TaxTMI 
TaxTMI 
2021 (6) TMI 727
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....ding the order passed by the Assessing Officer u/s. 143(3) of the Income Tax Act, 1961 which is illegal and bad in law. 2. The learned CIT(A) has erred in passing the order in violation of principles of natural justice. 3. The learned CIT(A) has erred in upholding the addition of Rs. 1,05,57,000/- made by the Assessing officer as alleged unaccounted income received from sale of flats over and above registered value. 4. The appellant craves leave to add to, amend, alter or delete all or any of the foregoing grounds of appeal." 3. Briefly stated the facts are, a search and seizure action was carried out in the case of Anand Rathi group on 24.09.2013 and the office premise of director of Assessee company, Shri Pradeep Gupta was also searched. During the course of search, some loose papers were found and seized from the office premise of Shri Pradeep Gupta. Statement of Shri Pradeep Gupta was recorded and he was confronted with the seized material. In the statement, he has admitted that the seized material contains the workings of amounts received in cheque and cash on sale of three flats in two projects, Vishwariya project and Padmavati Nagar project. ....
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.... find the contention untenable. The on money received in cash and not recorded in books of appellant company is assessable in its hands. Shri Gupta is another legal entity. If he incurs expenditure not recorded in his books and is not explained from sources which are offered tax by him, clearly the same is taxable in his hands. Even if the appellant company were to give money to Shri Gupta from its tax paid sources, the amount received by Shri Gupta would be taxable in the hands of Shri Gupta. The appellant has not understood and appreciated the distinction between the two taxable entities. It is also noted that Shri Pradeep Gupta has denied expenditure on renovation of his flat at Beau Monde, Prabhadevi, Mumbai. The contention is therefore rejected. 3.6 The appellant has contended that the buyers of flats have not been examined to corroborate cash payment and opportunity of cross examination is not provided. I find this to be a specious argument for two reasons. Firstly, by admitting to the fact that cash was received in the course of search, the appellant precluded the investigation wing from carrying out further investigation. Secondly, at this stage the purchaser may n....
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.... such circumstances which were beyond my control I had simply started following instructions and directions given by the investigating team. As it is clear that am director of many companies and receive various documents and reports which includes budget, projection, quotations as well performance reports. At times, while reviewing the various reports I need to have the brief and background on various reports and documents. None of the documents seized by the officials have been prepared or signed by me. These are mere excel print outs and I have not authored any document or bear my hand writing. Investigating team was hell bent on questioning on each and every paper and number mentioned on papers found at my home or at office. Hence the statement was obtained from me during the course of said search action at my residence or at office under coercion, wherein I was asked to admit all unexplained numbers and amount mentioned on few documents as either cash receipts or cash payments. I was informed that ultimately my statements will be corroborated with the financial statements and in case the financial statements and bank accounts also reveals such cash income or payment th....
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.... Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi [AIR 1960 SC 100]: The Hon'ble Supreme Court held that an admission is the best evidence that an opposite party can rely upon and, though not conclusive, yet could be decisive of the matter unless successfully withdrawn or proved erroneous. (iii) Satinder Kumar (HUF) v. CIT [1977] 106 ITR 64 (SC): It was held that it is true that an admission made by an assessee constitutes a relevant piece of evidence but if the assessee contends that in making the admission he had proceeded on a mistaken understanding or on misconception of facts or on untrue facts such an admission cannot be relied upon without first considering the aforesaid contention. (iv) Avadh Kishore Das v. Ram Gopal [AIR 1979 SC 861]: It was held that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong, but they do raise an estoppel and shift the burden of proof on to the person making them. The Supreme Court further held that unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. 9. Further, the Ld. Counsel for the asses....
