9911796707
TMI Blog2025 (2) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the assessee. In response to the notice u/s 153A(a) of the Act issued on 07.10.2019, the assessee filed its return of income on 18.10.2019 declaring total income at Rs. 20,09,000/- which was the income returned earlier. Statutory notices u/s 143(2) and 142(1) of the Act were issued and served on the assessee, in response to which the assessee filed the requisite details from time to time as called for by the Assessing Officer. 4. During the course of assessment proceedings, the Assessing Officer noted that search action u/s 132 of the Act was conducted in the case of M/s. Meenamani Ganga Builder LLP as a part of search action in Goel Ganga Group on 10.01.2019. During the course of search action various incriminating documents in the form of loose papers were found and seized from the office premises of M/s. Meenamani Ganga Builders LLP. When these documents were correlated with entries found in other documents and registered deeds, it became evident that the assessee firm was involved in accepting on-money in cash for booking/selling of flats/shops. The Assessing Officer narrated the findings of the search action which is as under: "3.1 Findings during search action: A se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch booking forms in respect of all the tenaments of the project. Ans. As I have already told you that this is the process of documentation. However, from majority of files the other booking forms are missing which you have requested to produce. The other booking forms cannot be found in all files as the same are being destroyed from time to time after the process of completion of transactions and in some of files the same was left to be removed and therefore it was found." 5. However, the Assessing Officer noted that in response to the notice u/s 153A of the Act, the assessee has not offered the on-money in the income tax return filed. Therefore, he asked the assessee to explain as to why the addition should not be made on account of receipt of such on-money and also why it should not be extrapolated for the remaining flats/shops. 6. The assessee submitted that it has not accepted any on-money against the sale of its units in the said project. It was submitted that the documents on the basis of which it has been alleged that on-money is being accepted by the assessee are merely booking forms made by the sales representatives of the assessee at various times representing variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence. Even digital data such as whatsapp chat, e-mail, etc have been accepted by the various Court to be evidence. Here in the case under consideration, both documentary in the form of Booking Forms as well as oral evidence in the form of statement are available. The statement of Shri Shirish B. Ranpise was not vague but it was very specific that the cash has been received. Shri Ranpise has not only accepted the cash has been received, but clearly gave the description of all transactions appearing on the Form. The details of documents and the findings thereon are as under: (a) During the course of survey action, statements of Shri Shirish Bhanudas Ranpise, Sales Manager was recorded u/s 131 of the Income-tax Act, 1961 and agreed by the sales team. In his statement, Shri Shirish Bhanudas Ranpise accepted that cash component was accepted in booking of flats. In reply to Q. No. 08 of his statement, when page no 72 of his diary (seized as Bundle No. 01) dated 03/06/2017 was shown to him. He explained its contents that shop of saleable area of 860 sq. ft. in Ganga Fernhill was sold on agreement value at Rs. 6400/- per sq. ft. and over & above this Rs. 39.62 lakh was received in cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: (i) in sale of Shop No. B-09 of Ganga Fernhill, the area of the shop is 695 sq ft. As per page no. 5 of bundle no 10 booking form-1, the agreement value is shown as Rs. 25,71,500 at the rate of Rs. 3700/- per sq ft. & agreement to sale is also executed on same amount. As per page no. 13 of bundle no 10 Booking form-2 found in the same file, the cash amount of Rs. 45,17,500/- at the rate of Rs. 6500/- is mentioned, which is taken in cash over and above the amount of Rs. 25,71,500/- shown in agreement to sale. It is explained in detail at above para. (ii) In sale of Shop No. D-04 of Ganga Fernhill, the carpet area of the shop is 380 sq ft as per page no. 4 of seized Bundle no 4 and agreement amount mentioned here is Rs. 44,75,700/-, Page No. 6 of seized bundle no. 3, here agreement value mentioned is Rs. 56.84,000/- so total cost comes to Rs. 1,01,59,700/-. Agreement has been executed for Rs. 55,04,000/- so cash component in this deal comes to Rs. 43,25,600/-, which is taken in cash over and above the agreement amount of Rs. 