ZEARS DEVELOPERS. P.LTD, MUMBAI V. ACIT CEN CIR 24 & 26, MUMBAI

CO 13/MUM/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7705 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 26-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 25-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAGATI KUMAR
• Keywords: Unexplained investment; Value adopted by valuation officer; Gift; Income from undisclosed sources; Valuation report; Retraction
• Section: 69C; 143(3); 133A; 153A; 132

Judgement Text

ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO.3812/MUM/2011 (ASSESSMENT YEAR: 2008-09) ACIT CENTRAL CIRCLE 24 & 26, 4 TH FLOOR, AAYAKAR BHAVAN, MK ROAD, MUMBAI 400020 (APPELLANT) VS. ZEARS DEVELOPERS PVT. LTD, GOD GIFTS TOWERS, 4 TH FLOOR, HILL ROAD, BANDRA (WEST) MUMBAI 400050 PAN: AAACZ 2097 E (RESPONDENT) C.O. NO.13/MUM/2012 (ARISING OUT OF ITA NO.3812/MUM/2011) ZEARS DEVELOPERS PVT. LTD, GOD GIFTS TOWERS, 4 TH FLOOR, HILL ROAD, BANDRA (WEST) MUMBAI 400050 PAN: AAACZ 2097 E ( CROSS OBJECTOR ) VS. ACIT CENTRAL CIRCLE 24 & 26, 4 TH FLOOR, AAYAKAR BHAVAN, MK ROAD, MUMBAI 400020 (RESPONDENT) DEPARTMENT BY: SHRI PRAGATI KUMAR, CIT(DR) ASSESSEE BY: SHRI RAJESH SANGHVI DATE OF HEARING: 26/07/2012 DATE OF PRONOUNCEMENT: 10/08/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS IS AN APPEAL BY REVENUE AGAINST THE ORDERS OF THE CIT (A)-39 MUMBAI, DATED 25.02.2011. ASSESSEE PREFERRED CROSS OBJECTION RISING VARIOUS ISSUES ON THE ORDER OF THE CIT (A), WHICH WERE NOT CONSIDERED BY THE CIT (A), BUT MAINLY SUPP ORTING THE ORDER OF THE CIT (A) ON THE ISSUES DECIDED IN FAVOUR OF A SSESSEE. 2. BRIEFLY STATED, ASSESSEE IS IN THE BUSINESS OF DEVE LOPMENT AND HAS CONSTRUCTED LINK SQUARE MALL ON LINKING ROAD, B ANDRA, MUMBAI. A SEARCH OPERATION UNDER SECTION 132 OF THE INCOME TAX ACT WAS CONDUCTED ON 8.5.2007 ON BINDRA ROHIRA GROU P OF CASES TO WHICH ASSESSEE BELONGS. ASSESSEE FILED A LETTER AFT ER THE SEARCH ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 2 OF 8 PROCEEDINGS, BUT IN THE COURSE OF INQUIRY BY THE DY . DIRECTOR OF INCOME TAX ON 25.5.2007 STATING THAT THE PROJECT WA S YET TO BE COMPLETED IN THE FINANCIAL YEAR 2007-08 AND THE VAL UE OF WORK IN PROGRESS AS ON 8.5.2007 WAS ` 20 CRORES AND DURING THE YEAR UNDER CONSIDERATION I.E. FINANCIAL YEAR 2007-08 THE PROJE CT WAS LIKELY TO BE COMPLETED AND ON BEHALF OF THE BOARD OF DIRECTORS C ONFIRMED AND STATED THAT THE ESTIMATED INCOME OF THE SAID COMPAN Y IN THE PROJECT KNOWN AS LINK SQUARE WAS ESTIMATED AT ` 5,50,00,000/- ON COMPLETION AND AFTER SALE OF THE ENTIRE SPACE COMPO NENT. ASSESSEE ALSO AGREED TO PAY AN AMOUNT OF ` 25 LAKHS BEING THE FIRST INSTALLMENT OF THE ADVANCE TAX ON THE SAID ESTIMATE D INCOME. SUBSEQUENTLY, ASSESSEE SEEMS TO HAVE COMPLETED THE PROJECT AND FOR