M/s. Kumash Construction Pvt.Ltd., Valsad V. The Dy.CIT.,Cent.Circle-2, Surat

CO 206/AHD/2011

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0496 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 07-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P VAISHNAV
• Assessee Lawyers: S D CHHEDA
• Keywords: Income from undisclosed sources
• Section: 143(3); 131; 132; 12

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER IT(SS)A NO. 493/AHD/2011 & CO NO.206/AHD/2011 / ASSESSMENT YEAR: 2006-07 DCIT, CENTRAL CIRCLE-2, SURAT VS M/S. KUMASH CONSTRUCTION PVT LTD., 404, AMAR CHAMBERS, VALSAD PAN : AACCK 3027 C / // / (APPELLANT) / // / (RESPONDENT/CROSS- OBJECTOR) REVENUE BY : SHRI O.P. VAISHNAV, CIT-DR ASSESSEE(S) BY : SHRI S.D. CHHE DA, AR ! '#$ ! '#$ ! '#$ ! '#$ / DATE OF HEARING : 18/05/2015 %& ! '#$ / // / DATE OF PRONOUNCEMENT: 22/05/2015 '( '( '( '(/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE REVENUE AND THE CROS S-OBJECTION FILED BY THE ASSESSEE, BOTH AGAINST THE ORDER OF THE COMM ISSIONER OF INCOME TAX (APPEALS)-II, AHMEDABAD DATED 23.05.2011, PERTAININ G TO ASSESSMENT YEAR 2006-07. IT(SS)A NO. 493/AHD/2011 (REVENUES APPEAL) : AY: 2 006-07 2. IN THIS APPEAL BY THE REVENUE, FOLLOWING GROUNDS WERE RAISED:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOL DING THAT THE ADDITION ON ACCOUNT OF DETERMINED SUPPRESSION OF UNACCOUNTED ON-MONEY INCOME WAS ERRONEOUS. IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 2 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIS MISSING THE RELEVANT FACTS REGARDING THE UNACCOUNTED INCOME AS COLLECTED AND SEIZED DURING SEARCH ACTION AND PLACED ON RECORD. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN REL YING ON IRRELEVANT MATERIALS, THEORETICAL PREMISES, SURMISES AND CONJE CTURES REGARDING THE ON MONEY RECEIPTS AND COMMISSION PAYMENTS MADE BY T HE ASSESSEE CONCERN. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN LAW IN MAKING ERRONEOUS INTERPRETATION OF RELEVANT FACTS AND IMPROPERLY REJ ECTING ADMISSIBLE EVIDENCE. 3. THE FACTS OF THE CASE ARE THAT SEARCH AND SEIZUR E OPERATION U/S 132 OF THE INCOME-TAX ACT, 1961 WAS CARRIED OUT AT THE RES IDENTIAL AND BUSINESS PREMISES OF THE MALDE GROUP CONCERNS ON 24.09.2008. THE ASSESSEE IS ONE OF THE GROUP CONCERNS OF MALDE GROUP. DURING THE ACCOU NTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE-C OMPANY PAID COMMISSION TO SHRI ATUL PREMJI MALDE WHOSE STATEMEN T WAS RECORDED U/S 132(4) ON 24.09.2008 AND ALSO ON OATH U/S 131 ON 12 .12.2008. IN THOSE STATEMENTS, SHRI ATUL PREMJI MALDE STATED THAT HE R ECEIVED 1% COMMISSION ON THE FLATS SOLD BY HIM. FROM THE COMPUTER DATA IM POUNDED FROM THE OFFICE OF SHRI BHARAT MALDE, DIRECTOR