55,04,000/- shown in agreement to sale. (iii) In sale of Shop No. D-05 of Ganga Fernhill, the carpet area of the shop is 307 sq ft. as per page no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence found cannot be said as merely booking form but also an incriminating evidence which clearly proves that the assessee has received on- money on sale of shops in its project "Gariga Fernhill". Further the assessee has not produced any document which is contrary to the data fond in those forms. There is a legal presumption u/s. 114(e) of the evidence act that the proceeding or the finding in the order are deemed to be correct unless contrary is proved otherwise. The assessee has never denied of the incriminating evidences found from his premises and the consideration worked out on it. His only contention is that those forms were only draft booking form. But once it is proved that the document was in possession of assessee then, in terms of provisions of Section 132(4)(a) r.w.s. 292C of the IT Act, a presumption arises that the contents of the impounded/seized documents are true. Thus, the presumption that the Assessee has received on-money cannot be denied. The presumptions u/s. 292C are that the document belongs to the persons from whose possession and control it was found. The second presumption is that the contents of such documents are true. The following case laws are r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Nitin B Handel 2. Devyani N Handel 46,55,700 Rs.56,84,000 82 27/07/2018 2019-20 3 1. Nitin B Handel 2. Devyani N Handel 37,56,600 Rs.45,32,000 82 27/07/2018 2019-20 4 1. Nitin B Handel 2. Devyani N Handel 46,55,700 Rs.55,04,000 84 27/07/2018 2019-20 From the above table, it can be seen that percentage on on-money accepted by Assessee with the consideration shown in registered deed varies from shop to shop. Therefore, to meet the end of justice and considering the facts of case, it is assumed that Assessee accepting 80% of on-money compare to consideration shown in registered deed. Considering the same, the on-money portion is determined as below: For AY 2017-18: Sr No Shop no Consideration as per registered deed Date of registry On-money 1 B-7 50,20,500 10/03/2017 40,16,400 2 D-1 29,48,500 15/12/2016 26,58,500 3 D-2 33,37,000 15/12/2016 26,69,700 4 D-3 17,27,500 15/12/2016 13,82,000 5 C-5 29,69,750 30/03/2017 23,75,800 6 B-8 27,26,500 28/11/2016 21,81,200 7 B-6 27,96,00 01/03/2017 22,36,800 Total 1,75,20,700 11. The Assessing Officer accordingly made the addition of Rs. 1,75,20,700/- as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h all the other units are sold by the assessee as well as the rates quoted by the projects being developed in the vicinity of the assessee: Sr. No. Shop No. Area (in sq.ft.) Total consideration as per Ld. AO(INR) Selling rate per sq.ft. 1 B09 463.32 70,35,000 15,184 2 D04 376.09 1,01,59,700 27,014 3 D05 331.83 81,08,000 24,424 4 D07 376.27 1,01,59,700 26,991 13. Similar arguments were made for other shops. It was further submitted that in his statement recorded u/s 132(4) of the Act, Shri Annuj Goel, partner of the assessee firm had completely denied the receipt of any on-money. Since Shri Annuj Goel is the final decision making authority and once he has denied to have received any on-money, no addition could have been made in absence of any corroborative evidence and merely based on the statement of Shri Shirish Ranpise recorded u/s 132(1). Various decisions were also brought to the notice of the Ld. CIT(A)/NFAC to the proposition that in absence of corroborative material and in absence of any enquiry made from the buyers of the flats, addition cannot be made in the hands of the assessee on account of any on-money received. 14. Without prejudice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs. 39,62 lakh has been received by Shri Annuj Gael in cash over and above the agreement price Rs 46L>7 per sq. ft. The actual rate is therefore worked out to Rs, 11007 per sq ft. which has been arrived after final negotiation. ii) In the same way, Shri Shirish Bhanudas Ranpise showed and explained the file of customer Shri Ramesh kumar Chhatraram Choudhary where the actual final negotiated price was Rs 10200/- per sq ft of sale area 695 sq ft of Shop No. B-09 in project Ganga Fernhill, Undri, Pune. The agreement was executed at Rs. 3700/- per sq ft and the balance amount of Rs. 6500/- per sq was received in cash over and above agreement to sale. Further, he explained that it is written in pencil that Rs. 13.5 lakhs has been received and for balance payment, time has been granted. Booking form of Mr. Rameshkumar C. Choudhary and relevant part of statement of Mr. Ranpise are reproduced hereunder. ..... Q.9 It is observed that the price quoted in respect of shops at Ganga Fernhill is around Rs. 13500 per sq. ft. of salable area and