TMI Blog2021 (6) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... ed income received from sale of flats over and above registered value - HELD THAT:- As observed that the flats have been sold by the assessee at a price much higher than the stamp duty value and thus, the order passed by us while disposing off the appeal of the assessee for A.Y. 2013-14 shall apply mutatis mutandis for disposing the present appeal for A.Y. 2014-15. Accordingly, the addition made in the present appeal is also deleted. Ground No. 3 is allowed. Unexplained portion of cash investment in immovable property u/s. 69B - HELD THAT:- Addition was also made on the basis of original statement of director of company Shri Pradeep Gupta, which does not hold good after the same has been retracted by the director for the reasons given by us in our earlier paragraphs while disposing off the appeal for A.Y. 2013-14. Hence, the addition is deleted. Ground No. 4 is allowed. - ITA Nos. 5263 & 5264/MUM/2018 - - - Dated:- 7-6-2021 - C.N. Prasad, Member (J) And S. Rifaur Rahman, Member (A) For the Appellant : Ritu Kamal Kishor For the Respondents : V. Sreekar ORDER S. Rifaur Rahman, Member (A) 1. The present appeals filed by the assessee are directed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Ld. CIT(A) sustained the addition observing as under:- 3.4.....It is noted that the payments by cheque mentioned in the loose paper completely matches with that recorded in books. This clearly lends authenticity to the contents of the loose paper and also corroborates the contents. When this part is true, the rest of the entries on the paper is also true. The paper was found in the cabin of the director of the appellant. The director clearly and cogently explained the seized paper at the time of search and admitted to the contents of the same. Thus not only there is presumption to be drawn against the appellant in terms of section 132(4A) and the new provisions in section 292C, the papers are correlated with the recorded part of the transactions in appellant's books and admitted and explained by the director of the appellant company. The loose papers found are not denied as not pertaining to or belonging to appellant. Reliance is placed on the decision in the case Fifth Avenue v. CIT (2009) 224 CTR 442 (Kar). Now it is the contention of the appellant that the admission by Shri Pradeep Gupta was erroneous and is retracted I find that there is not a whisper of evidence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inviting our attention to the statement of Shri Pradeep Gupta it is submitted that Shri Gupta has retracted his statement and the said retraction made during the course of assessment proceedings is as follows:- I have already submitted revised income Tax return as required under section 153A of the Income Tax Act 1961. I have added ₹ 35,00,000/-(Rupees Thirty Five Lacs) in my gross total income in Assessment year 2013-14 towards cash deposit receipts issued by R.M. Bhuther Co. which was found at my residence, I have reviewed and perused my records and have nothing else to add or revise in my income tax return during block assessment period and accordingly I have filed Income tax return in response to notice under section 153A of the Income Tax Act 1961. With regards to your queries about certain cash expenditure mentioned in my statement during Income Tax Investigation, I hereby state that the statement recorded under section 132(4) of the Income Tax Act, 1961 cannot be relied because my statement were taken on few unrelated documents. During search proceedings investigating officials' rigorous and repeated questioning has caused tremendous mental stress on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he abnormal circumstances as explained above, I had been compelled to sign on the dotted lines in the statements drafted by the Investigation team, Thus, I would like to say that the statements alleged to be given by me are illegal, unlawful, baseless and absurd to the extent as affirm hereunder. The Statement therefore made by me was under mental pressure between 24 September, 2013 to 28 September, 2013 should not be taken cognizance in any of the proceedings. Under the said circumstances, in the absence of any real undisclosed and unaccounted receipt or income, I retract the whole statements obtained from me at the time of search proceeding. Hence, it is submitted that no cognizance of the same may be taken at any point of time and in any of the proceedings under the Income Tax Act and it may not be insisted upon and that I should be freed from the said statement recorded since the start of the search till its conclusion . 