TMI Blog2021 (8) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. When the appellant has not denied the fact of being a property broker then in the absence of undisclosed investment found during search the AO is not justified in adding the entire receipts shown in the credit side of the seized cash sheet as the income of the appellant as rightly been observed by the Ld. CIT(A) while deleting the addition made by the Ld. AO; the same according to us is just and proper and without any ambiguity so as to warrant interference. Hence, the ground of appeal preferred by the Revenue is found to be devoid of any merit and, thus, dismissed. Chargeability of interest u/s 234B(3) - HELD THAT:- Charge the interest as per sub-section (3) of Section 234B of the Act as made by the Ld. CIT(A) is just and proper and therefore, the same is hereby confirmed. Thus, this ground of appeal preferred by the Revenue is found to be devoid of any merit and hence, dismissed. - IT(SS)A Nos.211 & 212/Ind/2016, IT(SS)A Nos.228 & 229/Ind/2016 - - - Dated:- 27-7-2021 - Hon ble Manish Borad, Accountant Member And Hon ble Madhumita Roy, Judicial Member For the Assessee : Shri S. N. Agrawal Pankaj Mogra, CAs For the Revenue : Shri S. S. Mantri, CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the business of property broking where one broker represents from the side of the buyer and other from the side of the seller and the third one co-ordinates between the buyer s and the seller s broker, as the practice followed in the business of the assessee as placed before the Revenue. Further that brokerage @ 3% is not received in each and every transactions as stated by the assessee while replying to the show-cause notice dated 04.08.2014 issued by the Ld. AO. 5. It was further submitted by the assessee that usually in routine transactions the rate of brokerage varies between 1% to 3% and the same is distributed amongst the brokers associated in the transaction. Further that the assessee follows the cash system of accounting and has offered the income as and when actually realized by him, net of the brokerage distributed amongst other brokers. The Ld. AO added the entire credit of the diary as maintained by the assessee for his memory at his income. The Ld. AO further added an amount of brokerage of 3% of the total credit of the appellant. The Ld. CIT(A) deleted the entire addition made on account of credit as shown in diary and restricted the amount of brokerage @2% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the instant case as already placed hereinabove. Hence, we restrict this addition of brokerage at .75% of the net receipts by the appellant. Assessee s appeal is, therefore, partly allowed. IT(SS)A No. 212/Ind/2016 (A.Y. 2012-13):- 10. These grounds of appeals are identical to that of the issues already been dealt with by us in ITA No.211/Ind/2016 for A.Y. 2011-12 and in the absence of any changed circumstances the same shall apply mutatis mutandis. Hence, the appeal preferred by the assessee is also partly allowed. IT(SS)A No. 228/Ind/2016(A.Y. 2011-12):- 11. The Revenue has filed the appeal with the following grounds:- 1. On the facts and in the circumstances of the cases the Ld. CIT(A) erred in deleting the addition of ₹ 31,61,92,920/- made by the A.O. on account of undisclosed receipts without appreciating the facts and evidences brought into light by the A.O. during assessment proceedings. 2. On the facts and in the circumstances of the cases the Ld. CIT(A) erred in stating that the assessee has earned 2% brokerage as against 3% accepted by assessee in his statements recorded during search/post search as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant which is found to be unjustified by the Ld. CIT(A). While observing the same the Ld. CIT(A) explained as follows:- 4.3 During the search no assets were found in the possession of the appellant which were not recorded in the books of accounts and even the Assessing Officer has not made any addition on this account. The Assessing Officer has simply added the credit side of the cash book and the deduction for the debit side has also not been allowed. Without making any investment it is illogical to presume the sale of the same. The appellant has provided the working of the peak as calculated on the basis of the loose papers fond and seized listed as LPS A-5, A- 10 and A-12. The same is reproduced as under:- Sr. N. Ref Period Op Balance Receipt Payment Closing Balance Maximum Peak Date Amount (Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the appellant. This was, however, not found acceptable by the Ld. CIT(A) as it is evident from Paragraph 4.4 and 4.5 of the order passed by him. Finally while deleting the addition made by the Ld. AO, the Ld. CIT(A) observed as follows:- 4.6 The undisputed facts of the case are that the appellant acts as a property broker. No assets were found in possession of the appellant which were not recorded in his books of accounts during the course of search. The seized documents found in possession of the appellant which have been written by him based on which the entire addition has been made clearly indicate the name of the broker of the seller and buyer and the plot no. in most of the cases. The mere inability on the part of the appellant to provide the name of the actual buyer and seller cannot be the sole basis for adding the entire credit side of the receipts to the income of the appellant. The Assessing Officer could have collected the information from the sub-registrar officer regarding the buyers and sellers. Where certain documents are found in the search from the premises of the assessee then a presumption is drawn under section 132(4A) that the transactions re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probability has to be taken into consideration before rejecting the explanation furnished by the appellant. When the appellant has not denied the fact of being a property broker then in the absence of undisclosed investment found during search the AO is not justified in adding the entire receipts shown in the credit side of the seized cash sheet as the income of the appellant as rightly been observed by the Ld. CIT(A) while deleting the addition made by the Ld. AO; the same according to us is just and proper and without any ambiguity so as to warrant interference. Hence, the ground of appeal preferred by the Revenue is found to be devoid of any merit and, thus, dismissed. 17. Ground No. 2:- Since this ground has also decided restricting the addition to .75% of the brokerage as against the order passed by the Ld. CIT(A) in the appeal preferred by the assessee in IT(SS)A No. 228/Ind/2016 for A.Y. 2011-12 in the absence of any changed circumstances the same shall apply Mutatis Mutandis. This ground of appeal is, therefore, dismissed. 18. Ground No. 3:- This ground relates to the chargeability of interest under Section 234B(3) as directed by the Ld. CIT(A) while deciding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, whatever be the procedure adopted for assessing escaped income or undisclosed income pursuant to search or requisition, such assessment will always be a re-assessment or re-computation under s. 153A, and unless it is a first assessment, that could be treated as the regular assessment in terms of Expln. (2) to s. 234B(1), then interest can be charged only under s. 234B(3) of the Act. In this case, the original returns were processed under s. 143(1) of the Act and the proceedings so completed were issued to the assessee. It is only thereafter the Department conducted search and made revised assessments under s. 153A of the Act though by accepting returns of undisclosed income filed and by issuing proceedings under s. 143(1) r/w s. 153A of the Act. We, therefore, hold that the assessments under s. 153A are revised assessments and so much so, interest could be demanded for the period mentioned in s. 234(B)(3) of the Act as held by the Tribunal. In this view of the matter, we uphold the order of the Tribunal and dismiss the Department appeals for both the years. As appearing from the judgment passed by the Hon ble Kerala High Court and Hon ble Jurisdictional Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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