TaxTMI 
TaxTMI 
2017 (4) TMI 1450
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....ders of CIT(A)-I, Ahmedabad even dated 22.02.2013, arising out of orders under Section 143(3) r.w.s. 153A of the Act dated 30.12.2011 framed by the ACIT, Central Circle-1(1), Ahmedabad. As the issues raised in these appeals are common and relating to the same group, these appeals were heard together and are being disposed of by way of this common order for the sake of convenience. IT(SS)A Nos. 436 & 440/Ahd/2012-Assessee: Uma Shakti Corporation Kalol Project 2. First we take up IT(SS)A Nos. 436 & 440/Ahd/2012 in the case of Uma Shakti Corporation Kalol Project. The only issue raised relates to the addition made by the ld. Assessing Officer under Section 69 of the Act for unaccounted investment at Rs. 5,27,50,000/- on the basis of document seized during the course of search. On appeal, Ld. CIT(A) has partly allowed this ground and deleted the addition of Rs. 2,72,50,000/- out of total addition of Rs. 5,27,50,000/- made by the Assessing Officer. 3. Facts in brief of this case are that search was conducted in the case of Umiya Group on 4.3.2010 and during search at the residence of partner of the appellant - Shri Vikas R. Patel - a....
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.... of the NA order. No seized document has been found to confirm that on-money payments were actually made. In this background, the case laws relied upon by the appellant cited above viz. Shri Rajat Agrawal vs. DCIT 68 DTK 58 (JP Tribunal), CIT vs. Smt. K.C. Agnes 262 ITR 354 (Ker), CIT vs. S.M. Aggarwal 293 ITR 43(Del) all support the contention that the draft agreement found during search was not acted upon. Notwithstanding the arguments of the appellant this is also a fact of the case that the partner from whose residence the MOU", its terms and "conditions etc were seized admitted u/s. 132(4) having purchased the land at the rate of Rs. 4500 per sq. yard and paid Rs. 51,00,000 in cash for the Kalol project land. English translation copy of the statement with Gujarati version furnished by the appellant is enclosed as Annexure-2 of this order. It was vehemently argued by the Id. AR that the partner was being asked questions with reference to the MOU and what he meant was the rate agreed upon in the MOU. It was argued that land could never have been purchased at this rate by Umiya Group when it had such small share ratio in the appellant firm. It was also pleaded duri....
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....nal. 7. Ld. Counsel submitted that the impugned addition made by ld. Assessing Officer under Section 69 of the Act was merely based on unsigned, undated and rough draft MOU and kaccha chitthi, which was found during the course of search under Section 132 of the Act. This unsigned and undated MOU does not fall under the category of valid contract and have no legal sanctity. Further, ld. Assessing Officer has merely presumed that contents of such seized material are correct and assessee has actually paid such on-money without appreciating the fact that such seized material is nothing but merely a dumb document and ld. Assessing Officer completely failed to bring on record any corroborative material to prove that any such sum has been actually paid by the assessee. Further, no enquiry was made with the alleged recipient of such sum. Ld. Counsel further added that ld. Assessing Officer has also made reference to statement of Shri Vikas Patel, wherein he has admitted the factum of payment of Rs. 51,00,000/- in cash by the assessee-firm. However, ld. Assessing Officer failed to appreciate that Shri Vikas Patel did not give any explanation for the a....
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.... seized based on which the impugned addition came to be made by AO without appreciating the factual as well as settled legal position. In light of the above, impugned addition in respect of alleged unaccounted investment in unwarranted. The same be held so now. 9. Ld. Counsel further summarizing his contentions submitted that no addition should have been made under Section 69 of the Act for unexplained investment merely on the basis of unsigned, undated and rough draft of MOU and kaccha chitthi as actual transaction was entered separately through Shri bhagwanbhai Ajara, partner of the assessee-firm. In support of his contention that no addition can be made on the basis of dumb document, he placed reliance on following decisions:- i) ACIT vs. Manav Infrastructure P. Ltd in IT(SS)A No. 572/Ahd/2011 ii) ACIT vs. Dharmendrasinh R. Waghela, Prop. M/s. Narendra Roadlines in Tax Appeal No.1539 of 2011 (Guj). 10. On the other land, ld. Departmental Representative supported the order of ld. Assessing Officer and added that the alleged document, i.e., MOU contains all the necessary information including the name of the purchaser, selle....
