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TMI Blog2013 (8) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... as assessees income rather than making addition of entire amount of sale proceeds received in cash and partly allowed the appeal. 2. On the last date, we directed the learned senior counsel for the appellant to verify the decision of Gujarat High Court in case of Dy. CIT v. Panna Corporation (2012) 74 DTR (Guj) 89 and point out to this Court that any appeal has been filed by Revenue or not, before the Apex Court or judgment is still hold the field. 3. Learned senior counsel for the appellant made his submissions that he has no knowledge whether any appeal has been filed by Revenue or not against the order passed by Panna Corporation (supra). 4. In the case of Panna Corporation (supra) the assessee is engaged in business of construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for in the decision of the Tribunal accepting such element of profit at Rs. 26 lacs out of total undisclosed receipt of Rs. 62 lakh. In other words, we accept the legal proposition, the Tribunal accepting Rs. 26 lacs disclosed by the assessee as profit out of total undisclosed receipt of Rs. 62 lacs, would not give rise to any question of law." 5. Similar view is taken in the case of CIT v. Balchand Ajit Kumar (2003) 263 ITR 610 (MP). Relevant part of the order reads as under: "The facts of this case were that in a search conducted at the business and residential premises of the assessee, it was found that there were credit sales, which were not reflected in the books of account. On scrutiny of the books of account of the assessee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s found noted on the loose sheets. The defence of the assessee before the assessing officer was that ownership over those documents was of the plot owners and not of the assessee company. The seized papers do not carry any signatures of the directors of the staff of the assessee and they are not in any body's handwriting, but are typed pages. The assessing officer gave a finding that the amount received by the assessee from the purchasers, which has not been recorded in the books of assessee is the total income of unrecorded sales consideration and the same is held and added as total income of the assessee company by order dt. 18-12-2009. 7. The learned Commissioner (Appeals) considering the facts that allotment letters are issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be made not in respect of sale consideration but only in respect of the profits. In case of CIT v. President Industries (2002) 258 ITR 654 (Guj), Hon'ble Gujarat High Court held that where unaccounted sales were revealed during course of survey, entire sale proceeds cannot be added as undisclosed income of the assessee, but addition could only be to the extent of profit embedded in sales. It was further observed by Hon'ble High Court that entire amount of sales could not represent the income of the assessee, who had not disclosed the sales. 11. Hon'ble Gujarat High Court in the case of Dy. CIT v. Panna Corporation (2012) 74 DTR (Guj) 89, where assessee was engaged in business of construction of flats and during course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents alleged to be found at the residence of the director indicating sales received in cash, did not bear any signature of the authorized person or the directors of the company. He further submitted that in the business of real estate, the assessee is not only receiving cash payment against sale of plot, land or flats but also making cash payment in respect of purchase of plot and also incurring expenditure on its development, which has to be taken into account while ascertaining the profit element embedded in the sale proceeds receiving cash, which is alleged to be unaccounted. Our attention was also invited to the documents indicating incurring of expenses by directors but treated by Commissioner (Appeals) as withdrawal by directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in view the proposition of law laid down by the Gujarat High Court as well as Madhya Pradesh High Court and other High Courts and keeping in view the nature of assessees business of purchase and sale of real estate and flats, we are of the view that the direction of the learned Tribunal to the assessing officer to take 25 per cent of sale proceeds received in cash as assessees income rather than making addition of entire amount of sale proceeds received in cash is based on the decision of Panna Corporation case (supra) of Gujarat High Court. 10. For the above-mentioned reasons, we are of the view that the question involved in this appeal is squarely covered by the decision of Gujarat High Court in the case of Panna Corporation (supra) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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