TMI Blog2016 (1) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... of natural justice. Needless to state that ld. CIT(A) shall grant adequate opportunity of hearing to the Assessee. The Assessee shall also be free to place any submissions or details in its support to present its case. - Decided in favour of assessee for statistical purposes. - I.T. A. No. 1502/AHD/2015 - - - Dated:- 3-11-2015 - SHRI RAJPAL YADAV, J.M. SHRI ANIL CHATURVEDI, A.M. For The Appellant : Shri S.N. Soparkar, A.R. For The Respondent : Smt. Vibha Bhalla, Sr. D.R. ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. This appeal filed by the Assessee is against the order of CIT(A)-9, Ahmedabad dated 9.3.2015 for A.Y.2011-12. 2. The relevant facts as culled out from the material on record are as under. 3. Assessee is a company stated to be engaged as Real Estate Developer, Project Consultant etc. A survey u/s. 133A of the Act was carried out at the various premises of the Assessee and its related concern on 19.05.2011. During the course of survey at the site office of Ratnakar IV, several documents were impounded and inventorised as Annexure BF-17. Among other things, a sheet of paper inventorised as page 130 of Annexure BF-17 was impounded whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the same was neither owned by it or pertained to it and in view of the same, the submissions of the Assessee that it had not received any on money and page 130 did not bear the name of the Assessee and therefore cannot be held to be pertaining to Ratnakar III was also not found acceptable to the A.O. AO accordingly concluded that Assessee had received on money in relation to the sale of all its flat in Ratnakar III IV. AO thereafter considering the prevailing market rates as per publicly available information on the websites and on the basis of impounded paper adopted the rate of ₹ 4300 per sq feet and used it for calculating the actual consideration received by the assessee by multiplying it with the area of each flat. Based on the details furnished by the Assessee, the quantum of actual consideration received was worked out after reducing the amount disclosed by the Assessee and the excess consideration received was treated as on money and was apportioned to A.Y. 20111-2012 in the same proportion as the Assessee had apportioned it in its own Revenue recognition method worked out the on money for Ratnakar III project at ₹ 25,66,17,425/- and ₹ 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sq.ft. which is extremely low taking into consideration the current market rate going on ,at the time of sale of these properties. The assessing officer wide para-three at page 4 of the assessment order, has co-related the area of three-bedroom and four-bedroom flats given on the page impounded during the course of survey proceedings and the actual area of the said flats. The assessing officer has pointed out that in the fifth line of page 130 of Annexure BF-17 the rate is mentioned at ₹ 4,300/- per sq. ft. The scheme of payment on the following lines are 35% on booking and rest of the amount i.e. 65% (in 21 installments). The A.O had brought out the fact, that when, this figure is read with in conjunction with other sheet of paper impounded from the same premises and inventoried, as page number 129 of Annexure BF 17 the things are clearly co- relatable. Page 129 of BF - 17 gives reference to the detail of transactions in respect of flat number C/ 1104 of ratnakar-111 project the sheet carries the names, PAN, and of buyers of flat total consideration and cheque payments. Area of the flat is 2610 square feet. The rate mentioned on page number 130 is ₹ 4300/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the bifurcation of on money received by the appellant and the rate of the flat per square feet on the basis of it with the logical extensive examples. I am completely in agreement with the contention and the reasoning of the assessing officer to arrive at the conclusion and basis of on money received by the appellant during that year. The assessing officer has also categorically stated that the appellant has completely failed to rebut the logical conclusion of arriving the basis of the flat rate pertaining to the relevant assessment year at that particular time of the year 2010-11. In my considered opinion the appellant has failed to rebut attention of assessing officer by bringing evidence in respect of other assessing dealing in real in nearby area to strengthen its contention that it has not received any on money on the scene of flats in its different schemes. The appellant has also not come out any explanation of the noting in the impounded record wrt 65% and 35% payment scheme. The appellant has failed to negate the interpretation coming out of this noting. The appellant should have given detailed evidence, to contradict, that it's payment scheme is different from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astructure Private Limited in assessment year 2012 -2013 a survey had taken place on 24/10/2011, Interestingly M/s. Sambhav infrastructure Private Limited also is indulged in the housing project situated in the same satellite area in the close vicinity of the projects namely Ratnakar carried out by the appellant. M/s. Sambhav infrastructure Private Limited has been carrying on the projects in the name of Stavan altiza, Stavan paradise, Stavan arise. The relevant facts of M/S Sambhav Infrastructure Private Limited are as below: Survey u/s. 133A of the Act was conducted at