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....ed the 60% on-money value at Rs. 2,55,00,000/- and sustained the addition to this extent. 13. During the course of proceedings before us, ld. Counsel has mainly contended that the alleged document, i.e., MOU and kaccha chitthi, are unsigned, undated and mere draft and is a dumb document which ld. Assessing Authority should not have taken. We notice that the alleged document MOU is filed at page No.15-21 of the paper-book and kaccha chitthi at Page Nos. 22-23 and observe that the Memorandum of Understanding is prepared on a stamp paper dated 31.10.2007 between Uma Shakti Corporation Kalol Project, being the purchaser and the selling parties and this MOU is undated and only the stamp is of November 2007. There appears no signature of either of the parties on any of the pages. Even kaccha chitthi is also unsigned which speaks about a rough draft showing a partnership firm to be incorporated and there are other notings about installments and an amount of Rs. 51,00,000/- is written on the last page of the kaccha chitthi. Ld. Assessing Officer has made the impugned addition on the basis of these documents. Now, the question arises be....
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.... on page no.43 to 49 of the paper book. During the course of hearing, we have confronted the ld.CIT-DR to demonstrate nexus between narrations available on page no.7 to 10 of the paper book i.e. seized material vis-à-vis alleged book results by the assessee. However, the ld.CIT-DR could point out that on page no.7 i.e. 2nd page of the seized paper, name of Ashish J. Shah was mentioned. It contemplates business of Balaji Mall. On an analytical examination of these details, we find that some narrations here and there, are having a slight connection with the shops, but it is difficult to arrive at logical conclusion. The stand of the assessee before the AO was that these papers can be divided in three parts viz. (a) typed documents, hand written documents in Gujarati pertaining to Shree Balaji Mall and other hand written documents written in English with certain numbers mentioned in it. According to the assessee these hand-written documents in English is neither of Balaji Mall nor of the company. These papers have neither been drawn by the directors or their family members. This aspect was not only explained during the course of assessment proceedings, but even during the cours....
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.... 3. The Assessing Officer, principally placing reliance upon section 132(4A) of the Income Tax Act, 1961 ("the Act" for short), however, discarded such objections and ruled that the presumption against the assessee would arise. On such basis, he made addition of Rs. 30,27,987/-. 4. The assessee carried the matter in appeal before the Commissioner. The Commissioner confirmed the view of the Assessing Officer, once again placing heavy reliance upon section 132(4A) of the Act. The assessee carried the matter in further appeal. The Tribunal reversed the view of the revenue authorities and allowed the appeal of the assessee, making following observations : "17. We have heard both the sides. We have perused the material placed before us. As per the document placed on page No.179 of the compilation, it had reflected some business transaction in respect of oil and kerosene oil. As per this typed document, there was a mention of parties from whom a business activity was performed. The figures have mentioned the rates applied for the said commodity and the details of the amount received. This document in fact appears to be in respect....
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....th the concurrent findings of the revenue authorities. He submitted that the assessee's explanation that the documents seized were not found satisfactory. That presumption under section 132(4A) of the Act would apply. 6. We are of the opinion that the entire issue is based on appreciation of the material on record. Section 132(4A) of the Act uses the words "may presume", meaning thereby that such presumption is rebuttable. In the present case, documents found pertain to entries related to oil business. The assessee's business at least accounted was of transportation. Revenue could not bring on record any material to suggest that the assessee was also involved in the business of dealing in oil. Additionally, the Tribunal has correctly recorded that the documents were dump documents. Revenue did not make any attempt to inquire into the matter further from the persons whose names were reflected in such entries. 7. In short, it cannot be stated that the conclusions arrived at by the Tribunal are perverse. No error is committed by the Tribunal. Tax Appeal is dismissed." 16. Going through the views expressed in the judgment of ....
