Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Regency Mahavir Properties Versus ACIT Cen Cir. 1, Thane

2018 (1) TMI 245 - ITAT MUMBAI

Validity of assessment u/s 153A - Held that:- No addition can be made in the case of the assessee on the basis of documents being found from the premises of the third party where neither the name of the assessee nor the fact that the assessee has paid any cash of ₹ 7,60,00,000/-. Even otherwise also it is an undisputed fact that the said documents P23 and P26 on the basis of which the Assessing Officer has made the addition in the case of the assessee were found during the course of the se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of Ashray Premises Pvt. Ltd. Therefore, on this basis also the addition made in the case of the assessee cannot be sustained. See Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015 (5) TMI 656 - BOMBAY HIGH COURT] - Decided in favour of assessee. - ITA Nos. 682 And 683/Mum/2016 - Dated:- 4-1-2018 - Shri P K Bansal, Vice President And Shri Ravish Sood, Judicial Member For The Appellant : Shri Sunil U Pathak & Smt Geetaa Guwalanii For The Respondent : Shri Awungshi Gimson ORDER Per P .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ned CIT(A) erred in not appreciating that the proceedings u/s 153A are wrongly initiated in the case of the assessee as there was no search conducted on the assessee firm and the provision u/s 153A were not applicable and hence, the asst. completed u/s. 153A was null and void. 1.2] The learned CIT(A) erred in holding that the name of the assessee was included in the warrant issued to search the premises at 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar- 2 and theref .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

3A was bad in law. b. Conducting a search on the premises of the partner does not amount to conducting a search on the firm and thus, in this case, it cannot be held that the appellant firm was searched. c. The additional grounds raised by the appellant ought to have been admitted and allowed as it was shown by the appellant that the business premises of the firm were not searched and the asst. u/s 153A is wand void. . 2] The learned CIT(A) erred in confirming an addition of ₹ 2,60,00,000/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

A.O. was justified in making the addition in the hands of the appellant firm on the basis of the loose papers found during the course of search on Panchsheel group. c. The amount of ₹ 7,60,00,000/- has been taxed in the hands of the seller of the said property and therefore, the said amount should be taxed in the hands of the appellant firm who is the buyer of the said property. 2.2] The learned CIT(A) erred in not appreciating that the appellant firm had not paid any on money for purchas .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