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....red the rival submissions and facts on record. We noticed that during search and seizure proceedings conducted in the case of Anand Rathi group along with other group concerns on 24.09.2013 Shri Pradeep Gupta one of the Directors of assessee company was also covered in the above search and certain papers were found in his possession were seized. The issue revolving around the seized paper/document is reproduced for the sake of clarity:- 12. When cross verified the above evidences with Shri Pradeep Gupta, he agreed that this belongs to the projects namely Vishwariya project and Padmavati Nagar project at Jaipur. In the statement he agreed that cash of Rs. 105.57 (62.07 + 43.50) lakhs were generated in Vishwariya project and submitted that Rs. 47.50 lakhs were utilized in Padmavati Nagar project. The balance was utilized in the renovation of his own flat at Beau Monde at Prabhadevi, Mumbai. It is important to note that all these evidences were found in the personal cabin belongs to the Director Shri Pradeep Gupta. None of the transactions reflected in the incriminating material found during search were matching with the Books of Accounts maintained by the assessee. The Assessing O....
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....s of the flat and simply relied on the statement of Shri Pradeep Gupta. 16. Therefore, the addition in the hands of the assessee based on presumption is not called for. The right mode of action should have been to initiate proceedings against the director and corroborated the transaction with the buyers of the flat. 17. There are various judicial precedents wherein, it has been held that no addition can be made on the basis of statement which has been obtained under undue stress and coercion. After the retraction made by director of company, original statement has no evidentiary value. 18. Further, it is submitted that in order to prove that no reliance can be placed on the retraction made by director of assessee company, the Assessing Officer must have made the efforts for issuing notice/summons to buyers of the flat but Assessing Officer chose not to make any further enquiry and has placed reliance only on the original statement. The Assessing Officer should have made cross verification with the buyers of the flat, which the Assessing Officer has failed to do so in the present case and merely made addition on the basis of statement of Director of company. During the cour....
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.... JAIN W/O AALOK JAIN ALJPJ6788N 30/11/2012 915.83 sq.ft 15,90,438 20,00,000 12,00,000 30.11.2012 8,00,000 Ground Floor 115 PANCH WATI WARD NO 46 ALWER (RAJASTHAN) 3 F/1 SUNIL KUMAR GOYAL ABOPG4618B 24-09-2012 1554.61 sq.ft 20,78,049 24,35,000 14,61,000 24.09.2012 9,74,000 First Floor S/O RAMSWROOP GOYAL 15/42 MALVIYA NAGAR JAIPUR &nbs....
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.... by the assessee on sale of flats. In the circumstances, the appeal of the assessee is allowed in terms of our aforesaid observations and the Assessing Officer is directed to delete the addition made on account of alleged on-money cash receipt of Rs. 105.57 lakhs. Grounds raised by the assessee on this issue are allowed. ITA. No. 5264/MUM/2018 (A.Y. 2014-15) 22. We shall now advert to the appeal of the assessee for A.Y. 2014-15. The impugned order has been assailed on the following grounds of appeal before us: "1. The learned CIT(A) has erred in law and on facts in upholding the order passed by the Assessing Officer u/s. 143(3) of the Income Tax Act, 1961 which is illegal and bad in law. 2. The learned CIT(A) has erred in passing the order in violation of principles of natural justice. 3. The learned CIT(A) has erred in upholding the addition of Rs. 32,64,625/- made by the Assessing officer as alleged unaccounted income received from sale of flats over and above registered value. 4. The learned CIT(A) has erred in upholding the addition of Rs. 25,50,575/- made by the Assessing officer as alleged unexplained portion of cash investment in imm....
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.... 16-04-2013 1237.53 sq.ft 21,67,989 27,84,438 5,00,000 19.02.2013 First Floor S/O KULDEEPSINGH GUPTA 56,888 03.04.2013 154 A D GANDHI NAGAR JAMMU ( J&K) 22,27,550 12.04.2013 TOTAL 1,03,10,568 1,03,10,568 25. Thus, from the above, it was observed that the flats have been sold by the assessee at a price much higher than the stamp duty value and thus, the order passed by us while disposing off the appeal of the assessee for A.Y. 2013-14 shall apply mutatis mutandis for disposing the present appeal for A.Y. 2014-15. Accordingly, the addition made in the present appeal is also deleted. Ground No. 3 is allowed. 26. In the present appeal apart from the issue of receipt of on-money, the assessee has also challenged addition of Rs. 25,50,575/- made by the Assessing officer and confirmed by Ld. CIT(A) as alleged unexplained portion of cash investment in immovable property u/s. 69B of the Act. ....