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....ri Bhagvanbhai Aajra, who is also the partner of the assessee-firm. 18. We would further like to refer the provisions of Section 132(4A) of the Act which reads as follows:- "132(4A) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested." From going through the above provision, we find that it uses the word "it may be presumed", which as rightly held by the Hon'ble jurisdictional High Court in the case of CIT vs. Dharmendrasinh Waghela that the word "may presume" that such presumption is rebu....
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.... while framing the assessment order made the impugned addition of Rs. 25,18,250/- treating it as unaccounted interest payment. 22. In the appeal before the ld. CIT(A), the addition of Rs. 25,18,250/- was deleted by observing that the partner Mr. Bhagwanbhai K. Ajara was receiving on-money from the project of the assessee-firm and was recording it properly in the diary and was putting names of fictitious persons to show that he had borrowed money from elsewhere. Ld. CIT(A) further observed that Mr. Bhagwanbhai K. Ajara has already offered a notional income of Rs. 23 lacs in his return of income for AY 2010-11 and therefore this disclosure covers the entire interest paid by the appellant and not recorded in the books of accounts. 23. Aggrieved, the Revenue is now in appeal before the Tribunal. 24. Ld. Counsel for the assessee submitted that ld. Assessing Officer failed to appreciate that Mr. Bhagwanbhai K. Ajara was the main person looking after the flats/shops of the Kalol project and he used to note the details of funds received from various members of Kalol project. Such notings were made in the name of fictitious persons....
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....nbhai K. Ajara had already offered a sum of Rs. 23 lacs for AY 2010-11, which will cover up the entire interest paid, if any, by the appellant and not recorded in the books of accounts. We, therefore, find no reason to interfere with the order of the ld. CIT(A). In the result, this ground of the Revenue is dismissed. 26. Next common ground relates to addition of Rs. 4,35,39,800/- made on account of unaccounted collection/receipts by the Assessing Officer on the basis of seized material which was not accounted for in the regular books of accounts. 27. Brief facts related to this ground are that during the course of search, certain documents containing receipts of sale proceeds were seized and further, when explanation was called for by the Assessing Officer, the assessee worked out unaccounted turnover of Rs. 5,44,39,800/- and offered income of Rs. 109 lacs by calculating the embedded net profit @ 20% of the unaccounted turnover. However, ld. Assessing Officer made an addition of Rs. 4,35,39,800/-, after giving set off of Rs. 109 lacs offered by assessee against the unaccounted turnover of Rs. 5,44,39,800/-. ....
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..../- as worked out by assessee. Assessee offered the profit element embedded in the unaccounted turnover by applying net profit rate of 20% and offered Rs. 109 lacs as income. Ld. Assessing Officer, however, did not accept the contentions and after giving set off of Rs. 109 lacs against the unaccounted turnover of Rs. 544 lacs, made the impugned addition of Rs. 435 lacs. However, ld. CIT(A), after following various decisions, especially the judgment of Hon'ble jurisdictional High Court in the case of CIT vs. President Industries (supra), wherein it has been held that "entire undisclosed sales could not be added as income of assessee but addition could be made only to the extent of estimated profits embedded in sales for which net profit rate was adopted." The ld. CIT(A), following these judgments, observed that only the profit element should be taxed and not the total turnover. However, he applied the rate of 30% by following the rate adopted by Income-Tax Settlement Commission, Mumbai Bench in the case of M/s. Silver Springs and M/s. R....
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....ate. On the other hand, ld. CIT(A) has also followed the decision of the Income-Tax Settlement Commission but has not pointed out any error in the income estimation by the assessee. Even before the ld. Assessing Officer also no such material was found to show that assessee has given a wrong calculation. It seems that the ld. CIT(A) has just made guess work of estimating 30% net profit rate. We are, therefore, of the view that even in the given facts and circumstances of the case and in view of the fact that the net profit rate offered by the assessee is much more than its normal gross profit and net profit rate consistently offered in its return of income and also in the given fact when the unaccounted turnover is not disputed by the Revenue Authorities, we are of the view that income offered by the assessee at 20% should have been accepted by the Assessing Authorities and no further addition was called for. We accordingly allow the ground of the assessee and dismissed that of the Revenue. 33. Now, we take up cross-appeals by assessee and Revenue for AYs 2009-10 and 2010-11 in the case of Shri Bhagwanbhai Karmanbhai Ajara in IT(SS)A Nos. 194 ....
