TaxTMI 
TaxTMI 
2012 (4) TMI 853
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..../- made by the AO for the money given by assessee in cash out of his undisclosed income for the purchase of land and accepting the surrender of Rs. 1,00,00,000/- being peak amount. The brief facts of this case are that the AO re-opened this case on the basis of following reasons: " on the basis of information in possession and enquiries made, a survey operation u/s 133A of I. T. Act 1961 were carried out on 12.08.2008 on the above named assessee at Sri Vrindavan, E-12/8 Sanjay Place Agra. As a result of operation various incriminating documents were impounded. On the basis of these incriminating papers assessee made a voluntarily declaration of Rs 10.00 Crore in his group. " Upon careful perusal of annexure- A-07, which is hand written ledger, where amount paid in cheque and in cash are separately maintained. The contents of this annexure were reconciled from the regular books of account and it was learnt that the amount paid in cash was not recorded in the regular books of account. During the survey operation, this document was confronted to the assesses and vide question No 14 of the statement of Sri Shailendra Garg, director of the assesses company, it was conceded t....
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....ctions of lands of Nlkhil Fort and Nikhil Paradise were made with the farmers through him and appellant filed detailed working along with copy of account of Shrl Narain Singh, Details of payments made to farmers by way of account payee cheques, copy of bank statement reflecting details of clearance of cheques and Peak amount of payment given to Mr Narain Singh. 3.1 The aforesaid reply of the assesses did not find favour with the Assessing officer, who after discarding the same made the additions on the basis of following grounds :- (a). In spite of repeated opportunities, assessee did not* divulge the correct identity of Sri Narain Singh and never produced him in this office. After getting address summon u/s 131 were issued on Shri Narain Singh on 03.12.2009 fixing the case on 11.12.2009 but no compliance was made. Thereafter, a summon was also sent on 11.12.2009,fixing the case on 14.12.2009. Shri Narain Singh filed an affidavit that he has no concern with M/s. Nikhil Homes Ltd. during the A.Y. 2006-07 and 2007-08 he has not indulged in any transaction with the assesses company. (b) As per the prevalent trade practice in real estate business, it is observed th....
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....adverse inferences and before jumping to the conclusion. The assessee also submitted the clipping of some of the news papers which clearly reflects the name of Shri Narain Singh with the assessee in which he was fully indulged in transaction of the purchase of lands mentioned in Annexure A-7. 4.2 It was further contended by the ld. counsel for the assessee that AO has failed to bring any corroborative evidences on record in support of Annexure A-7. The appellant placed reliance on the decision of Hon'ble Delhi High court in [2010]322 ITR 191 [DELHI] in which it was held that addition can not be made in absence of any other corroborative evidences and AO has not brought any other evidences. 4.3 The ld. CIT(A) found considerable substance in the contention of the assessee that identity of Mr. Narain Singh was well divulged by the assessee and the AO could not bring any concrete evidence on record in support of his assumptions. The assessee further contended that during the course of assessment proceedings the statement of the managing director of the assessee company namely Sh. Shailender Kumar Agarwal was recorded on 1-12-2009 and it was stated by the said director vide reply ....
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....IVED AMOUNT CH NO NAME OF FARMERS BY BANK DATE OF PAYMENT CHEQUE AMOUNT 11.01.06 600000 249894 POORAN SINGH 11.01.06 614461 PNB 13.01.06 1800000 249891 NAWAB SINHG 13.01.06 1843385 17.01.06 1200000 249895 MOHAN SINGH 17.01.06 614461 17.01.06 100000 249896 HORI LAL 17.01.06 614461 18.01.06 150000 249803 PRADEEP DIXIT 17.01.06 100000 18.01.06 900000 249898 SUBHASH 18.01.06 45468 19.01.06 300000 249899 VIRISHINGH 18.01.06 45468 20.01.06 100000 249900 SATISH 18.01.06 45468 24.01.06 900000 249892 NEK RAM 24.01.06 921692 31.01.06 400000 249897 JEVAN LAL 19.01.06 333437 18.03.03 500000 249804 MANISH DIXIT 20.01.06 100000 249893 CHNADRA PRAKASH 24.01.06 921692 249890 BAHABUDDIN 18.03.06 500000 1,02,00,000 DETAILS OF CASH PAYMNET MADE TO Mr NARAIN SINGH DATE AMOUNT NAME OF PROJECTS 02.12.05 500000 NIKHIL PARADISE 05.12.05 450000 ....