THE YEAR UNDER CONSIDERATION ADMITTED AN INCOME OF ` 2,08,95,654/-. AO IN THE ASSESSMENT UNDER SECTION 143(3) ASKED ASS ESSEE WHY THE INCOME ADMITTED SHOULD NOT BE BROUGHT TO TAX. IT WA S SUBMITTED THAT ASSESSEE HAD ONLY ESTIMATED THE PROBABLE INCOM E ON COMPLETION OF THE PROJECT AND SALE OF THE ENTIRE CO MMERCIAL SPACE, BUT AT THE END OF THE YEAR IT DID NOT SELL THE ENTI RE SPACE AND ACCORDINGLY OFFERED LESSER INCOME. IT HAS ENCLOSED THE AUDIT REPORT. AO, HOWEVER, RELYING ON THE SAID LETTER WRITTEN BY THE DIRECTOR OF THE COMPANY TO THE DY. DIRECTOR (IT) MADE THE ADDITION OF BALANCE AMOUNT OF ` 3,41,04,346/- TO MAKE THE TOTAL INCOME AT ` 5.50 CRORES AS ADMITTED BY ASSESSEE IN THE LETTER ON ESTIMATED BASIS. WHILE DOING SO ON THE REASON THAT ASSESSEE DID NOT FURNIS H THE CLOSING WIP/STOCK REGISTER, HE ALSO REJECTED THE BOOKS OF A CCOUNT SO AS TO MAKE THE ADDITION. 3. AFTER CONSIDERING THE DETAILED SUBMISSIONS OF ASSES SEE, THE CIT (A) HOWEVER, DELETED THE SAID ADDITION. HIS REA SONS/FINDINGS ON THE ISSUE ARE AS UNDER: 22. I HAVE GONE THROUGH THE ISSUE. IN THIS CASE, SUBSEQUENT TO SEARCH AND SURVEY ACTION, THE DIRECTO R OF THE APPELLANT COMPANY HAS FILED A LETTER ON 25.5.20 07 STATING THAT THE PROJECT IS NOT YET COMPLETED AND T HE PROJECT MAY BE COMPLETED BY JANUARY/FEBRUARY, 2008. ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 3 OF 8 ESTIMATED INCOME OF THE COMPANY FROM THE PROJECT WI LL BE AROUND ` .5.50 CRORES ON COMPLETION OF THE PROJECT AND AFTER THE SALE OF THE ENTIRE SPACE IN THE PROJECT. THE DIRECTOR ALSO PROMISED TO PAY THE DUE INCOME TAX ON THE INCOME EARNED IN F.Y 2007-08 IN INSTALLMENTS. 23. FROM THE LETTER, IT COULD BE SEEN THAT THE PROF IT FROM THE PROJECT IS ESTIMATED BY THE DIRECTOR AT ` .5.50 CRORES IN THE MONTH OF MAY, 2007. IT IS ONLY AN ESTIMATE. IN FACT THE PROJECT WAS COMPLETED ONLY IN DECEMBER, 2007. I T IS ALSO TO BE NOTED THAT THE LETTER OF THE DIRECTOR DO ES NOT INDICATE ANY UNACCOUNTED INCOME AND THE LETTER DOES NOT INDICATE ANY INCRIMINATING DOCUMENTS FOUND DURING T HE SEARCH/SURVEY. IT IS ALSO TO BE NOTED THAT AO HAS N OT INDICATED ABOUT ANY INCRIMINATING DOCUMENTS FOUND DURING SEARCH/SURVEY. IT IS ALSO TO BE NOTED THAT T HE AMOUNT OF ` .5.50 CRORES WAS ESTIMATED AS INCOME IN A LETTER AND IT IS NOT AN ADMISSION OF ANY UNACCOUNTE D INCOME EITHER IN STATEMENT UNDER SECTION 132(4) OR STATEMENT RECORDED DURING SURVEY UNDER SECTION 133A OF THE I.T. ACT. 24. IN A BUILDING DEVELOPERS CASE, THE INCOME WILL ACCRUE TO THE DEVELOPER ONLY AT THE TIME OF SALE OF THE BU ILT UP SPACES. IN THIS CASE, ONLY PART OF THE BUILT UP SPA CES WERE SOLD IN THE ACCOUNTING YEAR RELEVANT TO THIS A .Y. 2008-09. PART OF THE BUILT UP SPACES WERE SOLD IN T HE SUBSEQUENT ACCOUNTING YEARS. IN FACT, PART OF THE B UILT UP SPACE WAS NOT SOLD BY THE APPELLANT AND IN FACT IT WAS LET OUT TO M/S CROMA AND SUBSTANTIAL RENTAL INCOME WAS EARNED BY THE APPELLANT IN THE SUBSEQUENT YEARS. 