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TMI Blog2024 (1) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 68 of the income Tax Act, 1961 amounting to Rs. 13,95,00,000/- made by the assessing officer, without considering facts that there was a seizure of incriminating material and failure of the assessee to prove the genuineness of the transaction. 2. Whether, the Ld. CIT(A) has erred both in law and or facts in failing to appreciate the findings of the assessing officer and overlooking the finding made during the assessment proceedings. 3. Whether the Ld. CIT(A) has failed to appreciate the details/justification given by the AO and therefore addition made and that the AO had established that transactions were not genuine and thus the addition made was correct by giving detailed clarification after through verification of the submission made by the assessee." 03. The learned Assessing Officer raised following grounds for A.Y. 2019-20 as under:- "1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition u/s 68 of the income Tax Act, 1961 amounting to Rs. 13,55,00,000/- made by the assessing officer, without considering facts that there was a seizure of incriminating material and failure of the assessee to prove the genui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 May 2021. Subsequently, the order under Section 127 of the Act was passed, where the case was transferred to the Dy. Commissioner of Income Tax, Central Circle-2(2), Mumbai. iv. A notice under Section 153 of the Act was issued on 17 December 2021. Assessee reiterated his return of income on 28 January 2022, at a total income of Rs. 10,18,24,860/-. The notice under Section 143(2) of the Act was issued on 31 January 2022. v. During the course of assessment proceedings, the learned Assessing Officer noted that, assessee has provided services to Omkar Group of companies for settlement of non-eligible tenants and possession of constructed rehabilitation units and has received Rs. 34,81,14,629/- as fees towards income. vi. The learned Assessing Officer noted that for A.Y. 2017-18 Rs. 13.95 crores, for A.Y. 2019-20 Rs. 13.50 crores and for A.Y. 2020-21 Rs. 1.45 crores, is received. The above sum was stated to have been received for facilitation fee for evacuation of tenants, settlement of non eligible tenants, resettlement in permanent accommodation, brokerage etc. against facilitation agreement dated 1st April, 2016. vii. During the course of assessment proceedings, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incriminating material in remand report. iv. The learned CIT (A) referred to the Panchnama dated 8 February 2021 that no valuable goods or accounts were seized during the course of search. This Panchanama was available with him as submitted in a remand report by the learned Assessing Officer. v. He further noted that assessee's statement was recorded on 8th to 11th February 2021, wherein question no.37, assessee was asked about the transactions with Omkar Group. In response to that question assessee himself gave the facilitation agreement and the reconciliation of receipt to the income tax stating that he has received the sum as per agreement from the above company for respective assessment years. vi. Therefore, the learned CIT (A) noted that the above facilitation agreement was for work undertaken of slum rehabilitation projects of the above party for which assessee has been paid the above remuneration. vii. The learned CIT (A) further examined the facilitator agreement and the reconciliation statement. He accordingly, held that agreement, the reconciliation statement is part of the regular records of the assessee for which return of income is filed, and income is shown in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, concluded assessment could not be disturbed. He relied up on decision of honourable supreme court in case of Abhisar Buildwell Pvt Ltd. [2023] 149 taxmann.com 399 (SC)/[2023] 293 Taxman 141 (SC). 012. We have carefully considered the rival contentions and perused the orders of the lower authorities. Search took place on 8th February 2021, and therefore, admittedly A.Y. 2017-18 was not an abated assessment year. The impugned assessment can only be disturbed when incriminating material is found during the course of search. It is the claim of the Revenue that facilitating agreement and receipt of reconciliation statement found during the course of search is itself an incriminating material. We find that the assessee has offered the income arising from the above agreement reconciled with the reconciliation statement for the respective years. The facilitator agreement is signed by the assessee, which Omkar Developers is part of the regular books of accounts and records of the assessee supporting his Shri Sachin Jagdish Prasad Joshi; A.Y. 2017-18, 19-20 & 20-21 original return filed. On looking at question no.37 of the statement of the assessee, which clearly shows that when the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, the assessment order under Section 143(3) read with section 153A of the Act was passed on 31st march, 2022, determining the total income of the assessee at Rs. 13,55,00,000/- under Section 68 of the Act computing the normal income at a loss of Rs. 4,85,39,260/- . The unexplained cash credit under Section 68 of the Act of Rs. 13,55,00,000/- was charged to tax under Section 115 BBE of the Act. 017. For A.Y. 2020-21, the learned Assessing Officer has filed appeal in ITA No.1562/Mum/2023, against the order of learned CIT (A) dated 10th February, 2023, wherein the addition of Rs. 1,45,00,000/-was made by the learned Assessing Officer on fees received from Omkar Developers as per facilitation agreement. The fact shows that return of income was filed on 15th February, 2021, at the total income of Rs. 2,04,35,300/-. In response to notice under Section 153A of the Act, dated 17 December 2021, assessee reiterated his return on 28 January 2022, at the same income. 018. The learned Assessing Officer raised the similar query about Rs. 1,45,00,000/- received from Omkar Realtors Developers Private Limited. Assessee also explained the receipt of the above sum as in A.Y. 2017-18. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the learned CIT (A) submitted that there is an agreement between the service provider and the service receiver. The assessee has rendered services in accordance with the agreement. Assessee has continuously explained the nature of services, the reason why the assessee was hired, it also gave names of various companies to whom services have been rendered. It was further stated that the services are also subject to the GST, which was collected by the assessee and paid to the GST department. The GST department has also not questioned the rendition of the services. He submits that assessee has not provided services to any one company but to number of different companies from which assessee has received the remuneration. He submits that the nature of remuneration and the services of remuneration both have been explained by the assessee to the learned Assessing Officer. The learned Assessing Officer has merely stated that assessee has not rendered those services. He referred to overwhelming evidences recorded by the LD CIT [A], which are not controverted by the LD AO. He also stated that the learned Assessing Officer has not made any enquiry when the learned Assessing Officer pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the form of 133(6) of the Act or issue of summons under Section 131 of the Act to the parties that has paid these sums. The learned Assessing Officer has not carried out any such enquiry. He has also not examined the evidences produced by the assessee either during the course of assessment proceedings or during the remand proceedings. The paper books filed by the assessee clearly shows that the assessee has discharged his onus by producing confirmation from the parties, agreement of the services rendered, tax invoices, copies of board meetings minutes for the proof of services. Thus, according to him, the assessee has discharged his onus of showing the nature and source of the receipts, if the learned Assessing Officer is not satisfied with the same, he should have at least carried out minimum enquiries to throw onus back to the assessee. There is not a single enquiry carried on by the learned Assessing Officer to disbelieving the nature and source of the credits shown by the assessee. The LD AO did not even care to examine the parties who have paid these sums to the assessee and whether the above sum is allowed as deduction in the hands of such parties / companies. Naturally, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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