AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 1137
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....d 03.06.2019 and the earlier order of the Tribunal was recalled for the limited purpose of adjudication of Ground No. 3 of the assessee's appeal and the findings of the Coordinate Bench while recalling the order reads as under: "5. We have considered the rival submissions as well as the relevant material on record. On careful perusal of the impugned order, we find that the Tribunal in para 3.4 of the impugned order has decided the ground no. 1 of the assessee's appeal for assessment year 2007-08. For ready reference, we reproduce para 3.4 and 3.5 as under :- 3.4 We have heard the rival contentions and perused the materials available on record. We find that the ld. CIT(A) vide its judgement dated 30-12-2016 for the Assessment Year 2007-08 had taken into consideration the judgement dated 20-11- 2015 of Hon'ble Upper District Judge, Room No. 19, Jaipur Mahanagar and rejected the contention of the assessee by observing as under (Page 20) of ld. CIT(A)'s order):- "(v) Further vide above referred order, the Hon'ble ADJ has held as under:- "(vi) Thus it is evident from the above that the issue of genuineness or otherwise of the MOU date....
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....3 for the assessment year 2007-08 is not common to any of the grounds for the assessment year 2006-07. Though the Tribunal while deciding ground no. 1 for the assessment year 2007-08 in para 3.4 has reproduced the finding of the ld. CIT (A) which also covers the issue involved in ground no. 3, however, the said reproduction of finding of ld. CIT (A) for deciding ground no. 1 does not lead to the conclusion that the said ground was independently decided by the Tribunal when it was not common to the assessment year 2006-07. Accordingly, we are of the considered opinion that there is a mistake crept in the impugned order so far as the ground no. 3 for the assessment year 2007-08 is not adjudicated by a speaking order. Accordingly, we recall the impugned order to the extent of non-adjudication of ground no. 3 for the assessment year 2007-08 and direct that the appeal of the assessee in ITA No. 109/JP/2017 for the assessment year 2007-08 be fixed for fresh hearing and adjudication of ground no. 3 of the assessee's appeal." 3. The present appeal has, therefore, come up for adjudication before us wherein the limited issue under consideration relates to Ground No. 3 of the assessee's ap....
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.... asked to show cause as to why these receipts should not be included in its total income. 7. In response to the show cause notice, the assessee company, in its submission filed before the Assessing officer on 23.02.2015, submitted that the MOU dated 22.03.2006 for sale and purchase of land measuring 125000 Sq. Yards @ Rs. 1270.00 Per Sq. Yard was cancelled due to non-fulfillment of certain conditions stated in the said MOU vide cancellation agreement dated 14.10.2007 which was duly signed by directors of both the companies, notarized and registered with the Notary public vide registration entry No. 426 dated 19.07.2007. It was further submitted that a fresh MOU was entered into between the two companies on 14.07.2007 for sale and purchase of 72,000 Sq. Yard land @ Rs. 1270.00 per Sq. Yard and the said MOU was duly signed by directors of both the companies, notarized and registered with the notary public vide registration entry No. 427 dated 19.07.2007. It was further submitted that during the F.Y 2006-07, the assessee has received a sum of Rs. 3,89,00,000/- which is duly supported by confirmation receipt from M/s U-Turn Housing Pvt. Ltd. and basis the same, the assessee has sold....
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.... the Assessee about the nature and source of the sum credited. It was submitted that in the instant case, none of the aforementioned conditions are said to have been fulfilled due to which the impugned order is liable to be set and aside. 11. It was submitted by the ld AR that there exist no books of accounts of the assessee wherein any entry pertaining to cash received from M/s. U-Turn Housing Pvt. Ltd. is present. It is submitted that the assessee has merely received an amount of Rs. 5.69 Crores from the M/s. U-Turn Housing Pvt. Ltd. and Rs. 5 Lakh from Mr. Nikhil Tripathi in the assessment year 2007-08 through banking channel and no cash amount has been received by the assessee company from M/s. U-Turn Housing Pvt. Ltd. 12. The ld. AR further submitted that in Paragraph No. 4 of the impugned assessment order, the Assessing Officer has provided the computation of the purported unexplained cash credit totaling Rs. 3,26,00,000/- which is as under: S. No. Date Amount (Rs.) 1. 01.04.2006 25,00,000/- 2. 10.04.2006 1,00,00,000/- 3. 15.04.2006 50,00,000/- 4. 24.04.2006 37,00,000/- 5. 30.04.2006 16,00,000/- 6. 17.05.200....
