TaxTMI 
TaxTMI 
2022 (6) TMI 19
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....se. The assessee in its appeal for the A.Y. 2010-11 has raised the following grounds of appeal: "(1) The ld. CIT(A) has erred in law and on facts in confirming the action of the ld. A.O. of rejecting the books of account of and the books results u/s. 145(3) of the Act. It is, therefore, prayed that the above action of the ld. A.O. of rejecting books of accounts be quashed. (2) The ld. CIT(A) has erred in law and o facts in confirming the action of the ld. A.O. of making addition in the appellant's case on the basis of estimation of sale rate at Rs.1,500/- per square yard. It is, therefore, prayed that the above action of the ld. CIT (Appeals) be quashed. (3) The ld. CIT(Appeals) has erred in law and on facts in concluding and sustaining the addition on the basis that the appellant earned unaccounted income at the rate of Rs.750/- per square yard from its project. It is, therefore, prayed that the fair estimate of income from the project of the appellant and restricting the addition to that figure be done. (4) The above grounds of appeal are independent of each other and that each ground of appeal is without prejudice to....
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....the facts and in the circumstances of the case and in Law, the Ld. CIT(A) has considered extraneous circumstances while directing to consider expenses, which are not at all warranted while computing on-money income. 5. On the facts and in the circumstances of the case and in Law, the Ld.CIT(A), Surat ought to have upheld the order of the Assessing Officer. It is, therefore, prayed that the order of the Ld.CIT(A)-I Surat may be set-aside and that of the Assessing Officer's order may be restored." *(appeal of revenue for AY 2009-10 was dismissed due to low tax effect vide order dated 23.08.2019 in ITA No. 1163/Ahd/ 2016) 4. The learned Authorised Representative (ld.AR) for the assessee submits that he has filed application for admissions of additional grounds of appeal and to substitute ground No.3 with substituted grounds of appeal, vide application dated 11.09.2021. The assessee in its substituted ground has raised following additional grounds of appeal: "1. The ld.CIT(A) has erred in law and on facts in directing the ld. A.O. to determine the income chargeable during the year in respect of all those plots which have either been registered in the name ....
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.... assessee. On the basis of aforesaid observation, the AO took his view that the book results are not complete and correct and not reliable and issued show cause notice dated 22.03.2013 to the assessee as to why books of accounts and result thereof should not be rejected. 6. The assessee filed its reply as recorded in para 5.2 of the assessment order. In the reply, the assessee stated that vide show cause notice dated 22.03.2013, the assessee was asked by referring the answer of question no.15 by partner that rate of sale of plot was Rs.1400 to 1500 per sq.yardand that there is no documentary evidence to prove the same. The assessee replied that there is nothing in response to the question no.15, it appears that instead of question no.13, the question/answer no.15 is referred. The assessee referred the question no.13 wherein it was asked during the survey that sale of some of plots that were made @ Rs.1400to 1500 per Sq yard and asked about the sale register and the rate of different plots. The partner replied that he did not have any record, account books or other material on the basis of which he can reply to the said question. Rajeshbhai Pengawala had not admitted the rate of ....
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....the real profit does not earn on the booking of plots (units) as certain bookings are cancelled due to various reasons and in case booking is cancelled and the profit which is already considered to have been earned by assessee would have to be reversed and tax collected on such income subsequently to reverse will have to be refunded and there is no provision in the Income Tax Act to reverse the income already considered having been earned by the assessee. The assessee given instances of 20 such cases wherein bookings of plots were cancelled and the assessee had to return the booking amount. The name of such person along with the date of booking, plot no, booking amount, date of cancellation and amount of refund was furnished. The assessee further explained that if booking is equated with the sale than in case of assessee such income would get assessed, which has not been earned and even in subsequent year the assessee has to return such booking amount and no profit on such sale is said to have been accrued, it is in stock of the assessee. The assessee also relied on certain case laws. 8. The reply of assessee was not accepted by the AO by taking view that during the course of su....