OF THE ASSESSEE-COMP ANY, FOLLOWING DETAILS OF THE FLAT SOLD AND COMMISSION PAID TO SHRI ATUL PREM JI MALDE WAS FOUND:- ATUL P. MALDE DETAILS OF COMMISSION RECEIVED A/ C YEAR 2005-06 PROJECT NAME NO. OF FLATS SOLD SALES VALUE BROKERAGE* OM KEVAL, SAI KEVAL, SHREE KEVAL, SWUBH KEVAL 30 FLATS 2,42,24,700 4,84,610 4. FROM THE ABOVE DETAILS OF COMMISSION PAID, THE A SSESSING OFFICER NOTICED THAT THE COMMISSION HAS BEEN PAID AT RS.4,8 4,610/- WHILE THE SALE IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 3 VALUE OF THE FLATS HAVE BEEN SHOWN AT RS.2,42,24,70 0/-. SINCE SHRI ATUL PREMJI MALDE HAS CATEGORICALLY STATED THAT HE RECEI VED 1% COMMISSION ON THE FLATS SOLD, THE ASSESSING OFFICER DREW INFERENC E THAT THE CORRECT VALUE OF THE FLATS SOLD WAS RS.4,84,49,400/- AND ACCORDINGLY , HE MADE THE ADDITION OF RS.2,42,24,700/-. ON APPEAL, THE CIT(A) DELETED TH E ADDITION WITH THE FOLLOWING FINDINGS:- 5. I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE BASIS OF ADDITION OF ON MONEY' RECEIVED AND ALSO THE SUBMISSIONS OF THE A.R . AND I AM TOTALLY IN AGREEMENT WITH THE LEARNED A.R. THAT THE ADDITION O F RS.2,42,24,700/- HAS BEEN MADE SIMPLY ON THE REVERSE WORKING OF SALE OF FLATS ON THE BASIS OF COMMISSION PAID TO SHRI ATUL P. MALDE. THE COMMISSI ON PAYMENT AS PER ANNEXURE-1 COMES TO 2% OF THE SALE VALUE OUT OF WHI CH 1% COMMISSION IS PAID TO THE SUB BROKERS WHICH IS ALSO A PART OF ANN EXURE-1 ON PAGE 2 TO 4. IN THE ASSESSMENT ORDER FOR A.Y.2007-08, THE COMMISSIO N PAYMENT WAS 1% OF THE SALE VALUE BUT THE RATE OF SALE OF FLATS WAS SA ME IN A.Y.2005-06, 2006-07 AND 2007-08 AS MENTIONED IN THE TABLE ABOVE. IT IS INTERESTING TO NOTE THAT THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS.2,42, 24,700/- WITHOUT MAKING ANY ENQUIRY FROM THE PURCHASERS OR WITHOUT ANY FIND ING OR ANY KIND OF EVIDENCE OF RECEIPT OF 'ON MONEY' EITHER DURING THE COURSE OF SEARCH PROCEEDINGS OR POST SEARCH ENQUIRIES. IN THE STATEM ENT OF SHRI ATUL P. MALDE AND SHRI BHARAT MALDE, THE MAIN PERSON OF THE GROUP , THERE IS NOT A SINGLE QUESTION ON RATE OF SALES OF FLAT IN ANY OF THE PRO JECTS IN WHICH THE FLATS HAVE BEEN SOLD THROUGH SHRI ATUL P. MALDE. THE POCKET DI ARY IMPOUNDED FROM THE OFFICE PREMISES OF THE ASSESSEE DOES NOT CONTAIN AN Y DETAILS OF 'ON MONEY COLLECTION ON THE PROJECTS DEVELOPED AND SOLD BY TH E ASSESSEE COMPANY THROUGH SHRI ATUL P.MALDE. NO DEFECT OR MISTAKE IN THE BOOKS IS POINTED OUT BY THE ASSESSING OFFICER AND THE BOOKS OF ACCOUNTS HAVE NOT BEEN REJECTED FOR APPLYING THE COMPARATIVE G.P. OF ANOTHER PROJECT. T HE ASSESSING OFFICER, WITHOUT ANY BASIS, HAS DOUBLED OUT THE SALE VALUE O F THE FLATS ON THE BASIS OF COMMISSION PAYMENT TO SHRI ATUL P. MALDE. AT THE MO ST, HE COULD HAVE QUESTIONED THE GENUINENESS OF EXCESS COMMISSION OF 1% PAID TO SHRI ATUL P. MALDE BECAUSE FOR BOOKING THE FLATS IN THE SAME PRO JECT IN A.Y.2005-06 AND A.Y.2007-08, THE COMMISSION @ 1% WAS PAID ON SALE O F ALL FLATS. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND EVIDENCES ON RECORD, IT IS HELD THAT THE ASSESSING OFFICER HAS M ADE ADDITION OF 'ON MONEY' FOR RS.2,42,24,700/- WITHOUT ANY EVIDENCE FOUND IN SEARCH PROCEEDINGS OR COLLECTED DURING POST SEARCH ENQUIRIES OR DURING AS SESSMENT PROCEEDINGS, ON ANY OF THE FLATS SOLD THROUGH SHRI ATUL P.MALDE. EV EN NO STATEMENT WAS RECORDED ON SALE VALUE OF ANY OF THE FLATS. IT IS T HEREFORE, HELD THAT THE ADDITION IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 4 OF RS.2,42,24,700/- WAS UNJUSTIFIED AND WITHOUT ANY BASIS, HENCE THE SAME IS DELETED. 5. THE REVENUE, AGGRIEVED WITH THE ORDER OF THE CIT (A), IS NOW IN APPEAL BEFORE US. 6. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE STATEMENT OF S HRI ATUL P. MALDE WAS RECORDED AT THE TIME OF SEARCH AS WELL AS AFTER THE CONCLUSION OF SEARCH. HE REFERRED TO HIS STATEMENT AFTER THE DATE OF THE SEA RCH AND POINTED OUT THAT IN THE STATEMENT DATED 12.12.2008, SHRI ATUL P. MALDE HAS CLEARLY STATED THAT THE COMMISSION HAS BEEN RECEIVED AT 1%. HE REITERATED H IS STATEMENT OF RECEIPT OF COMMISSION 1% EVEN IN RESPECT OF THOSE 30 FLATS, THE DETAILS OF WHICH WERE FOUND FROM THE COMPUTER OF SHRI BHARAT MALDE. HE AL SO CLARIFIED THAT IF THERE IS MORE THAN ONE BROKERS, HE HAS TO SHARE THE COMMI SSION FROM HIS 1% OF COMMISSION. THE LD. DEPARTMENTAL REPRESENTATIVE SUB MITTED THAT THE CIT(A) ACCEPTED THE ASSESSEES CONTENTION THAT THE COMMISSION WAS PAID AT 2% WHICH WAS CONTRARY TO THE STATEMENT ON OATH OF S HRI ATUL P. MALDE. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) S HOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 7. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, POINTED OUT THAT THE STATEMENT OF SHRI ATUL P. MALDE WAS RECORDED ON 12.12.2008 AND IMMEDIATELY WITHIN 4 DAYS I.E. 16.12.2008 HE GAVE A N AFFIDAVIT STATING THAT SINCE IN RESPECT OF SALE OF THOSE 30 FLATS ONE MORE BROKER WAS INVOLVED, THEREFORE THE TOTAL COMMISSION RECEIVED WAS 2%, OUT OF WHICH 1% WAS PASSED ON TO SUB-BROKER. DURING HIS STATEMENT, WHAT HE STATED IS THE COMMISSION WHICH WAS ACTUALLY RETAINED BY HIM. HE ALSO REFERRED TO THE COMPUTATION OF INCOME AND ASSESSMENT ORDER OF SHRI ATUL P. MALDE FOR IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 5 ASSESSMENT YEAR 2006-07 WHICH WAS COMPLETED U/S 143 (3) BEFORE THE SEARCH. HE POINTED OUT THAT THE SEARCH IN THE ASSESSEES GR OUP WAS CONDUCTED ON 24.09.2008 WHILE SHRI ATUL P. MALDE