in the above case the same was finalized around Rs. 11007 per sq. ft. of salable area. However, the agreements were being executed on very low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking and agreement values in whose cases two booking forms were found. This was submitted along with his statement. Copy of the said differences was tabulated and made part of the statement of Shri Ranpise. The same is reproduced for ready reference. ..... Explanation of the details of cash component submitted by Shri Shirish Bhanudas Ranpise, Sales Manager, on the basis of two forms found in the files of the customers during the course of search action, as under. (a) In sale of Shop No. B-09 of Ganga Fernhill, the area of the shop is 695 sq ft. As per page no. 5 of bundle no 10 booking form-1, the agreement value is shown as Rs. 25,71,500 at the rate of Rs. 3700/- per sq ft. & agreement to sale is also executed on same amount. As per page no. 13 of bundle no 10 Booking form-2 found in the same file, the cash amount of Rs 45,17,500/- at the rate of Rs. 6500/- is mentioned, which is taken in cash over and above the amount of Rs. 25,71,500/- shown in agreement to sale. It is explained in detail at above para. (b) In sale of Shop No. D-04 of Ganga Fernhill, the carpet area of the shop is 380 sq ft. as per page no. 4 of seized Bundle no 4 and agreement amount mentioned here i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the case laws relied upon by the AO. However, the contention of the Appellant that during the case of the appellant the partners of the appellate have denied having received on money is nothing more than a feeble alibi. Also the contention of the appellant that and the statements of sales executives relied upon by the AO do not point out any modus operandi of accepting cash, is not found to be true. The sales executives have explained the modus operandi of accepting on money in depth. Accordingly, the view taken by the AO that the appellant has accepted on-money, which was not recorded in books of accounts is found to be correct and the action of the AO in determining the same to Rs. 2,20,38,200/- (Rs. 45,17,500+ Rs. 1,75,20,700) is hereby upheld for the year under consideration. Similarly, for AYs 2018-19 and 2019-20, the addition of 'on- money' income of Rs. 1,49,74,500/- and Rs. 3,36,95,925/-, respectively made in the hands of the appellant are also upheld. This ground of appeal is, therefore, dismissed." 16. Aggrieved with such order of the Ld. CIT(A)/NFAC, the assessee is in appeal before the Tribunal by raising the following grounds: 1. On facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncriminating material found during the course of search proceedings. The addition made over and above such incriminating material, being merely on the basis of estimations is unwarranted, unjustified and contrary to the provisions of the Act and therefore deserves to be deleted. It be held that the Appellant be granted just and proper relief in this respect. 3. Without prejudice to Ground No. 1 and 2 and on facts and circumstances prevailing in the case and as per provisions and scheme of the Act, it be held that the addition made by the Ld. AO and sustained by the First Appellate Authority is on a very high side. The same should be substantially reduced. The Appellant be granted just and proper relief in this respect. 4. The Appellant craves leave to alter, delete, modify, add or Nil amend any ground of appeal. ITA No.873/PUN/2024 (A.Y.2019-20) 1. On facts and circumstances prevailing in the case and as per provisions and scheme of the Act it be held that the First Appellate Authority erred in upholding the addition of Rs. 3,36,95,925/- made by the Learned Assessing Officer ('Ld. AO") as on-money received by the Appellant. The addition sustained is unwarranted, unjusti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the price as per agreement are decided by the Director and the customers, and he being the head of sales and marketing, has to play his role accordingly. He submitted that the statement of Shri Shirish Bhanudas Ranpise was recorded u/s 131 and the provisions of section 132(4A) are not applicable to the assessee. The Revenue has not taken the statements of any of the buyers to prove that they have in fact given any on-money over and above what is mentioned in the registered sale deed. 19. Referring to page 66 of the paper book, the Ld. Counsel for the assessee drew the attention of the Bench to a sample booking form and another booking form placed at page 68 of the paper book for the same flat and the same buyer where the signature of the director is available. He submitted that a perusal of pages 66, 67, 68 and 69 of the paper book would show that some negotiations were going on. Further in the draft booking form the rate per square feet mentioned is 6500 whereas in the booking form where the signature of the director is mentioned the rate per square feet is 3700. 