TMI Blog2023 (5) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... s bank statements were in the nature of income or that he was engaged in any other line of work. It is noteworthy that the appellant was required to explain the source of funds utilized for purchasing the said properties, which has been duly discharged by the appellant. A mere suspicion has been raised by the AO on such other credits of equivalent amounts, without seeking explanation of such other credits from the appellant. All credits appearing in his bank statement are duly explained, and the documentary evidence placed on record has been duly perused and examined. The source of investment made by the appellant during the year stands sufficiently explained. Decided against revenue. - ITA No. 1477/Del/2020 - - - Dated:- 23-5-2023 - Dr. B. R. R. Kumar, Accountant Member And Sh. Yogesh Kumar US, Judicial Member For the Assessee : Sh. Karan Kumra, Adv. For the Revenue : Sh. H. K. Choudhary, CIT DR ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: The present appeal has been filed by the Revenue against the order of ld. CIT(A)-30, New Delhi dated 09.03.2020. 2. The Revenue has raised the following grounds of appeal: 1. On the facts and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under consideration, the appellant has been engaged in plotting and sale of this land to different parties. During the A.Y. 2016-17, the A.O. noted that there were substantial credits including the cash deposits in his different bank accounts and that the assessee has not been able to explain how the income figure for different assessment years has been worked out. 5. The income declared by the appellant in the A.Y. 2016-17 was not accepted and the A.O. concluded that the assessee being a broker in real estate business and having no other substantial source of income than the real estate business, the credits in the bank accounts represent the gross receipts of the assessee. 6. Thus, the income of the appellant has been computed by the A.O. at the rate of 8% of the total receipts/credits of Rs.11,08,41,059/-, u/s 44AD of the Act at Rs.88,67,284/-. Since, the appellant has already declared his return of income at Rs.10,65,080/-, for the year under consideration, the difference of Rs.78,02,204/- (188,67,284 - 10,65,080) is added by the Assessing Officer in the returned income of the appellant. 7. Further, during the assessment proceedings, the AO sought explanation regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-122018, which was duly served upon the assessee through speed post. Notices u/s 142(1) of the Act alongwith detailed questionnaires was issued on 24-07-2018, 16-10-2018, and 26.12.2- 018 which were duly served on the assessee through speed post and AR of the assessee. In response thereto, Sh. Karan Kumra, of Kumra Bhatia Co. represented the case before this office as authorized by the assessee and filed necessary details/information/documents, etc. as required. 4. During the year under consideration, the assessee is engaged in the sale and purchase of properties as a broker and deals in real estate and agricultural land. On perusal of the findings of the Investigation Wing, submission/details filed by the assessee and enquiries conducted u/s 133(6) of the Act, the following issues have emerged. 5. Enquiries u/s 133(6) of the Act and information relating to the bank accounts in assessee s name/joint name. 5.1 During the post search as well as assessment proceedings, the assessee has admitted that he has not been maintaining regular books of accounts. Enquiries in the form of issuance of notices u/s 133(6) of the I.T. Act to the concerned bank branches were conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstituted, in respect of the amount of total turnover or gross receipts which is received by an account payee cheque or an account payee bank draft or use of electronic clearing system through a bank account during the previous year or before the due date specified in sub-section (1) of section 139 in respect of that previous year.] (2) Any deduction allowable under the provisions of sections 30 to 38 shall, for the purposes of sub-section (1), be deemed to have been already given full effect to and no further deduction under those sections shall be allowed. (3) The written down value of any asset of an eligible business shall be deemed to have been calculated as if the eligible assessee had claimed and had been actually allowed the deduction in respect of the depreciation for each of the relevant assessment years. A search and seizure operation u/s 132 of the Act was carried out on the assessee on 13.12.2016 and cash of Rs. 64.84 lacs was found at his residence. The assessee during the course of statement recorded on oath u/s 132(4) of the Act admitted this amount to be his unaccounted income from real estate business. Later, he declared 100% of this amount for tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the assessee is calculated at Rs. 88,67,284/- @8% of gross receipts as per the discussion made above. Further, for the relevant assessment year, the assessee has declared taxable income of Rs. 10,65,080/- in his return of income filed. Therefore, after deducting this amount from the income worked out above, the balance figure of Rs. 78,02,204/ - is added to the returned income of the assessee. (Addition Rs. 78,02,204/-) 7. Issue of property purchase by Sh. Sukhbir Shokeen 7.1 During the course of survey proceedings u/s 133A of the Act at Rangpuri, Delhi at the office premise of M/s Shokeen Real Estate Pvt. Ltd., Annexure A-1 to A-5 were impounded. These