TaxTMI 
TaxTMI 
2016 (1) TMI 610
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....essee on 17-09-2010. In response to the notice u/s.153A of the Act, the assessee filed his return of income declaring total income of Rs. 10,27,530/- by offering additional income of Rs. 7,01,001/-. 3. During the course of assessment proceedings the AO noted that a Red Executive Diary as per Annexure-8 and a loose paper bundle marked as Annexure A/7 was found from the residential premises of the assessee. As per the above documents, the assessee has received cash receipts amounting to Rs. 19,00,000/- from Mr. Gulab & Mrs. Yogita Badgujar during the relevant assessment year, the details of the said cash receipts found & seized are as under : Sr. No. Page No. Of Ann. A/7 Date Name Amount (Rs. In lacs) 1 12 03-03-2006 Mr. Gulab & Mrs. Yogita Badgujar 9.00 2 10 13-02-2006 -do- 10.00 Total 19.00 4. On being questioned by the AO, it was explained by the assessee that the impugned amount was received by him in his capacity as director of M/s. Suyojit Infrastructure Ltd. (presently known as M/s. Suyojit Infrastructure Pvt. Ltd.) and for and on behalf of the partnership firm M/s. Suyojit Baug as....
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....0-08-2006 between M/s. Suyojit Baug, a partnership firm, through its partner M/s. Suyojit Infrastructure Pvt. Ltd. as one part and M/s. Gulab Maharu Badgujar (HUF) as other part of the agreement in respect of proposed sale of Shop Nos. L-1 & L-2 to be constructed on Survey Nos. 643B, City Survey No. 614B, F.P. No.127, TPS-I. The total consideration as per the said MOU dated 30-08-2006 against the proposed sale of said shops was Rs. 2,16,00,000/- and out of the same Rs. 19 lakhs were received by the assessee on behalf of M/s. Suyojit Baug during the year. The said amount of Rs. 19 lakhs was received as advance against sale of shops on behalf of M/s. Suyojit Baug in the capacity of Director of the company M/s. Suyojit Infrastructure Pvt. Ltd. and the company M/s. M/s. Suyojit Infrastructure Pvt. Ltd. in turn is the partner in the said partnership firm M/s. Suyojig Baug. The said advance received from M/s. Gulab Maharu Badgujar HUF was accounted in the books of account of M/s. Suyojit Baug, the partnership firm. It was also explained to the AO that said amount of advance received from Gulab Maharu Badgujar (HUF) during the impugned year is not an income of M/s. Suyojit Baug as well as....
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.... in the books of account of the appellant because the said amount was received by the appellant on behalf of M/s. Suyojit Baug and the appellant was not connected with the said transaction in his individual capacity. The heavy reliance of the A.O. on the disclosure during the statement recorded of the appellant u/s. 132(4) of the impugned receipts as income is incorrect on the face of the transaction and also when the said statement is withdrawn by the appellant by way of an affidavit. The Ld. A.R. has correctly pointed out that there is no estoppel against the statute and what is otherwise not taxable cannot become taxable because of the admission of the assessee. Therefore, the A.O. is not justified in making the impugned addition of Rs. 19,00,000/- being amount received from Mr. & Mrs. Badgujar as the same is a liability and not income particularly when the said transaction is disclosed by Mr. & Mrs. Badgujar in their respective financial statements as advance given for purchase of shops in view of above, the impugned addition of Rs. 19,000/- is unjustified and is directed to be deleted. This ground of appeal No.1 is allowed." 10. Aggrieved with such order of the CIT(A) the R....
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....ubstantiate its case, as the occasion may demand." 11. The Ld. Departmental Representative strongly challenged the order of the CIT(A). He submitted that during the course of search incriminating documents as per Annexure A8 which is a Red Diary and Annexure A7 which is a loose paper Bundle were found from the residence of the assessee. The loose Bundle contains cash receipts issued by the assessee which is a direct evidence. The cash receipts were issued and signed by the assessee and were not recorded in his regular books of account. The CIT(A) ignored the evidence on record. Further, the assessee in his statement recorded u/s.132(4) of the I.T. Act during the course of search in reply to specific question No.37 has accepted that cash receipts had been issued and signed by him and further accepted the same as unaccounted business receipts. Subsequently, the assessee in his reply to Question No.6 had voluntarily surrendered Rs. 2.98 crores as additional income for the current year. Since the receipts are specific and not recorded in the regular books of account and reflects the entire transactions of unexplained receipts, therefore, the subsequent retraction of the assessee is ....
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....for the assessee submitted that the Hon'ble High Court in the said decision has held that there is no estoppel against statute. What is not otherwise taxable cannot become taxable because of admission of the assessee nor there can be any waiver of the right otherwise admissible to the assessee in law. The chargeability is not depending on the admission of or waiver by the assessee. Chargeability is dependent on the charging section which needs to be strictly construed. He accordingly submitted that the order of the CIT(A) being in accordance with law should be upheld and the grounds raised by the Revenue should be dismissed. 14. We have considered the rival arguments made by both the sides, perused the orders of the AO and CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find in the instant case during the course of search a diary as per Annexure A8 was found from the residential premises of the assessee. Similarly, loose paper Bundle marked as Annexure A7 was also found. The seized documents contain the cash receipts issued by the assessee to Mr. Gulab & Mrs. Yogita Badgujar amounting to Rs. 19 lakhs fo....
