TMI Blog2013 (6) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the said purchaser to M/s Goyal Builders or the fact that actual price was much higher to the price which was recorded in the account books. The Tribunal have also found that if any amount was collected in excess to the agreed price then M/s Goyal Builders could have been liable for that and not the assessee which is reasonable. Though there may be some doubt about the price of the flats but until and unless it could have been proved by some evidence, aforesaid doubt cannot take place of proof. Until and unless such noting is corroborated by some material evidence, AO erred in making addition in the income. So far as the applicability of Clause 5 of Section 44 AD is concerned, when the assessee had maintained accounts books, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IG flats were to be sold at a cost of Rs.2.5 lakhs each. According to the assessee it received Rs.35,50,000/- on sale of flats, which were duly accounted for in the books of the assessee. Likewise, the assesse had also entered into another agreement with Shri Prakash Agrawal and M/s Goyal Buildiers wherein by clause No.4 of the agreement, Prakash Agrawal had sold his land/plot to the assessee for a consideration of Rs.1,60,000/-. The assessee was to construct 6 LIG flats to be sold at Rs.1.25 lakhs, 3 Sr.LIG flats to be sold at Rs.1.5 lakhs and 3 MIG flats to be sold at Rs.2.00 lakhs each through M/s Goyal Builders on payment of commission @2% to them. The sale consideration of these flats amounted to 18 lakhs and the net sale proceeds afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rked out to be Rs.58,50,000/- as against the sale proceed of Rs.35,50,000/- accounted for in the books of accounts. The A.O. had determined the income at Rs.2,84,000/- under Section 44 AD of the Act and separately deducted the commission of Rs.20,19,700/-. Accordingly, he had determined the total income at Rs.25,03,700/-. 6. The matter was challenged before CITA by the assessee and CITA vide Annexure A-2 order dated 26/8/98, by partly allowing the appeal, came to the conclusion that total receipt including those not accounted for in the books, not exceeded Rs.40.00 Lakhs, so provisions of Section 44AD were not applicable and the A.O. was wrong in applying the provisions of Section 44 AD, and was not justified in assessing the assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to sell the plot and commission was to be paid on the sale. As per Section 132 of the Act of 1961 in the case of Shri Ahsok Goyal, Proprietor of M/s Goyal Builders a note book marked as Annexure CII containing sketch map of Amardeep Apartment and Amar Jyoti Apartments was found, wherein the column for cost of flats i.e. the figures 4.5., 4.25, 3.15, 2.5, 2.35, 2 and 1.95 in respect of Amardeep and Amar Jyoti Apartments were mentioned. The Assessing Officer (A.O.) was of the view that these figures definitely indicate the sale price of the flats of the two apartments. The A.O. At page 6 of his order had discussed that the cost of flats indicated in Annexure C-II, had tallied with the receipts of amounts from different purchasers m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipts shown by the assesssee are of Rs.34,79,000/- which were received from M/s Goyal Builders who was to sale all these flats. The receipts were shown after deducting the Commission of Rs.71,000/- paid to Goyal Builders at the rate of 2% on the total receipt of Rs.35,50,000/-. Therefore, the purpose of the computation of the total income the total receipts will be taken at Rs.35,50,000/- applying the net profit rate at 8% of the total income of the assessee come to Rs.2,84,000/-. 10. Learned counsel for the appellant has submitted that undisputedly M/s Goyal Builders was engaged for the sale of the plots and flats were sold out through him and figures which were given in C-II are the correct figures of the Sales proceeds which were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some higher amount was paid by the said purchaser to M/s Goyal Builders or the fact that actual price was much higher to the price which was recorded in the account books. The Tribunal have also found that if any amount was collected in excess to the agreed price then M/s Goyal Builders could have been liable for that and not the assessee. We find the aforesaid reasoning of the Tribunal to be reasonable. Though there may be some doubt about the price of the flats but until and unless it could have been proved by some evidence, aforesaid doubt cannot take place of proof. Until and unless such noting is corroborated by some material evidence, the Assessing Officer erred in making addition in the income. 14. So far as the applicability of Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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