FILED HIS RETUR N OF INCOME FOR ASSESSMENT YEAR ON 22.03.2007, DECLARING INCOME OF RS.2,52,284/-. IN THE COMPUTATION OF INCOME, SHRI ATUL P. MALDE HAS CLEAR LY SHOWN THAT OUT OF THE BROKERAGE RECEIVED AT RS.4,84,610/-, THE BROKERAGE PAID BY HIM WAS RS.2,39,250/- AND NET BROKERAGE RECEIVED WAS ONLY R S.2,45,360/-. THE ABOVE RETURN OF INCOME WAS SCRUTINIZED U/S 143(3) AND THE ASSESSING OFFICER VIDE ORDER DATED 08.04.2008 COMPLETED THE ASSESSMENT AT RS.2,72,280/ - BY MAKING THE ADDITION OF RS.20,000/- ON ACCOUNT OF LO W HOUSEHOLD WITHDRAWAL. THUS, THE BROKERAGE PAID BY SHRI ATUL P . MALDE TO OTHER BROKERS WAS DISCLOSED BY HIM PRIOR TO THE SEARCH AN D WAS ALSO ACCEPTED IN THE ORDER PASSED U/S 143(3). HE ALSO REFERRED TO TH E STATEMENT OF SHRI BHARAT MALDE DATED 24.12.2008 IN WHICH SHRI BHARAT MALDE H AS CLARIFIED THAT THE COMMISSION PAID TO SHRI ATUL P. MALDE WAS 2% AND OU T OF WHICH HE PASSED ON 1% TO OTHER SUB-BROKERS. THEREFORE, WHAT HE STAT ED IS THE NET COMMISSION. IT WAS ALSO SUBMITTED BY THE LD. COUNSEL THAT THE S TATEMENT OF SHRI ATUL P. MALDE WAS RECORDED BEHIND THE BACK OF THE ASSESSEE AND THE ASSESSEE SPECIFICALLY REQUESTED DURING THE COURSE OF ASSESSM ENT PROCEEDINGS TO ALLOW OPPORTUNITY TO CROSS-EXAMINE SHRI ATUL P. MALDE. H OWEVER, THE REVENUE DID NOT ALLOW ANY OPPORTUNITY OF CROSS-EXAMINING SH RI ATUL P. MALDE. THE LD. COUNSEL ALSO POINTED OUT FROM THE CIT(A)S ORDE R THAT THE ASSESSEE SOLD FLATS/SHOPS AT THE SAME RATE IN THE PRECEDING AND S UBSEQUENT YEARS AND THE REVENUE ACCEPTED THE SAME. HOW IN RESPECT OF SAME FLATS OR SHOPS THE ASSESSEE IS ABLE TO TAKE THE MONEY DOUBLE THAN THE RATE AT WHICH THE FLATS WERE SOLD IN THE PRECEDING AND SUBSEQUENT YEARS? H E, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) IS PERFECTLY JUSTIFIED AND THE SAME SHOULD BE SUSTAINED. IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 6 8. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AFTER CONSID ERING THE FACTS OF THE CASE AND ARGUMENTS OF BOTH THE SIDES, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CIT(A). THE ADDITIONS HAVE B EEN MADE SOLELY ON THE BASIS OF STATEMENT OF SHRI ATUL P. MALDE IN WHICH H E HAS STATED TO HAVE RECEIVED THE COMMISSION AT THE RATE OF 1%. HOWEVER , HIS STATEMENT DATED 12.12.2008 WAS RETRACTED BY HIM BY FURNISHING AN AF FIDAVIT ON 16.12.2008 WHICH WAS WITHIN 4 DAYS FROM THE DATE OF THE STATEM ENT. SHRI BHARAT MALDE IN HIS STATEMENT HAS CLARIFIED THAT THE COMMISSION WAS PAID TO SHRI ATUL P. MALDE AT 2% AND SINCE MORE THAN ONE BROKER WAS INVO LVED, SHRI ATUL P. MALDE PASSED ON ABOUT 1% TO THE SUB-BROKERS AND THE REFORE, HIS STATEMENT WITH REGARD TO 1% COMMISSION SHOULD BE CONSIDERED A S 1% NET COMMISSION. AFTER