TaxTMI 
TaxTMI 
2018 (9) TMI 1686
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....eal in Form No. 36: "1. That on the facts and in the circumstances of the appellant's case the learned Commissioner of Income Tax (Appeals) erred both in fact and in law in confirming disallowance of expense of Rs. 53,00,00,000/- claimed as per Debit Note issued by M/s Jasmine Buildmart Private Limited made by AO without appreciating the fact that the appellant has made payments to them through proper banking channel against the said debit note. 2. That on the facts and in the circumstances of the appellant's case, the learned Commissioner of Income Tax (Appeals) erred both in fact and in law in confirming disallowance of expense of Rs. 53,00,00,000/- claimed as per Debit Note issued by M/s Jasmine Buildmart Private Limited made by AO on the basis that the appellant has not asked for cross examination of Shri Amit Katyal. 3. That on the facts and in the circumstances of the appellant's case the learned Commissioner of Income Tax (Appeals) erred both in fact and in law in confirming disallowance of expense of Rs. 53,00,00,000/- claimed as per Debit Note issued by M/s Jasmine Buildmart Private Limited made by AO only on the basis that the said debit note was not found at the ....
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....- 1, Faridabad. This fact is also not in dispute as the same finds place in the body of the assessment order itself. The Assessing Officer, in his order mentions that the seized documents in the group were received in the Circle on 29.08.2013. As per the proviso to section 153C of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short], reference to the date of initiation of the search u/s 132 of the Act shall be considered as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such person. Therefore, in the case of the assessee, since the date of receiving the search documents is 29.08.2013, as per the said proviso, the date of search would be 29.08.2013. 7. The Assessing Officer has proceeded against the assessee on the wrong premise that the assessment year under consideration is the year of search whereas the assessment year should be 2014-15, FY 2013-14. Therefore, the year under consideration is one of the six assessment years to be considered in the cases of search. The issue of notice u/s 153C of the Act becomes mandatory. The assessee has consiste....
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.... the following authorities, these additional grounds deserves to be admitted:- NATIONAL THERMAL POWER CO. LTD. 229 ITR 383 (SC) GEDORE TOOLS PVT. LTD., 238 ITR 268 (DEL.) 5. That without prejudice, the issues covered in these additional grounds are covered in G.N. 1 and G. N. 2, as taken initially in Form - 36 also, however, these have been taken specifically only as a matter of abundant precaution and to meet out the situation in case the Hon'ble Court is of the opinion that the same are not covered in Ground Nos. 1 & 2 as initially taken." 11. The relevant findings of the co-ordinate bench read as under: "8. It is not in dispute that search was conducted on Krrish Group of cases on 09.11.2011. The impounded documents have been received by the A.O. on 29.08.2013. The satisfaction under section 153C have been recorded on 03.10.2013. The A.O. passed the assessment order under section 153B(1)(b) of the I.T. Act, considering the assessment year under appeal i.e., A.Y. 2012-2013 to be the year of search. However, the First Proviso to Section 153C of the I.T. Act provides that the 06 assessment years for which assessments or re-assessments could be made under section 153C of t....
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....nal grounds as have been considered in the case of M/s. BNB Investment and Properties Ltd. Following the reasons for decision in the case of M/s. BNB Investment and Properties Ltd., (supra), we admit the additional grounds of appeal, set aside the orders of the authorities below and quash the same. Resultantly, delete the entire addition." 13. The appellant being one of the Krrish Group and facts are identical to the facts considered and decided by the co-ordinate bench [supra], we have no hesitation in following the finding of the co-ordinate bench. We decide accordingly. 14. However, we would not like to rest the case here. For the sake of completeness of the adjudication, we will now consider the merits of the additions. 15. The bone of contention is the disallowance of expenses of Rs. 53 crores. The under lying facts in issue are that the appellant company had bought 12.13 acres of land at village Gawal Pahari, Tehsil Sohna, District Gurgaon, Haryana from various parties. The assessee obtained a license for development of group housing project on the said land with a permissible area of 8,50,000 Sq ft. from the Director, Town planning (DTCP). Thereafter, the assessee entere....