25. IT IS NOT THE CASE OF AO THAT UNACCOUNTED SALES HAD TAKEN PLACE OR ON MONEY WAS RECEIVED FROM THE SAL E OF BUILT UP SPACES OR INFLATION OF EXPENSES IN THE PRO JECT. THE ADDITION IS PURELY MADE ON THE BASIS OF THE LET TER FILED BY THE DIRECTOR OF THE APPELLANT COMPANY, WHO HAS ESTIMATED THE INCOME FROM THE PROJECT. ACTUAL INCOM E IS BOUND TO VARY WITH THE ESTIMATE MADE AND THE ENTIRE INCOME FROM THE PROJECT NEED NOT ARISE IN ONE ASSESSMENT YEAR. 26. THE INCOME INDICATED IN THE LETTER IS PURELY ON ESTIMATE BASIS AND THAT TOO SUBJECT TO SALES OF THE ENTIRE BUILT UP SPACES. IN THIS ACCOUNTING YEAR, ENTIRE BU ILT UP SPACES WERE NOT SOLD. IN THESE CIRCUMSTANCES, IT IS NOT PROPER ON THE PART OF AO TO ASSESS THE ENTIRE INCOM E ESTIMATED BY THE DIRECTOR FOR THE PROJECT IN THIS ASSESSMENT YEAR ITSELF. WHAT IS TAXABLE IN THIS ASSESSMENT YEAR IS THE INCOME WHICH ACCRUED TO THE APPELLANT FROM THE SALE OF BUILT UP SPACES IN THE ACCOUNTING YEAR RELEVANT TO THIS ASSESSMENT YEAR. T HE ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 4 OF 8 ACCOUNTS OF THE APPELLANT ARE AUDITED UNDER SECTION 44AB OF THE I.T. ACT AND ON THAT BASIS ONLY RETURN OF INCOME WAS FILED BY THE APPELLANT AND AO HAS NOT FO UND ANY DISCREPANCY IN PROFIT & LOSS A/C OR BALANCE SHE ET. 27. IN VIEW OF THE ABOVE DISCUSSIONS, I HOLD THAT T HE TOTAL INCOME SHOULD BE DETERMINED ON THE BASIS OF INCOME EARNED IN THIS ASSESSMENT YEAR AND NOT ON THE BASIS OF THE INCOME ESTIMATED PRIOR TO THE COMPLETION OF THE PROJECT AND SALE OF THE ENTIRE BUILT UP SPACE. THE APPELLANT HAS FILED THE RETURN ON THE BASIS OF THE AUDITED PROFIT & LOSS A/C AND BALANCE SHEET UNDER SECTION 4 4AB OF THE ACT AND NO DISCREPANCY IS FOUND IN THE ACCOU NTS AND HENCE THE INCOME RETURNED BY THE APPELLANT IS I N ORDER. IN VIEW OF THIS, AO IS DIRECTED TO DELETE TH E ADDITION MADE OF ` .3,41,04,346/-. 28. AS FAR AS THE ISSUE OF REFERENCE TO THE VALUATI ON CELL IS CONCERNED, NO ADDITION HAS BEEN MADE IN THE APPELLANTS CASE TILL DATE AND HENCE THE ISSUE RELA TED TO REFERENCE TO VALUATION CELL ARE NOT ADJUDICATED UPO N. 29. FURTHER, SINCE THE ADDITION MADE IN THE ASSESSM ENT ORDER IS DELETED ON MERITS, THE OTHER TECHNICAL ISS UES RAISED BY THE APPELLANT ARE ALSO NOT ADJUDICATED UP ON. 4. THE LEARNED CIT (DR) SUBMITTED THAT ASSESSEE HAS VO LUNTARILY ESTIMATED THE INCOME AT ` 5.50 CRORES AND THERE WAS NEVER A RETRACTION FROM SUCH STATEMENT SUBMITTED TO THE DY. DIRECTOR. THERE WAS ALSO NO COERCIVE ACTION FROM THE DEPARTMENT IN OBTAINING STATEMENT AND SO THE SAME HAS TO BE ACCEPTED AS GEN UINE ADMISSION AND RELIED ON THE PRINCIPLES LAID DOWN BY THE ALLAHABAD HIGH COURT IN THE CASE OF DR.S.C.GUPTA VS. CIT, 248 ITR 782. HE FURTHER SUBMITTED THAT AO REJECTED THE BOOKS OF ACC OUNT. THEREFORE, THE CIT (A) WAS NOT CORRECT IN DELETING THE ADDITIO N. IT WAS ALSO HIS CONTENTION THAT ASSESSEE HAS RAISED MANY LEGAL ISSU ES IN THE CROSS OBJECTIONS AND THEREFORE, FOR PROPER VERIFICATION A ND COMPLETION, THE MATTER CAN BE SET ASIDE TO AO FOR FRESH EXAMINATION . 