20. In his alternate submission, he submitted that 6500 includes 3700 and the Revenue authorities could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made merely on the basis of statement recorded u/s 131 of the Act when no corroborative material is unearthed during search. 24. Referring to the decision of Pune Bench of the Tribunal in the case of Chander Mohan Mehta vs. ACIT (1999) 71 ITD 245 (Pune) and Mumbai Bench of the Tribunal in the case of DCIT vs. Kanakia Hospitality (P.) Ltd. (2019) 110 taxmann.com 4 (Mumbai-Trib.), the Ld. Counsel for the assessee submitted that the Tribunal in the said decisions has held that where the Assessing Officer relies upon statements or documents to corroborate the additions made, the said statement has to be read in totality and cannot be read in piece-meal. 25. Referring to the following decisions, the Ld. Counsel for the assessee submitted that no arbitrary addition to the income can be made based on the basis of dumb documents, loose papers containing scribbling, rough/vague notings, etc: i) PCIT vs. Umesh Israni (2019) 108 taxmann.com 437 (Bom) ii) CIT vs. Vatika Landbase (P.) Ltd. (2016) 67 taxmann.com 372 (Del) iii) CIT vs. Vivek Aggarwal (2015) 56 taxmann.com 7 (Del) iv) PCIT vs. Ajanta Footcare (India) (P.) Ltd. (2017) 84 taxman.com 109 (Cal) v) CIT vs. Atam Valves (P.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon'ble Bombay High Court in the case of Harish Textile Engrs. Ltd. vs. DCIT (2015) 379 ITR 160 (Bom) he submitted that the extrapolation on the basis of loose papers found during the course of search was upheld by the Hon'ble Bombay High Court. Referring to the decision of the Hon'ble Supreme Court in the case of Pooran Mal vs. Director of Inspection (1974) 93 ITR 505 (SC) he submitted that the Hon'ble Supreme Court in the said decision has held that even if the search is invalid, the evidences found during the course of search can be utilized for making addition. He also relied on the decision of Hon'ble Delhi High Court in the case of Balwant Singh vs. Director of Inspection (1969) 71 ITR 550 (Del), according to which information gathered as a result of illegal search and seizure can be used subject to the value to be attached to it or its admissibility in accordance with law relating to evidence. 30. The Ld. Counsel for the assessee in his rejoinder submitted that in the case of Harish Textile Engrs. Ltd. vs. DCIT (supra) it was accepted by the assessee that it has received on-money, whereas in the instant case the director/partner of the assessee firm has comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee was indulging in receipt of on-money, the Assessing Officer held that the assessee must have received on-money on account of sale of various other shops during the year. Since the assessee has sold 4 more shops and the component of on-money varies from shop to shop as per the consideration shown in the registered sale deed, the Assessing Officer assumed that the assessee was accepting the on-money to the tune of 80% of the total consideration as mentioned in the registered sale deed. He, therefore, made addition of Rs. 175,20,700/- to the total income of the assessee by extrapolating the same. 34. We find the Ld. CIT(A)/NFAC sustained the addition made by the Assessing Officer, the reasons of which have already been reproduced in the preceding paragraphs. It is the submission of the Ld. Counsel for the assessee that no such on-money has been received by the assessee which was denied by the partner of the assessee firm in the statement recorded u/s 132(4). Further, no statement of any of the buyers have been recorded either during the course of search or post search enquiries or during the course assessment proceedings. It is also his submission that no cash, jewellery or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Authorized Officer) (Annuj Umesh Goel) Q.1 Please identify yourself. Ans. My name is Annuj Umesh Goel s/o Shri late Umesh Sitaram Goel age 36 years R/o 701 & 702, Konark A Plus, Sopan Baug, Ghorpadi, Pune Sd/- Sd/- (Authorized Officer) (Annuj Umesh Goel) 411001. My educational qualification is B.Com. My contact no. is 9922992255. I would also like to state that I am well versed in Hindi and English and I am comfortable in giving the statement in English language. Q.2 Please confirm that oath has been administered to you and you are reminded that this statement is being recorded on oath and you have been made aware about the consequences of giving false statement on oath including penalties u/s 179 of IPC, sec 180 of IPC, sec 181 of IPC and sec 277A of the Income Tax Act. Sec 179 of IPC: Refusing to answer question Sec 180 of IPC: Refusing to sign the statement