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..../2011-12 182043957 8 29-12-2011 EDC 32169000 Outstanding to be paid as per Memo No. ZP- 513/JD(BS)/2011/20159 dt 29- 12-11 of DTCP 32169000 9 29-12-2011 Enhanced EDC 35305000 Outstanding to be paid as per Memo Nd. ZP- 513/JD{B$)/2011/20159 dt 29- 12-11 of DTCP 36305000 10 12-5-2012 EDC and Enhanced EDC 33935000 Paid by Draft No.987920.Date 12.05.2012 of Punjab National Bank 33935000 11 12-5-2012 EDC and Enhanced EDC 38200000 Paid by Draft No.987921.Date 12.05.2012 of Punjab National Bank 38200000 Total 579971676 27560900 45838000 182043957 76480719 EDC EDC INTEREST 150000000 110000000 Debit Note issued by Jasmine Buildmart Pvt Total 530000000 260000000 15000000 180000000 75000000 16. For some reason, the development of land could not be carried out and the appellant company sold the land to JBPL for a consideration of 86.50 crores and the land was transferred to JBPL vide a registered deed, which was executed on 02.02.2012. In th....
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....13 20,00,000/- 141 2014-15 07.05.2013 40,00,000/- 141 2014-15 07.05.2013 60,00,000/- 141 2014-15 08.05.2013 45,00,000/- 141 2014-15 08.05.2013 55,00,000/- 141 2014-15 09.05.2013 59,00,000/- 141 2014-15 09.05.2013 41,00,000/- 142 2014-15 10.05.2013 85,00,000/- 142 2014-15 10.05.2013 90,00,000/- 142 2014-15 11.05.2013 1,00,00,000/- 142 2014-15 14.05.2013 75,00,000/- 142 2014-15 15.05.2013 1,50,00,000/- . 142 2014-15 16.05.2013 1,50,00,000/- 142 2014-15 17.05.2013 1,40,00,000/- 142 2014-15 TOTAL 32,90,00,000/- 19. From the above charts, it can be seen that Rs. 18.21 crores were paid in assessment year 2013-14 and Rs. 32.90 crores were paid in assessment year 2014-15. It can be seen that all the afore-mentioned payments have been made through banking channel. From the details of expenses incurred by JBPL, exhibited elsewhere, it can be seen that all the payments have been made to Haryana Town and Planning Department. Thus, being statutory payments, their genuineness cannot be doubted. 20. It would not be out of place to refer here that initially a dispute arose between the appellant and JBPL in relation to expen....
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....or) Elegance Tower - 8, Jasola District Centre New Delhi 110025 1,00,00,000.00 1,00,00,000.00 Swift Infracon P Ltd PAN AARCS7272G Address - 21 Empire Estate, Sultanpur New Delhi 110030 20,00,000.00 20,00,000 00 Total Rs.3,66,00,000 27. The Assessing Officer observed that the assessee company has not submitted any documentary evidence which can prove the creditworthiness and concluded by adding Rs. 3.66 crores to the income of the assessee u/s 68 of the Act. 28. The assessee strongly agitated the matter before the ld. CIT(A) and pointed out that in so far as loan liability to the extent of Rs. 2.66 crores is concerned, the same are brought forward balances from the earlier year and, therefore, cannot be added u/s 68 of the Act for the year under consideration. In so far as balance of Rs. 1 crore is concerned, it was explained that the same has been received from Krish Reality Nirman Pvt. Ltd., which is a part of Krrish Group, and subjected to search proceedings. Therefore, there is no question of not establishing the identity of the creditor. 29. After considering the facts and detailed submissions and after verifying the same, the ld. CIT(A....