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....mentions that only amount of Rs. 5.69 Crores has been paid by the M/s. U-Turn Housing Pvt. Ltd. to the assessee during the assessment year 2007-08. The confirmation of accounts and credit notes were authentic documents bearing the signature of the Director of M/s. U-Turn Housing Pvt. Ltd. and there existed no reason for non-consideration of the same. The same cannot be permitted to be disregarded merely on the basis of denial of the same by Shri Nikhil Tripathi in his statement. 15. The ld. AR further submitted that the Assessing Officer has failed to consider the revised MOU dated 14.07.2007 and the cancellation agreement dated 14.07.2007 which were recovered in original from possession of Mr. Nikhil Tripathi during police investigations. It was submitted that these documents were duly signed by both the parties and there existed no reason for denying the same by any of the parties. In this regard, it was submitted that it is evident from the aforementioned documents that M/s. U-Turn Housing Pvt. Ltd. had merely paid a sum of Rs. 5.69 Crores to the assessee in the financial year 2006-07 and no further amount has been paid. However, the Assessing Officer ignored these original d....
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....discharged its burden by providing adequate documentation before the Assessing Officer to establish that it has not received the said cash amount of Rs. 2.28 Crore from M/s. U-Turn Housing Pvt. Ltd. However, the Assessing Officer has neither considered these documents nor has provided any reason for disregarding the same. 18. It was further submitted that the Hon'ble Tribunal while hearing the Misc. Application for recalling of order filed by the assessee vide its order dated 22.03.2019 asked the Department to file the detailed report supported by relevant documents relying on which the assessment has been done by the Assessing Officer for the assessment year 2007-08. It is submitted that in response, the Department has filed a report dated 05.04.2019 before the Hon'ble Tribunal. It is evident from the said report that the entire assessment has been done merely on the basis of the statement given by Shri Nikhil Tripathi under Section 131 of the Act. Further, the Report itself mentions that the entire re-assessment has been done on the basis of the presumptions. It has been stated that "Further, a specific modus operandi is in circulation amongst the real state sector entities th....
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....these documents as per section 34 of the Evidence Act, 1872 it is amply clear that these loose papers and documents cannot possibly be construed as books of accounts regularly kept in the course of business". 22. The AR further submitted that the Assessing Officer had failed to consider that Nikhil Tripathi had every reason to make false statement regarding the payment of the cash amount to the assessee in order to create his defense in the FIRs/ complaint filed against Nikhil Tripathi by the persons who have booked their flats/properties in "Silver City Project" of M/s. U-Turn Housing Pvt. Ltd. It was submitted that it is unfair to the assessee that the entire re-assessment has been done on the un-challenged testimony of the person who has been an accused in several cases and has been declared as absconder by the Court of law. 23. It was further submitted that in order to assess a person u/s 68 of the Act, there must be running books of account available on record. However, in the instant case, no return has been filed by M/s. U-Turn Housing Pvt. Ltd. after the Assessment Year 2007-08 and the name of the company has been strike off by the ROC and a certified copy of the comp....
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....as gone through the charge-sheet and it was noticed by him that the Investigation Officer did not mention anything about the genuineness or otherwise of the cancellation agreement dated 14.07.2007. Therefore, the said charge-sheet is of no help to the assessee company. 28. Further, regarding the suit filed by the assessee company against Sh. Nikhil Tripathi before the ADJ-19, Jaipur, it was submitted that the ld. CIT(A) has gone through the order passed by the ADJ-19, Jaipur dated 20.11.2015 and the ld CIT(A) has recorded a finding that the issue of genuineness or otherwise of the MOU dated 14.07.2007 was not before the Court of Hon'ble ADJ and the MOU dated 22.03.2006 was not placed before the Hon'ble Court and the said order has been passed ex-parte in the absence of respondents. Therefore, the contention of the assessee company cannot be accepted. It was accordingly submitted that the AO was justified in making the addition of Rs. 3.26 crores u/s 68 of the Act and the findings so recorded by the AO should be confirmed. He accordingly supported order of the lower authorities. 29. We have heard the rival contentions and perused the material available on record. The case of t....