Sec 181 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ans. I am providing details of all bank account maintained by me and my brother Ankit Umesh Goel and all my firms as annexure 'B' to this statement. Q.8 Please provide trial balance of all your firms in which you have substantial interest as on 10/01/2019. Sd/- Sd/- (Authorized Officer) (Annuj Umesh Goel) Ans. I am providing you consolidated trial balance of all the firms in which I and my brother Shri Ankit Umesh Goel have substantial interest as annexure 'C' to this statement. As per this trial balance, total cash in hand is Rs. 1,18,73,957/-. Q.9 As per the trial balance submitted by you, it is showing cash balance position of Rs. 1,18,73,957/- but cash found at this business premise i.e. 5, San Mahu Commercial Complex, Bund Garden Road, Pune 411001 is Rs. 23,03,495/- only. Please explain the difference of Rs. 95,70,462/-. Ans. Rs. 25,09,860/ has been found at my residence i.e. 701 & 702, Konark A Plus, Sopan Baug, Ghorpadi, Pune 411001. Remaining amount of Rs. 70,60,602/-, I need to reconcile and will offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,23,00,549/- Q.14. Please identify Shri Shirish Bhanudas Ranpise? Ans. Yes, I know Shri Shirish Bhanudas Ranpise. He is working as HOD (Head of the Department), sales and marketing in my office. He has responsibility to look after sales of the Goel Ganga Developments Group. Q. 15. I am showing you statement of Shri Shirish Ranpise recorded under section 131 of the Income Tax Act 1961 on 10.01.2019. Please go through it and comment. Ans: I have thoroughly gone through the statement of Shri Shirish Ranpise recorded under section 131 of the Income tax Act 1961 on 10.01.2019 and I do not agree with the statement given by Shri Shirish Bhanudas Ranpise. There is no such procedure of my meeting with any customer as it is not possible to meet so many customers on daily basis. Q. 16. I am showing you working sheet prepared by Shri Shirish Ranpise (attached with his statement) on the basis of documents found and seized from your premises. Please confirm the same and explain the content of the same. Ans: I have gone through above said sheet. As per the procedure of my company, we do not have or follow any such method of form Booking 1 and Form Booking 2. I also state that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is also an admitted fact that nothing is brought on record to show that any of the buyer to whom the flats have been sold are related to the assessee. 38. We find the Hon'ble Madras High Court in the case of CIT vs. S. Khader Khan Son (supra) has held that section 133A of the Act does not empower any ITO to examine any person on oath. Therefore, the statement recorded u/s 133A of the Act has no evidentiary value and any admission made in such statement cannot be made the basis for addition. 39. We find the Hon'ble Kerala High Court in the case of Paul Mathews & Son vs. CIT (2003) 263 ITR 101 (Kar) has held that the provisions of section 133A of the Act does not empower any ITO to examine any person on oath and the statement recorded u/s 133A of the Act has no evidentiary value. 40. We find the Hon'ble Madras High Court in the case of CIT vs. P. Balasubramanian (2013) 354 ITR 116 (Mad) has held that the addition can be made on the basis of assessee's statement in survey only if it is supported by the relevant material to substantiate the same. 41. We find the Mumbai Bench of the Tribunal in the case of Smt. Madhu Gupta vs. DCIT (2006) 8 SOT 691 (Mum), has held that the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y comes to Rs. 5,40,000/-. 46. So far as the question of extrapolation for three assessment years is concerned, as stated earlier, neither the key person Shri Anuj Goel was confronted in his statement u/s 132(4) of the Act regarding the receipt of on-money nor any of the customers to whom the shops have been sold were either examined by the search party at the time of search or post-search enquiries nor any effort was made by the Assessing Officer to ascertain the sale of shops at higher price to the concerned buyers. It is also an admitted fact that no cash or valuables or any entry relating to any other expenditure out of such on-money was found during the course of search. Under these circumstances, we are of the considered opinion that addition for all the 3 years by extrapolating is not justified. 47. So far as various decisions relied on by the Assessing Officer as well as the Ld. CIT(A) are concerned, the same, in our opinion, are not applicable to the facts of the present case. In the case of Surendra M. Khandhar (supra), the Hon'ble Bombay High Court has held that where Xerox copy of document seized from the assessee was not denied the same showed advancement of cert ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
