9911796707
TMI Blog2022 (3) TMI 1564X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred as to "the Act") for A.Y. 2015-16. 2. The brief facts leading to the case is this that the assessee, a builder and developer constructing residential flats has filed its return of income for the year under consideration on 30.09.2015 declaring total income at Rs. 18,30,020/-. A search action was conducted in the case of one Ashit Haribhai Vora on 04.12.2014 during which documents marked as Annexure-A/8 containing 37 pages pertain/pertains to the assessee company were found in respect to Pushkar-III and Pushkar-IV developed by the appellant. The verification and examination of those documents revealed that the assessee had not reflected certain business transaction both (Cash Receipts & Payments) in its regular books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only presumption of the department. E. The assessee has taken unsecured of Rs. 6,58,00,000/- during F.Y. 2008-09 and 2009-10 and it was agreed upon with the REPL that the loan will be repaid within specified period. In case of nonpayment within time limit, REPL will be entitled to recover the Joan amount from selling of certain residential units of the assessee firm (Total 30 Flats) directly to the buyers and the sell proceeds received by this assessee in this regard will be paid immediately to REPL. The assessee is not aware of any cash portion/transactions out of book on sell of said flats. Necessary evidence regarding payment through cheque made to REPL is also attached with the reply. F. The proposed additions as per Para 3, 3.3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he registered documents. The difference between document price and the actual price received by the firm was not accounted for in the regular books of accounts. The said unaccounted amount represents 41% of the total value of the flats booked/sales. Applying the ratio on gross receipt of 4,54,41,000/- as disclosed by the assessee in the return of income, the unaccounted on-money cash received by the assessee was worked out at Rs. 3,15,77,644/- which was added to the total income of the assessee. The same was deleted by the Ld. CIT(A). Hence, the instant appeal before us. 4. The contention of the assessee before the appellate authority and before us as well is this that the addition should be restricted to the net profit on alleged on money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hit Vora was not a partner of the appellant company. 6. The case made out by the appellant is this that if addition on onmoney is required to be made it should be restricted to net profit on alleged on-money mentioned in the loose paper pertaining to few units sold by the Appellant Firm and any extrapolation of such on-money on entire scheme in all the Assessment Years cannot be made in the absence of any evidence brought by the Ld. AO to prove that the appellant has received on-money in each and every unit/flat sold by it particularly when no statement of any buyer was recorded by the AO to prove his contention of receipt of on-money on the entire scheme. It appears that the AO has taken into consideration Rs. 1,81,72,500/- for Pushkar - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the Ld. AO. No clinching evidence of receipt of on-money on the entire sales made by the appellant is found in the absence of which extrapolation of income simply based on few flimsy instances is not sustainable. On this aspect we have considered several judgments passed by the different Benches including the Coordinate Benches in the case of M/s. Amar Corporation in ITA No. 2041/Ahd/2007 dated 31.03.2011 on an identical fact there was no material found in the possession of the Ld. AO which could conclusively demonstrate that in respect of the other flats the assessee had in fact charged "on-money" from the customers. Once the Revenue department has taken the extreme step of conducting a raid on assessee, then it is expected to uneart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely on presumption on the entire sale. Thus, we find extrapolation of the entire income of appellant in all the assessment years based upon on-money receipts reflected in the loose paper pertaining to few units sold by the appellant is found to be unjustified and on that basis addition is required to be restricted only to the undisclosed income of the assessee to the tune of Rs. 1,81,72,500/- for Pushkar-III and 1,69,49,500/- for Pushkar-IV. Remaining addition deserves to be deleted as has been rightly held by the Ld. CIT(A) without any ambiguity so as to warrant interference. Thus, Revenue's appeal is found to be devoid of any merit and hence dismissed. 9. In the result, the appeal preferred by the Revenue is dismissed. This Order pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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