AI Drafter 
TaxTMI 
TaxTMI 
2023 (11) TMI 1447
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The Learned CIT (A) erred in facts and circumstances of the case and in law confirming the action of the AO making addition from loose papers found in survey. Without Prejudice to the above - Without Prejudice to the above 3. The Learned CIT (A) erred in facts and circumstances of the case and in law confirming action of the AO making addition of receipts of cash based on statement recorded on oath not appreciating statement cannot be recorded in oath during survey and that such statements have no evidentiary value and that the statement was retracted - Without Prejudice to the above 4. The Learned CIT (A) erred in facts and circumstances of the case and in law confirming the action of the AO making addition of entire receipts of cash and not restricting to NP ratio as per decision of jurisdictional High Court - Without Prejudice to the above 5. The Learned CIT (A) erred in facts and circumstances of the case and in law confirming the action of the AO making addition of entire receipts of cash ignoring evidences furnished to AO that these are already accounted. 6. The Learned CIT(A)erred in facts and circumstances of the case and in law in conf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mitted to having received "on money", i.e. unrecorded cash element over and above the agreement value in respect of three projects, viz. Abhiman CHSL, Samata CHSL and Kurla-Mangal Prabhat CHSL in the manner tabulated as under:- Sr. No. Name of the Project Cash received during the F.Y. 2012-13 2013-14 2014-15 1. Abhiman CHSL 36,51,000 2,90,25,000 Nil 2. Samata CHSL 1,18,20,400 1,19,36,067 30,00,000 3. Kurla-Mangal Prabhat CHSL Nil Nil 1,11,31,000 Total 1,54,71,400 4,09,61,067 1,41,31,000 5. Thus, as per the Director of the assessee the total "on money" received in cash for the three financial years was Rs. 7,05,63,467. However, an amount of Rs. 6,75,63,467 only was declared as unrecorded income earned by way of cash element and was offered to tax. Upon analysis of the sales made in respect of each of the projects, during the reassessment proceedings, it was noticed that in respect of Kurla-Mangal Prabhat CHSL, the following agreement for sales were made during the year under consideration:- Flat no. Area (Sq.Ft) Agreement Date Total Cost / Assumed t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in cash. Being aggrieved, the assessee is in appeal before us. 8. We have considered the submissions of both sides and perused the material available on record. The only dispute raised by the assessee is against the addition of Rs. 43,31,000 by treating the same as "on money" received in cash on the sale of residential flats in the projects of the assessee. As per the assessee, it has no connection with Bhanwarlal Jain or any of his entities. It is further the claim of the assessee that one of the beneficiaries who had obtained accommodation entry from Bhanwarlal Jain and group concern was having a business affair with the assessee. Further, as per the assessee, there was no admission by any Director of any receipt of "on money" of Rs. 43,31,000 for the assessment year 2012-13. Even in the statement of the Director of the assessee recorded under section 131 of the Act, he only admitted to having received a total "on money" of Rs. 6,75,63,467 with regard to three projects, namely Abhiman CHSL, Samata CHSL and Kurla-Mangal Prabhat CHSL for the financial years 2012-13, 2013-14 and 2014-15. It is further the claim of the assessee that the five flats in Kurla-Mangal P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....'s appeal was not pressed during the hearing. Accordingly, the same is dismissed as not pressed. 11. Ground No. 7 is general in nature and therefore needs no separate adjudication. 12. In the result, the appeal by the assessee is partly allowed for statistical purposes. ITA No. 2380/Mum./2023 Assessee's Appeal - A.Y. 2014-15 13. In this appeal, the assessee has raised the following grounds:- "1. The learned CIT (A) erred in facts and circumstances of the case and in law holding that action of AO resorting to assessment u/s 147 by recording factually incorrect reasons without prejudice to the above. 2. The learned CIT (A) erred in facts and circumstances of the case and in law holding that action of AO forming to assessment without disposing off specific objections raised on re-opening without prejudice to the above. 3. The Learned CIT (A) erred in facts and circumstances. of the case and in law confirming the action of the AO making addition of entire receipts of cash that the assessee is supposed to have received and not restricting to NP ratio as per decision of jurisdictional High Court without Prejudice to the above. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gible material for initiating the reassessment proceedings in the case of the assessee and on the basis of the same, the AO initiated proceedings under section 147 of the Act and issued a notice under section 148 of the Act. In ACIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd, [2007] 291 ITR 500 (SC), the Hon'ble Supreme Court observed as under: "16. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word "reason" in the phrase "reason to believe" would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Supreme Court in Central Provinces Manganese Ore Co. Ltd. v. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n sale of flats. In the assessment order dated 29/12/2017 passed under section 143(3) read with section 147 of the Act, the AO after placing reliance on the statement of the Director recorded during the course of survey came to the conclusion that the assessee has received an amount of Rs. 2,94,74,980 in cash from sale of flats during the year under consideration in following projects:- ABHIMAN CHSL, BUILDING NO.8 Flat no. Area (Sq.Ft) Agreement Date Total Cost / Assumed to be In Cheque Amount received Cash (as per papers Impounded) Total Consideration Rate / Sq.Ft. (Total Area) 802 660 09.07.2013 55,00,000 42,00,000 97,00,000 14,697 902 660 19.08.2013 75,00,000 20,00,000 95,00,000 14,394 1002 660 25.09.2013 60,00,000 35,00,000 95,00,000 14,394 901 680 10.07.2013 77,25,000 8,00,000 85,25,000 12,537 1001 680 08.08.2013 96,25,000 5,00,000 1,01,25,000 14,890 1003 695 05.09.2013 70,00,000 46,25,000 1,16,25,000 16,727 TOTAL 1,53,25,000 SAMATA CHSL, BUILDING NO.8 Flat no. Area (Sq.Ft) Agr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bsence of any cogent explanation from the assessee, the AO vide order dated 29/12/2017 proceeded to make an addition of Rs. 2,07,10,014 under section 43CA of the Act being the difference between sale consideration and the value adopted by the authority of state government. The learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee on this issue. Being aggrieved, the assessee is in appeal before us. 23. From the record, it is evident that the AO computed the disallowance under section 43CA of the Act in respect of the following flats sold by the assessee:- Sr. No. Particulars Project Flat Shop No. Date of Agreement Agreement Value Market Value Difference 1. Mangesh Wagle Abhiman CHS Ltd. 1102 30.12.2013 1000000 7853120 6853120 2. Jyotsna Sawant Abhiman CHS Ltd. 1102 10.10.2013 6000000 7496500 1496500 3. Sugandh Parab Abhiman CHS Ltd. 1103 06.09.2013 7000000 7894394 894394 4. Sadhabahadur Gupta Abhiman CHS Ltd. 802 10.07.2013 5500000 7497000 1997000 5. Jayesh Shah HUF Samata 901 11.10.2013 5580000 7042000 1462....