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....addition of Rs. 9,00,000/- made u/s 69 of the I.T. Act. 2. The Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,42,59,250/- out of total addition of Rs. 1,68,34,250/- made by working out peak of the entries appearing the diaries seized from the residence of the assessee. 3. The Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs. 26,20,000/- being amount received during the year from Nicol land transaction recorded in the diaries seized from the residence of the assessee. 4. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. ITA No.1375/Ahd/2013 : AY-2010-11 : Assessee's appeal 1. The ld. Commissioner of Income Tax (Appeals) has erred in law and on fact confirming addition of Rs. 25,75,000/- as profits from Ognaj Land as unexplained investment, whereas such amounts are duly considered in the income offered in IT Return of Rs. 38 lac. Such addition amounts to double addition. It is therefore prayed that addition so made may kindly be deleted. 2. The ld. Commissioner of Income Tax (A....
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....esented on-money collection of the various projects. In fact CIT(A) in the case of Umashakti Corporation Kalol Project in A.Y.2009-10 in appeal No.CIT(A)I/CC. 1(1)7308/2011-12 vide order dated 18.07.2012 has held that the sum of Rs. 3,92,750/- added by the Assessing Officer on account of undisclosed interest payment by the firm Umashakti Corporation Kalol Project to the appellant was not correct. The contention that the on-money collection from the projects of the firm Umashakti Corporation Kalol Project itself had been utilized by the appellant to advance money to the firm Umashakti Corporation Kalol Project to earn interest had been accepted. It was held that since the money belonged to the firm Umashakti Corporation Kalol Project itself hence there was no question of paying interest to Bhagwanbhai K Ajara. 6.1 In view of the fact that the CIT(A) has deleted addition of Rs. 3,92,750/- made, in the case of Umashakti Corporation Kalol Project indicates that the principal amount on which this interest had been worked out belonged to the firm Umashakti Corporation Kalol Project. However, the Assessing Officer has observed that the entries made in the diaries do not ma....
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....sing Officer from the seized diaries marked as Annexure A/1 and Annexure A/2 found in the course of search at Umiya Group. As per these diaries, unaccounted interested income of Rs. 5,87,250/- and Rs. 21,54,000/- were added to the assessee's income for AYs 2009-10 and 2010-11 respectively. Presently, in this appeal, we are dealing with AY 2009-10 and we notice that Rs. 5,87,250/- includes interest from USCKP and interest from others. As far as interest from USCKP at Rs. 3,92,750/- is concerned, we observe that ld. CIT(A) has rightly deleted the impugned addition following the order of ld. CIT(A)'s order in the case of USCKP, wherein it has been held that ld. Assessing Officer has wrongly made an addition of unaccounted interest payment. As the impugned disallowance has been deleted in the hands of payer, there cannot be any addition in the hands of payee, i.e., assessee. As regard the balance amount of interest from others at Rs. 1,94,500/- is concerned, we accept the contentions of ld. Counsel that the impugned amount of Rs. 1,94,500/- forms part of total disclosure of Rs. 163 lacs made by USCKP which, inter alia, includes income from notings in....
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....0/- added by the Assessing Officer on account of undisclosed interest payment by the firm Umashakti Corporation Kalol Project to the appellant was not correct. The contention that the on-money collection from the projects of the firm Umashakti Corporation Kalol Project itself had been utilized by the appellant to advance money to the firm Umashakti Corporation Kalol Project to earn interest had been accepted. It was held that since the money belonged to the firm Umashakti Corporation Kalol project itself hence there was no question of paying interest to Bhagwanbhai K Ajara. 8.1 In view of the fact that the CIT(A) has deleted addition of Rs. 3,92,750/- made, in the case of Umashakti Corporation Kalol Project indicates that the principal amount on which this interest had been worked out belonged to the firm Umashakti Corporation Kalol project. However, the Assessing Officer has observed that the entries made in the diaries do not match with the sale of flats recorded by the entities of this group hence the Assessing Officer has not accepted the contention of the funds recorded in the diary were on-money receipt of projects. This contention of the Assessing....
