Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2012 (2) TMI 686

..... i Hareshwar Sharma ORDER I.C. Sudhir, The revenue has questioned first appellate order on the following grounds : 1) That, on the facts and in the circumstances of the case, the learned CIT (Appeals) erred in directing to allow a deduction of ₹ 26,09,350/-, stated to be cash payment made to Shri Narendra Thakkar in respect of premium towards plot No. 33 for_Pratiksha Building, against the on money receipts declared on Pratiksha Project on plot No. 33. 2) That, on the facts and in the circumstance of the case, the learned CIT(Appeals) erred in holding that the existence of cash payment of ₹ 26,09,350/- in respect of Pratiksha Project on plot No 33 is evident from the seized document. 3) That, on the facts and in the circumstances of the case, the learned CIT(Appeals) erred in deleting the disallowance of ₹ 24,15,160/- made u/s. 40A(3) of the I.T. Act 1961 by the Assessing officer. 4) That, the learned CIT (Appeals) erred in law in holding that disallowance cannot be constituted as undisclosed income within the definition of Sec. 158B of the I.T. Act. 5) That, the learned CIT(Appeals) erred in law in holding that disallowance of u/s. 40A(3) in block assessment was o .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... kker was not having any right or title or interest in the plot No. 33. The assessee firm had also taken up other plots of land from survey No. 705/2/1 for development and construction of buildings from Shri Jitendra M. Thakkar as a power of attorney holder of Maharashtra Prabhodhan Seva Manal. The development agreements with the assessee firm in respect of such other plots of survey No. 705/2/1 were signed by Shri Jitendra M. Thakkar and the conveyance deed in respect of the said other plots in favour of the societies of the buildings constructed thereon by the assessee firm were also signed by Shri. Jitendra M. Thakkar as a power of attorney holder. But the development agreement 10-07-1997 as well as the conveyance deed dt. 10-11-1998 in respect of plot No. 33 were not signed by Shri Jitendra M. Thakkar as he had no concern or right or interest in respect of plot No. 33. 3.1. The seized document marked No. A-2 showed that the assessee firm had made cash payments in respect of several plots taken up by the assessee firm for development and construction and such cash payments were found to be over and above the consideration recorded in the agreement in respect of those plots. Again .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... t. The CIT(A) also referred to the entry on page No. 14 of seized booking register A-9 where the total cost of the said plot is mentioned at ₹ 31,93,600/- and where the deduction of agreement consideration of ₹ 5,84,255/- from ₹ 31,93,600/- is shown and the balance of ₹ 26,09,345/- with a remark cash paid is written. The CIT(A) relied upon the argument made by the assessee that the amount of ₹ 26,09,345/- was paid to Shri. Paraji Abaji Karanjkar through Shri. Narendra M. Thhakkar. This argument was relied by CIT(A) without they being any confirmation of Shri Paraji Abaji Karanjkar in the seized document or without any confirmation of Shri Paraji Abaji Karanjkar in the seized document or without any confirmation of Shri Paraji Abaji Karanjkar filed by the assessee. 4. In support of the grounds, the ld. D.R. has basically placed reliance on the assessment order. The Ld. D.R. on the other hand tried to justify the first appellate order. The ld. A.R. reiterated the submissions made before the authroties below. 5. Considering the submissions, we found that the issue involved is as to whether these specific payments made towards plot No. 33 as evident from A .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... kker, brother of Shri Jitendra M. Thakker in respect of plot No. 33 stands established. We thus find that when the nexus of transactions between the assessee in one hand and Shri Jitendra M. Thakker and his brother Shri. Narendra M. Thakker on the other hand to all these projects including Pratikshah project have been established, there is no reason as to why this specific payment towards such plot No. 33 as Annexure A2 should not be allowed against the on-money receipt on sale of flats. It is an established proposition of law that cognizance to be given to the contents of all the seized documents to determine undisclosed income. The existence of cash payments of ₹ 26,09,350/- in respect of Pratikshah project on plot No. 33 is clearly evident from the sized document Annexure A2 and A9 which has not been doubted by the A.O. Under these circumstances, we are of the view that Ld CIT(A) has rightly come to the conclusion that the said expenses pertaining to the plot No. 33 have to be necessarily allowed against the total on-money receipts for Pratikshah project on plot No. 33. We thus uphold the action of the Ld CIT(A) in directing the A.O to allow the deduction of ₹ 26,09, .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... t in the case of TCV Engineering Ltd. Vs. ACIT (2006) 205 CTR (Mad) 161. He submitted that the decisions relied upon by the Ld. D.R. having distinguishable facts are not applicable in the present case. He also placed reliance on the following decisions : 1. Cargo Clearing Agency (Guj.) Vs. JCIT (2008), 218 CTR (Guj.) 541 2. CIT Vs. Banwarilal Bansidhar (1998), 148 CTR (Allha) 533 3. CIT Vs. S. Mohammab Dharubudeen (2008) 4 DTR (Mad.) 218. He submitted that in those decisions relied upon by the Ld. D.R all ingenuine payments were made whereas in the present case, the A.O has accepted cash receipt and cash expenses as genuine transactions which the assessee had actually entered during the block period in question. He submitted further that there is no binding decision of the Hon ble jurisdictional High Court on the issue and in case different views have been expressed by different High Courts on an issue, that fabourable to the assessee will be followed. In this regard, he placed reliance on the decisions of Hon ble Supreme Court in the cases of CIT Vs. Vegetable Products (1973) 88 ITR 192 (SC), and CIT Vs. Podar Cement Pvt. Ltd. (1997) 226 ITR 625 (SC). 9. Considering the above subm .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... respect of the facts in the six buildings, he had taken on money except in the case of two flats. It was explained by the assessee that the registers and diaries found gives details of onmoney received from all the flat purchasers of the six buildings except for the two flats. It was submitted that the assessee did not have any on-money in the case of Shri Ashok B. Salian and Shri Yogesh Dharaskar to whom these flats were sold. The reason shown was that Shri. Ashok B. Salian was a regular supplier of bricks, sand, cement etc., and thus with him there was business relation and thus the flat was sold at the agreement value itself. Similarly in respect of flat sold to Shri. Yogesh Dharaskar, it was explained that he was painting contractor and with him also business relations were there and the flat was sold to him at the agreement value itself. After discussing the issue in detail, the Ld CIT(A) has deleted the addition merely on the basis that in block assessment, no addition can be made on estimation and without support of any seized material in corroboration. 11. In support of the ground, the ld. D.R. has basically placed reliance on the assessment order whereas the ld. A.R. has r .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

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

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||