annexures contain sale deed/sale and purchase agreements registered at sub-registrar office. Page 36 to 43, 48 to 55, 56 to 63 and 64 to 71 are related to the purchase of agricultural land by Sh. Sukhbir Shokeen as per following details:- Annexure Description of the land Seller Buyer Date of sale deed executed Total consideration price A-1 (loose papers) Page No 36 to 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) deleted the addition holding that the assessee was issued questionnaire on 26.12.2018 and the assessment has been completed on 30.12.2018 and there is absolute lack of time given to the assessee to explain the transactions of the entire period u/s 153A. The ld. CIT(A) held that the provisions of section 44AD are clear and unambiguous. Section 44AD (6)(ii) clearly provides that the provisions of this section do not apply to a person who earns income in the nature of commission or brokerage. As the appellant only earns income in the nature of commission or brokerage consistently across the years, the provisions of section 44AD cannot be applied to the facts of the appellant. The ld. CIT(A) has also held that on law the explanation B to section 44AD provides for a monetary limit of gross receipts/ turnover for application of deemed profit of 8%. A perusal of the assessment order also shows that the turnover computed for the subject assessment year (Rs.11,08,41,059) also breaches the threshold as per explanation B of section 44AD (Rs. 2,00,00,000). Thus, the application of section 44AD is not correct. The ld. CIT(A) held that no evidence has been brought on record by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CSH DEP 11361 EPFO SECTOR-23 CASH DEPOSIT SELF 5,00,000.00 5,63,956.93 09.06.2015 DEBIT 04328 CCPC (CTS) NEW ECS Debit HDFC Bank LI 1,61,359.00 4,02,597.93 Loan Installment 20.06.2015 CAS PRES CHQ 04328 CCPC (CTS) NEW CA Multicity Cheque 5,240.00 3,97,357.93 Accounting Charges 23.06.2015 DEP TFR 04430 PAYMENT SYSTEM RTGS HDFCR52015062364 764 592 J S B AUTO P STATE BANK OF INDIA TRF FR 3199856044300 RTGS 592 J S B AUTO P STATE BANK OF INDIA HDFCR52015062364 764 25,00,000.00 28,97,357.93 Advance for property JSB Auto 23.06.2015 DEP TFR 04430 PAYMENT SYSTEM RTGS YESBR52015062300 003 849 J S B AUTO P STATE BANK OF INDIA TRF FR 3199859044307 RTGS YESBR52015062300 003 849 J S B AUTO P STATE BANK OF INDIA 25,00,000.00 53,97,357.93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Burman 15.07.2015 CAS PRES CHQ 04328 CCPC (CTS) NEW CA Multicity Cheque 4,180.00 1,75,31,306.93 Accounting Charges 20.07.2015 CAS PRES CHQ 04328 CCPC (CTS) NEW CA Multicity Cheque KBL Jasbir and ASS 58,353.00 1,74,72,953.93 Accounting Charges 24.07.2015 REMT THRU CHQ 11361 EPFO Sector- 23 CA Multicity Cheque RTGS SBINR5201507241 7933436 Sudesh Gahlo State Bank of India 35,00,056.00 1,39,72,897.93 Purchase of Property 2 24.07.2015 REMT THRU CHQ 11361 EPFO Sector- 23 CA Multicity Cheque RTGS SBINR5201507241 7933705 Harish Gahlo State Bank of India 35,00,056.00 1,04,72,841.93 Purchase of Property 3 24.07.2015 REMT THRU CHQ 11361 EPFO Sector- 23 CA Multicity Cheque RTGS SBINR5201507241 7933965 Prem Wati State Bank of India 30,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 361 EPFO Sector- 23 CA Multicity Cheque DD Issue 1,76,804.00 95,89,780.93 Payment of stamp duty Property 3 26.08.2015 REMT THRU CHQ 11361 EPFO Sector- 23 CA Multicity Cheque DD Issue 1,47,186.00 94,42,594.93 Payment of TDS - Property 2 28.08.2015 DEP TFR 04430 PAYMENT SYSTEM RTGS YESBR5201508280 0007095 SWEDE AUTO P STATE BANK OF INDIA TRF FR 3199859044307 RTGS YESBR5201508280 0007095 SWEDE AUTO P STATE BANK OF INDIA 75,00,000.00 1,69,42,594.93 Advance for property Swede Auto 29.08.2015 REMT THRU CHQ 11361 EPFO Sector- 23 CA Multicity Cheque RTGS SBINR5201508291 9359672 Sukhbir Singh State Bank of India 1,00,00,056.00 69,42,538.93 Own account transfer 08.09.2015 DEBIT 04328 CCPC (CTS) NEW ECS Debit HDFC Bank LI 1,61,359.00 67,81,179.93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,19,37,000.00 Refund of advance Ram Karan Rana 22.04.2015 RTGS CRUTIB0000096- ASHA SINGLA-SUKHBIR SHOKEEN- UTIBR52015042200 023332 2,00,00,000.00 4,19,37,000.00 Refund of advance Asha Singla 08.05.2015 RTGS DR- SCBL0036086- Jagdish Yadav- Dwarka II- HDFCR52015050862 971654 2,00,00,000.00 2,19,37,000.00 Repayment of advance taken from Jagdish Yadav on 24.03.2015 11.05.2015 RTGS DR- CORP0000888- Stock Holding Corporation of India-Dwarka IIHDFCR52015051163 022213 11,49,600.00 2,07,87,400.00 Payment of stamp duty Property 5 11.05.2015 CHQ No. 000068, AMT. - 19352800 Dwarka II - 092412011330 - 0000000000 1,100.00 2,07,86,300.00 Payment of stamp duty Property 5 11.05.2015 CHQ No. - 000068. AMT. - 19352800 Dwarka II - 09241201132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GS CR- CORP0001244- SUNIL KUMARSUKHBIR SINGH SHOKEEN- CORPR92015110412 440001 25,00,000.00 54,84,600.00 Refund of advance Sunil 04.11.2015 FT-DR- 02731930001030- Kailash Gahlot 50,00,000.00 4,84,600.00 Purchase of Property 1 05.11.2015 RTGS CR- SBIN0011361- SUKHBIR SINGH 25,00,000.00 29,84,600.00 Own account transfer 09.11.2015 FT-DR- 02731930001030- Kailash Gahlot 25,00,000.00 4,84,600.00 Purchase of Property 1 28.03.2016 Program Management fee Jan-Mar 16 230316 114.50 4,84,485.50 Bank Charges 14. We find that the ld. CIT(A) deleted the addition on the grounds that the sources of the entire amounts, the credits and debits in the bank account have been duly explained. We find that the amounts have been received ..... X X X X Extracts X X X X X X X X Extracts X X X X
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