9911796707
TMI Blog2018 (2) TMI 1965X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and circumstances of the case, the ld. CIT(A) was not justified in confirming the addition of Rs. 67.50 lacs without ensuing that payment through cash and bearer cheque has been made to M/s. Rajasthan Land Developrs Pvt. Ltd. 4. That the appellant craves leave to add to alter, amend, modify, substitute, delete and / or rescind all or any of the grounds of appeal on or before the final hearing, if necessary so arise. ITA No.109/JP/2017 - A.Y. 2007-08 ''1. On the facts and circumstances of the case, the ld. CIT(A) was not justified while rejecting additional evidences u/s 46A which was considered without allowing opportunity of being heard by AO. 2. On the facts and circumstances of the case the ld. CIT(A) was not justified while confirming the order passed u/s 147/143(3) of the I.T. Act, 1961. 3. On the facts and circumstances of the case the ld. CIT(A) was not justified while confirming addition of Rs. 3.26 crores u/s 68 as unexplained cash credit of I.T. Act, 1961. 4. On the facts and circumstances of the case, the ld. CIT(A) was not justified while not allowing the opportunity of cross examination of statement of director of purchase company recorded u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per square yard but this clause was not invoked by the appellant as is apparent from the cancellation agreement. In the cancellation agreement dated 14-07-2007, it was also stated that the UTHPL was to pay Rs. 57,50,000/-in cash within 15 days of MOU dated 22-03-2006 which was not paid by UTHPL and the appellant stated to receive cash of Rs. 57,50,000/- in the MOU dated 22-03-2006 only on the promise made by UTHPL. (iii) During assessment proceeding, the AO made enquiries through the investigation wing at New Delhi where statement of Shri Nikhil Tripathi, Director of UTHPL was recorded on oath u/s 131 of the Act in which he confirmed the payment of cash of Rs. 57,50,000/- and Rs. 10 lacs through bearer cheque during the year under consideration and state that the MOU dated 14-07-2007 was not signed by him and a forged document. On the basis of the detailed discussion in the assessment order, the AO made an addition of Rs. 67,50,000/- on account of unrecorded sales. (iv) During appellate proceedings, the appellant repeated the submissions made before the AO and placed reliance on the charge sheet filed by the Police against UTHPL and its Directors emphasizing that the cancellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07, it is stated that they have not accounted the payments entered in our books which was paid by way bearer cheques and cash as sated above. Q.No.7: I am also showing a copy of document filed 'Detail of payments made to Rajasthan Land Developers Pvt. Ltd. Jaipur during the period w.e.f. 01-03- 2006 to 31-03-2007' which has been filed by your company before the ITO, Ward 2(2), Jaipur u/s 133(6) of the I.T. Act, 1961. Please state whether you accept that this document has been filed by your company and if so why it does not match with your books of accounts? Ans: I confirm that the said document has been filed by UTHPL before the ITO,Ward 2(2), Jaipur u/s 133(6) of the I.T. Act, 1961. The total payment of Rs. 9.83 crore made to M/s. RLDPL matched with your books of accounts. However, the dates as per books of accounts and the said statement differs because UTHPL has accounted for the entre cash and part payment by bearer cheque paid to RLDPL in the F.Y. 2006-07. We again confirm the payment by cash/ bearer cheque during the F.Y. 2005-06 to RLDPL amounts to Rs. 67,50,000/- and during F.Y. 2006-07 the same amount to Rs. 3.42 crore against which Rs. 10,00,000/- is accounted for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 Determination (Ground No.2) (i) I have carefully perused the submissions of the appellant and the material placed on record. It could be seen from the assessment order that in para 3.9 on page 6, it was stated by the AO that :- ''the copy of statement of Shri Nikhil Tripathi recorded on 13-03-2014 was forwarded to assessee vide this office letter No. 2306 dated 14-03-2014 with a request to explain why the amount of Rs. 67,50,000/- should not be treated as income of the assessee company not recorded in the books of accounts.'' (ii) Therefore, the statement of Shri Nikhil Tripathi recorded on 13-03-2014 was brought to the notice of the appellant by the AO vide letter dated 13-03-2014. The appellant has not brought on record any material which may indicate that it required cross examination of Shri Tripathi. It is trite law that the information gathered behind the back of the appellant cannot be used unless confronted. In the instant case under consideration, the appellant was confronted wit the statement of Shri Tripathi but the appellant did not seek the cross examination of Shri Tripathi. Now, at the appellant stage, the appellant cannot be