THE STATEMENT OF SHRI BHARAT MALDE AND THE AF FIDAVIT OF SHRI ATUL P. MALDE, THE DEPARTMENT DID NOT RE-EXAMINE SHRI ATUL P. MALDE. THE REVENUE ALSO DID NOT EXAMINE FROM ANY OF THE BUYERS OF THE FLATS THE RATE AT WHICH THEY HAVE PURCHASED THE FLATS. ADMITTEDLY, T HE STATEMENT OF SHRI ATUL P. MALDE WAS RECORDED BEHIND THE BACK OF THE ASSESS EE AND WITHIN A PERIOD OF 4 DAYS, SUCH STATEMENT WAS RETRACTED BY HIM BY F URNISHING THE AFFIDAVIT. THE ASSESSEE, DURING THE ASSESSMENT PROCEEDINGS, SP ECIFICALLY MADE A REQUEST TO ALLOW OPPORTUNITY TO CROSS-EXAMINE SHRI ATUL P. MALDE IF REVENUE WANTED TO RELY UPON HIS STATEMENT. HOWEVER, THE REVENUE DID NOT ALLOW ANY OPPORTUNITY TO THE ASSESSEE TO CROSS-EXAM INE SHRI ATUL P. MALDE AND MADE THE HUGE ADDITION RELYING UPON THE STATEME NT OF SHRI ATUL P. MALDE WHICH WAS NOT ONLY RECORDED BEHIND THE BACK O F THE ASSESSEE BUT WAS RETRACTED BY SHRI ATUL P. MALDE. IN THE RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 FILED BY SHRI ATUL P. MALDE PRIOR TO T HE DATE OF SEARCH, HE HAS DISCLOSED THE BROKERAGE RECEIVED BY HIM AND THE BRO KERAGE PAID TO SUB- BROKERS. THESE FACTS ALSO AFFIRMED THE EXPLANATION OF SHRI BHARAT MALDE THAT THE COMMISSION PAID TO SHRI ATUL P. MALDE WAS ABOUT 2% OUT OF WHICH 1% IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 7 WAS PASSED ON BY SHRI ATUL P. MALDE TO OTHER BROKER S. THE CIT(A) AT PAGE NO.4 OF HIS ORDER HAS GIVEN THE COMPARATIVE RATE FO R SALE OF FLAT IN PRECEDING AND SUBSEQUENT YEAR. FOR READY REFERENCE THE SAME IS REPRODUCED BELOW:- RATE/PROJECT A.Y. 2005 - 06 A.Y. 2006 - 07 A.Y. 2007 - 08 OM KEWAL (RES.) -- 500 500 SAI KEWAL (RES.) 500 PER SQ. FT. 500 500 SHUBH KEWAL (RES.) 400 400 400 SH. KEWAL (RES.) 400 400 400 SAI KEWAL (SHOP) 3000 3000 -- FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE SOL D THE FLATS IN VARIOUS PROJECTS AT THE SAME RATE IN A.YS. 2005-06, 2006-07 AND 2007-08. THE REVENUE HAS ACCEPTED THE SALE RATES OF FLATS IN ALL THE YEARS, EXCEPT SALE OF 30 FLATS SOLD THROUGH SHRI ATUL P. MALDE IN THE YEAR U NDER CONSIDERATION. IT CANNOT BE BELIEVED THAT THE ASSESSEE SOLD 30 FLATS AT DOUBLE THE RATE THEN THE SALE RATE OF SAME FLATS TO OTHERS IN THE PRECEDING YEAR, CURRENT YEAR AND SUBSEQUENT YEAR. 9. IN VIEW OF THE TOTALITY OF THE ABOVE FACTS, IN O UR OPINION, THE CIT(A) WAS FULLY JUSTIFIED IN DELETING THE ABOVE ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE STATEMENT OF SHRI ATUL P. MALDE WHICH WAS RECORDED BEHIND THE BACK OF THE ASSESSEE AND MOREOV ER, WHICH WAS RETRACTED BY HIMSELF WITHIN 4 DAYS FROM THE DATE OF GIVING OF HIS STATEMENT. WE, THEREFORE, UPHOLD THE ORDER OF THE CIT(A) AND D ISMISS THE APPEAL FILED BY THE REVENUE. [ CO NO.206/AHD/2011 (ASSESSEES CROSS-OBJECTION) : A Y: 2006-07 IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 8 10. IN THE CROSS-OBJECTION, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) HAS ERRED IN LAW & IN FACTS M AKING DISALLOWANCE OF COMMISSION OF RS.242305/- WHICH IS AT 1% OF SALES V ALUE AS AGAINST 2% OF SALES VALUE. 