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TMI Blog2015 (6) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... following grounds were raised:- 1. The Ld. CIT(A) has erred in law and on facts in holding that the addition on account of determined suppression of unaccounted on-money income was erroneous. 2. The Ld. CIT(A) has erred in law and on facts in dismissing the relevant facts regarding the unaccounted income as collected and seized during search action and placed on record. 3. The Ld. CIT(A) has erred in law and on facts in relying on irrelevant materials, theoretical premises, surmises and conjectures regarding the on money receipts and commission payments made by the assessee concern. 4. The Ld. CIT(A) has erred in law and on facts in law in making erroneous interpretation of relevant facts and improperly rejecting admissible evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) deleted the addition with the following findings:- "5. I have considered the assessment order and the basis of addition of 'on money' received and also the submissions of the A.R. and I am totally in agreement with the learned A.R. that the addition of Rs. 2,42,24,700/- has been made simply on the reverse working of sale of flats on the basis of commission paid to Shri Atul P. Malde. The commission payment as per Annexure-1 comes to 2% of the sale value out of which 1% commission is paid to the sub brokers which is also a part of Annexure-1 on page 2 to 4. In the assessment order for A.Y.2007-08, the commission payment was 1% o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on record, it is held that the Assessing Officer has made addition of "on money" for Rs. 2,42,24,700/- without any evidence found in search proceedings or collected during post search enquiries or during assessment proceedings, on any of the flats sold through Shri Atul P.Malde. Even no statement was recorded on sale value of any of the flats. It is therefore, held that the addition of Rs. 2,42,24,700/- was unjustified and without any basis, hence the same is deleted. 5. The Revenue, aggrieved with the order of the CIT(A), is now in appeal before us. 6. At the time of hearing before us, it is submitted by the ld. Departmental Representative that the statement of Shri Atul P. Malde was recorded at the time of search as well as after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's group was conducted on 24.09.2008 while Shri Atul P. Malde filed his return of income for computation of income, Shri Atul P. Malde has clearly shown that out of the brokerage received at Rs. 4,84,610/-, the brokerage paid by him was Rs. 2,39,250/- and net brokerage received was only Rs. 2,45,360/-. The above return of income was scrutinized u/s 143(3) and the Assessing Officer vide order dated 08.04.2008 completed the assessment at Rs. 2,72,280/ - by making the addition of Rs. 20,000/- on account of low household withdrawal. Thus, the brokerage paid by Shri Atul P. Malde to other brokers was disclosed by him prior to the search and was also accepted in the order passed u/s 143(3). He also referred to the statement of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 was retracted by him by furnishing an affidavit on 16.12.2008 which was within 4 days from the date of the statement. Shri Bharat Malde in his statement has clarified that the commission was paid to Shri Atul P. Malde at 2% and since more than one broker was involved, Shri Atul P. Malde passed on about 1% to the sub-brokers and therefore, his statement with regard to 1% commission should be considered as 1% net commission. After the statement of Shri Bharat Malde and the affidavit of Shri Atul P. Malde, the Department did not re-examine Shri Atul P. Malde. The Revenue also did not examine from any of the buyers of the flats the rate at which they have purchased the flats. Admittedly, the statement of Shri Atul P. Malde was recorded behin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in A.Ys. 2005-06, 2006-07 and 2007-08. The Revenue has accepted the sale rates of flats in all the years, except sale of 30 flats sold through Shri Atul P. Malde in the year under consideration. It cannot be believed that the assessee sold 30 flats at double the rate then the sale rate of same flats to others in the preceding year, current year and subsequent year. 9. In view of the totality of the above facts, in our opinion, the CIT(A) was fully justified in deleting the above addition made by the Assessing Officer on the basis of the statement of Shri Atul P. Malde which was recorded behind the back of the assessee and moreover, which was retracted by himself within 4 days from the date of giving of his statement. We, therefore, uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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