operty from Ashray Premises Pvt. Ltd and hence, in the absence of any concrete evidence, no addition was justified in the hands of the appellant firm. c. The impugned document was neither found with Atul Chordiya nor he was the author of same. Hence his statement could not be made basis of addition. d. There were inconsistencies in the statement of Shri Atul Chordia and therefore, the reliance placed on his statement for making addition in the hands of the appellant firm was not justified at all .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he learned CIT(A) erred in holding that the name of the assessee was included in the warrant to search the premises at 111 / 112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar 2 and therefore, the assessee was searched and the asst. u/s 153A was valid. 2] The Learned CIT (A) failed to appreciate that the assessment for A.Y.2007-08 was a non abated assessment and since no incriminating evidence was found relating to the impugned addition of ₹ 2,60,00,000/- during the c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rred in confirming an addition of ₹ 2,60,00,000/- in the hands of the appellant firm for this year on the basis of the evidence seized during the search on Atul Chordia Group (third party) The assessee has taken following effective grounds of appeal for A.Y. 2010-11: On facts and in law, 1] The learned CIT(A) erred in confirming an addition of ₹ 5,00,00,000/- in the hands of the appellant firm on the basis of the loose paper seized from third party. 1.1] The learned CIT(A) erred in h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the course of search on Panchsheel group. c. The amount of ₹ 7,60,00,0007- has been taxed in the hands of the seller of the said property and therefore, the said amount should be taxed in the hands of the appellant firm who is the buyer of the said property. 1.2] The learned CIT(A) erred in not appreciating that the appellant firm had .not paid any on money for purchase of Deccan Paper Mill property from M/s. Ashray Premises Pvt. Ltd. and therefore, the addition made of ₹ 5,00,00,000 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ands of the appellant firm. c. The impugned document was neither found with Atul Chordiya nor he was the author of same. Hence his statement could not be made basis of addition. d. There were inconsistencies in the statement of Shri Atul Chordia and therefore, the reliance placed on his statement for making addition in the hands of the appellant firm was not justified at all. e. The appellant firm was not granted proper opportunity to cross examine Shri Atul Chordia and therefore, the reliance p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in law, 1] Based on the loose papers found in the search on Atul Chordia Group and the statement of Shri Atul Chordia, the learned CIT(A) erred in holding that in total, the appellant had paid on money of ₹ 7,60,00,0007- to M/s. Ashray Premises Pvt. Ltd. for purchase of the property named Deccan Paper Mill Property. 2] The learned CIT(A) erred in confirming an addition of ₹ 5,00,00,000/- in the hands of the appellant firm for this year on the basis of the evidence seized during the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Place of Business as per partnership deed 1 26.08.2005 2418, East Street, Thakkar House, 1st 2 30.05.2006 Wing Camp, Pune 3 02.11.2006 5th Avenue, Dhole Patil Road, Pune The principal place of business as stated in the last partnership deed dated 2.11.2006 is as that appearing in I.T. Database i.e. PAN/TAN records. There has been search u/s. 132 of the Income tax Act on the assessee firm along with those of its partners at 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasna .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ction with these concerns and the address of the assessee s firm, vide partnership deed dated 2.11.2016, was 5th Avenue, Dhole Patil Road, Pune. During the course of the search carried out at M/s. Ashray Premises Pvt Ltd., loose papers i.e. computerized Profit & loss account of Ashray Premises Pvt Ltd from 01.04.2006 to 3.8.2009 was found and seized and the copy of computerized ledger account of KLL in books of Ashray Premises Pvt Ltd. for the period from 01.04.2006 to 3.08.2009. The Assessi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

T(A) dismissed the ground of the assessee and confirmed the action of the Assessing Officer. 5. The learned AR vehemently contended that no search action was carried out in either of the premises of the assessee firm situated in Pune i.e. 2418, East Street, Thakkar House, 1st Wing, 2nd Floor, Camp Pune. There had been a search u/s. 132 at 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar- 421 002 and for this our attention was drawn towards 1st para at page 2 of the as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ad, Near Regency Marriage Hall, Ulhasnagar- 421 002. The assessee is filing its return with ITO Ward 2(2), Pune and after the search action the case of the assessee was centralized and transferred to Central Circle Thane. The principal place of business of the assessee mentioned in the partnership deed dated 5.11.2006 is 5th Avenue, Dhole Patil Road, Pune, which is the address as per Income Tax Database. The premises covered by the search did not belong to the assessee. Although the premises 241 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s regard our attention was drawn towards the provisions of section 153A and on that basis it was submitted that section 153A mandates to assess or re-assess that total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made. The phrase search is conducted would mean the incidence of actual conduct of search. Where there is no panchnama drawn in the name of the person searched, heavy burden .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

assessment years falling within six assessment years referred to in clause (b) of section 153A, within a period of two years from the end of the financial year in which the last of the authorizations for search under section 132 or for requisition under section 132A is executed. On this basis, it was contended that for making assessment under section 153A, it is necessary that a search should have been validly initiated u/s. 132 after 31.05.2003. It should be conducted in a particular financial .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the name of the person against whom the provisions of section 153A are sought to be invoked and the absence of such panchnama shall firstly negate the facts and circumstances leading to the initiation of the search, secondly, disprove the fact of the conduct and conclusion of the search and, thirdly, also result in defeating the provisions of section 153A(1)(b). 153B(1)(a)& 153B(2) as the determination of the financial year in which the search was conducted will be impossible resulting into .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch the last of the authorization is executed clearly refers to the actual execution of the warrant of authorization, which in turn refers to the conduct of physical search of the premises or the person. Thus, it was vehemently contended that both events i.e. initiation of search as well as conclusion of search are important. Therefore, in case the physical search is not conducted even after the issue of warrant of authorization, the conditions as specified in section 132 or 132A would not get sa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

