TMI Blog2021 (5) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 2019 (2) TMI 1411 - ITAT MUMBAI] for the AY 2012-13 vide order dated 19/12/2018. Taking into account all these facts and circumstances, we are of the view that the Ld.CIT(A) has decided the matter of controversy, judiciously and correctly, which is not liable to be interfere with at this appellate stage. Unaccounted income on FSI sale - CIT-A deleted the addition - Addition was raised on account of unsigned agreement - HELD THAT:- The claim of the assessee was for the sale consideration of ₹ 14 crores only. Seized material nowhere speaks that the cash transaction was of ₹ 7.5 crores. Comparison of documents nowhere speaks about the difference of ₹ 7.5 crores alleged to be paid in cash. The Appellant prepared the draft agreement with Jainam Developers to initiate the business deal which was not signed by the assessee as well as Jainam Developers. The sale amount was shown to the tune of ₹ 21.50 crores and the deal nowhere seems finalized being not corroborated by any other document on record. After a long time, the deal was finalized to the extent of ₹ 40 crores which was offered to tax. At this time authority determined the market value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the assessee on 12/09/2012. The assessee filed the return of income on 27/09/2013 declaring total income to the tune of ₹ 7,88,92,810/-. During the year under consideration, the assessee derived net profit at ₹ 8,14,95,460/-, income from house property of ₹ 21,85,533/- and interest in sum of ₹ 29,55,904/-. after claiming the deduction of ₹ 7,6,99,089/- u/s 80IB(10) and ₹ 45,000/- u/s 80G. The assessee firm has declared the total income to the tune of ₹ 7,88,92,809/-. The assessment was completed u/s 143(3) of the Act assessing the income of ₹ 15,86,85,240/-, after making additions on account of sale of parking of ₹ 8,17,500/- and sale of FSI in cash of ₹ 7,50,00,000/.The assessee was not satisfied on account of addition raised by the AO. The assessee filed an appeal before the Ld.CIT(A) who allowed the claim of the assessee. Therefore, the revenue has filed the present appeal before us. ISSUES NO.1: 4. Under this issue, the revenue challanged the deletion of the addition of ₹ 8,17,500/- made on account of unaccounted sales of car parking area. The Ld. DR has argued that the Ld.CIT(A) has wrongly del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income from other sources in light of the transfer of property Act. As the assessee had not included the sale of parking in his regular books of account, the AO held that the books are not reliable and liable to be rejected. It is held by him that the receipts from sale of parking are not included in the agreement and also not shown in the regular books, the AO rejected the assessee's argument that the amenities offered by the assessee and shown in the books are same as parking and rejected the books of accounts of the assessee u/s 145(3) of the Act 11. Further, the AO made additions on account of sale of parking slots/garages of phase XV, Golden Nest by stating as under; assessee's contention is not accepted and the sale of parking slots/garages of phase XV, Golden nest, Bhayander is disallowed and added to the total income of the assessee. The income is held to be income from other sources. Despite the fact that the assessee has denied any sale of parking it deserves the credit for the amounts which has been shown to be included in the agreement as seen from the scanned documents placed in the order. Hence out of the total credit of ₹ 2.5 crores proportionate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice of the flats. The AO has also accepted this. There is no visible cause why the AO did not accept the rest of the contents of the same seized material which shows that total parking slots sold independent of the flat sales were about 126 slots against which the appellant had actually received an amount of ₹ 50.36 lacs tilt the date of the search and balance to be received was ₹ 2,80 cr. Thus total amount received separately for sale of parking slots would come to ₹ 3.35 crs. The appellant has included an amount of ₹ 3,13,30,000/- on account of sale of parking in the sales account in the asst year 2013-14. Thus viz a viz the contents of the seized material, there is nothing to hold that the appellant had collected cash outside the books of accounts against sale of parking area. The calculations done by the AO to make the addition are not based on any satisfactory evidence. The addition made by the AO is therefore directed to be deleted. 9.8 The appellant's alternate argument is that income from sale of parking area would also be income from the eligible project. This contention is also acceptable in view of the case laws cited by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I have considered the facts of the case and also examined the seized documents in bundle no. 38 pages 1 to 19. It is seen that the Agreement for Sale as per page 1 to 15 of the seized bundle no. 38 is an unsigned document. The agreement is a draft for a transaction in June, 2012 between the assessee firm and M/s Jainam Developers, a partnership firm. On page 20 of the said draft agreement, the total consideration mentioned is 21.5 cr. and the manner in which it is to be paid is also mentioned. As per this draft agreement, 2.5 Cr. has been admitted to have been received. ₹ 7.5 Cr. was to be paid by 30th August, 2012 and the balance was to be paid in eight equal monthly installments from the date of execution. The search and seizure operation took place on 12/09/2012. As per page 18 of the seized document, a ledger account of Jainam Developers is also found and seized. It is interesting to see that the sale consideration of land has been shown at ₹ 14 Cr. and this is a Journal entry dated 20/05/2012 in the ledger account of Jainam Developers in the books of the appellant firm. From page 16 and 17 of the seized bundle no. 38; a summary of advance tax calculation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is noticed that FSI sold to Jainam Developers for ₹ 21.50 crores as a lump sum consideration. Further, the Developer has to pay ₹ 11,000/-per flat to M/s Sonam Builders as cost of Infrastructure developed by M/s Sonam Builders. However, in your books of accounts, only ₹ 14.00 crores are booked against the sale of FSI, Why the remaining amount of ₹ 7.50 crores should not be considered as your unaccounted receipts which are not reflected in your regular books of accounts. Ans. I would like to state that we have received ₹ 4,50 crores as advance from M/s jainam Developers and the document mentioned in above question by you is an unsigned draft copy of agreement. The deal is not yet finalized; hence tentatively we have booked the receipt of ₹ 14.00 crores in our regular books for the purpose of working of advance tax installment, 19. As can be inferred from the statement, the partner of the appellant firm in his statement on oath during the course of search reiterated that the document found was only an unsigned draft copy of agreement and that the deal was yet to be finalized. It was also stated by him that they had tentatively booked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are also not liable to be taken into cosideration to raise the addition except corroborated by any other piece of evidence on record and in this regard, we also find the support of decision of Gujrath High Court in the case of CIT vs Dharmdev Finance Pvt. Ltd [2014] 43 taxmann.com 395 and Pradeep Amrutlal Runwal vs TRO [2014] 47 taxmann.com 293 (Pune.Trib) etc. Number of decisions have been relied by the Ld. AR of the assessee to support his contention which need not required to be discussed. When sufficient evidence is not with the revenue then no addition can be raised on the basis in view of the decision in the case of CIT vs Roman and company 67 ITR 11(SC) and CIT-IV vs Shri Rama Multi Tech Ltd. [2013] 34 taxmann.com 32(Guj.). Taking into consideration of all these facts and circumstances, we are of the view that the Ld.CIT(A) ) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage. Accordingly, we affirm the finding of the CIT(A) on this issue and decided the issue in favour of the assessee and against the revenue. 8. In the result appeal filed by the revenue is hereby dismissed. Order pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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