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.... that AO has not brought any material on record to contradict these documents and details and has simply ignored the argument and the pleadings of the assessee with the objective of justifying the addition. 4.7 In this connection, the assessee has contended that statement of Mr Narain Singh was recorded by AO on i7.12.2009, therefore identity of Mr. Narain Singh can not be doubted once his statement was recorded by the AO himself. 4.8 The assessee's issue is that once Narain Singh had come into the control of AO and his statement was recorded at the back of the assesses, he became witness of AO. Therefore, it was the duty of AO to put him for cross examination of the assessee in the interest of justice. Therefore, principle of natural justice was violated and it was ensured that the statement of Mr. Narain Singh was recorded in absence of assessee and no opportunity of cross examination was given. The ld. counsel for the assessee submitted that it is worth-while to note that the assessee vehemently requested the AO to allow the presence of the assessee at the time of examination of the statement and also requested his cross examination and also explained that assessee was....
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....making an addition by the AO in the assessment order is that the amount shown as paid in cash was on a/c of cash component in the purchase of land, where the land was purchased at circle rate {Market price) and also the contention of the assessee company right from the beginning is that the cash was paid on account of surety to the middle man/facilitator. This was consistent statement of the assessee right from the beginning and no contradiction has been ever made in this regard by the assessee and there was no evidence with the AO to hold that any cash was paid over and above the amount of cheque for purchasing land. Under these circumstances it is the AO who alleged that the cash paid was on account of purchase of land purchased from the farmers. Under these circumstances the burden was upon the AO to lead the evidences by making! r requisite verification from these farmers to support his allegation. However he chose to make addition merely based on his bald allegation. 4.11 It was brought to the notice of the AO that the land was purchased as per the circle rate which is evident from the copy of registry filed reflecting that on 15.012007, 1.8437 Hectare land was purchased fo....
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....armers. The land was purchased at Circle rates which was of Rs 2,85,00,000/- while actual payment made the appellant was Rs 2,85,50,460/-. The AO has relied only on one part of the statement of Mr Shailendra Agarwal that payment has been made to Mr Narain Singh but did not rely on the rest of the statement that the said money was refunded back to the assessee company for which the appellant has filled detailed working of Copy of Account of Mr Narain Singh, details of payments made to farmers, details of cheques No,, details of amount refunded back to the assessee company and details of peak amount of payments made to Mr Narain Singh. against which the AO has not brought any contradictory evidences. In my opinion, addition can not be made on the basis of a portion of statement of appellant. 21. I have considered the written submission filed by the appellant and also evidences available on records, and noticed that during the course of assessment proceedings on 18.12.2009, first time, the AO asked for proof & evidences to substantiate the claim that money has been given to Mr Narain Singh & others and to produce S/Shri Dhurub Vashistha, Girraj Singh, Pandit Sri Krishna, V.K ....
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....s Annexure were reconciled with the regular books of account and it was learnt that the amount paid in cash was not recorded in the regular books of account. During the survey operation, this document was confronted to the assesses and vide question No 14 of the statement of Sri Shailendra Garg, Director of the assesses company, it was conceded that some of the transaction recorded in this Annexure are not accounted for in the regular books of account. Annexure A-7, relates to the purchase of land in the project of Nikhil Fort / Extention, Nikhil Paradise, Nikhil Garden and Nikhil Udyan where details of amount paid to farmers are recorded. The total amount paid in cheque is Rs 4,26,69,986/- and paid in cash is Rs 2,86,23,854/- relevant to A.Y 2007-08. On the basis of these impugned papers, the AO rejected the Books of Account by invoking provision of section 145(3) stating that the books of account maintained by the assessee are incomplete as substantial transactions have been made outside the books of accounts and in absence of complete books, the books of account can not be said to be correct and accordingly added the sum of Rs. 3,24,69,311/- as the income of the asse....