search by mentioning the name of an assessee on any premises, is not enough to subject an assessee to assessment or reassessment u/s. 153A/153A(1)(b) on the basis of inclusion of a person/concern in the warrant of authorization. It was further contended that if it is assumed for the sake of the arguments that the name of the assessee has been included in one of the warrant of authorization issued and this warrant of authorization was executed on 18.02.2010 at the business premises of partners, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

imji Mithiborwala 82 ITR 821 (SC). Thus, on the basis of these decisions, it was submitted that since the assessment u/s 153A is based on a invalid notice issued u/s. 153A the same must therefore be quashed. 6. The learned AR before us submitted that the assessee has taken this ground before the CIT(A) but the CIT(A) dismissed the ground mentioning that this ground does not emanate from the order of the Assessing Officer as the assessee has not taken this issue before the Assessing Officer. It w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tnership deed and in this regard our attention was drawn towards the assessment order where the address of the assessee is mentioned as 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar- 2, which was covered by the search conducted u/s. 132(1). The assessee had never objected with regard to the address mentioned by the Assessing Officer in the assessment order. In the appeal Memo, the address mentioned is 2418 East Street, Thakkar House, 1st Wing, 2nd Floor, Camp, Pune .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sessee s registered address or correspondence address or address for any other purpose, the fact is admitted that the assessee s name was included in the warrant issued to search the premises at 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2. Besides the assessee, other persons to be searched as per this warrant of authorization were M/s. Konark Project Ltd., M/s Konark Infrastructure Pvt. Ltd., M/s. Regency Investment, M/s. Regency Realities, M/s. Regency Propert .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the CIT(A) in which the CIT(A) has duly distinguished these case laws. 7. We have heard the rival contentions and have carefully considered the same along with the orders of the authorities below. The question before us in ground no.1 taken by the assessee is whether in the facts and circumstances of the case, in the absence of search being conducted at the place of the business of the assessee, any assessment can be made by issuing notice u/s. 153A of the Act. It is not denied that the search .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the address of the assessee firm. The assessee s firm is constituted on 26.08.2005 vide partnership deed dated 26.08.2005 and subsequently amended vide deed dated 30.06.2006 and 3.11.2006. The address in the partnership deed dated 26.08.2005 and 30.06.2006 is 2418, East Street, Thakkar House, 1st Wing Camp, Pune and in the deed dated 3.11.2006, the address is 5th Avenue, Dhole Patil Road, Pune. These are the address of principal place of business of the assessee is constituted. It is also not de .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Avenue, Dhole Patil Road, Pune. The Assessing Officer even though issued notice u/s. 153A to the assessee at the address 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2, on 29.10.2010, the assessee in reply thereto mentioned address as 5th Avenue, Dhole Patil Road, Pune. In the return filed for A.Y. 2010-11 also the assessee has been given as 5th Avenue, Dhole Patil Road, Pune. In the notice issued u/s. 143(2) although the Assessing Officer has given the address a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ddressed the assessee at Thakkar House, 1st Wing Camp, 2nd Floor, East Street, Pune. We noted that in the notices dated 9.12.2011, 11,12,2011 and 21.12.2011, issued by the Assessing Officer, the address has been mentioned Thakkar House, 1st Wing, Camp, 2nd Floor, East Street, Pune. The same address was mentioned in the notice dated 15.2.2012 issued u/s. 220(6). In the recovery notice dated 27.11.2012 and in the order for attachment the address has been mentioned 5th floor, 5th Avenue, Dhole Pati .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

