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TMI Blog2021 (10) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... in this appeal read as under: "2. That the CIT (A) has erred in confirming the addition on account of the undisclosed capital gain amounting to Rs. 3,75,000/- without any basis. 3. That the Ld. CIT (A) has failed to appreciate that no incriminate evidence was found during the course of search relating to the part additions as confirmed by the Worthy CIT(A). 4. That the Ld. CIT (A) has erred in not considering the sale agreement as seized and has erred in relying only on the oral statement of the family member." 4. The Ld.Counsel for the assessee stated that he was not pressing ground No.3. The same, therefore, is dismissed as not pressed. 5. Ground Nos.2 and 4, it was contended, related to the issue of addition made on account of undisclosed capital gain amounting to Rs. 3,75,000/-. Drawing our attention to the facts of the case, the Ld.Counsel for the assessee pointed out that during the course of search and seizure operation u/s 132 of the Act carried out on the residential premises of Shri Surinder Singh Bindra, who was the assessee's brother, certain documents relating to the assessee were found. Accordingly, proceedings u/s 153C of the Act were initiated on the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral evidence then documentary evidence would prevail. He relied upon the decision of the Hon'ble Apex Court in the case of CIT(Central), Calcutta Vs. Daulat Ram Rawatmull (1973) 87 ITR 349. He further pointed out that no other documents were found during search disputing the registered sale deed. He, therefore, contended that the addition made by the CIT(A) was wholly unjustified. 7. On the other hand, the Ld. DR relied upon the order of the CIT(A) as under: "The facts of the case, basis of addition made by the AO and the arguments of the AR during the course of appellate proceedings have been considered. The AR has submitted that the addition has been made only on the basis of statement rather than on conclusive evidence. It is further mentioned that during the search & seizure, no documentary evidence was found which may prove that the assessee has sold the property at Rs. 83 lacs and received the difference payment of Rs. 20 lacs over and above the registry amount and contended that the original agreement was found with regard to the above exchange of property and filed a copy of the same. The AR has argued that the admission or confession may be strong piece of evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acs having been received as opposed to Rs. 68 lacs sale consideration basis which the share of capital gain earned by the assessee was computed. But it is a fact on record that the only documentary evidence available in the present case is the registered sale deed which records and confirms the sale consideration declared by the assessee of Rs. 68 lacs. No other evidence whatsoever contradicting the sale consideration mentioned in the registered sale deed has been found. Further it is also not denied that no investigation, with regard to the difference in the sale consideration as stated by Shri Surinder Singh Bindra and as recorded in the registered sale deed, was done by the AO. On the contrary, we find, he merely jumped on the oral statement of Shri Surinder Singh Bindra taking it to be a solemn truth merely because it was a statement recorded on oath, totally disregarding the registered documentary evidence being the sale deed. A registered sale deed cannot be summarily dismissed as evidence when juxtaposed with the oral statement alone that too only of one of the parties to the transaction even when made on oath. The statement, to carry weight as evidence needs to be supported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. The statement of Shri S. S. Bindra was recorded on 11.12.2017, which is reproduced in the assessment order, where he had stated that these related to business/professional activities undertaken by Smt. Harvinder Kaur (his wife), the assessee. It was further stated that she was technically qualified person and got various component of civil construction work done on contract basis and earned profit @ 8 to 9% of the receipt. It was also stated that these profits were never declared in the return. The AO tabulated the various payments with reference to the above mentioned Annexure and year-wise bifurcation was also done. As per the AO, these were confronted to the assessee and asked why income @25% of the total receipts should not be estimated. The reply submitted is reproduced in the assessment order where it was reiterated that the documents were part and parcel of construction business activities done by her and that these annexures belonged to her. It was claimed that the profit on the same was already declared in the Income Tax Returns for the assessment years 2015-16 to 2018-19 and had given year-wise amount in the table. It was further argued by the assessee that the propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a net profit rate of 4% as justifiable in the case of the contractors. In this regard he relied upon the decision in the case of Sh. Praveen Kumar Mittal in ITA No.272 of 2011 dated 13-10-11 and a copy of the same was placed before us. He also referred to the decision in the case of Sukhjinder Singh Vs. DCIT in ITA No.639/Chd/2015 for application of lower net profit rate of 6%. 14. The Ld. DR, on the other hand, relied upon the order of the Ld.CIT(A). 15. We have heard both the parties. The only issue to be decided is the applicability of net profit rate to the contract receipts of the assessee. 16. The argument of the Ld.Counsel for the assessee justifying application of a lower rate of net profit to the contract receipts as against 8% applied by the Ld.CIT(A), that courts have approved 4%/6% net profit rate on receipt of contractors, we do not find justified. The case laws cannot lay down the applicable net profit rates on business, being a factual matter to be determined on the facts of each case. In the case of Prabhat Kumar(supra) relied upon by the Ld.Counsel for the assessee, the Hon'ble jurisdictional High court held so in so many words when rejecting the identical argu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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