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....ance was made. Thereafter, a summon was also sent on 11.12.2009,fixing the case on 14.12.2009. Shri Narain Singh filed an affidavit stating that he has no concern with M/S Nikhil Homes Ltd during the A. Y 2006-07 and 2007-08, He has not indulged in any transaction with the assesses company. (b) As per the prevalent trade practice in real estate business, it is observed that there is sizeable amount of cash components in the purchases of land and the same was given by the assesses for the purchase of land. (c) It is very unusual and uncommon that the money was given as surety to somebody who has also not accepted that he has received the money as surety. (d) The assesses does not have any proof that the amounts were given as surety and same were received back. 7. In this connection the ld. counsel for the assessee contended that the assessee has divulged the identity of Shri Narain Singh on 01.12.2009 at the time of Statement of Shailendra Agarwal, Managing Director of the assesses company, recorded on 01.12.09 and on the basis of that, the AO issued summon u/s 131 on 03.12.2009 to Mr Narain Singh. Thereafter the assessee further divulged the identity o....
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....t of Annexure A-7. The appellant has placed reliance on the decision of Hon'ble Delhi High court in [2010]322 ITR 191 [DELHI] in which it was held that addition can not be made in absence of any other corroborative evidences. because AO has not brought any other evidences. 7.4 The ld. CIT(A) found that there is considerable substance in the contention of the assessee because the identity of Mr. Narain Singh was furnished by the assessee and the AO has not brought any concrete evidence on record in support of his assumptions. The assessee further contended that during the course of assessment proceedings the statement of the managing Director of the assessee company namely, Shri Shailender Kumar Agarwal was recorded on 1-12-2009 and it was stated by the said director vide reply No. 3 that the cash payments shown in the Annexure A-7 were paid to Sh. Narain Singh as amount of security/earnest money against the cheques issued to various farmers on account of purchase of lands from these farmers. It was also stated that when the cheques were realized the amount was received back. However AO made the addition of Rs.3,24,69,311/- by aggregating all the payments shown in the column ....
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....or any enquiry or investigation was made by AO from them and also no opportunity was given to assessee to cross- examine them. From the very beginning, the assessee has stated that No land was purchased either from Mr Narain Singh or from any persons reflected at page 05 of the assessment order. They simply acted as Surety and middle men and on clearance of cheques from Bank in the name of farmers, they used to refund the money paid in cash to the company. In this connection, the assessee has enclosed the detailed working of Copy of account of Mr Narain Singh, and other persons to whom payment were made, Details of cheques issued to the farmers from whom land was purchased, Copy of Bank Statement reflecting details of cheques honored by the Bank, and working sheet for working out the Peak amount. The assessee has submitted the copy of account of Mr. Narain Singh reflecting inflow and out flow of cash of Rs 1,87,70,000/- (which includes the sum of Rs.40,75,000/- as opening balance resulting in Rs 1,46,95,000/- for the F.Y 2006- 07 ) along with the details of cheques issued to the different farmers and copy of bank account reflecting the amount of clearance of cheques. The assessee h....
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....n that AO has not brought any material on record to contradict these documents and details and has simply ignored the rightful argument and the pleadings of the assesses with the sole objective of justifying the addition. 7.10 In this connection, the assessee has contended that statement of Mr Narain Singh was recorded by AO on 17.12.2009, therefore identity of Mr Narain Singh can not be doubted once his statement was recorded by the AO himself. The ld counsel for the assessee submitted that the most surprising fact here is that once Narain Singh had come into the control of AO and his statement was recorded at the back of the assesses, he became witness of AO. Therefore, it was the duty of AO to put him for cross examination by the assessee in the interest of the justice. Therefore, principle of natural justice was violated and it was ensured that the statement of Mr. Narain Singh was recorded in absence of assessee and no opportunity of cross examination was given. According to the AR, it is to avoid the rigorous of the department and under the fear of unwanted action from the income tax department, witness may have become scared and could not narrate the facts truly, especial....
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....ponse is not being given by him to the assessee. Hence it is further requested to summon him." Therefore under these circumstances it was duty of AO to put this witness for cross examination before drawing adverse inferences and before making unjustified addition in the income of the assesses. It was further contended by the ld. counsel for the assessee that one of the reasons for making an addition by the AO in the assessment order is that the amount shown as paid in cash was on a/c of cash component in the purchase of land, where the land was purchased at circle rate {Market price) and also the contention of the assessee company right from the beginning is that the cash was paid on account of surety to the middle man/facilitator. This was consistent statement of the assessee right from the beginning and no contradiction has been ever made in this regard by the assessee and there was no evidence with the AO to hold that any cash was paid over and above the amount of cheque for purchasing land. Under these circumstances it is the AO who alleged that the cash paid was on account of purchase of land from the farmer. Under these circumstances the burden was upon the AO to lead t....