riage Hall, Ulhasnagar-2. We also noted that the Panchnama has been drawn showing the search being conducted at the premises of the assessee. In our view, the Assessing Officer assumed the jurisdiction to issue notice u/s. 153A and made assessment in consequence of search action being taken u/s. 132 of the Income tax Act. Before deciding whether the Assessing Officer has validly assumed the jurisdiction u/s. 153A, it is necessary to analyze the provisions of section 132(1) as well as 153A. The p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y be specified in the notice, the return of income in respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred Co in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the tot .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed; (b) in respect of the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed : (2) The authorisat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al or Director General or Principal Director or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner or Joint Director or Joint Commissioner in consequence of information in his possession, has reason to believe that- (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be, disclosed for the purposes of the Indian Income-tax Act, 1922 (11 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o the previous year in which the search has been conducted or requisition is made. The said subsection using the term search is conducted had also specified assessment year for which the reassessment proceedings are triggered after search. It is clear from the above that the provisions of section 153A of the Act come into play only after search has been conducted. The provisions of section 153B of the Act provides that authorization of warrant shall be deemed to be executed upon the conclusion o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hich is conclusive proof of conclusion of search from which the period of limitation will be calculated as provided u/s 153B of the Act. The provisions of Act very clearly and unambiguously provide for initiation of search, conduct of search and conclusion of search and only then the Assessing Officer can assume jurisdiction u/s 153A of the Act. In the present case before us, we noted that the search has been initiated in the name of the assessee along with other assessees appearing on the warra .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

address of the premises where the search has been conduction in the assessment order will validate the action of the Assessing Officer that the assessee was carrying on the business from the same premises. The address mentioned in the notice issued u/s. 143(2) and the demand notice generated on line as well as the PAN/TIN, copies of which were filed before us, clearly prove that 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2., where the search was conducted is not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

relied on before us: J.M Trading Corporation vs. ACIT20SOT489 (MUM) In this case, premises owned by assesses were searched but these premises were not occupied by assesses but tenanted to someone else. It is held that search action was invalid and illegal, it is held (In para 24) that 'mere mentioning of name in the panchnama does not lead to the conclusion that a valid search has been conducted against the assessee'. The conclusion part is reproduced below:- CONCLUSfQN Search of assesse .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eld as under ;- The mere Issue of warrant of authorization, without there being search of the premises mentioned in the warrant of authorization would be meaningless and would not serve the purpose of section 132 of the Act. It may also be added that in section 153A(b) it is specifically provided that the Assessing Officer shall assess or reassess the total income of six years immediately preceding the assessment years relevant to the previous year in which such search is conducted or requisitio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the warrant of authorization, the address of the place to be searched was not the address of assessee individual. Admittedly, no Panchnama was also drawn in pursuance with the warrant of authorization in the case of assessee. No documents were seized or impounded as such during the course of search from assessee. The warrant of authorization in the name of the trust and assessee stands unexecuted in the case of assessee-individual. Since in this case only survey operation under section 133A was .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. Panchnama is a document prepared at the conclusion of search operation. It is a written record of what has been witnessed by panchas and it proves conduct of search.} CIT vs. Kurban Hussain Ibrahimji Mithiborwala 82 ITR 821 Wherein Hon'ble Supreme Court has held as below: It is well settled that the ITO's jurisdiction to reopen an assessment under s. 34 depends upon the issuance of a valid notice. If the notice issued by him is invalid for any reason the entire proceedings taken by him .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. Accordingly, we quash the assessment order passed u/s. 153A r.w.s. 143(3) of the Act. 9. Ground no.2 taken by the assessee relates to the addition of ₹ 2,60,00,000/-. In this regard, the leaned AR before us vehemently contended that even if it is assumed that there was a valid search in the case of the assessee, since no incriminating material relating the assessee was found during the course of the search, no addition u/s. 153A can be made as the assessment for the A.Y. 2007-08 has not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion in the case of the assessee has been made by the Assessing Officer wholly on the basis of the material found during the course of the search on 11.09.2009 on Panchsheel Group i.e. Ashray Premises Pvt Ltd. The learned DR, on the other hand, relied on the orders of the authorities below. 10. We have heard the rival submissions and have carefully considered the same along with the orders of the authorities below. We noted that on the issue whether any addition can be made in the assessment mad .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt years separately; b) In other cases, in addition to the income that has already been assessed, the assessment u/s 153A will be made on the basis of incriminating material, which in the context of relevant provisions means - (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search. It is a fact that the assessment for the impugned assessment year has not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

