TaxTMI 
TaxTMI 
2014 (2) TMI 304
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....31,02,000/- which was based on a document, i.e. page No. 37 of Annex-A-57, seized during the course of search and the conclusion about its contents drawn by the A.O. was also corroborated by other seized documents (page No. 142 of Annex.A-24 & Page No. 77 of Annex.-A-40). 3. On the facts and in the circumstances of the case, the Ld. CIT(A), Central, Jaipur has erred in law as well as on facts in deleting the addition based on the conclusion of the A.O. derived from contents of a document despite the fact that the contents were wrongly explained by the Assessee under section 131(1) of the IT Act as subsequently admitted in an affidavit. 4. On the facts and in the circumstances of the case, the Ld. CIT(A), Central, Jaipur has erred in law as well as on facts of the case in deleting the addition of Rs. 1,31,02,000/- in spite of the fact that even the changed explanation of the assessee about the contents of the seized documents submitted in the affidavit also proved wrong from the contents of certain other seized documents. 5. The appellant craves the right to amend alter or add to any of the grounds of appeal given above." 3. The grievance of the department in this appeal relates....
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....d addition made by Assessing Officer was deleted. Findings of Ld. CIT (A) have been recorded in paras 5.1 to 5.10 at pages 42 to 51 which are as under :- " 5.1 I have carefully considered the written submission and paper book filed by the AR of the assessee, assessment order, remand report, the material available on record and cases citied by both the parties. On perusal of assessment order, I find that the AO has finally made the addition of Rs. 2,61,66,611/- by applying the provisions of section 69B of Income Tax Act. From the assessment order, I find that the AO has made the addition on the basis of noting available on the seized page 37 of Exhibit A-57, seized from 73-74, Talkatora Jaipur. The AO has also referred another seized papers page 142 and 159 to 161 of Annexure A-24 (Pushp Garden)/page 73- 76 of Annexure A-40 (Bhavgarh) seized from 73-74 to support her view that the market value of the properties is not mentioned over the seized Page 37 of Exhibit A-57. The AO further mentioned that the Shri Pawan Lashkary has made incorrect statement in the post search inquiry, wherein he stated that area of the land is mentioned under column 4 of the Page 37 of Exhibit A-57. The AO....
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....land. It appears that the assessee group has quoted Rs. 13000/- per Sq yard for 17534 Sq. yard land in Pushp Garden. Therefore this paper does not indicate the cost of the land but quotation for the land rate for joint venture purpose. The seized paper 159 to 161 of Annexure A-24 and Page 73-76 of Annexure A-40 is the projection for the joint venture for Pushp Garden and Bhavgarh scheme respectively prepared by some developer and apparently given to Sh. Lashkary as proposal for discussion. On page 161 of Annexure A-24 working for land area, built up area, cost of land, cost of building, marketing expenses, administrative expenses etc are estimated/ projected for joint venture. At bottom of the page 20% is mentioned against cost % to be paid upfront to owner. The total land area is taken 17534 sq yards and land cost is taken Rs. 13000/- per Sq yards and total cost of the land is taken Rs. 22,79,42,000/-on this seized paper. On page 160 of the seized Annexure A-24 projection is made for inputs, costings and revenues. On page 159 of the seized Annexure A-24 projection was made for Fund Flow assuming all the flats are sold within 6 months. In this paper land expenses are taken Rs. 4,55....
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.... venture project is crystalised ). If we read the above details carefully, we find that the assessee wants to say the market value of the land to be credited in its account for joint venture purpose, which cannot be full value of the land in joint venture cases. It is common practice of the trade that the land owner is paid part amount of the value of the land in cheque/cash and balance against the land value is payable by sharing the construction area in between the developer and land owner. 5.5 Without prejudice to above, it may be mentioned that in fact, out of various papers referred by the A.O. in the assessment order, earlier the A.O. has mainly relied on page no. 159 of Ann. A-24, wherein as per the A.O., the land expenses of Rs. 455,88,400/- is mentioned and the A.O. has given show cause letter dated 30.11.2010 to the appellant that the document Ann. A-24/159 is part of the Pushp Garden Group Housing Scheme and land expense are written as Rs. 4,55,88,400/- In the light of above, assessee was required to show cause why should not differential amount i.e Rs. 4,55,88,400/- - Rs. 1,50,91,463/- (i.e the recorded amount) be added back as undisclosed expenditure for the year. Ev....
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....the two figures namely '400'metnioned on page 37 of Ann. A-57 and Rs. 4.55 crore as per page 159 to 161 of Ann..A-57, the assessee has replied vide letter dated 11.12.2010, the relevant para of which is as under:- "As regard page 37 of Exhibit A-57 (seized from 73-75 Tal Katora, Jaipur), we would like to mention here that this page was prepared at different point of time at the time of negotiation with some other party and some figures/notings were written on this paper during the discussion with some other party and figure mentioned in column no 4 represents to amount offered for credit in assessee's capital account against the land contribution by the assessee (or say upfront price); if the joint venture/collaboration is made on the sharing basis mentioned in column no. 1. The upfront price and sharing ratio depends on several factors such as reputation of developer, nature and quality of development work to be carried out by the developer, involvement of investment by developer, expected profit from the share received by the owner in the built up area, period of completion of project, size of project, expected FAR from JDA, expected availability of height etc. Thus, the upfront....
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.... the impugned page and also could not correlate them with other entries on this page. Similarly, the A.O. has treated the entry in column no. 4 as the cost price of the land without any correlation or justification or the basis for the same, after just merely rejecting the explanation of these entries given by appellant. 5.9 I agree with the argument of the ld. A.R that for making addition u/s 69 B, the onus is on the department to prove positively that the appellant has made unaccounted investment and this onus cannot be discharged merely by rejecting the explanation given by the appellant. Such addition to be made u/s 69 B is contradistinct from the claim of the deduction or allowance made by the assessee wherein the addition can be made if the evidence so furnished or explanation so given by the appellant is found to be lacking or incorrect/rejectable. In the case of addition u/s 69, the A.O. has to bring positive material to establish unaccounted investment/payment. In the instant case, no positive material could be brought out on record to establish that the impugned seized page in column no. 4 reflects the actual cost of the properties named in column no. 3. 5.10 The AO has....
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.... the figure of 22.5 mentioned in the column no. 1 nor the figure mentioned in column no. 3 as per books of account. Therefore, there cannot be a presumption that figure of 400 mentioned in column no. 4 is figure of cost of land purchased by assessee. There must be some corroborative evidence to hold that this figure is related to cost of the land purchased by the assessee. We are not repeating the explanation/findings of ld. CIT (A) as finding of ld. CIT (A) in its entirety have been reproduced in the above para of this order. However, as stated above, the findings of ld. CIT (A), in our considered view, are findings of fact which does not require any interference. 8.1. The ld. CIT (A) also found that the cases relied upon by AO were not relevant on the facts of the present case whereas cases relied upon by ld. Counsel of the assessee are in support of the case. The ratio of all these cases have also been reproduced somewhere in the order of ld. CIT (A) which is also part of this order. In view of the above facts and circumstances, we find no infirmity in the findings of ld. CIT (A) who has deleted the addition made by AO by holding that he has not brought any material to make any....