various premises of the assessee company on 24/10/2011. During the course of survey proceedings at 501,502, Safal Prelude Prahladnagar, Ahmedabad contain papers inventorised as Annexure A-l, A-2, A-3 and A- 4 were impounded. Unaccounted cash receipts of ₹ 20,01,00,000/- in respect of Stavan Alteza, Stavan Paradise and Stavan Arise schemes of the assessee company are reflected in these papers. In the statement dated 24lh October, 2011, Shri Mihir P. Desai, director of the assessee company clearly admitted and declared ₹ 20,01,00,000./- as unaccounted income of the assessee company for F. Y.2011-12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. With regard to the appellant's additional contention of treating the on money its bifurcation cannot be accepted as it has not come out with any detail as to how much revenue it has recorded on account of flat sale and on money recognized by it in its books of account. Since appellant's ground regarding addition of on money is dismissed by me the appellant's additional contention raised as above does not survive. 4. Aggrieved by the order of ld. CIT(A), Assessee is now in appeal before us and has raised the following grounds:- 1. Ld. CIT (A) erred in law and on facts in confirming addition of alleged on money receipt of ₹ 25,66,17,425/- in respect of Rantakar III scheme and ₹ 6,90,80,980/- in respect of Ratnakar - IV scheme totaling to ₹ 32,56,98,405/- merely on the basis of notings found on a dumb document being page no. 130 of Annexure BF -17 ignoring submission of the appellant and heavily relying on the survey report. Ld. CIT (A) ought to have considered submissions of the appellant and deleted addition made on the basis of dumb document without bringing any corroborative evidence on record. It be so held now. 2. Ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT (A) failed to appreciate the case laws cited in this regard. It be so held now. 9. Ld. CIT (A) erred in law and on facts in not considering various submissions made to AO which are reiterated before her and in affirming the addition of ₹ 32,56,98,405/- merely on conjectures and surmises. Ld. CIT (A) ought to have considered submission of the appellant submitted during assessment proceedings and appellate proceedings and ought not to confirm the addition in respect of on money receipt. It be so held now. 10. Levy of interest u/s 234A, 234B 234Cof the act is not justified. 11. Initiation of penalty proceedings u/s 271 (l)(c) is unjustified 5. Before us, at the outset, ld. A.R. submitted that though various grounds have been raised, but the first ground is only effective ground for adjudication. 6. Before us, ld. A.R. reiterated the submissions made before A.O and ld. CIT(A) and further submitted that in the present case addition on account of alleged on money has been made on the basis of presumption and the only basis of addition is page 129 and 130 of Annexure BF-17 which was found during the course of Survey. He submitted that page 130 of Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that no incriminating material in respect of unaccounted booking receipt received from any Members of Ratnakar III Scheme was found during the course of Survey proceedings and even the impounded page no. 129 nowhere has the notings with respect to any cash payment by the Member in respect of Flat No. C-1104 of Ratnakar III Scheme. He further submitted that there is no incriminating material found which could have been used against the Assessee. He further submitted that the Revenue, relying upon page 130 Annexure BF-17 has presumed that Assessee has received on money in respect of each and every flat of the Scheme of Ratnakar III which is purely on the basis of surmises and conjectures and the same is not sustainable under the provisions of Income Tax Act. He therefore submitted that in the absence of any cogent material evidences and/or independent clinching evidences as regard to the receipt of on money collected by assessee from the Members of Ratnakar III Scheme that was build and developed by the Assessee, is contrary to the realities of the transaction and that mere existence or reason for suspicion would not tantamount to evidence and or material and any addition m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which could show that the information as found in public domain was confronted to the Assessee and Assessee s views were obtained and thereafter the submissions of Assessee were rejected by passing a speaking order. Further there is nothing on record to also demonstrate that Assessee was confronted by ld. CIT(A) with the facts of Sambhav Infrastructure Pvt. Ltd. (supra) and after considering the submissions of Assessee with respect to the observations made in Sambhav Infrastructure (supra) as to how it would apply to the facts of Assessee the additions were upheld. It is a settled law that the principles of natural justice requires that Assessee should have knowledge of the material that is going to be used against him so that he may be able to meet it before any material is used against it and therefore ld. CIT(A) was obliged to put the material to the Assessee before making any decision adverse to it. In the present case, the materials based on which the additions have been made namely the data obtained from external sources and the decision of Sambhav Infrastructure (supra) does not seem to have been confronted to Assessee. It is pertinent to observe that for adjudicating any co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