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....8.29 * 1.196 =53016.63 Sq. Yard 53016.63 /249 = 212.91 9. Further, as per average rate of registered sale consideration, the AO worked out rate in following manner: Total sales Amount (in Rs.) Total area sold (Sq. Yards) Average rate of Registered sale Consideration 22159393 53016.63 22159393/53016.63 =417.97 10. The AO further recorded that the assessee moved application before the Joint Commissioner of Income Tax(JCIT) for his direction under section 144A of the Act. The direction of ld. JCIT was received vide his letter dated 31.03.2013, which is extracted by the AO in para 5.9 of his order. In the said directions, it was directed that the total number of plots which needs to be considered for computing undisclosed income for the A.Y. 2010-11 should be taken at 411 plots. The AO accordingly, computed the undisclosed income in the following manner: "5.11 Computation of undisclosed income on account of on money receipt: As the Books of the assessee have been rejected, the total unaccounted income from the project needs to be computed. As discussed in the above paras, the assessee has received on-money payment of Rs.1082.03 (Rs.1500 - Rs....
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....ear under consideration. During survey, the assessee admitted additional unaccounted income of Rs.1.50 crore for this year. Normally, the assurance is given by the survey team to the assessee of making admission of unaccounted income during the survey that once unaccounted income is included in the total income of the assessee impugned year and due tax therein is paid by the concerned assessee, then during the course of assessment, no further addition would be made in case of such assessee. Admittedly such assurance is not given in writing by the officer of survey team, nor does any such assurance have any legal sanctity. Though, such practices is being followed by the Department to maintain the trustworthy image of Department and to encourage the assessee to face the proceedings to meet out clean during the survey for making correct disclosure of undisclosed income. On such practice and assurance, the assessee included such additional admitted income of Rs.1.50 crore disclosed during survey in its total income and also paid due tax thereon. No incriminating evidence could be found during the course of survey, it is a fact, which should have been appreciated by the AO before making....
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....assessee furnished the original booking cancellation contract. Out of 403 bookings, the booking of 20 plots was cancelled and as a result of the real booking was restricted to 383 plots. The assessee submitted that as per sanctioned plan, the total numbers of plots in the Water World Project are 384 only. 15. The assessee further stated that the provision of section 44AD laid down statutory yard stick to determine the profit component out of the gross receipt of real-estate business and net income from gross receipt in the real-estate business can be fairly estimated at 8% of the gross profit. To support its submission, the assessee relied upon the decision of Hon'ble Gujarat High Court in DCIT Vs Panna Corporation (2012) 74 DTR 89 (GUJ) and CIT Vs Sharda Real Estate P. Ltd., (2104) 99 DTR 488 (GUJ). 16. On the basis of above mentioned submission, the assessee prayed that the AO be directed to make a fair estimation of income component as per the provision of Income tax Act and also @8% of the alleged unaccounted on money receipt, so as to tax only the income and not the gross receipt of the assessee's business. The assessee also furnished the evidence in respect of booking o....
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....in the books of accounts, if yes, he was asked to produce the same. The partner stated that he has no clue about the same and he could not produce any evidence. 18. In response to question no.8 and 9, partner stated that booking of plot in Water World Project in F.Y. 2009-10 was for Rs.400 per square yard and he did not remember as to how many plots actually booked. The statement of Riteesh Gheewala, Account was also recorded who admitted that all pocket diaries impounded during the survey are related to Raj Enterprise and in his hand writing. In question no.14, he stated that diary, it was impounded as per Annexure BI-4 consisted the details of cash receipt which were recorded as per direction of Rajeshbhai Pengawala, when he was asked to explain whether entries recorded in the diary were included in the books of accounts, he stated that he has no idea and only partner can explain. Gobarbhai R. Gondalia, the other partner not attended nor filed any submission. 19. On the basis of proceedings during the remand proceedings, the AO concluded that partner of the firm and accountant have admitted that diaries have impounded during the course of survey are pertaining to the assess....
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....duced the ledger accounts of Pravin Kapchi with copies of bills of purchases from Pravin Kapchi. The assessee also explained the answers of various other question of partner of the assessee firm, wherein he was asked about the rate of plots and in answer to question No. 8 he explained that the booking was made at the rate of Rs. 400/- per square yard during financial year 2009-10. And in answer to question no. 11 he answered that sale was made at the rate around of Rs. 400/- per month. When the partner was confronted with the answer of other partner namely Gobarbhai Gondalia recorded during survey on 07.01.2010, where he stated the rate at Rs. 1500/- per square yard. The partner explained that Gobarbhai Gondalia is a farmer, he is working partner and he has shown incorrect rate. The assessee explained that the partner of assessee firm was repeatedly asked about the rate at which plots were sold in the water word project by framing different questions in different ways ,but the concerned partner consistently stated that rate of sale of plots were around. The assessee also explained the other answers made in response to various question made during the remand proceedings. 21. The ....
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....t and was asked to explain whether these were recorded in the books of accounts who evaded the question immediately in the next question, he was asked to come with voluntary question, he accepted Rs.1.50 crore as undisclosed unaccounted income which reinforces the conclusion that transactions were substantially out of books. The submission and contention of assessee that transactions recorded in the impounded diaries showing the booking against plot No.B-102 and A- 306 are actually pertaining to other projects and not belonging to assessee, the ld CIT(A) concluded that such contention of assessee is not acceptable to him for the reasons that not only Riteesh Gheewala, Accountant submitted that transactions was recorded for the assessee, even the partner Rajesh Bhai Pengawala was also confronted with the entries in the diaries during the course of survey itself submitted that except amount withdrawn from the bank, the other transaction represent unaccounted business income. He has not refuted that the transaction do not belong to his firm. The ld CIT(A) concluded in the following way. (a) Not only did Shri Ritesh Gheewala accounting assistant submit that the transactions we....
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....e learned Commissioner of Income Tax- departmental representative (CIT-DR) for the Revenue and have perused the material available on record.The Ld. AR for the assessee submits that he has raised two additional ground of appeals and intends to substitute ground no. 3 raised in original grounds of appeal. No new facts are necessary to brought on record for adjudication of additional grounds of appeal and for substitution of ground No.3. The facts relating to such additional grounds are emanating from the order of lower authorities. So far as substitution of original ground no. 3 is concerned, the assessee intends to substitute ground no. 3 which is more specific. To substantiate all grounds of appeal, the ld. AR of the assessee made his submissions extensively. In addition to oral submission, the ld. AR of the assessee filed detailed written submission running into twenty seven pages which are taken on record. 26. On the other hand the ld CIT-DR for the revenue objected for raising additional grounds of appeal and for substituting the original ground No.3 of appeal. The ld CIT-DR for the revenue further submits that the assessee is raising new pleas, which were not raised before ....
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....€¢ CIT Vs Margadarsi Chit Funds (P) Ltd. (1985) 44 CTR (AP) 5 • B. F. Varghese Vs State of Kerala (1969) 72 ITR 726 (Ker.) 29. Ground no. 2 which relates to estimation of rate of sale of plots at Rs.1,500/- per square yard. The ld. AR for the assessee submits that ld. CIT(A) after confirming the action of the Assessing Officer in rejection of books of accounts under section 145(3) confirmed estimation of sale at Rs.1,500/-, which is liable to be rejected. The Assessing Officer in page no. 17 in his order referring statement and the evidences on the basis of which the Assessing Officer concluded that the assessee charged on-money of around Rs.1,500/- per square yard on sale of plots in water world project. On the basis of statement of Ritesh Gheewala recorded on 06.01.2010 during survey proceedings. Shri Ritesh Gheewala retracted from his statement by filing retraction letter filing before the Assessing Officer, copy of which is filed on record. The said statement was provided to the assessee just one day before passing the assessment order. The Assessing Officer has not examined Ritesh Gheewala, on the affidavit of retraction. In absence of cross-examination, the....
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....t recorded or does not cooperate in recording the statement during the survey proceedings. There is no such claim of non-cooperation recorded by survey team; therefore the course to section 131(1) for recording his statement is illegal and invalid. To support his submission, the ld. AR for the assessee relied upon the following decisions: • Pawan Kumar Goel vs UOI (2019) 107 taxmann.com 21(P&H) • CIT vs Mool Chand Salecha (2002) 124 Taxman 898 (Raj) • Shri Venkateshwara Tourist Home P. Ltd. Vs ADIT (1998) 101 taxman 710 (Kar.) • Maruti Mills Pvt. Ltd. Vs UOI & Ors (2000) 159 CTR 142 (Raj.) • Dr. Vijay Phawa vs Samir Mukhopadhyay (1995) 129 CTR 64 (Cal.) • Gheru Lal Bal Chand vs ITO (1982) 137 ITR 190 (P&H) • Ram Saroop Pawan Kumar vs ITO (1980) 18 CTR 101 (P&H) 33. The ld. AR further submits that superiors High Courts have consistently held that no addition can be made merely on the basis of statements recording during the survey unless there is corroborating evidences to support such statement. The Assessing Officer solely relied upon the impugned diary in respect of properties at A-306 a....
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....(1) of the Act can be held only one person concerned refuses to have his statement recorded or does not cooperate in recording his statement during the survey. There is no such reference recorded by survey team. Therefore, recourse to section 131(1) for recording statement on oath is invalid and illegal on the basis of various decisions cited earlier. 35. The ld. AR for assessee further submits that Assessing Officer relied upon the entry in the impugned diary in respect of property at A-306 and B-102 which pertains to a different project than the project of assessee. 36. On the statement of Gobarbhai Gondalia, ld. AR for the assessee submits that statement was recorded on 07.01.2010 during the survey proceeding, copy of which is filed on record. In his statement was recorded at 3.30 AM during night hours on 07.01.2010. The Gujarat High Court in the case of Kailashben Manharlal Choksi Vs CIT (2010) 328 ITR 411 (Guj.) wherein held that no reliance can be placed and no evidence can be attached to his statement recorded during odd night hours. The ld. CIT(A) observed that there is no proof that in his statement was recorded at mid night. The assessee made similar claim before As....
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.... assessee submits that copy of sale deed of flat no. B-102 in Shivalik Heights is placed on record and the particulars of properties, sale and seller and purchases are clearly discernable which altogether different project is. Similarly, for flat no. A-306 which was purchased by Rajubhai in "Shivalik Heights", the purchaser of flat no. 310 is Mr. Parvin Virash who is carrying the business of construction and was also selling building materials, thus he supplied certain building material to the assessee, and further no plot was booked by him. The assessee furnished the booking details and plot no. A-306 is booked by Kokila M. Lalwala and not by Shri Rajubhai. The Assessing Officer ignores the documentary evidence furnished by assessee and confirmed the action of Assessing Officer. As a matter of fact, diary is appeared directly in the assessment order and there is no whisper of same during the course of assessment proceedings for which the Assessing Officer had to call a remand proceeding. None of the evidence established that sale rate of assessee was more than the sale rate recorded in the books of accounts at Rs.407/- per square yard. 39. On ground No. 3 which relates to estim....
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....ed in section 2(47) of the Act to the case of assessee for whom the plots of land are stock in trade. The provisions of section 2(47) apply to capital asset only and the action of the Assessing Officer is liable to be quashed which is inconsistent to provision of the Act. To support his submission, the ld. AR of the assessee relied upon the following decisions: • CIT vs Motilal C. Patel & Co. (1988)71 CTR 0098(Guj) • CIT vs Ashaland Corporation (1981) 25 CTR294 (Guj) • CIT vs Shah Doshi & Co. (1981) 23 CTR 307 (Guj) • ITO vs Shri Shiddarth S. Patel (ITA No.1852 & 1853/Ahd/2003 and ITA No.2959/Ahd/2003) 42. The ld. AR submits that in the aforesaid decision, the Hon'ble jurisdictional High Court clearly laid down that in case of a dealer in immovable property, the profit can be considered to be earned by the dealer only in respect of immovable property for which registered sale deed is executed in favour of the customer by the dealer. The Assessing Officer in page no. 18 of the assessment order recorded that during the year the assessee executed registered sale deed in favour of 68 customers/purchasers. Accordingly, the Assessing....
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....01.2009 (Gujarat) 170-180 (ii)Free English translation of statement of Rajesh Pengawala 181-190 (iii)Statement of Shri Ritesh Gheewala dated 06.01.2014 (Gujarati) 191-197 (iv)Free English translation of statement of Ritesh Gheewala 198-199 (v)Free English translation of statement of Rajesh Pengawala 3.10.2014 200-201 (vi)Free English translation of statement of Ritesh Gheewala 13.10.2014 209-212 45. The assessee in his separate paper books also filed following documents on record. (1) Copy of recorded statement of Ritesh Gheewala dated 06.01.2010, (2) Copy of retracting affidavit of Ritesh Gheewala dated 28.03.2013, (3) Copy of recorded statement of Rajesh Pengawala dated 06.01.2010, (4) Copy of recorded statement of Gondalia dated 07.01.2010 recorded during survey, with retraction statement, (5) Copy of impounded diary in relation to property No, A-306 and B-102, (6) Copy of affidavit of Praveen kapachi dated 18.06.2015, (7) Relevant details of booking of plot made by customers in water word project about Plot No. A-306, booked by Kok....
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.... Riteesh Gheewala, accountant of assessee firm also made his statement about recording pocket diary found and impounded during survey. In his statement on oath, the accountant admitted unequivocally in response to question no. 3 that it is the person maintaining the diaries and receiving the payments in cash and cheque. In the light of submission made by assessee regarding the booking during post-survey enquiry and also taking into consideration, the statement of the partners and the accountants, recording during the survey, it would be judicious to consider that total number of 433 plots in respect of the assessee received money till 31.03.2010. The assessee contended that total places were sold in AY.2009-10, therefore the undisclosed income in respect of 22 plots were considered in AY.2009-10 and for remaining 411 plots undisclosed income earned by way of receipt of on-money were brought to tax in AY.2010-11. During the assessment proceeding, the statement of Shri Rajesh Pengawala was recorded on oath. In the statement on oath, his statement of Shri Riteesh Pengawala was also recorded in his statement of Shri Riteesh Pengawala admitted that all pocket diaries impounded during th....
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.... evidence. The time gap between the statement and the retraction would also one important points to be taken into consideration, whether statement was volunteer or not and (ii) the other circumstances where the statement was given under mistaken belief of either fact or law. Here again burden is upon the person giving the statement to prove that the statement given by him was factually incorrect or was untenable in law. The facts disclosed during the statement were within the exclusive knowledge of the partners of the assessee, one disclosed in full consciousness, were binding on the assessee, as no contrary is proved. To support his submission, the ld. CIT-DR relied on the decision of Manharlal Kasturchand Choksi Vs ACIT (1997) 61 ITD 55 (Ahd.). The retraction of assessee is suffered from other procedural defects. The assessee being responsible for execution of project voluntarily gives statement under section 133A on a particular of times. It does not indicate any sort of pressure or coercion but alert presence of mind and clarity of thought of the person who was deposing. In other statement, it was categorically and unequivocally stated that there were maintaining proper books o....
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....and accountant, recorded during survey action and the investigation carried out post survey action. The AO rejected books of accounts (para 5.10 of his order), mainly for two reasons by taking view; (i) that the sale consideration recorded in the books of accounts are significantly lower than actual sale consideration as large part of sale consideration is received in cash, which is amply clear from the entry in the diaries impounded during survey, wherein entry with regard to plot no. A-306 purchased by Suresh SK is Rs.3,00,000/- and against plot No. B-102 purchased by Praveen Kapachi is Rs. 3,50,000/-and (ii) on perusal of details of certain payment the AO found that assessee has shown commissions payment of Rs. 15,000/- to Dhirajbhai Manilal Rana on 26.12.2009, however, on verification of cash book it was found that no such entry is reflected, these facts leads to the conclusion that books of accounts are not complete. The ld CIT(A) confirmed the action of AO by taking view that the books of account of the assessee not complete and are incorrect and do not record all material transaction. However, for AY 2009-10, the ld CIT(A) recorded that no ground of appeal in challenging the....
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....he copy of sale deed in respect of flat No. B-102 Shivalik Heights, Vesu Surat, dated 25.06.2012 executed by Shivalik Enterprises in favour of Praveen Kapchi (page No. 28 to 53 of PB). The assessee also filed affidavit of Praveen Kapchi (page No. 105 & 106 of PB), wherein, the said Praveen Kapchi made statement that he had not invested, booked or purchased any plot or Bungalow in 'water word project'. For other transaction with regards to A- 306, the entry is also not related with the project of the assessee. We find that the assessee has placed on record the details of the booking of plot No. A-306, which was booked by Kokila M Lalwala and he has paid Rs. 80,000/- (page No79 of PB). Thus, from the aforesaid documentary evidences the assessee has proved that the entry with regards to plot No. A306 and B-102 allegedly recorded in the impounded diary are not related with the assessee. The said diary was recovered from the possession of Accountant Reetesh Gheewala. Statement of Reetesh was recorded by survey team on 06.01.2010. We have seen the statement of Reetesh Accountant. Total 10 questions were asked to him. None of the question was related with plot No. A-306 or B-102 allegedly....
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....ed as per said pocket diary? • Answer No. 19: The sale of plots stated in the said pocket diary is made at Rs. 470/- per sq.yd. • Question No.20: According to the details of said found diaries, it seems that you are making us write wrong details in answering to question no. 19. If you are lying, give explanation for it. • Answer No.20: No Sir. I am making you write the correct details. • Question No.21: You have received a SMS on your mobile from a person named Siddharth Shah on 4.1.2010 at 8:11 p.m., wherein the names of foreign customers and the details of financial transactions made from there are written. Moreover, SMS received in respect of payment details from Kuntesh dated 30.10.2009 at 3:17 p.m. and from Rajiv on 1.10.2009 at 3:58 a.m. mentioning about finance. Give explanation regarding these transactions and inform about whether such details are recorded in the books of account or not? • Answer No.21: At present, I have no idea about such financial transactions made with such persons. • Question No..22: Do you want to say anything specific? • Answer No.22: Yes, Sir, taking into the ....
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....he action of AO in rejecting the books of the assessee is set-aside. 53. Now adverting to the estimation of income by the assessing officer on the basis of statement of Reetesh Accountant and the partner of the assessee. The ld AR for the assessee also vehemently submitted that recording of statement under section 131(1) during the course of survey is illegal and invalid unless there is satisfaction of survey party that the person refuses to make his statement or does not co-operate in recording statement during survey. We have already extracted the relevant part of statement of the person, on the basis of which the AO made estimation of rate of sale price of various plots in water word project, which was being developed by the assessee during the relevant period of time. The statement of those persons was recorded under section 131(1), however, there is no endorsement of the survey party that the partners of the assessee-firm refused to have their statement or not co-operated during survey. We find that Hon'ble Gujarat high Court in Pawan Kumar Goel Vs Union of India (supra) held that provision of section 133A(4) prohibits the income tax authority to remove cash, stock or other....
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.... 3, therefore, consideration on other submissions and adjudication of other and additional grounds of appeal have become academic, 57. In the result, the appeal of the assessee for AY 2010-11 is allowed and the cross appeal of the revenue is dismissed. ITA No. 1166/Ahd/2016 appeal by assessee for AY 2009-10 58. The assessee has raised following grounds of appeals: (1) The Id. CIT(A) has erred in law and on facts in confirming the action of the Id. A.O. of making estimation of sale rate per square yard as well as of the income from the project of the appellant without rejecting the books of accounts and the book results in the appellant's case by invoking the provisions of sec. 145 of the Act It is, therefore, prayed that the relevant addition confirmed by the Id. CIT (Appeals) on the basis of estimation of the sale rate per square yard as well as the income from the project of the appellant be deleted. (2) The Id. CIT(A) has erred in law and on facts in confirming the action of the Id. A. O. of making addition in the appellant's case on the basis of estimation of sale rate at Rs. 1,500/- per square yard. It is, therefore, prayed ....