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....t and then, once the said factual position is established, an explanation should be sought from the assessee regarding the nature and source of such sum and where such explanation is either not furnished or the explanation so furnished is not found satisfactory, the sum so credited in the books of accounts of the assessee may be charged to income tax as the income of the assessee. In the instant case, the case of the Revenue is that the assessee has received a sum of Rs. 3.26 crores in cash from M/s U-Turn Housing Pvt. Ltd. and the same is not shown in its books of accounts. The assessee has disputed the receipt of such sum of money (which we shall be dealing subsequently) and therefore, said sum of money is neither shown by the assessee in its books of accounts nor found credited by the Assessing officer in the books of accounts of the assessee. In such a scenario, it may be treated as unaccounted receipts in the hands of the assessee, however, as far as the provisions of section 68 of the Act are concerned, the same can be invoked only where such receipts are accounted for in the books of accounts and explanation regarding nature and source of such receipts is either not forth....
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....ks in the FY 2006-07." 33. In his statement, Shri Nikhil Tripathi has stated that M/s U-Turn Housing Pvt. Ltd. has made payment of Rs. 9.83 crores to the assessee company as per details filed before the AO in response to notice u/s 133(6) of the Act. He has further stated in his statement that the said payment matches with the entries in the books of accounts of M/s U-Turn Housing Pvt. Ltd. 34. Further, the Assessing Officer has also relied upon copy of account of the assessee in the books of accounts of M/s U-Turn Housing Pvt. Ltd. as furnished by the latter during the course of assessment proceedings and held that as per such copy of account, it is found that cash payment of Rs. 3.26 crores was made to assessee company on various dates as we have noted in para 4 above. 35. Therefore, we find that the statement of Shri Nikhil Tripathi and the copy of account of the assessee in the books of accounts of M/s U-Turn Housing Pvt. Ltd are the two pieces of document which have been relied upon by the Assessing officer while arriving at the finding that sum of Rs. 3.26 Crores has been received by the assessee during the financial year 2006-07 and which has not been accounted for ....
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....re reflected in the assessee's ledger account in the books of M/s U-Turn Housing Pvt. Ltd. wherein the cheques have been issued to Shri Chandra Mohan for advance towards Bharatpur Land. As we have noted above and as per material available on record, the assessee's land is situated at Sanganer, Jaipur which is subject matter of two MOUs and there is nothing on record to suggest that the assessee has any dealing with M/s U-Turn Housing Pvt. Ltd. regarding any land situated at Bharatpur. Further, there is nothing on record to show any linkage or connection of Shri Chandra Mohan with the assessee company. In this regard, apparently, no question has been asked from Sh. Nikhil Tripathi by the ADIT (Investigation) Special Cell, New Delhi during the course of his statement recorded u/s 131 of the Act. Further, no enquiry or investigation has been carried by the Assessing officer even though these entries are apparent on the face of assessee's ledger account. Therefore, as far as these payments relating to Bharatpur land are concerned, the same cannot be related to the assessee company and have been wrongly debited in the accounts of the assessee company in the books of M/s U-Turn Housin....
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....l Tripathi and entries in the books of accounts of M/s U-Turn Housing Pvt. Ltd. Therefore, the statement of Shri Nikhil Tripathi that the said payments made to the assessee company matches with the entries in the books of accounts of M/s U-Turn Housing Pvt. Ltd. again fails the test of corroboration to the extent of aforesaid payments. 40. Further, on perusal of the aforesaid ledger account of the assessee in the books of M/s U-Turn Housing Pvt. Ltd., we also find that there are various entries totaling to Rs. 1.77 crores wherein cash payments have been shown to have been made to the assessee company by M/s U-Turn Housing Pvt. Ltd out of its petty cash book. In this regard, firstly, it is noted that date and amount of cash payment as reflected in the ledger account doesn't tally with the date and amount of cash payment as recorded by the Assessing officer in the assessment order as apparent from following comparative table: As per assessment order As per ledger account S. No. Date Amount (Rs.) Date Amount (Rs.) 1. 01.04.2006 25,00,000/- 22.04.2006 20,00,000/- 2. 10.04.2006 1,00,00,000/- 22.05.2006 40,00,000/- 3. ....
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....oboration and cannot be relied upon. 42. Further, on perusal of the aforesaid ledger account of the assessee in the books of M/s U-Turn Housing Pvt. Ltd., we find that there are various entries totaling to Rs. 3.39 crores wherein cheque payments have been shown to have been made to the assessee company during the financial year 2006-07 and cheque payment of Rs. 50 lacs during the financial year 2005-06 totalling to Rs. 3.89 crores, whole of which has been accounted for in the books of assessee company during the financial year 2006-07. The same payment of Rs. 3.89 crores has also been confirmed by Shri Nikhil Tripathi in the confirmation submitted before the AO which has apparently not being considered by the AO while framing the assessment apparently for the reason that such confirmation has been obtained and submitted by the assessee company and blind reliance on the statement of Shri Nikhil Tripathi which fails the necessary corroboration test as we have noted above. 43. Now coming to the assessee company's contention regarding the basis of receipt of Rs. 5.69 crores from M/s U-Turn Housing Pvt. Ltd. out of which Rs. 3.89 crores was received/recorded in its books of accoun....
