TMI Blog2021 (4) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the search or survey proceedings. The AO estimated the figures of 'on money' on the basis of statements of two buyers namely Shri Anand Gaur and Sudhirbhai Parikh, recorded during the survey. We have further noted that ld. CIT(A) independently examined the statement of both these two flat buyers, the ld. CIT(A) on examination of their statement held that both the parties stated about the rate of flat booking, payment terms, money paid from time to time both the buyers nowhere asked in the statement that they have made 'on money' payment. The statement of purchaser cannot alone prove that they were having any agreement with the assessee regarding any payment made outside books of accounts. The contention of assessee that both the buyers paid extra money for extra work agreement is also proved by proof of disbursal of bank loans as well as by extra work agreements. The ld. CIT(A) further noted that if the extra work doubted by search or survey party, no further investigation was made against those flats owners. The adoption of huge 'on money' without iota of evidence is not justified and deleted the entire addition. - Decided against revenue. - I.T.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly, Shri Sudhirbhai Parikh sated that he booked Flat No. D-1104 of 3-Bed room hall kitchen (BHK) flat @1790 per sq.ft. and in Vaishnodevi Heights in 2011 for a total consideration of ₹ 25,65,650/-. He further stated that amount of ₹ 24.701akhs was paid as sale consideration, which includes ₹ 5.50 lakhs paid in cash at the time of booking and amount of ₹ 98,650/- is still pending for payment. The AO further recorded that in the statement of partner recorded under section 132 of the Act. On confronting the difference in rates, and additional payments made in cash, the partner explained the difference in sale price was due to difference of one year time period. The booking were started in 2011 and 45% of flats were booked @ ₹ 1400/- per sq. Ft. and due to rise of rate the flat No. D-204 in the name of Anand Gaur was booked @ ₹ 2200/- per Sq. ft. And flat owner of D-1104 paid amount for extra work charges. The partner statement that project has 288 flats and 30 shops. They booked 18 shops at 2000 per sq.ft. at ground floor and 1800 per sq. ft. at upper ground floor. The AO on the basis of statements of partner and buyers of two flats owners and by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific work contract executed between the parties. The assessee also furnished the copy of agreement along with bank loan sanctioned against the sale deed as well as for extra work agreement. The AO rejected the supporting evidence merely on assumption that extra work document was executed only to get the higher loans from bank and it was after thought and that the assessee firm has made a concocted story for extra work. It was further explained that the AO estimated 'on money' only on the basis of statement of two buyers, the statement of both the buyers were satisfactorily explained by the assessee along with the supporting evidence. It was further explained that there is no 'on money' receipt from all the sale instances. The 'on money' was purely based on assumption and estimation. The assessee also relied upon certain case laws. 4. The ld. CIT(A) after considering the submission of assessee and the record of assessment and the statement of buyers and the partner held that no document proof 'on money' receipt was recovered from the possession of the firm of partner during the search/survey proceedings. The basic evidence on which the AO relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Vaishnodevi Heights was recorded by Authorised Officer. The Authorised Officer recorded that there was variation in the booking price. Moreover, both the buyers stated that they have made certain payments in cash. The AO during the assessment on the basis of statement of partner as well as the buyers and on the basis of incriminating material found during the search held that the assessee received 'on money' for booking of shops. The AO on the basis of saleable area of flats and shops estimated cost of ₹ 22.83 crore and that the AO fairly and reasonably after gaining set-off of income disclosed during the search action made addition of 25% of 'on money'. The ld. CIT(A) disregarded the finding of AO despite the fact that AO reasonably worked out the figure of 'on money'. On the basis of aforesaid submissions the Ld. CIT-DR submits that he relied upon the order of AO and prayed for reversing the finding of ld. CIT(A) and to restore the order of AO. 6. On the other hand, the ld. AR of the assessee submits that the AO made addition purely on the basis estimation, assumption and presumption. No evidence regarding alleged 'on money' in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kailashben Manharlal Chokshi Vs. CIT [2008] 174 Taxman 466 (Gujarat), Savaliya Buildcon V/s. The DCIT, (ITA Nos. 401/Ahd/2014 3188/Ahd/2015 ACIT V/s. M/s. Amar Corporation (ITA No. 2036/Ahd/2007, Neptune Realty P. Ltd. Vs. DCIT in ITA No. 2918/Ahd/2011 Yadav Developers P Ltd. Vs. DCIT, (ITA No. 3674/Ahd/2005, Kiran J. Trivedi Vs. DCIT, IT(SS)A No. 63 to 65 100 to 102/Ahd/2014 Fort Projects (P). Ltd. Vs. DCIT in (IT(SS)A Nos. 11 to 13/Kol/2011) Mani Square Ltd. V/s. ACIT, in IT(SS)A No. 58/Kol/2019. 7. We have considered the rival submission of parties and have gone through the order of Lower Authorities carefully. We have also deliberated on various case laws relied by the Lower Authorities as well as by Ld. AR for the assessee, during the course of his submission. The AO made addition by assuming that during the survey, the partner of the firm stated that the project consists of 288 flats and 30 shops and booked 18 shops at 2000 per sq ft upper ground floor in Vaishnodevi Heights. The partner explained the difference in the sale price was due to extra work. The AO on the basis of statement of two flats buyers comparing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, working of AO and the statement of parties held that there is no documentary evidence to substantiate, the receipt of 'on money'. No documents were recovered from the position of firm during the search or survey proceedings. The AO estimated the figures of 'on money' on the basis of statements of two buyers namely Shri Anand Gaur and Sudhirbhai Parikh, recorded during the survey. We have further noted that ld. CIT(A) independently examined the statement of both these two flat buyers, the ld. CIT(A) on examination of their statement held that both the parties stated about the rate of flat booking, payment terms, money paid from time to time both the buyers nowhere asked in the statement that they have made 'on money' payment. The statement of purchaser cannot alone prove that they were having any agreement with the assessee regarding any payment made outside books of accounts. The contention of assessee that both the buyers paid extra money for extra work agreement is also proved by proof of disbursal of bank loans as well as by extra work agreements. The ld. CIT(A) further noted that if the extra work doubted by search or survey party, no further invest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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