7. Ld. Counsel for the assessee submits that from the above retraction it is evident that the statement of Shri Pradeep Gupta was obtained under undue stress and coercion and when he was not in proper state of mind. He has clearly stated that he was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused our record and have nothing to add or revise in income Tax Return during block assessment period With regards to your queries about certain cash transaction on account of sale of flats mentioned in statements of Shri Pradeep Gupta, Director of the Company during Income Tax Investigation, we hereby state that the statement recorded under section 132(4) of the Income Tax Act, 1961 cannot be relied. We hereby deny that the Company has ever dealt in cash or received any cash compensation against sale of flats. The Company does not own or take responsibility of any documents found at our director residence. We have further verified those documents and can't corroborate the same with our records. Thus, in view of above income tax return filed in response to notices under section 153A should be treated final and assessed accordingly. Ld. Counsel for the assessee, therefore submitted that the statement given by Shri Pradeep Gupta cannot be relied on and based on such statement no addition is warranted in the hands of the assessee. 10. Ld DR strongly supported the orders of the lower authorities and submitted that the alleged documents were found/seized fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to the project carried out by the assessee. It is also relevant to note that Assessing Officer has not cross verified the cash transactions with the buyers. 14. In the given case, certain incriminating material found in the possession of one of the Directors and it is the question of ownership of the above material found during search. Just because the transaction contained in the piece of paper relating to the project, it is not proper to presume that the transaction must have been carried on by the assessee. 15. We also notice that Shri Pradeep Gupta accepted that certain portion of the cash was utilized in the renovation of flats belonging to him. If it is utilised for the personal purposes by Shri Pradeep Gupta, how come it is said that it is relating to the assessee. It clearly indicates that the transaction is carried out by the Director of the company for himself and not by the assessee. In our view, the incriminating material found during search was never owned by the assessee and only Director has accepted it. Why it cannot be said that the transaction carried on by the director is for himself in his personal capacity. It is only director who has owned up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of all the flats, the registered value is always much more than the stamp duty value. Hence, the flats have been sold by assessee at the reasonable price. The assessee also submitted that there was a partnership in Vishwariya project between assessee and Khushi Heights wherein, the assessee was sharing 60% of profits and Khushi Heights was sharing 40% of profits. For the sake of brevity, the details of various flats sold in previous year relevant to AY 2013-14 and AY 2014-15 are given as under:- PKG FINSTOCK PVT LTD Details of Sales for the Year 2012-2013 ( AY 2013-2014) Sr. No. Flat No. Name of The Buyer PAN NO. Date of Registration Area of the flat Stamp Duty Value Amount of sale Payment received by PKG Date Payment received by Khushi Heights Project : Vishveshriya Nagar, Gopalpura Bye p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 F/1 SUNIL KUMAR GOYAL ABOPG4618B 24-09-2012 1554.61 sq.ft 20,78,049 24,35,000 14,61,000 24.09.2012 9,74,000 First Floor S/O RAMSWROOP GOYAL 15/42 MALVIYA NAGAR JAIPUR 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UNT 1,09,06,650 1,27,85,000 76,71,000 51,14,000 20. From the above details of stamp duty value and actual sale amount, it is evident that no flat has been sold by the assessee on less than the stamp duty value so as to raise any suspicion about receipt of on-money of sale of flats. All the flats are sold at above stamp duty/market value which itself shows that is it not conclusively proved that the assessee has received any on-money. 21. Thus, in view of the fact that original statement of director on the basis of which the Assessing Officer made addition has been retracted and original statement does not hold good and in view of the fact that flats have been sold at the price much above stamp duty value, we hold that the seized material and the statement of Shri Pradeep Gupta do not conclusively prove that on-money has been received by the assessee on sale of flats. In the circumstances, the appeal of the assessee is allowed in terms of our aforesaid observations and the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sale of flats and has also submitted the details of stamp duty value and actual price at which the flats are sold which is tabulated as under:- PKG FINSTOCK PVT LTD Details of Sales for the Year 2013-2014 ( AY 2014-2015) Sr. No. Flat No. Name of The Buyer Pan No. Date of Registration Area of the flat Stamp Duty Value Amount of sale Payment received Date Flat at : Unique Tower, Vill. Mahal Jaipur 1 F/302 SHOBHA SHRIVASTAV ABPPS9346F 06-06-2013 1310.28 sq.ft 22,95,163 29,48,130 1,00,000 25.05.2013 First Floor W/O SHELENDRA SHRIVASTAV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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