8 and Ground nos. 1 & 2 for A.Y. 2010-11 relate to the sustenance of addition of ₹ 2,60,00,000/- and ₹ 5,00,00,000/- for A.Ys. 2007-08 and 2010-11 respectively. Both the parties agreed that since the facts involved relating to these additions are common the issue may be decided on merit on the basis of the facts for A.Y. 2007-08. The facts relating to these additions are that there had been a search in the case on 11.09.2009 on Panchsheel Group i.e. Ashray Premises Pvt Ltd. Durin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or the aforementioned period, reflecting the following debit entries, totaling to ₹ 2,10,00,000/-, on three different dates: Date Particulars Vch type Vch No Debit 26.07.2006 Cr M.C.M.G. being amount received from dilip jain 1.00 to mr. K.l.l-: 50 debited thu mcmg : icd a/c refund . Paymen 8 5,000,000 23.09.2006 Cr M.C.M.G being amount received from mr dilip jain on deccan paper retained by mr. K.LL as per inst. from kll : a/c for Payment 11 10,000,000 …. 22.10.2006 Cr. Mukesh Agarw .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ich stands for Kantilal L Lunkad, by the partner of the assessee Shri Dilip Jain/Mukesh Agarwal and since the sum of ₹ 2,60,00,000/- (correct figure ₹ 2,10,00,000) were paid during the A.Y. 2007- 08, the balance sum of ₹ 5 crores would have been paid in the assessment year 2010-11. The Assessing Officer therefore, added the sum of ₹ 2,60,00,000/- in A.Y. 2007-08 and ₹ 5 crores in A.Y. 2010-11. Subsequently, there had been a search in the case of Konark Group and its .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ee was found. The assessee vide agreement, dated 20.05.2006, duly registered with Ashray Premises Pvt. Ltd., transferred the development rights in respect of plot no.96B, 96C and 96D at Village Mundhwa, admeasuring 3,51,541 sq. ft. at Pune, for a consideration of ₹ 9,12,60,000/- The consideration thereof was paid in the following manner: (a) Monetary consideration of ₹ 3,11,00,0007- to be paid as under: (i) ₹ 75,00,000/- vide cheque dtd 01-09-2005 of ₹ 55 lakhs & dtd .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

entered into an agreement dated 27.04.2002 on a stamp paper of ₹ 100/- with Ashray Premises Pvt. Ltd. for its development in consideration of handing over saleable built-up area of 63,600 sq. ft consisting of Row houses/Bungalow/offices/shops along with additional prorate open/covered car parking. Subsequently, a fresh agreement dated 22.04.2004 was executed and registered between Deccan Paper Mills Co. Ltd. and Ashray Premises Pvt. Ltd. in which there was a monetary consideration to be pa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

