TaxTMI 
TaxTMI 
2015 (6) TMI 282
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....d. CIT(A) has erred in law and on facts in relying on irrelevant materials, theoretical premises, surmises and conjectures regarding the on money receipts and commission payments made by the assessee concern. 4. The Ld. CIT(A) has erred in law and on facts in law in making erroneous interpretation of relevant facts and improperly rejecting admissible evidence. 3. The facts of the case are that search and seizure operation u/s 132 of the Income-tax Act, 1961 was carried out at the residential and business premises of the Malde group concerns on 24.09.2008. The assessee is one of the group concerns of Malde group. During the accounting year relevant to assessment year under consideration, the assessee-company paid commission to Shri Atul Premji Malde whose statement was recorded u/s 132(4) on 24.09.2008 and also on oath u/s 131 on 12.12.2008. In those statements, Shri Atul Premji Malde stated that he received 1% commission on the flats sold by him. From the computer data impounded from the office of Shri Bharat Malde, Director of the assessee-company, following details of the flat sold and commission paid to Shri Atul Premji Malde was found:- Atul P. Malde - Details of....
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....s of accounts have not been rejected for applying the comparative G.P. of another project. The Assessing Officer, without any basis, has doubled out the sale value of the flats on the basis of commission payment to Shri Atul P. Malde. At the most, he could have questioned the genuineness of excess commission of 1% paid to Shri Atul P. Malde because for booking the flats in the same project in A.Y.2005-06 and A.Y.2007-08, the commission @ 1% was paid on sale of all flats. 6. In view of the above facts and circumstances of the case and evidences on record, it is held that the Assessing Officer has made addition of "on money" for Rs. 2,42,24,700/- without any evidence found in search proceedings or collected during post search enquiries or during assessment proceedings, on any of the flats sold through Shri Atul P.Malde. Even no statement was recorded on sale value of any of the flats. It is therefore, held that the addition of Rs. 2,42,24,700/- was unjustified and without any basis, hence the same is deleted. 5. The Revenue, aggrieved with the order of the CIT(A), is now in appeal before us. 6. At the time of hearing before us, it is submitted by the ld. Departmental Represe....
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.... Bharat Malde has clarified that the commission paid to Shri Atul P. Malde was 2% and out of which he passed on 1% to other sub-brokers. Therefore, what he stated is the net commission. It was also submitted by the ld. Counsel that the statement of Shri Atul P. Malde was recorded behind the back of the assessee and the assessee specifically requested during the course of assessment proceedings to allow opportunity to cross-examine Shri Atul P. Malde. However, the Revenue did not allow any opportunity of cross-examining Shri Atul P. Malde. The ld. Counsel also pointed out from the CIT(A)'s order that the assessee sold flats/shops at the same rate in the preceding and subsequent years and the Revenue accepted the same. How in respect of same flats or shops the assessee is able to take the money double than the rate at which the flats were sold in the preceding and subsequent years? He, therefore, submitted that the order of the CIT(A) is perfectly justified and the same should be sustained. 8. We have carefully considered the arguments of both the sides and perused the material placed before us. After considering the facts of the case and arguments of both the sides, we do not fin....
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....wal (Shop) 3000 3000 -- From the above, it is evident that the assessee sold the flats in various projects at the same rate in A.Ys. 2005-06, 2006-07 and 2007-08. The Revenue has accepted the sale rates of flats in all the years, except sale of 30 flats sold through Shri Atul P. Malde in the year under consideration. It cannot be believed that the assessee sold 30 flats at double the rate then the sale rate of same flats to others in the preceding year, current year and subsequent year. 9. In view of the totality of the above facts, in our opinion, the CIT(A) was fully justified in deleting the above addition made by the Assessing Officer on the basis of the statement of Shri Atul P. Malde which was recorded behind the back of the assessee and moreover, which was retracted by himself within 4 days from the date of giving of his statement. We, therefore, uphold the order of the CIT(A) and dismiss the appeal filed by the Revenue. 10. In the Cross-objection, the assessee has raised the following grounds:- 1. The learned CIT(A) has erred in law & in facts making disallowance of commission of Rs. 242305/- which is at 1% of sales value as ag....