9911796707
TMI Blog1998 (8) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... eties viz., Jalaram Jyot Co-op. Housing Society and Ashish Nagar Cooperative Housing Society who respectively constructed Uday Deep and Uday Jyot multistoreyed apartments near Uma Bhuvan, Bhatar Road, Surat. The assessee was also undertaking the booking of flats on behalf of the two societies, viz., Jalaram Jyot Cooperative Housing Society and Ashish Nagar Jyot Cooperative Housing Society. In the building constructed byJalaram Jyoti Cooperative Housing Society, there were 40 flats each having a covered/built up area of 1,251 sq. ft. In the building constructed by Ashish Nagar Cooperative Housing Society, there were 20 flats having area of 1,251 sq. ft. and another 20 flats having area of 1,210 sq. ft. Both the projects are commonly known by Uday Nagar and total built up area of the two projects was 99,290 sq. ft. 4. There was a search and seizure operation under s. 132(1) against one Shri Madhavji D. Patel the architect and builder on 4th July, 1996. Since Shri Madhavji D. Patel was architect of Uday Towers, the consequential search was also conducted under s. 132(1) of the Act against the assessee on 4th July, 1996. In the course of statement recorded by the authorised officer u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see and relying on the decision of the Supreme Court in the case of CST vs. Esufali Abdulali 1973 CTR (SC) 317 : (1973) 90 ITR 271 (SC) held that it was the assessee who was charging 'on money'/premium of Rs. 190 per sq. ft. from the purchasers of flats in the project of Uday Towers and since the documents were executed indicating the sale rate of Rs. 265 per sq. ft., the AO held that the assessee must have charged 'on money'/premium amounting to Rs. 1,88,59,400 for the entire project of Uday Towers comprising of the built-up area of 99,290 sq. ft. and after giving credit of Rs. 30 lakhs declared in the return filed under s. 158BC, the AO made an addition of Rs. 1,88,59,400. The above addition has been challenged by the assessee in appeal before us. 6. Shri Rasesh Shah, the learned representative of the assessee, submitted that the facts broadly mentioned by the AO in the assessment order are not disputed. He however submitted that Shri Uday Tejani in his statement recorded under s. 131 on 23rd July, 1997, in reply to question No. 3 stated that the seized paper on the basis of which addition had been made relates to the flats 704 and 804 in Uday Towers which were sold through Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried out by Shri Madhavji D. Patel as the same details were mentioned in the seized paper also. It was submitted that the above observations of the AO are factually incorrect as Shri Uttam Chand Jain was never summoned and he has not given any statement to the AO on his own motion or on summons issued by the AO. In this connection the learned representative of the assessee submitted that Shri Uttam Chand Jain has filed an affidavit denying that any statement from him was taken by the AO under s. 131 and he also denied having paid any 'on money'/premium in respect of the flat purchased by him. It was further submitted that the alleged paper was not found from the possession of the assessee and so the presumption under s. 132(4A) of the IT Act, 1961 or presumption under the provisions of Evidence Act cannot be drawn against the assessee. He accordingly submitted that the entire addition made by the AO is required to be deleted. Reliance was placed on the decision of the Bombay High Court in the case of Addl. CIT vs. Miss Lata Mangeshkar (1974) 97 ITR 696 (Bom) and the decision of the Tribunal in the case of Asstt. CIT vs. Prabhat Oil Mills (1995) 52 TTJ (Ahd) 533 and the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO and submitted that in view of the decision of the Supreme Court in the case of Esufali Abdulali the AO was perfectly justified in holding that the assessee was receiving 'on money'/premium in respect of the flats sold by him either directly or through Shri Madhavji D. Patel and since the premium of Rs. 190 per sq. ft. was apparent from the seized paper found from the premises of Shri Madhavji D. Patel who was architect of Uday Towers constructed by the assessee and who admitted having received 'on money' premium of Rs. 190 per sq. ft. on behalf of the assessee, the AO was perfectly justified in making the disputed addition of Rs. 1,58,59,400 and thereby determining the undisclosed income for the block period at Rs. 1,88,59,400. As regards the alternative submissions of the learned representative of the assessee relying on the decision of the Tribunal in the case of Gurubachan Singh J. Juneja, it was submitted that the said decision has not been accepted by the Department. 9. We have considered the rival submissions and have also gone through the order passed by the AO. In view of the factual finding in the form of a paper during the course of search of Shri Madhavji D. Pate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