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....middlemen, surety and facilitator in the process of transaction of purchases of land and said money was returned back by them as soon as the purpose was achieved. Now the question arises whether the said payments were refunded by them to the assesses company or not .? Now it becomes necessary to know why the appellant has made said payment in cash to the different persons .? As the appellant is engaged in the business of Real Estate, In my opinion, the cash payments may be made by the appellant in the following circumstances :- (a) Payment against the purchases of Land. (b) Advances against the purchase of Land. (c) Loans and advances for any other purpose (d) Brokerage against the purchase of Land (e) Payment as surety against the purchase of land (f) Payments made to persons as middleman against the purchases of land A perusal of the assessment order shows that AO has covered the present case as the said cash payment have been made to different persons as over and above the payment made in cheque for the purchase of land which is over and above the registered amount but did not bring any evidences to substantiate his ....
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....ased from them nor any evidence is available on record reflecting any payment of brokerage hence in my opinion, the said payments can not be treated as brokerage. The Appellant has also filed the copy of account of Mr Narain Singh, Copy of Bank Statement, details of payments made to farmers through account payee cheques. The copy of account reflects the sum of Rs.40,75,000/- as opening balance and the sum of Rs 1,46,95,000 was paid during the year to Mr. Narain Singh and it also reflects that the sum of Rs 1,87,77,000/- received by the assesses company during the year. Copy of accounts also reflect the details of cheques reflecting dates, Cheque Nos, Name of farmers and also date of clearance of cheques from the bank, and name of farmers to whom cheques were issued and the details of amount received back on the clearance of cheques along with the working of peak amount Rs 1,24,41,647 out of which the sum of Rs 1,00,00,000/- related to A.Y 2006-07 has been disclosed by the appellant in relevant A.Y and the sum of Rs 24,41,647/- is related to A,Y 2007-08 and accordingly the appellant filed its revised return on 14.12.2009 in response to notice issued u/s 148 dt 06.03.2009 re....
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....he appellant has filed detailed working of Copy of Account of Mr Narain Singh, details of payments made to farmers, details of Cheques No, details of amount refunded back to the assessee company and details of peak amount of payments made to Mr Narain Singh. against which the AO has not brought any contradicting evidences. The appellant has also filed the copy of order sheet filled up to 18.12.2009. On 18.12.2009 the AO made enquiry as per para (2) with the appellant asking "Do you have any proof or evidence to substantiate your claim that you have given money to Sri Narain Singh .? in response to the said enquiry the appellant stated as on 24.12.2009 that " Your honor has questioned the authenticity of the payment reflected in Annexure 7-A impounded during the course of survey. Your honor has made this annexure A7 and information forming part of the reasons to believe that the income has escaped assessment. This question in true clearly indicates that your goodsleg do not rely on these information and the action has been taken on mere suspicision which itself render the entire proceeding ab initio void." After going though all these relevant facts and examination of asses....
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.... opinion, reasonable opportunity was not given to the appellant. AO did not bring any contradictory evidences against the detailed working filed by the assessee and also AO has not brought any corroborative evidences. AO did not make any positive efforts to investigate them and also did not summon them for investigation and cross-examination. Under the facts and circumstances of cases, the assessee deserves to succeed partly. In my opinion, the assessment should be made on the basis of Peak amount which is Rs.24,41,647/ =. Hence the addition of Rs 3,24,69,311/- made by the AO is hereby deleted and AO is directed to revise appellate order on the basis of Peak amount of Rs 24,41,647/-, resulting net relief of Rs.3,00,27,664/-. " 9. The ld. DR relied upon the order of the AO and submitted that cash was not entered into the books of account and details of the farmers are not known. Shri Shailender Kumar Agarwal in statement recorded on 12.08.08 admitted cash payment outside the books of account and also made surrender of the same amount for not recording the cash payment in the books of account. The seized paper contained payment made to Mr. Narain Singh but how Narain Singh, in tur....