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....fit Sharing Ratio Capital Account as on March 31, 2008 Capital Account as on March 31, 2007 Suyojit Garden 96% 223008728 229039126 Suyojit Biotech 90% 7816295 2325274 Suyojit Baug 90% 10246768 0 Suyojit BOT 96% 26273566 26390 Total 267345357 231390790 16. We find the AO in the assessment proceedings for A.Y. 2005- 06 to 2010-11 u/s.153A r.w.s 143(3) in the case of Ms. Suyojit Infrastructure Pvt. Ltd. has also asked the Managing Director of Suyojit Infrastructure Pvt. Ltd. regarding the MOU dated 09-07- 2006. The relevant queries raised by the AO are as under : "7. Pages 85 to 87 is a MOU dated 09-07-2006 (Stamp Paper No.06AA 6613165 between you and Shri Gulab M. Badgujar. As per this agreement you had agreed to transfer on rental basis of Shop No.G-44 to G-53, admeasuring 4,000 sq.ft. in Suyojit YEWS Compled for a sum of Rs. 1.20 crores, out of which sum of Rs. 15 Lacs was received by you on 09-07-2006 and balance amount was receivable by monthly instalments. Please explain whether the above transaction has been accounted in your regular books of accounts. If yes, furnish copy of relevant ....
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.... "17. The question of estoppel because of option exercised with eyes open to the subsequent modification cannot be sustained. What is not otherwise taxable cannot become taxable because of admission of the assessee. Nor there can be any waiver of the right otherwise admissible to the assessee in law. The chargeability is not dependent on the admission of or waiver by the assessee. Chargeability is dependent on the charging section, which needs to be strictly construed. Referring to the decision in CIT v. Bhaskar Mitter (1994) 73 Taxman 437 (Cal) at p. 442 (paragraph 8), we had occasion to so hold in the decision in Maynak Poddar (HUF) v. WTO (IT Appeal No. 84 of 1998, dated 24-2-2003)." 20. In view of the above discussion and in view of the detailed reasoning given by the Ld.CIT(A) we find no infirmity in his order deleting the addition of Rs. 19 lakhs in the hands of the assessee. The order of CIT(A) is therefore upheld. Accordingly, the grounds raised by the Revenue are dismissed. ITA Nos. 1684 and 1685/PN/2013 (A.Yrs. 2007-08 & 2011-12) : 21. Identical grounds have been taken by the Revenue in ITA No.1684/PN/2013 for A.Y. 2007-08 and for A.Y. 2011-12. Following the sa....
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....the impugned payment is made on 21/08/2010 when no such direct meaning is attributable to the SMS. A plain reading of the said SMS reveals the payment of impugned amount to Mr. Bhatt and nowhere the said SMS contains that the impugned payment is made on 21/08/2010. Further, the SMS also does not contain anything about who is the payee particularly when the appellant is a director in many companies and also actively involved in day to day transactions of other companies or concerns. Therefore, the A.O. is not justified in making the impugned addition without bringing on record that the impugned payment was made on 21/08/2010 and that too by the appellant and in absence of any material on record the impugned addition of Rs. 2,00,000/- made by the A.O. is unjustified and is directed to be deleted. This part of ground of appeal is allowed. 6.2.1 As regards the another SMS of the same date of Rs. 3,37,500/- being paid to D.P., the same is claimed to be paid to Mr. Dwarka Prasad Agarwal, i.e. employee of M/s. Suyojit Infrastructure Pvt. Ltd. for making payment to departmental labour. This addition is also not justified for the same reasons as mentioned hereinabove because the co....
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....ly M/s. Suyojit Infrastructure Pvt. Ltd and also Mr. Dwarka Prasad Agarwal is employee of M/s. Suyojit BOT. In such circumstances the A.O. is not justified in assessing the same in the hands of assessee when the assessee is not having any financial transactions with these persons in his individual capacity. It is also a fact that no evidence is found during the search action or in the post search inquiries to support the stand of the A.O. However, the contentions of the assessee are supported by the audited books of accounts of the assessee as well as agreement, etc. 29. We have considered the rival arguments made by both the sides, perused the orders of the AO and CIT(A) and the paper book filed on behalf of the assessee. We find the AO in the instant case made addition of Rs. 5,37,500/- being unexplained expenditure on the ground that there are certain payments as per the SMSs which were not recorded in the books of account. Even if certain amounts were recorded in the books of accounts, the dates are not tallying, i.e. there is mismatch between the dates of SMSs and the dates of recording in the books of account. We find the Ld.CIT(A) deleted the addition on the ground that t....