5. THE LEARNED AUTHORIZED REPRESENTATIVE IN REPLY HOWE VER, SUBMITTED THAT EVEN THOUGH ASSESSEE WAS ALSO COVERE D IN THE SEARCH PROCEEDINGS, THERE IS NO INDICATION ON THE DATE OF SEARCH ITSELF AS THERE WAS NO PANCHANAMA AND NO STATEMENT UNDER SECT ION 132 WAS RECORDED FROM ANY OF THE DIRECTORS NOR THERE WAS AN Y SEIZURE OF ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 5 OF 8 BOOKS OF ACCOUNT OR DOCUMENTS, LEAVE ALONE ANY INCR IMINATING MATERIAL. WHAT THE DEPARTMENT HAS IMPOUNDED WAS ONL Y A CD INCORPORATING THE ACCOUNTS OF ASSESSEE UNDER SECTIO N 133A. HOWEVER, AS PART OF THE INQUIRY, ASSESSEE HAD SUBMI TTED A LETTER ESTIMATING THE INCOME AT ` 5.50 CRORES SUBJECT TO HOWEVER, COMPLETION OF PROJECT AND SALE OF THE ENTIRE SPACE. THE LEARNED COUNSEL REFERRED TO PAGE NO.93 OF THE PAPER BOOK TO SUBMIT THAT ASSESSEE DID NOT SELL THE ENTIRE SPACE AND ONLY SOL D PART OF THE CONSTRUCTED PROJECT AND OFFERED INCOME OF ` 2,04,19,954 IN THIS YEAR. PART OF THE SPACE WAS GIVEN ON LEASE TO M/S CROMA O N WHICH RENTAL INCOME WAS OFFERED IN THE LATER TWO YEARS TO THE EX TENT OF ` 2.86 CRORES. IF THE RENTAL INCOME WAS ALSO CONSIDERED, T HE TOTAL RECEIPT OFFERED BY ASSESSEE SO FAR WAS TO THE TUNE OF ` 5.36 CRORES AND ASSESSEES PROPERTY IS STILL EARNING RENTAL INCOME. THEREFORE, IT IS NOT CORRECT TO SAY THAT ASSESSEE HAS NOT OFFERED THE IN COME. IT WAS HIS SUBMISSION THAT IN MAY 2007 WHEN THE INQUIRY WAS GO ING ON, NEITHER THE PROJECT WAS COMPLETE NOR SALE WAS COMPL ETE. THEREFORE, ASSESSEE WAS ESTIMATING THE INCOME CONSIDERING THES E TWO ASPECTS. CONSIDERING THE RECORD OF ASSESSEE, IT CANNOT BE SA ID THAT ASSESSEE HAS NOT DISCLOSED THE COMPLETE INCOME. 6. FURTHER IT WAS HIS SUBMISSION THAT WHEN THERE WAS N O ELEMENT OF SEARCH OR SURVEY ON ASSESSEE AND ONLY IN THE COURSE OF SUBSEQUENT PROCEEDINGS ASSESSEE REALIZED THAT ITS N AME WAS ALSO INCLUDED IN THE SEARCH WARRANT CONDUCTED IN THE GRO UP CASES, BUT THERE WAS NO SEIZURE OF MATERIAL AND NO SEPARATE WA RRANT. WHILE OBJECTING THAT WITNESSES IN THE PANCHNAMA WERE NOT FROM LOCAL AREA UNDER RULE 112(6), IT WAS HIS CONTENTION THAT ASSES SEE CAME TO KNOW ABOUT THE SEARCH PROCEEDINGS SUBSEQUENTLY. THE REFORE, AS THE LAW IS AMENDED NOW, THEY ARE NOT MAKING AN ISSUE OF INCLUSION OF ITS NAME IN SOME OTHER WARRANT. HOWEVER, IT WAS HIS SUBMISSION THAT AO HAS SIMPLY REJECTED THE BOOKS OF ACCOUNT FO R NOT FURNISHING THE STOCK