agreement deed of confirmation was duly executed on 17.07.2006 between Ashray Premises Pvt. Ltd being transferor, the assessee being the developer and Deccan Paper Mills Co. Ltd., being the consenting parties to Article of Agreement dated 20.05.2006. The Assessing Officer noted from seized document P23 (profit & loss account) that the assessee had debited in the purchase account under the name Deccan Paper Mill :Purchase - ₹ 1,91,93,350 while it has credited Deccan Paper Mill : Sale & .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the content on it and also confirm whether these are accounted in the regular books of Mr KIL and Mr KLL accounts along with the documentary evidences. Ans: The pages referred above pertain to the company named 'M/s Ashray Premises Pvt Ltd., of which I am one of the shareholder and a Director. These transactions are not recorded either, in the books of the said company or KLL or my books of accounts. Page A/o.23 is a Profit and Loss account for the period ending 3d August 2009 and the gross .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r was of the view that the assessee has paid an amount of ₹ 7,60,00,000/- in cash towards purchase of the said land. In view of the copy of ledger account of K.L.L. in the books of Ashray Premises Pvt. Ltd, the Assessing Officer was of the view that during A.Y. 2007-08, the partner of the assessee firm paid a sum of ₹ 2,60,00,000/- to the assessee while the seized paper shows a debit of ₹ 2,10,00,000/-. During the course of the search at the premises of one of the partners Shri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ill. For this we had paid deposit ₹ 90 Lakhs(Rs. 5 Lakhs per month for 18 Months) to Deccan Paper Mill. When Shri Dilip Oswal was shown the seized documents from the premises of Ashraya Premises Pvt. Ltd. i.e. P23 and P26, he replied as under: Q3.Pl.explain the transaction of Deccan Paper Mill Land, Pune and your role in the same. Ans. M/s.Ashray Premises Pvt IM had purchased the land from Deccan Paper Mills Ltd on 22/072004 on a development agreement. I was'one of the shareholder in M .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, 25& 26 shows an entry of 2.10 crores received by Shri Kantilal Lunkad from Shri Dilip Jain wherein in one entry it is mentioned on account ol Deccan Paper Mill. Q.5 During the course of Search your statement was recorded u/s. 132(4) on 12/09/2009, the relevant portion of the statement and your submission is reproduced as under: Q.No.6:1 am showing you pages No.12 to 19, 22 to 27 of bundle No.6 of Annexure A of Panchnama Dated 12-09- 2009. Please go through these pages and explain the conte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

77; 11,04,44,650/-. Page 15 to 19 and page no.22 have notings regarding the expenditure incurred for earning the said amount of ₹ 11,04,44,650/-. The total expenditure incurred is about ₹ 3 Crores. Therefore,, the income earned by the said company in the capacity is ₹ 8.04 Crores which is pertaining to F.Y.2009-10 in the hands of M/v.Ashray Premises Pvt Ltd over and above the regular income. Even Shri Mahesh Khairari, partner of the assessee firm when confronted, also denied th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er noted that income was declared under the name and style of Ashray Premises (AOP) consisting of Atul Chordia & Kantilal Lunkad in the following manner: AY 2005-06 ₹ 01,68,75,000 AY 2006-07 Rs.03,18,28,400 AY 2007-08 Rs.00,65,00,000 AY 2009-10 Rs.00,42,00,000 AY 2010-11 Rs.16,35,00,000 The income relating to these transactions has not been disclosed by Ashray Premises Pvt Ltd. and in the disclosure Shri Atul Chordia made the following comment; During the search, to buy peace with the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es in the A.Y. 2010-11, which was confirmed by the CIT(A). 12. We have heard the rival submissions and carefully considered the same along with the orders of the tax authorities below. We have also gone through the following decisions as relied on before us: • CTT vs. Tirupati Oil Corporation 248 ITR 194 • Unique Star Developers vs. DCIT 50 CCH 25 Mum • ACIT vs. MAB Finlease Ltd. 37 CCH 597 Del • J.M.Trading Coprn. vs. ACIT 20 SOT 489 • Dr. Mansukh Shah vs. ACLT 18 ITR 8 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ugh the seized paper found during the course of the search in the case of Ashray Premises Pvt. Ltd., copies of which are available at pages 196 and 197A of the paper-book. At page 196 is the Profit & loss account of Ashray Premises Pvt. Ltd. for the period 01.04.2006 to 3.08.2009. We noted that a sum of ₹ 7,60,00,000/- has been credited on account of sale of Deccan Paper Mill while it has debited a sum of ₹ 1,91,93,350/- as purchase of Deccan Paper Mill. This paper is a computeri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

