TaxTMI 
TaxTMI 
2017 (11) TMI 1375
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....he addition of Rs. 2,71,00,000/- u/s. 69A of the Act made by the Assessing Officer without appreciating the fact that the addition has been made on the basis of evidences received during search and seizures u/s. 132 of the Act conducted on third party case and also after enquiries made by the department. 2. The appellant prays that the order of the CIT(A) on the above ground be reversed and that of the A.O be resorted. 3. The appellant crave leave to amend or alter any ground or add a new ground which may be necessary." 3. The Brief facts of the case are that the assessee is builder and developer . The assessee filed its return of income on 30-09-2008 which was processed by Revenue u/s 143(1). Information was received by the A.O from the JCIT(OSD) which led to reopening of the assessment u/s 147, wherein notice u/s 148 dated 24-09-2012 was issued by the AO and duly served on the assessee on 25-09-2012 . The reasons recorded for reopening of the assessment u/s 147 by the AO are as under: "Information was received from the office of the Jt. CIT (OSD), Central Circle - 39, Mumbai that a search & seizure action u/s.132 of the Act was carried out on 22.01.2009 in the case of M....
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....pment Charge"), it was revealed that M/s V M Constructions had made a land deal (LOI Stage) in respect of CIDCO plot (Sec.No.48, Plot No.5, Area - 2000) (CIDCO File No. is 50 as enquired from the CIDCO) in Dronagiri node for which M/s V M Constructions have received unaccounted cash of Rs. 2,71,00,000/- on 28.01.2008 (A.Y. 2008-09) Page no. 221 of Annexure A-3, seized and impounded indicates the payments received by M/s. V M Constructions. Since the assessee M/s. V M Constructions (PAN AAFFV4933L) has not shown these receipts of Rs. 2,71,00,000/-, I am satisfied that the income to that extent has escaped assessment in the hands of M/s. V M Constructions for A.Y 2008-09 and required to be taxed in its hands. In view of the above, your honour kind permission is sought as per the provisions of section 151(2) of the Act, to re-open the case of M/s. V M Constructions for A.Y 2008-09 u/s. 147 of the I.T. Act." The assessee submitted certain details and the A.O in order to verify the details , deputed ward inspector to visit the site to enquire and find out actual land rate in the area and give his report. The ward inspector submitted his report as under: "As directed by you, I ....
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....ls. It was found that the land in question is situated at plot no.5 in Sector-48 in Dronagiri Node of Navi Mumbai. The rate of the land in the Sector-48 in Dronagiri Node was in the range of Rs. 20,000/- per square meter to Rs. 25,000/- per square meter (Rs. 2,000/- per square feet to Rs. 2,500/-) . Accordingly, the assessee could have deal the above transaction in the range of Rs. 4,00,00,000/- to Rs. 5,00,00,000/- (Rs. 20,000 x 2000 and Rs. 25,000 x 2000). The assessee had shown the above transaction in Rs. 1,75,00,000/- in a rate of Rs. 8,750/- per square meter ( Rs. 812/- per square feet ). This fact established that ale assessee had received in cash in the range of Rs. 2,25,00,000/ to Rs. 3,25,00,000/ on the above deal land transaction. In view of the above, the assessee is hereby show caused as to why cash of Rs. 2,75,00,000/- received from Shri Madan Kolambekar on transfer of land at Dronagiri Node of Navi Mumbai as mentioned above should not be treated as its undisclosed income. You are asked to furnish your explanation, if any on 07.03.2014 at 03.45 P.M., failing which the assessment would be completed as mentioned above." The assessee submitted that the rate retri....
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.... the said plot which are elaborated in para 8 of the A.O order . The AO therefore made an addition to income of the assessee to the tune of Rs. 2,71,00,000/- u/s 69A vide assessment order dated 26.03.2014 passed by the AO u/s. 143(3) r.w.s. 147 of the Act on the grounds that the assessee has received cash of Rs. 2,71,00,000/- from Shri Madan Kolambekar on sale of plot admeasuring about 2000 square meters at plot no. 5, Sector-48, Dronagiri Node of Navi Mumbai which is not reflected in the return of income filed by the assessee with the Revenue and hence consequently nor offered for tax by the assessee. 4. The assessee carried the matter in appeal before the learned CIT(A) and challenged reopening of the assessment u/s 147 which grounds of appeal were dismissed by learned CIT(A). However on merits learned CIT(A) allowed the appeal of the assessee by holding as under, vide appellate order dated 07-10-2015:- "6.1 I have carefully considered the submissions of the appellant and I have also verified the assessment record. The A.O on receipt of the information, directed the Income Tax Inspector to make an enquiry in and around sector 48 of Dronagri Node, Navi Mumbai to ascertain the m....
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....lained money is deleted. The ground of appeal is allowed. The addition of Rs. 2,71,00,000/- as unexplained money is deleted. The ground of appeal is filed." 5. The Revenue has come in appeal before the tribunal being aggrieved by appellate order dated 07-10-2015 passed by learned CIT(A) giving relief to the assessee. It is the say of learned DR that there was a search and seizure operations conducted by Revenue u/s 132 on Madan Kolambekar Group on 22.01.2009 and simultaneously there was a survey conducted by Revenue u/s 133A on Jai Corp Group on 22.01.2009 . It was submitted by learned DR that search was conducted u/s. 132 on Jai Corp Group on 05.03.2009 . It was submitted that documents were seized during the search operations u/s 132 wherein document vide Annexure A-3 /page 221 (pb/76) was seized wherein there is a mention of payments of Rs. 2.71 crores being made to the assessee in cash on 28.01.2008 which was not offered for tax by the assessee. It was submitted that appraisal report was prepared by Revenue in the case of Mr. Madan Kolambekar group vide page no. 89 to 114 wherein there is a detail report as to cash paid to the assessee of Rs. 2,71,00,000/- . Similarly appr....
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....necessary enquiry in case the AO has not made the necessary enquiry during assessment proceedings as powers of learned CIT(A) are co-terminus with that of the AO . It was submitted that the matter can be set aside and restored to the file of the A.O for denovo determination of the issue on merits. 6. We have considered rival contentions and perused the material on record including case laws cited before us as well orders of authorities below. We have observed that assessee is builder and Developers . The assessee has sold Plot no. 5, sector-48 of Dronagiri Node , Mumbai admeasuring 2000 square meter to Shri Madan Kolambekar for Rs. 1.75 crores on 26.02.2008. The said agreement is placed in paper book/ page no. 19-26 . The said plot of land was purchased by the assessee on 20.12.2007 for Rs. 1.62 crores and agreement for purchase of the said plot of land is placed at page no . 1 to 9/paper book. There was search and seizure operations u/s 132 against Shri. Madan Kolambekar on 22.01.2009 and simultaneously survey operations u/s. 133A were conducted in the case of Jai Corp Group . Thereafter on 05.03.2009 search operation u/s. 132 were conducted in the case of Jai Corp Group . There ....