REGISTER WHILE ACCEPTING ENTRIES IN THE B OOKS OF ACCOUNT AND REFERRED TO THE SUBMISSIONS MADE TO AO PLACED I N PAPER BOOK AT ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 6 OF 8 PAGE NOS.98, 146 AND 148 TO SUBMIT THAT AO VERIFIED THE BOOKS OF ACCOUNT WHICH WERE ALSO AUDITED AND NO OTHER OBJECT IONS WERE FOUND EXCEPT THAT STOCK REGISTER WAS NOT PRODUCED. IT WAS SUBMITTED THAT AT THE TIME OF SEARCH, ASSESSEE WAS ONLY MAINT AINING THE MATERIALS REGISTER AND THE PROJECT WAS COMPLETED BY DECEMBER, 2007 WHEREAS AO WAS INQUIRING IN 2009 TO FURNISH TH E STOCK REGISTER OF PROJECT. THE LEARNED COUNSEL RELIED ON THE THIRD MEMBER DECISION OF ASSTT CIT V RAVI AGRICULTURAL INDUSTRIES (2009), 117 ITD 338 TO SUBMIT THAT BOOKS OF ACCOUNT CANNOT BE REJEC TED SIMPLY BECAUSE THE STOCK REGISTER WAS NOT FURNISHED. REFER RING TO THE ISSUE OF REFERENCE TO VALUATION OFFICER MADE BY AO, THE L EARNED COUNSEL FURTHER SUBMITTED THAT THE PROVISIONS OF SECTION 14 2A DOES NOT EMPOWER AO TO MAKE A REFERENCE FOR ARRIVING AT THE COST OF CONSTRUCTION UNDER SECTION 69C. HE RELIED ON THE DE CISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS.ARR PEE APAR TMENTS (P) LTD, 319 ITR 276. IT WAS FAIRLY ADMITTED THAT SINCE AO H AS NOT MADE ANY ADDITION ON THE BASIS OF VALUATION REPORT, THIS ISS UE IS ONLY ACADEMIC IN NATURE. 7. WITH REFERENCE TO THE CROSS OBJECTION, THE LEARNED COUNSEL SUBMITTED THAT AO ASSESSED ASSESSEE IN THE STATUS O F FIRM, WHEREAS THE ASSESSEE IS A COMPANY AND THERE ARE MANY OTHER ISSUES WHICH THE CIT (A) HAS NOT DEALT WITH IN HIS ORDER WHICH W AS CONTESTED IN C.O. HE MADE DETAILED SUBMISSIONS ON THE ISSUES RAI SED IN C.O. 8. WE HAVE CONSIDERED THE ISSUE AND RIVAL SUBMISSIONS. AS CAN BE SEEN FROM THE RECORD, EVEN THOUGH THE GROUNDS RA ISED BY THE REVENUE DO INDICATE THAT ASSESSEE ITSELF ADMITTED I NCOME OF ` 5.50 CRORES IN ITS STATEMENT AND ASSESSEE HAS NOT MAINTA INED PROPER BOOKS OF ACCOUNT, THESE CONTENTIONS WERE IRRELEVANT IN THE SENSE THAT DURING THE PROCEEDINGS EITHER UNDER SECTION 13 3A OR UNDER SECTION 132, NO STATEMENT HAS BEEN RECORDED FROM AS SESSEE ON 8.5.2007. FURTHER, ALSO THERE WAS NO OTHER STATEMEN T RECORDED UNDER THE PROVISIONS OF THE ACT. THEREFORE, RELIANC E ON VARIOUS CASE LAWS BY AO AND ALSO BY THE DEPARTMENTAL REPRESENTAT IVE TO SUPPORT ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 7 OF 8 THE ISSUE OF CONFESSION IN THE STATEMENT DOES NOT ARISE AT ALL. AS RIGHTLY POINTED OUT BY THE CIT (A), NO STATEMENTS W ERE RECORDED FROM ASSESSEE AND THE LETTER FILED BY ASSESSEE BEFORE TH E DY. DIRECTOR (INVESTIGATION) IS NOT AN ADMISSION OF ADDITIONAL I NCOME OR UNDISCLOSED INCOME. WHAT ASSESSEE HAS REPORTED WAS ONLY AN ESTIMATION OF INCOME ON COMPLETION OF PROJECT AND S ALE OF THE ENTIRE CONSTRUCTED AREA. AS STATED