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2024 (5) TMI 481 - ITAT SURATDisallowance u/s 80IB - additional income earned by means of ‘on-money’ - no evidence whatsoever, at least, to indicate that the amounts, admittedly received by the assessee, are received from only and only from the flat owners in lieu of the purchase of flats - HELD THAT:- The assessee does not have any other business other than real estate development and in the impugned assessment year, the assessee had income being generated from the project ‘Rushikesh’. Hence, the income is earned from the said eligible business. The seized material found during the course of search showed that the additional income earned by means of ‘on-money’ was from Rushikesh project, which was eligible for deduction u/s 80IB of the Act. Therefore, based on these facts and circumstances, the ld CIT(A) held that assessee is eligible for deduction u/s 80IB of the Act, and hence ld CIT(A) allowed the deduction correctly. Dismiss ground No.1 raised by the Revenue. Unexplained cash credit u/s 68 - During the course of search and later verification proceedings u/s 131 Loose Paper file was found and seized from partner of assessee firm related to cash amount received from various persons in the financial year 2008-09 for purchase of land - HELD THAT:- We find merit in the submission of ld Counsel to the effect that the disputed land was brought into the books of the assessee - firm during the assessment year 2009-10 and not in the impugned assessment year, 2008-09. We note that the term 'Person' has been defined in clause 31 of section 2, to include seven categories of persons, all of which are independent and distinct from each other. A literal interpretation of the above provisions leads to the conclusion that only a right person as per the Act, is liable to pay tax on his income and no option is available to tax income in the hands of the person other than the one in whose hands it is taxable. The Hon'ble Supreme Court in case of ITO vs. Ch. Atchaiah [1995 (12) TMI 1 - SUPREME COURT] has held that the assessing officer must tax the right person and right income, alone. Thus, the transaction in respect of disputed land, if any, may be taxable in the assessment year 2009-10 and not in the impugned assessment year, 2008-09. Thus, on this legal issue, we find that order passed by ld CIT(A) is correct. Loose papers on the basis of which this addition has been made was found in the residential premises of Shri Rajesh Vaghani, the partners of the Assessee firm - The loose papers showed receipt over a period of 3 assessment years namely 2008-09, 2009-10 and 2010-11. Out of the said amount, the two partners namely have admitted the undisclosed investment and offered the same in their returns, for AY 2009-10. The AO added the balance amount in the hands of the assessee- firm. In fact, as seen from the 'seized material, the amount ought to have been taxed in the impugned assessment year was Rs. 1,12,00,000/- as this amount was shown as received in AY 2008-09 and Rs. 3,60,60,000/- in AY 2009-10 and Rs. 92,90,000/- in AY 2010-11 as per the said seized loose sheets. However, the AO added the entire amount in the assessment year 2008-09. Thus such addition need to be deleted - Decided against revenue.
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