TMI Blog2013 (6) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... planation given by the assessee has not been correlated or examined. There is variation in the square yards sold in the respective years. In the orders of the AO in the hands of the members of the AOP dated 31.12.2008, it was mentioned that the assessee sold 284 plots (as against 216 stated in the firm's letter) and the total extent of land sold was 64,483 sq. yards (as against 63,076 sq. yards stated in the firm's letter) for the total amount. But there is no evidence on record nor enquired by the AO, about the source of the initial amount of Rs.32 lakhs has been paid. Even though the sale documents and date of sales were available, from whom exactly the initial advance was received was not on record. The details were neither enquired nor placed on record. As stated from the two statements one member on the day of survey (Shri G.Raji Reddy) stated that they have purchased the land and developed plots, whereas after six months, the other member submitted that they have not purchased the land, and development was done by the owners themselves, and they have only received commission. There is variation in the statements within a period of six months from the day of survey to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner has initiated proceedings under S.263 on the reason that the Assessing Officer did not conduct enquiries on many issues listed in para 2.3 of the impugned order, and after giving show cause notice and obtaining the objections of the assessee, relying on various principles of case- law, set aside the assessments for both the assessment years with a direction to the Assessing Officer that the assessments be done afresh by causing proper enquiry into the aspects stated by him. These orders of the Commissioner of Income-tax passed under S.263 of the Act, are under challenge before us in these appeals. 5. The learned counsel referring to the paper-book and submissions made before the authorities explained that in the course of survey proceedings, agreement of sale dated 12.9.2003 executed between Smt. Nazeerunnisa Begum and others and Shri V.Linga Reddy and others was impounded along with cash receipts for payment of consideration totaling to Rs.32 lakhs for assessment year 2004-05 and further payment of Rs.89 lakhs by way of cash between May 2004 and December 2004 by the AOP. He further referred to the statements recorded in the course of survey from Srhi G.Raji Reddy recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. He relied on the following case-laws- (a) Ashoke Kumar Parasramka V/s. ACIT(65 ITD 1)-Kol. (b) CIT V/s. Sunbeam Auto Ltd. (2009) 227 CTR (Del)133 (c) Balram Manmani V/s. ACIT (2006) 7 SOT (Luc-Trb) (d) Leisure Wear Exports Ltd. V/s. ITO(2007)13 SOT 184(Del-Trib) (e) CIT V/s. Budhilal Hiralal Rana (2002) 125 Taxmann 455 (Guj.) (f) Pawan Kumar V.s Assessing Officer (2007)106 TTJ 494(Jodhpur) (g) Jai Commercial Co. ltd. V/s. JCIT(2001) 76 ITD 65 (Del) 7. The learned Departmental Representative on the other hand, reiterated the facts and also the statement of Shri Raji Reddy dated 23.1.2008 and the findings of the Commissioner that there is no enquiry and further relied on the case-law relied upon by the Commissioner in the impugned order. 8. The learned counsel also placed on record a statement of development charges received in respective years, placed before the assessing authority, intimating the receipt of development charges of RS.31,53,450 in financial year 2004-05 and Rs.25,22,720 in assessment year 2004-05 along with necessary enquiries based on the sale documents impounded during the survey proceedings. 9. We considered the issue and examined the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le was paid out of the amounts received on sale of plots. If yes, please give the details form whom you have received money on sale of plots? A. The land of 20 ac. 30 guntas purchased by us was converted into plots numbering to 301 plots and the pots were sold. The development costs, marketing and selling was done by us as the land has already been purchased by us. I am producing sale deed copies in support of sale of plots and receipt of money. Since I have not maintained any books of account, we are not in a position to produce any evidence except sale deeds. 7. As per the sale deeds produced the amounts received on sale of plots are as under:- 03.5.04 : 18,06,800 12.5.04 : 13,80,000 7.6.04 : 1,60,000 13.8.04 : 7,50,900 17.8.04 : 80,000 10.12.04 : 12,62,200 13.12.04 : 60,100 15.12.04 : 2,87,400 18.12.04 : 1,37,100 Has as already been shown to you, you have paid Rs. 1 cr. 16 lakhs on different dates for purchase of land. Considering that the amounts received from the customers are used for payment to the landlords. It is fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is as under- "As seen from one of the impounded materials found on survey it is learnt that the house plots were sold at Rs.550/- top Rs.750/- per square yard while you have admitted sale price at Rs.100/- or Rs.110 per square yard only. You are requested to furnish file your comments on this issue." As seen from the assessments completed in the cases of these two members of the AOP, since the assessee has not explained the investments, and as the assessment was getting time barred on 31.12.2008, the Assessing Officer treated 1/5th share of unaccounted investment and giving credit for the monies received through development charges, made additions for 2004-05 and 2005- 06 to the extent of Rs.6,40,000 and Rs.4,47,000 in the respective assessment years of the above two members, viz. Shri Yella Goud and Shri Raji Reddy. We were informed that proceedings in the cases of the other three members have not yet been finalized. 10. Be that as it may, when the Assessing Officer initiated the proceedings in the case of the assessee, the assessee vide letters dated 23.12.2009, 16.11.2009, 13.12.2009 and 27.10.2009 submitted the same contentions that after the assessee has entered into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the members of the AOP, extracted above, viz. of Shri G.Raji Reddy, clearly indicates that they have purchased the property and sold the same. What the survey also found out is sale agreement alongwith the receipts towards consideration on sale of the property. It is to be noted that there are no receipts impounded or found pertaining to development charges. So, the aspect as to how the development charges were received and passed on were not at all enquired by the Assessing Officer, as the receipt pertained only to the sale of lands acknowledged by the owners. This part of the enquiry was not made at all by the Assessing Officer. 14. As seen from the orders of the Assessing Officer passed in the hands of the two members of AOP, the Assessing Officer clearly stated that the assessee has not given any information and in the ex-parte order under S.144, brought to tax 1/5th of the amount in the respective hands, and the same was not done in the case of all the five members of the AOP, and this aspect was not examined by the Assessing Officer in the hands of the firm at all. In fact, if one peruses the order of the Assessing Officer, it is to be noticed that there is no mention of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2004, that this petition was filed subsequent to the sale agreement and the said Shri Biskhapathi was stated to be owner of land by way of registered sale deed dated 16.10.2003, which indicates that the said petition was filed after the agreement with the AOP. The case was also finalised by dismissing the petition of Shri Bikshapathi, vide orders of the Hon'ble Senior Civil Judge, Siddipet dated 5.2.2004. Subsequently to that date the assessee went on paying monies to owners, as can be seen from the details stated above only towards the land and not as development charges. Even the plots were ultimately registered by the owners, though there is no enquiry worth its merit about the nature of development charges etc. during the course of assessment proceedings. Absence of cash receipts for development charges by the owners also gives rise to a doubt whether the assessee undertook the development. These aspects were not at all enquired by the Assessing Officer. 17. In view of the above discussion, since there is no proper enquiry on various aspects and no findings by the Assessing Officer about these, we are of the opinion that the CIT has exercised the revisionary jurisdiction u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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