TMI Blog2016 (3) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... rought on record. Lastly, we find force in another argument of the ld. Counsel that even if, although denied by the assessee, it is assumed that cash was received by the assessee, the same could not have been brought to tax in the year under consideration since the entire sales consideration of impugned property sold by the assessee has been received and booked by the assessee in its books of accounts in F.Y 2005-06. On the basis of perusal of the profit and loss account it is noted that the sale value of the entire project has been booked in F.Y 2005-06. It is also an admitted case that the assessee is following ‘project completion method’. Thus, if at all some addition is required to be made, that could have been made only during F.Y 2005-06, although we have already held on the basis of evidences brought before us that it could not be concluded that the assessee had received any cash amount. Thus we find that the addition made by the AO is not sustainable as per law and facts, and therefore, the same is directed to be deleted. - Decided in favour of assessee - ITA No. 5935/MUM/2011 - - - Dated:- 12-2-2016 - Shri Saktijit Dey, Judicial Member And Shri Ashwani Taneja, Accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessed made submissions dt. 27.1.2009 which are reproduced as under:- 1. The Learned Dy. Commissioner of Income tax (DCIT) has erred in law and facts on record in making the addition to the total income on imaginary basis an amount of ₹ 40,00,000/-, which is merely a 'noting in the accountant's personal diary, impounded during the course of survey action . 2. The said addition has been made on imaginary basis/ conjectures and surmises is further supported by the fact that the ld DCIT has not invoked any action i.e. neither invoked sec. 68 nor sec. 69 nor sec. 69A nor sec.69B nor sec. 69C and therefore wrongly added the said amount to the total income. 3. The Ld. DCIT has wrongly correlated the said noting with the sale transaction of sale or flat no.1003 and wrongly concluded that it represents cash component received by the assessee, without bringing any material, whatsoever on record despite the fact that flat no. 1003 was sold at the price stated therein. 4. Without prejudice to the above, the said noting has been properly explained as narrated on page 4 of the assessment order, having nil impact on the income. 4. During the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions of the assessee but he was not satisfied with the submissions made by the assessee and on the basis of the facts brought out it was concluded by him that the assessee has received amount in cash of ₹ 40 lakhs on sale of the impugned flat and thus he confirmed the order of the AO and dismissed the appeal filed by the assessee. Being aggrieved, the assessee filed an appeal before the Tribunal. 6. During the course of the hearing, the ld. Counsel of the assessee made detailed submissions. Our attention was drawn to the copy of the seized documents enclosed in the paper book. The detailed arguments made by the ld. Counsel can be summarized as under:- i) The seized document is only a dumb document. Nothing can be concluded from the perusal of this document. Further corroboration was required before any addition could be made on the basis of this document. No such information or corroboration could be gathered by the lower authorities and, therefore, no addition could have been made on the basis of the dumb document like this. ii) The sale deed was registered on 23.9.2005 i.e. in the preceding financial year, whereas the AO has alleged that as per the seized docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made therein. We find that nothing could be deciphered clearly from the noting on this document. Some inferences were drawn by the AO that this document indicates receipt of cash by the assessee. This document is one of the pages of a diary which is claimed to be maintained by Shri Mukesh Prajapati, Accountant of the assessee company. During his examination by the AO in the remand proceedings, no concrete information could be elicited by the AO from Shri Prajapati which could have thrown some light about the nature and details of these scribbling. The AO also examined the purchaser i.e. Shri Humayun Rangila. He also refused to have paid any amount in cash. No useful information could be elicited in his statement recorded by the AO. It is noted that no further corroboration has been done by the lower authorities, which could have indicated exchange of cash. It is further noted by us that, as informed to us, no addition has been made in the hands of the purchaser. 9. On the other hand, the ld. Counsel has brought out various discrepancies in the allegations made by the lower authorities which, in our opinion, would demolish the case of the lower authorities. It is noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction Pvt. Ltd. (supra). The relevant portion is reproduced hereunder:- 6. We have heard the parties and perused the record. There is no dispute in this case that the un-recorded entries of cash receipts found were in respect of the sale of the flats. In sum and substance, it was forming the part of the sale consideration of the flats. The names of the buyers of the flats are also available on record. The assessee also agreed that it was a part of the sale consideration indirectly admitting partly suppressing of the sale prices of the flats. We find that the CIT(A) has relied on the decision in the case of Dhanvarsha Builders and Developers (Supra) as well as Golani Bros. (Supra). In our opinion, the Ld CIT(A) has rightly held that as the nature of the receipt is not disputed as that of the part of the sale consideration of the flats sold by the assessee and in that case, the same is to be taxed in the year in which the assessee has recorded the sale of the respective flat. We find no reason to interfere with the order of the CIT(A). Accordingly, the same is confirmed. Similar view has been taken by the Pune Bench of the Tribunal in the case of Tejas Constructions (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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