2. THE LEARNED CIT(A) HAS WRONGLY OBSERVED THAT TH E LEARNED A.R. HAD SUBMITTED THAT THERE WAS NO JUSTIFICATION FOR CLAIM ING ADDITIONAL 1% OF COMMISSION & HAD AGREED FOR DISALLOWANCE OF RS.2423 05/- 3. THE APPELLANT LEAVES THE RIGHT TO AMEND, ADD, OR ALTER THE GROUND AT THE TIME OF REGULAR HEARING. 11. AT THE TIME OF HEARING BEFORE US, THE LD. COUNS EL FOR THE ASSESSEE DID NOT PRESS THE CROSS-OBJECTION. MOREOVER, FROM THE P ERUSAL OF THE ORDER OF THE CIT(A), WE FIND THAT BEFORE THE CIT(A) ALSO THE ASS ESSEE AGREED FOR THE DISALLOWANCE OF RS.2,42,305/- OUT OF COMMISSION PAI D. THE RELEVANT FINDING OF THE CIT(A) READS AS UNDER:- 7. DURING THE COURSE OF THE APPELLATE PROCEEDING S, THE LEARNED A.R. OF THE APPELLANT WAS REQUESTED TO JUSTIFY THE EXCESS COMMI SSION PAYMENT OF 2% AS AGAINST 1% ON SALE OF FLATS IN THE SAME PROJECTS DU RING A.Y.2006-07 WHEREAS COMMISSION @ 1% WAS PAID, CLAIMED AND ALLOWED IN A. Y.2005-06 AND A.Y.2007-08. HE WAS ALSO REQUESTED TO EXPLAIN AN Y ADDITIONAL SERVICES RENDERED BY THE SUB BROKERS FOR ADDITIONAL 1% C OMMISSION PARTICULARLY IN VIEW OF THE FACTS THAT SHRI ATUL P.MALDE HAD CLEARL Y ADMITTED THAT IF THERE WERE MORE THAN ONE BROKERS INVOLVED IN SALE OF THE FLATS, THE COMMISSION OF 1% WAS TO BE DISTRIBUTED AMONGST THE BROKERS. HE WA S ENTITLED FOR 1% COMMISSION AT THE MAXIMUM. THE LEARNED A.R. HAD SUB MITTED THAT THERE WAS NO JUSTIFICATION FOR CLAIMING ADDITIONAL 1% OF COMM ISSION THAT WORKS OUT TO RS.2,42,305/- ON SALE OF 30 FLATS FOR RS.2,42,24,70 0/- AND HE AGREED FOR DISALLOWANCE OF RS.2,42,305/-. THUS, THE DISALLOWAN CE OF RS.2,42,305/- IS MADE OUT OF INFLATED COMMISSION DEBITED IN BOOKS OF ACCOUNTS. IN VIEW OF ABOVE, WE DISMISS THE CROSS-OBJECTION OF THE ASSESSEE. IT(SS)A NO.493/AHD/2011 & CO 206/AHD/2011 DCIT VS. KUMASH CONSTRUCTION PVT LTD AY 2006-07 9 12. IN THE RESULT, THE REVENUES APPEAL AS WELL AS ASSESSEES CROSS- OBJECTION, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 22 ND MAY, 2015 AT AHMEDABAD. SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 22/05/2015 BIJU T., PS '( ! ') *')' '( ! ') *')' '( ! ') *')' '( ! ') *')'/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ++' , / CONCERNED CIT 4. , ( ) / THE CIT(A) 5. )/0 ' , , / DR, ITAT, AHMEDABAD 6. 02 3 / GUARD FILE . '( '( '( '( / BY ORDER, TRUE COPY 4 44 4/ // / +5 +5 +5 +5 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD