2019 (1) TMI 2084 - AT - Income Tax

Receipt of on-money from flat sales: tribunal sustains addition for undisclosed profit and remands factual accounting to AO for determination.

Admissibility of sworn statements recorded during search was upheld where there was no evidence of forced surrender or retraction, and the assessee ... Addition of 'on money' receipt from sale of the flats - rate of gross profit applied by the ld. CIT (A) @ 22% as against 13.02% declared by the assessee in its return of income - Admissibility and evidentiary value of statements recorded during search - in view of sworn statement of the director of the assessee’s company recorded u/s 132(4) and in view of the admission made in the said statement addition made - HELD THAT:- From the perusal of the statement, there is nothing which demonstrates that there is any forced surrender by the assessee and nothing has been brought on record in terms of any circumstantial evidence of forced surrender. On perusal of the statement, there is nothing which any ways suggest that what the assessee has admitted is only the profit on receipt of on-money and not the receipt of on-money. Similar finding has been recorded by the Assessing officer and which has not been disturbed by the ld. CIT (A) and we see no reason to disturb the said findings. Therefore, in absence of any retraction and where the assessee continues to maintain his position that it still abides by the statement, the contention of the ld. AR has no legal leg to stand where he contends that the Revenue authorities have exerted undue pressure and obtained surrender of income. In absence of any retraction, the assessee is therefore clearly at fault in not declaring the undisclosed income fully in its return of income. Transactions relating to receipts of sale consideration (including the on-money) and incurrence of the expenditure - In the instant case, the AO has given a finding that on the date of search, the assessee company has booked all the expenses incurred in its project and no reason has been furnished by the assessee company for non-booking of the said ‘On Money’ received in the books of account, which he received from Month of May to December for the F.Y. 2012-13 relevant to A.Y. 2013-14. CIT (A) has however returned a contrary finding that “from the submissions of assessee, it is evident that evidence of incurring of expenses were not available in the seized documents/material but the fact was that only a part of expenditure pertaining to the “on money” had already been booked in the regular books and not all the expenditures.” Therefore, it is at least not a case of complete nonreporting of transactions relating to sale of flats in the books of accounts and certain transactions relating to the same have been reported in the books of accounts. However, in order to determine the actual position relating to receipt of sale consideration and booking of expenses in the books of account relating to this particular project namely “Aashrirwad Aanandam”, nothing has been brought to our attention or submitted as part of the paper book by either of the parties. Therefore, in order to determine the actual position of transactions so recorded in the books of accounts of the assessee’s company in respect of project “Aashrirwad Aanandam”, the matter is set-aside to the file of the Assessing officer. Issues: (i) Whether the entire 'on money' receipts of Rs. 1.35 Crore can be assessed to tax as income or only the profit element on such receipts; (ii) Whether the admissions recorded under section 132(4) and confirmed under section 131 bind the assessee so as to justify assessment of the entire on-money receipt; (iii) Whether the matter requires remand for detailed examination of receipts and corresponding expenditure in books of account.Issue (i): Whether the entire on-money receipt is taxable as income or only reasonable profit thereon is taxable.Analysis: The Tribunal reviewed the assessment officer's addition treating the entire on-money as income and the appellate decision applying a gross profit (GP) rate to tax only a profit element. It noted precedents and principles that receipts characterized as 'on money' may not necessarily equal taxable income and that a reasonable GP rate can be applied where appropriate. The record, however, did not contain comprehensive material showing the full pattern of receipts and corresponding project-related expenditures for the specific project; parties did not place detailed accounting of receipts versus expenses for that project before the Tribunal.Conclusion: The whole of on-money need not automatically be taxed as income; only a taxable profit element may be brought to tax, but an accurate determination requires examination of project-specific receipts and expenses by the Assessing Officer.Issue (ii): Whether admissions recorded under section 132(4) and confirmed under section 131, without retraction or evidence of coercion, warranted taxing the entire amount.Analysis: The Tribunal observed that the director recorded a surrender in the search statement and confirmed it subsequently; no contemporaneous circumstantial evidence of coercion or retraction was placed on record. While recognising Board instructions and case law cautioning against relying solely on compelled confessions, the Tribunal found no material on record demonstrating forced surrender or later retraction by the assessee. The Tribunal therefore accepted that the admissions remained un-retracted but emphasised that admission alone does not substitute for a factual enquiry into whether receipts were income or merely receipts with corresponding expenditure.Conclusion: The un-retracted admissions are relevant but not conclusive to assess the entire on-money as income without a substantive enquiry into books and project expenditures; the absence of proven coercion means the admission stands but does not foreclose further factual investigation.Issue (iii): Whether the matter should be remanded for fresh factual determination by the Assessing Officer.Analysis: The Tribunal found conflicting findings between the AO and the CIT(A) on whether expenses pertaining to the on-money were fully reflected in seized material and books; the paper-book did not conclusively establish the position of receipts and corresponding expenditures for the project. Accurate taxability of on-money versus profit element therefore required verification of project-wise entries, receipts of sale consideration (including on-money) and incurrence/booking of related expenditures.Conclusion: The matter is remanded to the Assessing Officer to examine all transactions relating to receipts of sale consideration (including on-money) and related expenditures, and to determine taxability for the assessment year accordingly.Final Conclusion: The Tribunal upheld that only the profit element of on-money may be assessable in principle, found the director's un-retracted statements relevant but not determinative, and remitted the matter to the Assessing Officer for detailed factual examination and fresh adjudication of taxability.Ratio Decidendi: An un-retracted admission recorded during search/post-search is relevant evidence but does not obviate a factual enquiry into whether receipts constitute taxable income or are offset by corresponding expenditures; where the books and seized material do not conclusively establish receipt-versus-expenditure for a project, the matter must be remanded to the Assessing Officer for determination applying a reasonable method (such as gross profit rate) based on project-specific accounts and evidence.