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TMI Blog2014 (7) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. The relevant portion of the deposition is extracted below:- "....... (9) I say that a copy of Department's Memorandum of Appeal in Form-36 was despatched to the Respondent firm which was received by the said firm on 22.12.2012. (10) I say that the hearing of the appeal before the Hon. ITAT "D" Bench, Mumbai has been fixed for 28.01.2013 and 14.05.2013 but on both dates the hearing was adjourned at the request of the Department. (11) I say that the next hearing the appeal had been fixed for 27.08.2013 but since the Hon. Members were busy in some Special Bench Appeal on 27.08.2013, the hearing in the Departmental appeal has then adjourned to 16th December, 2013 and again now adjourned to 19th March, 2014. (12) I say that in the meantime, the Respondent firm also filed a Memorandum of Cross-objection in Form-36A on 26.08.2013 together with a petition dt. 23.08.2013 for condonation of delay of 217 days (in filing the said Memorandum of Cross objection) against the decision of the ld CIT(A) in retaining the other part of Rs. 44,36,000 out of the the above stated total addition of Rs. 1,44,36,000/- u/s 69C of the Income tax Act, 1961. ......... (14) I say that since the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the decisions relied upon by Ld A.R and find that the decision in those cases has been rendered on the basis of facts prevailing in those cases. However, in the instant case, the first instance at which the assessee could have taken decision to file appeal was 22.12.2012, i.e., the date on which it received a copy of Memorandum of appeal filed by the department. Then subsequently, the appeal of the department was posted for hearing in January, 2013 and May, 2013. At that point of time also, the assessee could have taken decision to file the CO. However, the assessee has chosen to file the CO only on 26.08.2013, i.e., one day prior to the date of next day of hearing. The reason cited for the delay has been discussed by us in the earlier paragraph and we have noticed that the said reasons are hard to believe. It is well settled proposition that the assessee is required to explain the delay on day to day basis till the date of filing of appeal. 4.3 Hence, we are of the view that the assessee has failed to explain the delay and hence we are unable to condone the delay. Accordingly, the Cross objection filed by the assessee is dismissed in limine. 5. We shall take up the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the amount shown in the sale agreement was Rs. 1,65,00,000/-, the AO took the difference amount of Rs. 1,44,36,000/- as the unaccounted payment made in cash. The assessee submitted that the unaccounted cash payment to the extent of Rs. 1.00 crores was the amount offered by Shri Ramesh Nakrani in his hands. However, the AO rejected the said explanations with the following observations:- "By admitting only Rs. 1,00,00,000/-, Mr. Ramesh Nakrani has not explained the actual amount of unaccounted cash payments involved in the above land purchased by the assessee. In fact, the assessee has failed to produce any evidence to show that the unaccounted cash admitted by Mr. Ramesh Nakrani has been used to make unaccounted cash payments of Rs. 1,44,36,000/- involved in the above land purchased by the assessee. These facts clearly show that admission of unaccounted income of Rs. 1,00,00,000/- by Mr. Ramesh Nakrani does not explain the source of unaccounted cash payments of Rs. 1,44,36,000/- made by the assessee on its above land deal." Accordingly, the AO took the view that the assessee has failed to explain the unaccounted payment of Rs. 1,44,36,000/- to his satisfaction. Since the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the residence of Shri Ramesh Nakrani. She further submitted that the coded entries found in the seized document were also explained by him only. She further submitted that Shri Ramesh Nakrani has specifically stated, in reply to the question no.3 as well as in question no.13, that the cash involved in the impugned transaction was approximately One crore and the same was paid by him only. Hence he has offered a sum of Rs. 1.00 crores as his undisclosed income in his hands. She further submitted that the amount so offered in the hands of Shri Ramesh Nakrani has been duly brought into the books of the assessee firm in the succeeding year. She submitted that the assessing officer has also accepted the additional income offered by the assessee and accordingly completed the assessment in his hands. Accordingly the Ld A.R submitted that the Ld CIT(A) was justified in allowing credit of Rs. 1.00 crores against the addition made by the AO. The Ld A.R further submitted that the addition of Rs. 1.00 crore made by the assessing officer in the hands of the assessee firm results in double assessment of same income, which is not permitted under the Income tax Act. The Ld A.R further placed reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to show that the unaccounted cash admitted by Mr. Ramesh Nakrani has been used to make unaccounted cash payment of Rs. 1,44,36,000/- involved in the land deal. 9.1 But the fact remains that the explanation about the land deal and involvement of on money payment therein have been admitted by Shri Ramesh Nakrani only. The incriminating document was also found at his residence only. In the sworn statement, Shri Ramesh Nakrani has admitted that the cash portion amount (on money) was paid by him only. For the sake of convenience, we extract below the relevant questions and answers:- "Q. No. 13:- Please Confirm that with reference to your answer to the various question in respect of loose paper page no.6, what is the source of cash so paid inrespect of said land deal ? (Sworn statement dated 18- 02-2009). (A.O page no.5) Ans.:- I confirm that this is cash paid from account of my undisclosed sources and hence out of books. .... Answer to Q.No.3 asked in the statement taken on 19.02.2009 (CIT(A) page No.5):- I Confirm that cash is involved in the said transaction which is approx. Rs. One crore. I also reiterate that the same is paid by me from my undisclosed sources and I offer the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as paid by him is shown Rs. 98,50,000/- in the incriminating document. When Shri Ramesh Nakrani is contributing more amount than that is required as his share, that too, in respect of accounted portion, in our view, there is no reason to doubt his statement that the unaccounted amount was contributed by him out of his undisclosed sources. 9.3 It is also an admitted fact that Shri Ramesh Nakrani has offered a sum of Rs. 1.00 crores as his undisclosed income and the same has also been accepted by the AO and the relevant assessment has also been completed. It is also a fact that the assessee firm has also incorported the amount of Rs. 1.00 crore in its books of account in the succeeding year by crediting the Capital account of Shri Ramesh Nakrani by making corresponding debit to the Land account. Further we notice that the assessee firm has shown the impugned land as its Fixed asset in its Balance Sheet. All these documents, in our view, proves the contention of the assessee that the unaccounted payment involved in the land deal was financed to the extent of Rs. 1.00 crore by the undisclosed income declared by Shri Ramesh Nakrani in his hands. 9.4 We notice that the decision rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, the Ld CIT(A) was justified in giving credit of Rs. 1.00 crore against the addition of Rs. 1,44,36,000/- made by the assessing officer. 9.7 The ld A.R also contended that the balance amount of Rs. 44,36,000/- should have also been assessed in the hands of Shri Ramesh Nakrani. We notice that the Ld CIT(A) has made a specific observation that neither the assessee firm nor Shri Ramesh Nakrani has offered any explanation with regard to the amount of Rs. 44,36,000/-. Hence we are unable to accept the said contentions. 9.8 The Ld A.R also pointed out that the AO has adopted the amount of accounted consideration as Rs. 1.65 crores, i.e., the amount that was shown in the sale agreement. According to the Ld A.R, the assessee firm has accounted a sum of Rs. 1,75,15,280/- in its books of account. Accordingly, it was contended that the unaccounted amount computed by the AO is higher by Rs. 10,15,280/-. We find force in the said contentions of the assessee. There should not be any doubt that the suppressed amount of consideration should be arrived at by comparing the actual consideration with the accounted consideration. In this case, the AO has adopted the figure of Rs. 1,65,00,000/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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