allowed to raise this ground whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) had been stated to be declared by the assessee and balance of Rs. 92,50,000 (Rs. 2,77,50,000 minus Rs. 1,85,00,000) had not been declared by the assessee. Therefore, the case of the assessee was reopened u/s 147 of the I.T. Act, 1961 and notice u/s 148 of the Act was issued on 16-03-2013. It is noted that this case was examined by the Investigation Wing of the department and statement of Shri Ram Prasad Chopra, one of the director was recorded u/s 131 of the Act on 29-11- 2013. The Investigation wing as per the MOU observed that the assessee had received following payments from M/s. U-Turn Housing Pvt. Ltd upto the date (22-03-2006) of signing of MOU. Rs. 2,20,00,000 - through various chaques. Rs. 57,50,000 - in cash The AO noted that the contention of the assessee was that in fact no cash of Rs. 57,50,000/ was received from U-Turn Housing Pvt Ltd. and it was only a promise to pay in future. As regards receipts of Rs. 2,20,00,000/- through cheques it was stated that Rs. 1,80,00,000/- were received from the company and Rs. 5.00 lacs were received through Director Shri Nikhil Tripathi. Thus the assessee company had received in total a sum of Rs. 1.85 crores from M/s. U-Turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14-07-2007, it is noted at page 6 of the assessment order wherein Shri Nikhil Tripathi had denied in his statements to have signed any such document. Shri Tripathi in his statement at Answer to Question No. 4 denied that an Ikrarnama dated 14-07-2007 was executed by him on behalf of U-Turn Housing Pvt. Ltd (UTHPL) and his signatures are forged and this ikrarnama is completely forged document. Shri Tripathi confirmed the Answer to Question No. 5 that Rs. 57,50,000/- was paid in the year 2005- 06 upto 22-03-206 in cash to M/s. Rajasthan Land Developers Pvt Ltd.. Thus the copy of the statement of Shri Nikhil Tripathi recorded on 13-03- 2014 was forwarded to the assessee by the AO vide letter No.2306 dated 14-03-2014 to with a request to explain why the amount of Rs. 67,50,000/- should not be treated as income of the assessee company which was not recorded in the books of accounts. In response thereto, the ld.AR of the assessee on 19-03-2014 replied, the contents of the same are narrated at page 6 & 7 of the assessment order. The submissions of the assessee have been taken into consideration by the AO but the same has not been found convincing by the AO with following observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by the AO as to the addition, the ld. CIT(A) has rightly gave observation as under:- ''(v)........It was the contention of the appellant that in his statement Shri Tripathi was telling a lie but it failed to cite any reason for Shri Tripathi to make a false statement. Further, it was not able to state any reason why UTHPL would show such huge payments in its financial statements which were not actually paid by it as claimed by the appellant and that too through cash payments. It is matter of common knowledge that in real estate transactions, at least 30 - 40% payments are made in cash. It is pertinent to mention here that vide earlier MOU dated 22-03-2006, 1,25,000 square yards of land was sold by the appellant to UTHPL at the rate of Rs. 1270/- per square yard whereas as per the new MOU dated 14-07-2007, as claimed by the appellant, only marketing rights of 72000 square yards of residential land were assigned at the rate of 1270 per square yard to UTHPL by the appellant. These facts coupled with the facts available on record clearly establish that the appellant received a sum of Rs. 67.50 lacs during the year under consideration which was not recorded in its books of accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your honour to admit these additional evidence in the interest of principle of natural justice. The copy of this application has already been served on the ld. DR.'' 3.3 On the other hand, the ld. DR opposed the additional evidence filed by the assessee praying that the same had been taken into consideration by the ld. CIT(A) in its judgement dated 30-12-2016 for the Assessment Year 2007-08. 3.4 We have heard the rival contentions and perused the materials available on record. We find that the ld. CIT(A) vide its judgement dated 30-12-2016 for the Assessment Year 2007-08 had taken into consideration the judgement dated 20-11-2015 of Hon'ble Upper District Judge, Room No. 19, Jaipur Mahanagar and rejected the contention of the assessee by observing as under (Page 20) of ld. CIT(A)'s order):- ''(v) Further vide above referred order, the Hon'ble ADJ has held as under:- ''(vi) Thus it is evident from the above that the issue of genuineness or otherwise of the MOU dated 14-07-2007 was not before the Court of Hon'ble ADJ and the MOU dated 22-03-2006 was not placed before the Hon'ble Court, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