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.... 19,45,000/-) should be added to the income of the appellant. Thus, the addition made by the Assessing Officer on account of peak working is reduced from Rs. 66,36,750/- to Rs. 19,45,000/-. AY 2010-11 "9. I have gone through the assessment order and submission of the A.R. of the appellant carefully. It is seen that the Assessing Officer has not accepted the contention of the appellant that the notings in diaries represented on-money collection of the various projects. In fact CIT(A) in the case of Umashakti Corporation Kalol Project in A.Y.2009-10 in appeal No.CIT(A)I/CC.1(1)/308/2011-12 vide order dated 18.07.2012 has held that the sum of Rs. 3,92,750/- added by the Assessing Officer on account of undisclosed interest payment by the firm Umashakti Corporation Kalol Project to the appellant was not correct. The contention that the on-money collection from the projects of the firm Umashakti Corporation Kalol Project itself had been utilized by the appellant to advance money to the firm Umashakti Corporation Kalol Project to earn interest had been accepted. It was held that since the money belonged to the firm Umashakti Corporation Kalo....
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....ed from others. For earning this amount of interest the appellant would requires to invest 10 times this amount because the rate of interest is generally 10% to 12% and also some time is invariably lost between collecting the debt and advancing the money so received to another person. 9.3 In view of the fact that in the earlier paragraph it has been noted that peak working cannot be resorted to in this case because substantial money belongs to the firm Umashakti Corporation Kalol Project. 9.4 Further, it is seen that the appellant had made unaccounted investment in land by way of Banakhat dated 6.11.2009 in purchase of land at survey No.1195 Ognaj. The amount of cash paid at the time of banakhat wasRs. 25,00,000/-. No separate addition has been made by the Assessing Officer because this amount has been included in the peak working of Rs. 1,68,34,250/-. In view of the fact that in the earlier paragraph it has been noted that peak working cannot be resorted to in this case because substantial money belongs to the firm Umashakti Corporation Kalol Project. However the investment made by the appellant are not assets of the firm Umashakti Corporation Kalol....
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....unt, only Rs. 3,89,500/- has been actually received and balance amount of Rs. 23,51,750/- is notional income, which is, otherwise, not liable to be taxed in assessee's hands. In light of these submissions, assessee's personal profit of Rs. 22.50 lacs need not be added separately since requisite disclosure has already been made by the assessee in the form of notional interest income. 45. On the other hand, ld. Departmental Representative supported the order of the ld. Assessing Officer. 46. We have heard the rival contentions and perused the records placed before us. The common issue raised by both the Revenue and assessee emanates out of the addition made by the ld. Assessing Officer by calculating peak balance from the transactions appearing in the seized diaries at Annexure A/1 and Annexure A/2 which contains entries with respect to inflow and outflow of funds. Peak addition of Rs. 66,36,750/- and Rs. 1,68,34,250/- was made by ld. Assessing Officer. We observe that ld. CIT(A) has held that the entire peak cannot be added in the hands of assessee since the substantial money of such peak belongs to USCKP, wherein assessee is a partn....