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....n MOU, what should be the course of action to be adopted by the Assessing officer. To our mind, once the payment of Rs. 5.69 crores is duly accounted for in books of accounts of both parties and such payment has been made through banking channel and reflected in respective bank accounts, there cannot be any dispute that such payment has changed hands. Only question that remains is whether there is any payment over and above the aforesaid payment of Rs. 5.69 crores in terms of earlier MOU. In such a scenario, certain basic due diligence was required in the matter where the matter relating to forged signatures could have been referred to the forensic expert and his report should be called upon. Further, necessary enquiry could have been conducted with the Notary Public who has authenticated the execution and signing of second MOU dated 14.07.2007 and cancellation agreement of even date where the earlier MOU dated 22.03.2006 was cancelled by both the parties. However, there is nothing on record which suggest any such assistance was sought from forensic experts or any enquiry and investigation was carried out by the Assessing officer. 45. In addition, we note that original copy of M....
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....for removing the embargo on the execution of lease deed by JDA on the assessee's land situated at Sanganer and in the said application, he has stated about the initial MOU dated 22.03.2006 and subsequent MOU dated 14.07.2007 and ld C.M.M has taken cognizance of the second MOU i.e, MOU dated 14.07.2007 and denied to lift the embargo vide his order dated 11.05.2015 and his findings read as under: "In view of the arguments addressed on behalf of the parties and perusal of the record, I am of the opinion that in the present case offence alleged against the accused persons is serious in nature wherein the land was put for sale even prior to acquisition of ownership rights from M/s Rajasthan Land Developers Private Limited. As per the 2nd MOU, the applicant acquired the rights over the land in the year 2007 whereas the applicant had invited applications for allotment of land way back in the year 2006. Even M/s Rajasthan Land Developers Private Limited has also raised objection over lifting of embargo and is willing to get the same removed only to the extent of 42,000 sqyds for which it has been paid for. The applicant has applied for lifting of embargo for the ....
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....existence of such documents are challenged, as Courts have held from time to time, the matter is best suited to be referred to the domain experts such as handwriting experts or forensic experts who have the requisite expertise and experience in the manner and the Assessing officer cannot arrogate to himself the power to determine the authencity and existence of the document and that too, without referring to any reliable material. 49. Having said that, we now look at the contents of the MOU dated 14.07.2007. The MOU talks about selling of marketing rights by the assessee company to M/s. U-Turn Housing Pvt. Ltd. in respect of 72,000 sq yards of land which shall include the booking of plots and receiving the payment from prospective customers at the rate of Rs. 1270 per sq yard for a total consideration of Rs. 9.14 crores. Further, on perusal of the MOU, we find that both the parties have agreed therein that the amount to the tune of Rs. 5.69 Crores has already been paid by M/s. U-Turn Housing Pvt. Ltd. prior to entering into such fresh MOU and the same shall be adjusted against the total consideration of Rs. 9.14 crores. The Court of ld. ADJ Jaipur has also taken cognizance of re....
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....क 14.07.2007 के तहत ही वादी कमà¥à¤ªà¤¨à¥€ वरà¥à¤£à¤¿à¤¤ शरà¥à¤¤à¥‹à¤‚ व पà¥à¤°à¤¾à¤ªà¥à¤¤ राशि के अनà¥à¤¸à¤¾à¤° ही पà¥à¤°à¤¤à¤¿à¤µà¤¾à¤¦à¥€ कमà¥à¤ªà¤¨à¥€ को à¤à¥‚मि उपलबà¥à¤§ करवाने का दायितà¥à¤µ रखती है। जिसके फलसà¥à¤µà¤°à¥‚प यह सà¥à¤¥à¤¾à¤ˆ निषेधाजà¥à¤žà¤¾ पà¥à¤°à¤¦à¤¾à¤¨ की जाती है कि पà¥à¤°à¤¤à¤¿à¤µà¤¾à¤¦à¥€à¤—ण कमà¥à¤ªà¤¨à¥€ à¤à¤®.ओ.यू दिनांक 14.07.2007 में वरà¥....