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....ered the rival submissions and the material on record. It is not in dispute that all the cheque payments made to the farmers have been recorded in the books of account of the assessee, which are noted in the seized papers. No evidence has been brought on record that any cash payment was made to the farmers for the purchase of land. It is also not in dispute that no land was purchased from Shri Narain Singh and others, as mentioned in Annexure A-7. So there is no question of giving any payment to them as is alleged in the seized paper. The assessee filed reconciliation statement of cash and cheques to support his contention that the amounts were given to Shri Narain Singh as middle man as surety and the same amount was returned to the assessee-company on clearance of cheques. Reconciliation statement has not been disputed by the Revenue before us. The identity of Mr. Narain Singh was divulged by the assessee, which is also clear from the fact that his name is mentioned in the seized paper. Therefore, the role of Mr. Narain Singh cannot be disputed which is also apparent from his name mentioned in the seized paper as well as in his statement. The AO has not brought any evidence on re....
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....rrendered the amount for the purpose of taxation. The calculation of the same is not disputed. The details of payments made to the farmers was filed but the AO did not examine any farmer to prove if over and above the amount mentioned in the sale deed was paid to any person and no proper investigation has been made. Further, when Mr. Narain Singh in statement denied his role in the project of the assessee, which was also not subjected to cross- examination, would at least prove that no amount was received by Shri Narain Singh. Therefore, there is no question of giving any amount in cash to anybody. The AO on one side believed role of Shri Narain Singh that the amount was given through him, but on the other side disbelieved his statement that he denied his role in the entire transaction and further his statement was not subjected to cross examination. Therefore, there was no reason to believe that assessee paid any cash as per the seized documents. In such a circumstance, it would have been proper for the AO to bring corroborative evidence on record to support his assumption of facts, but the AO failed to do so. Hon'ble Delhi High Court in the case of CIT vs. Anil Bhalla, 322 IT....
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....he ld. CIT(A), therefore, we are not inclined to interfere with the order of the ld. CIT(A). Considering the totality of facts and circumstances in the light of the findings of the ld. CIT(A) and material on record, we do not find any infirmity in the order of the ld. CIT(A) in deleting the part of the additions. We accordingly dismiss both the grounds of appeals of Revenue in both the assessment years. In the result, ground No. 1 of both the appeals of the Revenue are dismissed. Issue No.2 : 12. In assessment year 2006-07, the Revenue on ground No. 2 challenged the order of the ld. CIT(A) in deleting the addition of Rs.9,20,670/- made by the AO by disallowing the claim of deduction u/s. 80IB(10) of the IT Act in respect of the project, namely, Nikhil Estate. The relevant facts in brief are that during the assessment proceedings, the AO noticed that the assessee had claimed deduction u/s 80 IB(10) on its project Nikhil Estate. It was stated by the AO that assessee has worked as a contractor on the said project and not as builder for the simple reason that the assessee was not owner of the land but entered into the agreement with the society to construct the flats. However, as....
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....ted the housing project hence rebate u/s 80IB(10) could not be disallowed on the basis of amendment in budget 2009-10. 14. The ld. CIT(A) considering the explanation of the assessee in the light of the provisions of law, deleted the addition and granted deduction u/s. 80IB(10) of the IT Act. His findings in appellate order in para 24 are reproduced as under : "24. I have considered the submission advanced by the AR of the appellant in light of the assessment order and the relevant evidences on records. Now before we come to the conclusion, it would be in order to extract the provisions of section 80IB(10) in the Income Tax Act, 961 read as under : SEC 80IB(10) :- "The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March 2008 by a local Authority shall be hundred percent of the profit derived in the previous year relevant to any assessment year from such housing project if condition mention in Clause (a) and (b) of this section fulfilled." Upon careful perusal of facts mentioned above, it is clear that AO has no objection in respect of the fulfillment of the condition p....
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....ection 80IB(10) of the IT Act and did not dispute the claim of the assessee. However, the AO disallowed the claim of the assessee because the assessee was not owner of the land in question and that it was a Tripartite agreement between the parties. He has submitted that as per law, there is no need that the assessee should be owner of the project in question. Therefore, the ld. CIT(A) on proper appreciation of facts and material on record, rightly deleted the addition. 18. We have considered the rival submissions and perused the findings of the authorities below. Hon'ble Gujrat High Court recently in the case of CIT vs. Radhey Developers, 341 ITR 403 (Guj.) considered the identical issue in detail and held that ownership of the property is not a condition precedent for grant of deduction u/s. 80IB(10) of the IT Act. Hon'ble High Court held as under : "Held accordingly, (i) that the terms and conditions under which the assessee undertook the development projects and took over possession of the land from the original owners, indicated that the assessee had total and complete control over the land in question. The assessee could put the land to use as agreed betwee....
