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2018 (2) TMI 1965

..... nts confronting the orders of the lower authorities - available records that the assessee had received a sum of ₹ 67.50 lacs during the year under consideration which was not recorded in the books of account of the assessee - before the Investigation Wing at New Delhi, Shri Nikhil Tripathi, Director of UTHPL statement was recorded u/s 131 in which he confirmed the payment of cash of ₹ 57.50 lacs and ₹ 10.00 lacs through bearer cheque during the year under consideration and stated that the MOU dated 14-07-2007 was not signed by him but it was a forged document. In this situation, the AO noticed the unrecorded sales of ₹ 67.50 lacs and made the addition in the hands of the assessee . Appellant received a sum of ₹ 67.50 lacs during the year under consideration which was not recorded in its books of accounts.CIn ground of appeal, it has been stated by the appellant that the AO has not mentioned the section under which the addition was made and he has not verified the bank statement. In this regard, it is stated that non-mentioning of section does not make the assessment bad. Further, for cash transaction, there is no need for verification of the bank state .....

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..... 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 ₹ 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 131. 2.1 First of all we take up the appeal of the assessee in ITA No. 418/JP/2016 for the Assessment Year 2006-07 for adjudication. Apropos Ground No. 1 to 4 of the assessee, the facts as emerges from the order of the ld. CIT(A) are as under:- 3.1.2 Determination (Ground No. 1 ) (1) I have carefully perused the submission of the appellant and the material placed on record. The brief fats of the case are that an MOU was executed between the appellant and M/s. U Turn Housing P Ltd (UTHPL) on 22- 03-2006. As per the said MOU, the appellant agreed to sell 1,25,000 square yards of land to UTHPL which was being developed by the appellant at Sanganer, Jaipur at the rate of 1270/- per square yard. UTHPL has already paid a sum of ₹ 2.20 crores through cheque and ₹ 57,50,000/- in cash ti .....

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..... ion 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 ₹ 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 cancellation agreement dated 14-07-2007 was recovered in original by the Police from the possession of Shri Tripathi. A copy of the charge sheet was also filed. I have gone through the said charge sheet and noted that the facts as discussed above in this order has been mentioned in this regard and the AO did not mention anything about the genuineness or otherwise of the cancellation agreement dated 14-07-2007. Therefore, the said charge sheet is of no help to the appellant. 4.1 It is pertinent to mention here that apparently, the signatures of Shri Nikhil Tripathi and the MOU dated 22- 03-2006 and the so called cancellation agreement and MOU dated 14-07-2007 do not tally. This supports the claim of Shri Tripathi and the cancellation agreement dated 14 .....

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..... 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 ₹ 67,50,000/- and during F.Y. 2006-07 the same amount to ₹ 3.42 crore against which ₹ 10,00,000/- is accounted for in our books in the F.Y. 2005-06 and the balance 3.99 crores is accounted for in our books in the F.Y.2006-07. (v) Thus, in the above referred statement of Shri Tripathi claimed to make cash payment of ₹ 67.50 lacs and ₹ 3.42 crores during the year F.Y. 2005-06 and 2006-07 respectively and the total payment of ₹ 9.83 crores was made by UTHPL to the appellant as is evident from its books of accounts. It is pertinent to mention here that as per the audited financial statement of UTHPL for the FY 2006-07 dated 06-06-2007, it had shown loans and balance to the appellant at ₹ 2.45 crores and ₹ 9.83 crores as on 31-03- 2006 and 31-03-2007 respectively. It was the contention of the .....

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..... 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 which he had already waived at the assessment stage. Therefore, this ground of appeal is rejected. 3.3.2 Determination - Ground No. 3 (i) I have carefully perused the submissions of the appellant and material placed on record. This issue has already been dealt in Ground of appeal No. 1, hence this ground of appeal is rejected. 2.2 During the course of hearing, the ld.AR of the assessee filed the written as to the respective grounds raised in the appeal which has been taken into consideration. The ld.AR of the assessee concisely argued that the ld. CIT(A) has erred in confirming the addition of ₹ 67.50 lacs and the AO did not allow the assessee to cross examine the statement given .....

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..... arious chaques. ₹ 57,50,000 - in cash The AO noted that the contention of the assessee was that in fact no cash of ₹ 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 ₹ 2,20,00,000/- through cheques it was stated that ₹ 1,80,00,000/- were received from the company and ₹ 5.00 lacs were received through Director Shri Nikhil Tripathi. Thus the assessee company had received in total a sum of ₹ 1.85 crores from M/s. U-Turn Housing Pvt. Ltd. The AO further noted that the assessee company filed a copy of cancellation agreement of sale agreement dated 22-03-2006 made on 14-07-2007 in which it was stated that the amount of ₹ 57,50,000/- was never received and it was written on the basis of verbal assurance. The AO at para 3.4 has taken into consideration the relevant portion of cancellation agreement. The AO noted that in order to verify the correctness of facts mentioned in various agreements, information u/s 133(6) was called from M/s. U-Turn Housing Pvt. Ltd and on examination of the copy of account of M/s. Rajasthan Land Developers Pvt Ltd. in their books, the following paymen .....

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..... o the assessee by the AO vide letter No.2306 dated 14-03-2014 to with a request to explain why the amount of ₹ 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 observation. 3.11.4 Therefore, the contention of the assessee that no cash of ₹ 57,50,000/- was received at the time of agreement is not found convincing at all because when no such cash was received by the assessee company why this clause was put in the MOU dated 22-03-2006. 3.11.5 In the submissions, assessee has relied upon the FIR filed at Delhi against Shri Nikhil Tripathi which has no relevancy with the issue in hand because the FIR was filed by the person who booked plot with M/s. UTHPL and not the assessee company and assessee was examined by the Delhi Police as witness. The Delhi Police has not given any finding on the receipt/ non-receipt of S .....

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..... ere 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 ₹ 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 ₹ 67.50 lacs during the year under consideration which was not recorded in its books of accounts.In ground of appeal, it has been stated by the appellant that the AO has not mentioned the section under which the addition was made and he has not verified the bank statement. In this regard, it is stated that non-mentioning of section does not make the assessment bad. Further, for cash transaction, there is no need for verification of the bank statements. In view of the above deliberations, facts and circumstances of the case, we concur with the findings of the ld. CIT(A). Thus the appeal of the assessee for the 2006-07 is dismissed. 3.1 Now we take up the appeal of the assessee in ITA No. 109/JP/2017 for th .....

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..... nt 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, according to which balance payment of ₹ 13.10 crore was required to be paid to before 04-06-2006, out of the sale consideration of ₹ 15,87,50,000/-. Moreover, the above order was passed ex-parte in the absence of the respondents U Turn and Shri Nikhil Tripathi. Thus the contention of the A.R. is not correct and thus hereby rejected. (vii) It may be mentioned that the appellant has failed to controvert the findings of the AO as stated in the assessment order and the remand report. Therefore, in view of the above discussion and looking to the totality of facts and circumstances of the case, it is held that the AO was justified in making addition of ₹ 3.26 crores u/s 68 of the Act .....

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