TMI Blog2023 (5) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... has been suppression of the actual income for the purpose of evading tax. Nevertheless, various decisions of the higher forums have held that the assessee is entitled to claim deduction u/s. 80IB(10) on additional income declared by the assessee subsequent to the search proceedings. Assessee s case would not fall under those decisions for the reason that the assessee has failed to substantiate the source of income and whether it pertains to business income of the assessee was not corroborated by evidence. The decision relied upon by the assessee in the case of Sheth Developers (P) Ltd. [ 2012 (8) TMI 159 - BOMBAY HIGH COURT] does not hold good for the present case wherein the A.O. did not have a dispute that the undisclosed income was out of business activity of the assessee. Decided against assessee. - ITA Nos. 78 And 79/Mum/2023 - - - Dated:- 28-4-2023 - Shri Prashant Maharishi, AM And Ms. Kavitha Rajagopal, JM For the Assessee : Shri Subodh Ratnaparkhi For the Revenue : Shri Manish Sareen ORDER PER KAVITHA RAJAGOPAL, J M: These appeals have been filed by the assessee, challenging the order of the learned Commissioner of Income Tax (Appeals) ( ld.CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash payments aggregating to Rs.1,14,00,000/- which the assessee stated that the said seized paper pertains to M/s. M. Baria Developers. The A.O. rejected the contention of the assessee on the ground that along with the said paper,various receipts showing cash payments made to Shri Madhukar Mhatre were also seized which reflect cash payments made by the assessee on various dates in the name of the assessee firm and was duly signed by the receiver of cash on revenue stamp. The A.O. has bifurcated the total payments made to Shri Madhukar Mhatre which aggregated to Rs.90 lacs as below: Assessment Year Amount (Rs.) Remarks 2009-10 46,50,000/- As per page no. 4 to 14 2010-11 43,50,000/- As per page no. 15 to 20 24,00,000/- Difference of Rs.1,14,00,000/- - Rs.90,00,000/- Total 1,14,00,000/- 6. The A.O. held the impugned amount to be unexplained cash payment on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e declared by the assessee was accepted by the A.O. during the section 153C assessment proceeding and stated that the additional income was the business income of the assessee from the said project. The ld. AR relied on the Tribunal s decision in the case of the sister concern of the assessee in M/s. Jupiter Construction vs. ACIT (in ITA Nos. 6620 to 6622/Mum/2019 for A.Ys. 2010-11 to 2012- 13 vide order dated 12.11.2021), where the assessee in that case was entitled for deduction u/s. 80IB(10) of the Act. The ld. AR relied on various decisions. 11. The learned Departmental Representative (ld. DR for short) for the Revenue, on the other hand, controverted the said facts and stated that the assessee has given contradictory statement pertaining to the seized paper in which it has stated that it does not belong to the assessee. The ld. DR further stated that the seized document pertains only to the expenditure sheet and not related to any on-money receipts indicating the project name. The ld. DR further stated that the assessee has not proved whether the said expenditure pertain to business expenditure or income from other sources . The ld. DR further stated that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also observed that in the auditor s report in Form No. 10CCB, the impugned cash receipts are not reflected. The A.O. has further held that the initiation of the search proceeding was not entitled to benefit the assessee for making a new claim of deduction or allowance. The A.O. has relied on the decision of Suncity Alloys (P) Ltd. 124 TTJ (Jodhpur) 674 dated 19.08.2009 and Charchit Agarwal 129 TTJ (Del) 438 dated 28.08.2009. 13. From the above facts and circumstances of the case, it can be inferred that the assessee after declaring the impugned amount as additional income has made a fresh claim of deduction u/s. 80IB(10) of the Act which was neither claimed in the original return of income filed by the assessee nor in the Form 10CCB of the Act. It is evident that the assessee has made a new claim on the additional income declared by the assessee, pursuant to the search and seizure action. If not for the search action, the additional income would not have been declared by the assessee and perhaps there will be no claim of deduction u/s. 80IB of the Act for the same. The assessee has failed to substantiate the fact that the impugned amount pertain to income of the proj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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