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....e thus was not working as a works contractor. Introduction of the Explanation to section 80-IB(10) in this case also would have no effect. The assessee was entitled to the benefit under section 80-IB(10) of the Act even where title to the land had not passed on to the assessee and the development permission may also have been obtained in the name of the original land owners. 19. Considering the facts of the case in the light of above decision, we are of the view that the issue is covered in favour of the assessee by the decision of Hon'ble Gujrat High Court in the case of Radhey Developers (supra). The main reason for disallowing the claim of the assessee for deduction u/s. 80IB(10) was that the land did not belong to the assessee and the ownership did not pass on to the assessee. This issue no more survives in favour of the Revenue as per the above decision. The AO has not given any other cogent reason for disallowing the claim of the assessee, which proves that the AO was satisfied with the other conditions of the aforesaid section. Therefore, in our view, there is nothing even to remand the matter to the file of the AO. Since the claim of the assessee has been allowed ....
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....ent made on 03.06.2009 and 23.06.2009 and his statement was subjected to cross examination, therefore, the matter may be remanded to the AO for reconsideration. On the other hand, the ld. counsel for the assessee reiterated the submissions made before the ld. CIT(A) and referred to question No. 29 of statement dated 23.06.2009 above, in which Sri Manoj Goel explained that he has used the advance money for personal purposes. He had submitted that since the advances were given for business purpose and no interest is paid and how Manoj Goel used the advance money later on has no concern for making such disallowances. 22. We have considered the rival submissions and do not find any merit in these grounds of appeals of the Revenue. The statement of Shri Manoj Goel referred to by the ld. DR clearly reveals that there were land dealings between the assessee and Shri Manoj Goel and that the advance was given to Shri Manoj Goel as noted by the AO. It was, therefore, a business transaction, in which advance was given. Admittedly, no interest is paid to Shri Manoj Goel and no claim is made for deduction in the profit and loss account. Therefore, the provisions of section 36(1)(iii) would n....
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....y the assessee from the farmers and one of the company Shri Manoj Goyal i.e Lunar Diagnostic Pvt. Ltd. with whom the impugned deed was signed. On the basis of these facts, the AO made the addition of Rs 1,50,00,000/- in the income of the assesses company. 23.1 The assessee filed its reply on 04.12.2009 before the AO stating that - "As per this proposed deed, the second party was the owner of 90 Bigha land at the time of payment, When documents were asked from the second party who could not produce any documents in his name, hence no question arises to make any payment against this deed. And also as per the statement of Sri Manoj Goyal, he was not owner of the said land. The date of execution of license deed was 24.02.2007 and as per terms and condition of para (a), First party shall make the payment of Rs 1.5 Crore at the time of signing this deed as advance money against the land while as per para (2),the first party shall make payment to second party as under :- 15.02.2007 1.50 Cr 31.05.2007 2.50 Cr When advance of Rs 1.50 Cr was to be made on the date of signing this deed which was executed on 24.02.2007 then how the first date of paymen....
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....ntioned on 15.02.2007 in Para 2(b) has not been included in total of Rs 12.30 and the same was inadvertently mentioned there. Therefore, it is apparent on the face of it that in fact no advance payment was made before signing of the document. Hence the assumption of the AO on the basis of deed executed on 24.02.07 that the assessee was supposed to make payment of Rs 1.50cr on 15.02.2007 is not based on facts and without any other concrete evidences brought on record. However, it is pertinent to note that AO has noticed and accepted that both the assessee and Mr Manoj Goyal has stated that this license deed did not materialize or come into existence, even then the said addition was made. 24.3 The assessee further contended that the Statement of Sri Manoj Goyal was recorded by A.O. on 03-06-2009 and thereafter on 23rd of June 2009. Further the cross examination was made with Shri Manoj Goyal by the assessee on 07-12-2009, when last statement of Shri Manoj Goyal was recorded. It is pertinent to note that contents of Statement recorded on 03.06.09 are entirely contradictory with the contents of statement recorded on 23.06.09 and thereafter on 07.12.2009 The contents of statement ....
