9911796707
TMI Blog2017 (3) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in appeal before the Commissioner. Commissioner, while rejecting the appeal of the assessee, placed reliance on her order in appeal in case of one M/s. Sambhav Infrastructure Pvt. Ltd. for the assessment year 2012-13 to conclude that the practice of receiving on money in such business is rampant. She referred to statements of various persons recorded in such assessment proceedings that the flats in the scheme were sold at the price ranging between 1.4 crore and 1.5 crore whereas the value showed in the books of accounts was ranging from Rs. 32 lacs to 44.50 lacs. She, therefore, concluded that facts emerging from the assessment of M/s. Sambhav Infrastructure Pvt. Ltd. would prove that the practice of accepting on money is rampant in the real estate business, in contrast to the contention of the assessee that there is no such practice prevailing in trade. 4. Assessee carried the matter before the Tribunal and the Tribunal after considering materials on record and in particular, the findings of the ld. CIT(A) remanded the proceedings for fresh consideration of ld. CIT(A) by directing the ld. CIT(A) to confront the assessee with the facts of Sambhav Infrastructure Pvt. Ltd. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cross Road, Satellite, Ahmedabad Site Office ofRatnakarlll Prernatith Derasar Road, Anandnagar Cross Road, Satellite, Ahmedabad Site Office ofRatnakar IV Anandnagar Cross Road, Satellite, Ahmedabad Site Office of Richmond Grand Behind DNA, Nr. Torrent Power, Makarba Road, Odd S,G. Highway, Prahladnagar, Ahmedabad 3. The Survey Report prepared by DDIT (lnvestigation), Unit - 1(3) Ahmedabad, was forwarded to this office. Documents impounded during the course of Survey were also forwarded to this office. The Survey Report and the impounded documents have been examined by this office. It is seen from Page 130 of Annexure BF-17 (copy enclosed for your ready reference) which was recovered from your site office of Ratnakar-IV at Anandnagar Cross Road, Satellite, Ahmedabad during the course of Survey, that this paper contains certain notings. These notings clearly describe the area and the rate. The area of 3 Bedroom and 4 Bedroom flats given on this page clearly indicate that the notings pertain to Ratnakar II! project as the area of the 3 Bedroom flats and 4 Bedroom flats mentioned on the page are as per the actual area of the said flats in Ratnakar-lll. In the fifth line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio in which you have yourself allocated the receipts to AY 2011-12. 4. Furthermore, it is seen that some of the sale proceeds of your Ratnakar-IV project have also been apportioned to AY 2011-12. Following the same methodology as above, a sum of Rs. 6,90,80,980/- is ascertained to be the onmoney receipts in your case for the said year. Chart of the working of the same is enclosed. 5. You are hereby, directed to show-cause why the above mentioned sum of Rs, 25,66,17,425/- in relation to Ratnakar- III and a sum of Rs. 6,9Q,80,980/- in relation to Ratnakar - IV should not be treated as undisclosed income received by way of cash by you for AY 2011-12." 8. In response to the above show cause, the assessee furnished a detailed reply strongly contending that the sheet of paper being relied upon for calculating the quantum of on money is not correct. The assessee explained that it has not received any on money. It was brought to the notice of the A.O. that no name has been stated on top of the alleged loose sheet found at the time of survey. Therefore, it cannot be said to be pertaining to Ratnakar III scheme. The assessee also denied that the loose sheet belongs to it. 9. The det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. * 4 Bed Room = 3400 Sq. Ft. Pent House = 5450 Sq. Ft. * Rate (Regular) 4300 Rs. Per Sq. Ft. = 35% on Booking = 65% (21 Installments) * (D.P.) = 10 lacs Possession By 2 years * Extra Payment = Rs. 12,00,000/- Mainteance 2 Car Parking ACC (Auda Charges) Stamp Duty 16. It can be seen from the above that there is no mention of any scheme of the assessee, be it Ratnakar III or Ratnakar IV. In the loose sheet, there is a reference to Pent House but there is no Pent House in Ratnakar III scheme. Further in the loose sheet, there is a reference to 4-bedroom flats but there is no 4-bedroom flat in Ratnakar IV scheme. Further, the area of Pent House mentioned in the loose sheet is 5450 sq. ft. whereas the area of Pent House in Ratnakar IV schemes is only on 2520 sq. ft. The assessee may conceal the consideration but by any stretch of imagination, the assessee cannot conceal the carpet area of the flats. 17. A comparison of the loose sheet with the actual size of flats in Ratnakar III and Ratnakar IV schemes would show that this loose sheet has no relevance with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome which actually accrues is taxable, but income which the assessee could have, but has not in fact earned, is not made taxable. These two judgments were approvingly noticed and applied by the Supreme Court in CIT vs. Calcutta discount Co. Ltd.: (1973) 91 ITR 8. These judgments apply to the present case in favour of the assessee. 22. In our considered opinion, the assessing authority has no power to disturb the sale price shown except in three cases. The first is under Section 145 of the Act. Where the sale of properties is part of the business of the assessee, the Assessing Officer, if he is of the opinion that the accounts are not correct and complete, may proceed to reject the books of accounts and thereafter make a best judgment assessment of the income in the manner prescribed by Section 144. The second is the case where Section 50C of the Act is invoked on the basis of the prices fixed by the Stamp Valuation Authorities of the State Government. That section, it is pointed out, however, applies only in the computation of capital gains and cannot BE availed by the Revenue where the profits of the business are to be computed. 23. The third is the case of section 92BA insert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfill the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed. 27. With respect to evidentiary value of regular account book, the Hon'ble Supreme Court in the case of V.C. Shukla 1998 (3) SCC 410 has laid down :- " 37. In Beni v. Bisan Dayal it was observed that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to supp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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