9911796707
TMI Blog2018 (9) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, the assessee was under the bonafide impression that no ground was raised with regard to the issue of notice u/s 148, in appeal memo in Form 36, hence the ground relating to issue of notice u/s 148 was not raised. After re look of the Ld.CIT(A) order it was found that the Ld.CIT(A) has adjudicated the issue with regard to the notice u/s 148, thus the assessee intend to challenge the order of the Ld.CIT(A) on upholding the validity of issue of notice u/s 148 also, hence filed the revised grounds which reads as under: 1. The order of the learned Commissioner of Income Tax (Appeals)-2, Visakhapatnam is contrary to the facts and also the law applicable to the facts of the case. 2. The learned Commissioner of Income Tax (Appeals) is not justified in holding that the appellant had paid amount over and above the consideration stated in the document evidencing the purchase of villa from MIs Vizag Profiles Limited. 3. The learned Commissioner of Income Tax (Appeals) is not justified in sustaining to the extent of Rs. 47,99,995/- the addition made by the assessing officer towards alleged excess consideration paid. 4. The learned Commissioner of Income Tax (Appeals) is not just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are reproduced as under: (a) Annexure -13- copy of page No.47 of paper book (seized document) Sl. No. Name & Address of the Party PAN Financia l Year of Transaction Recorded in books of account by Vizag Profiles Group as per document Unaccoun ted Cash Portion (in Rs.) Information forwarded to the Jurisdictional Assessing Officer 21. Smt.M.Annapurna W/o Sri M.RajaSekhar H.No.91,92,93&9 4, Green City Near Apparel Export Park, Vadlapudi(Post) Visakhapatnam- 530046 ALCPM626 1C 2008-09 56,44,800 28,28,000 91,27,000 The Income Tax Officer Ward- 5(1)Visakhapat nam (b) Annexure -II- copy of page No.49 of paper book Sl. Particulars PAN Cost of Project Registered Value of Construction Registered Land Value Cash Cash portion received in FY 2008-09 4. M.Annapurna, 93 & 94 88,00,000/- 28,22,400/- 14,14,000/- 45,63,600 2800034 5. M.Annapurna, 91 & 92 88,00,000/- 28,22,400/- 14,14,000/- 45,63,600 1999961 Basing on the information received from the investigation wing, the AO had issued the notice u/s 148 and taken up the case for assessment. The AO issued notice to the assessee directing him to explain the sources for invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.CIT(A) observed that the total payment made by the assessee was Rs. 67,99,005/- for the F.Y 2008-09. Since there was difference in actual payment and the payment registered sale deed, the Ld. CIT(A) presumed that that the assessee has paid the consideration over and above the sale price recorded in the sale deed in cash and did not believe the contention of the assessee that the payments were made subsequent to the registration and accordingly directed the AO to make the addition of Rs. 47,99,995/-i.e (28,00,034+19,99,961) as noted in Annexure-II page No.49 of paper book seized in the premises of the searched person. For ready reference, we extract relevant part of the order of the Ld.CIT(A) which reads as under : "6.2 1 find that as per the registered sale deeds dated 28.2.2008 documented consideration for both properties aggregating to Rs. 51,52,000/- was paid already before the date of registration. But as per the information furnished by the assessee, only an amount of Rs. 9 lakhs was paid In June, 2008 in cheque and all other payments were made subsequent to the date of registration. It is quiet improbable that the vendor would convey the title to the vendee without rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered sale deeds as well as the subsequent additional construction agreements dated 23.03.2010 under which the assessee is required to pay a sum of Rs. 32,32,000/-@16,16,000/- each for extra work. The issue involved in this appeal is unaccounted investment made by the assessee amounting to Rs. 91,27,200/-. The Ld.AR argued that the Ld.CIT(A) directed the AO to make the addition of Rs. 47,99,995/- for the financial year 2008-09 without considering the material available on record. In this regard, the Ld.AR argued that though the amount was recorded in the registered sale deed @ Rs. 51,52,000/- as on 28.07.2008 the assessee made the payment of Rs. 9 lakhs and subsequently made the balance amount as per the details furnished and the payment schedule of the assessee is in synch with the Vizag Profiles Group account. The Ld.AR further submitted that the entire payment of Rs. 67,99,005/- was paid during the F.Y.2008-09. The Ld.AR has given reconciliation statement which is made available in page No.101 of the paper book, wherein, the complete details of the date wise payments were furnished by the assessee along with account copy of the vendor which is in synch and reconciled. In respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Project by Monday i.e. 23.04.2012 along with copies of documents. Q. Please mention the percentage of payments received in cheque and cash against sale of flats and villas in Green City Project? What percentage of receipts are entered in your regular books of account? A. 60% to 75% of the sale receipts are received in cheque and the rest in cash. The element of cash receipt is not entered in the regular books of account. Q. Depending upon the number of villas/flats sold, can you quantify the cash component, which is received against sale of flats / villas in Green City Project for various years? A. I will quantify the amount of cash component which are not entered in the regular books of account and submit the same on 23.04.2012 along with other information." 9.1. On the basis of the above information, the AO concluded that the assessee had paid the unaccounted cash towards purchase of the flats. Plain reading of the statement recorded from Mr. B.Suresh, Managing Director of Vizag Profile group of companies reveals that they are in the habit of receiving the sales receipts to the extent of 60% to 75% through cheque and rest in the cash. He also admitted that the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO and allow the appeal of the assessee on this ground. 9.2. With regard to the difference in sale consideration in the registered sale deed the Ld.CIT(A) did not make any addition since at the end of the F.Y. the consideration recorded in sale deed, the assessee's books are reconciled with the VGP' s books. The department also did not place any evidence to show that the assessee has made over and above the consideration recorded in the books of account during the year. Therefore we do not see any reason to interfere with the order of the Ld.CIT(A) on this issue. 10. Ground No.4 is related to the direction given by the Ld.CIT(A) to consider the cash payments of Rs. 25,00,017/- and Rs. 12,81,183/- as addition for the assessment years 2010-11 and 2011-12, the same is not related to the impugned appeal under consideration. Therefore, this ground is infructuous for the year under consideration and the assessee is at liberty to go on appeal in the relevant assessment year. Accordingly this ground of the appeal is dismissed. 11. In the result, the appeal of the assessee is partly allowed and the appeal of the revenue is dismissed.. The above order was pronounced in the open co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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