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....nstrate the evidence of his ownership at the time of signing this deed and no advance was given to him on 15.02.2007, However another deal of 20 Bigahs of land was under contemplation which was done by Shri Manoj Goyal with Shri Shailender Agarwal, Managing Director of the assessee company, in his personal capacity. Mr. Manoj Goyal has clarified that he received approximately a sum of Rs.1cr. in respect of above said deal of 20 Bigahs of land in the name of Shanti Devi Memorial Trust, where the college in the name of Nikhil Institute of Engineering & Management has been set up. The payment for this deal was made by Shri Shailender Kumar Agarwal. It may be seen that Shri Shailender Kumar Agarwal has disclosed this deal in his return of income filed by him for A.Y. 2008-09. 24.5 It was contended by the assessee that Mr. Manoj Kumar Goyal has given the names of 6 farmers from whom the above said land (i.e. 20 Bighas) was purchased by Shri Shailender Kumar Agarwal in his personal capacity in the name of M/S SHANTI DEVI MEMORIUL TRUST. A.O. has missed this point and confused himself by not appreciating the basic fact that this deal of 20 bigah of land is different from the impugned d....
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....the first party shall make payment to the second party as under : DATES [ FIGURES IN CRORES] 15.02.2007 1.50 31.05.2007 2.50 31.08.2007 3.00 30.11.2007 3.00 28.02.2008 3.00 31.05.2008 .80 12.80 (d) And the rest payment shall be made by the first party to second party by way of giving 30 Built-up Farms measuring each 1000 Yards @ Rs 1150/- per yard resulting value of per house being Rs 11.50 and making total sales consideration of Rs 3.45 Crore. Thus the total payment which are to be made by first party to second party shall be as under : - 1) Advance Payment 1.50 Cr 2) Cheque & Cash 12.30 Cr 3) 36 Farms House 3.45 Cr 17.25 Cr Upon careful examination of facts mentioned above, I am of the opinion that as per para (a) of this deed, appellant was supposed to make payment of Rs 1.50 Cr at the time of signing this deed which was executed on 24.02.2007 and as per para (d) of this clause, It was contended by the assessee that the total payment which are to be made by the first party to second party was Rs 17.25 Cr as per deed executed on 24.02.2007 including advance payment ....
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....eply 2 he has admitted that he could not demonstrate the documents of 90 Bihga of land, hence this deed could not materealize and no advance was received by him against this land of 150 bigha, And vide reply no. 3 he has admitted that the sum of Rs 100 lacs received from Nikhil Homed Ltd were given to six farmers against the 20 bigha of land were made after cancellation of this deed on 24.02.2007 And vide reply 4, he admitted that as per his statement recorded on 03.06.2009, vide Question n0 10, the total amount paid to six farmers was only 100 lacs instead of Rs 150. lacs. 31. Upon careful perusal and examination of these facts, I am of the opinion that Mr Manoj Kumar was not the Owner of the said land. He took the sum of Rs 100 lacs from Sri Shailendra Agarwal, Director of Nikhil Homes Ltd which was given by Mr. Shaiendra Agarwal in his personal capacity to purchase the 20 BIghas land in the name of M/S SHANTI DEVI MEMORIAL TRUST where the Engineering college is being run. And said money was given to farmers who were the owners of these lands. Here Manoj Kumar acted as a middle man. Secondly No land was purchased in the name of the appellant. 20 Bighas of land was purcha....
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....ver acted upon and the total land of 150 bighas has been arranged by Shri Manoj Goyal. There were various discrepancies explained in the statement of Manoj Goyal and ultimately, no evidence was found that the assessee paid any amount in question to Shri Manoj Goyal or Manoj Goyel has arranged for the entire land to the assessee. The ld. CIT(A) on proper appreciation of facts and material on record rightly deleted the addition in the matter. The ld. DR has not been able to point out any infirmity in the finding of fact recorded by the ld. CIT(A). In this view of the matter, we do not find any justification to interfere with the order of the ld. CIT(A). In the result, ground No. 2 of the appeal of the Revenue is dismissed. Issue No.5: 28. In assessment year 2007-08, the Revenue raised ground No. 5, challenging the deletion of addition of Rs.3,00,000/- made by accepting some additional evidence as the AO disallowed the provision of expenses. The AO noticed that the assessee has followed the project completion method and during the year one project, Nikhil Enclave was declared completed by the assessee. The provision for expenses of Rs.3,00,000/- have been made against the closin....