Being aggrieved, the assessee preferred an appeal before the Ld. CIT(A). The Ld. CIT(A), at para (6.3) of the order, noted that the addition of Rs.3,81,11,476/- has been made by adding Rs.2,75,39,046/- mentioned at loose page no. 16 and the amount of Rs.1,05,72,430/- mentioned at page no. 21. The Ld. CIT(A) observed that the page no. 21 is an abstract sheet of the proposed estimate. The Ld. CIT(A) stated that the Assessing Officer has given no basis for adding the proposed estimate in the development expenditure. The Ld. CIT(A) further noted that the entries at page no. 16 include previous bill amount of Rs.1,94,12,306.50/- (also mentioned at page no. 22) and amount of running bill no. 2 at Rs.81,26,739.57/- totaling to Rs.2,75,39,046.07/-. The Ld. CIT(A), at para (6.4) of her Order, further stated that any development agreement, being binding on both the parties requires registration with the Sub- Registrar of Properties. The Ld. CIT(A) stated that the Assessing Officer could have gathered the information either from M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re contain name of the assessee firm or any of its partners. It has been claimed by the assessee firm that such loose papers have not been prepared by, or on the instructions of, the assessee firm. We also find that on these loose papers, no date or period has been mentioned. We further find that some of the loose papers merely contain some measurement notings without any reference of any amount. We find that the loose paper page no. 21 contains the caption estimate for some work to be done for an estimated cost of Rs.1,05,72,430/-. We also find that at computerized sheets inventorized as page No.22 to 23, some cost of work at Rs.1,94,12,306.50p has been stated. Further, at page No.16 and 17 cost of work has been mentioned at Rs.81,26,739.57p. At page No.16, the sum total of these two costs have been mentioned at Rs.2,75,39,046.07p. On a careful and conjoint reading of all the subject loose papers, we find that the subject loose papers do not convey any meaning and these loose papers, having no signature, no date and no periodicity, can at the best be regarded as dumb documents and the same cannot be used as an evidence against the assessee. We find that the Assessing Officer, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despite having the information, the Assessing Officer did not make any independent enquiry from the company to unearth the real truth and merely relied upon the uncorroborated loose sheets recovered during the course of search from the premises of the assessee firm. We also find that the Assessing Officer has not brought on record any cogent material or evidence that the assessee had incurred any unexplained expenditure during the previous year relevant to A.Y. 2013-14 only. We noted that the Assessing Officer himself, at para (15.9) of his Order, has stated that the period of the payment is not clearly available and therefore, merely on presumption the AO formed an opinion that the expenditure might have been incurred during the previous year relevant to the assessment year under consideration and made the impugned addition. We find support from the ratio laid down by the Hon ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd. vs. CIT (1954) 26 ITR 775 (SC) that any suspicion howsoever strong it may be, cannot become a basis of any addition. We are of the considered opinion that no addition can be made in the total income of an assessee merely on the basis of uncorrobor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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