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TMI Blog2018 (7) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... d. First one raised in grounds Nos. 2 to 2. 5 is common in all these three appeals and is against the action of the Ld. CIT(A) in upholding the addition on account of car parking space made by the ld. Assessing Officer. 5. It was submitted by ld. A. R that assessee is an individual, who is deriving income from long term capital gains. The income of assessee has been assessed under the head 'Business'. It was a submission that there was a survey u/s. 133A on the business premises of assessee. In the course of survey, it is noticed that the assessee had entered into a Joint Venture Agreement with M/s. Heera Constructions Co. Pvt. Ltd. , for the development of property at Kerala. It was a submission that assessee had received certain flats as a share in the joint venture. It was a submission that the assessee had sold these flats to various persons. In the course of survey, as statement was recorded from the assessee on 06. 06. 2012 wherein in respect of Question (Qn) No. 5, the question and answer are recorded as follows:- Qn No. 5 Please state the details of Joint Venture with M/s. Heera Constructions Co. Pvt. Ltd. Answer As per the above two agreements dated 05. 10. 2007 & 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orically admitted to have received Rs. 2. 5 lakhs per flat as mentioned by him in page-28 of yellow diary as car parking charges. It is mentioned in answer to Qn No. 5 that this was collected from the buyers of 20 flats out of 46 flats. However, Qn No. 14 is very specific towards page No. 28 of yellow diary. In reply to that, the assessee has categorically specified the buyers of six flats from whom the assessee has collected the car parking space sales. Now, this statement of assessee has not been rebutted for dislodged by the ld. Assessing Officer in the assessment order. However, in the assessment order, the ld. Assessing Officer mentions that assessee has accepted in his statement that he has received Rs. 2. 5 lakhs per flat towards sale of car parking space and made addition. When particular evidence, more specifically the evidence in the form of diary, has been found in the course of survey and the assessee has explained the said evidence being a yellow diary, to discard the recordings in that diary, in the absence of any substantial or cogent evidence is impermissible. This being so, as no further evidence has been found to show that the assessee has sold car parking space t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. It was a submission that the addition has been made by the ld. Assessing Officer and confirmed by the Ld. CIT(A) without any evidence. It was a submission that the addition made by ld. Assessing Officer for assessment year 2010-11 was to an extent of Rs. 87,11,000/-. It was a prayer that the addition was liable to be deleted. 10. In reply, the ld. D. R vehemently supported the orders of ld. Assessing Officer and the Ld. CIT(A). 11. We have heard both the parties and perused the material on record. A Perusal of the assessment orders and the orders of Ld. CIT(A) clearly shows that no evidence whatsoever has been found to show the receipt of additional sale consideration of (Rs. 77,40,000/- minus Rs. 25,80,000/-) Rs. 51,60,000/- in the course of survey. In fact, the assessment order also does not talk of any evidence, much less the Ld. CIT(A) in respect of any evidence has been found to show that the assessee had received any additional sale consideration other than what has been disclosed by the assessee for assessment years 2009-10 & 2010-11 also, no evidence has been recorded to show that the assessee has received additional sale consideration of Rs. 1,42,10,000 less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been agreed at Rs. 3,88,000/-. It was a submission that the agreement specified the cost of acquisition at cent basis and the agreements have been accepted by the Revenue. It was a submission that the difference between Rs. 9,32,80,000/- and Rs. 10,05,28,650/- show the cost representing the commission payments, which had been accepted by the ld. Assessing Officer. The Stamp Paper costs of Rs. 33,60,900/- was accepted by the ld. Assessing Officer and Registrar fee of Rs. 6,72,180/- has been accepted by the ld. Assessing Officer. The other cost representing document writing costs, vehicle maintenance, bank charges, rent, leveling and compound wall, telephone charges and vehicle insurance had not been accepted by the ld. Assessing Officer. It was the prayer that the cost of acquisition as disclosed by the assessee may be accepted. 13. In reply, the ld. D. R vehemently supported the orders of ld. Assessing Officer and the Ld. CIT(A). 14. We have considered the rival submissions. A perusal of the agreement in respect of purchase of the 2. 38 acres of land clearly shows that the agreement has been entered into on 24. 01. 2007 relevant to assessment year 2007-08 and the payments had b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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