2020 (5) TMI 253

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....s premises of the assessee under section 133A of the Act dated 29/09/2011. The assessee in the year under consideration has shown cost of construction in its balance sheet at Rs. 490/- per square feet whereas the AO was of the view that the construction cost should be at Rs. 1,253/- per square feet. The view of the AO was based on the Jantri rate issued by the superintendent of the stamps Gandhinagar Gujarat which is suggesting the rate at Rs. 1,253/- per square feet. Accordingly the AO was of the view that the assessee has shown less cost of construction in its books of accounts by Rs. 763/- per square feet (Rs. 1253 less 490 per square feet) aggregating to Rs. 10,20,62,695/- ( Rs. 763 * total instructed area of the project i.e. Rs. 1,33,765.35 per square feet). As such the AO was of the view that such expenses has been incurred by the assessee outside the books of accounts. Thus the AO treated the same as unexplained expenditure under section 69C of the Act and added to the total income of the assessee. 4. Aggrieved assessee preferred an appeal to the learned CIT (A) who deleted the addition made by the AO by observing as under: 4.2 I have perused the assessment order and th....

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....ompletion certificates were obtained on three different occasions, but before 31.3.2012. All the copies of completion certificates so produced before the AO are also forming part of the paper book, filed in this office, which have been verified. In short, the appellant had carried out construction on 109637 sq. feet [133765 - 24128]. This fact can not be denied by the AO as the rectification order was passed by the same AO, as documentary evidence proof filed in support of its contention by the appellant's. The Id. AR further contends that, the AO never allowed opportunity to the appellant to explain the cost of construction and its variance from the jantri price. He further contends that, there is no provision in the Income tax Act, 1961 to work out cost of construction based on jantri rates and that, the jantri rates are not universal rates and cannot be applied to any random case without taking into consideration the merits and the nature of property, quality of construction, quantum of material, and other amenities etc. used in the construction. In fact the jantri rates are prescribed for the purpose of collection of stamp duty and are for deemed fair market value on given ....

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....orities that, even if assessment is made on fair judgement basis, it should be scientific, pragmatic and logically acceptable. There cannot be a novice finding with a weak base. Hence, the finding of the AO fails on this score too. 4.2.3 In view of the above finding, I am of the considered view that the AO has grossly erred in estimating the income of the appellant and hence, the entire addition made of Rs. 10,20,62,695/- is directed to be deleted. Thus, this ground of appeal is allowed Being aggrieved by the order of the learned CIT-A, the Revenue is in appeal before us. 5. Both the learned DR and the AR before us relied on the order of the authorities below as favourable to them. 6. We have heard the rival contentions of both the parties and perused the materials available on record before us. The provisions of section 69C of the Act are attracted in a situation where the assessee has incurred an expense without recording the same in the books of accounts. In the present case there is no iota of evidence available before the AO suggesting that the assessee has incurred any expense which were not disclosed in the books of accounts except the value of the Jantri determined by ....

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....r which completion certificate date 15.12.2011 issued No. of units for which completion certificate date 22.03.2012 issued Total units completed 1 to 4/1 to 6 6 5 1 -- 6 5 to 7/1 to 4 4 4 -- -- 4 8 to 27/1 to 30 30 26 4 -- 30 28 to 31/1 to 8 8 -- 8 -- 8 32 to 36/1 to 10 10 -- 10 -- 10 37 to 46/1 to 15 15 14 1 -- 15 47 to 62/1 to 27 27 24 3 -- 27 63 to 8/1 to 10 10 -- -- 10 10 Total 110 73 27 10 110 5.3.1 In fact, the AO herself vide para 4 of order u/s 154 dated 11.06.2015 has accepted the clarificatory letter dated 30.01.2015 of RMC. As far as the case law relied on by the AO, the facts are totally distinguishable. In the case of Sky Builders and Developers. 14 taxmann.com 78(lndore) the facts were that the assessee sold plots to respective customers by registering a sale deed and thereafter assesee constructed building at an agreed price, it had to be concluded that assessee merely acted as building contractor and not as a developer and, therefore, assessee's claim for deduction under section 80-IB(10) could not be allowed. In the case of the appellant it is the developer ....