BY ASSESSEE, IT HAS NOT SOLD THE ENTIRE AREA AND ONLY PART OF IT BY THE END OF MARCH, 2008. ACCORDINGLY THE ESTIMATION OF INCOME HAS COME DOWN. JUST BECAUSE TH E STOCK REGISTER WAS NOT FURNISHED THAT TOO AFTER TWO YEARS OF COMPLETION OF THE BUILDING BY ITSELF, DOES NOT MAKE IT A CASE FOR REJECTION OF BOOKS OF ACCOUNT. ASSESSING OFFICER HAS ACCEPTED AND VERI FIED THE BOOKS OF ACCOUNT IN ALL OTHER ASPECTS AND SIMPLY TO MAKE THE ADDITION OF THE DIFFERENCE OF THE AMOUNT, WE ARE OF THE VIEW THAT H E REJECTED THE BOOKS OF ACCOUNT. THEREFORE, THE FINDINGS OF THE CI T (A) ON THIS ISSUE ARE ALSO TO BE UPHELD. MOREOVER AO HAS NO LEGAL POW ER TO REFER UNDER SECTION 69C ABOUT THE COST OF CONSTRUCTION AS DECIDED BY THE HON'BLE DELHI HIGH COURT IN THE CASE REFERRED (SUPR A) 319 ITR 276 AND AS SEEN FROM THE ORDERS AO HAS NOT MADE ANY ADD ITION TOWARDS UNEXPLAINED INVESTMENT. COUPLED WITH THE FACT THAT THERE WAS NO INCRIMINATING MATERIAL NOR ANY ADDITION WAS MADE ON ANY ON MONEY PAYMENT/ RECEIPT, NOR SALE OUTSIDE BOOKS OF ACCOUNT , ONE CANNOT ACCEPT THE CONTENTION OF AO THAT ASSESSEE HAS NOT D ISCLOSED CORRECT INCOME. AS RIGHTLY POINTED OUT BY THE LEARNED COUNS EL, ASSESSEE HAS NOT SOLD THE ENTIRE PROPERTY AND HAS GIVEN THE PROP ERTY ON LEASE AND EXPLOITED IT FOR COMMERCIAL PURPOSES, THE INCOMES O F WHICH WERE OFFERED IN LATER YEARS. ASSESSEE HAS EVERY REASON T O DIFFER FROM THE ESTIMATED INCOME DECLARED IN MAY, 2007 LETTER. FOR THE REASONS STATED ABOVE, WE UPHOLD THE ORDER OF THE CIT (A) AN D REJECT THE GROUNDS RAISED BY THE REVENUE ON THIS ISSUE. 9. ASSESSEE HAS RAISED CROSS OBJECTION INTER ALIA THAT THERE WAS NO SEARCH WARRANT IN THE NAME OF THE COMPANY AND AO WRONGLY TREATED THE STATUS OF ASSESSEE AS A FIRM, WHEREAS I T IS A COMPANY ITA NO.3812 OF 2011 AND C.O.NO.13 OF 2012 ZEARS DEV ELOPERS (P) LTD MUMBAI D BENCH PAGE 8 OF 8 AND THE CIT (A) HAS ERRED IN NOT DISPOSING THE LEGA L GROUND I.E. GROUND NOS.1 AND 2 RAISED IN THE FIRST APPEAL. IT I S ALSO RAISED THAT THE OBJECTIONS WITH REFERENCE TO THE FRAMING THE AS SESSMENT UNDER SECTION 153A R.W.S 143(3) IN THE ABSENCE OF ANY INC RIMINATING DOCUMENTS/STATEMENTS. THESE OBJECTIONS ARE ONLY ACA DEMIC IN NATURE AS THE ENTIRE ADDITION MADE BY AO WAS DELETE D BY THE CIT (A) AND WAS UPHELD BY US IN THE APPEAL DECIDED ABOVE IN ITA NO.3812/MUM/2011. THEREFORE, WITHOUT GOING INTO THE MERITS OF THIS CROSS OBJECTION, WE TREAT IT AS ACADEMIC IN NA TURE AND ACCORDINGLY, THE CROSS OBJECTION IS ALSO TREATED AS REJECTED. 10. IN THE RESULT, APPEALS FILED BY THE REVENUE AND CRO SS OBJECTION FILED BY ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH AUGUST, 2012. SD/- SD/- ( AMIT SHUKLA ) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 10 TH AUG, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI