TaxTMI 
TaxTMI 
2022 (11) TMI 239
X X X X Extracts X X X X
X X X X Extracts X X X X
....on to assessment proceedings. The grounds raised by the assessee in the appeal are reproduced as under: "1. On the Facts and circumstances of the case as well as in law, the Learned Assessing Officer has erred in reopening the assessment completed u/s 143(3) of the Income Tax Act, 1961, without considering the Facts and circumstances of the case. 2. On the Facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the Action of Learned Assessing Officer in making an addition of Rs.30,58,864/- on account of alleged on-money in respect of Nagaon project was not disclosed by the appellant, without considering the Facts and circumstances of the case. 3. On the Facts and circumstances of the case as well as in law, the Learned CIT(A) and Learned Assessing Officer has erred in not considering the Facts that 20% on-money disclosed was not supported with any Facts and were only on the basis of assumption. 4. On the Facts and circumstances of the case as well as in law, the Learned CIT(A) and Learned Assessing Officer has erred in completing the assessment on the basis of statement given by the Director without going....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ey in Nagaon project was made to avoid litigation and buy peace of mind only, secondly, it was contended that on-money was not received on all the sales as a stated during the course of statement, thirdly, it was submitted that large portion of the said on-money would have been expended for purchase, construction and element of the land. In view of above reasons, it was submitted that a reasonable percentage of the profit should be estimated for undisclosed income rather than entire on-money. The Learned Assessing Officer rejected the contention of the assessee in view of the statement given on both by the director of the company. He also rejected the claim of the assessee for set off for unaccounted expenses while purchase, construction, et cetera as uncorroborated. Before the Ld. CIT(A), the assessee made detailed submissions contending that no addition could have been made solely on the basis of the statement recorded during the course of the search, ( which was subsequently retracted), without any corroborative evidences. It was also submitted that during statement it was clarified that on-money was not received from all the customers and amount so offered by Shri. Sameer Nerul....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of various brokers, reproduced by the Ld. CIT(A) as part of submission of the assessee, there is a clear mention of amount of cash component in purchase of land. The relevant statements of brokers reproduced by the Ld. CIT(A) is extracted as under: "Statement of Shri Anil Shantaram Patil: Q5. Please state the amount of commission you have got for facilitating M/s Samira Habitats India Limited in the land dealings at Nagaon. Please also state that there is any amount of cash paid by M/s Samira Habitats India Limited to land owners/ farmers during the purchase of land. If so, also state the quantum of payment made by M/s Samira Habitats India Limited to the concerned land owners/brokers. Ans: Sir, I confirm that I have facilitated M/s. Samira Habitats India Limited in the land dealings at Nagaon. The details of the gut numbers and the commission for the same are depicted as under: - Sr. No. Gut No. Approx Commission and the rate (Amount in Rs.) Approx. value of consideration paid in of cash (Amount in Rs.) 1 1931 9,982 Nil 2 1744 11,150 2,00,000 3 3 56, 760 3,00,000 4 20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts the cash consideration paid for land dealings by M/s Samira Habitats India Limited to the respective farmer/ farmers In cash?? ' Statement of Smt Asha Janardan Hale:- "Q5. Please state the amount of commission you have got for facilitating M/s Samira Habitats India Limited in the land dealings at Nagaon. Please also state that there is any amount of cash paid by M/s Samira Habitats India Limited to land owners/ farmers during the purchase of land. If so, also state the quantum of payment made by M/s Samira Habitats India Limited to the concerned land owners/brokers. Ans: Sir, I confirm that I have facilitated M/s Samira Habitats India Limited in the land dealing at Nagaon & Sahan village. The details of the gut numbers and the commission for the same are depicted as under:- Sr. No. Gut No. Approx. Commission and the rate (Amount in Rs.) Approx. value of Consideration paid in of cash (Amount in Rs.) 1 1688 44,413 70,40,0007- 2 1723 33,215 Nil 3 1745 48,388 6,97,000/- 4 2401 47 450 18,01,000/- 5 2048 7 2025/1 2025/2 75,148 Nil 8 1906, 1920 36,96....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Samira Habitats India Limited to the respective farmer/farmers in cash." Statement of Shri Nitin Narayan Adhikari:- "Q5. Please state the amount of commission you have got for facilitating M/s Samira Habitats India Limited in the land dealings at Nagaon. Please also state that there is any amount of cash paid by M/s Samira Habitats India Limited to land owners/farmers during the purchase of land. If so, also state the quantum of payment made by M/s Samira Habitats India Limited to the concerned land owners/brokers. Ans: Sir, I confirm that I have facilitated M/s Samira Habitats India Limited in the land dealings at Nagaon. The entire amount of consideration which was to be paid through cheque has been directly paid to the concerned owners/farmers, through my account. The company used to give the cash portion of the consideration to me to suther hand over the amount to the concerned farmers. As per terms and condition laid down during negotiation, I kept Rs. 70,0007- per gunta and I used to give balance amount to concerned owners/farmers. The same amount I used to charge from the company i.e. Rs.10,000/- per gunta. The details of the gut numbers and the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Ans: Sir, I confirm that the above mentioned amount to the tune of Rs. 6,00,77,175/-have been paid in cash to the farmers/owners." 10. In the seized documents also reference of payment of Rs. 6, 00, 77, 175/- for purchase of the lands. Thus, in the light of statements of the brokers and seized documents, it cannot be denied that on-money was paid while purchase of land by the assessee. We find that identical issue of addition of on-money in assessments under section 153A for search period i.e AY 2007-08 onward has been restored back to the file of the Assessing Officer by the Tribunal wide order dated 19/07/2022, therefore, in the Facts and circumstances of the case, we feel it appropriate to restore the issue in dispute involving grounds raised by the assessee to the file of the Learned Assessing Officer for considering the claim of the assessee for making addition for undisclosed income for on-money at the rate of the 10% of the sales after giving set off of the expenses of on-money incurred for purchase of the land. The grounds of the appeal of the assessee accordingly allowed for statistical purposes. ITA No. 531/MUM/2022 11. The grounds raised in ITA No. 531/....