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....llowed. 49. As far as AY 2010-11 is concerned, wherein the peak addition of Rs. 1,68,34,250/- was made by ld. Assessing Officer, ld. CIT(A) has already deleted the addition of Rs. 1,42,59,250/- on the basis of his views which has upheld by us also as discussed in the preceding paragraph that the alleged peak is the part of total turnover of USCKP project and income on this turnover has been offered to tax. However, we have also observed that ld. CIT(A) has confirmed an addition of Rs. 25,75,000/- as profits from Ognaj land as unexplained investment on the basis of banakhat dated 07.01.2009 entered into by assessee for projects of land at Survey No.1195 at Ognaj and a cash sum of Rs. 25 lac was paid alongwith brokerage of Rs. 75,000/-, totaling to Rs. 25,75,000/-. In the record placed before us, we find that there was no proof found during the course of search to show that assessee is owner of the Survey No.1195, Ognaj and there was merely a banakhat showing the cash payment of Rs. 25 lacs paid towards project of land. Ld. Counsel has contended that Rs. 25 lacs was actually received as profit from cancellation of banakhat of Ognaj land by the assessee in ....
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....00/- (Rs. 10,00,000/- + Rs. 60,000/-) from Jayesh Patel on sale of land at Nicol. Further on page 13 of Annexure A/1 of the seized diary, there was noting of the word "Nicol" and "dalali" and certain entries aggregating to Rs. 52,20,000/- were found against specific dates spread over the assessment year 2009-10 and 2010-11 and a sum of Rs. 11,60,000/- was found part of the same. On the basis of these details, ld. Assessing Officer concluded that such sum represented money received by the assessee on sale of Nicol land and made addition of Rs. 15,00,000/- and Rs. 26,20,000/- for AY 2009-10 and AY 2010-11, totaling to Rs. 45,25,000/- after excluding Rs. 11,60,000/- from the sum of Rs. 52,20,000/-. We further observe that it is not the case of the Revenue that assessee is owner of the land at Nicol which is also evident from the fact that during the course of extensive search, no purchase deed with respect to purchase of land at Nicol by assessee was found and there cannot be a question of selling the impugned land and receiving the sale consideration if there was no purcahse. We also observe that in the alleged seized material the word 'dalali' is appearing which is....
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....e, of the view that in lack of any findings of ownership of land, we agree to the contentions of the assessee that he earned the brokerage income from the transactions of purchase/sale of land and in view of the fact that the impugned addition has been made merely on the basis of entries in seized material without brining on record any corroborative evidence which is not tenable in the eyes of law as held by the Hon'ble jurisdictional High Court in the case of CIT vs. Maulikkumar K.Shah, 304 ITR 137 (Guj). We are, therefore, of the view that the impugned addition from sale of land at Nicol at Rs. 15,00,000/- and Rs. 26,20,000/- for AYs 2009-10 and 2010-11 respectively has been rightly deleted by ld. CIT(A). We, therefore, find no reason to interfere with the order of the ld. CIT(A) on this ground which is upheld. In the result, Ground No.3 of Revenue's appeal for AYs 2009-10 and 2010-11 are dismissed. 54. Now, we take up Ground No.1 raised by the Revenue for AY 2010-11 challenging the order of ld. CIT(A) deleting the addition of Rs. 9,00,000/-made under Section 69 of the Act toward unaccounted investments in the Samarpan Scheme. 55.....
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....hat the cash amounting to Rs. 9,00,000/- represented on money collections of the firm from Kalol Project. He has held that the investment noted in the diary written by Shri Bhagwan K. Ajara seized at Annexure-A-1 represented unexplained cash deposited by the appellant. This contention of the Assessing Officer does not appear to be sound. In view of the fact that the investment for purchase of the land named Samarpan Project amounted to Rs. 45,00,000/- after it. was sold to M/s. Shree Krishna Corporation. The profit from the transactions had been declared in the hands of M/s. Uma Shakti Corporation which has been accepted by the Assessing Officer during the assessment proceedings of M/s. Uma Shakti Corporation. It is also seen that the total funds contributed in cash amounted to Rs. 45,00,000/- was by five partners who contributed Rs. 9,00,000/- each whereas the firm M/s. Uma Shakti Corporation has the following partners : Sr.No. Name Share 1. Shri Vikas Ramchandra Patel 10% 2. Shir Bhagwan Karamanbhai Ajara 35% 3. Shri Brijesh Sukhdevbhai Patel 10% 4. Shri Deepak Govindbhai Prajapati 15% 5. Shri Arvind Natvarlal Prajapati ....