admeasuring 3,51,541 sq. ft. at Pune, for a consideration of ₹ 9,12,60,000/-. M/s. Ashray Premises Pvt. Ltd. got the development rights in the said property by virtue of an unregistered agreement, dated 27.04.2002, entered into on a stamp paper of ₹ 100 with Deccan Paper Mills Co. Ltd. by which it agreed to develop the said property by handing over saleable built-up area of 63,600 sq. ft consisting of Row houses/Bungalow/offices/shops along with additional prorate open/covered car pa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aper Mills Pvt Ltd being the consenting party to the agreement dated 20.05.2006. During the course of the search at Ashray Properties Pvt .Ltd. two documents were seized (P23 and P26), on the basis of which the Assessing Officer made the addition in the case of the assessee amounting to ₹ 2,60,00,000 in A.Y. 2007- 8 and ₹ 5 crores in A.Y. 2010-11. We noted that the statement of one of the Directors of Ashray Premises Pvt Ltd. was recorded and subsequently questions were raised with r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of which I am one of the shareholder and a Director. These transactions are not recorded either, in the books of the said company or KLL or my books of accounts. Page A/o.23 is a Profit and Loss account for the period ending 3d August 2009 and the gross profit is ₹ 11,04,44,650/-. Page 15 to 19 and page no.22 have notings regarding the expenditure incurred for earning the said amount of ₹ 11,04,44,650/-. The total expenditure incurred is about ₹ 3 Crores, Therefore, the income .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was to be paid to M/s. Ashray Premises Pvt Ltd and 61,000 Sq.Ft. of built-up area was to be handed over to Deccan Paper Mill. For this we had paid deposit ₹ 90 Lakhs(Rs. 5 Lakhs per month for 18 Months) to Deccan Paper Mill. In the said reply, the Director has stated that the transactions in these pages are not recorded in the books of Ashray Premises Pvt. Ltd. but nowhere he had stated that the company Ashray Premises Pvt. Ltd. received a sum of ₹ 7,60,00,000 in cash from the asses .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a/c for and against the sum of ₹ 60,00,000/- credited on 22.10.2006, it has been mentioned Mukesh Agarwal/Dilip Jain (6.25) Being account closed by mr lunkad and last payment received by mr lunkad . From these descriptions in this account, it is not clear that the payment has been made by the assessee in cash for getting the development rights in respect of plot no.96B, 96C and 96D at Village Mundhwa, admeasuring 3,51,541 sq. ft. at Pune. We noted that the development agreement has been re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s Pvt Ltd. and, in reply thereto, each of them has categorically denied any cash payment by the assessee to Ashray Premises Pvt Ltd. Further we also noted that there was search in the case of Ashray Premises P Ltd, the ledger account reflects a debit of ₹ 2,10,00,000/- but a sum of ₹ 7,60,00,000. The payment of ₹ 5 crores have been presumed by the Assessing Officer as payment made by the assessee on the basis of the Profit & Loss Account of Ashray Premises P Ltd. We also no .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r produced by the Assessing Officer at page 8 of the assessment order. We also noted that the Assessing Officer has not treated the income shown in the Profit & loss account as income of Ashray Premises Pvt. Ltd., but accepted the surrender made by the Director of Ashray Premises Pvt. Ltd. in the hands of AOP. If the amount has been paid to Ashray Premises Pvt. Ltd. in respect of procuring the development rights of the plot no.96B, 96C and 96D at Village Mundhwa, then the said amount should .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or evidence have been found and brought to our notice which may prove that the assessee had paid of ₹ 7,60,00,000/- to Ashray Premises Pvt. Ltd. Even the payment of ₹ 2,10,00,000 has been assumed by the Assessing Officer appearing at page 26 relating to the said transaction has been debited only after the execution and registration of the agreement between the assessee and Ashray Premises Pvt Ltd. No seller will transfer his rights in favour of the buyer until and unless he has recei .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

1. 13. From the profit & loss account seized from Ashray Premises Pvt. Ltd., we noted that neither there is any date nor the name of the assessee mentioned, which may prove that the assessee has paid a sum of ₹ 7,60,00,000/- in cash to M/s. Ashray Premises Pvt Ltd. We also noted from the said Profit & loss account that nowhere in these documents it is mentioned that M./s Ashray Premises Pvt Ltd. received a sum of ₹ 7,60,00,000/- in cash. The addition has been made merely on t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version