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TMI Blog2022 (10) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... ue lending credence to this hypothesis. The assessee has repeatedly stated that it made surrender to buy peace and whatever was surrendered it had honoured in the preceding year. In the absence of any other evidence, the surrender made by the assessee alone cannot be sufficient to establish that the assessee has actually received onmoney on all transactions, and therefore no addition could have been made in the impugned year for any on-money receipt. Accordingly, the order of the CIT(A) upholding the addition. - ITA No.1141/Ahd/2018 And ITA No.1141/Ahd/2018 - - - Dated:- 12-10-2022 - Mrs.Annapurna Gupta, Accountant Member And Miss Suchitra Kamble, Judicial Member For the Assessee : Shri Tushar Hemani, Sr.Adv, And Shri P.B. Parmar, AR For the Revenue : Shri Rakesh Jha, Sr.DR ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER Present two appeals relate to different assesses and have been filed against orders passed by the ld. Commissioner of Income- Tax(Appeals), Gandhinagar, Ahmedabad [hereinafter referred to as Ld.CIT(A) under section 250(6) of the Income Tax Act, 1961 ( the Act for short) of even dated 9.2.2018 both pertaining to the Asst. Year 2014-15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise found by the Revenue during the course of survey; that therefore the addition made in both the cases was unwarranted. Having said so, he thereafter drew our attention to the ground raised in both the cases challenging the confirmation of the addition on account of on-money as under: ITA No.1141/Ahd/2018- M/s Sun Developers 1. The learned CIT(A) has erred in law and on facts in confirming the addition of Rs. 20,23,809/- on account of alleged on money receipt u/s. 68 of the Act without proper consideration and appreciation of the facts of the case and submission filed as well as legal position relied upon. In view of the facts and submission filed, the impugned addition of Rs.20,23,809/-u/s.68_of the Act requires to be deleted. 2. The learned CIT(A) has erred in not dealing with the legal decisions relied upon in connection with the contention that the statement recorded U/S.133A was not recorded on oath, such statement recorded U/S.133A was not at par with the statement recorded u/s. 132(4) and accordingly did not have any evidentiary value. Thus, the addition of Rs. 20,23,809/- made on the basis of statement recorded u/s. 133A of the Act only and without any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- being Rs.50.00 lakhs in M/s Sun Developers and Rs.249.75 lakhs in M/s Jay Buildcon, the working of which as reproduced in page no.3 of the assessment order was pointed out as under: 6. The ld.counsel for the assessee thereafter stated that in the case of M/s.Sun developers, Rs.50.00 lakhs surrendered was disclosed in the return of income filed by the assessee for the preceding assessment year i.e. Asst.Year 2013-14 and similarly, Rs.2.00 crores surrendered for financial year 2012-13 pertaining to Asst.Year 2013-14 in the case of M/s Jay Buildcon was accordingly disclosed in the return of income filed for said assessment year i.e. Asst.Year 2013-14. 7. For the impugned assessment year i.e. Asst.Year 2014-15, Ld.Counsel for the assessee stated, in the case of M/s Sun Developers the assessee made no further disclosure of income on account of on-money received while in the case of M/s.Jay Buildcon the assessee made a disclosure of Rs.23.75 lakhs. The ld.counsel for the assessee pointed out that it was explained to the authorities below i.e. both the AO and the Ld.CIT(A) that the disclosure made in the case of Jay Buildcon of Rs.23.75 lakhs in the impugned year varied f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Particulars Units Amount disclosed Res. House booked 06 6 lacs Comm.Shop booked 22 11 lacs Multiplex Hall 03 6.75 lacs And that accordingly on the basis of properties booked or sold during the year, the assessee surrendered on-money of Rs.23.75 lakhs. The ld.counsel for the assessee pointed out that there was no question of any on-money received on unsold/un-booked, and therefore, there was no question of making any disclosure vis- -vis remaining property of the assessee, which remained unsold or unbooked during the year. He further contended that except for the surrender made during the survey, there was no incriminating material which was found by the Revenue during the survey to support the surrender on account of on-money received by the assessee pertained to the impugned year. He also stated that surrender was voluntary in the absence of any incriminating material pertained to the alleged on-money or extra money received by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, relied on the order of the authorities below, emphasizing that the assessee had not honoured its surrender made during survey, and had in fact retracted without any proof or evidence, which was not permissible in law. Reliance was placed on various case laws referred to in this regard by the AO in his assessment order. 13. We have heard contentions of both the parties and gone through the orders of the authorities below and also perused various documents referred to before us. The issue before us in both the cases is vis- -vis addition made on account alleged on-money received by the assessee and the addition has been made primarily on ground that the assessee had failed to honour surrender made by it during survey in this regard for the impugned year in the case of M/s.Jay Buildcon ,and in the case of M/s Sun Developers the addition has been made over above the surrender made by the assessee ,by extrapolating the ratio of on-money admitted to have been received by the assessee on plots sold/booked in the surrender made, to the number of plots actually sold/booked by the assessee during the year. 14. First we take up the case of M/s Jay Buildcon. It is an undisputed fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the surrender made by the assessee, and there is no retraction as such of the surrender. The assessee, we find in fact evidenced the reduction in the surrender made by demonstrating that properties sold by it were actually less than that disclosed in the surrender. Therefore, this retraction, if any of the surrender, is evidenced by the actual facts on record, and all the case laws relied on by the ld.AO to hold that the assessee could not have retracted his surrender in the absence of any evidence actually support the case of the assessee. The AO has relied on various decisions at para 3.14 of his order, gist and crux of which is that retraction of surrender can be accepted and/are acceptable only when supported with strong evidence. In the present case, we have noted above, the assessee has supported his retraction of surrender on account of on-money by showing that the actual properties sold by it was less than what was disclosed in the surrender, which fact has not been disputed by the AO, and the surrender was solely on account of on-money receipt which was received only on the booking/sale of properties and not prior to that. The retraction of the assessee, we find, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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